Haywood v. Commissioner of Correction

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DAVID HAYWOOD v. COMMISSIONER
OF CORRECTION
(AC 35519)
Gruendel, Lavine and Flynn, Js.
Argued September 15—officially released November 11, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Michael Zariphes, assigned counsel, for the appel-
lant (petitioner).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky III, state’s
attorney, and Jo Anne Sulik, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
FLYNN, J. The petitioner, David Haywood, appeals
from the judgment of the habeas court denying his
third amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court improperly
concluded that he failed to prove that his trial counsel
and appellate counsel were ineffective. The petitioner
argues that his trial counsel provided ineffective assis-
tance by (1) eliciting damaging testimony from the
state’s witnesses, (2) failing to object to the prosecutor’s
closing argument, (3) conceding to the jury that an
attempted robbery had occurred, and (4) failing to
request a jury charge on criminal attempt. Additionally,
the petitioner argues that his appellate counsel provided
ineffective assistance by failing to (1) discuss meaning-
fully the issue of judgment modification in his appellate
brief, (2) file a reply brief to address the state’s position,
and (3) file a motion for reconsideration.1 We conclude
that the habeas court properly decided that the peti-
tioner failed to prove that his trial counsel or appellate
counsel were ineffective. Accordingly, we affirm the
judgment of the habeas court.
The following facts and procedural history are rele-
vant to this appeal. On May 18, 2004, the petitioner
was convicted of felony murder in violation of General
Statutes § 53a-54c, conspiracy to commit robbery in the
first degree in violation of General Statutes §§ 53a-48
and 53a-134 (a), and robbery in the first degree as an
accessory in violation of General Statutes §§ 53a-8 and
53a-134 (a). The trial court sentenced him to a total
effective sentence of seventy-seven years imprison-
ment. The petitioner appealed the judgment of convic-
tion to this court. See State v. Haywood, 109 Conn.
App. 460, 461–62, 952 A.2d 84, cert. denied, 289 Conn.
928, 958 A.2d 161 (2008). This court reversed the convic-
tion of conspiracy to commit robbery in the first degree
and remanded the case for a new trial on that charge.
Id., 477. This court also reversed the conviction of rob-
bery in the first degree as an accessory and remanded
the case with direction to modify the judgment to reflect
a conviction of attempt to commit robbery in the first
degree as an accessory. Id. The judgment was affirmed
in all other respects. Id. Upon remand, the state entered
a nolle prosequi to the charge of conspiracy to commit
robbery and the trial court resentenced the petitioner
to the same total effective sentence of seventy-seven
years imprisonment for the felony murder conviction
and the modified conviction of attempt to commit rob-
bery in the first degree as an accessory.
On November 7, 2011, the petitioner filed his third
amended petition for a writ of habeas corpus, alleging
ineffective assistance of trial counsel and ineffective
assistance of appellate counsel.2 The habeas court con-
ducted a trial on June 4, 2012, and denied the petitioner’s
amended petition for a writ of habeas corpus in a writ-
ten decision on February 5, 2013. The court granted the
petitioner’s petition for certification to appeal.
We now turn to the appropriate standard of review
for a challenge to a denial of a petition for a writ of
habeas corpus when certification to appeal is granted.
The underlying historical facts found by the habeas
court may not be disturbed unless the findings were
clearly erroneous. Correia v. Rowland, 263 Conn. 453,
462, 820 A.2d 1009 (2003). The conclusions reached by
the habeas court in its decision to dismiss a habeas
petition are matters of law, subject to plenary review.
Johnson v. Commissioner of Correction, 285 Conn. 556,
566, 941 A.2d 248 (2008).
I
We first address the petitioner’s claim that the habeas
court improperly concluded that he failed to prove that
his trial counsel, Attorney Paul D. Eschuk, was ineffec-
tive. The petitioner argues that Eschuk provided inef-
fective assistance by (1) eliciting damaging testimony
from the state’s witnesses, (2) failing to object to the
prosecutor’s closing argument, (3) conceding to the jury
that an attempted robbery had occurred, and (4) failing
to request a jury charge on criminal attempt. We reject
all of the petitioner’s claims.
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Strickland requires that a petitioner satisfy both
a performance prong and a prejudice prong. To satisfy
the performance prong, a claimant must demonstrate
that counsel made errors so serious that counsel was
not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . The claim will succeed only if both
prongs are satisfied. . . . It is well settled that [a]
reviewing court can find against a petitioner on either
ground, whichever is easier.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Small v. Commissioner of Correction, 286 Conn. 707,
712–13, 946 A.2d 1203, cert. denied sub nom. Small
v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d
336 (2008).
A
The petitioner first claims that Eschuk provided inef-
fective assistance by eliciting damaging testimony from
the state’s witnesses. The petitioner argues that Eschuk
was ineffective in eliciting testimony from Detectives
Tom Murphy and James Wright that the petitioner was
in possession of $390 when he was arrested. The peti-
tioner contends that Eschuk ‘‘was ineffective when he
elicited testimony at trial that suggested to the jury that
the petitioner committed the robbery when the state
failed to do so itself.’’
The habeas court found that ‘‘[a] review of the trial
transcripts does not bear out the petitioner’s claim.’’
Murphy first testified on direct examination by the state
that $390 was found in the petitioner’s possession when
he was arrested. Subsequently, on cross-examination
by Eschuk, both Murphy and Wright testified as to the
$390 found on the petitioner.3 The habeas court found
that ‘‘[t]his testimony reveals that it was the state that
first raised the issue of the petitioner possessing cash
when arrested and does not support the petitioner’s
claim that Attorney Eschuk suggested that the peti-
tioner committed the robbery.’’
The habeas court also found that Eschuk ‘‘strove to
explain the reason the petitioner had cash on him when
he was arrested . . . .’’ During the defense’s case-in-
chief, Eschuk presented evidence that would permit
the jury to infer that at least some of the $390 in the
petitioner’s possession came from a lawful source and
not from the robbery. Eschuk elicited testimony from
an employee at the Connecticut Department of Labor
Unemployment Technical Unit that an unemployment
check had been mailed to the petitioner two days before
the robbery occurred.
We agree with the habeas court’s conclusion that the
petitioner failed to prove that Eschuk was ineffective
in eliciting testimony about the $390 from Murphy and
Wright. The record demonstrates that the state first
brought out the evidence of the $390 found on the
petitioner. The record also demonstrates that Eschuk
presented evidence of the petitioner’s unemployment
compensation to counter a possible inference, which
the state invited, that the petitioner acquired the $390
through a share of the cash proceeds of the robbery.
We conclude that the habeas court properly found that
Eschuk did not provide ineffective assistance by elic-
iting testimony about evidence that had already been
presented to the jury and for which he offered an expla-
nation consistent with innocence, namely, that the peti-
tioner had a lawful source of funds unconnected with
the robbery.
B
The petitioner next claims that Eschuk provided inef-
fective assistance by failing to object to the prosecutor’s
closing argument. During the state’s closing argument,
the prosecutor suggested to the jury that the $390 found
on the petitioner when he was arrested came from
William Brown, the victim of both the attempted rob-
bery and the murder. During his closing argument,
Eschuk argued to the jury that there was no evidence
of a larceny. Ultimately, this court agreed with Eschuk
on direct appeal that there was insufficient evidence to
support a conviction for robbery. See State v. Haywood,
supra,109 Conn. App. 465. Eschuk also emphasized that
the state had not offered any money into evidence as
stolen property taken during the robbery. In this habeas
appeal, the petitioner argues that Eschuk was ineffec-
tive in failing to object to the prosecutor’s suggestion
on the ground that the prosecutor’s statement assumed
facts not in evidence. The petitioner also argues that
Eschuk was ineffective in failing to ask the trial court
to issue a curative instruction or to admonish the pros-
ecutor.
The habeas court found that Eschuk’s decision to
address the issue of the $390 in his own closing argu-
ment, rather than object to the prosecutor’s closing
argument, was ‘‘one of sound trial strategy.’’ In
reviewing ineffective assistance of counsel claims,
‘‘[j]udicial scrutiny of counsel’s performance must be
highly deferential. . . . [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.’’ (Internal quotation
marks omitted.) Bryant v. Commissioner of Correc-
tion, 290 Conn. 502, 512–13, 964 A.2d 1186, cert. denied
sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct.
259, 175 L. Ed. 2d 242 (2009). We agree with the habeas
court’s conclusion that Eschuk’s decision not to object
to the prosecutor’s closing argument, and instead to
argue that the jury could infer that the petitioner’s $390
came from his unemployment compensation rather
than the robbery, was one of sound trial strategy. See
Servello v. Commissioner of Correction, 95 Conn. App.
753, 761, 899 A.2d 636 (‘‘the decision of a trial lawyer
not to make an objection is a matter of trial tactics, not
evidence of incompetency’’ [internal quotation marks
omitted]), cert. denied, 280 Conn. 904, 907 A.2d 91
(2006).
C
The petitioner also claims that Eschuk provided inef-
fective assistance by conceding to the jury that an
attempted robbery had occurred. In his closing argu-
ment at the petitioner’s criminal trial, Eschuk stated:
‘‘There was an attempted robbery. I don’t think there’s
any doubt about that.’’ The petitioner argues that, in
making these statements, Eschuk conceded the peti-
tioner’s guilt to the jury.
The habeas court rejected this claim and offered the
following explanation for its decision: ‘‘Trial counsel’s
defense theory was that the petitioner was not a partici-
pant. . . . Trial counsel never denied that a robbery
or attempted robbery occurred because a denial was
not necessary to the petitioner’s defense that he did
not participate in the offense. Attorney Eschuk’s
acknowledgment that an attempted robbery occurred
by others did not undermine his defense theory that
the petitioner was not a participant.’’ The record demon-
strates that the state presented compelling evidence
that an attempted robbery had occurred. Rather than
dispute the occurrence of the attempted robbery,
Eschuk argued to the jury that the petitioner had not
participated in it. Eschuk’s acknowledgment that an
attempted robbery had occurred was consistent with
the nonparticipation defense he presented to the jury
and did not prejudice the petitioner. We agree with the
habeas court’s reasoning and its conclusion that the
petitioner failed to prove that Eschuk was ineffective
in acknowledging that an attempted robbery had
occurred, while at the same time emphasizing the peti-
tioner’s nonparticipation.
D
The petitioner’s final ineffective assistance of trial
counsel claim is that Eschuk was ineffective in failing
to request a jury charge on criminal attempt. During the
petitioner’s criminal trial, the state requested a standard
jury charge on criminal attempt because felony murder
may be predicated on either a completed felony or an
attempted felony. Eschuk did not join the state’s request
or object to it. The trial court denied the state’s request.
The petitioner argues that ‘‘had the jury ultimately
believed that the petitioner was a participant in the
crime (of which their verdict shows that they did), then
Attorney Eschuk’s error [in failing to request a jury
charge on criminal attempt] permitted the jurors to rely
upon their own understanding of criminal attempt in
order to decide the petitioner’s fate as to the felony
murder charge.’’ We are not persuaded.
On direct appeal, this court addressed the petitioner’s
claim that a jury charge should have been given on
criminal attempt. See State v. Haywood, supra, 109
Conn. App. 467–72. This court concluded that ‘‘because
attempt to commit robbery was a predicate crime to
the charge of felony murder, and the court specifically
told the jury that it could find the [petitioner] guilty of
felony murder on the basis of an attempted robbery,
the state’s request for an instruction on the statutory
elements of attempt should have been granted.’’ Id.,
471. Nevertheless, this court further concluded: ‘‘[T]he
omission of an instruction on the statutory elements
of attempt was harmless beyond a reasonable doubt
because the jury could not have found the [petitioner]
guilty of robbery in the first degree as an accessory as
charged in the third count without necessarily finding
that his conduct amounted to being an accessory to an
attempt to commit robbery. Because the jurors could
not have believed that the [petitioner] completed the
crime of robbery [as an accessory] without undertaking
a substantial step in furtherance of it . . . the jury had
to have determined beyond a reasonable doubt that
the [petitioner] attempted to commit robbery [as an
accessory].’’ (Citation omitted.) Id., 471–72; see also
Small v. Commissioner of Correction, supra, 286 Conn.
727–31 (finding that trial court’s failure to instruct jury
on criminal attempt was harmless where, given verdict,
jury must have found elements of attempt).
This court has decided on direct appeal that, in this
case, the omission of a jury charge on criminal attempt
was harmless error. State v. Haywood, supra, 109 Conn.
App. 472. Furthermore, a request for a jury charge on
criminal attempt would have undermined the petition-
er’s nonparticipation defense. As such, the petitioner’s
claim fails because he cannot prove prejudice. The peti-
tioner cannot show that, but for Eschuk’s failure to
request a jury charge on criminal attempt, the result of
his criminal trial would have been different.
II
We now address the petitioner’s claim that the habeas
court improperly concluded that he failed to prove that
his appellate counsel, Attorney Glenn W. Falk, was inef-
fective.4 The petitioner argues that Falk provided inef-
fective assistance by failing to (1) discuss meaningfully
the issue of judgment modification in his appellate brief,
(2) file a reply brief to address the state’s position, and
(3) file a motion for reconsideration. We reject all of
the petitioner’s claims.
To succeed on an ineffective assistance of appellate
counsel claim, the petitioner must satisfy both the per-
formance prong and the prejudice prong of Strickland.
See Small v. Commissioner of Correction, supra, 286
Conn. 712–13, 728. To satisfy the prejudice prong, the
petitioner must demonstrate that ‘‘there is a reasonable
probability that, but for appellate counsel’s failure to
raise the issue on appeal, the petitioner would have
prevailed in his direct appeal, i.e., reversal of his convic-
tion or granting of a new trial.’’ Id., 722.
A
The petitioner first claims that Falk provided ineffec-
tive assistance by failing to discuss meaningfully the
issue of judgment modification in his appellate brief.
The petitioner argues that Falk performed deficiently
when he failed to argue in his brief to this court that
‘‘any modification on appeal of the petitioner’s reversed
conviction for robbery in the first degree as an acces-
sory to attempt to commit robbery in the first degree as
an accessory, and any affirmation of the felony murder
conviction based upon such modification, was
improper and would cause undue prejudice to the peti-
tioner, as well as, would deprive the petitioner of the
right to raise a renunciation defense at a new trial
. . . .’’
The habeas court first addressed the modification
issue and found that, ‘‘[a]lthough Attorney Falk did not
raise the modification issue as a separate issue on
appeal, he anticipated that the state would seek a modi-
fication and argued in his brief that the Appellate Court
should not modify the judgment of conviction but
instead should remand for a new jury trial.’’ The habeas
court concluded that ‘‘[t]he record reflects that Attorney
Falk anticipated the modification issue in his appellate
brief, argued against modification and then petitioned
for certification to the Supreme Court on that issue.’’
The petitioner has not demonstrated that these factual
findings of the habeas court were clearly erroneous.
Contrary to the petitioner’s assertions, Falk did mean-
ingfully argue the modification issue before this court
on direct appeal.
The petitioner also asserts that Falk was ineffective
when he failed to argue before this court that a modifica-
tion of the petitioner’s conviction of robbery in the first
degree as an accessory would deprive the petitioner of
the right to raise a renunciation defense at a new trial.
The habeas court found: ‘‘The petitioner provided no
evidence in this case, or at the criminal trial, to support
the theory that he would, or even could, have raised a
renunciation defense. . . . Nothing presented to this
court distinguishes the petitioner’s contentions from
those made during the criminal trial, namely, that he
happened to be present when the offenses occurred
but was not part of a robbery or conspiracy. Based
upon the foregoing, the court concludes that this claim
is unsupported by any evidence.’’
We agree with the habeas court’s conclusion that the
petitioner failed to prove that Falk’s representation on
appeal was deficient. Despite the petitioner’s state-
ments to the contrary, Falk adequately briefed and
argued the modification issue before this court on direct
appeal. As to the petitioner’s renunciation defense argu-
ment, the petitioner has failed to point to evidence in
the record that takes his argument out of the realm of
speculation and makes it a demonstrable reality. See
Johnson v. Commissioner of Correction, supra, 285
Conn. 584. Accordingly, the petitioner’s claim cannot
stand.
B
The petitioner next claims that Falk provided ineffec-
tive assistance by failing to file a reply brief to address
the state’s position, which relied on the cases of State
v. John, 210 Conn. 652, 689, 557 A.2d 93 (holding that
‘‘[a] unanimous verdict of guilty of robbery necessarily
encompasses a unanimous finding that the defendants
had at least attempted to commit robbery’’), cert.
denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50
(1989), and State v. Jones, 193 Conn. 70, 76, 475 A.2d
1087 (1984) (holding that jury could not find that defen-
dant had completed robbery without finding that he
had attempted to commit robbery). The petitioner
argues that the facts of his case were distinguishable
from those in John and Jones, and that Falk did not
subject the state’s reliance on these cases to meaningful
adversarial testing.
The habeas court found that ‘‘[t]he petitioner has not
provided a sufficient record for the court to address
this claim.’’ The petitioner entered Falk’s appellate brief
into evidence at the habeas trial but did not provide
the habeas court with the state’s appellate brief or tran-
scripts of the oral argument before this court. As such,
the habeas court could not determine whether the state
actually relied on John or Jones in its appellate brief
or at oral argument. Additionally, the petitioner did not
prove to the habeas court that Falk failed to file a reply
brief. As the habeas court correctly noted, ‘‘[i]t was the
petitioner’s burden to provide such evidence to support
his claim.’’ We conclude that the record before us from
the habeas court is insufficient to review this claim.
Further, we agree with the habeas court’s conclusion
that the petitioner failed to prove that Falk was ineffec-
tive in failing to file a reply brief to specifically address
the state’s reliance on John and Jones.
C
The petitioner’s final claim is that Falk provided inef-
fective assistance by failing to file a motion for reconsid-
eration. The petitioner argues that Falk should have
filed a motion for reconsideration in order to distinguish
the petitioner’s case from State v. Greene, 274 Conn.
134, 174, 874 A.2d 750 (2005) (modifying conviction for
manslaughter in first degree with firearm as accessory
to reflect conviction for manslaughter in first degree
as accessory), cert. denied, 548 U.S. 926, 126 S. Ct. 2981,
165 L. Ed. 2d 988 (2006); State v. John, supra, 210 Conn.
687; State v. Jones, supra, 193 Conn. 75; State v. Grant,
177 Conn. 140, 148–49, 411 A.2d 917 (1979); and State
v. Ortiz, 71 Conn. App. 865, 881, 804 A.2d 937 (modifying
conviction for robbery in first degree to reflect convic-
tion for robbery in second degree), cert. denied, 261
Conn. 942, 808 A.2d 1136 (2002). The petitioner claims
that he was prejudiced by Falk’s failure to distinguish
these cases from his own because his case ‘‘stands
as the only case in [Connecticut] where a reviewing/
appellate court has ever reversed a conviction due to
insufficiency of evidence and then modified the judg-
ment to reflect a conviction for a lesser included offense
for which the jury had not been instructed on . . . .’’
The petitioner also argues that Falk should have filed
a motion for reconsideration in order to argue that this
court’s ‘‘harmless error analysis regarding the felony
murder conviction was incorrect . . . .’’ As this court
did not engage in a harmless error analysis with respect
to the felony murder conviction in the petitioner’s direct
appeal; see State v. Haywood, supra, 109 Conn. App.
464–66; the exact nature of the petitioner’s claim is
unclear. However, the petitioner argues this issue, and
we construe it, as a claim that Falk should have filed
a motion for reconsideration in order to argue that this
court improperly concluded that modifying the petition-
er’s conviction from robbery in the first degree as an
accessory to attempt to commit robbery in the first
degree as an accessory, and thereby upholding the fel-
ony murder conviction, would not prejudice the peti-
tioner.
We are not persuaded by either of the petitioner’s
arguments. The record demonstrates that, while Falk
did not specifically refer to Greene, John, Jones, Grant,
or Ortiz in his appellate brief, he did argue the modifica-
tion issue, including the fact that the jury had not been
instructed on the lesser included offense, and that modi-
fication of the conviction to the lesser included offense
would therefore prejudice the petitioner. Falk argued
that ‘‘[s]ince the state never charged the [petitioner]
with attempted robbery in the first degree . . . the
judgment as to that count should be reversed and the
case remanded with direction to render judgment of
not guilty of robbery in the first degree.’’ He also argued
that ‘‘[w]ithout the jury being instructed [on criminal
attempt], the [petitioner] did not receive ‘a fair adjudica-
tion of guilt on all the elements of the crime’ of
attempted robbery in the first degree.’’ This court con-
sidered Falk’s arguments and rejected them, deciding
instead to reverse the petitioner’s conviction of robbery
in the first degree as an accessory and modify it to
reflect the lesser included offense of attempt to commit
robbery in the first degree as an accessory, even though
the jury had not been instructed on criminal attempt.
See State v. Haywood, supra, 109 Conn. App. 464–66.
The habeas court found that ‘‘the petitioner has not
provided a proper basis from which the Appellate Court
would have reconsidered its decision.’’ We agree. Essen-
tially, the petitioner claims that Falk should have filed
a motion for reconsideration so that he could make the
same arguments that he previously had made in his
appellate brief. The petitioner’s claim is without merit.
A party’s desire for a second chance to prevail on argu-
ments that this court already has considered and
rejected is not a proper basis for reconsideration. The
petitioner has not presented any evidence that Falk
could have filed a motion for reconsideration that this
court would have granted. As such, we agree with the
habeas court’s conclusion that the petitioner failed to
prove that Falk was ineffective in failing to file a motion
for reconsideration.
In order to succeed on his ineffective assistance of
counsel claims, the petitioner must satisfy both the
performance prong and the prejudice prong of Strick-
land. See Small v. Commissioner of Correction, supra,
286 Conn. 712–13. The petitioner has not demonstrated
that his trial counsel or appellate counsel provided inef-
fective assistance and that he suffered prejudice as a
result. Accordingly, we conclude that the habeas court
properly determined that the petitioner failed to prove
that his trial counsel and appellate counsel were inef-
fective.
The judgment is affirmed.
In this opinion the other judges concurred.
1
On appeal, the petitioner raises a number of claims that were not raised
in his amended habeas petition, briefed to the habeas court, or decided by
the habeas court. These claims were not preserved for appeal and we will
not review them. See Henderson v. Commissioner of Correction, 129 Conn.
App. 188, 198, 19 A.3d 705 (‘‘[a] reviewing court will not consider claims
not raised in the habeas petition or decided by the habeas court’’), cert.
denied, 303 Conn. 901, 31 A.3d 1177 (2011). These claims include the follow-
ing: (1) trial counsel was ineffective in eliciting testimony from Kevin Mori-
arty, a friend of William Brown, the victim of both the robbery and the
murder, that the victim usually had about $1000 in his possession; (2) trial
counsel was ineffective in failing to request a jury charge on renunciation;
(3) appellate counsel was ineffective in failing to argue before this court
on direct appeal that a modification of the petitioner’s conviction of robbery
in the first degree as an accessory to reflect a conviction of a lesser included
offense that the jury was not instructed on would violate the double jeopardy
clause of the United States constitution; and (4) appellate counsel was
ineffective in failing to discuss the issue of judgment modification in the
petition for certification to appeal to our Supreme Court.
2
In his amended petition, the petitioner also alleged prosecutorial impro-
priety. He has not raised any claims regarding the denial of his prosecutorial
impropriety claim before this court.
3
Wright did not testify about the $390 on direct examination by the state.
4
Attorney Donald D. Dakers accompanied Falk on the brief in the petition-
er’s direct appeal and was named in the amended petition for a writ of
habeas corpus. The petitioner, however, fails to argue that Dakers’ represen-
tation was ineffective.