Smith v. Comm'r of Corr.

148 Conn.App. 517

85 A.3d 1199

Lawrence SMITH

v.COMMISSIONER OF CORRECTION.

No. 34321.

Appellate Court of Connecticut.

Argued Oct. 17, 2013.

Decided March 4, 2014.

Sarah F. Summons, Stamford, assigned counsel, for the appellant (petitioner).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David Clifton, assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and GRUENDEL and WEST, Js.

DiPENTIMA, C.J.

The petitioner, Lawrence Smith, appeals from the judgment of the habeas court denying in part his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly determined that he received effective assistance of trial and appellate counsel. We are not persuaded by the petitioner's arguments, and, accordingly, affirm the judgment of the habeas court.

A jury found the petitioner guilty of murder in violation of General Statutes §§ 53a–54a (a) and 53a–8 (a), felony murder in violation of General Statutes §§ 53a–54c and 53a–8 (a), conspiracy to commit murder in violation of General Statutes §§ 53a–48 (a) and 53a–54a, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 (a) and 53a–134 (a)(2), and hindering prosecution in the first degree in violation of General Statutes § 53a–165 (5). In affirming the petitioner's conviction, our Supreme Court noted the following facts underlying the crimes committed by the petitioner: “On July 21, 2000, Robert Marrow and Jonathan Rivers, acting on the orders of Miguel Estrella, a drug dealer in Meriden, met the victim, Juan Disla, who was a rival drug dealer, at a Dairy Queen in Meriden to rob him. During the course of the robbery, Marrow shot the victim in the leg. Marrow contacted Estrella for instructions and was told to drive to the [petitioner's] house. Marrow and Rivers took the victim, whom they had bound with duct tape, to the [petitioner's] house, where Estrella and the [petitioner] removed money and cocaine from the victim's vehicle. Thereafter, the [petitioner], Estrella, Rivers and Marrow drove the victim to a remote location in a wooded area in the Higganum section of Haddam, where the victim was suffocated to death. The four men left the victim's body in the woods and returned to Meriden. That evening, Estrella, Marrow, Rivers and some friends drove the victim's car to New York state and abandoned it on the highway, where it eventually was vandalized.

“The state also offered evidence, which the [petitioner] unsuccessfully challenges in this appeal, to establish the following additional facts. Two days after the murder, Estrella and the [petitioner] returned to the location of the victim's body with a chainsaw, plastic buckets and several containers of acid. The [petitioner] used the chainsaw to dismember the body while Estrella watched. The [petitioner] and Estrella then placed the body parts in the buckets and covered them with acid to destroy them. The [petitioner] subsequently disposed of any remains. The victim's body was never recovered, and no bloodstains, DNA or bones ever were found.

“The record reflects the following procedural history. In 2001, the [petitioner] was arrested in connection with the murder of the victim. He was charged with conspiracy to commit murder in violation of §§ 53a–48 (a) and 53a–54a, and kidnapping in the first degree in violation of General Statutes § 53a–92. On December 5, 2001, after the [petitioner] had moved for a speedy trial, the state entered a nolle prosequi of the charges pursuant to the missing witness provision of General Statutes § 54–56b and Practice Book § 39–30. The state represented that Estrella, an essential witness in the case, was asserting his fifth amendment privilege against self-incrimination and therefore would be unavailable to testify. The [petitioner] filed a motion to dismiss the charges on the ground, inter alia, that he had been denied a speedy trial. The court, Fasano, J., denied the motion, and thereafter, the [petitioner] was released from custody.

“Pursuant to a warrant dated March 9, 2005, the [petitioner] subsequently was rearrested in connection with the murder of the victim. He was charged in a long form information with murder, felony murder, conspiracy to commit murder, conspiracy to commit robbery in the first degree and hindering prosecution in the first degree. The [petitioner] pleaded not guilty and, after a jury trial, was found guilty of all the charges. In accordance with the verdict, the trial court, Alexander, J., imposed a total effective sentence of seventy-five years imprisonment.” (Footnotes omitted.) State v. Smith, 289 Conn. 598, 602–604, 960 A.2d 993 (2008).

Thereafter, the petitioner commenced this habeas action. In his second amended petition, filed September 13, 2011, the petitioner alleged that he had received ineffective assistance of counsel from his first attorney, Glenn Conway, who had represented him during certain pretrial proceedings. The petitioner further claimed that Attorney Leo Ahern had provided him with ineffective assistance of counsel during the criminal trial. Last, the petitioner alleged ineffective assistance from his appellate counsel, Attorney Elizabeth Inkster. The petitioner specifically argued that Conway and Ahern improperly failed to pursue a claim that the petitioner had a right to a speedy trial under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), “because there was a considerable delay from the time that he was first arrested in 2001 to the time that jury selection commenced in 2005 and to the time that presentation of evidence commenced in 2006.” In count two, the petitioner contended that Inkster improperly failed to present his Barker claim during his direct appeal to our Supreme Court. In count three, the petitioner claimed that Ahern had failed to investigate his defenses and improperly had advised him not to testify during the criminal trial. In count four, the petitioner raised a claim of actual innocence, and in count five, he alleged that he had not been advised properly of his ability to seek sentence review.

Following a two day trial, the habeas court issued a memorandum of decision on January 20, 2012, and rendered judgment in favor of the respondent, the Commissioner of Correction, on counts one through four of the second amended petition.¹ With respect to counts one and two of the petition, the court found that Conway, Ahern, and Inkster did not perform deficiently by not raising a Barker claim. As to count three, the court found that Ahern's strategic decisions during the trial were not deficient and that the petitioner had failed to establish prejudice. It further found, with respect to the claim that the petitioner had been advised improperly not to testify, that Ahern's advice was objectively reasonable and that the petitioner had knowingly and voluntarily elected not to testify. Finally, the court found in favor of the respondent on the claim of actual innocence because “[t]he petitioner presented no evidence of this claim at trial and did not brief this issue.” On February 1, 2012, the court granted the petition for certification to appeal from the partial denialof the petition for a writ of habeas corpus. This appeal followed.

Our standard of review in a challenge to the denial of a petition for a writ of habeas corpus is long established. We employ plenary review in examining the legal conclusions of the habeas court, and we consider whether those conclusions are legally and logically correct and supported by the factual record. Davis v. Commissioner of Correction, 140 Conn.App. 597, 602, 59 A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d 1133 (2013); see also Smith v. Commissioner of Correction, 122 Conn.App. 637, 641, 999 A.2d 840 (2010), cert. denied, 300 Conn. 901, 12 A.3d 574 (2011). This court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous. Davis v. Commissioner of Correction, supra, at 602, 59 A.3d 403. Further, the habeas judge is the “sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Id.

I

We first address the petitioner's claims surrounding Barker. Specifically, the petitioner argues that Conway should have included a Barker claim in the pretrial motion to dismiss, Ahern should have raised the Barker claim during the trial, and Inkster should have taken steps in the direct appeal to present an adequate record on a Barker claim. We are not persuaded.²

Before addressing the claims against each attorney, we state the law regarding ineffective assistance of trial counsel. “The petitioner's right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction.... That requires the petitioner to show (1) that counsel's performance was deficient and (2) 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....

“With respect to the performance component of the Strickland test, [t]o prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness.... Competent representation is not to be equatedwith perfection. The constitution guarantees only a fair trial and a competent attorney; it does not...