Lewis v. Feliciano
Filing
29
PRISCS-RULING AND ORDER Denying 1 Petition for Writ of Habeas Corpus. Signed by Judge Dominic J. Squatrito on 4/13/2012. (Payton, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EDDIE P. LEWIS
:
:
:
:
:
v.
FELICIANO
PRISONER
Case No. 3:09cv2071(DJS)
RULING AND ORDER
The petitioner, Eddie P. Lewis, currently confined at the
Enfield Correctional Institution in Enfield, Connecticut,
commenced this action for writ of habeas corpus pro se pursuant
to 28 U.S.C. § 2254.
He challenges his state court conviction
for robbery in the first degree.
For the reasons that follow,
the petition is denied.
I.
Factual Background
The Connecticut Appellate Court determined that the trial
court reasonably could have found the following facts.
On
January 25, 2001, Lewis entered a Carvel store wearing a black
leather jacket, a black hood pulled over his head and a mask
covering the lower part of his face.
The supervisor recognized
Lewis as the man who had applied for a job at the store a few
days earlier.
She remembered that he had used the name Edward
Preston on the application and addressed him as “Edward.”
responded, “yo.”
to the police.
Lewis
The supervisor later relayed this information
State v. Lewis, 83 Conn. App. 489, 491(2004).
Lewis told the supervisor that he was going to rob the
store.
He approached the supervisor, showed her the butt of a
gun, threatened to use the gun and ordered her to lead him to the
store’s safe.
He ordered the other employee in the store to
accompany them to the safe and pulled her by her shirt.
The
other employee testified that Lewis held the gun in his hand.
Id.
Lewis took money from the store's safe and cash register.
As he was leaving the store, he told the women to call the
police.
After Lewis left the store, the supervisor tried to
follow him but could not catch him.
Id.
The supervisor saw Lewis’ photograph in a March 3, 2001
newspaper and recognized him as the man who had robbed the Carvel
store on January 25, 2001.
She showed the photograph to the
other employee who had been working during the robbery and both
agreed that Lewis was the man who had robbed the store.
supervisor reported this information to the police.
The
Id.
Lewis’ defense was that his crime was a larceny, not a
robbery, because he did not use or threaten to use force.
He
testified that he was acquainted with the supervisor’s husband,
had visited their home and met the supervisor before the robbery.
Lewis stated that the supervisor’s husband, who owed him money,
suggested that Lewis go to the Carvel store while his wife was
working and get money from the store in satisfaction of the debt.
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Lewis testified that he never intended to use force to rob the
store; the supervisor was aware that he was coming and would just
give him the money.
Id. at 492.
During cross-examination, the state questioned Lewis about
phone calls to the supervisor after the robbery. These phone
calls had been recorded by prison officials on audio tapes.
Defense counsel objected on the grounds that the questions
exceeded the scope of direct examination and related to a
criminal charge of tampering with a witness on which Lewis was
not represented.
The court also expressed concern about this
line of questioning. See Doc. #25, Resp’t’s Mem. App. Q, Trial
Transcript, at 200-11.
II.
Procedural Background
Upon the advice of defense counsel, Lewis waived his right
to a jury trial and was tried to the court.
The court canvassed
Lewis on the waiver of his right to a jury trial and found the
waiver knowing, intelligent and voluntary.
See Lewis v. Warden,
No. CV030004202, 2007 WL 2757268, at *1 (Conn. Super. Ct. Sept.
7, 2007).
Lewis was convicted and sentenced to a term of
imprisonment of fourteen years, followed by six years of special
parole.
Lewis, 83 Conn. App. at 492.
On direct appeal, Lewis challenged his conviction on the
ground that there was insufficient evidence to support a
conviction for robbery and threatening.
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Id.
The conviction was
affirmed and the Connecticut Supreme Court denied certification.
Id. at 496, cert. denied, 271 Conn. 903 (2004).
In October 2003, while his direct appeal was pending, Lewis
filed a petition for writ of habeas corpus in state court.
In
the amended petition filed by counsel, Lewis challenged his
conviction on grounds of ineffective assistance of trial counsel
and trial irregularities.
Specifically, Lewis alleged that trial
counsel was ineffective in that he:
(1) failed to adequately
advise Lewis concerning the implications of waiving his right to
a jury trial; (2) promised that Lewis would receive a sentence of
only seven years incarceration if he elected a court trial;
(3)unduly pressured Lewis to elect a court trial; (4) failed to
properly investigate potential witnesses and present exculpatory
evidence; (5) failed to advise Lewis of his available defenses;
(6) failed to advise Lewis concerning other charges pending
against him and failed to prepare him to testify; (7) failed to
inform the court of a conflict involving Lewis’ potential
defenses and the other charges pending against him; and (8)
engaged in pretrial negotiations without authorization.
also alleged that the trial court:
Lewis
(1) improperly allowed the
state to question Lewis about other pending charges and did not
canvass Lewis on his Fifth Amendment right against selfincrimination; (2) failed to appoint an attorney to represent
Lewis on the other pending charges and failed to advise him of
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his right to counsel on those charges; and (3) inappropriately
considered the other pending charges as part of the deliberation
process.
See Resp’t’s Mem. App. J, Amended Petition included in
Record on Appeal at 3-9.
Following a trial at which Lewis, an expert witness, Lewis'
mother, and trial counsel testified, the state court denied the
petition.
See Lewis v. Warden, No. CV030004202, 2007 WL 2757268
(Conn. Super. Ct. Sept. 7, 2007).
Lewis appealed the denial of the state habeas on four
grounds:
(1) ineffective assistance of counsel regarding the
waiver of trial by jury, (2) ineffective assistance of counsel by
allegedly denying Lewis the right to decide whether to testify at
trial, (3) failure of the trial court to appoint counsel during
the criminal trial for charges pending in a separate proceeding,
and (4) failure of the habeas court to consider the testimony of
Lewis’ expert witness.
The Connecticut Appellate Court affirmed
Lewis’ conviction and the Connecticut Supreme Court denied
certification without comment.
See Lewis v. Commissioner of
Correction, 117 Conn. App. 120, 129, cert. denied, 294 Conn. 904
(2009).
The Connecticut Appellate Court considered the first and
fourth claims on the merits.
The court declined to review the
second claim because Lewis procedurally defaulted this claim by
failing to raise that claim in his amended habeas petition.
-5-
Id.
at 126.
The Connecticut Appellate Court declined to review the
third claim because Lewis failed to adequately brief that claim
on appeal.
Id. at 127-28.
While the appeal of his first state habeas petition was
pending, Lewis filed a second petition for writ of habeas corpus
in state court.
2010.
Lewis withdrew that petition on November 23,
See Resp’t’s Mem. App. S, Case Detail for Lewis v. Warden,
No. CV08-4002360-S.
III. Standard of Review
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.
Estelle v. McGuire, 502 U.S.
62, 67-68 (1991).
The 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:
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of
the United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the facts
in light of the evidence presented in the
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State court proceeding.
28 U.S.C. § 2254(d).
The federal law defined by the Supreme
Court “may be either a generalized standard enunciated in the
Court’s case law or a bright-line rule designed to effectuate
such a standard in a particular context.”
289 F.3d 36, 42 (2d Cir. 2002).
Kennaugh v. Miller,
Clearly established federal law
is found in holdings, not dicta, of the Supreme Court at the time
of the state court decision.
Carey v. Musladin, 549 U.S. 70, 74
(2006).
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.
Cone, 535 U.S. 685, 694 (2002).
Bell v.
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.
The state court decision must be more than
incorrect; it also must be objectively unreasonable, “a
substantially higher threshold.”
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.
28 U.S.C. § 2254(e)(1). See
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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 § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim
on the merits.
Id. at 1398.
Because collateral review of a
conviction applies a different standard than the direct appeal,
an error that may have supported reversal on direct appeal will
not necessarily be sufficient to grant a habeas petition.
Brecht
v. Abrahamson, 507 U.S. 619, 634 (1993).
IV.
Discussion
Lewis challenges his conviction on five grounds:
(1) Lewis
was not allowed to decide whether to testify at trial and trial
counsel failed to prepare him adequately for the possibility of
testifying; (2) Lewis was not allowed to decide whether to have a
jury trial or court trial; (3) the habeas court failed to
acknowledge the uncontradicted testimony of Lewis’ expert witness
regarding the effectiveness of trial counsel’s representation;
(4) the trial court abused its discretion by permitting the state
to question Lewis at trial regarding pending and uncharged
crimes, failing to appoint counsel to represent Lewis regarding
those crimes while he was being questioned at trial, failing to
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advise Lewis of his rights to counsel and against selfincrimination regarding the uncharged crimes, considering the
pending and uncharged crimes when it convicted him on the charge
of robbery, and not considering the uncontradicted testimony of
Lewis’ expert witness1; and (5) trial counsel was ineffective in
that he failed to review and present exculpatory evidence and
failed to properly investigate the case and potential witnesses.
Pet. at 10, 13, 15, 17-18.
In addition to addressing the merits of the grounds for
relief, the respondent reasserts his argument that Lewis has not
exhausted his state court remedies with regard to grounds for
relief 1, 4 and 5.
The court previously denied the respondent’s
motion to dismiss for failure to exhaust state court remedies and
will not revisit that issue here.
A.
Decision to Testify at Trial
In his first ground for relief, Lewis contends that he was
not allowed to decide whether he would testify at the criminal
trial.
Lewis presented this claim to the Connecticut Appellate
Court on appeal from the denial of his first state habeas
petition.
The Connecticut Appellate Court considered the claim
procedurally defaulted because Lewis raised the claim for the
first time on appeal; the claim was not included in the amended
1
This last factual assertion refers to the actions of the
habeas court, not the trial court, and repeats the claim in
ground three.
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habeas petition before the lower court.
126.
Lewis, 117 Conn. App. at
The Connecticut Supreme Court denied certification without
comment, thereby agreeing with the Appellate Court’s reasoning.
Lewis, 294 Conn. at 904; see Ylst v. Nunnemaker, 501 U.S. 797,
803-04 (1991) (applying rebuttable presumption that “later
unexplained orders upholding []judgment or rejecting the same
claim rest upon the same ground”).
A state prisoner who defaults on his federal claim in state
court pursuant to an independent and adequate state procedural
rule cannot obtain federal habeas review of that claim unless he
can demonstrate cause for the default and actual prejudice
resulting from the default or he can show a sufficient
probability that failure to consider the claim will result in a
fundamental miscarriage of justice.
See Edwards v. Carpenter,
529 U.S. 446, 451 (2000)
Neither in his federal petition nor in his reply brief does
Lewis allege facts suggesting cause for failing to raise this
claim in his state habeas petition.
In addition, since his
defense at trial was that he committed larceny, not robbery, he
cannot demonstrate actual innocence of the charge.
See United
States v. Thorn, 659 F.3d 227, 233-34 (2d Cir. 2011) (“in order
to demonstrate his actual innocence, [petitioner] must prove his
‘factual innocence, not mere legal insufficiency’”).
The
petition for writ of habeas corpus is denied as to the first
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ground for relief.
B.
Election of Court Trial
Lewis next argues that his attorney pressured him to forego
his right to a jury trial and elect a court trial.
Lewis argues
that he had to make his decision in less than thirty minutes and
that trial counsel pressured Lewis’ mother to convince Lewis to
make the election.
Although the court canvassed Lewis about his
election, Lewis contends that the court was unaware of the
pressure exerted by counsel.
The Connecticut Appellate Court
addressed this claim in the context of Lewis’ claim of
ineffective assistance of trial counsel.
The Connecticut Appellate Court found the following facts
relating to this claim.
At his arraignment, Lewis entered a plea
of not guilty and requested a jury trial.
Before the start of
trial, however, counsel informed the court that Lewis had decided
to change his election to a court trial.
The court canvassed
Lewis and took a recess to afford Lewis additional time to
discuss with counsel the implications of changing his election.
After the recess, the court asked Lewis if he had been pressured
to change his election.
pressured.
Lewis responded that he had not been
The court found that Lewis intelligently, knowingly
and voluntarily waived his right to a jury trial. Lewis, 117
Conn. App. at 123.
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At the habeas trial, however, Lewis testified that counsel
had pressured him into changing his election by telling him that
counsel was a friend of the judge and Lewis would not receive
more than a seven-year sentence if he were convicted in a court
trial.
Lewis also testified that counsel spoke to his mother,
who was crying when she spoke to Lewis and encouraged him to
change his election so he would receive at most a seven-year
sentence.
Lewis’ mother testified at the habeas hearing and
confirmed Lewis’ version of events.
Id. at 124.
Counsel testified at the habeas trial that he had
recommended a court trial because a judge might be more likely
than a jury to understand and credit Lewis’ defense.
Counsel
stated that he never told Lewis that he would not receive more
than a seven-year sentence if he were convicted after a court
trial.
Counsel was adamant that the final decision was made by
Lewis.
Id.
The habeas court did not credit Lewis’ version of events.
The court believed counsel’s testimony and Lewis’ responses when
canvassed by the trial court.
The habeas court found that
counsel had adequately advised Lewis of the implications of
changing his election and that Lewis did so intelligently,
knowingly and voluntarily.
Id.
Criminal defendants may waive their right to trial by jury.
See Duncan v. Louisiana, 391 U.S. 145, 158 (1968).
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The waiver
will be accepted if it is made intelligently, knowingly and
voluntarily.
See Brady v. United States, 397 U.S. 742, 748
(1970) (“Waivers of constitutional rights not only must be
voluntary but must be knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and likely
consequences.”); Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)
(requiring an intelligent and competent waiver of constitutional
rights).
In analyzing this claim, the habeas court applied the
standard articulated by the Connecticut Supreme Court in State v.
Ouellette, 271 Conn 740, 758 (2004).
In that decision, the
Connecticut Supreme Court identified a standard that mirrors the
Supreme Court standard articulated in Brady and Johnson.
Because
the habeas court applied the correct legal principles, the
decision of that court is not contrary to clearly established
federal law.
See Lurie v. Wittner, 228 F.3d 113, 127 (2d Cir.
2000) (ruling is contrary to established federal law when state
court applies law contradicting Supreme Court precedent); see
also Early v. Packer, 537 U.S. 3,8 (2002) (state court not
required to cite Supreme Court cases, or even be aware of them,
to be entitled to deference, as long as neither the reasoning nor
the result of the state court decision contradicts the governing
law set forth in Supreme Court cases).
The habeas court set forth a detailed account of the
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circumstances surrounding Lewis’ change of election, quoting
portions of the trial transcript where the trial court explained
the differences between a trial by the court and a trial by jury.
The habeas court did not credit the testimony of Lewis and his
mother.
The court noted that Lewis answered all questions during
the canvass without hesitation, clearly expressed his
understanding of the difference between a trial by the court and
a trial by jury, and was afforded sufficient time to confer with
counsel regarding the decision.
Lewis told the court that he
understood his choice and had no questions.
The habeas court
found not credible Lewis’ testimony that he only elected trial by
court because counsel had promised a sentence of no more than
seven years and found credible counsel’s testimony that he made
no such promise.
Thus, the habeas court determined that Lewis
acted voluntarily, intelligently and knowingly when he changed
his election.
Lewis v. Warden, 2007 WL 2757268, at *4-5.
To prevail on this claim, Lewis must show that the state
court adjudication “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State Court proceedings.”
2254(d)(2).
28 U.S.C. §
In its review, however, the federal court presumes
that factual determinations made by the state court are correct
unless the petitioner rebuts the presumption with “clear and
convincing evidence.”
28 U.S.C. § 2254(e)(1); see also Miller-el
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v. Cockrell, 537 U.S. 322, 341 (2003) (petitioner must
demonstrate that state court’s factual determination was
objectively unreasonable).
This presumption of correctness
applies to both “historical facts, that is, recitals of external
events and the credibility of the witnesses narrating them.”
Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997).
It is
inappropriate for the federal court to alter a credibility
determination of the state court when the state court observed
the demeanor of the witness and the federal court did not.
Marshall v. Lonberger, 459 U.S. 422, 434 (1983).
Lewis argues that the habeas court improperly credited the
testimony of counsel and rejected his version of events.
He
presents no evidence, however, to overcome the presumption of
correctness applied to the factual findings of the state court.
Thus, this court concludes that the Connecticut Appellate Court’s
deference to the habeas court’s credibility findings was a
reasonable application of federal law.
The petition for writ of
habeas corpus is denied as to the second ground for relief.
C.
Habeas Court’s Treatment of Expert Witness Testimony
In his third ground for relief, Lewis argues that the habeas
court failed to consider the uncontradicted testimony of his
expert witness.
With regard to Lewis’ defense, that the crime
was an “inside job,” the expert stated that trial counsel should
have introduced evidence showing a connection between Lewis and
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the victim or the victim’s husband.
He also stated that the
taped conversations between Lewis and the victim were not
necessary for Lewis to establish his defense or for the State to
establish the elements of the crime.
Lewis states that, at the
habeas hearing, his trial attorney agreed with the expert that he
had made an error at trial regarding the use of audio tapes of
telephone calls from Lewis to a witness.
The expert opined that
trial counsel should have listened to the tapes and filed a
motion in limine or a motion to suppress introduction of the
tapes.
The Connecticut Appellate Court reviewed the record and
determined that nothing in the record suggested that the habeas
court failed to consider all of the evidence before it, including
the testimony of the expert witness.
Lewis, 117 Conn. App. at
128-29. In fact, the habeas court’s decision indicates that the
court's findings of fact were "[b]ased upon a full review of the
testimony and evidence . . . ." Lewis, 2007 WL 2757268, at *1.
Lewis appears to presume that, because the habeas court decision
is not in accord with the expert’s testimony, the court did not
consider that testimony.
Lewis characterizes the expert witness’ testimony as
uncontradicted, presumably because the state did not present its
own expert witness.
This characterization is incorrect.
Although there was no other expert testimony, there was other
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evidence and testimony that contradicted the expert’s testimony,
evidence that the habeas court relied upon in its decision.
The habeas court was not required to accept without question
the testimony of the expert witness.
Just as with any witness,
the court could determine the credibility of the expert witness
in light of the other testimony and record evidence.
The
Connecticut Appellate Court deferred to the habeas court’s
credibility determination and evaluation of the evidence.2
That
deference was not unreasonable and does not warrant habeas corpus
relief.
The petition for writ of habeas corpus is denied as to
this ground.
D.
Trial Court’s Abuse of Discretion
In his fourth ground for relief, Lewis argues that the trial
court abused its discretion in several ways: the trial court
should not have permitted the prosecutor to question him
regarding uncharged misconduct when Lewis was not represented by
counsel as to that uncharged misconduct; the trial court failed
to appoint counsel to represent Lewis during the criminal trial
as to the uncharged misconduct; the trial court failed to advise
2
Further, it is not clear that the habeas court discounted
the expert’s entire testimony. For example, the expert testified
that trial counsel’s performance was deficient regarding
introduction of the audio tapes. The habeas court conceded that
counsel’s actions might have been deficient, but explained that
Lewis failed to establish the remaining requirement to prevail on
his claim of ineffective assistance of counsel. Thus, the habeas
court considered the expert’s testimony but did not accept his
legal conclusion.
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Lewis of his Fifth Amendment rights regarding his testimony about
the uncharged misconduct; and the trial court considered the
uncharged misconduct as evidence of consciousness of guilt. In
essence, Lewis' claim was "that the court violated his sixth
amendment right to counsel by failing to appoint an attorney to
represent him during the criminal trial with respect to other
charges in a separate proceeding." Lewis, 117 Conn. App. at 122.
Lewis also contends that the habeas court failed to consider the
testimony of his expert witness.
This last allegation repeats
the third ground for relief addressed above and will not be
discussed again.
The Connecticut Appellate Court declined to review Lewis'
right to counsel claim because he "failed to cite any case law or
offer any meaningful analysis with respect to his claim that . .
. he was entitled to representation with respect to separate
pending charges in a different proceeding." Id. at 127-28.
Thus,
the claim was procedurally defaulted.
As explained above, to obtain federal review of this claim,
Lewis must demonstrate cause for failing to properly present the
claim to the Connecticut Appellate Court and prejudice resulting
therefrom.
See Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
With regard to cause, Lewis argues that any error was committed
by his attorney.
The court assumes that Lewis is arguing that
ineffective assistance of counsel constitutes cause for the
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procedural default.
See Pet’r’s Reply Br., Doc. #28, at 11.
Lewis is correct that ineffective assistance of counsel in
violation of the Sixth Amendment can constitute cause for
procedural default.
See Jones v. Armstrong, 367 F. App'x 256,
257 (2d Cir. 2010) (citing Murray v. Carrier, 477 U.S. 478, 488
(1986)).
Here, however, the attorney whose actions are alleged
to have caused the procedural default was not trial counsel, but
the attorney who represented Lewis on the appeal of his first
state habeas action.
The actions of habeas appellate counsel
generally do not constitute cause to excuse a procedural default
because there is no constitutional right to counsel in the appeal
of a state habeas action.
See Coleman v. Thompson, 501 U.S. 722,
757 (1991) (“Because [the petitioner] had no [constitutional]
right to counsel to pursue his appeal in state habeas, any
attorney error that led to the default of [his] claims in state
court cannot constitute cause to excuse the default in federal
habeas.”).3
Thus, Lewis does not identify cause for the failure to
properly brief the claim.
In addition, as discussed above, Lewis
3
The Court recognizes that the Supreme Court recently
"qualifie[d] Coleman by recognizing a narrow exception:
Inadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner's procedural
default of a claim of ineffective assistance at trial." Martinez
v. Ryan, No. 10-1001, 2012 U.S. Lexis 2317,at *14 (U.S. March 20,
2012). This "narrow exception" does not apply to this claim,
which is not a claim of ineffective assistance at trial.
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cannot meet the actual innocence exception.
For these reasons,
the petition for writ of habeas corpus is denied as to this
claim.
E.
Ineffective Assistance of Trial Counsel
In his final ground for relief, Lewis argues that trial
counsel was ineffective because he failed to present available
exculpatory evidence, review all evidence, listen to the audio
tapes made by prison officials of conversations between Lewis and
the Carvel supervisor, and properly investigate any and all
potential witnesses.4
He argues that the habeas court’s decision
on his ineffective assistance of counsel claim was based on an
unreasonable determination of the facts.
An ineffective assistance of counsel claim is reviewed under
the standard set forth in Strickland v. Washington, 466 U.S. 668
(1984).
To prevail, Lewis 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.
4
Although Lewis pursued ineffective assistance of counsel
claims on appeal, he has never presented any of these reasons for
ineffective assistance to the Connecticut Appellate or Supreme
Courts. Thus, it appears that these particular claims have not
been exhausted. See Caballero v. Keane, 42 F.3d 738, 740-41 (2d
Cir. 1994) (petitioner must present to federal court the same
theory of ineffective assistance of counsel asserted in state
court). The court notes, however, that even if these claims were
unexhausted, the court retains the ability to review and deny the
claims on the merits. See 28 U.S.C. § 2254(b)(2); Rhines v.
Weber, 544 U.S. 269, 277 (2005).
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Id. at 687-88. Counsel is presumed to be competent and the
accused bears the burden of demonstrating unconstitutional
representation.
United States v. Cronic, 466 U.S. 648, 658
(1984).
To satisfy the prejudice prong of the Strickland test, Lewis
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.
694.
Strickland, 466 U.S. at
The court evaluates counsel’s conduct at the time the
decisions were made, not in hindsight, and affords substantial
deference to counsel’s decisions.
374, 381 (2005).
Rompilla v. Beard, 545 U.S.
To prevail, Lewis must demonstrate both
deficient performance and sufficient prejudice.
Thus, if the
court finds one prong of the standard lacking, it need not
consider the remaining prong.
The habeas court correctly identified Strickland as the
governing law and applied the two-prong standard in analyzing
this claim.
Thus, the state court decision is not contrary to
clearly established federal law.
The habeas court reviewed the evidence and concluded that
Lewis failed to demonstrate deficient performance with regard to
the claims that trial counsel failed to present available
exculpatory evidence, review all evidence and properly
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investigate any and all potential witnesses.
The court noted
that Lewis failed to identify any of the evidence that trial
counsel failed to review or any witnesses he failed to
investigate.
The burden of demonstrating deficient performance
was on Lewis.
Absent any indication as to what the witnesses
would have stated or what the evidence would have shown, Lewis
failed to meet that burden.
Lewis, 2007 WL 2757268, at *5.
Lewis also argued that trial counsel failed to introduce a
videotape showing that Lewis was miles away from the store at the
time of the robbery.
The habeas court dismissed this claim as
absurd in light of Lewis’ admission that he was in the store and
took part in a larceny.
Id. at *6.
Regarding the claim that trial counsel was ineffective for
failing to listen to the audio tapes prior to trial, the habeas
court found that Lewis failed to satisfy the prejudice prong of
the Strickland test.
The habeas court noted that, even
discounting Lewis’ admissions regarding the conversations
recorded on the audio tapes, the evidence against him was strong.
Lewis admitted to participating in a larceny.
The victims
testified that he entered the store wearing a mask and black
hooded sweatshirt pulled up over his head; both victims saw that
he had a gun; he told the supervisor that he was robbing the
store; he threatened the supervisor stating that "you don't want
to have to die for somebody else's money . . . ." Id. at *7. He
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then took money from the safe and cash register and left the
store.
Based on this evidence, the habeas court concluded that
Lewis failed to establish that the result of the trial would have
been different if the audio tapes were not introduced.
Id.
The habeas court reasonably applied the Strickland standard
in its analysis of the ineffective assistance of counsel claims.
Accordingly, the petition for writ of habeas corpus is denied as
to this claim.
V.
Conclusion
The petition for writ of habeas corpus [Doc. #1] is DENIED.
The court concludes that Lewis has not demonstrated the denial of
a constitutional right.
Accordingly, a certificate of
appealability will not issue.
The Clerk is directed to enter
judgment and close this case.
SO ORDERED this 13th day of April 2012, at Hartford,
Connecticut.
___/s/ DJS__________________________________
Dominic J. Squatrito
United States District Judge
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