Osoria v. Warden
Filing
10
ORDER denying petition for writ of habeas corpus. Signed by Judge Warren W. Eginton on 11/21/11. (Ladd-Smith, I.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ADAM OSORIA
v.
:
:
:
:
:
WARDEN
PRISONER
Case No. 3:11-cv-637(WWE)
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Adam Osoria (“Osoria”), an inmate confined at the
MacDougall-Walker Correctional Center in Suffield, Connecticut,
brings this action pro se for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 (2000).
He challenges his conviction for
robbery in the first degree, attempt to commit robbery in the
first degree and larceny in the third degree as an accomplice.
For the reasons that follow, the petition should be denied.
I.
Factual Background
The Connecticut Appellate Court determined that the jury
reasonably could have found the following facts.
On the evening
of January 8, 2002, Osoria was at a housing project in New Haven,
Connecticut, along with four other men:
Jimmy Santos (“Santos”),
Christin Lopez (“Lopez”), Jose Ramos (“Ramos”) and a man
identified only as “Jose.”
car.
They walked to East Haven to steal a
Osoria had a sawed-off shotgun with him.
When they reached
a condominium project in East Haven, the men forcibly entered a
Honda Accord and Osoria drove the car away.
State v. Osoria, 86
Conn. App. 507, 509, 861 A.2d 1207, 1208 (2004).
Later, Jose was driving the car on Orchard Street in New
Haven when the men saw Robert Long (“Long”) and Bruce Sherents
(“Sherents”) walking down the street with a marijuana cigar.
When Jose pulled the car along side Long and Sherents, Osoria and
Ramos exited the car wearing masks and gloves.
Long and Sherents’ possessions.
Osoria struck Long with his fist
and Ramos struck Sherents with the shotgun.
pager.
They demanded
Ramos took Sherents’
During the altercation, Lopez left the car and picked up
the marijuana cigar from the sidewalk where Long or Sherents had
dropped it.
The five men then drove away.
Id. at 509-10, 861
A.2d at 1208.
A Hamden police officer observed the car speeding through an
intersection and began pursuit.
The Honda reached speeds in
excess of 100 miles per hour before crashing on a residential
property.
The five men ran from the vehicle to avoid capture.
Osoria, Ramos, Santos and Jose hid in a nearby condominium
complex until they no longer detected any police activity in the
area.
Lopez ran in another direction.
When the four men emerged
from hiding, they saw a Nissan Altima parked nearby with the
engine running.
The owner of the Nissan was a short distance
away delivering newspapers.
Osoria and the other three men got
into the Nissan and Osoria drove the car away.
Id. at 510, 861
A.2d at 1208.
Following a high speed chase through New Haven, West Haven
and Milford, Osoria drove Ramos to his home and then abandoned
2
the Nissan in a public housing project in New Haven.
Santos and Jose ran from the car to avoid capture.
arrested several days later.
II.
Osoria,
Osoria was
Id., 861 A.2d at 1209-10.
Procedural Background
As a result of the events of January 8, 2002, the prosecutor
filed two cases charging Osoria with robbery in the first degree,
attempt to commit robbery in the first degree and two counts of
larceny in the third degree as an accessory.
consolidated for trial.
The cases were
Following a jury trial, Osoria was found
guilty of all charges and sentenced to a total effective term of
imprisonment of thirty-three years.
Upon review by a three judge
panel of the Sentence Review Division, the sentence was reduced
to a sentence of thirty-three years, execution suspended after
eighteen years, followed by five years probation.
See State v.
Osoria, No. CR02-00781, 2006 WL 337207 (Conn. Super. Ct. Jan. 24,
2006).
On direct appeal, Osoria challenged the sufficiency of the
evidence presented at trial.
The Connecticut Appellate Court
affirmed the convictions and the Connecticut Supreme Court denied
certification to appeal further.
State v. Osoria, 86 Conn. App.
507, 509, 522, 861 A.2d 1207, 1209, 1216 (2004), cert. denied,
273 Conn. 910, 870 A.2d 1082 (2005).
In December 2004, Osoria filed a petition for writ of habeas
corpus in state court.
The amended petition asserted eight
instances of ineffective assistance of counsel.
3
The state court
divided these claims into five categories:
(1) trial counsel
failed to use a translator when meeting with Osoria and failed to
provide a translator to assist Osoria in reviewing case
materials; (2) trial counsel failed to present evidence that
Osoria ran from the police because he was afraid and feared the
police would assault him and that he suffered from a leg injury
that prevented him from performing the acts alleged; (3) trial
counsel failed to interview and call as witnesses several of the
co-defendants; (4) trial counsel failed to communicate with
Osoria regarding what was occurring in the case and did not
explain Osoria’s options before and during the trial; and (5)
trial counsel failed to request a jury charge regarding codefendant’s testimony.
Osoria v. Warden, No. TSR-CV05-40002515-
S, 2008 WL 5511263, at *5 (Conn. Super. Ct. Dec. 12, 2008).
Following a hearing at which Osoria, trial counsel, the
prosecutor and two co-defendants testified, the trial court
denied the petition.
Osoria raised only two issues on appeal,
that trial counsel failed to present evidence of a leg injury and
failed to utilize a translator.
See Doc. #8, App. L, Record on
Appeal of Habeas Court’s Decision, at 3-5 & App. M, Petitioner’s
Brief on Appeal of the Habeas Court’s Decision, at 4.
The
Connecticut Appellate Court dismissed the appeal without opinion
and the Connecticut Supreme Court denied certification.
Osoria
v. Commissioner of Correction, 120 Conn. App. 902, 990 A.2d 391,
cert. denied, 297 Conn. 904, 994 A.2d 1288 (2010).
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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, 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
State court proceeding.
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.
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
5
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, or refuses to extend a legal principle clearly
established by the Supreme Court to circumstances intended to be
encompassed by the principle.
Davis v. Grant, 532 F.3d 132, 140
(2d Cir. 2008), cert. denied, ___ U.S. ___, 129 S. Ct. 1312
(2009).
The state court decision must be more than incorrect; it
also must be objectively unreasonable, which is a substantially
higher standard.
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); 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.
Id.
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IV.
Discussion
Osoria challenges his conviction on two grounds:
insufficiency of the evidence and ineffective assistance of trial
counsel for failing to request a jury instruction on accomplice
liability.
The respondent argues that the petition should be
denied because the state court decisions on these issues were
neither contrary to nor an unreasonable application of clearly
established federal law.
A.
Sufficiency of the Evidence
The Due Process Clause protects a criminal defendant against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.
Fiori v. White, 531 U.S. 225, 228-29 (2001).
Federal courts,
however, do not relitigate state trials and make independent
determinations of guilt or innocence.
See Herrera v. Collins,
506 U.S. 390, 401-02 (1993).
When a federal habeas petitioner challenges the sufficiency
of the evidence used to convict him, the court must view the
evidence in the light most favorable to the prosecution and
determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
The
court must defer to the trier of fact and presume that the trier
of fact resolved any conflicts in favor of the prosecution.
Thus, constitutional sufficiency of the evidence review is
sharply limited.
Wright v. West, 505 U.S. 277, 296 (1992).
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Credibility determinations, for example, generally are beyond the
scope of review.
See Schlup v. Delo, 513 U.S. 298, 319 (1995).
When considering a sufficiency of the evidence claim, the
federal court looks to state law to determine the elements of the
crime.
Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002).
The federal court is bound by a state court’s interpretation of
state law.
Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
Although the Connecticut Appellate Court did not cite any
federal statutes when articulating the standard of review for
insufficiency of the evidence claims, the state court’s analysis
conforms to the federal standard.
Thus, the decision of the
Connecticut Appellate Court is not contrary to clearly
established federal law.
See Early v. Packer, 537 U.S. 3, 8
(2002) (holding that state court need not be aware of nor cite
relevant Supreme Court cases, so long as the reasoning and
decision do not contradict the applicable law).
The court considers below whether the Connecticut Appellate
Court’s analysis of the sufficiency of the evidence challenges to
the four charges reasonably applied clearly established federal
law.
1.
Robbery in the First Degree of Bruce Sherents
The Connecticut Appellate Court set forth the elements of
robbery in the first degree.
The state was required to prove
that Osoria or another participant in the crime was in the course
of committing a robbery and that Osoria or the other participant
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displayed or threatened the use of a firearm.
A robbery is
defined as using or threatening the immediate use of physical
force upon another person in the course of committing a larceny.
The force is intended to prevent or overcome resistance to taking
the property or to compel the owner to surrender the property.
Larceny is defined as wrongfully taking property from an
individual with the intent to deprive the individual of the
property.
Osoria, 86 Conn. App. at 511-12, 861 A.2d at 1210.
Santos testified for the state.
He described the events of
the evening including Osoria’s part in the robbery and stated
that Ramos was carrying the shotgun.
Sherernts and Long, the
victims of the robbery, testified at the trial.
the car and described the robbery.
They identified
Although they could not
identify Osoria because the men were wearing hooded sweatshirts,
masks and gloves, they did describe the height of the unarmed
man.
Id. at 512-14, 861 A.2d at 1210-11.
Osoria noted that the victims could not identify him and
that the only evidence specifically linking him to the crimes
came from Santos.
He challenged Santos’ testimony as not
credible and, therefore, insufficient evidence to support his
conviction.
The Connecticut Appellate Court noted that the court
must defer to the credibility determination of the trier of fact.
In this case, the jury made its credibility determination after
observing the conduct and demeanor of the witnesses.
15, 861 A.2d at 1211-12.
Id. at 514-
Osoria has presented no evidence
9
showing that this determination was clearly erroneous.
The state
court’s treatment of this challenge comports with federal law.
See Schlup v. Delo, 513 U.S. 298, 319 (1995) (credibility
determinations are beyond the scope of review on a sufficiency of
evidence claim); Herrera v. Collins, 506 U.S. 390, 401 (1993)
(holding that habeas court must defer to assessments of weight of
the evidence and credibility determinations of witnesses made by
the jury and may not substitute its view of the evidence for that
of the jury).
Osoria asserted three other challenges to support his
contention that the evidence was insufficient to support the
robbery charge.
First, he argued that there was no evidence to
show that he used the shotgun.
The Connecticut Appellate Court
dismissed this argument because the state statute required only
that one of the participants in the robbery display or use a
firearm.
Because Ramos displayed and used the shotgun, this
element was satisfied.
Osoria, 86 Conn. App. at 515, 861 A.2d at
1212.
Second, Osoria claimed that the value of the marijuana
cigar, the initial focus of the robbery, did not rise to the
level of the statutory definition of the crime.
The Connecticut
Appellate Court dismissed this argument because the definition of
robbery in the first degree does not include any minimum monetary
value of the stolen property.
Id. at 515-16, 861 A.2d at 1212.
Finally, Osoria noted that Long testified that when Osoria
10
saw the other man strike Sherents with the shotgun, Osoria told
the man not to shoot Sherents.
demonstrated renunciation.
Osoria argues that this statement
The Connecticut Appellate Court noted
that Osoria had not raised a defense of renunciation at trial
and, even if he had, renunciation was not applicable.
The fact
that Osoria asked his companion not to shoot the victim does not
support a finding that he renounced his participation in the
robbery.
Id. at 516, 861 A.2d at 1212-13.
In its treatment of these three challenges, the Connecticut
Appellate Court explained that there was no basis for any of the
challenges under Connecticut law.
The federal court is bound by
the state court’s interpretation of state law.
U.S. at 76.
Bradshaw, 546
Osoria fails to demonstrate that the Connecticut
Appellate Court’s treatment of this claim was an unreasonable
application of clearly established federal law.
The petition for
writ of habeas corpus is denied as to this claim.
2.
Attempt to Commit Robbery in the First Degree of
Robert Long
The Connecticut Appellate Court explained that to support a
conviction on the charge of attempt to commit robbery in the
first degree, the state had to show that Osoria acted with the
mental state required for the commission of robbery in the first
degree and intentionally did something that was a substantial
step in a course of conduct that would result in the commission
of the crime of robbery in the first degree.
11
The Connecticut
Appellate Court relied on the testimony of Long, Sherents and
Santos to support this claim.
The court noted that Osoria’s challenge again was based on
his contention that Santos’ testimony was not credible.
The
Connecticut Appellate Court rejected Osoria’s challenge to
Santos’ testimony in its analysis of the previous claim.
Thus,
the court rejected the challenge to the attempted robbery charge
as well.
Osoria, 86 Conn. App. at 516-17, 861 A.2d at 1213.
For
the reasons stated above, the court concludes that the
Connecticut Appellate Court’s treatment of this claim comports
with federal law.
3.
The petition is denied as to this claim.
Larceny in the Third Degree as an Accessory re
Honda
To prove the charge of larceny in the third degree as an
accessory, the state was required to show that the property in
question was a motor vehicle valued at $5,000 or less.
In
addition, the state had to prove that Osoria intended to deprive
another person of property and solicited or intentionally aided
another in committing the larceny.
Id. at 517-18, 861 A.2d at
1213.
The Connecticut Appellate Court determined that the
testimony at trial supported the charge.
The owner of the Honda
testified that she did not know Osoria or any other person
charged with participating in the larceny and did not give anyone
permission to take her car.
Santos testified that the men walked
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to East Haven to steal a car, preferably a Honda.
The men used a
screwdriver to break into and start the car and Osoria drove the
car away.
Again, Osoria challenged the credibility of Santos’
testimony and argued that the state failed to present any
fingerprint evidence showing that he had been in or had driven
the car.
Id. at 518 & n.6, 861 A.2d at 1213-14 & n.6.
The Connecticut Appellate Court explained that Santos’
testimony provided sufficient evidence to support the conviction
and noted that the state was not required to present fingerprint
evidence to prove its case.
Also, the state did not have to
prove that Osoria broke into or started the car.
The evidence
supports a determination that Osoria “solicited, requested,
commanded, importuned or intentionally aided” in the commission
of the larceny.
This was all the state was required to prove.
Id. at 518-19, 861 A.2d at 1214.
The Connecticut Appellate Court
properly construed the evidence in favor of the prosecution and
reasonably applied federal law.
The petition for writ of habeas
corpus is denied as to this claim.
4.
Larceny in the Third Degree as an Accessory re
Nissan
The Connecticut Appellate Court also concluded that the
evidence presented at trial was sufficient to support Osoria’s
conviction for larceny in the third degree as an accessory with
regard to the Nissan.
Santos testified that he, Osoria and two
others observed the Nissan unattended with exhaust coming from
13
the muffler.
away.
Osoria got into the driver’s seat and they drove
Although the owner chased them and told them to stop, they
did not stop the car.
They removed the hubcap covers and
discarded newspapers that were in the car.
The owner of the
Nissan testified that he often left his car unlocked and running
while he made frequent stops delivering newspapers.
He estimated
the value of the Nissan as between $3,000 and $4,000.
Id. at
519-21, 861 A.2d at 1214-15.
Osoria argued that the evidence was insufficient to support
this charge because the car was running with the keys in the
ignition and there was no testimony as to the exact value of the
car.
The Connecticut Appellate Court explained that the fact
that the car was unlocked with the keys in the ignition did not
negate Osoria’s participation in a plan to deprive the owner of
his vehicle.
In addition, the statute required only that the
property be valued at $5,000 or less.
The owner was competent to
testify regarding the value of his car and his estimate was
within the statutory requirement.
As discussed above, the
Connecticut Appellate Court concluded that the jury could have
found Santos credible and the state properly relied on Santos’
testimony to establish the elements of the crime.
861 A.2d at 1215-16.
Id. at 521-22,
Again, the Connecticut Appellate Court
reasonably applied federal law in analyzing this claim.
The
petition for writ of habeas corpus is denied on this claim.
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B.
Ineffective Assistance of Counsel
1.
Exhaustion of State Court Remedies
As an initial matter, the respondent notes that Osoria
failed to exhaust his state court remedies on his ineffective
assistance of counsel claim.
A prerequisite to habeas corpus relief under 28 U.S.C. §
2254 is the exhaustion of available state remedies.
O’Sullivan
v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A).
The Second Circuit requires the district court to conduct a twopart inquiry.
First, a petitioner must present the factual and
legal bases of his federal claim to the highest state court
capable of reviewing it.
Second, he must have utilized all
available means to secure appellate review of his claims.
See
Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir.), cert. denied,
544 U.S. 1025 (2005).
Before the federal court will consider a claim of
ineffective assistance of counsel, the allegations must have been
presented to the state courts to allow those courts “the
opportunity to consider all the circumstances and the cumulative
effect of the claims as a whole.”
Caballero v. Keane, 42 F.3d
738, 740-41 (2d Cir. 1994) (internal quotation marks omitted;
emphasis in original).
Thus, Osoria must present all of the
examples of ineffective assistance to the state courts at all
levels of review.
Although Osoria included this ineffective assistance of
15
counsel claim in his amended state habeas petition, he did not
seek appellate review of the denial of this claim.
Thus, he has
not exhausted his state court remedies on the claim.
See Jones
v. Keane, 329 F.3d 290, 295 (2d Cir.) (claims presented to state
courts must be the “substantial equivalent” of claims raised in
federal habeas petition), cert. denied, 540 U.S. 1046 (2003).
Despite the fact that the claim is not exhausted, this court
retains the discretion to excuse the failure to exhaust and
consider the merits of the claim if the court intends to deny the
petition in its entirety.
Rhines v. Weber, 544 U.S. 269, 277
(2005); 28 U.S.C. § 2254(b)(2).
As the court determines below
that Osoria’s ineffective assistance of counsel claim is without
merit, the court will excuse Osoria’s failure to exhaust his
state court remedies on this claim.
2.
Failure to Request Charge on Accomplice Liability
An ineffective assistance of counsel claim is reviewed under
the standard set forth in Strickland v. Washington, 466 U.S. 668
(1984).
To prevail, Osoria 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.
Counsel is presumed to be competent.
Osoria
bears the burden of demonstrating unconstitutional
representation.
United States v. Cronic, 466 U.S. 648, 658
(1984).
16
To satisfy the prejudice prong of the Strickland test,
Osoria 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.
466 U.S. at 694.
Strickland,
The court evaluates counsel’s conduct at the
time the decisions were made, not in hindsight, and affords
substantial deference to counsel’s decisions.
545 U.S. 374, 381 (2005).
Rompilla v. Beard,
To prevail, Osoria 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 court is not required to consider only a decision from
the state’s highest court when reviewing federal habeas claims.
The court analyzes the last reasoned state court decision to
determine whether the decision is contrary to or an unreasonable
application of federal law.
Neither the Connecticut Appellate
Court nor the Connecticut Supreme Court addressed the merits of
Osoria’s ineffective assistance of counsel claim.
Thus, the
court considers the decision made by the trial court following
the habeas hearing.
See Ylst v. Nunnemaker, 501 U.S. 797, 804
(1991); see also, e.g., McKinney v. Artuz, 326 F.3d 87, 89 (2d
Cir. 2003) (reviewing a trial court’s denial of peremptory
challenge under 28 U.S.C. § 2254(d)(1)).
Osoria argues that trial counsel was ineffective because he
17
failed to request a jury charge on accomplice liability.
In
analyzing this claim, the state court identified the standard
established in Strickland as the applicable law and applied that
standard to the facts.
See Osoria, 2008 WL 5511263, at *5.
Because the state court applied the correct legal standard, the
state court decision is not contrary to federal law.
Accordingly, this court will consider whether the Connecticut
Superior Court reasonably applied the law to the facts.
The state habeas court found the following facts.
Trial
counsel’s usual practice was to submit proposed jury
instructions.
He did not recall whether he did so in this case,
but remembered a charging conference with the court.
The state
court instructed the jury on what they should consider when
evaluating and using accomplice testimony.
Trial counsel
testified that he believed the charge given properly informed the
jury of the applicable law.
Id., 2008 WL 5511263, at *4.
A jury charge in a state trial generally is a matter of
state law.
Thus, claims regarding the jury charge are not
reviewable on federal habeas corpus absent a showing that the
alleged errors were so serious that they deprived the petitioner
of a federal constitutional right.
The relevant question in a
habeas proceeding is “whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates
due process,” not merely whether the instruction is undesirable
or erroneous.
Waddington v. Sarausad, 555 U.S. 179, 191 (2009)
18
(citations omitted).
The Second Circuit has held that when a
trial court’s instruction is legally correct as given, the
failure of counsel to request additional instruction is not
deficient performance.
Deficient performance arises only when
the charge as given contains “clear and previously identified
errors.”
Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001).
The charge given at Osoria’s trial specifically cautioned
the jury to be mindful of the motivation of the accomplice in
testifying and to weigh his credibility in light of his
participation in the crimes.
The state habeas court determined
that the instruction given “mirrored” an accomplice charge that
was approved by the Connecticut Supreme Court and concluded that
Osoria failed to demonstrate either deficient performance or
prejudice.
Osoria, 2008 WL 5511263, at *9.
Because the charge was a correct statement of Connecticut
law, it contained no errors and trial counsel did not exhibit
deficient performance by failing to request an additional charge.
This court concludes that the state court decision was an
objectively reasonable application of the Strickland standard.
The petition for writ of habeas corpus is denied on this ground.
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V.
Conclusion
The petition for writ of habeas corpus [Doc. #1] is DENIED.
The court concludes that Osoria 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 at Bridgeport, Connecticut, this 21st day of
November 2011.
Warren W. Eginton
Senior United States District Judge
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