Rogers v. Commissioner of Correction ( 2019 )

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THOMAS ROGERS v. COMMISSIONER
OF CORRECTION
(AC 41974)
Lavine, Prescott and Bear, Js.
Syllabus
The petitioner, who had been convicted of the crimes of murder, conspiracy
to commit murder, attempt to commit murder, criminal possession of
a firearm and illegal possession of a weapon in a motor vehicle in
connection with the shooting death of the victim, sought a writ of habeas
corpus, claiming that his trial counsel and his prior habeas counsel had
provided ineffective assistance. Following the shooting, M overheard a
conversation between the petitioner and two men regarding certain
details of the shooting. Prior to the petitioner’s criminal trial, trial counsel
advised the petitioner that any testimony from M with respect to that
conversation would not be admitted into evidence because it constituted
hearsay. Thereafter, the petitioner rejected the state’s plea offer of a
sentence of thirty-five years of imprisonment and, instead, requested a
twenty year sentence. During the criminal trial, the trial court admitted
M’s testimony pertaining to the postshooting conversation as an adoptive
admission. Following the trial, the jury found the petitioner guilty of all
the charges against him, and he was sentenced to a total effective term
of sixty years of imprisonment. In his amended habeas petition, the
petitioner claimed that his trial counsel had provided ineffective assis-
tance by providing him with inaccurate legal advice as to the admissibil-
ity of M’s testimony concerning the postshooting conversation and that,
but for that deficient legal advice, he would have accepted the thirty-
five year plea deal rather than proceeding to trial. The petitioner also
claimed that his prior habeas counsel had provided ineffective assistance
by failing to raise that claim in his first habeas petition. The habeas
court rendered judgment denying the habeas petition, concluding, inter
alia, that the petitioner failed to meet his burden of demonstrating that
it was reasonably probable that, in the absence of his trial counsel’s
alleged deficient advice, he would have accepted the thirty-five year
plea deal, and, therefore, he failed to establish prejudice. In reaching
its decision, the court discredited the petitioner’s testimony that he
would have accepted the plea offer had he received accurate legal advice
from trial counsel, specifically stating that although the petitioner was
sincere, his testimony on that issue was unreliable. Thereafter, on the
granting of certification, the petitioner appealed to this court. Held
that the habeas court properly denied the petitioner’s amended habeas
petition, that court having correctly concluded that the petitioner failed
to sustain his burden of proving that he was prejudiced by his trial
counsel’s alleged deficient performance: contrary to the petitioner’s
claim that the habeas court’s finding that he would have rejected the
thirty-five year plea deal even if he had received accurate advice from
trial counsel concerning the admissibility of M’s testimony was clearly
erroneous because it was undermined by the court’s statement regarding
his sincerity, the court plainly distinguished the petitioner’s sincerity
from the unreliability of his testimony regarding whether he would
have accepted the thirty-five year plea deal, finding that although the
petitioner, in hindsight, sincerely believed that he would have accepted
the plea deal after having been convicted and sentenced to sixty years
of imprisonment, his testimony was unreliable as to whether he would
have accepted it at the time it was offered to him; moreover, the habeas
court’s finding that the petitioner would have rejected the plea deal
even if he had received accurate advice from trial counsel was supported
by other evidence in the record that tended to demonstrate that the
petitioner would not have accepted a plea deal of more than twenty
years, and because the habeas court properly concluded that the peti-
tioner failed to meet his burden of demonstrating that it was reasonably
probable that he would have accepted the plea but for trial counsel’s
alleged deficient performance, this court declined to address the peti-
tioner’s claim that his prior habeas counsel had rendered ineffective
assistance, as that claim failed as a matter of law.
Argued September 5—officially released November 12, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Norman A. Pattis, with whom, on the brief, was
Kevin Smith, for the appellant (petitioner).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Patrick Griffin, state’s
attorney, and Rebecca Barry, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. In this ‘‘habeas on a habeas,’’1 the
petitioner, Thomas Rogers, appeals from the habeas
court’s judgment denying his amended petition for a
writ of habeas corpus.2 On appeal, the petitioner claims
that the habeas court improperly rejected his claim
that his trial counsel, Paul Carty, provided him with
ineffective assistance with respect to whether he should
have accepted a plea offer. The petitioner asserts that,
but for the deficient legal advice he received from his
trial counsel, he would have accepted a thirty-five year
plea deal. The petitioner also claims that the habeas
court improperly rejected his claim that his prior habeas
counsel, Frank P. Cannatelli, provided ineffective assis-
tance by failing to raise this claim in his first habeas
petition. Having reviewed the record, we conclude that
the habeas court properly denied the amended petition
for a writ of habeas corpus, and, accordingly, we affirm
the judgment of the habeas court.
The following facts and procedural history are rele-
vant to our disposition of the petitioner’s claim. The
petitioner participated in a shooting that occurred on
November 20, 1994, that resulted in the death of one
of the victims. State v. Rogers, 50 Conn. App. 467, 469,
718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319(1998). After the shooting, the petitioner, along with
Isaac Council and Larry McCowen, returned to the
apartment of the petitioner’s girlfriend and had a con-
versation in the living room. Id., 471, 480–81. Council’s
girlfriend, Safira McLeod, overheard the postshooting
conversation between the petitioner, Council, and
McCowen. Id., 480–81. From the kitchen, which is
where she was during the conversation, McLeod was
unable to hear everything they were discussing. Id., 481.
She did, however, hear them discuss a shooting, people
running, and someone being hit. Id. During the conver-
sation, the petitioner, Council, and McCowen were
laughing. Id. McLeod heard the petitioner’s voice, but
she was unable to attribute anything said during the
conversation to any one of its participants. Id. Further-
more, McLeod neither heard the petitioner deny partici-
pation in the shooting nor dispute what Council and
McCowen were saying. Id. The petitioner subsequently
was charged with murder, conspiracy to commit mur-
der, attempt to commit murder, criminal possession
of a firearm, and illegal possession of a weapon in a
motor vehicle.
The petitioner alleges that his trial counsel assured
him that McLeod’s testimony pertaining to the
postshooting conversation would not be admitted into
evidence because it constituted hearsay. He further
alleges that trial counsel did not explain to him that the
testimony could be admitted as an adoptive admission.3
The petitioner, however, also was aware of other
parts of McLeod’s potential testimony that were damag-
ing to his defense and that were not within the scope
of his trial counsel’s alleged deficient advice regarding
the testimony’s admissibility. The habeas court stated
that, aside from McLeod’s recollection of the postshoot-
ing conversation, McLeod’s testimony included ‘‘evi-
dence that the petitioner left with Council and McCo-
wen, dressed as the shooters were attired, in a vehicle
that matched that of the shooters at the time of the
shooting, returned as a group, concealed the vehicle
behind a house and that vehicle contained a spent shell
casing . . . .’’
Armed with this knowledge and advice from his trial
counsel, the petitioner did not accept an offer to plead
guilty in exchange for a thirty-five year sentence and,
instead, requested a disposition in which he would
receive a sentence of twenty years.
Contrary to his trial counsel’s prediction, the trial
court admitted McLeod’s testimony pertaining to the
postshooting conversation as an adoptive admission.4
At the conclusion of the jury trial, the petitioner was
convicted of all the crimes with which he was charged.
Id., 468. He received a total effective sentence of sixty
years of incarceration.
On August 31, 2016, the petitioner filed an amended
petition for a writ of habeas corpus. The matter subse-
quently was tried before the habeas court, which issued
a written memorandum of decision on July 23, 2018,
denying the petition. In that memorandum of decision,
the habeas court stated that the petitioner abandoned
all claims for relief in his amended petition except for
those enumerated in the ninth and tenth counts.5 With
respect to those counts, the habeas court stated: ‘‘[T]he
petitioner asserts that . . . Cannatelli provided inef-
fective assistance by failing to raise claims in the earlier
habeas case that trial counsel . . . rendered ineffec-
tive assistance by inadequately or incorrectly advising
the petitioner, when the petitioner was considering a
plea offer of thirty-five years, concerning the doctrine of
an adoptive admission [and its applicability to McLeod’s
testimony pertaining to the postshooting conversation]
and that the petitioner could be convicted as an acces-
sory to murder if he was not in the vehicle from which
the gunfire emanated and caused the death of the vic-
tim. [The petitioner] further asserts that, had he
received accurate legal advice from [trial counsel] on
these points, he would have accepted the plea disposi-
tion rather than have proceeded to trial.’’
Without explicitly resolving the petitioner’s allega-
tions of deficient performance, the habeas court con-
cluded that ‘‘the petitioner . . . failed to meet his bur-
den of demonstrating that a reasonable likelihood exists
that, but for [trial counsel’s] misadvice regarding the
inadmissibility of a portion of McLeod’s testimony, he
would have accepted the thirty-five year proposed dis-
position,’’ and, therefore, it denied the petition for
habeas corpus relief. This appeal followed.
On appeal, the petitioner claims that the habeas court
incorrectly found that, even if he had received accurate
advice from his trial counsel concerning the admissibil-
ity of McLeod’s testimony about the postshooting con-
versation, he, nevertheless, would have rejected the
plea agreement. We disagree with the petitioner.
We first set forth the well established legal principles
governing claims of ineffective assistance of counsel.
To succeed on a claim of ineffective assistance of coun-
sel, a petitioner must show that his counsel performed
deficiently and that his counsel’s deficient performance
prejudiced his defense. Strickland v. Washington, 466
U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
Lozada v. Warden, 223 Conn. 834, 842–43, 613 A.2d
818 (1992).
In those cases in which a judgment of conviction was
rendered following the rejection of a plea offer, ‘‘to
establish prejudice, a petitioner need establish only that
(1) it is reasonably probable that, if not for counsel’s
deficient performance, the petitioner would have
accepted the plea offer, and (2) the trial judge would
have conditionally accepted the plea agreement if it had
been presented to the court.’’ Ebron v. Commissioner
of Correction, 307 Conn. 342, 357, 53 A.3d 983 (2012),
cert. denied sub nom. Arnone v. Ebron, 569 U.S. 913,
133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013); cf. Hill v.
Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d
203 (1985) (holding that, in cases in which petitioner
alleges that he would have rejected plea deal and gone
to trial but for counsel’s deficient advice, ‘‘the [peti-
tioner] must show that there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial’’).6 ‘‘In
a habeas corpus proceeding, the petitioner’s burden of
proving that a fundamental unfairness had been done
is not met by speculation . . . but by demonstrable
realities.’’ (Internal quotation marks omitted.) Sanders
v. Commissioner of Correction, 169 Conn. App. 813,
834, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156
A.3d 536 (2017).
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed [on appeal] unless they are clearly errone-
ous. . . . Thus, the [habeas] court’s factual findings are
entitled to great weight. . . . Furthermore, a finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Citation omit-
ted; internal quotation marks omitted.) Orcutt v. Com-
missioner of Correction, 284 Conn. 724, 741–42, 937
A.2d 656 (2007). ‘‘The application of the habeas court’s
factual findings to the pertinent legal standard, how-
ever, presents a mixed question of law and fact, which
is subject to plenary review.’’ (Internal quotation marks
omitted.) Gaines v. Commissioner of Correction, 306
Conn. 664, 677, 51 A.3d 948 (2012).7
To demonstrate prejudice resulting from his trial
counsel’s alleged deficient performance, the petitioner
had the burden of demonstrating by a preponderance
of the evidence that it was reasonably probable that,
but for the deficient advice he received from his trial
counsel, he would have accepted the thirty-five year
plea deal. See Sanders v. Commissioner of Correction,
supra, 169 Conn. App. 820, 836–38 (affirming denial
of petition for certification to appeal habeas court’s
judgment after habeas court ‘‘concluded that the peti-
tioner had not met his burden of proving by a preponder-
ance of the evidence that it [was] reasonably probable
that a court would have accepted the state’s eight year
plea offer’’ [internal quotation marks omitted]); see also
Lewis v. Commissioner of Correction, 165 Conn. App.
441, 454, 139 A.3d 759 (determining that ‘‘[i]t was the
petitioner’s burden to establish not only that he may
have secured a more favorable deal absent [his trial
counsel’s] deficient performance, but that he would
have taken the deal if it had been offered’’), cert. denied,
322 Conn. 901, 138 A.3d 931 (2016).
In the present case, the petitioner testified at the
habeas trial that, if he had received accurate advice
about the admissibility and effect of McLeod’s testi-
mony, then he would have ‘‘strongly consider[ed] the
[plea] offer.’’ Later in his testimony he stated that he
would have accepted it. The habeas court, however,
discredited the petitioner’s testimony, determining that
‘‘[a]lthough the court finds the petitioner sincere, his
testimony on this point was unreliable.’’ The court
stated further that ‘‘[i]t is difficult to believe that the
inclusion of McLeod’s recounting of comments from
unspecified members of the trio would have so altered
the petitioner’s position so as to accept a sentence
fifteen years beyond that which he considered accept-
able.’’ Given the habeas court’s discrediting of the peti-
tioner’s testimony, it found that the petitioner had
‘‘failed to meet his burden of demonstrating that a rea-
sonable likelihood exists that, but for [trial counsel’s]
misadvice regarding the inadmissibility of a portion of
McLeod’s testimony, he would have accepted the thirty-
five year proposed disposition.’’
On appeal, 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 based on its firsthand
observation of their conduct, demeanor and attitude.
. . . 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.’’ (Internal quotation marks
omitted.) Orcutt v. Commissioner of Correction, supra,
284 Conn. 741.
The petitioner nevertheless argues that the habeas
court’s finding that he would have rejected the plea deal
even if his trial counsel had not performed deficiently
is clearly erroneous. The petitioner’s chief support for
this claim is the habeas court’s finding that the peti-
tioner was ‘‘sincere . . . [but] unreliable’’ on whether
he would have accepted the plea deal but for his trial
counsel’s deficient performance. The petitioner asserts
that ‘‘[t]his finding has no support in the record, and
what support was cited by the habeas court was clearly
erroneous.’’ In effect, the petitioner interprets the
court’s finding to mean—paradoxically—that although
the court found the petitioner to be ‘‘sincere’’ as to
whether he would have accepted the thirty-five year
deal, he, nevertheless, would have rejected the plea
even if his trial counsel had provided him with accurate
advice. We do not agree with the petitioner that the
habeas court’s statement regarding the sincerity of the
petitioner’s belief undermines its factual finding that
the petitioner would not have accepted the plea offer.
Specifically, the habeas court’s memorandum of deci-
sion, considered in its totality, plainly distinguishes the
petitioner’s sincerity from the unreliability of his testi-
mony regarding whether he would have accepted the
thirty-five year plea offer. Elaborating on the credibility
of the petitioner’s testimony, the habeas court found
that ‘‘[t]he petitioner’s present sentiment about what
he would have decided to do in retrospect, and armed
with certain knowledge that [he] would be convicted
of murder and sentenced to sixty years, amounts to
little more than regretful conjecture on his part.’’8 In
other words, the habeas court found that, in hindsight,
the petitioner sincerely now believes that he would have
accepted the plea after having been convicted and sen-
tenced to sixty years, but, on the matter of whether he
would have accepted the plea offer at the time it was
available to him, the court found his testimony to be
unreliable.
Further bolstering its finding that the petitioner
would have rejected the plea deal even if he had
received accurate advice concerning the admissibility
of McLeod’s testimony, the habeas court, in its memo-
randum of decision, cited to the petitioner’s testimony
in which he expressed that he was willing to accept a
plea deal totaling twenty years but not thirty-five years.
The habeas court also considered that the petitioner
rejected the thirty-five year plea offer despite knowing
that McLeod was likely to testify regarding other facts
that were inculpatory and on which the adoptive admis-
sions ruling had no bearing. Thus, on the basis of the
record before it, the habeas court found that, although
the petitioner sincerely believes that, in hindsight, he
would have accepted the plea offer, an objective analy-
sis of what he would have done at the time the plea
was available to him yields the opposite conclusion.
Ultimately, the habeas court concluded, after choos-
ing not to credit the petitioner’s testimony that he would
have accepted the plea offer if his trial counsel had
performed competently, that the petitioner failed to
sustain his burden of persuasion that he was prejudiced
by his trial counsel’s alleged deficient performance.
That conclusion was also supported by other evidence
in the record that tended to demonstrate that the peti-
tioner would not have accepted a plea offer of more
than twenty years. Given our well established deference
to the habeas court’s credibility determinations and
factual findings, we see no reason to disturb the habeas
court’s ultimate conclusion that the petitioner was not
prejudiced even if his trial counsel did not competently
advise him.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Our Supreme Court has described a ‘‘habeas on a habeas’’ as ‘‘a second
petition for a writ of habeas corpus (second habeas) challenging the perfor-
mance of counsel in litigating an initial petition for a writ of habeas corpus
(first habeas), which had claimed ineffective assistance of counsel at the
petitioner’s underlying criminal trial or on direct appeal.’’ Kaddah v. Com-
missioner of Correction, 324 Conn. 548, 550, 153 A.3d 1233 (2017).
Technically, this is the petitioner’s third petition for a writ of habeas
corpus. The first petition was denied in 2002 after a trial at which Attorney
Frank P. Cannatelli represented the petitioner. The habeas court granted
certification to appeal its judgment, and this court affirmed the denial of
the petition. See Rogers v. Commissioner of Correction, 82 Conn. App. 901,
846 A.2d 962, cert. denied, 269 Conn. 902, 851 A.2d 304 (2004). In August,
2008, the petitioner filed a second petition but ultimately withdrew it in
February, 2012, before trial. Attorney Damon A.R. Kirschbaum represented
the petitioner with respect to his second petition.
2
The habeas court granted the petition for certification to appeal its
judgment.
3
The habeas court did not make an explicit finding as to whether trial
counsel performed deficiently with respect to providing accurate advice
concerning the admissibility of a portion of McLeod’s testimony. Rather, it
found that even if trial counsel had performed deficiently, the petitioner
had ‘‘failed to meet his burden of demonstrating that a reasonable likelihood
exists that, but for [trial counsel’s] misadvice regarding the inadmissibility
of a portion of McLeod’s testimony, he would have accepted the thirty-five
year proposed disposition.’’
It is well settled that ‘‘[a] court can find against a petitioner, with respect
to a claim of ineffective assistance of counsel, on either the performance
prong or the prejudice prong, whichever is easier.’’ Ham v. Commissioner
of Correction, 301 Conn. 697, 704, 23 A.3d 682 (2011). We affirm the court’s
denial of habeas relief, in which it found that the petitioner failed to meet
his burden of demonstrating that it is reasonably probable that, in the
absence of his trial counsel’s alleged deficient advice, the petitioner would
have accepted the thirty-five year plea deal. The petitioner, therefore, failed
to establish prejudice. Thus, we do not address whether the petitioner’s
trial counsel performed deficiently.
Similarly, the habeas court did not make an explicit finding as to whether
Cannatelli performed deficiently. Rather, the court focused its analysis on
whether the petitioner suffered prejudice from his trial counsel’s representa-
tion, assuming his trial counsel performed deficiently.
To succeed on a claim that former habeas counsel provided ineffective
assistance by failing to raise a claim of ineffective assistance of trial counsel,
the petitioner must show that both habeas counsel and trial counsel were
ineffective. Lozada v. Warden, 223 Conn. 834, 842, 613 A.2d 818 (1992).
Because the habeas court properly found that the petitioner failed to meet
his burden of demonstrating that it was reasonably probable that he would
have accepted the plea offer but for his trial counsel’s alleged deficient
performance, we do not address the petitioner’s claim that Cannatelli ren-
dered ineffective assistance, as that claim fails as a matter of law.
4
In the petitioner’s direct appeal from his conviction, this court, in relation
to a claim regarding the propriety of jury instructions pertaining to adoptive
admissions, stated that the trial court properly admitted McLeod’s testimony
pertaining to the postshooting conversation as an adoptive admission. See
State v. Rogers, supra, 50 Conn. App. 484–85.
5
In his appellate brief and at oral argument before this court, the petitioner
addressed only count nine, which alleges ineffective assistance of counsel
with respect to the advice the petitioner received from his trial counsel
regarding the admissibility of McLeod’s testimony about the postshooting
conversation between the petitioner, Council, and McCowen. The petitioner
abandoned his appeal with respect to count ten, in which he alleges that
he received ineffective assistance of counsel because his trial counsel failed
to adequately explain to him whether he could be convicted as an accessory.
On appeal, the petitioner did not brief accessorial liability as a separate
claim of ineffective assistance of counsel. Furthermore, at oral argument,
the petitioner conceded that the habeas court’s ruling with respect to count
nine is the only issue he raised on appeal and that his appeal related to
count ten is not independent of his appeal related to count nine. Thus, we
do not address count ten.
6
Because we conclude that the habeas court properly found that the
petitioner failed to meet his burden of demonstrating that it is reasonably
probable that he would have accepted the plea deal but for his trial counsel’s
alleged deficient performance, we do not address the second prong of the
prejudice test.
7
The petitioner insists that this court is required to engage in a scrupulous
examination of the record to ensure that the habeas court’s factual findings
are predicated on substantial evidence. See State v. Mullins, 288 Conn. 345,
362, 952 A.2d 784 (2008) (‘‘[a]s we have noted previously, however, when
a question of fact is essential to the outcome of a particular legal determina-
tion that implicates a defendant’s constitutional rights, and the credibility
of witnesses is not the primary issue, our customary deference to the trial
court’s factual findings is tempered by a scrupulous examination of the
record to ascertain that the trial court’s factual findings are supported by
substantial evidence [emphasis added]’’). In a lapsed plea case like this case,
however, the credibility of the petitioner is the primary issue. See Kellman
v. Commissioner of Correction, 178 Conn. App. 63, 72, 174 A.3d 206 (2017)
(‘‘[t]he petitioner’s claim concerning whether a plea deal was presented or
meaningfully explained to him, specifically, whether this prejudiced him,
depends entirely on the habeas court’s determinations on credibility, to
which we defer on appeal’’); see also Barlow v. Commissioner of Correction,
150 Conn. App. 781, 804, 93 A.3d 165 (2014) (‘‘the habeas court is in the
best position to determine whether it is reasonably likely that the petitioner
would have accepted the offer had he received adequate advice from [his
counsel]’’). We do not apply the ‘‘scrupulous examination-substantial evi-
dence’’ standard because the petitioner’s credibility is the primary consider-
ation in determining whether he was prejudiced by the alleged deficient
performance of his trial counsel.
8
In a case in which the habeas court considered a petitioner’s claim that
his decision to accept a plea and not to go to trial would have been different
but for his counsel’s deficient performance, this court, in affirming the
habeas court’s denial of a petition for a certification to appeal its judgment,
determined that such a claim ‘‘suffers from obvious credibility problems
and must be evaluated in light of the circumstances [he] would have faced
at the time of his decision.’’ (Internal quotation marks omitted.) Colon v.
Commissioner of Correction, 179 Conn. App. 30, 36, 177 A.3d 1162 (2017),
cert. denied, 328 Conn. 907, 178 A.3d 390 (2018).