JANET BOND ARTERTON, District Judge.
The petitioner, Eric Amado, an inmate currently confined at the Garner Correctional Institution in Newtown, Connecticut, brings this action pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his 1993 Connecticut conviction for felony murder, intentional murder and capital felony. For the reasons that follow, the petition is denied.
The federal court will entertain a petition for writ of habeas corpus challenging a state court conviction only if the petitioner claims that his custody violates the Constitution or federal laws. 28 U.S.C. § 2254(a). A claim that a state conviction was obtained in violation of state law is not cognizable in the federal court. See Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Section 2254(d) "imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010) (citations and internal quotation marks omitted). A federal court cannot grant a petition for a writ of habeas corpus filed by a person in state custody with regard to any claim that was rejected on the merits by the state court unless the adjudication of the claim in state court either:
28 U.S.C. § 2254(d). Clearly established federal law is found in holdings, not dicta, of the Supreme Court at the time of the state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006). The law may be a generalized standard or a bright-line rule intended to apply the standard in a particular context. Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909 (2002).
A decision is "contrary to" clearly established federal law where the state court applies a rule different from that set forth by the Supreme Court or if it decides a case differently than the Supreme Court on essentially the same facts. Bell v. Cone, 535 U.S. 685, 694 (2002). A state court unreasonably applies Supreme Court law when the court has correctly identified the governing law, but unreasonably applies that law to the facts of the case, or refuses to extend a legal principle clearly established by the Supreme Court to circumstances intended to be encompassed by the principle. See Davis v. Grant, 532 F.3d 132, 140 (2d Cir. 2008), cert. denied, 555 U.S. 1176 (2009). The state court decision must be more than incorrect; it also must be objectively unreasonable which is a substantially higher standard. See Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
When reviewing a habeas petition, the federal court presumes that the factual determinations of the state court are correct. The petitioner has the burden of rebutting that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011) (standard for evaluating state-court rulings where constitutional claims have been considered on the merits and which affords state-court rulings the benefit of the doubt is highly deferential and difficult for petitioner to meet). In addition, the federal court's review under section 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. See id.
In 1992, police officials in Georgia arrested the petitioner as a fugitive from justice in connection with an attempted robbery and murders that had occurred on October 18, 1990 in Bridgeport, Connecticut. In December 1992, Georgia officials returned the petitioner to Bridgeport to stand trial on charges of capital felony, murder and felony murder. See State v. Amado, 42 Conn.App. 348, 355, 680 A.2d 974, 977 (1996). On November 1, 1993, in the Connecticut Superior Court for the Judicial District of Fairfield at Bridgeport, a jury convicted the petitioner of two counts of murder in violation of Connecticut General Statutes §§ 53a-54a, two counts of Felony Murder in violation of Connecticut General Statutes § 53a-54c, and one count of capital felony in violation of Connecticut General Statutes § 53a-54b. (See Resp't's Mem., App. B at 3-4.) On December 10, 1993, a judge sentenced the petitioner to life without the possibility of release pursuant to Connecticut General Statutes § 53a-35 on the capital felony count. The judge did not sentence the petitioner on the murder and felony murder counts because he determined that those counts had merged into the capital felony count. (See id. at 4.)
The petitioner appealed his conviction on the ground that the trial judge's instruction on the law of self-defense was deficient in a number of ways. See Amado, 42 Conn. App. at 350, 680 A.2d at 975. On July 30, 1996, the Connecticut Appellate Court concluded that the trial judge had properly instructed the jury that self-defense was not available as a defense to felony-murder and affirmed the judgment of conviction as to all counts. See id. at 363, 680 A.2d at 981.
The petitioner appealed to the Connecticut Supreme Court on three grounds. The petitioner argued that two felony murders could not form the basis for capital felony, the judge's instructions on self-defense relating to the intentional murder counts were erroneous and the judge's improperly concluded that self-defense cannot be a defense to felony murder. (See Resp't's Mem., App. F.) On July 16, 1997, the Connecticut Supreme Court granted the petition for certification to appeal the Appellate Court's decision and remanded the case to the Appellate Court in light of the decision in State v. Johnson, 241 Conn. 702, 699 A.2d 57 (1997) (rejecting state's claim that convictions for felony murder can serve as predicates for capital felony conviction). See State v. Amado, 242 Conn. 906, 697 A.2d 368 (1997). On February 16, 1998, the Connecticut Appellate Court affirmed the judgment of conviction as to the felony murder counts, reversed the judgments of conviction on the intentional murder and capital felony counts and remanded the case back to the trial court for a new trial on the intentional murder and capital felony counts. See State v. Amado, 50 Conn.App. 607. 719 A.2d 45 (1998).
Both the petitioner and State of Connecticut submitted petitions for certification to appeal the decision of the Connecticut Appellate Court. See State v. Amado, 247 Conn. 953, 723 A.2d 811 (1999). On January 4, 1999, the Connecticut Supreme Court granted certification to both the petitioner and the State of Connecticut. See id.
On August 15, 2000, the Connecticut Supreme Court held that the defense of self-defense did not apply to a charge of felony murder and the trial judge's self-defense instructions on a defendant's duty to retreat and a victim's right to defend his or her dwelling in connection with the intentional murder counts did not violate the petitioner's due process right to present a defense. See State v. Amado, 254 Conn. 184, 756 A.2d 274 (2000). Thus, the Connecticut Supreme Court reversed the Appellate Court's decision to the extent that it had reversed the trial court's judgment convicting the petitioner of murder and capital felony, affirmed the Appellate Court's prior decision holding that self-defense was not available as a defense to the charge of felony murder convictions, and remanded the case to the Appellate Court with instructions to affirm the judgment of the trial court. See id. at 202, 756 A.2d at 284.
On July 20, 1999, the petitioner filed a petition for writ of habeas corpus in state court on grounds of ineffective assistance of counsel, failure to disclose exculpatory evidence and actual innocence. (See Resp't's Mem., App. Y.) On May 29, 2006, the petitioner filed a second amended petition. On November 15, 2006, the court, after conducting a trial, dismissed the second amended petition for writ of habeas corpus. See Amado v. Warden, No. CV99428654S, 2006 WL 3491875 (Conn. Super. Ct. Nov. 15, 2006). On appeal, the petitioner argued that the habeas court had improperly denied his petition as to the claim of ineffective assistance of trial counsel.
On September 16, 2008, the Connecticut Appellate Court dismissed the appeal. See Amado v. Commissioner of Correction, 110 Conn.App. 345, 954 A.2d 887 (2008). On October 20, 2008, the Connecticut Supreme Court denied certification to appeal from the decision of the Connecticut Appellate Court. See Amado v. Commissioner of Correction, 289 Conn. 941, 959 A.2d 1006 (2008).
The petitioner originally commenced this action in March 2009. On June 17, 2009, the court administratively closed the case pursuant to the petitioner's request that he be permitted to fully exhaust his claims. On May 10, 2010, the petitioner moved to lift the stay, restore the case to the docket and file an amended petition for writ of habeas corpus. On January 18, 2011, the court granted the petitioner's motion to lift the stay and to file a second amended petition. Counsel for the respondent has filed a memorandum in opposition to the Second Amended Petition.
The Connecticut Supreme Court determined that the evidence that was before the jury with regard to the petitioner's criminal trial was fully set forth in the Connecticut Appellate Court's decision in connection with the initial appeal from the petitioner's conviction. See Amado, 254 Conn. At 189, 756 A.2d at 278. The Connecticut Appellate Court determined that the jury could have reasonably found:
Amado, 42 Conn.App. 351-56, 680 A.2d at 351-56.
The petitioner asserts three grounds for relief. He argues that: (1) the trial judge erred in instructing the jury that the law of self-defense did not apply to felony murder charges; (2) the trial judge improperly instructed the jury on the law of self-defense relating to the duty to retreat and relating to the rights of the victims to defend their dwelling; and (3) trial counsel was ineffective in failing to cross-examine witnesses and present exculpatory evidence.
The petitioner challenges the trial court's refusal to instruct the jury on the law of self-defense in connection with his felony murder charges. The respondent contends that the Connecticut Supreme Court decided the issue as a matter of state law and the petitioner cannot obtain federal habeas review of that purely state law issue.
On appeal to the Connecticut Supreme Court, the petitioner argued that the Connecticut Appellate Court had erred in concluding that, as a matter of state law, the defense of self-defense is inapplicable to a felony murder charge. See Amado, 254 Conn. at 197, 756 A.2d at 282. The petitioner contended that there was nothing in the statute governing self-defense that precluded its use in connection with a felony murder charge. The petitioner argued that the trial judge's refusal to instruct the jury that the defense of self-defense was available in connection with his felony murder charges deprived him of his statutory right to use justification as a defense and his federal constitutional rights to present a defense, to due process, to be presumed innocent and to a trial before a properly instructed jury. See Amado, 254 at 197, 756 A.2d at 282. In the present petition, the petitioner contends that the trial judge's statement to the jury that the defense of self-defense did not apply to the felony murder charges pending against him violated his right to present a defense and to a properly instructed jury. The Supreme Court has emphasized that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, federal courts are limited to reviewing claims that a state conviction was obtained in violation of some right guaranteed by the United States Constitution or other federal law. See 28 U.S.C. § 2254(a) (federal courts "shall entertain an application for a writ of habeas corpus in behalf of a person in state custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."); Pulley v. Harris, 465 U.S. 37, 41 (1984) ("A federal court may not issue the writ on the basis of a perceived error of state law.").
The adequacy of a state jury charge is generally a question of state law and is not reviewable in a federal habeas corpus petition absent a showing that the charge deprived the defendant of a federal constitutional right. See Cupp v. Naughten, 414 U.S. 141, 146 (1973). Thus, a state court's refusal to give a particular jury instruction does not raise a federal question unless the failure to give the instruction "`so infected the entire trial that the resulting conviction violates due process.'" Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147).
In reviewing the petitioner's claim, the Connecticut Supreme Court relied on state law. The court analyzed the purpose of Connecticut's felony murder statute as well as state cases within and outside of Connecticut that had held that self-defense was not a defense to felony murder and concluded that it would be inconsistent with the purpose of the felony murder statute to allow a defendant who had caused the death of an individual in the course of a felony to claim self-defense because the victim attempted to thwart the felony by using force. See Amado, 254 Conn. at 197-200, 756 A.2d at 282-83 ("the purpose underlying felony murder ... is to punish those whose conduct brought about an unintended death in the commission or attempted commission of a felony")(internal quotation marks and citation omitted). Thus, the court concluded that the Connecticut Appellate Court had correctly determined that self-defense was not a defense to felony-murder and the trial court had not erred in refusing to charge on self-defense in connection with the felony murder charges.
Because the Connecticut Appellate and Supreme Courts decided the question of whether self-defense could be applied to a felony murder on state law grounds, the claim is not cognizable in a federal habeas petition. See Estelle, 502 U.S. at 67-68 ("federal habeas corpus relief does not lie for errors of state law"); Engle v. Isaac, 456 U.S. 107, 119-21, & n.21 (1982) (challenge to correctness of self-defense instructions under state law provide no basis for federal habeas relief); Gryger v. Burke, 334 U.S. 728, 731 (1948) ("a mere error of state law" is not "a denial of due process"). The petitioner contends that his claim is reviewable because he challenged the state court's determination on the ground that it deprived him of his right to present a defense as guaranteed by Washington v. Texas, 388 U.S. 14 (1967). The petitioner's argument is misplaced as the right to present a defense under either the Sixth and Fourteenth Amendments does not guarantee him the right to have the state recognize any particular affirmative defense that he seeks to raise. See Gilmore v. Taylor, 580 U.S. 333, 334 (1993) (rejecting argument that constitutional right to present a defense includes right to have jury consider an affirmative defense).
Research has revealed no Supreme Court case holding that a failure of a state trial court to instruct a jury that a defense of self-defense is applicable to a charge of felony murder violates the defendant's federal constitutional rights. The petitioner has not demonstrated that the trial judge's charge to the jury which included an instruction that the defense of self-defense could not be applied to the felony murder counts deprived him of due process. Thus, the Connecticut Supreme Court's decision was not an unreasonable application of Supreme Court law. See Knowles v. Mirzayance, ___ U.S. ___, 129 S.Ct. 1411, 1419 (2009) ("it is not an unreasonable application of clearly established Federal Law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court") (internal citation omitted). Accordingly, the petition for writ of habeas corpus is denied on this ground.
The petitioner argues that the trial court's jury instructions regarding self-defense in connection with the intentional murder charges violated his constitutional right to present a defense. Specifically, he contends that the trial court failed to properly instruct the jury regarding the subjective element of the self-defense inquiry in accordance with Conn. Gen. Stat. § 53a-19
The Connecticut Supreme Court determined the following additional facts were relevant to these claims:
Amado, 254 Conn. at 190-92, 756 A.2d at 278-79.
To warrant habeas corpus relief with regard to an improper jury instruction, the petitioner must establish that the instruction "by itself so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 71-72; see also Cupp, 414 U.S. at 146 (petitioner must show "not merely that the instruction is undesirable, erroneous, or even ùniversally condemned,' but that it violated some right which was guaranteed by the Fourteenth Amendment"). When analyzing a claim of an improper jury instruction, the court must examine the instruction in the context of the charge as a whole and the entire trial record. See Francis v. Franklin, 471 U.S. 307, 315 (1985).
The Connecticut Appellate Court's statement of the law, although taken from state cases, is consistent with Supreme Court precedent.
The petitioner argues that the trial court failed to properly instruct the jury on the subjective prong of the self-defense test pertaining to the duty to retreat. The Connecticut Supreme Court reviewed the parts of the jury charge relating to the petitioner's defense of self-defense and determined that the trial judge had repeatedly instructed the jury regarding the correct subjective standard to be applied in analyzing a defendant's duty to retreat. Although the trial judge had neglected to mention the subjective nature of the duty to retreat component of the self-defense standard at several points during the charge, he subsequently reiterated the standard and noted that in considering whether the petitioner had a duty to retreat, the law was clear that the jury must focus on what the petitioner believed at the time of the incident in terms of whether he could retreat with complete safety. See Amado, 254 Conn. at 194-95, 756 A.2d 280-81.
The Connecticut Supreme Court observed that the trial judge had never instructed the jury to measure the defendant's actions from an objective point of view, i.e. — "às you would perceive a reasonable person to view the same situation.'" See id. at 196, 756 A.2d at 281. Thus, the trial judge had not misstated the subjective component of the duty to retreat standard. Because the trial court had properly referred to the subjective standard by which the jury should view the defendant's knowledge of his ability to retreat multiple times within its charge to the jury, the Connecticut Supreme Court concluded that there was no real possibility that the jury had been misled by the trial judge's instructions. See id. at 195-96, 756 A.2d at 281. Accordingly, the trial court's instructions on the subjective element of the self-defense test did not deprive the petitioner of a right to present a defense or a fair trial.
The Connecticut Supreme Court also considered the petitioner's claim that the trial judge's instruction regarding the victims' right to defend their premises may have confused the jury as to whether they were to consider the victims' perspectives in addition to the petitioner's perspective in evaluating the petitioner's claim of self-defense. The court noted that the purpose of the judge's instruction relating to the statute governing an individual's authority to use force to defend his or her dwelling was to provide the jury with information that might be necessary to its evaluation of whether the petitioner or the victims were the aggressors and whether the petitioner was justified in using force. Furthermore, the trial judge's charge discussed the statute that applied to the victims' rights separately from the statute that applied to the petitioner's right to self-defense. See id. at 196-97, 756 A.2d at 281-82.
Although some of the information pertaining to the rights of the victims' may have been cumulative or unnecessary, the Connecticut Supreme Court concluded that receipt of this information by the jury did not undermine the jury's understanding of the importance of focusing on the petitioner's perspective at the time of incident. Thus, the instructions did not confuse the jury as to whose perspective should be considered in evaluating whether the petitioner was entitled to the defense of self-defense to the intentional murder charges.
In reviewing both of these challenges to the jury instructions on self-defense, the Connecticut Supreme Court considered the jury charge in its entirety and in conjunction with the evidence presented at trial as is required under Supreme Court law. See California v. Brown, 479 U.S. 538, 541 (1987); Cupp, 414 U.S. at 146-47. The petitioner has identified no clearly established Supreme Court law that was misapplied or disregarded by the Connecticut Supreme Court and the Court can discern none. Thus, the petitioner has not established that the Connecticut Supreme Court's decision regarding the jury instruction on self-defense was contrary to or an unreasonable application of Supreme Court law. The petition for writ of habeas corpus is denied as to the second ground for relief.
The petitioner argues that trial counsel was ineffective in two ways: (1) he did not seek to introduce the criminal record of Anthony Young who was one of the shooting victims and (2) failed to adequately cross-examine witnesses Bailey and Vaughn.
An ineffective assistance of counsel claim is reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, petitioner must demonstrate, first, that counsel's conduct "fell below an objective standard of reasonableness" established by "prevailing professional norms," and, second, that this deficient performance caused prejudice to him. Id. at 687-88.
To satisfy the prejudice prong of the Strickland test, petitioner must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different;" the probability must "undermine confidence in the outcome" of the trial. Id. at 694. A court evaluates counsel's conduct at the time the decisions were made, not in hindsight, and affords substantial deference to counsel's decisions. See Rompilla v. Beard, 545 U.S. 374, 381 (2005). To prevail, petitioner must demonstrate both deficient performance and sufficient prejudice. See Strickland, 466 U.S. at 700. Thus, if the court finds one prong of the standard lacking, it need not consider the remaining prong. See id. at 697, 700.
The court will consider the last reasoned state court decision to determine whether the decision is an unreasonable application of federal law. See Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). Here, the court reviews the Connecticut Superior Court's decision denying the petition for writ of habeas corpus. See Amado v. Warden, No. CV99428654S, 2006 WL 3491875 (Conn. Super. Ct. Nov. 15, 2006).
In reviewing the petitioner's claims of ineffective assistance of counsel, the Superior Court judge applied the standard set forth in Strickland to the facts of the claim. Because the state court applied the correct legal standard, its decision is not contrary to clearly established federal law.
The petitioner contends that his trial attorney neglected to offer information pertaining to Mr. Young's criminal record into evidence. The petitioner argues that this information was exculpatory in nature because it would have been relevant on the issue of who was the initial aggressor at the time of shootings. The petitioner raised this claim in his state habeas petition.
At the hearing held in the state habeas proceeding, trial counsel testified regarding his criminal trial experience. At the time of the criminal trial, he had practiced law for seventeen years. For five years beginning in 1976, he had served as a Connecticut public defender and had been in private practice since 1981. He devoted close to 100 percent of his practice to criminal defense work and had tried over 150 cases to verdict. At least thirty of those cases involved murder or capital felony charges. See Amado, 2006 WL 3491875, at *7.
With regard to petitioner's claim that he had neglected to introduce the criminal record of Anthony Young at trial, counsel testified that he had made a strategic decision to pursue a defense that Peter Hall was the initial aggressor before the shooting began. (See Resp't's Mem., App. FF at 18.) The petitioner testified to that effect at trial. Counsel related that there had been no testimony that Mr. Young was armed before the shooting began. In view of the lack of evidence that Mr. Young was armed, it would not have been productive to pursue a defense that Young was the initial aggressor and it was likely that the judge would have excluded Young's criminal record tending to show his violent tendencies as irrelevant. Id. at 18-19. In addition, counsel stated that he did not want to introduce the criminal record of Mr. Young because he thought it might invite the prosecutor to introduce evidence regarding the criminal records of the petitioner's acquaintances who were at the house on the day of the shootings which might have supported a conclusion that the petitioner was the aggressor. See id. at 18.
The Superior Court judge found trial counsel's testimony at the habeas hearing to be extremely credible. The judge concluded that trial counsel's decision not to offer Mr. Young's criminal record into evidence was a reasonable tactical choice. See Amado, 2006 WL 3491875, at *7-8.
A defense counsel's strategic decisions will not support an ineffective assistance claim, as long as those decisions are reasonable. See Strickland, 466 U.S. at 689 (petitioner "must overcome the presumptions that, under the circumstances, the challenged action might be considered sound trial strategy"); Rompilla, 545 U.S. at 381 (court affords "a heavy measure of deference to counsel's judgments"). The habeas judge determined that counsel had adopted a legitimate strategy to only pursue Peter Hall as the aggressor based on the testimony of the petitioner and other witnesses regarding their observations of Peter Hall with a gun. Thus, the petitioner had not overcome the presumption that "counsel's conduct [fell] within the wide range of reasonable professional assistance" and, under the circumstances, that conduct, "might be considered sound trial strategy." Strickland, 466 U.S. at 688-89. Accordingly, the habeas judge concluded that the petitioner had not met the deficient performance prong of the ineffective assistance of counsel standard.
The state habeas judge's factual findings and credibility determinations are "presumed to be correct," and the petitioner has the "burden of rebutting [that] presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). The petitioner has offered no evidence to rebut the habeas judge's credibility determinations.
This Court concludes that the habeas judge reasonably applied the Strickland standard in reviewing the petitioner's ineffective assistance of counsel claim to determine that trial counsel's decision to forgo the introduction of Mr. Young's criminal record as an exhibit at trial was a strategic choice that fell within the range of competent professional legal assistance. See Cullen, ___ U.S. at ___, 131 S. Ct. at 1406 (noting that the "wide latitude counsel must have in making tactical decisions" and affirming that "[b]eyond the general requirement of reasonableness, `specific guidelines are not appropriate'") (quoting Strickland, 466 U.S. at 688-89). The habeas petition is denied as to this claim of ineffective assistance of counsel.
The petitioner claims that his trial attorney failed to adequately cross-examine two witnesses, Joanne Bailey and Hope Vaughn. In deciding these claims, the Superior Court judge applied the standard established in Strickland. Because the state court applied the correct legal standard, the state court decision cannot meet the "contrary to" prong of section 2254(d)(1).
The petitioner's contention was that if counsel had adequately cross-examined Joanne Bailey, she would have testified that he did not go to the victims' home with the intention of robbing the victims and that someone in the home had invited him inside when he arrived there. Hope Vaughn would have testified that at the time the petitioner arrived at the house, Anthony Young invited him inside. The petitioner surmised that the testimony of Vaughn and Bailey would have bolstered his claim of self-defense because the jury would not have considered him to be a trespasser. Furthermore, Joanne Bailey's testimony with regard to his lack of intent to rob the victims when he went to their house may have created a reasonable doubt in the minds of the jurors regarding the robbery charge underlying the felony murder counts.
"The decision `whether to engage in cross-examination, and if so to what extent and in what manner' is generally viewed as a strategic decision left to the sound discretion of trial counsel." Lavayen v. Duncan, 311 Fed. App'x 468, 471, (2d Cir.), cert. denied, 558 U.S. 935 (2009) (quoting Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002)). Furthermore, an attorney's decision "whether to call specific witnesses-even ones that might offer exculpatory evidence-is ordinarily not viewed as a lapse in professional representation." United States v. Best, 219 F.2d 192, 201 (2d Cir. 2000).
Joanne Bailey testified at the habeas hearing, but Hope Vaughn did not testify. Instead, counsel for the petitioner offered testimony from Hope Vaughn from another criminal matter involving the prosecution of Anthony Smalls, who had been at the house with the petitioner at the time of the shootings. See Amado, 2006 WL 3491875, at *7-8.
The habeas judge reviewed trial transcripts containing the testimony of both Bailey and Vaughn on direct and cross-examination and considered Bailey's testimony at the habeas hearing and Vaughn's testimony at the trial of Smalls. He concluded that Bailey was not a credible witness during the trial or at the habeas hearing. In addition, given Vaughn's involvement in the heist of the narcotics from the petitioner's home which led to the shootings on October 18, 1990, the judge was skeptical that the jury in petitioner's criminal trial would have found the statements made by Vaughn during Small's criminal trial believable. See id.
Although Bailey testified at the habeas hearing and Vaughn testified at Anthony Small's criminal trial that someone inside the victim's house had invited the petitioner to enter the house, this testimony was contrary to the testimony of the petitioner at trial. See id. at *7. The petitioner never testified that anyone had invited him to enter the victim's home or that he had actually entered the victims' home prior to the shootings. (See Resp't's Mem., App. EE.) In addition, any testimony that the victims had in fact invited the petitioner into their home might have undermined his claim that he was not the initial aggressor.
With regard to Bailey's testimony pertaining to the petitioner's state of mind at the time he went to the victims' home and whether he intended to rob the victims, the habeas judge found that it was unclear whether that type of testimony would have been admissible at trial. See id. at *7. Furthermore, there was other significant evidence demonstrating that the petitioner had every intention of retrieving his possessions from the victims by force. Thus, the habeas judge concluded that counsel's decision not to elicit certain testimony from Vaughn and Bailey on cross-examination did not constitute deficient performance. See Amado, 254 Conn. at 201-02, 756 A.2d at 284. This determination was not an unreasonable application of Supreme Court law.
The habeas judge also addressed the prejudice prong of the Strickland standard. The habeas judge observed that even if Bailey had testified that the petitioner had not expressed an intention to rob the victims and Bailey and Vaughn had testified that someone in the victims' home had invited the petitioner inside before the shooting began, that testimony would not have significantly impacted the outcome of the trial, given the petitioner's trial testimony, their actual trial testimony and other witness trial testimony as well as other evidence presented during the trial. See Amado, 2006 WL 3491875, at **7-9. Thus, the habeas judge concluded that, even if trial counsel's performance was deficient, the petitioner had not demonstrated that counsel's conduct prejudiced his case.
The petitioner has presented no evidence to overcome the presumption of correctness afforded to the state court's findings. The Court concludes that the state court's determinations regarding the level of performance provided by trial counsel when cross-examining the state's witnesses and the lack of prejudice from counsel's alleged deficiencies are not an unreasonable application of the Strickland standard. Thus, the petition must be denied on this claim of ineffective assistance of counsel.
The Petition for Writ of Habeas Corpus [
The Court concludes that petitioner has not shown that he was denied a constitutionally or federally protected right. Thus, any appeal from this order would not be taken in good faith and a certificate of appealability will not issue.
IT IS SO ORDERED.
