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Stanley v. Commissioner of Correction

Appellate Court of Connecticut

March 29, 2016

KEVIN STANLEY
v.
COMMISSIONER OF CORRECTION

         Argued February 8, 2016.

          Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Oliver, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court.

          SYLLABUS

         The petitioner, who had been convicted of murder in connection with the shooting death of the victim, sought habeas relief by commencing his fourth habeas action, claiming in his amended petition for a writ of habeas corpus that he had received ineffective assistance from the various counsel who had represented him in his prior habeas actions. The petitioner alleged that his habeas counsel had rendered ineffective assistance by, inter alia, failing to allege that his trial counsel had rendered ineffective assistance by failing to procure for his criminal trial certain allegedly exculpatory testimony of a witness, M, who the petitioner claimed would have testified that he was not present at the scene when the shooting occurred. The petitioner claimed that M's testimony would have rebutted the identification of the petitioner as the shooter by an eyewitness to the shooting, C, who had testified at the trial. At the hearing on the petitioner's amended petition, M testified as to the events at the time of the shooting, including that the petitioner was not present at that time. The habeas court expressly did not credit M's testimony, and found that, even if the court were to have credited M's testimony, it likely would not have made a difference on the outcome of the trial. The habeas court therefore denied the petition, concluding that because the petitioner could not establish prejudice with respect to his trial counsel's performance, he accordingly failed to establish prejudice as to the performances of his prior habeas counsel. Thereafter, the petitioner, on the granting of certification, appealed to this court. Held that the habeas court properly denied the petitioner's amended petition for a writ of habeas corpus, the petitioner not having met his burden of establishing any ineffective assistance on the part of his prior habeas counsel, as the petitioner failed to demonstrate that his trial counsel rendered ineffective assistance at his criminal trial by not procuring M's allegedly exculpatory testimony: in light of the habeas court's finding that M's testimony was not credible, the petitioner failed to establish both the ineffective assistance of his trial counsel and his habeas counsel, as the allegations against all of them pertained to his trial counsel's failure to procure M's testimony; moreover, the habeas court properly determined that M's testimony likely would not have made a difference on the outcome of the trial, as M testified that he was not present at the scene when the shooting occurred, and, therefore, his testimony shed little light on whether the petitioner shot the victim, it did not undermine the eyewitness testimony of C, and it had no bearing on the testimony of another eyewitness, who also was present during the shooting; accordingly, the petitioner failed to establish prejudice with respect to the assistance rendered by either his trial counsel or his habeas counsel.

         Justine F. Miller, assigned counsel, for the appellant (petitioner).

         Matthew R. Kalthoff, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Rebecca A. Barry, assistant state's attorney, for the appellee (respondent).

         Gruendel, Prescott and Mullins, Js.[*] GRUENDEL, J. In this opinion the other judges concurred.

          OPINION

          [164 Conn.App. 246] 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 contends 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 legislature 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 [164 Conn.App. 247] intersection in order to determine who was responsible for the broken window.

         " They drove back to the intersection of Dixwell Avenue 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 laundromat 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 Dixwell Avenue in an apartment directly over the laundromat 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 [petitioner]. 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 laundromat. 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 [164 Conn.App. 248] running around the corner onto Argyle Street. Following 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 ...


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