Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Adkins v. Commissioner of Correction

Court of Appeals of Connecticut

October 2, 2018

DENNIS ADKINS
v.
COMMISSIONER OF CORRECTION

          Argued April 10, 2018

         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.

          Michael W. Brown, assigned counsel, for the appellant (petitioner).

          Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Adrienne Russo, assistant state's attorney, for the appellee (respondent).

          Sheldon, Keller and Prescott, Js.

          OPINION

          KELLER, J.

         Following the granting of his petition for certification to appeal, the petitioner, Dennis Adkins, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court improperly rejected his claim that his prior habeas counsel rendered ineffective assistance on the basis that he failed (1) to claim that trial counsel rendered ineffective assistance by failing to advise the petitioner with respect to his right to appeal from the denial of his motion to withdraw his guilty plea, (2) to present evidence in support of the petitioner's claim that his guilty plea was the result of trial counsel's ineffective assistance, and (3) to claim that trial counsel's conflict of interest resulted in the petitioner's guilty plea. We affirm the judgment of the habeas court.

         The following undisputed procedural history is relevant to this appeal. The petitioner was arrested and charged with murder in violation of General Statutes § 53a-54 (a), felony murder in violation of General Statutes § 53a-54c, and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On April 4, 2000, pursuant to a plea agreement with the state, the petitioner pleaded guilty under the Alford doctrine[1] to felony murder in violation of § 53a-54c. The petitioner was represented by Attorney Francis Mandanici.

         The prosecutor set forth the factual basis of the plea, as follows: ‘‘On August 24, 1999, at or about 10:27 p.m., in front of 119 Dewitt Street in New Haven, the victim [in] this case, Rodney Williams, was on the front porch and a person wearing a mask came down the driveway and confronted two people standing in the driveway, one of them a young lady. The person in the mask grabbed the lady's chain from around her neck. She grabbed it back. She and her boyfriend, who were in the driveway, indicated that the person was wearing a mask and had a handgun in his hand. According to witnesses out front, the individual came down the driveway with the mask and confronted the victim in this case, who was standing on the front steps or on the ground near the front steps, confronted the victim with a handgun, and the victim came down off the steps and went toward the assailant and there was a short tussle during which the assailant fired a series of shots, one of which hit the victim, Rodney Williams, in the chest and caused his death.

         ‘‘During the subsequent investigation, a Calvin Hinton . . . was interviewed and indicated that he had been with [the petitioner] earlier that evening. They had talked about robbing the victim in this case and that he saw the [petitioner] with a weapon. The [petitioner], in a subsequent statement, indicated [that] he received the weapon . . . from Hinton. In any event, Hinton indicated that he saw the [petitioner] go to the area where the victim was standing and later saw the [petitioner] run away from the area.

         ‘‘Subsequently, [the petitioner] was interviewed and admitted that he and Hinton had talked about [committing] the robbery, that Hinton had provided him the gun, that he had gone to the area for the purpose of committing a robbery of Williams, who they knew to be a drug dealer, [and] that a struggle ensued and shots were fired from his gun which struck Williams. [The petitioner] indicated that he did not intend to kill him, but that this did occur during the attempted commission of a robbery. Subsequently, after [the petitioner] was arrested and [incarcerated, ] he admitted to an individual in the correctional facility that he was responsible for the shooting and actually detailed the fact that it occurred during the commission of an attempted robbery.''

         The prosecutor set forth the details of the plea agreement. The petitioner was to serve a thirty-five year term of incarceration and the state agreed to enter a nolle prosequi with respect to additional charges. Additionally, the state agreed not to bring charges against the petitioner for what it considered to be efforts made by him to seek retribution against a witness. The trial court, Fasano, J., thoroughly canvassed the petitioner. After finding that the plea was made knowingly and voluntarily, the court accepted the plea and entered a finding of guilt.

         The petitioner returned before the court, Fasano, J., on May 26, 2000, for sentencing. At the hearing, Mandanici indicated that, although he was unaware of any legal grounds for the request, the petitioner indicated to him that he wanted to withdraw his plea. The court observed that there was a reference to the petitioner's request in the presentence investigation report and that it had received a correspondence from the petitioner in which he requested to withdraw his plea. The petitioner addressed the court personally with respect to his request, indicating that he was not satisfied with Mandanici's representation, Mandanici was aware that he did not commit the crime, the evidence that he had confessed to the crime was ‘‘bull shit, '' and he believed that he was entitled to ‘‘a lesser charge.'' The petitioner stated that he was ‘‘not pleading out to no murder.'' The court replied that the petitioner already had pleaded guilty under the Alford doctrine, that the petitioner had been canvassed thoroughly, and that the petitioner had not presented the court with a basis on which to permit him to withdraw his guilty plea.[2] Thereafter, the court sentenced the petitioner in accordance with the plea agreement that he had reached with the state.

         In 2003, in a prior habeas corpus action, the petitioner filed an amended petition for a writ of habeas corpus in which he alleged that Mandanici had rendered ineffective assistance and, because of this violation of his constitutional rights, he should be permitted to withdraw his guilty plea. Also, relying on what he characterized as newly discovered evidence, the petitioner alleged that he was actually innocent. With respect to his ineffective assistance of counsel claim, the petitioner alleged that Mandanici had failed to conduct a proper pretrial investigation, failed to devote sufficient time to his defense, and failed to withdraw from his representation of the petitioner.

         During the prior habeas action, the petitioner was represented by Attorney Brian Russell. Following a hearing, the court, Fuger, J., concluded that the petitioner had failed to demonstrate that Mandanici had performed deficiently and that even if such a showing had been made, the petitioner had failed to demonstrate that he suffered any prejudice as a result of Mandanici's acts or omissions. In its memorandum of decision, the court observed that there were two witnesses to the murder committed by the petitioner and that the petitioner had provided a confession to the police in which he revealed his role as the shooter. The court then stated: ‘‘[T]he petitioner now asserts that he was under the influence of illegal drugs at the time he made the statement [to the police], that the statement is false and that he only did it because he did not want to be labeled a ‘snitch.' However, these assertions are not worthy of belief. Insofar as being under the influence of drugs at the time the statement was made, there are two factors that undermine the credibility of this assertion. First, the petitioner was arrested at about 10 a.m. on September 23, 1999. The statement was taken between 7:46 p.m. and 8:17 p.m. on that day. According to the petitioner, he ran from the police and swallowed some unspecified amount of crack cocaine that he had on him. There has been no evidence presented to this habeas court that would allow the court to conclude that a person who had ingested cocaine would still be under the influence of that drug nearly ten hours later. Significantly, there has been no evidence adduced to allow this court to conclude what, if anything, the ingestion of cocaine might do to a person's cognitive abilities. However, it is more or less colloquially known that the effects of cocaine are relatively short lived. Second, the testimony of Detective Sergeant [Joanne] Schaller, who coincidentally has training as an EMT paramedic, is clear that the petitioner was not exhibiting any outward signs of drug intoxication, nor did he complain of any illness or impairment. Moreover, there is some evidence that the idea to argue intoxication as a means to invalidate the confession originated with another inmate, Jason Reese. All of this leads this court to conclude that the petitioner's statement attacking his confession is self-serving and unworthy of belief.'' (Footnote omitted.)

         Moreover, the court rejected the petitioner's claim of actual innocence, noting that the petitioner had failed to submit to the court ‘‘anything even remotely resembling newly discovered evidence.'' Consequently, the court denied the amended petition for a writ of habeas corpus. This court affirmed the judgment of the habeas court. Adkins v. Commissioner of Correction, 88 Conn.App. 901, 869 A.2d 279 (2005), cert. denied, 281 Conn. 906, 916 A.2d 48 (2007).

         In May, 2016, the petitioner, represented by counsel, filed a third amended petition for a writ of habeas corpus in the habeas corpus action that underlies the present appeal. The amended petition set forth three counts. In count one, the petitioner alleged that Mandanici deprived him of his right to effective representation by failing to advise him with respect to his right to appeal from the trial court's denial of his oral motion to withdraw his guilty plea. He argued that he did not have a full and fair opportunity to raise this claim in his prior habeas action.

         In count two, the petitioner alleged that Mandanici deprived him of his right to conflict free representation at trial because on February 19, 2000, prior to the date of his plea, he filed a grievance complaint against Mandanici.[3] The petitioner alleged that the filing of the complaint ‘‘completed a total and complete breakdown in the attorney-client relationship'' between him and Mandanici. He argued that his defense ‘‘was adversely affected by [Mandanici's] actual conflict of interest'' because Mandanici failed to communicate with him, failed to investigate the allegations against him, failed to zealously advocate for him during plea negotiations, and failed to advise him with respect to his right to appeal from the trial court's denial of his oral motion to withdraw his guilty plea. The petitioner alleged that he was prejudiced in that he received a harsher sentence than he would have received following a trial or an adequate plea bargaining process. The petitioner alleged that he did not have a full and fair opportunity to present this claim in his prior habeas action.

         In count three, the petitioner alleged that Russell had deprived him of his right to the effective assistance of counsel during the prior habeas action by failing ‘‘to plead and present evidence and argument'' in support of the claims set forth in counts one and two. The petitioner argued that there was a reasonable probability that, but for Russell's deficient performance, the result of the petitioner's prior habeas action would have been favorable to him.

         With respect to the substantive allegations in the amended petition, the respondent, the Commissioner of Correction, generally left the petitioner to his proof. With respect to claims one and two, the respondent alleged as a special defense that, to the extent that the petitioner intended to raise these claims as freestanding claims against trial counsel, they were successive and should be dismissed. Additionally, with respect to claim one, the respondent alleged that, absent a showing that the Appellate Court denied a motion seeking permission to file a late appeal from the trial court's denial of the petitioner's motion to withdraw his guilty plea, the petitioner's claim related to his right to appeal was not ripe. Also, with respect to claim two, the respondent alleged as a special defense that the allegations set forth in claim two were barred by res judicata and collateral estoppel because they were raised, litigated, and resolved against the petitioner in the prior habeas action. Moreover, the respondent alleged that claim two should be dismissed because it constituted a legally noncognizable claimof‘‘cumulative'' error by trial counsel. Also, the respondent argued that the petitioner was defaulted from litigating the allegations in claim two because his conflict with Mandanici was the basis for his motion to withdraw his guilty plea and, although he had the opportunity to do so, he failed to appeal from the trial court's denial of the motion to withdraw the guilty plea. The respondent alleged that the petitioner failed to satisfy the cause and prejudice standard to excuse the default.

         In his reply to the return, the petitioner alleged that claims one and two were not barred by the successive petition doctrine because, due to Russell's ineffective representation during the prior habeas action, he was deprived of a full and fair opportunity to litigate these claims in that action. With respect to claim one, the petitioner alleged that his claim related to his right to appeal was ripe for adjudication.[4] With respect to claim two, the petitioner alleged that the doctrines of collateral estoppel and res judicata did not apply because the issues involved had not been litigated in a prior proceeding. Also, the petitioner alleged that claim two was not pleaded in a legally deficient manner. Finally, the petitioner alleged that any procedural default with respect to claim two was the result of the ineffective assistance of counsel.

         The court, Sferrazza, J., held a trial over the course of two days, September 1 and October 25, 2016. Among the evidence presented, the court heard testimony from Mandanici, Russell, and the petitioner.

         On December 7, 2016, the court rendered judgment denying the amended petition for a writ of habeas corpus. In its thorough memorandum of decision, the court dismissed the first and second counts of the petition under Practice Book § 23-29 (3) because they presented the same ground for relief, namely, ineffective representation by Mandanici, that Judge Fuger had considered and denied in the prior habeas action. The court, however, observed that, in the present action, the petitioner had the right to assert that Russell had rendered ineffective representation in the prior habeas action by failing to claim that Mandanici rendered ineffective representation because Russell failed to raise the newly raised claims on which the petitioner presently relies. These claims are that Mandanici failed to advise him with respect to his right to appeal from the trial court's denial of his motion to withdraw his guilty plea and that, because the petitioner filed a grievance complaint against Mandanici prior to the date of the plea, Mandanici had a conflict of interest during his representation of the petitioner. The court proceeded to analyze the merits of both of the petitioner's claims of ineffective assistance by Russell. After concluding that neither claim had merit, it denied the habeas petition.[5] Thereafter, the court granted the petitioner's petition for certification to appeal. This appeal followed. Additional facts will be discussed as necessary.

         Before turning to the petitioner's claims, we set forth basic principles governing the present appeal. ‘‘The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a habeas on a habeas, was approved by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). In Lozada, the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296 (a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition. . . . In Lozada, the court explained that [t]o succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. Lozada v. Warden, supra, 223 Conn. 842. As to each of those inquiries, the petitioner is required to satisfy the familiar two-pronged test set forth in Strickland v. Washington, [466 U.S. 668');">466 U.S. 668, 687, 104 S.Ct. 2052, 80L.Ed.2d(1984)]. First, the [petitioner] must show that counsel's performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Lozada v. Warden, supra, 223 Conn. 842-43. In other words, a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice . . . .

         ‘‘In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. . . . Judicial scrutiny of counsel's performance must be highly deferential and courts 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. . . . [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; [but] strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . With respect to the prejudice prong, the petitioner must establish that if he had received effective representation by habeas counsel, there is a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . .

         ‘‘It is well settled that in reviewing the denial of a habeas petition alleging the ineffective assistance of counsel, [t]his court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.'' (Citations omitted; internal quotation marks omitted.) Gerald W. v. Commissioner of Correction, 169 Conn.App. 456, 463-65, 150 A.3d 729 (2016), cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017); see also Toccaline v. Commissioner of Correction, 177 Conn.App. 480, 499, 172 A.3d 821 (describing petitioner's burden as ‘‘herculean task''), cert. denied, 327 Conn. 986, 175 A.3d 45 (2017).

         I

         First, the petitioner claims that the court improperly rejected his claim that Russell rendered ineffective assistance in the prior habeas action in that he failed to claim that Mandanici rendered ineffective assistance by failing to advise the petitioner with respect to his right to appeal from the denial of his motion to withdraw his guilty plea. We disagree.

         The court analyzed this claim, in relevant part, as follows: ‘‘Between plea and sentencing, on May 26, 2000, the petitioner expressed his desire to withdraw his guilty plea to both Attorney Mandanici and the trial judge in the presentence investigation report . . . and other material sent directly to the court by the petitioner.

         ‘‘Before imposing sentence, the trial judge heard the parties' positions on this request. Attorney Mandanici candidly acknowledged that he knew of no legal basis to grant the petitioner's request. Attorney Mandanici related that the petitioner never articulated to him any reason to withdraw the guilty plea except that the petitioner experienced a change of heart.

         ‘‘The trial judge inquired of the petitioner as to why he should permit the petitioner to withdraw his guilty plea. The petitioner responded by disavowing any knowledge that he pleaded guilty to murder rather than a lesser offense and by repudiating his confessions to the police and admissions to others. The trial court found that no ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.