Thompson v. Comm'r of Corr.

172 Conn.App. 139

158 A.3d 814 (Mem)

Earl THOMPSON

v.COMMISSIONER OF CORRECTION

AC 37129

Appellate Court of Connecticut.

Argued December 6, 2016

Officially released April 4, 2017

Justine F. Miller, assigned counsel, for the appellant (petitioner).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, David M. Carlucci, assistant state's attorney, and Leon F. Dalbec, Jr., former senior assistant state's attorney, for the appellee (respondent).

Alvord, Keller and Gruendel, Js.

PER CURIAM.

Following the denial of his petition for certification to appeal, the petitioner, Earl Thompson, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion in denying him certification to appeal and improperly concluded that his trial counsel did not provide ineffective assistance. We dismiss the appeal.

The petitioner was convicted of one count of robbery in the first degree in violation of General Statutes § 53a–134 (a) (4), one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–134 (a) (4) and 53a–48, and one count of kidnapping in the first degree as an accessory in violation of General Statutes §§ 53a–92 (a) (2) (B) and 53a–8, for crimes committed on August 10, 2004. State v. Thompson , 128 Conn.App. 296, 298, 17 A.3d 488 (2011), cert. denied, 303 Conn. 928, 36 A.3d 241 (2012). The petitioner was sentenced to a total of forty-five years imprisonment. This court affirmed the petitioner's conviction. Id.

The petitioner subsequently filed a fourth amended petition for a writ of habeas corpus. Following a trial held on July 29, 2014, the habeas court, Fuger, J. , denied the petition for a writ of habeas corpus. Judge Fuger subsequently denied the petition for certification to appeal. The principal issue raised by the petitioner in this appeal is that the court erred in not finding counsel ineffective for an alleged failure to present a closing argument that the restraint or abduction of the victim was not a kidnapping, but merely incidental to his other crimes, and to properly file a motion for a judgment of acquittal as to the charge of kidnapping.

Our examination of the record on appeal and the briefs and arguments of the parties persuades us that the petitioner's appeal should be dismissed. The habeas court's decision fully addresses the arguments raised in the present appeal, and we adopt its concise and well reasoned decision as a proper statement of the relevant facts and the applicable law on the issues. Thompson v. Commissioner of Correction , 172 Conn. App. at 141, 158 A.3d 814 (2014) (appendix). It serves no useful purpose for us to repeat the discussion contained therein. Furka v. Commissioner of Correction , 21 Conn.App. 298, 299, 573 A.2d 358, cert. denied, 215 Conn. 810, 576 A.2d 539 (1990).

The appeal is dismissed.

APPENDIX

Superior Court, Judicial District of Tolland

Earl Thompson

v.

Commissioner of Correction^*

File No. CV–12–4004330

Memorandum filed August 4, 2014

Proceedings

Memorandum of decision on petitioner's petition for writ of habeas corpus. Petition denied .

W. Theodore Koch III , for the petitioner.

Lisamaria T. Proscino , special deputy assistant state's attorney, and Michael J. Proto , assistant state's attorney, for the respondent.

Opinion

FUGER, J.

The petitioner, Earl Thompson, inmate # 305523, alleges in his petition for a writ of habeas corpus, initially filed on August 31, 2011, and amended for the final time on June 10, 2014, that his confinement under the custody of the respondent, the Commissioner of Correction, is illegal. Specifically, the petitioner in the three count complaint alleges that: (1) he is actually innocent of the crimes of which he was convicted; (2) his trial defense counsel, Attorney Gerald Beaudoin, was ineffective in his representation of the petitioner at his criminal trial; and (3) that his appellate counsel, Attorney Beaudoin, was ineffective.

During the July 29, 2014 trial on the merits of this habeas petition, the court received testimony from the petitioner, his trial defense counsel, Attorney Beaudoin, Attorney John Walkley, inmate Stephen Nelson, and inmate Ian Wright. Finally, the court received various pieces of documentary evidence, including the petitioner's criminal trial transcript, into evidence.

FINDINGS OF FACT

1. The petitioner was a defendant in a criminal case proceeding in the judicial district of Hartford under Docket No. CR–08–06918868T in which, after a trial to a jury on October 22, 2009, he was found guilty of robbery in the first degree in violation of General Statutes § 53a–134a (4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 and 53a–134a (4), as well as kidnapping in the first degree in violation of General Statutes §§ 53a–92 (a) (2) (B) and 53a–8.

2. These charges arose out of a home invasion that took place in Bloomfield on August 10, 2004.

3. The jury could reasonably find the following facts to be true. "At approximately 11:30 p.m. on August 10, 2004, Stephan Julian arrived at her home in Bloomfield. At that time, her son, Damien Gardner, resided with her but was not present that night. As Julian entered the house, she was confronted by a man with a gun. A second man, also armed with a gun, quickly emerged. Because the faces of both men were covered, Julian could not recognize them, but she was able to determine that they were both dark skinned with Jamaican accents. The men repeatedly asked Julian where money was located in the house and forced her to lie on the floor in a downstairs bathroom while they searched the house. The men periodically checked on Julian, and she could hear them going up and down the stairs of her home. At one point, she heard an upstairs toilet flush. Eventually, when Julian no longer heard the men in her home, she peeked out of the bathroom and saw that it was light outside. She exited the bathroom and called the police.

4. "Detective Eric Kovanda was primarily responsible for processing the crime scene. In addition to other forensic evidence, Kovanda collected two urine samples from the rim of the toilet located in one of the upstairs bathrooms. The DNA profile developed from the urine swabs did not match any in the existing offender databases. In 2006, two jailhouse informants identified the [petitioner] as a suspect, and, consequently, on February 11, 2008, the police collected a DNA sample from the [petitioner] for comparison to the DNA profile developed from the urine samples that had been collected from the crime scene.

5. "On February 28, 2008, Kovanda met with the [petitioner] to discuss the August 11, 2004 incident. The [petitioner] indicated that he knew Julian's son, Gardner, and that he had been at their house a week or a few days prior to August 11, 2004."¹

6. The petitioner was sentenced by the court (Dewey, J .) to a prison term of twenty years on the charge of robbery in the first degree, twenty years to run concurrent on the conspiracy to commit robbery in the first degree, and twenty-five years, to run consecutive on the count of kidnapping in the first degree. The total effective sentence was a commitment to the custody of the respondent for forty-five years.

7. Additional facts will be discussed, as necessary, in subsequent portions of this decision.

DISCUSSION

The petitioner now comes before this court seeking to have this court order that the petitioner's conviction be set aside and the matter returned to the docket for further proceedings. The petitioner's major argument is that his trial defense counsel was constitutionally deficient in his performance of duties and that therefore, the petitioner was deprived of the assistance of the competent counsel guaranteed to him by the sixth amendment to the United States constitution, thereby rendering his confinement by the respondent illegal. While there are other claims, the petitioner mounts his primary attack upon his trial defense counsel for his failure to file a motion for a finding of not guilty as to the charge of kidnapping.

It is important to understand that this instant proceeding is an action seeking the issuance of a writ of habeas corpus. This case is now in what is often termed the "court of last resort." A petition for a writ of habeas corpus is, therefore, an application for extraordinary judicial relief in which, contrary to the criminal trial court, the burden rests with the petitioner.²

Notwithstanding the arguments raised by counsel and the petitioner, the court disagrees with the position of the petitioner and will deny the petition for a writ of habeas corpus.

At the outset, one must understand that there is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that ‘[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship , 397 U.S. [358, 90 S. Ct. 1068, 25 L.Ed. 2d 368 (1970) ].’ Herrera v. Collins , 506 U.S. 390, [398, 113 S.Ct. 853], 122 L.Ed.2d 203 (1993).... The presumption of innocence, however, does not outlast the judgment of conviction at trial." (Citations omitted.) Summerville v. Warden , 229 Conn. 397, 422–23, 641 A.2d 1356 (1994). Consequently, the burden of proving entitlement to the grant of a writ rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is innocent, [but, on the contrary, as] one who has been convicted by due process of law ...." (Internal quotation marks omitted.) Id., at 423, 641 A.2d 1356. The petitioner is not,...