63 Conn. App. 726 | Conn. App. Ct. | 2001
Opinion
The petitioner, Clinton Milner, appeals from the judgment dismissing his petition for a writ of habeas corpus following his conviction, after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the petitioner claims that the habeas court improperly concluded that (1) his right
The following facts and procedural history are relevant to our disposition of this appeal, hi 1984, at the murder trial, the state presented circumstantial evidence that the petitioner had murdered Susan Kennedy. Susie Jackson testified that she saw the petitioner, who was wearing a red T-shirt and blue jeans, and who had been carrying a knife, during the hours immediately preceding Kennedy’s murder. Paul Cooper, Laurie Phil-brick and William Campbell testified that they had witnessed a man, fitting the petitioner’s description, wearing a red T-shirt, blue jeans and sneakers at the scene of the crime or in its immediate vicinity. Furthermore, Barbara Floyd, Santo Biondo, Felix Acevedo, Carolyn Hatchett and Henry Ellis testified that they had observed the petitioner, who was wearing a red T-shirt, blue pants and sneakers, running away from the murder scene shortly after the crime was committed. Subsequent to the murder, while the petitioner was being held at the Hartford Correctional Center, he told fellow
The petitioner was convicted of having murdered Kennedy. The judgment of conviction was affirmed on direct appeal. State v. Milner, 206 Conn. 512, 539 A.2d 80 (1988). In his direct appeal to our Supreme Court, the petitioner did not challenge the sufficiency of the evidence against him. The petitioner commenced this habeas corpus proceeding on February 27, 1991.
The following additional findings of fact by the habeas court are relevant to our disposition of this appeal. Both the victim and Robert Torres, an initial suspect, have type O blood.
Testimony given at the habeas hearing indicated that in 1984, ABO typing and isoenzyme testing were the only tests available to analyze blood samples. Unlike
On November 25,1998, the court filed a memorandum of decision, rejecting the petitioner’s claims and denying his petition for a writ of corpus. In its well reasoned memorandum of decision, the court concluded that the strong and persuasive circumstantial evidence presented at the criminal trial precluded the unlikely possibility that had isoenzyme blood testing been performed in August, 1984, it would have produced exculpatory evidence. The court on December 10, 1998, granted the petitioner’s petition for certification to appeal. Thereafter, the petitioner timely filed this appeal.
I
Before we address the merits of the petitioner’s claims, we must first determine whether the habeas court properly found that the state failed to raise the defense of procedural default in a timely manner, which eliminated the petitioner’s obligation in the present habeas action to prove cause and prejudice before pursuing claims that were not raised on direct appeal.
It is clear that the petitioner bears the burden of proof to establish cause and prejudice. “Unless the petitioners can satisfy that standard, they are not entitled to review of their claims on the merits.” Johnson v. Commissioner of Correction, 218 Conn. 403, 419, 589 A.2d 1214 (1991). It is not so clear, however, as to which party has the burden of raising the issue of the petitioner’s procedural default and as to how the issue should properly be raised.
In the present case, the habeas court found that the petitioner was relieved of his burden of showing cause and prejudice because the state had failed to raise the petitioner’s procedural default as a defense. The court based its decision on Practice Book § 23-30 (b), which requires the respondent to raise as a defense any procedural default in its return.
We first note that there is no Connecticut appellate authority that has squarely determined which party bears the initial burden of raising procedural default in a habeas action before the petitioner must establish cause and prejudice. Accordingly, we look to the case law of our federal and sister jurisdictions for guidance. In Trest v. Cain, 522 U.S. 87, 89, 118 S. Ct. 478, 139 L. Ed. 2d 444 (1997), the United States Supreme Court stated
Commentators on federal habeas practice have stated that petitioners “generally need not raise waiver and procedural default matter in their initial pleading and briefs, because the burden to raise and prove those defenses is on the state.” 1 J. Liebman, Federal Habeas Corpus Practice & Procedure (1988) § 24.5 (e), p. 361. “If the state fails to apprise the federal courts in a timely fashion of a state procedural bar, the procedural default rule does not bar federal habeas corpus relief.” 2 J. Liebman & R. Hertz, Federal Habeas Corpus Practice & Procedure (3d Ed. 1998) § 26.2 (a), pp. 1043-44 & n.2.
That view also is supported by Engle v. Isaac, 456 U.S. 107, 124-25 n.26, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982), in which the United States Supreme Court stated that “[i]n some cases a State’s plea of default may come too late to bar consideration of the prisoner’s constitutional claim.” Similarly, language found in our own case law supports the view that the state must first plead the procedural default before the petitioner is required to show cause and prejudice. In Daniel v. Commissioner of Correction, 57 Conn. App. 651, 652-53 n.1, 751 A.2d 398, cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000), we elected to review the petitioner’s constitutional claim, which he did not raise at trial or on direct appeal, because the record was unclear as to whether a claim of procedural default had been brought to the attention of the habeas court.
Our rules of practice also support the view that the state has the burden of pleading procedural default and are instructive on how the defense should be raised. As the habeas court found, and we agree, Practice Book
We, therefore, are persuaded that in Connecticut, although the petitioner has the burden of proving cause and prejudice; see Johnson v. Commissioner of Correction, supra, 218 Conn. 419; that burden does not arise until after the respondent raises the claim of procedural default in its return. Accordingly, we conclude that the habeas court properly concluded that the petitioner was not required to prove cause and prejudice because the state had failed to plead the defense of procedural default in its return as mandated by Practice Book § 23-30 (b). Thus, we will address the merits of the petitioner’s claims.
II
The petitioner claims that his right to due process was violated when the state failed to conduct timely isoenzyme blood testing on samples taken from the victim’s clothing, scrapings from under the victim’s fin-
Our standard of review of habeas proceedings is well settled. “[A] habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . .”
The due process clause of the federal constitution is not violated when the police fail to employ a particular investigatory tool. Arizona v. Youngblood, 488 U.S. 51, 59, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). “[T]he police do not have a constitutional duty to perform any particular tests.” (Internal quotation marks omitted.) State v. Conn, 234 Conn. 97, 118, 662 A.2d 68 (1995), quoting Arizona v. Youngblood, supra, 59; see also Commonwealth v. Richenburg, 401 Mass. 663, 669, 518 N.E.2d 1143 (1988) (failure to perform blood-typing analysis permissible ground on which to build defense, but does not constitute suppression of evidence in violation of due process within doctrine of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,10 L. Ed. 2d 215 [1963]); Everroad v. State, 570 N.E.2d 38, 46-47 (Ind. App. 1991) (rejecting claim that failure to test contraband for fingerprints constituted destruction of potentially exculpatory evidence), rev’d on other grounds, 590 N.E.2d 567 (Ind. 1992). Furthermore, the state does not have a federal constitutional obligation to conduct tests at an earlier date only because, in hindsight, there was a mere possibility that such tests may have produced exculpatory material. State v. Conn, supra, 118-19.
In the present case, we cannot conclude that the petitioner’s right to due process under the federal constitution was violated. The habeas court found that the
Upon our review of the record as a whole, we conclude that the petitioner’s right to due process was not violated by the untimely performance of isoenzyme testing on certain blood evidence.
Ill
The petitioner finally claims that he was denied his right to effective assistance of counsel pursuant to the federal and Connecticut constitutions because his counsel prevented him from testifying at his criminal trial and failed to apprise him fully of his right to take the witness stand. We disagree.
Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. “Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court, unfettered by the clearly erroneous stan-
A “criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, supra, 466 U.S. 686. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.” (Internal quotation marks omitted.) Crump v. Commissioner of Correction, supra, 61 Conn. App. 58-59. “In order ... to prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice.” (Internal quotation marks omitted.) Id., 59, quoting Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). To prove that his counsel’s performance was deficient, the petitioner must demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” (Internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn. App. 313, 317, 759 A.2d 118 (2000). Furthermore, the petitioner “must establish not only that his counsel's performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra, [694].” (Internal quotation marks omitted.) Crump v. Commissioner of Correction, supra, 59.
In the present case, the habeas court found that the petitioner had failed to meet his burden of satisfying either prong of the Strickland test. The court found that the petitioner failed to present credible evidence that his counsel had prevented him from testifying in his own defense. The court further found that, on the
Upon review of the record as a whole, we conclude that the habeas court properly found that the petitioner failed to satisfy his burden of establishing that his trial counsel provided ineffective assistance under the Strickland test. We therefore must affirm the judgment of the habeas court.
The judgment is affirmed.
In this opinion the other judges concurred.
In the present appeal, the petitioner has also claimed that his right to a fair trial was violated when the state failed to present at trial a pack of cigarettes found at the murder scene. In his direct appeal, the petitioner argued that he was deprived of a fair trial because the state had either lost or misplaced, among other items of evidence, the package of cigarettes. See State v. Milner, 206 Conn. 512, 540-41, 539 A.2d 80 (1988). We agree with the state that, because those two claims are functionally identical, the doctrine of res judicata bars us from addressing the merits of the petitioner’s claim. “Res judicata is a doctrine grounded in public policy, whose primary function is to prevent the relitigation of issues already decided in a court of competent jurisdiction. . . . The doctrine applies to criminal as well as civil proceedings and to state habeas corpus proceedings . . . .” (Citation omitted.) Brown v. Commissioner of Correction, 44 Conn. App. 746, 750, 692 A.2d 1285 (1997) (holding that habeas court properly dismissed petition because claims had been fully litigated in petitioner’s direct appeal). We therefore decline to address the petitioner’s claim.
The petitioner has suggested that Torres, a witness at the criminal trial, was the perpetrator. The habeas court found, however, that no evidence of any significance was produced at the criminal trial or at the habeas hearing to support that claim.
In Febraaty, 1997, the habeas court ordered further DNA testing of the available blood samples. As a result of those DNA tests, the petitioner was excluded as a source of the blood on the knife. The tests, however, were inconclusive with respect to the jeans, and no sample was available for testing from the victim’s underpants.
We note that it was unnecessary for our Supreme Court to address the issue of which party has the initial burden of pleading procedural default in Johnson v. Commissioner of Correction, supra, 218 Conn. 403, because the state had specifically pleaded procedural default in its return.
Practice Book § 23-30 (b) provides: “The return shall respond to the allegations of the petition and shall allege any facts in support of any claim of procedural default, abuse of the writ, or any other claim that the petitioner is not entitled to relief.”
We note that in Trest v. Cain, supra, 522 U.S. 89, the United States Supreme Court’s discussion of procedural default is premised on the federal notion of the independent and adequate state ground doctrine, which “ ‘is grounded in concerns of comity and federalism.’ ”
We note that in his brief, the petitioner makes a blanket allegation that he was denied due process, but has failed to identify any particular constitutional right, that was violated by the state’s nonperformance of the isoenzyme tests. Furthermore, the petitioner has failed to provide an independent analysis of the state constitutional issues. See State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992) (setting forth appropriate factors to be addressed when raising state constitutional claim). “We have repeatedly apprised litigants that, we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim .... State v. Robinson, 227 Conn. 711, 721-22, 631 A.2d 288 (1993); see also State v. Williams, 231 Conn. 235, 245 n.13, 645 A.2d 999 (1994); State v. Joyner, 225 Conn. 450, [458-59] n.4, 625 A.2d 791 (1993); State v. Rosado, 218 Conn. 239, 251 n.12, 588 A.2d 1066 (1991). . . . State v. Ellis, 232 Conn. 691, 692 n.1, 657 A.2d 1099 (1995).” (Internal quotation marks omitted.) State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999). Therefore, we decide this issue on the more limited grounds of the federal constitution. State v. Geisler, supra, 684.