Holley v. Commissioner of Correction

62 Conn. App. 170

774 A.2d 148

JAMES HOLLEY v. COMMISSIONER OF CORRECTION

(AC 19454)

Appellate Court of Connecticut.

Argued October 25, 2000.

Officially released March 6, 2001.

Foti, Zarella and O'Connell, Js.

R. Bruce Lorenzen, assistant public defender, with whom, on the brief, was Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (petitioner).

Ronald G. Weller, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Jo Anne Sulik, assistant state's attorney, for the appellee (respondent).

Opinion

ZARELLA, J.

The petitioner, James Holley, appeals from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus dated April 13, 1998.¹ On January 27, 1999, the court granted the petitioner's timely petition for certification to appeal. On appeal, the petitioner claims that the habeas court improperly (1) concluded that he failed to demonstrate that he received ineffective assistance of trial counsel and (2) rejected his claim of actual innocence of the charges brought against him. We affirm the judgment of the habeas court.

On three separate occasions in January, 1992, and on February 6, 1992, the petitioner sold narcotics to an undercover police officer. Thereafter, on June 1, 1992, he was arrested and charged with four counts of sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b).² At trial, the petitioner raised the defense of entrapment as to all four counts. The petitioner was convicted, after a jury trial, on three of the counts and acquitted on one count. On March 5, 1993, the court sentenced the petitioner to serve a twenty year sentence consecutive to the sentence he was then serving for an unrelated conviction. The petitioner presently is in the custody of the respondent commissioner of correction.

I

The petitioner first claims that the habeas court improperly determined that he did not receive ineffective assistance of trial counsel. This claim embodies four distinct claims of ineffectiveness, namely, that counsel (1) failed to investigate the nature of the substances and, thereafter, failed to advise the petitioner not to sign a stipulation regarding the substances, (2) had a conflict of interest that prejudiced the petitioner's defense at trial, (3) offered prejudicial evidence of a prior narcotics investigation, a prior conviction for possession of marijuana and the petitioner's ownership of an expensive sports vehicle and (4) failed to seek a dismissal of the charges after the court ordered a mistrial.

Our review of such claims is well established. "In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.... A convicted defendant's claim that counsel's assistance was so defective as to require a reversal of the conviction ... has two components. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." (Citation omitted; internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn. App. 313, 316-17, 759 A.2d 118 (2000).

A

The petitioner first argues that his trial counsel's failure to investigate the nature of the substances and to advise him not to sign the stipulation amounted to ineffective assistance of counsel. We disagree.

The following additional facts are necessary for our disposition of this claim. In an effort to expedite the trial on the underlying criminal charges, the petitioner signed a stipulation in which he admitted that the seized substances were, in fact, cocaine.³ Before accepting the stipulation, the court asked the petitioner whether he understood the consequences of the stipulation. The court explained that "one of the things the state would have to prove in your case is that whatever the substance was involved in this case is in fact cocaine. The normal way they do that is to bring down somebody from the state toxicology department to testify that that piece of evidence was in their office, that testing was done on it and it does in fact contain cocaine." The petitioner responded that he understood. At a subsequent pretrial hearing on December 8, 1992, the court further explained that the stipulation "does away with the necessity of producing the toxicologist. The reason we did that was because we are trying to provide [the petitioner] with this trial in a speedier fashion." The petitioner again acknowledged that he understood the consequences of the stipulation.

To succeed on his claim, the petitioner "must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment [to the United States constitution]. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); Ghant v. Commissioner of Correction, 255 Conn. 1, 8, 761 A.2d 740 (2000).

"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." (Internal quotation marks omitted.) Constantopoulos v. Commissioner of Correction, 47 Conn. App. 828, 833, 708 A.2d 588, cert. denied, 244 Conn. 927, 711 A.2d 726 (1998).

The petitioner cannot prevail on the prejudice prong of the Strickland test. As the habeas court appropriately noted, the petitioner failed to demonstrate that his counsel's conduct resulted in any prejudice to the defense. The petitioner offered no evidence at the habeas hearing to suggest that if a laboratory test had been conducted, the substances would have been shown to be something other than cocaine. The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (petitioner could not succeed on claim of ineffective assistance of counsel because he failed to show what further investigation would have revealed and how it would have helped him); see also Nieves v. Commissioner of Correction, 51 Conn. App. 615, 624, 724 A.2d 508 (petitioner could not succeed on claim of ineffective assistance on basis of counsel's failure to conduct proper investigation in absence of showing that he was prejudiced by counsel's failure to interview witnesses), cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). In fact, the only evidence offered was that the substance had field tested positive for the presence of cocaine. The petitioner thus has failed to demonstrate any prejudice.

B

The petitioner next argues that trial counsel rendered ineffective assistance as a result of an actual conflict of interest. The petitioner contends that trial counsel wrongfully assessed the strength of his case and viewed him as a "potential cash cow." According to the petitioner, trial counsel "fed the petitioner's expectations with grandiose claims and advice that had no grounding in either law or reality." He also asserts that he refused counsel's requests to loan him money. The petitioner further argues that his counsel made representations to him about counsel's ability to get the charges dismissed to induce the petitioner to terminate his prior counsel.

"In a claim of ineffective assistance of trial counsel predicated on an alleged conflict of interest, the petitioner bears the burden of satisfying a two-pronged test.... The petitioner must first demonstrate that counsel actively represented conflicting interests and [second] that an actual conflict of interest adversely affected his lawyer's performance." (Citation omitted; internal quotation marks omitted.) Walton v. Commissioner of Correction, 57 Conn. App. 511, 516, 749 A.2d 666, cert. denied, 254 Conn. 913, 759 A.2d 509 (2000).

In the present case, the habeas court made no factual findings to support the petitioner's conclusions and speculations. We have held that it is the obligation of the petitioner to provide this court with an adequate record for review. "The burden of securing an adequate record for appellate review rests with the petitioner." Gipson v. Commissioner of Correction, 54 Conn. App. 400, 438, 735 A.2d 847, cert. granted on other grounds, 251 Conn. 915, 740 A.2d 864 (1999). The petitioner cannot prevail on his claim of conflict of interest absent factual underpinnings.

C

The petitioner next argues that trial counsel rendered ineffective assistance by offering evidence of the petitioner's 1985 conviction for possession of marijuana, a prior narcotics investigation and the petitioner's ownership of an expensive sports vehicle. We disagree.

We reiterate that in deciding a claim of ineffective assistance of trial counsel, the reviewing court does not grade counsel's conduct; Constantopoulos v. Commissioner of Correction, supra, 47 Conn. App. 833; nor does the court determine which of numerous strategies counsel should have used at trial. Rather...