Lebron v. Comm'r of Corr.

204 Conn.App. 44

250 A.3d 44

Luis LEBRON

v.COMMISSIONER OF CORRECTION

AC 43579

Appellate Court of Connecticut.

Argued February 4, 2021

Officially released April 20, 2021

Vishal K. Garg, West Hartford, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Leah Hawley, former senior assistant state's attorney, for the appellee (respondent).

Bright, C. J., and Alvord and Prescott, Js.

BRIGHT, C. J.

The petitioner, Luis Lebron, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The habeas court granted his petition for certification to appeal. On appeal, the petitioner claims that the habeas court improperly rejected his claim that his right to the effective assistance of counsel was violated when his first habeas counsel, Attorney Sebastian DeSantis, failed to pursue a claim that the petitioner's criminal trial counsel, Attorney Thomas Conroy, had provided ineffective assistance when he failed to advise the petitioner that he would be waiving his appellate rights by pleading guilty. We affirm the judgment of the habeas court.

The following facts and somewhat complicated procedural history inform our review. The state, in 1997, originally charged the petitioner with murder in violation of General Statutes § 53a-54a (a) and criminal use of a firearm in violation of General Statutes § 53a-216 after he shot and killed another man. The petitioner claimed that he shot the victim in self-defense. Attorney Kenneth Simon represented the petitioner in connection with these charges. During jury selection, in January, 1999, it became apparent to Simon that the petitioner would be charged with conspiracy to commit additional crimes relating to two witnesses to the shooting, namely, two counts of conspiracy to commit witness tampering and two counts of conspiracy to commit murder. Simon then filed a motion to withdraw from representing the petitioner, stating that he believed that he likely would be called as a witness during the trial on the anticipated new charges. The petitioner opposed Simon's motion and argued, in the alternative, that he should be able to represent himself temporarily, until a special public defender could be appointed. On January 27, 1999, the court denied the petitioner's request to represent himself temporarily, granted Simon's motion to withdraw, and declared a mistrial. In a separate information, the state additionally charged the petitioner with two counts of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and two counts of conspiracy to commit witness tampering in violation of General Statutes §§ 53a-48 and 53a-151. Attorney Conroy later was appointed to represent the petitioner on all of the charges

Conroy negotiated a plea agreement with the state that resolved all charges against the petitioner, pursuant to which the petitioner pleaded guilty under the Alford doctrine¹ to one count of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a and one count of conspiracy to commit witness tampering. The court sentenced the petitioner to a term of thirty years of incarceration on the manslaughter charge and to an unconditional discharge on the conspiracy charge. The state entered a nolle prosequi as to all of the other charges.

In June, 2000, the petitioner filed his first petition for a writ of habeas corpus. The petitioner's first habeas counsel, Attorney DeSantis, filed an amended petition, in which the petitioner alleged ineffective assistance of counsel as to Simon and Conroy. Specifically, the amended petition contained allegations that counsel had rendered ineffective assistance by failing to pursue discovery and to communicate with the petitioner about discovery, by failing to challenge the petitioner's arrest and the circumstances surrounding his arrest, by failing to challenge the arrest warrant, and by failing to communicate with the petitioner regarding legal and evidentiary standards so that he could make an informed decision on whether to plead guilty or to proceed to trial. On February 20, 2003, the habeas court denied the amended habeas petition (first habeas court's decision). DeSantis did not file a timely petition for certification to appeal from the first habeas court's decision. The petitioner, however, filed a pro se petition for certification to appeal on February 26, 2003, which was denied. No appeal from that denial was timely taken.

On July 18, 2006, the petitioner, represented by Attorney Paul Kraus, filed a second petition for a writ of habeas corpus, alleging the ineffective assistance of counsel as to Simon, Conroy, and DeSantis. The habeas court and the petitioner entered a stipulated agreement to restore the petitioner's appellate rights in the first habeas case (second habeas case). The court also granted a petition for certification to appeal from the first habeas court's decision. On September 8, 2006, the petitioner filed an appeal from the first habeas court's decision limited only to whether the first habeas court improperly had denied his postjudgment motions for reconsideration and reargument. This court denied review of those claims because they fell outside the scope of the stipulated agreement in the second habeas case, and our Supreme Court denied the petition for certification to appeal from our decision. See Lebron v. Commissioner of Correction , 108 Conn. App. 245, 249, 947 A.2d 349, cert. denied, 289 Conn. 921, 958 A.2d 151 (2008).

Nearly ten years later, on January 8, 2016, the petitioner filed a six count amended petition for a writ of habeas corpus, his third such petition. On May 5, 2016, the habeas court rendered a judgment of dismissal on the amended petition, concluding that there was no good cause to proceed to trial. The habeas court granted the petition for certification to appeal on May 18, 2016. On appeal, this court reversed in part the judgment of the habeas court and remanded the case for, inter alia, a trial on the merits of the petitioner's claim that his right to the effective assistance of habeas counsel had been violated because DeSantis had failed to pursue a claim that the petitioner's right to the effective assistance of criminal trial counsel had been violated when Conroy failed to advise the petitioner properly that his Alford plea would operate as a waiver of his appellate rights, specifically, his right to challenge the criminal trial court's granting of Simon's motion to withdraw. See Lebron v. Commissioner of Correction , 178 Conn. App. 299, 319–24, 175 A.3d 46 (2017), cert. denied, 328 Conn. 913, 179 A.3d 779 (2018).

The habeas court proceeded to a hearing on the merits of the petitioner's remaining claim. On August 28, 2019, the habeas court issued a memorandum of decision denying the petition on the ground that the petitioner had failed to prove prejudice because he failed to establish that he would not have pleaded guilty but for counsel's alleged deficient performance. The court, thereafter, granted the petitioner's petition for certification to appeal. This appeal followed.

On appeal, the petitioner claims that the habeas court improperly rejected his claim that his right to the effective assistance of counsel was violated when his first habeas counsel, DeSantis, failed to pursue a claim that the petitioner's criminal trial counsel, Conroy, had failed to advise him that, by pleading guilty, he would be waiving his rights to challenge on appeal the decision of the criminal trial court allowing Simon to withdraw and denying the petitioner's alternative request to represent himself. He alleges that the actions of the criminal trial court violated his constitutional rights to his counsel of choice and to self-representation. The respondent, the Commissioner of Correction, maintains that the petitioner failed to meet the prejudice prong of his ineffective assistance of counsel claim, and, therefore, the habeas court properly rejected the claim. We agree with the respondent.

We now turn to the merits of the petitioner's claim, recognizing that the claimed ineffective assistance regarding his first habeas counsel, DeSantis, must fail if the claims of ineffective assistance of his replacement trial counsel, Conroy, are without merit. See Lozada v. Warden , 223 Conn. 834, 842–43, 613 A.2d 818 (1992).

In Lozada , our Supreme Court "established that habeas corpus is an appropriate remedy for the ineffective assistance of appointed habeas counsel, authorizing what is commonly known as a habeas on a habeas, namely, a second petition for a writ of habeas corpus ... challenging the performance of counsel in litigating an initial petition for a writ of habeas corpus ... [that] had claimed ineffective assistance of counsel at the petitioner's underlying criminal trial or on direct appeal. ... Nevertheless, the court in Lozada also emphasized that a petitioner asserting a habeas on a habeas faces the herculean task ... of proving in accordance with Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. ... Any new habeas trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement." (Citations omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction , supra, 178 Conn. App. at 319–20, 175 A.3d 46.

"A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong.... For ineffectiveness claims resulting from guilty pleas, we apply the standard...