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Rogers v. Commissioner of Correction

Court of Appeals of Connecticut

November 12, 2019

THOMAS ROGERS
v.
COMMISSIONER OF CORRECTION

          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 ...


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