Walker v. Warden

James E. Walker (#284986) v. Warden

No. CV134005041S

Superior Court of Connecticut, Judicial District of Tolland, Rockville

January 26, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Hon Vernon D. Oliver, J.

The petitioner, James Walker, initiated this petition for a writ of habeas corpus, claiming that his underlying criminal counsel provided him ineffective legal representation. He further claims Brady and due process violations. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent denies the claims and asserts the special defense of procedural default as to certain of the claims.

The court finds the issues for the RESPONDENT and DENIES the petition.

Procedural History

In the criminal matter State v. James Walker CR08-00818555, in the New Haven Judicial District, the petitioner was charged with two counts of assault in the first degree by means of the discharge of a firearm in violation of Connecticut General Statutes § 53a-59(a)(5) and 53a-8 and one count of conspiracy to commit assault in the first degree in violation of Connecticut General Statutes § § 53a-48 and 53a-59(a)(5).

On November 10, 2010, the petitioner was acquitted after jury trial of the two assault counts and convicted of the conspiracy charge. On February 10, 2011, the Court (Licari J.) sentenced the petitioner to nineteen years to serve. Attorney Richard Silverstein represented the petitioner at the underlying trial. The petitioner appealed the judgment of conviction, which was affirmed. State v. Walker, 147 Conn.App. 1, 82 A.3d 630 (2013). The Supreme Court, in granting certification, limited its review to whether the appellate court's determination that the record was inadequate to review the petitioner's unpreserved appellate claim that his absence from an in-chambers conference regarding a potential conflict of interest violated his constitutional right to be present at all critical stages of the prosecution because of his failure to augment the record with the facts related to the alleged in-chambers conference. State v. Walker, 319 Conn 668, 126 A.3d 1087 (2015). In finding that the appellate court's determination was proper, the Supreme Court found the following facts and reached the following conclusions of law relevant to the instant matter.

" In connection with the nonfatal shooting of two persons, the defendant was charged with two counts of assault in the first degree by means of the discharge of a firearm in violation of General Statutes § § 53a-59(a)(5) and 53a-8 and one count of conspiracy to commit assault in the first degree in violation of General Statutes § § 53a-48 and 53a-59(a)(5). A key witness for the state, a jailhouse informant named James Dickerson, was an acquaintance of the defendant and was incarcerated at the same facility as the defendant. At trial, Dickerson testified that the defendant had admitted to him his involvement in the shooting and his motive for the shooting. Dickerson denied that he had received any promises in exchange for his testimony but acknowledged that he hoped to get favorable treatment from the state on pending narcotics charges .

" The connection between Dickerson's testimony and the issue on appeal arose during jury selection, when the following colloquy occurred:

The Court: Good morning, everybody. We are back to jury selection in [the present case]. The attorneys have brought a matter to the court's attention this morning which should be put on the record . [Assistant State's Attorney Stacey] Haupt [the prosecutor], I don't know if you want to go first or--

[The Prosecutor]: . . . It was brought to my attention late Friday by [Assistant State's] Attorney Jack Doyle [regarding] the [plea offer] between . . . Dickerson and the state's attorney's office. I asked Attorney Doyle to write a memo about how exactly that went down and what promises had been made to [Dickerson] and in looking at his file attempting to prepare the memo, Attorney Doyle realized that [defense counsel in the present case] had spoken to [Dickerson] at the request of Attorney Jamie Alosi to try to talk to him about taking some type of deal. However, it was prior to [Dickerson] cooperating in this case. I don't believe that deal came to fruition, but I just thought it should be brought to the court's attention that . . . [defense counsel] in some respect had conversations with one of the state's witnesses.

The Court: Let me flush that out a bit. Apparently, [Dickerson], and it's already a matter of knowledge and public [record] in this case, is going to testify against [the defendant]. [Dickerson], and I think you put this on the record earlier, and if not, it should be. [Dickerson] was on trial in front of this court, represented by Attorney Alosi. At some point, he entered a plea upstairs, and I had nothing to do with the plea. I had nothing to do with the sentencing. My involvement was picking a jury up to the point where the matter was resolved. Apparently, [defense counsel], you can add to that factual situation. Listen up, Mr. Walker, I just want to make sure you understand this.

[Defense Counsel]: [Dickerson] was brought in to begin jury selection in a matter which he eventually pled guilty to and is seeking to have consideration for based on his testimony or anticipated testimony in this case. I happen[ed] to be on the sixth floor. He was in the bullpen upstairs with his attorney, and his attorney, who I know, had told me about the case he was proceeding to trial on."

" Defense counsel then went on to explain that Dickerson's attorney had told him about the evidence against Dickerson relating to the sale of narcotics, which included a videotape of the purported transaction and a still photograph from that videotape that appeared to show Dickerson making the sale, and the fact that the state had offered Dickerson a plea agreement. Because defense counsel knew Dickerson, he was asked, or may have volunteered, to speak with Dickerson about the sentence that could be imposed in light of the evidence and Dickerson's past history. In summarizing the discussion that ensued, defense counsel noted that Dickerson had told him about the plea offer as well as " what the plea agreement was that he could accept short of going to trial." Defense counsel then explained: " I said, in my opinion, the evidence was substantial. Then again, I didn't spend more than five or six minutes with him, nor did I, other than the layout, which he probably already heard from his attorney, have anything that would impact on [the] decision he made. Then he proceeded to come down here and begin jury selection with Your Honor.

" Subsequent to that, it would appear, and I didn't know until, let's say, a month to six weeks after that he had given that statement because it wasn't being handled by [the prosecutor] at that time, this case . . .

My client [the defendant] was incarcerated, having not made bond, and, at some point . . . I became aware that Dickerson had made a statement. As soon as I became aware, I asked [the prosecutor] to send me a copy of that statement. I spoke to [Assistant State's Attorney] Doyle . . . I spoke to them about the parameters of the new plea agreement that [Dickerson] had entered into based on his cooperation and I was told essentially what happened. I was given a copy of the statement, and that's where we are today. My client [the defendant] is aware I had a limited interaction with (Dickerson] prior to him giving inculpatory evidence or [an] anticipated statement that inculpates him, and I explained to [the defendant] that this in no way would impede my cross examination of [Dickerson]. I don't think that that conversation is probably relevant to the deal he eventually entered into, and I would probably not, in my cross examination, unless it came out that we knew each other, but we had known each other prior to me speaking to him up in court, and I wouldn't get into any details of the conversation. I don't think that would hamper my cross examination of him at all. [The defendant] has indicated to me that he wants me to continue to represent him.

The Court: You heard that, Mr. Walker? You're comfortable with that?

The Defendant: Yes, yes.

The Court: Let me tell you what I'm concerned about to protect your rights. As your lawyer, [defense counsel] owes you a duty of undivided loyalty. He can't represent two people at the same time that have any kind of conflict. From what I've heard here today, I haven't seen any. Whatever he did with [Dickerson] was unrelated to whatever deal [Dickerson] now has going, and he can go after that deal hand and claw, and there's nothing that I can see in his prior contact with [Dickerson] that is even relevant to the situation that developed after he spoke to [defense counsel]. I don't see any conflict. I don't see any violation of the law by [defense counsel], and I want to make sure you're comfortable with it so we can get on with the trial, and you've got to let me know. Are you okay with it?

The Defendant: Yes.

The Court: Good, all right, then we'll pick it up. Let's bring the panel out. Thank you.

During his cross examination of Dickerson, defense counsel did not attempt to elicit information about any matter discussed at their prior meeting. At the conclusion of the trial, the jury returned a verdict finding the defendant not guilty of assault in the first degree, as either principal or accessory, but guilty of conspiracy to commit assault in the first degree. The trial court rendered judgment in accordance with the verdict, from which the defendant appealed.

State v. Walker, 319 Conn. 668, 670-74, 126 A.3d 1087 (2015). (Emphasis added and in original.)

In prior appellate...