Stanley v. Commissioner of Correction

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KEVIN STANLEY v. COMMISSIONER
OF CORRECTION
(AC 37662)
Gruendel, Prescott and Mullins, Js.*
Argued February 8—officially released March 29, 2016
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Justine F. Miller, assigned counsel, for the appel-
lant (petitioner).
Matthew R. Kalthoff, deputy assistant state’s attor-
ney, with whom, on the brief, were Michael Dearington,
state’s attorney, and Rebecca A. Barry, assistant state’s
attorney, for the appellee (respondent).
Opinion
GRUENDEL, J. The petitioner, Kevin Stanley, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. He con-
tends that the court improperly concluded that he failed
to prove his claims of ineffective assistance of counsel.
We affirm the judgment of the habeas court.
In denying the amended petition, the habeas court,
Oliver, J., aptly observed that ‘‘this case is a prime
example of the abuse of the habeas corpus process
. . . . [I]t could not have been the intent of the legisla-
ture to allow cases of this nature to come before the
court in what, so far, has shown to be an unending
loop.’’ Before recounting the latest chapter in this saga,
we first set forth the facts underlying the case.
‘‘On November 7, 1989, at approximately 5:50 p.m.,
Bridget Page left her home on Orchard Street in New
Haven and drove to the home of Javin Green, a friend
whom she had been dating, in order to celebrate her
birthday. Green lived on Dixwell Avenue in New Haven.
Along the way, at the corner of Dixwell Avenue and
Argyle Street, Page heard a noise that sounded like a
‘tap’; then her car’s rear window began to break up and
fall out as she drove along. When Page arrived at Green’s
home she told him about the broken window and said
that she thought some children had thrown rocks at
the window. Green and Page decided to return to the
intersection in order to determine who was responsible
for the broken window.
‘‘They drove back to the intersection of Dixwell Ave-
nue and Argyle Street, parked the car on Argyle Street
near the corner and walked over to five individuals who
had congregated at the corner. The group consisted of
three children, each approximately eight years old, and
two young men, each approximately eighteen years old.
Located on the corner of Dixwell Avenue and Argyle
Street was a laundromat, an entrance to an apartment
building and a beauty salon, all fronting on Dixwell
Avenue. A street light and the lights from the laundro-
mat were on. Green first spoke to the children, stating
that one of them was responsible for the broken
window.
‘‘At this point, Brenda Clark, who resided at 425 Dix-
well Avenue in an apartment directly over the laundro-
mat opened the apartment building entrance door. Her
attention was drawn to Green and one of the young
men, whom she later identified in court as the [peti-
tioner]. Green and the [petitioner] were standing close
to each other, face to face, in front of the laundromat.
Green was facing the street with his back to the laundro-
mat. The [petitioner] was facing Green with his back
to the street. Page stood within inches of Green, facing
him, on his left. Green was upset and was thrusting his
chest towards the [petitioner’s] chest, saying ‘I want
that little dude that, you know, shot the rock.’ The
[petitioner] began walking towards Green’s right side
in an effort to get behind Green. Green told him to stop
and the [petitioner] replied ‘Oh, yes.’ The [petitioner]
next moved back three or four steps towards the street,
reached into his pants, pulled out a revolver and fired
three or four shots at Green.
‘‘After the shots were fired, Green grabbed his face
and stomach, cried out ‘oh, oh’ and left the scene by
running around the corner onto Argyle Street. Follow-
ing the departure of Green and Page, the [petitioner]
turned his gun towards a ‘little boy’ who ran into the
door where Clark was standing. The [petitioner] looked
over at Clark, turned around, walked away and entered
a nearby car. Page, who initially had not been aware
that Green had been shot, followed him around the
corner and saw him enter her car on the passenger
side. Green told her that he had been shot and she
drove him to the hospital, where he died.’’ State v.
Stanley, 223 Conn. 674, 676–77, 613 A.2d 788 (1992).
The petitioner was arrested and a trial followed, at
the conclusion of which the jury found him guilty of
murder in violation of General Statutes § 53a-54a. Id.,
675. The trial court thereafter sentenced the petitioner
to a term of sixty years incarceration. Our Supreme
Court affirmed the judgment of conviction on direct
appeal. Id., 696.
In his first action, the petitioner, represented by Attor-
ney Judith Wildfeuer, alleged in his petition ineffective
assistance on the part of his trial counsel, Attorney Leo
Ahern. Specifically, the petitioner alleged that Ahern
failed to adequately ‘‘(1) consult and advise [him] as to
the evidence, defenses, plea negotiations, the conse-
quences of plea, whether to testify and as to the suppres-
sion of his statement [to the police]; (2) investigate
facts, witnesses and police reports; (3) prepare for the
hearing in probable cause, suppression of his statement
and identification, for cross-examination of witnesses
and presentation of evidence; (4) prepare for trial to
present and exclude evidence, cross-examine and set
out a theory of defense for effective argument on the
motion for judgment of acquittal and closing argument;
[and] (5) preserve [his] right to sentence review.’’ Stan-
ley v. Commissioner of Correction, Superior Court,
judicial district of Hartford, Docket No. CV-94-0538267-
S (November 29, 1999). The habeas court agreed only
with the latter claim and restored the petitioner’s right
to sentence review. Id. The court rejected all other
allegations of ineffective assistance of counsel. Id. From
that judgment, the petitioner unsuccessfully appealed
to this court. Stanley v. Commissioner of Correction,
67 Conn. App. 357, 786 A.2d 1249 (2001), cert. denied,
259 Conn. 922, 792 A.2d 855, cert. denied, 537 U.S. 83,
123 S. Ct. 155, 154 L. Ed. 2d 59 (2002).
In his second habeas action, the petitioner, repre-
sented by Attorney Genevieve Salvatore, alleged that
Ahern rendered ineffective assistance of counsel by
failing to object to prosecutorial impropriety at closing
argument. The court dismissed the petition on the
ground of procedural default, stating: ‘‘The motion to
dismiss is granted because . . . the petition presents
the same ground as a prior petition previously denied
and fails to state new facts or proffer new evidence not
. . . available at the time of the prior petition. . . .
This [claim] could well have been raised thirteen years
ago when the first habeas petition [was filed], which
addressed multiple grounds of ineffective assistance of
counsel or multiple specifications; this is simply
another specification of the same general ground of
ineffective assistance of trial counsel.’’ Stanley v. Com-
missioner of Correction, Superior Court, judicial dis-
trict of Tolland, Docket No. CV-04-0004423-S
(November 5, 2007).
In his third habeas action, the petitioner, then repre-
sented by Attorney Damon Kirschbaum, alleged ineffec-
tive assistance of both his appellate counsel and his
first habeas counsel. The petition alleged that Attorney
Neal Cone, who represented the petitioner in the direct
appeal of his judgment of conviction, rendered ineffec-
tive assistance by failing to raise a claim of prosecutorial
impropriety. The petition further alleged that Wildfeuer
rendered ineffective assistance in his first habeas action
by failing to allege such a claim of ineffective assistance
on the part of Cone. In its July 11, 2011 oral decision,
the habeas court concluded that no prosecutorial
impropriety transpired, and thus rejected both claims.
Stanley v. Commissioner of Correction, Superior
Court, judicial district of Tolland, Docket No. CV-08-
4002493-S (July 11, 2011). Although the petitioner, rep-
resented by Attorney Paul Krause, initially appealed
from that judgment to this court, that appeal later
was withdrawn.
The petitioner commenced the present habeas action,
his fourth, in 2012. His amended petition for a writ of
habeas corpus contained three counts, which alleged
ineffective assistance on the part of his first habeas
counsel, Wildfeuer, his second habeas counsel, Salva-
tore, and his third habeas counsel, Kirschbaum.1
Although numerous in nature, those allegations of inef-
fective assistance may be distilled to a single issue—
namely, whether the petitioner’s habeas counsel ren-
dered ineffective assistance by failing to allege that
Ahern had rendered ineffective assistance in failing to
procure the allegedly exculpatory testimony of Greg
McCoy.2
A trial was held before the habeas court on December
19, 2014. At the outset, the parties consented to the
court ‘‘taking judicial notice of previous proceedings
and previous decisions relating to [the petitioner]’’ and
his habeas actions and direct appeal. The first witness
to testify was the petitioner. The gist of his testimony
was that McCoy would have testified at trial that the
petitioner was not present when the shooting occurred,
thereby rebutting Clark’s identification of him at trial
as the perpetrator.
The court then heard from McCoy, who testified that
he was thirteen years old at the time of the shooting.
On the day of the shooting, he had been playing outside
with ‘‘his friend,’’ the petitioner’s younger brother, when
Green approached them.3 McCoy testified that there
were ‘‘a number of people’’ outside at the time of the
altercation and that he remembered ‘‘the faces that I’d
seen.’’ McCoy testified that he never saw either the
petitioner or Clark at any time that day. He also testified
that he heard gunfire as he ‘‘was walking into the door’’
of the apartment building where he resided and that he
did not see who shot Green. During his testimony,
McCoy acknowledged that his criminal record included
two felony convictions, a violation of probation that led
to incarceration, and a misdemeanor assault conviction.
Kirschbaum represented the petitioner in his third
habeas action. He testified at the habeas trial that, after
receiving the petitioner’s file from Salvatore, he ‘‘was
unable to identify any [meritorious] claims . . . .’’
When asked why he had not filed an Anders brief,4
Kirschbaum explained that ‘‘[i]t was late in the process,
and I don’t like filing Anders briefs. . . . And [the peti-
tioner] wanted his prosecutorial impropriety claim to
be ruled on.’’
The fourth and final witness at the habeas trial was
Ahern. Ahern testified that the petitioner was nineteen
or twenty years old at the time of the criminal trial. He
also testified that, in his opinion, the state ‘‘certainly
seemed to’’ have a strong case against the petitioner.
Ahern noted that the petitioner had provided a state-
ment to the police in which he placed himself at the
scene of the shooting. During his investigation, Ahern
spoke with the petitioner’s mother at length, who indi-
cated that the petitioner was inside their apartment at
the time of the shooting. Nevertheless, Ahern testified
that the petitioner had informed him that he was present
at the scene of the shooting, but was not the perpetrator.
Ahern had no recollection of the name ‘‘Greg McCoy,’’
but emphasized that the events in question had tran-
spired nearly one-quarter century ago.
In its oral memorandum of decision, the court did
not find McCoy’s testimony to be credible, expressly
noting its ‘‘concerns relating to his age at the time of
the shooting, his friendship with the brother of the
petitioner, and his felony convictions.’’ The court also
found that, even if it were to credit McCoy’s testimony,
the petitioner could not establish prejudice, as his testi-
mony did ‘‘little or nothing to contest and attack the
accuracy and credibility and veracity of the testimony of
[Clark]. McCoy testified that he did not see the shooting,
could not identify the shooter, did not see [the peti-
tioner] outside at the time of the shooting, and did not
see Clark.’’ Accordingly, the court found that McCoy’s
testimony likely would not have made a difference on
the outcome of the petitioner’s criminal trial. The court
reasoned that because the petitioner could not establish
prejudice with respect to Ahern’s performance at trial,
‘‘there is no prejudice as to the performance of Wild-
feuer, Salvatore, or Kirschbaum.’’ The court, therefore,
denied the petition for a writ of habeas corpus. The
court subsequently granted the petition for certification
to appeal to this court, and this appeal followed.
To prevail on a claim of ineffective assistance of
counsel pursuant to Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a
habeas petitioner must ‘‘show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense [by establishing a
reasonable probability that, but for the counsel’s mis-
takes, the result of the proceeding would have been
different]. . . . [A] successful petitioner must satisfy
both prongs . . . [and the] failure to satisfy either . . .
is fatal to a habeas petition.’’ (Citation omitted; internal
quotation marks omitted.) Perez v. Commissioner of
Correction, 150 Conn. App. 371, 377–78, 90 A.3d 374,
cert. denied, 312 Conn. 919, 94 A.2d 640 (2014).
As the habeas court noted in its decision, to establish
ineffective assistance on the part of his various habeas
counsel, the petitioner bore the burden of demonstra-
ting that his trial counsel rendered ineffective assis-
tance in failing to procure the testimony of McCoy at
the petitioner’s criminal trial. See, e.g., Crocker v. Com-
missioner of Correction, 126 Conn. App. 110, 117, 10
A.3d 1079 (‘‘[a petitioner’s] claims regarding previous
habeas counsel will not succeed if the claims of ineffec-
tive assistance of trial counsel lack merit’’), cert. denied,
300 Conn. 919, 14 A.3d 333 (2011); Lapointe v. Commis-
sioner of Correction, 113 Conn. App. 378, 394, 966 A.2d
780 (2009) (to prevail on claim of ineffective assistance
of habeas counsel predicated on ineffective assistance
of trial counsel, petitioner must prove that both habeas
counsel and trial counsel were ineffective). We agree
with the court that the petitioner has not met that
burden.
First and foremost, it is axiomatic that the habeas
court ‘‘as trier of facts, is the sole arbiter of the credibil-
ity of witnesses and the weight to be given to their
testimony.’’ (Internal quotation marks omitted.) San-
chez v. Commissioner of Correction, 314 Conn. 585,
604, 103 A.3d 954 (2014). On appeal, a reviewing court
is obligated to defer to the habeas court’s ‘‘assessment
of the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude.’’
(Internal quotation marks omitted.) Id. The habeas
court here did not find McCoy’s testimony credible. In
light of that assessment, the petitioner cannot surmount
the ‘‘herculean task’’ of establishing both ineffective
assistance of trial counsel and ineffective assistance
of habeas counsel; see Mukhtaar v. Commissioner of
Correction, 158 Conn. App. 431, 439, 119 A.3d 607(2015); as those allegations pertain to the failure to
procure McCoy’s testimony at the petitioner’s crimi-
nal trial.
Second, we concur with the court’s determination
that McCoy’s testimony likely would not have altered
the result of the petitioner’s criminal trial. Although
McCoy stated that he did not see the petitioner at any
time on the day of the shooting, other witnesses placed
the petitioner at the scene, as did the petitioner himself
in his statement to the police.5 Moreover, in his testi-
mony, McCoy indicated that he was not present at the
time of the shooting, but rather was entering his apart-
ment. His testimony, therefore, sheds little light on the
question of whether the petitioner shot Green. Because
he was not present at the time of the shooting, McCoy’s
testimony also does not undermine the eyewitness testi-
mony provided by Clark, who testified that she saw the
petitioner fire a gun directly at Green. See State v.
Stanley, supra, 223 Conn. 682 n.4. Furthermore,
McCoy’s testimony has no bearing whatsoever on the
eyewitness testimony of Page, who also was present at
the time of the shooting.6 See id., 679. Page testified at
the petitioner’s criminal trial that, during the altercation
between the petitioner and Green, she saw the peti-
tioner pull out a gun and fire several shots.7 Id., 679–80.
In light of the foregoing, we conclude that the peti-
tioner cannot demonstrate that, had Ahern offered
McCoy’s testimony, the result of his criminal trial likely
would have been different. He therefore has not estab-
lished the requisite prejudice with respect to the assis-
tance rendered by either his trial counsel or his various
habeas counsel. Accordingly, the court properly denied
his amended petition for a writ of habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The petition also contained a fourth count alleging ineffective assistance
on the part of Krause in handling his appeal in the third habeas proceeding.
In denying the petition, the court in its oral decision did not discuss that
claim beyond noting that the petitioner had ‘‘failed to demonstrate any
prejudice from the withdrawal . . . .’’ The petitioner in this appeal does
not challenge the propriety of that determination. We therefore confine our
review to the claims presented by the petitioner. See Mitchell v. Commis-
sioner of Correction, 156 Conn. App. 402, 408–409, 114 A.3d 168, cert. denied,
317 Conn. 904, 114 A.3d 1220 (2015).
2
In count one of the amended petition, the petitioner alleged that Wild-
feuer rendered ineffective assistance by failing to raise an ineffective assis-
tance of counsel claim regarding Ahern’s pretrial investigation of McCoy,
who allegedly would have provided exculpatory testimony at the petitioner’s
criminal trial. In count two, the petitioner alleged that Salvatore rendered
ineffective assistance in that she failed to raise an ineffective assistance of
counsel claim regarding Wildfeuer’s failure to raise an ineffective assistance
claim regarding Ahern’s investigation of McCoy. In count three, the petitioner
alleged that Kirschbaum rendered ineffective assistance of counsel by (1)
failing to raise an ineffective assistance claim regarding Wildfeuer’s failure
to raise an ineffective assistance claim regarding Ahern’s investigation of
McCoy and (2) failing to raise an ineffective assistance claim regarding
Salvatore’s failure to raise an ineffective assistance claim regarding Wild-
feuer’s failure to raise an ineffective assistance claim regarding Ahern’s
investigation of McCoy. Those allegations all share a common nucleus—
Ahern’s allegedly ineffective assistance of counsel in failing to procure
McCoy’s testimony at the petitioner’s criminal trial.
We note that the petitioner also alleged that Wildfeuer, Salvatore, and
Kirschbaum rendered ineffective assistance by not raising an ineffective
assistance of counsel claim regarding Cone’s alleged failure to pursue a due
process claim in the petitioner’s direct appeal. The petitioner withdrew
those claims at trial before the habeas court.
3
McCoy testified that, in the years following the shooting, he and the
petitioner’s brother ‘‘kept running into each other periodicially. . . . [W]e
always remained friends . . . .’’
4
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493(1967) (establishing constitutionally required procedures to be followed by
counsel and courts in cases in which counsel believes that appeal is
frivolous).
5
As our Supreme Court noted in the petitioner’s direct appeal: ‘‘The jury
was given copies of a statement made by the [petitioner] to a New Haven
police officer, approximately one month after the shooting had occurred,
in which the [petitioner] stated that Green had accused the [petitioner’s]
younger brother, who was at the scene of the shooting, of breaking Page’s
window. In that statement, the [petitioner] also stated that Green had threat-
ened to harm [his] younger brother and that the [petitioner] had replied
that Green ‘wasn’t [going to] . . . do [anything] to [his brother].’ ’’ State v.
Stanley, supra, 223 Conn. 679.
6
At the time of the shooting, Page ‘‘stood within inches of Green . . . .’’
State v. Stanley, supra, 223 Conn. 676.
7
At the habeas trial, the parties stipulated that the court could take judicial
notice of ‘‘previous proceedings and previous decisions’’ involving the peti-
tioner, including his direct appeal. In the petitioner’s direct appeal, our
Supreme Court stated that Page ‘‘witnessed the shooting’’ and that she
testified that, during the altercation with Green, the petitioner ‘‘had taken
three or four steps back toward the street, away from Green, had pulled
out a gun and had fired three or four shots.’’ State v. Stanley, supra, 223
Conn. 679–80.
At oral argument before this court, the petitioner’s counsel challenged
the accuracy of that statement, stating that the Supreme Court ‘‘slipped up
there.’’ We note that the petitioner has not filed any transcripts from his
criminal trial. The record, therefore, plainly is inadequate to review such a
charge. Moreover, the petitioner did not dispute that factual matter in his
direct appeal before the Supreme Court; instead, he acknowledged that
Page testified that she saw him firing shots, but argued, inter alia, that ‘‘Page
testified that she thought the [petitioner] had been shooting at the ground
. . . .’’ State v. Stanley, supra, 223 Conn. 680. In light of that testimony,
the petitioner argued in his direct appeal that ‘‘the evidence allowed the
conclusion that [he] had aimed the gun at the ground and . . . had no intent
to kill Green.’’ Id.On a more fundamental level, the charge levied by the petitioner is beyond
the purview of this appellate tribunal. As an intermediate appellate court,
this panel is not at liberty to discard, modify, reconsider, reevaluate, or
overrule the precedent of our Supreme Court. See Hartford Steam Boiler
Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 121
Conn. App. 31, 48–49, 994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d
277 (2010). This court, therefore, cannot countenance a charge such as that
raised by the petitioner at oral argument.