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Rogers v. Warden

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

September 29, 2015

Anthony Rogers #288194
v.
Warden

MEMORANDUM OF DECISION

Hon. Vernon D. Oliver, J.

The petitioner, Anthony Rogers, initiated this petition for a writ of habeas corpus, claiming that his underlying criminal counsel provided him ineffective legal representation. He also asserts his actual innocence. He further claims Brady, prosecutorial misconduct and due process violations. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The court finds the issues for the respondent and denies the petition.

I

Procedural History

In the criminal matter State v. Anthony Rogers, CR06-107614, in the Norwalk Judicial District, the petitioner was charged with attempted Assault first degree, in violation of Connecticut General Statutes § 53a-59(a)(5) and Carrying a Pistol without a Permit, in violation of General Statutes § 29-35(a). In docket CR06-113852, the petitioner was charged with Murder, in violation of General Statutes § 53a-54a(a) and conspiracy to commit Murder, in violation of General Statutes § 53a-48(a) and 53a-54a(a). Prior to trial, the State's motion to join the informations for trial was granted by the Court, Comerford, J. At his jury trial, the petitioner was represented by attorney John Walkley. After being convicted on all charges, the petitioner received a total effective sentence of seventy-one years to serve. The petitioner appealed the conviction, and in affirming the judgment the Appellate Court made the following findings of fact. State v. Rogers, 123 Conn.App. 848, 3 A.3d 194, cert. denied, 299 Conn. 906, 10 A.3d 524 (2010).

The jury reasonably could have found the following facts. In December 2004, the defendant, a drug dealer, asked his girlfriend, Latoya Boyd, to purchase a six-pistol gun case for him because he needed a place to store the guns he needed for protection. Boyd bought the gun case and gave it to the defendant with a note stating, " Merry X-mas baby." The defendant put his guns in the case, created combinations for the locks and gave the combinations to Boyd. A .25 caliber Beretta and a nine millimeter Glock handgun were in the defendant's gun case, among others.
At approximately 10 p.m. on January 12, 2005, the defendant entered a bodega at 42 Woodward Avenue in Norwalk. Alicea Castro, who owns the bodega with her husband, D'anicio Castro, and Abraham Vargas, a customer, were in the bodega when the defendant entered and began to argue with Vargas. Vargas was so intoxicated that he had to support himself on a newspaper stand. Castro told the defendant to leave. The defendant left but returned immediately, pointed a .25 caliber handgun at Vargas and fired it. The bullet did not hit Vargas, and the defendant fled. Alicea Castro called the police and identified the defendant from a photographic array as the person who shot at Vargas.
As he was sweeping the floor in the bodega the next morning, Francisco Valez found a spent shell casing, which he gave to the Castros. D'anicio Castro gave the shell casing to the Norwalk police, which, in turn, sent it to the department of public safety's scientific services division for forensic examination. On that same day the defendant told Boyd and his friend, Joshua Huckabee, that he shot off Vargas' hat because Vargas came at him with a knife. Alicea Castro, however, never saw Vargas with a knife.
The Norwalk police obtained a warrant to search the apartment that the defendant shared with Boyd, their motor vehicle and the home of the defendant's parents. Only Boyd was in the apartment when the police executed the warrant on February 18, 2005. In the apartment, the police found marijuana, cocaine and an inordinate number of small plastic bags, the type typically used by drug dealers to package drugs for sale, and more than $3, 000. The police found the defendant in his motor vehicle and seized a firearm he had concealed on his person. In the defendant's room in his parents' home, the police found $10, 415 and marijuana. The defendant and Boyd were arrested and charged with narcotics and drug violations. They posted bond and were released.
On April 9, 2005, just before 11 p.m., the defendant was near the bodega when he saw Jaime Cubillos leave the bodega. Cubillos was a Hispanic man who resembled Vargas, and, in the dark, the defendant mistook him for Vargas. The defendant followed Cubillos to Larsen Street where he shot Cubillos in the head, killing him instantly. The defendant fled the scene and had his mother drive him to his aunt's house in Bridgeport. When Boyd picked up the defendant at his aunt's house, he told Boyd that he had shot " the Spanish guy" from the bodega on Larsen Street. The next day the defendant also told Huckabee that he had shot " the Mexican guy" on Larsen Street because he thought the man was Vargas.
Kevin Brown, who lived on Larsen Street, left his house shortly after 11 p.m. on April 9, 2005, and saw Cubillos' body lying in the street in a pool of blood. Brown alerted the Norwalk police, who arrived along with medical personnel who pronounced Cubillos dead. The police found a single spent shell casing twelve to fifteen feet from Cubillos' body. During the autopsy of Cubillos, associate medical examiner Malka B. Shah, a pathologist, removed fragments of the bullet and shell casing from Cubillos' skull and brain and gave them to a Norwalk police detective. The fragments were sent to the department of public safety for testing.
Alicea Castro and D'anicio Castro raised money to return Cubillos' body to his native country by putting photographs of Cubillos on collection cans they placed in their bodega. When the defendant saw the photograph of Cubillos, he told Boyd that he had shot the " wrong guy" because Cubillos was not the name of the man identified in the police report that the defendant had received in connection with the Vargas incident. The defendant stated, " fuck it, anyway." The defendant also told Huckabee that he had killed the " wrong guy."
On May 27, 2005, the defendant and Boyd appeared in court on the charges related to their February 18, 2005 drug arrests. When assistant state's attorney Michael A. DeJoseph called the case, an altercation occurred between him and the defendant. The court found the defendant in contempt and sentenced him to thirty days in jail. Thereafter, the defendant instructed Boyd to give his gun case to Huckabee. In addition to the gun case, Boyd gave Huckabee a handgun and a long rifle, which Huckabee put under his bed in the attic of his house.
The defendant served his thirty-day contempt sentence in the Bridgeport correctional facility, where he shared a cell with Barry Bersek. The defendant was irate about the incident involving DeJoseph. He told Bersek that he was going to kill DeJoseph and that he knew DeJoseph's jogging routes. Given the defendant's willingness to commit murder, Bersek, an admitted con man, saw the defendant as his " get out of jail ticket." To that end, Bersek fabricated a plan under which the defendant would agree to commit a crime. Before the crime was committed, however, Bersek intended to report the planned crime to the police in return for a possible reduction in the amount of time he had to serve in jail.
In carrying out his scheme, Bersek first gained the defendant's trust by telling him about the crimes he himself had committed. Bersek told the defendant that he was a compulsive gambler who stole personalty and then sold it to Mafia " wise guys . . ." The defendant let Bersek know that he was not making enough money selling drugs and was looking for a way to make more money. The defendant also told Bersek that he had five or six guns. In response, Bersek informed the defendant that he knew members of the Mafia who were looking for a hit man and suggested that the defendant become a Mafia hit man. The defendant told Bersek that he had killed people in the past. Bersek continued to con the defendant by telling him that Mafia rivals were taking over different gambling territories and needed people killed right away, and that the defendant could make $75, 000 if he committed the murders. The defendant was unaware that the gambling ring and Mafia rivals were fictitious. The defendant, believing that he would be released from jail in thirty days, agreed to meet Bersek with the guns in Grand Central Station in New York City. The defendant gave Bersek his mother's telephone number so that they could contact each other when the defendant was released from jail. Bersek intended to inform the police of the plan and to have the defendant arrested at Grand Central Station.
Bersek was released from jail before the defendant, and he informed Norwalk police Sergeant Arthur Weisgerber of the defendant's plan to murder the fictitious Mafia rivals. Before he was released from jail, however, the defendant was taken into custody by federal authorities on gun possession charges arising out of the February 18, 2005 search. Bersek therefore revised the plan he made with the defendant from having the defendant commit murder to supplying the guns to be used by others to commit murder. After enlisting the help of the Norwalk police, Bersek communicated with the defendant's mother and eventually with Boyd.
When he heard of the revised plan, the defendant wanted his guns to be used to commit the Mafia murders. The defendant agreed to sell his guns because Bersek told him that he would be paid well for them. The defendant told Boyd that he wanted to be paid at least $25, 000 for the sale of the first gun. In preparation for the sale, the defendant instructed Boyd not to touch the gun to avoid leaving any fingerprints on it, get the money from Bersek up front, use a different telephone each time she spoke to Bersek, make Bersek open his shirt when she met him to ensure that he was not wearing a recording device, take the bullets out of the gun before handing it to Bersek and take the defendant's sister with her for protection.
To sell the first gun, Boyd told Huckabee that she needed one of the guns he was holding for the defendant. Huckabee gave her a nine millimeter handgun. Boyd put the gun in a bag and met Bersek at a parking lot in Norwalk on October 7, 2005. Bersek was accompanied by a man he introduced as " Sonny, " one of the Mafia " guys" from New York who wanted to buy a gun to commit a murder. " Sonny, " however, was special agent James Sullivan of the Federal Bureau of Alcohol, Tobacco and Firearms. " Sonny" gave Boyd $200 for the gun, explaining that that sum was a good faith showing that Boyd and the defendant would get the rest of the money after the murders were committed. " Sonny" wanted to buy another gun, but Boyd told him that she would have to ask the defendant. When she spoke to the defendant, he scolded Boyd for not getting all of the $25, 000 up front but agreed to sell another one of his guns.
Boyd sold " Sonny" a second handgun on October 13, 2005, after she got a .25 caliber pistol from the gun case Huckabee was keeping for the defendant. Boyd met Bersek and " Sonny" at the Interstate 95 rest stop in Darien. When " Sonny" got into Boyd's automobile, she told him that the gun was loaded and ready to use. When " Sonny" told her that he was going to use the gun to commit murder, Boyd told him to " just put it right behind his head when you use it and it will work fine." " Sonny" gave Boyd $100, and she gave him the .25 caliber handgun.
On November 28, 2005, agents from the Federal Bureau of Alcohol, Tobacco and Firearms informed Boyd that she had sold the guns to an undercover officer. Boyd agreed to cooperate with the investigation and told the agents about the gun case stored at Huckabee's house. She also gave the agents the combination to the locks. The agents searched Huckabee's house and found the gun case under his bed. Inside the gun case, the agents ...

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