Rogers v. MacDougal-Walker

Thomas ROGERS v. Warden, MACDOUGAL-WALKER

No. CV144005892S

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

July 23, 2018

UNPUBLISHED OPINION

OPINION

Sferrazza, J.

The petitioner, Thomas Rogers, seeks habeas corpus relief from a total, effective sentence of sixty years imprisonment imposed after a jury trial, for the crimes of murder attempted murder, conspiracy to commit murder, and weapons violations. The Appellate Court affirmed the judgment of conviction on direct appeal, State v. Rogers, 50 Conn.App. 467 (1998); cert. denied, 247 Conn. 942 (1998).

The petitioner filed a first habeas petition which was denied Rogers v. Commissioner, Superior Court, New Haven Judicial District, d.n. CV 99-430888 (October 15, 2002), Zoarski, J.T.R. The Appellate Court also affirmed that decision, per curiam, Rogers v. Commissioner, 82 Conn.App. 901 (2004); cert. denied, 269 Conn. 902 (2004).

In his posttrial brief, the petitioner has abandoned all claims of his amended petition except for those set forth in the ninth and tenth counts. In these counts, the petitioner asserts that previous habeas counsel, Attorney Frank Cannatelli, provided ineffective assistance by failing to raise claims in the earlier habeas case that trial counsel, Attorney Paul Carty, rendered ineffective assistance by inadequately or incorrectly advising the petitioner, when the petitioner was considering a plea offer of thirty-five years, concerning the doctrine of an adoptive admission and that the petitioner could be convicted as an accessory to murder even if he was not in the vehicle from which the gunfire emanated and caused the death of the victim. He further asserts that, had he received accurate legal advice from Attorney Carty on these points, he would have accepted the plea disposition rather than have proceeded to trial.

Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, that his attorney’s performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.

As to the performance prong of Strickland, the petitioner must establish that habeas counsel’s representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra.

This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel’s conduct from that attorney’s perspective at the time of the representation. Id.

If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel’s competence. Pelletier v. Warden, 32 Conn.App. 38, 46 (1993). In order to satisfy the prejudice prong of Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640 (1985). Reasonable probability means a probability sufficient to undermine confidence in the outcome. Daeira v. Commissioner, 107 Conn.App. 539, 542-43 (2008), cert. denied, 289 Conn. 911 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id. Thus, the failure of the petitioner to establish, by a preponderance of the evidence, either the allegations against trial counsel or habeas counsel, or the requisite prejudice as to both the first habeas case and the criminal trial, will defeat a claim for habeas corpus relief in the present action.

Also, in Lozada v. Warden, 223 Conn. 834 (1992), our Supreme Court recognized a purely statutory right to raise, in a subsequent habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel. Id., 835. However, the petitioner’s burden becomes a multi-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged. Id., 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his habeas counsel was ineffective, and (2) that his trial counsel was ineffective. Id., (emphasis added). Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the first habeas case was suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different. Id., at 842-43. The Supreme Court described this double layered obligation as "a herculean task." Id., 843.

In 2012, the United States Supreme Court recognized the legitimate use of habeas corpus as a source of relief when an inmate contends that trial counsel inadequately communicated to the client information necessary for the client to make a prudent decision whether or not to accept a plea offer before the offer lapsed, Missouri v. Frye, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). The legal analyses of these cases were adopted by the Connecticut Supreme Court, Ebron v. Commissioner, 307 Conn. 342 (2012).

In Lafler v. Cooper, supra, the United States Supreme Court held that, in the case where the habeas petitioner asserts that ineffective assistance of counsel led to an erroneous and detrimental rejection of a plea offer, the prejudice component of the Strickland test has three prongs. Id., 5. "In these circumstances a respondent must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the [petitioner] would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed." Id.

It is undisputed that during the pretrial stage of the criminal case against the petitioner, Judge Damiani indicated that he would likely impose a thirty-five-year prison sentence if the petitioner pleaded guilty to murder. Attorney Carty had advised the petitioner during this period of time that the prosecution lacked evidence to link the petitioner to the drive-by shooting. No eyewitnesses to the shooting identified any occupant of the instrumental vehicle. Nor did any forensic evidence connect the petitioner to the car or firearms used. The Appellate Court aptly summarized the trial evidence supporting the jury verdict as follows:

"On November 20, 1994, at approximately 2:30 p.m., Monique Little, Crystal Gora and Antonio West were congregated on the porch of a house at 69 County Street in New Haven. The three teenagers were talking with William Brockenberry and Kevin Gallman who were standing near the porch. A silver gray Mercury station wagon drove down County Street and stopped near number 69, with the passenger side of the vehicle closest to the house. Several of the occupants of the vehicle were wearing masks, hoods and black clothing. Numerous shots were fired from the vehicle toward the group at 69 County Street. Both Little and Gora testified that the front seat passenger displayed a gun, and West testified that he saw "fire" coming from the passenger seat area. None of the youths at 69 County Street could identify any of the occupants of the vehicle.

After the shooting stopped, Little, Gora and West found Brockenberry lying in the backyard fatally wounded, bleeding from his mouth and side. Gallman’s arm had been grazed by a bullet as he ran from the gunfire. In addition to Little, Gora, West, Brockenberry and Gallman, the incident was witnessed by National Guard member Cheryl Pilgrim, who was looking out a second story window in the Goffe Street Armory located across the street from 69 County Street. Pilgrim told the police that she saw the station wagon pull up, she saw several people in the vehicle, although she could not see their faces, and that she observed shots coming from what she believed to be the passenger side of the vehicle. Pilgrim further told police that, after the initial round of shots stopped, she saw the passenger in the right backseat get out of the vehicle and look around the scene. She stated that he was wearing camouflage clothing and had dreadlocks. After the passenger got back into the vehicle, Pilgrim heard several more shots fired and the vehicle then drove off.

The police recovered various items of ballistic evidence from the scene, including fourteen shell casings and bullet fragments. The ten identifiable shell casings were all .45 caliber and had been fired from two different .45 caliber firearms.

On November 19, 1994, the day before the shooting, three men including Brockenberry’s friend, Dana Kelly, and the defendant’s brother, Anthony Rogers, had been injured in a shooting on Whalley Avenue in New Haven. Also on November 19, 1994, Isaac Council, a good friend of the defendant, was with his girlfriend, Safira McLeod, and he told her that the defendant’s brother had been shot. On November 20, 1994, Council and Larry McCowen picked up McLeod in a rented Mercury Sable. Early in the...