Argued
September 5, 2019
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.
Norman
A. Pattis, with whom, on the brief, was Kevin Smith, for the
appellant (petitioner).
Michele C. Lukban, senior assistant state's attorney,
with whom, on the brief, were Patrick Griffin, state's
attorney, and Rebecca Barry, supervisory assistant
state's attorney, for the appellee (respondent).
Lavine, Prescott and Bear, Js.
OPINION
PRESCOTT, J.
In this
‘‘habeas on a habeas, ''[1] the petitioner,
Thomas Rogers, appeals from the habeas court's judgment
denying his amended petition for a writ of habeas
corpus.[2] On appeal, the petitioner claims that the
habeas court improperly rejected his claim that his trial
counsel, Paul Carty, provided him with ineffective assistance
with respect to whether he should have accepted a plea offer.
The petitioner asserts that, but for the deficient legal
advice he received from his trial counsel, he would have
accepted a thirty-five year plea deal. The petitioner also
claims that the habeas court improperly rejected his claim
that his prior habeas counsel, Frank P. Cannatelli, provided
ineffective assistance by failing to raise this claim in his
first habeas petition. Having reviewed the record, we
conclude that the habeas court properly denied the amended
petition for a writ of habeas corpus, and, accordingly, we
affirm the judgment of the habeas court.
The
following facts and procedural history are relevant to our
disposition of the petitioner's claim. The petitioner
participated in a shooting that occurred on November 20,
1994, that resulted in the death of one of the victims.
State v. Rogers, 50 Conn.App. 467, 469, 718
A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998).
After the shooting, the petitioner, along with Isaac Council
and Larry McCowen, returned to the apartment of the
petitioner's girlfriend and had a conversation in the
living room. Id., 471, 480-81. Council's
girlfriend, Safira McLeod, overheard the postshooting
conversation between the petitioner, Council, and McCowen.
Id., 480-81. From the kitchen, which is where she
was during the conversation, McLeod was unable to hear
everything they were discussing. Id., 481. She did,
however, hear them discuss a shooting, people running, and
someone being hit. Id. During the conversation, the
petitioner, Council, and McCowen were laughing. Id.
McLeod heard the petitioner's voice, but she was unable
to attribute anything said during the conversation to any one
of its participants. Id. Furthermore, McLeod neither
heard the petitioner deny participation in the shooting nor
dispute what Council and McCowen were saying. Id.
The petitioner subsequently was charged with murder,
conspiracy to commit murder, attempt to commit murder,
criminal possession of a firearm, and illegal possession of a
weapon in a motor vehicle.
The
petitioner alleges that his trial counsel assured him that
McLeod's testimony pertaining to the postshooting
conversation would not be admitted into evidence because it
constituted hearsay. He further alleges that trial counsel
did not explain to him that the testimony could be admitted
as an adoptive admission.[3]
The
petitioner, however, also was aware of other parts of
McLeod's potential testimony that were damaging to his
defense and that were not within the scope of his
trial counsel's alleged deficient advice regarding the
testimony's admissibility. The habeas court stated that,
aside from McLeod's recollection of the postshooting
conversation, McLeod's testimony included
‘‘evidence that the petitioner left with Council
and McCowen, dressed as the shooters were attired, in a
vehicle that matched that of the shooters at the time of the
shooting, returned as a group, concealed the vehicle behind a
house and that vehicle contained a spent shell casing . . .
.''
Armed
with this knowledge and advice from his trial counsel, the
petitioner did not accept an offer to plead guilty in
exchange for a thirty-five year sentence and, instead,
requested a disposition in which he would receive a sentence
of twenty years.
Contrary
to his trial counsel's prediction, the trial court
admitted McLeod's testimony pertaining to the
postshooting conversation as an adoptive
admission.[4] At the conclusion of the jury trial, the
petitioner was convicted of all the crimes with which he was
charged. Id., 468. He received a total effective
sentence of sixty years of incarceration.
On
August 31, 2016, the petitioner filed an amended petition for
a writ of habeas corpus. The matter subsequently was tried
before the habeas court, which issued a written memorandum of
decision on July 23, 2018, denying the petition. In that
memorandum of decision, the habeas court stated that the
petitioner abandoned all claims for relief in his amended
petition except for those enumerated in the ninth and tenth
counts.[5] With respect to those counts, the habeas
court stated: ‘‘[T]he petitioner asserts that . .
. Cannatelli provided ineffective assistance by failing to
raise claims in the earlier habeas case that trial counsel .
. . rendered ineffective assistance by inadequately or
incorrectly advising the petitioner, when the petitioner was
considering a plea offer of thirty-five years, concerning the
doctrine of an adoptive admission [and its applicability to
McLeod's testimony pertaining to the postshooting
conversation] and that the petitioner could be convicted as
an accessory to murder if he was not in the vehicle ...