LEONARD R. TALTON v. COMMISSIONER OF CORRECTION
(AC 36039)
Lavine, Alvord and Bishop, Js.
Argued November 20, 2014—officially released January 27, 2015
(Appeal from Superior Court, judicial district of Tolland, Newson, J.)
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(AC 36039)
Lavine, Alvord and Bishop, Js.
Argued November 20, 2014—officially released January 27, 2015
(Appeal from Superior Court, judicial district of Tolland, Newson, J.)
Albert J. Oneto IV, assigned counsel, for the appellant (petitioner).
Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, werе Michael Dearington, state’s attorney, and Adrienne Maciulewski, deputy assistant state’s attorney, for the appellee (respondent).
ALVORD, J. The petitioner, Leonard R. Talton, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second petition for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion in denying his petition for certification to аppeal, and (2) improperly concluded that he was not deprived of the effective assistance of appellate counsel and prior habeas counsel. We dismiss the petitioner’s appeal.
The underlying facts were set forth in this court’s opinion in State v. Talton, 63 Conn. App. 851, 779 A.2d 166, cert. denied, 258 Conn. 907, 782 A.2d 1250 (2001), in which this court affirmed the trial court’s judgment of conviction. This court determined that the jury reasonably could have found the following facts: ‘‘On March 22, 1997, at approximately 8:30 p.m., а shooting occurred at the Quinnipiac Terrace Housing Complex . . . in New Haven. As a result, the victim, Tyrone Belton, died after receiving a single gunshot wound to the chest. A friend of the victim, Tacumah Grear, witnessed the shooting and the events that had led to the shooting.’’ Id., 853.
There were two assailants, one wearing a camouflage mask and the other wearing a hood pulled tightly over his head. Grear saw the hooded man point a gun at Belton and fire it. After the assailants fled, the pоlice arrived and questioned Grear. Grear chose not to identify the assailants, even though he knew both of them prior to the night in question and recognized the men as the petitioner and the petitioner’s brother. A few days later, however, Grear informed the police that the petitioner had been the shooter and that the petitioner’s brother had been the accomplice. Id., 854. The petitioner was arrested, tried before a jury and convicted of murder, conspiracy to commit murder, criminal possession of a firearm and carrying a pistol without a permit. Id., 852.
On direct appeal, the petitioner claimed, inter alia, that he was deprived of a fair trial because the trial court improperly allowed uniformed correction officers to be present during jury selection. Id., 853. The petitioner was represented by Richard E. Condon, Jr., a special deputy assistant public defender. This court declined to address thе merits of that claim, however, because the record was inadequate. The record was devoid of any detail with regard to the correction officers’ behavior or their proximity to the petitioner. Without that information, this court concluded that any decision it made respecting that claim would be entirely speculative. Id., 861.
Following the petitioner’s unsuccessful appeal, the petitioner’s first habeas counsel, Sebastian O. DeSantis,
Subsequently, the petitioner filed his second petition for a writ of habeas corpus, the present action, alleging that Condon and DeSantis rendered ineffective assistance on direct appeal and during the first habeas proceeding, respectively. Specifically, he claims that Condon’s representation was deficient because he ‘‘failed to file a motion for rectification to create an appellate record’’ regarding the location of correction officers during the criminal trial. With respect to DeSantis, the petitioner claims that his represеntation was deficient because he failed to challenge Hopkins’ failure to create a record regarding the location of the correction officers during the criminal trial.1
The matter was tried before the present habeas court (second habeas court), Newson, J., the morning of May 2, 2013. The second habeas court heard testimony from DeSantis and the petitioner. The petitioner submitted one exhibit, a copy of an excerpt from the transcript of one day of jury selection during his criminal trial. The respondent, the Commissioner of Correction, submitted six exhibits, some of which related to disciplinary violations committed by the petitioner during his period of incarceration. After the parties rested, counsel made brief closing arguments. The court then took a recess and reconvened at noon to give its oral ruling.
In its ruling, the second habeas court made the following determinations: (1) the petitioner’s only exhibit ‘‘merеly references the fact that there are correction officers’’ in the courtroom; (2) the petitioner ‘‘failed to meet his burden of proof to show that [Condon’s] performance was in any way deficient or that [the petitioner] was in any way prejudiced because . . . he’s failed to show by any reasonable basis that appellate counsel could have [filed a motion for rectification], and he’s failed to show what, if anything, would have been the result оf this information, had it come forward’’; (3) with respect to the claims against DeSantis, his prior habeas counsel, the petitioner was required to prove that both DeSantis and Hopkins were ineffective, and he ‘‘failed to prove . . . that either counsel was ineffective as to any of the claims presented’’; (4) ‘‘the minimal evidence that was presented here was the petitioner’s claim that there were correction officers sitting behind [him]’’; (5) the evidence presented failed to establish that the mere presence of correction officers in the courtroom violated the petitioner’s constitutional rights; (6) accordingly, the petitioner failed to demon-
‘‘Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .
‘‘To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further . . . .
‘‘We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine whethеr the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.’’ (Internal quotation marks omitted.) Day v. Commissioner of Correction, 151 Conn. App. 754, 757–58, 96 A.3d 600, cert. denied, 314 Conn. 936, 102 A.3d 1113 (2014).
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy two requirements. ‘‘First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannоt be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . . A reviewing court need not address both components of
With this standard in mind, we look to the petitioner’s first claim that Condon failed to provide effective assistance of counsel because he did not file a motion for rectification of the record when he represented the petitioner in the direct appeal. Specifically, the petitioner argues that Condon should have attempted to augment the record because ‘‘the record needed to contain, at a minimum, evidence of the number of officers present in the courtroom and their proximity to the [petitioner].’’ By failing to obtain such information, it is claimed that Condon should have known that the Appellate Court would find the record inadequate and decline to review that claim.
We conclude that the second habeas court properly determined thаt the petitioner failed to prove that Condon’s failure to file a motion for rectification or augmentation of the record constituted deficient performance or that the petitioner’s defense had been prejudiced at the criminal trial.2 As noted by the court, the only evidence presented during the second habeas trial regarding the location of the correction officers was the petitioner’s exhibit indicating that two or three correction officers were coming in and out of the courtroom and the petitioner’s testimony that two to three correction officers were sitting directly behind him.3 The petitioner, having been present during jury selection and the trial, was in a position to give a detailed account of the circumstances surrounding the placement and behavior of the correction officers. He provided nothing more than what was stated by the court, and no other witness provided additional information with respect to this issue.4
The petitioner has failed to satisfy his burden of proof in this matter because his evidence that two to three correction officers were in close proximity to the petitioner in the courtroom simply is insufficient for him to prevail. ‘‘Whether the presence of security personnel in a courtroom during trial was so prejudicial to the defendant as to deprive him of his right to a fair trial is decided on a case-by-case basis. . . . It is not the sort of inherently prejudicial practice that, like shackling,5 should be permitted only where justified by an essential state interest specific to each trial. . . . While shack-
The petitioner’s second claim of ineffective assistance is directed against his prior habеas counsel. He argues that DeSantis’ representation was deficient because he failed to challenge Hopkins’ failure to create a record regarding the location of the correction officers during the criminal trial.
With respect to a claim of ineffective assistance of prior habeas counsel, a petitioner is required ‘‘to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffеctiveness prejudiced the petitioner’s prior habeas proceeding. . . . [T]he petitioner will have to prove that . . . the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . . Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel . . . must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. . . .
‘‘Furthermore, for any ineffective assistance claim, we also are cognizant that the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. . . . Judicial scrutiny of counsel’s performance must be highly deferential. . . . Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’’ (Emphasis in original; internal quotation marks omitted.) Edwards v. Commissioner of Correction, 141 Conn. App. 430, 438–39, 63 A.3d 540, cеrt. denied, 308 Conn. 940, 66 A.3d 882 (2013).
In the present case, DeSantis testified at the second habeas trial. Counsel for both parties questioned him as to the reason that he failed to include a claim in the
The decision of DeSantis not to include this particular claim in the first habeas petition clearly ‘‘falls into the category of trial strategy or judgment calls that wе consistently have declined to second guess.’’ (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, 126 Conn. App. 110, 132, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011). Moreover, for the reasons previously discussed in connection with the petitioner’s claims against Condon for failure to address the correction officers issue, we likewise conclude that the petitioner has failed to prove that any alleged errors by DeSantis and Hopkins prejudiced his defense. Accordingly, the petitioner’s claim against his prior habeas counsel fails.
Upon our examination of the record and briefs, as well as the court’s resolution of the issues presented in the habeas petition, we are not persuaded that the court abused its discretion in denying the petition for certification to appeal. The petitioner has not demonstrated that the issues presented are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 230 Conn. 616.
The appeal is dismissed.
In this opinion the other judges concurred.