Staton v. Commissioner of Correction , 148 Conn. App. 427 ( 2014 )

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TERRELL STATON v. COMMISSIONER
OF CORRECTION
(AC 34267)
DiPentima, C. J., and Alvord and Bear, Js.
Argued January 7—officially released February 25, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Deren Manasevit, assigned counsel, for the appel-
lant (petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky
III, state’s attorney, and Angela R. Macchiarulo, senior
assistant state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Terrell Staton, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court abused its
discretion in denying his petition for certification to
appeal, and that the court improperly denied his claim
of ineffective assistance of trial counsel. We dismiss
the petitioner’s appeal.
The record reveals the following relevant facts and
procedural history. On June 26, 2006, Danbury police
Officer Michael Pederson noticed a red Dodge Neon
(vehicle) with a license plate that appeared to be a
‘‘little ragged’’ and did not look like it ‘‘fit’’ the vehicle.
As he was watching the vehicle, he observed it making
a right turn through a stop sign without coming to a
complete stop. Pederson activated his emergency lights
and, when the vehicle did not stop, he also activated
his siren and contacted police dispatch. The vehicle
began to drift into oncoming traffic, and the driver of
the vehicle jumped out, stumbled, and then proceeded
to run down an ‘‘alleyway’’ while the vehicle was still
in motion. The unoccupied vehicle collided head-on
with an oncoming car.
Pederson followed the driver and observed him run-
ning up a driveway alongside 40 Williams Street (build-
ing) before losing sight of him. Behind the building was
a completely enclosed parking lot with a four to five foot
high fence. Pederson waited for other police officers
to arrive, including the state police canine unit. The
responding canine unit officer, Jason Cassavechia, and
his police dog, Dakota, proceeded to the abandoned
vehicle so that Dakota could identify the scent of the
driver. Dakota then tracked the scent to the parking
lot behind the building where Pederson had last seen
the driver. After conducting a search of the nearby area,
Pederson, Cassavechia, and Dakota returned to the
parking lot, whereupon Dakota resumed tracking along
the fence line before barking at the petitioner, who was
discovered in the bushes at the edge of the parking lot.
The petitioner was subdued and placed under arrest.
At trial, the petitioner pleaded not guilty and claimed
that it was his friend, Warren Battle, who was the driver
of the vehicle, and that the petitioner had been in the
parking lot because he was searching for Battle and
the vehicle following a telephone call he received from
Battle. At the conclusion of the bench trial, the peti-
tioner was convicted of reckless endangerment in the
second degree in violation of General Statutes § 53a-64,
interfering with a police officer in violation of General
Statutes § 53a-167a, operating an unregistered vehicle
in violation of General Statutes § 14-12 (a), improper
use of a marker in violation of General Statutes § 14-
147 (c), and failing to obey a traffic signal in violation
of General Statutes § 14-301. The petitioner did not file
a direct appeal, but instead filed a petition and, there-
after, an amended petition for a writ of habeas corpus.
In his amended petition for a writ of habeas corpus,
the petitioner claims that his trial counsel, Jennifer Tun-
nard, provided ineffective assistance by failing to call
Battle as a witness who, the petitioner contends, would
have testified as to the petitioner’s innocence, and by
failing to obtain a capias for Battle.1 The habeas court
denied the petition in a January 9, 2012 oral decision.
The court concluded that the petitioner failed to meet
either of the two prongs required to establish ineffective
assistance of counsel under Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
and denied his petition for certification to appeal. This
appeal followed.
‘‘The standard of review and the hurdles a petitioner
must overcome to obtain appellate review of a habeas
court’s denial of a petition for a writ of habeas corpus
after certification to appeal has been denied are well
known. . . . This standard requires the petitioner to
demonstrate that the issues 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. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . In determining whether
the habeas court abused its discretion [a reviewing
court] necessarily must consider the merits of the peti-
tioner’s underlying claims to determine whether the
habeas court reasonably determined that the petition-
er’s appeal was frivolous.’’ (Internal quotation marks
omitted.) Linarte v. Commissioner of Correction, 147
Conn. App. 500, 503, A.3d (2014).
‘‘Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. 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 viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary.’’ (Internal quotation
marks omitted.) Alcena v. Commissioner of Correction,
146 Conn. App. 370, 372, 76 A.3d 742 (2013). ‘‘To prevail
on a claim of ineffective assistance of counsel, a habeas
petitioner generally must show that counsel’s perfor-
mance was deficient and that the deficient performance
prejudiced the defense. See Strickland v. Washington,
[supra, 466 U.S. 687] . . . . To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . To satisfy the prejudice prong, a claimant
must demonstrate that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. . . . The
claim will succeed only if both prongs are satisfied.’’
(Citation omitted; emphasis in original; internal quota-
tion marks omitted.) Varchetta v. Commissioner of
Correction, 146 Conn. App. 744, 749, 80 A.3d 591 (2013).
The record reveals the following additional facts that
are relevant to our discussion. The petitioner told Tun-
nard it was not he, but rather Battle who had been the
driver of the vehicle on June 26, 2006. As part of her
investigation, Tunnard sent Thomas Murphy, an investi-
gator, to interview Battle at Bridgeport Correctional
Center on February 12, 2008, where he was being held
on an unrelated matter. Battle admitted that he was the
operator of the vehicle, but informed the investigator
that ‘‘he suffers from memory loss and has trouble
recalling details.’’ Battle declined to give Murphy a writ-
ten statement, ‘‘as he believe[d] he would be arrested
for this incident.’’ On September 24, 2008, the day before
the bench trial, investigators for the state, John Maho-
ney and Donald Brown, spoke with Battle at a private
residence in Danbury. Battle stated that he remembered
the incident of June 26, 2006, but that he was not there;
he was not the driver of the vehicle nor was he in the
vehicle. He also told the investigators that ‘‘he was using
drugs at the time, and couldn’t remember much.’’ Battle
refused to discuss the incident with the investigators
further and stated that he wanted to speak to an attor-
ney. Battle appeared before the court as a subpoenaed
witness during the bench trial on September 25, 2008,
and stated that he wanted to have an attorney present
before being called as a witness by the petitioner. Fol-
lowing a brief colloquy, the court instructed Battle to
call his attorney. Battle never returned to the court-
room, and, following a recess to attempt to track him
down, Tunnard rested the petitioner’s case. In rendering
its decision, the trial court expressly found that Peder-
son gave credible testimony that it was the petitioner
who was the driver of the vehicle.
On appeal, the petitioner asserts that the habeas
court’s decisions denying certification to appeal and on
the merits should be reversed because ‘‘[a] reasonable
attorney in Tunnard’s position would not have foregone
Battle’s exculpating testimony just because Battle failed
to show up in court,’’ and her failure to call Battle as
a witness fell below an objective standard of reason-
ableness. The petitioner also argues that ‘‘Battle’s testi-
mony would have raised reasonable doubt [as to]
whether the petitioner was the driver of the [vehicle]
. . . .’’ The petitioner posits that ‘‘[i]f the trial court
had been aware that a third party had admitted to being
the driver of the [vehicle], there is more than a reason-
able probability that the court would have harbored
reasonable doubt that the petitioner was guilty, and
there is more than a reasonable probability that the
court would have found the petitioner not guilty.’’ Con-
sequently, the petitioner argues that he was prejudiced
by Tunnard’s ineffective assistance in failing to call
Battle as a witness.
There was substantial evidence supporting the
habeas court’s conclusion that the petitioner failed to
establish the prejudice prong for ineffective assistance
of counsel. The habeas court heard Battle’s testimony,
which Battle claimed was consistent with how he would
have testified at the petitioner’s criminal trial. This testi-
mony contained contradictions, and Battle repeatedly
asserted that he could not recall the events of June 26,
2006.2 The habeas court also had the opportunity to
hear testimony from Pederson, as well as Tunnard and
the petitioner, before concluding that ‘‘the petitioner
has not shown that there [is] a reasonable probability
that the outcome . . . of the proceedings would have
been different in view of [Pederson’s] testimony identi-
fying the petitioner as the person who left the scene of
the crime, who he saw personally, and then chased
through the neighborhood and ultimately arrested.’’ It
was entirely within the habeas court’s purview so to
conclude. ‘‘The habeas judge, as the trier of facts, is
the sole arbiter of the credibility of witnesses and the
weight to be given to their testimony. . . . This court
does not retry the case or evaluate the credibility of
the witnesses. . . . Rather, we must defer to the [trier
of fact’s] assessment of the credibility of the witnesses
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Maldonado v. Commissioner of Correction,
141 Conn. App. 455, 464–65, 62 A.3d 528, cert. denied,
308 Conn. 941, 66 A.3d 883 (2013).
We conclude that the habeas court did not err in
determining that the petitioner failed to meet his burden
of showing that he suffered actual prejudice as a result
of Tunnard’s failure to call Battle as a witness or to
obtain a capias.3 Accordingly, the petitioner’s ineffec-
tive assistance of counsel claim must fail, and the
habeas court did not abuse its discretion in denying the
petition for certification to appeal from the judgment
denying his amended petition for a writ of habeas cor-
pus. This is not a case in which the issues are debatable
among jurists of reason, a court could resolve the issues
in a different manner, or the issues raised by the peti-
tioner are adequate to cause this court to proceed to
consider them.
The appeal is dismissed.
1
The petitioner also claimed that Tunnard provided ineffective assistance
by failing to cross-examine witnesses properly. No evidence, however, was
offered on this claim, therefore the habeas court found in favor of the
respondent, the Commissioner of Correction, on the claim. This finding has
not been challenged on appeal.
2
‘‘[The Petitioner’s Counsel]: Okay. Do you recall the night of June 26,
2006?
‘‘[Battle]: Somewhat. I don’t really—no, not really, no.
***
‘‘[The Petitioner’s Counsel]: You remember borrowing a car from [the peti-
tioner]?
‘‘[Battle]: Yes.
‘‘[The Petitioner’s Counsel]: Okay. Did you return the car to [the peti-
tioner]?
‘‘[Battle]: No.
‘‘[The Petitioner’s Counsel]: Okay. Who did you return the car to?
‘‘[Battle]: I never returned the car.
‘‘[The Petitioner’s Counsel]: Okay. Do you know what happened to the car?
‘‘[Battle]: No.
‘‘[The Petitioner’s Counsel]: Okay. Did you leave it somewhere?
‘‘[Battle]: No.
***
‘‘[The Petitioner’s Counsel]: Do you know if it was at nighttime?
‘‘[Battle]: No. I don’t recall too much of the situation. It was awhile ago.
‘‘[The Petitioner’s Counsel]: Okay. And you don’t know what happened
to the car?
‘‘[Battle]: No.
‘‘[The Petitioner’s Counsel]: And do you know—you left the car there.
Correct?
‘‘[Battle]: Ri—
‘‘[The Petitioner’s Counsel]: Do you know where you left it?
‘‘[Battle]: No.
‘‘[The Petitioner’s Counsel]: Okay. You left it somewhere?
‘‘[Battle]: Yeah.
***
‘‘[The Respondent’s Counsel]: Okay. You just left the car?
‘‘[Battle]: Right.
‘‘[The Respondent’s Counsel]: Okay. And you left it, and you walked away?
‘‘[Battle]: No. I don’t—I don’t really recall the situation. Ma’am, my memory
is like totally—if I can answer straight up, I would.
‘‘[The Respondent’s Counsel]: Do you recall—call[ing] [the petitioner] at
all and say[ing], hey, dude, I left your car. Here’s where it is. Go get it.
‘‘[Battle]: I don’t remember.
‘‘[The Respondent’s Counsel]: You don’t?
‘‘[Battle]: No.’’
3
As we have determined that the petitioner has failed to show that he
was prejudiced, we need not analyze whether trial counsel’s representation
was deficient.