Davis v. Commissioner of Correction
Davis v. Commissioner of Correction
Opinion of the Court
Opinion
The petitioner, Travis Davis, appeals following the habeas court’s granting of his petition for certification to appeal from its judgment denying his amended second petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his claim of ineffective assistance of habeas counsel in his first habeas proceeding and improperly concluded that the petitioner failed to prove that the state suppressed evidence favorable to him at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We affirm the judgment of the habeas court.
The petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of trial counsel that was decided on February 24, 2000.
On April 30, 2010, the petitioner filed a second amended petition for a writ of habeas corpus (second habeas petition) alleging ineffective assistance of trial counsel, ineffective assistance of habeas counsel, a violation of his due process rights due to the alleged suppression of evidence and a violation of his due process rights due to the alleged destruction of potentially exculpatory evidence. On May 3, 2010, the state filed a pretrial motion to dismiss the counts alleging ineffective assistance of trial counsel, ineffective assistance of habeas counsel and the due process violation arising from the alleged destruction of potentially exculpatory evidence. During the second habeas trial, the court granted the state’s motion to dismiss as to the count
On appeal, the petitioner claims that that second habeas court improperly rejected his claim of ineffective assistance of habeas counsel in the first habeas proceeding
I
INEFFECTIVE ASSISTANCE OF HABEAS COUNSEL
The petitioner fust claims that the second habeas court improperly rejected his claim of ineffective assistance of his habeas counsel in his first habeas proceeding. Specifically, the petitioner claims that he was
“We set forth the appropriate standard of review for a challenge to a denial of a petition for a writ of habeas corpus when certification to appeal is granted. The conclusions reached by the [habeas] court in its decision to [deny a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. ... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous .... [0]ur 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. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Citation omitted; internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn. App. 291, 294, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011).
“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he
“[When] apphed to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. . . . [T]he petitioner will have to prove that [his] prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial
“A convicted [petitioner’s] claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the [petitioner] must show that counsel’s performance was deficient.
The petitioner argues that Rigat provided deficient performance at the petitioner’s first habeas proceeding because he failed to conduct an adequate pretrial investigation and was unprepared for trial. We are not persuaded.
At the May, 2010 habeas trial, the petitioner presented the testimony of Rigat, who testified about his general practices for preparing for habeas trials and his preparation for the petitioner’s first habeas proceeding. Rigat testified that it was his practice to acquire the trial counsel's case file, that he had his staff meet with the petitioner about the petitioner’s case and that he subpoenaed police officers associated with the petitioner’s arrest as witnesses for the first habeas proceeding. The petitioner testified that he did not meet with Rigat until the first day of his first habeas proceeding but that he spoke to Rigat on the telephone and that a paralegal and an attorney from Rigat’s office had visited him.
In its memorandum of decision, the second habeas court noted that Rigat “testified quite clearly that he was indeed prepared and the petitioner did not present any evidence that could lead the court to conclude otherwise.” The second habeas court found that Rigat
II
ALLEGED BRADY VIOLATION
The petitioner next claims that the second habeas court improperly concluded that he failed to prove that the state suppressed evidence favorable to him at his criminal trial in violation of Brady v. Maryland, supra, 373 U.S. 87, and Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). Specifically, the petitioner argues that the state suppressed New Haven police Officer Robert Benson’s report, which was exculpatory, or at least favorable to him, because it stated that no fingerprints were found on the gun that the petitioner allegedly possessed at the time of his arrest. The crux of the petitioner’s argument is that because no fingerprints were found on the gun, the result of the trial would have been different if he had been in possession of Benson’s report and was able, therefore, to use the information to support his theory that the police had planted the gun on him.
“The United States Supreme Court has held that the suppression by the prosecution of evidence favorable
“Impeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused.” (Internal quotation marks omitted.) Id., 487. “The test of materiality of nondisclosed exculpatory evidence requires that there be a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . [W]here there is no reasonable probability that disclosure of the exculpatory evidence would have affected the outcome, there is no constitutional violation under Brady.” (Internal quotation marks omitted.) Quintana v. Commissioner of Correction, supra, 55 Conn. App. 438. “Courts have found that improperly withheld impeachment evidence is not material where the testimony of the witness who might have been impeached
The petitioner argues that the second habeas court improperly concluded that he failed to prove that the state suppressed Benson’s report, which was favorable to him in that it demonstrated that no fingerprints were found on the gun that the petitioner allegedly possessed at the time of his arrest. We are not persuaded.
At the petitioner’s second habeas trial, the petitioner’s trial counsel testified that four police officers had testified at the petitioner’s criminal trial that they saw the petitioner with a gun at the time of his arrest. Rigat testified that several witnesses had testified at the petitioner’s criminal trial that the petitioner had possessed a gun at the time of his arrest. Rigat further testified that “the fact that there would be no prints on a gun doesn’t mean that the suspect didn’t possess the gun, so that’s actually kind of well known among most criminal lawyers.” In its memorandum of decision denying the second habeas petition, the second habeas court found that “the evidence allegedly suppressed by the state was not favorable to [the petitioner] and cannot, therefore, be classified as Brady material.” Furthermore, the court found that “[t]he fact that the weapon found at the scene of the shooting did not have any fingerprints is not in and of itself exculpatory . . . .” See, e.g., State v. Turner, 62 Conn. App. 376, 391, 771 A.2d 206 (2001) (because state based its case exclusively on eyewitness evidence of defendant’s dominion and control over firearm, namely, that officers observed defendant carrying gun, lack of fingerprints on gun not relevant to charges).
The judgment is affirmed.
In this opinion the other judges concurred.
Although not provided in the record, we take judicial notice of the first habeas court’s memorandum of decision published on February 24, 2000, Davis v. Commissioner of Correction, Superior Court, judicial district of Hartford, Docket No. CV-97-05773370 (February 24, 2000).
The petitioner advances two distinct claims of ineffective assistance of habeas counsel. One of these claims is that his standby counsel, who was appointed after the petitioner opted to represent himself, failed to assist the petitioner in obtaining the services of an independent forensic expert, despite representing to the habeas court that he would provide the petitioner with such assistance. At oral argument before this court, the petitioner conceded, inter alia, that there exists no constitutional right to the effective assistance of standby counsel and that the habeas court did not address this claim in its memorandum of decision. See State v. Guitard, 61 Conn. App. 631, 635, 765 A.2d 30 (“[A] defendant does not have a state or federal constitutional right to standby counsel. . . . Once a defendant has properly embarked on the path of self-representation, his constitutional right to counsel ceases. . . . [A]fter deciding to proceed pro se, he ha[s] no constitutional right to the effective assistance of counsel in any capacity. ” [Citation omitted; internal quotation marks omitted.]), cert. denied, 255 Conn. 952, 770 A.2d 32 (2001). Because the petitioner concedes that there was no basis on which the second habeas court could have ruled in his favor on this specific claim
The testimony in the second habeas trial concerning the petitioner’s possession of a firearm is consistent with the eyewitness testimony at his criminal trial. As previously noted, in the petitioner’s direct appeal from his conviction, this court set forth some of the facts that reasonably could have been found by the jury as follows: “On March 8,1994, the New Haven police department was informed that the [petitioner], for whom the department had an outstanding arrest warrant, was standing at the comer of Chapel
Reference
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- TRAVIS DAVIS v. COMMISSIONER OF CORRECTION
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