Gould v. Warden

Jeffrey GOULD (Inmate #146239) v. WARDEN

No. CV134005276S

Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19

January 10, 2019

UNPUBLISHED OPINION

OPINION

Kwak J.

The petitioner filed a pro se petition for a writ of habeas corpus on January 30, 2013. The pro se petition was amended twice by assigned counsel, with the second amended petition asserting claims in three counts: first, that trial counsel Attorney Paul Catalano, rendered ineffective assistance second, that appellate counsel, Attorney Glenn Falk, rendered ineffective assistance; and third, that the petitioner’s rights to due process and a fair trial were violated by the prosecutor and the trial court. The respondent’s amended return denies the petitioner’s claims and that he is entitled to habeas corpus relief.

The parties appeared before the court on December 5 and 6, 2017 as well as on January 10, 2018, for a trial on the merits. The petitioner entered numerous documents into evidence; the respondent entered two documents into evidence. Additionally, the court received testimony from the petitioner, his former trial counsel, Attorney Catalano, his former appellate counsel, Attorney Falk, and former police officer Dean Cyr. The parties filed post-trial briefs.

Based on its review of the documentary evidence and testimony presented, and for the reasons articulated more fully below, the petition for a writ of habeas corpus is denied.

DISCUSSION

The petitioner was the defendant in a criminal case, docket number CR11-0048846-T, in the judicial district of New Britain. The petitioner was charged with one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1). The charge stemmed from a report by A.M., the petitioner’s step daughter, that she was sexually assaulted by the petitioner on May 11, 2011. The petitioner proceeded to trial and was found guilty by a jury. On January 10, 2013, the trial court, Alander, J., sentenced the petitioner to a total effective sentence of twelve years of incarceration, of which two years is a mandatory minimum, followed by five years of special parole.

The petitioner appealed from the judgment of conviction. On appeal, the petitioner "argue[d] that the trial court ... imposed a more stringent English proficiency standard than is required under General Statutes § 51-217(a)(3), improperly disqualifying E.F., a machinist, despite his ability to both speak and understand the English language. As a result of E.F.’s improper disqualification, the [petitioner] claim[ed] that the fairness of his trial is called into doubt." State v. Gould, 155 Conn.App. 392, 393, 109 A.3d 968 (2015). The Appellate Court "agree[d] ... that the trial court’s excusal of E.F. from jury service on the basis of his purported inability to speak English lack[ed] support in the record." Id. Nevertheless, the Appellate Court also concluded that the petitioner was not prejudiced by this error and was not deprived of his right to a fair trial. Id. The Supreme Court granted certification to appeal and subsequently concluded that the Appellate Court properly resolved the claim. State v. Gould, 322 Conn. 519, 521, 142 A.3d 253 (2016).

The petitioner initiated the present habeas corpus matter shortly after he was convicted and sentenced.

I. Count One— Ineffective Assistance by Attorney Catalano

The petitioner alleges numerous failures by Attorney Catalano. Several bases for deficient performance were withdrawn at the habeas trial, namely the allegations in paragraph 28, subsections B, C, J, K, L, P, and Q. The petitioner’s post-trial brief also specified that subsections G and U were withdrawn.^[1] Additionally, paragraph 32, subsections A, C, and D were withdrawn, as well paragraphs 37, 38, and 40. The court will address the remaining allegations in seriatim, either individually or grouped together when it facilitates the court’s analysis and discussion.^[2]

"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings ... This right arises under the sixth and fourteenth amendments to the United States Constitution and article first, § 8, of the Connecticut Constitution ... As enunciated in Strickland v. Washington, [ 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], [our Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong ... The claim will succeed only if both prongs are satisfied ...

"To prove his or her entitlement to relief pursuant to Strickland, a petitioner must first satisfy what the courts refer to as the performance prong; this requires that the petitioner demonstrate that his or her counsel’s assistance was, in fact, ineffective in that counsel’s performance was deficient. To establish that there was deficient performance by the petitioner’s counsel, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ...

" ‘[J]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ (Internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 449, 119 A.3d 607 (2015). In reconstructing the circumstances, ‘a reviewing court is required not simply to give [the trial attorney] the benefit of the doubt ... but to affirmatively entertain the range of possible reasons ... counsel may have had for proceeding as [he] did ...’ (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 319 Conn. 623, 632, 126 A.3d 558 (2015), quoting Cullen v. Pinholster, 563 U.S. 170, 196, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)." Spearman v. Commissioner of Correction, 164 Conn.App. 530, 538-39, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016).

" ‘The reasonableness of counsel’s actions may be determined or substantially influenced by the [petitioner’s] own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the [petitioner] and on information supplied by the [petitioner]. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.’ Strickland v. Washington, supra, 466 U.S. at 690-91, 104 S.Ct. 2052.

" ‘Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.’ State v. Talton, 197 Conn. 280, 297-98, 497 A.2d 35 (1985). Furthermore, ‘[t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.’ Id., at 297, 497 A.2d 35.

"In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury ... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support ... [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged ... The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn....