Perez v. Dilworth et al
Filing
23
ORDER denying Petitioner's Writ of Habeas Corpus for reasons set forth in the attached Memorandum of Decision. The Clerk is directed to enter judgment against the Petitioner and to close this matter. Signed by Judge Vanessa L. Bryant on 02/23/2021. (Diamond, Matthew)
Case 3:17-cv-02162-VLB Document 23 Filed 02/23/21 Page 1 of 37
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
OMETRIUS PEREZ,
Petitioner,
v.
WARDEN DILWORTH, ET AL.,
Respondents.
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Case No. 3:17-cv-2162(VLB)
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Ometrius Perez (“Perez”), incarcerated and pro se, has filed
a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges
his state convictions for robbery in the first degree, burglary in the first degree
and larceny in the second degree. For the reasons that follow, the Court will not
review these claims because those claims are procedurally defaulted and will
deny the remaining claims.
I.
Procedural Background
On April 21, 1994, the State of Connecticut issued a warrant for the arrest
of Perez for having committed the offenses of robbery in the first degree, burglary
in the first degree and larceny in the first degree on April 16, 1994 in West
Redding, Connecticut. State v. Perez, 78 Conn. App. 610, 614–15, 828 A.2d 626,
633 (2003). On a subsequent date, the State of New York arrested Perez for
unrelated crimes occurring in that state. Id. On October 16, 1995, the State of
Connecticut sought temporary custody of Perez through the Interstate Agreement
on Detainers (IAD). Id. A pretransfer hearing was then held in the Dutchess
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County Supreme Court in New York at the request of Perez. After the hearing, a
judge granted the State of Connecticut’s request for the temporary removal of
Perez to face charges in Connecticut. Id.
On May 21, 1996, Connecticut State Police detectives executed the warrant
for the arrest of Perez and transported him from the Green Haven Correctional
Facility in Stormville, New York to the Troop A state police barracks in Southbury,
Connecticut. Id. On May 22, 1996, in State v. Perez, Case No. DBD-CR96-95711-S,
a judge in the Connecticut Superior Court for the Judicial District of Danbury
arraigned Perez on one count of robbery in the first degree in violation of Conn.
Gen. Stat. § 53a–134 (a)(2), one count of burglary in the first degree in violation of
Conn. Gen. Stat. § 53a–101(a)(1) and one count of larceny in the first degree in
violation of Conn. Gen. Stat. §§ 53a–119 and 53a–122 (a)(1). See Resp’ts’ Mem.
Opp’n Pet. Writ Habeas Corpus, App. B, ECF No. 18-2, at 4.
On August 12, 1996, Perez moved to suppress statements that he made to
the two Connecticut State Police detectives who transported him from New York
to Connecticut on May 21, 1996. Id. at 16-17. On October 24, 1996, a judge held a
hearing on the motion to suppress. See id., App. DD, ECF No. 18-41. On
November 8, 1996, the judge issued a memorandum of decision denying the
motion. See id. at App. B, ECF No. 18-2, at 18-29.
On that same date, the jury found Perez guilty of one count of robbery in
the first degree and one count of burglary in the first degree, not guilty as to the
count of larceny in the first degree and guilty as to the lesser included offense of
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larceny in the second degree in violation of Conn. Gen. Stat. § 53a–123. Id. at 15.
On December 20, 1996, a judge sentenced Perez to a total effective sentence of
thirty-five years of imprisonment to run consecutively to the sentence that Perez
was serving in the State of New York. Id.
Perez appealed his conviction on eight grounds.1 He argued that:
(1)the trial court improperly denied his motion to suppress the
statements he made while being transported from New York to
Connecticut, (2) the police improperly questioned him without
the presence of counsel, and the court improperly found that
he
knowingly,
intelligently
and
voluntarily
waived
his Miranda rights prior to being questioned, (3) the
prosecutor engaged in misconduct, (4) the defendant was
deprived of his right to a speedy trial, (5) his right to the
effective assistance of counsel was violated when the court
prohibited him from orally communicating with his attorney,
(6) his fifth amendment right against double jeopardy was
violated when he was convicted of burglary in the first degree
and robbery in the first degree, (7) the court improperly
instructed the jury and (8) there was insufficient evidence to
convict him of burglary in the first degree and robbery in the
first degree.
Perez, 78 Conn. App. at 612–13, 828 A.2d at 632.
On August 12, 2003, the Appellate Court affirmed the judgment of
conviction. Id. at 646, 828 A.2d 626 at 650. On September 8, 2004, the Connecticut
Supreme Court denied the petition for certification to review the decision of the
Connecticut Appellate Court. See State v. Perez, 271 Conn. 901, 859 A.2d 565
(2004).
1
The first three grounds were included in a brief filed by an attorney who had
been appointed to represent Perez on appeal and the remaining five grounds
were asserted by Perez in a supplemental pro se brief. See Resp’ts’ Mem. Opp’n
Pet. Writ Habeas Corpus, Apps. D, P, ECF Nos. 18-4, 18-17. Counsel withdrew as
3
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On August 10, 2006, Perez filed a petition for writ of habeas corpus in the
Connecticut Superior Court for the Judicial District of Tolland at Rockville. See
Perez v. Warden, No. TSR-CV06-4001319-S. On August 9, 2011, a judge issued a
memorandum of decision denying all grounds raised in the amended state
habeas petition. See Perez v. Warden, No. CV064001319, 2011 WL 4347038, at *2
(Conn. Super. Ct. Aug. 19, 2011)
On appeal from the decision denying the state habeas petition, Perez
raised eight grounds of ineffective assistance of trial counsel. See Resp’ts’ Mem.
Opp’n Pet. Writ Habeas Corpus, App. X, ECF No. 18-26, at 3-7. On February 7,
2017, the Connecticut Appellate Court dismissed the appeal from the decision of
the trial court dismissing the habeas petition. See Perez v. Comm'r of Correction,
170 Conn. App. 906, 154 A.3d 90 (2017) (per curiam). On April 5, 2017, the
Connecticut Supreme Court denied the petition for certification to review the
decision of the Connecticut Appellate Court. See Perez v. Comm'r of Correction,
325 Conn. 909, 158 A.3d 319 (2017). Perez commenced this action on December
27, 2017, having exhausted his state remedies.
II.
Facts
The jury reasonably could have found the following facts.
At approximately 2 a.m. on April 16, 1994, the victim, Paul Levine,
was awakened from sleep when somebody turned on the ceiling light
in his bedroom. Upon awakening, Levine saw [Perez] holding a gun
in the doorway of the bedroom. [Perez] ordered Levine, at gunpoint,
to keep his head down or he would kill him. [Perez] then took cash
and jewelry from Levine valued at between $10,800 and $10,900.
Perez’s attorney before the Connecticut Appellate Court issued its decision.
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Levine was then ordered to go into his bathroom and not to leave.
Shortly after entering the bathroom, Levine heard the front screen
door close. Levine then called 911. The defendant subsequently was
arrested in New York on May 21, 1996 and transported to
Connecticut.
Perez, 78 Conn. App. at 613, 828 A.2d at 632–33.
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. See 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 statecourt rulings and “demands that state-court decisions be given the benefit of the
doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted).
A federal court cannot grant a state prisoner’s petition for a writ of habeas corpus
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). That standard is very difficult to meet. See Metrish v.
Lancaster, 569 U.S. 351, 357-58 (2013).
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Clearly established federal law is found in “holdings,” not “dicta,” of the
Supreme Court at the time of the state court decision. Howes v. Fields, 565 U.S.
499, 505 (2012) (internal quotation marks and citation omitted. “[C]ircuit
precedent does not constitute ‘clearly established Federal law, as determined by
the Supreme Court,’” and “therefore cannot form the basis for habeas relief.”
Parker v. Matthews, 567 U.S. 37, 48 (2012) (quoting 28 U.S.C. § 2254(d)(1)). The
law in question may be either a “generalized standard” or a “bright-line rule
designed to effectuate such a standard in a particular context.” Kennaugh v.
Miller, 289 F.3d 36, 42 (2d Cir. 2002).
A decision is “contrary to . . . clearly established Federal law” when the
state court “applies a rule different from the governing law set forth” by the
Supreme Court or when it “decides a case differently than [the Supreme Court]
has done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S.
685, 693-94 (2002). A decision “involve[s] an unreasonable application of . . .
clearly established Federal law” when the state court has correctly identified the
governing law, but applies that law “unreasonably to the facts of a particular
prisoner’s case, or refuses to extend a legal principle that the Supreme Court has
clearly established to a new situation in which it should govern.” Davis v. Grant,
532 F.3d 132, 140 (2d Cir. 2008) (internal quotation marks and citation omitted). It
is not enough that "a federal court believes the state court’s determination was
incorrect” or erroneous. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Rather,
the state court’s application of clearly established law must be “objectively
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unreasonable, not merely wrong; even clear error will not suffice.” Woods v.
Donald, 575 U.S. 312, 316 (2015) (internal quotation marks and citations omitted).
Thus, a state prisoner must show that the challenged court ruling “was so lacking
in justification that there was an error well understood and comprehended in
existing law beyond any possibility of fairminded disagreement.” Harrington v.
Richter, 562 U.S. 86, 103 (2011); see also Burt v. Titlow, 571 U.S. 12, 20 (2013)
(federal habeas relief warranted only where the state criminal justice system has
experienced an “extreme malfunction”).
When reviewing a habeas petition, the federal court presumes that the
factual determinations of the state court are correct. The petitioner bears the
burden to rebut that presumption by “clear and convincing evidence.” 28 U.S.C. §
2254(e)(1); see also Cullen v. Pinholster, 563 U.S. 170, 181 (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.” Cullen, 563 U.S. at 181.
A prerequisite to habeas relief under section 2254 is the exhaustion of all
available state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28
U.S.C. § 2254(b)(1)(A). To meet the exhaustion requirement, a petitioner must
present the essential factual and legal bases of his federal claim to each
appropriate state court, including the highest state court capable of reviewing it,
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in order to give state courts a full and fair “opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam) (internal quotation marks and citation omitted). A federal claim
has been “fairly present[ed] in each appropriate state court, including a state
supreme court with powers of discretionary review,” if it “alert[s] that court to the
federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal
parentheses and quotation marks omitted).
An important “corollary” to the exhaustion requirement is the doctrine of
procedural default. Dretke v Kindler, 558 U.S. 53, 55 (2004). Pursuant to that doctrine,
“a federal court may not review federal claims that were procedurally defaulted in
state court—that is, claims that the state court denied based on an adequate and
independent state procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). The
Supreme Court has observed that when a state court denies or declines to review a
federal claim because the petitioner failed to meet a state procedural rule or
requirement, the petitioner has deprived the state court of the opportunity to address
the merits of that claim. See Coleman v. Thompson; 501 U.S. 722, 731-32 (1991). Thus,
“the procedural default doctrine . . . advances the same comity, finality, and
federalism interests advanced by the exhaustion doctrine.” Davila, 137 S. Ct. at 2064.
Exceptions to the doctrine barring procedurally defaulted claims from being
heard in federal court exist. A state prisoner may obtain federal habeas review
despite having defaulted on his federal claim in state court pursuant to an
independent and adequate state procedural rule if he can demonstrate cause for the
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default and actual prejudice resulting from the default. See id. at 2064-65. Procedural
default may also be excused if a petitioner “can demonstrate a sufficient probability
that [the habeas court's] failure to review his federal claim will result in a fundamental
miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing
Coleman, 501 U.S. at 750).
IV.
Discussion
Perez asserts five grounds in the present petition. He argues that the trial court
erred in failing to dismiss the information due to a violation of the speedy trial
provisions of the IAD; the trial court denied him the assistance of counsel during the
hearing on a motion to suppress; the trial court’s instructions to the jury were
misleading and inadequate; insufficient evidence existed to support his convictions
for burglary in the first degree and robbery in the first degree; and trial counsel was
ineffective in eight different ways. See Pet. Writ Habeas Corpus, ECF No. 1, at 9-19,
22-31, 36-38, 42-52.
A.
Interstate Agreement on Detainers
Perez argues that the trial court erred in not dismissing the information
charging him with the offenses of burglary, robbery and larceny on the ground that it
violated the requirement under the IAD that he be tried within 120 days of the date
that he arrived in Connecticut. Perez exhausted this claim by raising it on direct
appeal to the Connecticut Appellate and Supreme Courts.
Article IV (c) of the IAD provides that the “trial shall be commenced within one
hundred twenty days of the arrival of the prisoner in the receiving state, but for good
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cause shown in open court, the prisoner or his counsel being present, the court
having
jurisdiction of
the matter
may grant
any necessary or
reasonable
continuance.” Conn. Gen. Stat. § 54–186. The Connecticut Appellate Court found the
following facts relevant to this claim.
Following a hearing in New York, the defendant was transferred to
Connecticut pursuant to the IAD on May 21, 1996. On September 20,
1996, the defendant sought dismissal of the charges, claiming that his
trial had not commenced within 120 days of his arrival in Connecticut. At
the hearing, the defendant argued that the statutory time limit expired on
September 18, 1996. The state then argued that as a result of the
defendant's requests for continuances, the time limit was not to expire
for another six weeks. The defendant agreed with the state's
representation to the court that his attorneys had asked for the
continuances; however, he stated that he did not agree with the
continuances. The court, Stodolink, J., rejected the defendant's
argument, finding that the 120 day period did not expire because it was
tolled for a total of six weeks and one day since his arrival in
Connecticut on May 21, 1996.
Perez, 78 Conn. App. at 629–30, 828 A.2d at 641.
In reviewing this claim, the Connecticut Appellate Court noted that the 120-day
period under the IAD commenced on May 21, 1996, when officers transported Perez
from New York to Connecticut. The court concluded, however, that the record of
proceedings in the trial court clearly reflected “that the defendant had asked for and
was granted continuances totaling seven weeks, which tolled the statutory time
period. Therefore, the required time in which the defendant's trial must have
commenced was extended by seven weeks to November 6, 1996.” Id. at 633, 828 A.2d
at 643. The State of Connecticut commenced the trial within the statutory time period
set forth in the IAD on October 16, 1996, and the jury was sworn in on October 24,
1996.” Thus, the Appellate Court ruling upholding the trial judge’s determination that
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the Perez trial “was timely was legally and logically correct, finding support in the
facts that appear in the record.” Id.
The United States Supreme Court has observed that although the “IAD is
indeed state law, it is a law of the United States as well.” Reed v. Farley, 512 U.S. 339,
342 (1994) (citing Carchman v. Nash, 473 U.S. 716, 719 (1985); Cuyler v. Adams, 449
U.S. 433, 438-42 (1981)). In Reed, the Supreme Court held that a “state court's failure
to observe the 120-day rule of IAD Article IV(c) is not cognizable under § 2254 when
the defendant registered no objection to the trial date at the time it was set, and
suffered no prejudice attributable to the delayed commencement.” Id. at 352. Here,
the Connecticut Appellate Court ruled the trial judge granted Perez extensions of time
to commence jury selection. Thus, because Perez requested the delay rather than
opposing it, he waived his right to an earlier trial.
Further, Perez does not allege he was prejudiced by the delay he requested.
See Reed, 512 U.S. at 353 (“[Reed] does not suggest that his ability to present a
defense was prejudiced by the delay. Nor could he plausibly make such a claim.
Indeed, asserting a need for more time to prepare for a trial that would be “fair and
meaningful,” is the antithesis of prejudice. App. 128, Reed himself requested a delay
beyond the scheduled September 19 opening.”). Thus, the Connecticut Appellate
Court ruling that the trial court did not violate the 120-day requirement set forth in
IAD by refusing to dismiss the information as untimely is not an unreasonable
application of Supreme Court law. This claim is denied.
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B.
Denial of Assistance of Counsel – Suppression Hearing
On direct appeal, Perez argued that the trial judge restricted him from unlimited
oral communication with his attorney during the suppression hearing and that this
prohibition violated his Sixth Amendment right to counsel. The Connecticut Appellate
Court declined to review this claim on the ground that Perez had not requested
review of it under either the plain error doctrine or under State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823, 827-28 (1989). See Perez, 78 Conn. App. at 634, 828 A.2d at
644.
Respondents contend that the claim is procedurally defaulted because the
appellate court declined to address it due to the failure of Perez to meet an adequate
and independent state procedural rule. Respondents further argue that this court may
not review the defaulted claim absent a showing by Perez of cause for, and prejudice
from, the failure to raise the claim.
Under the procedural default doctrine, review by a district court of the merits of
a claim raised in a habeas petition is unavailable if (1) the “state court . . . declined to
address . . . the claim because the prisoner had failed to meet a state procedural
requirement, and (2) the state [court] judgment [or decision] . . . rests on independent
and adequate state procedural grounds.” Walker v. Martin, 562 U.S. 307, 315-16 (2011)
(internal quotation marks and citation omitted). A state rule or requirement must be
“firmly established and regularly followed” by the state court in question “[t]o qualify
as an adequate procedural ground.” Beard v. Kindler, 558 U.S. 53, 60 (2009) (internal
quotation and citation omitted).
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The Court finds the procedural rule requiring an appellant to request review in
their appellate brief was definite, well-established and regularly applied in 2003 when
the Connecticut Appellate Court declined to review Perez’s denial of assistance of
counsel claim. See e.g., State v. Constantopolous, 68 Conn. App. 879, 893, 793 A.2d
278 (2002); State v. Rodriguez, 68 Conn. App. 303, 308, 791 A.2d 621 (2002); State v.
Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d
904 (1995); Baker v. Cordisco, 37 Conn. App. 515, 522 n. 4, 657 A.2d 230 (1995); State
v. Carter, 34 Conn. App. 58, 91-92, 640 A.2d 610 (1994); State v. Johnson, 26 Conn.
App. 433, 438, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992).
Because the Appellate Court declined to consider the claim of trial court error
related to interference with Perez’s right to the assistance of counsel during the
suppression hearing due to the failure of Perez to adhere to an established and
regularly applied Connecticut rule of procedure, this Court holds the claim was
procedurally defaulted.
The claim is reviewable only if Perez can demonstrate cause for the default and
actual prejudice resulting from the default or he can show that failure to consider the
claim will result in a fundamental miscarriage of justice. See Edwards, 529 U.S. at 451
(citations omitted). To establish cause to overcome a procedural default, the
petitioner must identify “some external impediment preventing counsel from
constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 492 (1986). “A
factor is external to the defense if it cannot fairly be attributed to the prisoner.”
Davila, 137 S. Ct. at 2065 (internal quotation marks and citation omitted). Legitimate
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external factors include interference by state officials impeding compliance with state
rules or a showing that the factual or legal basis for a claim was not reasonably
available to defense counsel. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). In
addition, attorney error is an objective external factor providing cause for excusing a
procedural default, but only if that error amounted to a deprivation of the
constitutional right to effective assistance of counsel. See Edwards, 529 U.S. at 451.
Perez offers no evidence or facts to support the existence of cause for the default of
the claim or that he suffered any prejudice from the default.
The Supreme Court has held that a district court retains jurisdiction to review a
habeas petition filed pursuant to 28 U.S.C. § 2254 even if a petitioner has failed to
show cause or prejudice for procedural default “in the extraordinary instance[] when
a constitutional violation probably has caused the conviction of one innocent of the
crime.” Murray, 477 U.S. at 496. “In other words, a credible showing of actual
innocence may allow a prisoner to pursue his constitutional claims . . . on the merits
notwithstanding the existence of a procedural bar to relief.” McQuiggin v. Perkins,
569 U.S. 383, 392 (2013). This exception to the cause and prejudice standard for
consideration of defaulted claims is referred to as the “fundamental miscarriage of
justice exception.’” See id. (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
It is a difficult task to establish actual innocence. A petitioner must
demonstrate that “in light of all the evidence,’ ‘it is more likely than not that no
reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614,
623 (1998) (internal quotation marks and citation omitted). Furthermore, actual
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innocence requires “factual innocence, not mere legal insufficiency.” Id. An actual
innocence claim is not credible unless the petitioner “support[s] his allegations of
constitutional error with new reliable evidence-whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Such a claim may not be
“based on trial evidence, [where] courts presume the jury resolved evidentiary
disputes reasonably so long as sufficient evidence supports the verdict.” House v.
Bell, 547 U.S. 518, 538 (2006).
Perez has not shown any probability that this Court's failure to review his claim
of trial court error would result in a fundamental miscarriage of justice, as he has
offered no new evidence, scientific or otherwise, showing his actual innocence.
Thus, Perez has not met the fundamental miscarriage of justice exception to the
procedural default doctrine. Accordingly, the Court may not review the claim of trial
court error about the restriction on Perez’s right to communicate with his attorney
during the suppression hearing because it is procedurally defaulted. The claim is
dismissed.
C.
Inadequate Jury Instructions
Perez contends that the trial judge’s instructions to the jury on the elements of
the charges of robbery in the first degree, burglary in the first degree and burglary in
the second degree were inadequate or confusing and deprived him of his Fourteenth
Amendment right to due process, a fair trial and the right to be convicted on all
essential elements of the crimes charged based on proof beyond a reasonable doubt.
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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).
To warrant habeas corpus relief with regard to an improper jury instruction, the
petitioner must establish that 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). A petitioner must show “not merely that the instruction is undesirable,
erroneous, or even ‘universally condemned,’ but that it violated some right which was
guaranteed by the Fourteenth Amendment.” Cupp, 414 U.S. at 146. 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). “If the charge as a whole is ambiguous, the question is
whether there is a “‘reasonable likelihood that the jury has applied the challenged
instruction in a way’ that violates the Constitution.” Middleton v. McNeil, 541 U.S. 433,
437 (2004) (quoting Estelle, 502 U.S. at 72).
1.
Jury Instruction on Robbery in the First Degree
Although Perez raises a claim that the trial judge improperly instructed the jury
on the count of robbery in the first degree, he does not explain how the instruction
was deficient. Consequently, Perez is not entitled to the relief sought, having failed to
meet his burden of persuasion.
Furthermore, he did not raise this claim on direct appeal, and it is not apparent
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that he raised the claim in his state habeas petition or on appeal from the denial of
the petition. Thus, the claim is not exhausted as required by 28 U.S.C. § 2254(b)(1)(A).
Even if a claim has not been exhausted in state court, however, a federal court
may deem it exhausted if it determines that the state judicial system provides no
available avenues for review of the claim. See 28 U.S.C. § 2254(b)(3) (“An applicant
shall not be deemed to have exhausted the remedies available in the courts of the
State . . . if he has a right under the law of the State to raise, by any available
procedure the question presented”); Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001)
(if a claim is not exhausted because it has never been raised in a state court, “a
federal court may theoretically find that there is an absence of available corrective
process if it is clear that the unexhausted claim is procedurally barred by state law
and, as such, its presentation in the state forum would be futile”). Such a claim,
however, must also be deemed procedurally defaulted. Id. (“[W]hen the petitioner
failed to exhaust state remedies and the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement would
now find the claims procedurally barred,’ federal habeas courts also must deem the
claims procedurally defaulted.”) (quoting Coleman v. Thompson, 501 U.S. 722, 735
n.1 (1991)).
It is not apparent that Perez has an avenue in state court to raise this claim of
improper jury instruction because the claim is one that should have been raised on
direct appeal. Furthermore, Perez was acting as his own attorney in raising his other
claims of improper jury instructions on direct appeal. Thus, he could not attempt to
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exhaust the improper jury instruction claim related to the robbery charge by raising it
in a new state habeas petition as part of an ineffective assistance of counsel claim.
See Charles v. Lantz, No. 3:09CV588 MRK, 2010 WL 5113803, at *6 (D. Conn. Dec. 9,
2010) (“One who exercises the right of self-representation cannot contend that he
received ineffective assistance of counsel.”) (internal quotation marks and citation
omitted).
Thus, the claim that the trial court failed to properly instruct the jury on the
charge of robbery in the first degree is procedurally defaulted. Perez must
demonstrate cause and prejudice or a miscarriage of justice to permit the Court to
review this defaulted claim.
Perez offers no evidence or facts to support the existence of cause for the
default of this jury instruction claim. Nor has he demonstrated that he will suffer any
prejudice from the default. In addition, Perez has not shown any probability that this
court's failure to review his claim of deficient jury instruction on the charge of
robbery in the first degree would result in a fundamental miscarriage of justice, as he
has offered no new evidence, scientific or otherwise, showing his actual innocence.
Thus, Perez has not met the fundamental miscarriage of justice exception to the
procedural default doctrine. Accordingly, the Court may not review the claim of
improper jury instruction on the charge of robbery in the first degree because it is
procedurally defaulted. The claim is dismissed.
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2.
Jury Instructions on Burglary in the First and Second Degree
On direct appeal, Perez argued that the trial judge did not adequately define the
building element of the offense of burglary in the first degree; the trial judge did not
instruct the jury on the charge of burglary in the second degree; and the trial judge
improperly changed the state’s burden of proof on the charge of burglary in the
second degree with a firearm. Perez, 78 Conn. App. at 635-38, 828 A.2d at 645-46. The
Connecticut Appellate Court addressed these three contentions. See id.
Although the Connecticut Appellate Court’s analysis of the claim relied on
state law, it applied a standard of review consistent with Supreme Court precedent.
Id. at 635, 828 A.2d at 644. Because the Connecticut Appellate Court applied the
correct legal principles, the decision is not contrary to 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, as long as the reasoning and decision do not
contradict the applicable law). Thus, the Court considers whether the analysis of the
Connecticut Appellate Court was an unreasonable application of Supreme Court law.
Connecticut law provides, in pertinent part: “A person is guilty of burglary in
the first degree when (1) such person enters or remains unlawfully in a building with
intent to commit a crime therein and is armed with explosives or a deadly weapon or
dangerous instrument. . . .” Conn. Gen. Stat. § 53a-101(a). In reviewing the instruction
given by the judge as to the offense of burglary in the first degree, the Appellate
Court noted that the trial judge defined building in its ordinary meaning to include a
structure that may be used by a human being as a dwelling or a business. Perez, 78
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Conn. App. at 635-36, 828 A.2d at 645-46. Perez offered no explanation as to why this
definition of building was inadequate. Further, for purposes of the burglary statute,
the term building has “its ordinary meaning.” Conn. Gen. Stat. § 53a-100(a).
The Appellate Court held that the trial judge’s instruction on this element of the
offense was a proper statement of the law and that it was clear that the charge, as
read as a whole, did not mislead the jury. Id. Viewing the charge in context, the
Appellate Court reasonably applied Supreme Court law in concluding the instruction
on the elements of burglary in the first degree was not so ambiguous as to mislead
the jury. This jury instruction claim is denied.
With regard to the claim that the judge failed to charge the jury on the offense
of burglary in the second degree in violation of Conn. Gen. Stat. § 53a-102, the
Appellate Court observed that Perez had not requested a charge as to that offense.
Id. at 637, 828 A.2d at 645. Rather, Perez had only sought a jury instruction as to the
offense of burglary in the second degree with a firearm in violation of Conn. Gen.
Stat. § 53a-102a. In reviewing the jury charge as a whole, the Appellate Court
concluded that the instruction regarding the offense of burglary in the second degree
with a firearm would not have misled the jury. The Appellate Court reasonably applied
Supreme Court law in in its determination that the trial judge’s instructions on
burglary in the second degree with a firearm provided the jury with sufficient
guidance regarding the elements of that offense. Accordingly, this jury instruction
claim is denied.
D.
Insufficient Evidence
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Perez argues that the State of Connecticut failed to meet its burden of proving
all the elements of the charge of burglary in the first degree and robbery in the first
degree. The respondent contends that the Connecticut Appellate Court reasonably
applied Supreme Court law to the claim that there was insufficient evidence to
support the conviction for burglary in the first degree and that Perez procedurally
defaulted the claim that there was insufficient evidence to support the conviction for
the charge of robbery in the first degree.
The Due Process Clause prohibits conviction “except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which [the
defendant] is charged.” In re Winship, 397 U.S. 358, 364 (1970). When a defendant or
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.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). A federal court may not overturn a state court decision rejecting a sufficiency
of the evidence challenge unless the state court decision was “objectively
unreasonable.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (quoting Renico, 559 U.S. at
772). The Supreme Court “h[as] made clear that Jackson claims[—i.e., habeas claims
asserting insufficiency of the evidence—] face a high bar in federal habeas
proceedings because they are subject to two layers of judicial deference,” one layer
of deference to the jury, and a second layer of deference to the reviewing State
court. Coleman v. Johnson, 566 U.S. 650, 651 (2012) (citation omitted).
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1.
Burglary in the First Degree
On direct appeal, Perez claimed that the prosecution presented insufficient
evidence for the jury to find him guilty of burglary in the first degree under
Connecticut General Statutes § 53a-101(a)(1). In deciding whether sufficient evidence
had been presented, the Connecticut Appellate Court applied the standard articulated
by the Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979). See Perez, 78 Conn.
App. at 643-46. Because the Connecticut Appellate Court applied the correct legal
principles, the decision is not contrary to federal law. See Early, 537 U.S. at 8 (state
court need not be aware of nor cite relevant Supreme Court cases, as long as
reasoning and decision do not contradict applicable law). Thus, the Court considers
whether the analysis of the Connecticut Appellate Court was an unreasonable
application of Supreme Court law.
The Connecticut Appellate Court reviewed Connecticut General Statutes § 53a101(a)(1) and determined that there was nothing in the language of the statute that
suggested the legislature intended to exclude a dwelling from the definition of
building. Conn. Gen. Stat. § 53a-100(a) provides that “[t]he following definitions are
applicable to this part: (1) “Building” in addition to its ordinary meaning, includes any
watercraft, aircraft, trailer, sleeping car, railroad car or other structure or vehicle or
any building with a valid certificate of occupancy.” The Appellate Court examined
various dictionary definitions of the word building and concluded that the ordinary
meaning of that word included a dwelling. Furthermore, the legislative history of the
enactment of the burglary statute offered no support for Perez’s contention that the
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word building did not include a dwelling because it was silent on the issue. Plainly,
the term building is broader than and includes a dwelling.
The Appellate Court concluded that the evidence that the burglary was
committed in the residence or dwelling of the victim was undisputed. At trial, the
victim testified that Perez unlawfully entered his residence with a weapon. The police
recovered Perez’s fingerprint on the interior glass of the laundry room at the point of
entrance into the residence. Thus, the State of Connecticut offered sufficient
evidence for a reasonable jury to find that Perez committed burglary in the first
degree. The Appellate Court’s conclusion that sufficient evidence existed to support
the conviction of Perez on the charge of burglary in the first degree was not an
unreasonable application of Supreme Court law. This sufficiency of the evidence
claim is denied.
2.
Robbery in the First Degree
In the heading of the section in his supplemental brief raising the sufficiency of
the evidence claim on direct appeal, Perez contended that insufficient evidence
supported his conviction for robbery in the first degree. He included no argument or
support for this claim in the body of his supplemental brief. See Resp’ts’ Mem Opp’n
Pet. Writ Habeas Corpus, ECF No. 18-17, App. P. Perez attempted to offer support for
this claim of insufficient evidence in his reply brief. See ECF No. 18-20, App. R. The
Connecticut Appellate Court, however, refused to address the claim because Perez
had failed to adequately present it as required by Connecticut’s rules of procedure
regarding the briefing of claims. See Perez, 78 Conn. App. at 645-46 & n. 14. The
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respondent contends that the claim is procedurally defaulted because the appellate
court declined to address it due to the failure of Perez to meet an adequate and
independent state procedural rule. The respondent further argues that this Court may
not review the defaulted claim absent a showing by Perez of cause for, and prejudice
from, the failure to raise the claim.
As set forth above, under the procedural default doctrine, review by a district
court of the merits of a claim raised in a habeas petition is unavailable if (1) the “state
court . . . declined to address . . . the claim because the prisoner had failed to meet a
state procedural requirement, and (2) the state [court] judgment [or decision] . . .
rests on independent and adequate state procedural grounds.” Walker, 562 U.S. at
315-16 (internal quotation marks and citation omitted). The Court concludes that the
procedural rule governing the necessity of providing an adequate record for review
and presenting all arguments in the initial appellate brief was definite, wellestablished and regularly applied in 2003 at the time of the decision by the
Connecticut Appellate Court to decline to review Perez’s insufficiency of the evidence
claim. See e.g., Conn. Prac. Book § 60-5 (“It is the responsibility of the appellant to
provide an adequate record for review as provided in Section 61-10”); Conn. Prac.
Book § 67-4 (setting forth specific requirements for contents and organization of
Appellant’s brief); In re Shane P., 58 Conn. App. 234, 243–44, 753 A.2d 409, 415 (2000)
(“The respondent's brief consists of one page with minimal citations, negligible
reasoning and no constitutional analysis. “We are not required to review issues that
have been improperly presented to this court through an inadequate brief.... Analysis,
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rather than mere abstract assertion, is required in order to avoid abandoning an issue
by failure to brief the issue properly.”); State v. Salvatore, 57 Conn. App. 396, 401, 749
A.2d 71, 74 (2000)(“[C]laims on appeal that are inadequately briefed are deemed
abandoned.... This rule applies to claims that the defendant is entitled to
... Golding review.”); Ham v. Greene, 248 Conn. 508, 528, n. 11, 729 A.2d 740, 753, n.11
(1999) (“Rather than analyze the trial court's reasoning with regard to any of these
claims, the defendants merely assert, in a conclusory manner, that the trial court
acted improperly. Consequently, they do not merit review.”) (citations omitted);
Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 465, n. 11, 704 A.2d 222,
224, n.11 (1997) (“Claimed errors not adequately briefed and not fully developed will
not be considered by this court.”) (citations omitted); State v. Edward B., 72 Conn.
App. 282, 302 n. 12, 806 A.2d 64, cert. denied, 262 Conn. 910, 810 A.2d 276 (2002) (it is
a well-established principle that arguments cannot be raised for the first time in a
reply brief); Willow Springs Condominium Assn., Inc. v. Seventh BRT Development
Corp., 245 Conn. 1, 48 n. 42, 717 A.2d 77 (1998) (same); State v. Wilchinski, 242 Conn.
211, 217 n. 7, 700 A.2d 1 (1997) (same).
Because the Appellate Court declined to consider the sufficiency of evidence
claim related to Perez’s conviction for robbery in the first degree due to the failure of
Perez to comply with established and regularly applied Connecticut rules of
procedure, this Court considers the claim to have been procedurally defaulted. The
claim is reviewable only if Perez can demonstrate cause for the default and actual
prejudice resulting from the default or he can show that failure to consider the claim
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will result in a fundamental miscarriage of justice. See Edwards, 529 U.S. at 451
(citations omitted).
Perez offers no evidence or facts to support the existence of cause for the
default of the sufficiency of the evidence claim related to his conviction for robbery in
the first degree. Nor has he shown that he suffered any prejudice from the default.
In addition to failing to show cause and prejudice from the default, Perez has not
demonstrated any probability that this Court's failure to review his claim of
insufficiency of evidence would result in a fundamental miscarriage of justice, as he
has offered no new evidence, scientific or otherwise, showing his actual innocence.
Thus, Perez has not met the fundamental miscarriage of justice exception to the
procedural default doctrine. Accordingly, the Court may not review the claim that
insufficient evidence existed to support the jury’s finding that he was guilty of
robbery in the first degree because the claim is procedurally defaulted. This
insufficiency of the evidence claim is denied.
E.
Ineffective Assistance of Counsel
Perez asserts eight separate ways in which trial counsel was allegedly
ineffective at trial or at sentencing. Respondents argue that the Connecticut Superior
Court reasonably applied federal law in concluding that Perez had not demonstrated
prejudice because of any of the eight ways in which he claimed counsel’s
performance was ineffective or deficient.
On July 18, 2011 and August 19, 2011, a Connecticut Superior Court judge
presided over hearings held to address the claims raised by Perez in a third amended
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habeas petition filed in Perez v. Warden, No. TSR-CV06-4001319-S. See Resp’ts’ Mem
Opp’n Pet. Writ Habeas Corpus, Apps. EE, ECF Nos. 18-51, 18-52. Perez was
represented by counsel at the hearings and he and a witness named Linda Romney
offered testimony. See id., App. EE, ECF No. 18-51. The attorney who represented
Perez in his criminal trial was unavailable and did not appear or testify at the hearing.
See id., App. EE, ECF No. 18-51, at 135.
An ineffective assistance of counsel claim is reviewed under the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, a petitioner must
demonstrate, first, that counsel’s conduct was “deficient” in that it “fell below an
objective standard of reasonableness” established by “prevailing professional
norms.” Id. at 687-88. The Court evaluates counsel’s conduct at the time the
decisions were made, not in hindsight, and affords substantial deference to counsel’s
decisions. See id. at 690 (in assessing deficient performance, “the court should
recognize that counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment”).
Second, a petitioner must demonstrate that the deficient performance of
counsel prejudiced him. See Strickland, 466 U.S. 687. To satisfy the prejudice prong,
a 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.
To succeed on the ineffective assistance of counsel claim, a petitioner must
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demonstrate both deficient performance and sufficient prejudice. Id. 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 that addressed
the ineffective assistance of counsel claims to determine whether that decision is an
unreasonable application of federal law. See Ylst v. Nunnemaker, 501 U.S. 797, 804
(1991). In analyzing Perez’s ineffective assistance of counsel claims, the Connecticut
Superior Court did not cite Strickland but did refer to the two prongs of the ineffective
assistance standard set forth in Strickland. See Perez, 2011 WL 4347038, at *1.
Because the Connecticut Appellate Court applied the correct legal principles, the
decision is not contrary to federal law. See Early, 537 U.S. at 8. Thus, the Court
considers whether the analysis of the Connecticut Superior Court was an
unreasonable application of Supreme Court law.
1.
Sub-Claim A
In this Sub-Claim A, Perez contends that trial counsel failed to conduct a
pretrial investigation to determine the facts relevant to the merits, defenses and
punishments. Pet. Writ Habeas Corpus at 48. The habeas court concluded that Perez
did not established prejudice as to this alleged deficiency of trial counsel. Perez, 2011
WL 4347038, at *1.
Respondents contend that Perez did not identify the witnesses or other
evidence that trial counsel would have discovered had he engaged in a more
thorough pretrial investigation. At the hearings held in connection with the state
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habeas, Perez did not identify any evidence to support his claim that a pretrial
investigation would have yielded exculpatory evidence or the evidence which would
have been offered but for his counsel’s failure to conduct an investigation. The
Connecticut Superior Court reasonably applied the law in concluding Perez did not
demonstrate he was prejudiced by his counsel’s failure to conduct a pretrial
investigation.
2.
Sub-Claim C
In this Sub-Claim, Perez argues that trial counsel failed to call a fingerprint
expert to contradict the testimony of the fingerprint expert offered by the State of
Connecticut at trial. The habeas court concluded that Perez had not established
prejudice as to this alleged deficiency of trial counsel. Perez, 2011 WL 4347038, at *1.
Perez did not call a fingerprint expert to testify at the habeas hearing. Further,
when asked what information another fingerprint expert might have offered at trial,
Perez was unable to state that such an expert could offer testimony that would have
contradicted the testimony of the State’s expert. See Resp’ts’ Mem Opp’n Pet. Writ
Habeas Corpus, App. EE, ECF Nos. 18-51, Hab. Tr. at 65-66, 69-71. Thus, Perez did not
offer evidence that calling an independent fingerprint expert would have altered the
outcome of the trial. The Connecticut Superior Court judge reasonably applied
Strickland in holding Perez failed to demonstrate he was prejudiced by his counsel’s
failure to call a fingerprint expert because he failed to demonstrate it would have
altered the outcome of the trial.
3.
Sub-Claims B and E
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In Sub-Claim B, Perez argued that trial counsel failed to interview him before
the suppression hearing and investigate facts regarding his alleged confession made
to the two Connecticut State Police detectives who transported him from New York to
Connecticut. Perez claimed that counsel also prevented him from testifying at the
suppression hearing. Pet. Writ Habeas Corpus at 48-49. In Sub-Claim E, Perez
contends that counsel failed to object to the trial judge’s restriction on his
opportunities to communicate and ask questions during the suppression hearing.
Counsel also failed to object to the trial judge’s confiscation of his notes taken during
the hearing and copies of the questions Perez asked his counsel. Id. at 50. The state
habeas court concluded Perez did not establish he was prejudice by these alleged
deficiencies. Perez, 2011 WL 4347038, at *1.
The transcript of the habeas hearing reflects that Perez did not explain the
nature of the information trial counsel would have uncovered if he had conducted an
investigation prior to the suppression hearing. Furthermore, Perez did not state that
trial counsel told him that he could not testify at the suppression hearing. Rather,
counsel advised Perez not to testify. See Resp’ts’ Mem Opp’n Pet. Writ Habeas
Corpus, App. EE, ECF No. 18-51, Hab. Tr. at 45. Put more succinctly, counsel advised
Perez he should not testify; counsel did not tell him he could not testify. Perez did not
pursue it further, accepted the advice and chose not to testify. During the habeas
hearing, Perez indicated that had he testified at the suppression hearing, he would
have argued that the state police detective took his conversation out of context. Id. at
57. Given Perez’s testimony at the habeas hearing, the Connecticut Superior Court’s
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conclusion that the outcome of the suppression hearing would not have been
different if counsel had conducted an investigation and had called Perez to testify
was not an unreasonable application of the prejudice prong of Strickland. This is
because Perez’s testimony was unlikely to have altered the outcome. Further, given
the irrefutable evidence against Perez, his counsel’s advice not to testify and subject
himself to cross examination was a sound strategic decision.
As discussed above, Perez asserted a claim on direct appeal that the trial judge
denied him the right to counsel during the suppression hearing when the judge
prohibited him from asking his attorney questions. The Connecticut Appellate Court
declined to address the claim on procedural grounds but noted that the trial judge’s
restriction on when Perez could speak to counsel during the suppression hearing
was reasonable and did not violate Perez’s right to counsel. Perez, 78 Conn. App. at
634 n.12, 828 A.2d at 644 n.12.2
Respondents contend that a failure to object to the trial court’s order regarding
2
The Connecticut Appellate Court explained that:
Even if we were to review the defendant's claim, it would fail. The court, after
noticing that the defendant had tried to speak to his attorney after every
question he asked, informed the defendant that he was no longer to interrupt
his attorney's questioning of the witness. The court gave the defendant a pad
and pen to write down anything he would like to speak to his attorney about
and stated that he would give the defendant an opportunity to talk to his
attorney after questioning each witness. The court did not prohibit the
defendant from speaking to his attorney. Rather, the court only restricted the
defendant from speaking to his attorney after every question. “[T]he Sixth
Amendment right to counsel does not permit unfettered communication
between the accused and his lawyer during trial proceedings.” Jones v.
Vacco, 126 F.3d 408, 415–16 (2d Cir.1997). Accordingly, because the court did
not prohibit the defendant from speaking to his attorney but placed only a
reasonable restriction on when that communication could take place, the
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communication with Perez was not ineffective because the Appellate Court upheld
the order. Furthermore, Perez did not offer evidence that had counsel objected to the
trial court’s restriction on when and how often Perez could communicate with him
during the suppression hearing, the outcome of the suppression hearing would have
been different. The Connecticut Superior Court reasonably applied Strickland to
conclude that Perez had failed to meet the prejudice prong.
4.
Sub-Claim D
Perez argues that trial counsel neglected to engage in a meaningful
investigation of the facts related to the warrantless search and seizure of the firearm
that was used during the burglary, larceny and robbery offenses that he was charged
with committing and failed to move to suppress the firearm. Perez contended that the
failure to challenge or investigate the warrantless search and seizure “deprived [him]
of a meritorious Fourth Amendment claim.” Pet. Writ of Habeas Corpus at 50. The
state habeas court concluded that Perez had not established prejudice as a result of
this alleged deficiency of trial counsel. Perez, 2011 WL 4347038, at *1.
At the habeas hearing, Perez testified he agreed to help a friend hide the
weapon used in the incident in West Redding, Connecticut on April 16, 1994. See
Resp’ts’ Mem Opp’n Pet. Writ Habeas Corpus, App. EE, ECF Nos. 18-51, Hab. Tr. at
52, 55-56. He and his friend drove to his sister’s house in the Bronx to hide the gun in
a box he kept at the house. See id. at 57. At the criminal trial, a New York detective
testified that he executed a search warrant at Perez’s sister’s home on April 22, 1994
defendant's right to counsel was not violated. Id.
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and seized a semi-automatic pistol from a box in the bedroom. See id., App. DD, ECF
No. 18-44, at 97-98. The gun was admitted as an exhibit at Perez’s criminal trial. See
id., App. DD, ECF No. 18-45, at 53. At the habeas hearing, Perez offered conflicting
testimony regarding the search and seizure of the gun. He testified both that the
warrant was invalid and that no warrant existed at all. See id., App. EE, ECF No. 18-51,
at 58-59. He conceded a detective testified at the criminal trial that the gun was seized
using a warrant but claimed that the warrant was invalid because it could not have
included the street address of his sister’s home because the witness knew the
building location but not the street number. Id. at 59-62.
Perez’s claim that counsel was ineffective in failing to challenge the
warrantless search and seizure of the gun is contradicted by Perez’s own testimony
at the habeas hearing that the gun was seized during the execution of a warrant.
Given Perez’s contradictory testimony at the habeas hearing, it was not unreasonable
for the Connecticut Superior Court judge to conclude that Perez had not
demonstrated prejudiced by his counsel’s failure to investigate or move to suppress
the seizure of the gun on the basis that it was seized during a warrantless search of
his sister’s home. Indeed, Perez admitted that he agreed to hide the weapon used in
the burglary, and thus he was likely criminally culpable as an accessory and counsel
would be ineffective if he advised him to testify to that. See Strickland, 466 U.S. at
691.
5.
Sub-Claim F
In this Sub-Claim, Perez contends that trial counsel failed to interview and
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present witnesses who would have provided him with an alibi defense. See Pet. Writ
Habeas Corpus at 51. Perez did identify two alibi witnesses that counsel failed to call,
Linda Romney and Paul Lucas. Romney testified at the habeas hearing that she was
with Perez until 11:30 p.m. or 11:45 p.m. on April 15, 1994. See id., App. EE, ECF No.
18-51, at 124, 131. She was not able to confirm Perez’s whereabouts at the time that
the victim testified he had been held at gunpoint on April 16, 1994. Id. at 120-131.
Thus, Perez did not demonstrate that the outcome of the trial would have been
different if counsel had called Romney as a witness.
Perez did not call Lucas as a witness at the habeas hearing. Without his
testimony, it was not clear that Lucas could have served as an alibi for Perez. The
conclusion reached by the Connecticut Superior Court that Perez had not
demonstrated prejudice as a result of counsel’s failure to interview potential alibi
witnesses before trial or call potential alibi witnesses to testify at trial constitutes a
reasonable application of Strickland.
6.
Sub-Claim G
In this Sub-Claim, Perez contends that trial counsel failed to object to
misleading and erroneous jury instructions. Pet. Writ Habeas Corpus at 51. The
habeas court concluded that Perez had not established prejudice as a result of these
alleged deficiencies of trial counsel. Perez, 2011 WL 4347038, at *1.
As discussed above, Perez raised multiple claims regarding the instructions
issued by the judge to the jury at the conclusion of his criminal trial. The Connecticut
Appellate Court determined that the instruction given for the offense of burglary in
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the first degree read as part of the jury charge “as a whole, did not mislead the jury
and was a proper statement of the law” and that “it was not reasonably possible that
the court's instructions [on the offense of burglary in the second degree with a
firearm] misled the jury or that the instructions were legally deficient.” Perez, 78
Conn. App. at 636-38, 828 A.2d at 645-46. Perez alleges that trial counsel should have
objected to these same jury instructions. The failure to object to instructions that
were later upheld by the Connecticut Appellate Court on appeal cannot constitute
deficient performance. Nor is there evidence that had counsel objected to the jury
instructions, the result of the trial would have been different. The habeas court’s
determination that Perez had not demonstrated that he was prejudiced by counsel’s
decision not to object to the trial judge’s jury instructions is a reasonable application
of Supreme Court law.
7.
Sub-Claim H
In this Sub-Claim, Perez alleges that trial counsel failed to conduct a
presentence investigation and failed to meet with him prior to sentencing. In addition,
he asserts counsel failed to inform the sentencing judge that he requested final
disposition of the charges and waived extradition. Perez contends that without this
information, the judge sentenced Perez to a consecutive thirty-five-year sentence that
was not authorized by the IAD. See Pet. Writ Habeas Corpus at 51-52. The habeas
court concluded that Perez had not established prejudice as to these alleged
deficiencies of trial counsel. Perez, 2011 WL 4347038, at *1.
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Perez did not address or offer evidence in support of this claim at the habeas
hearing. Thus, he did not explain how the outcome of the sentencing hearing would
have been different had counsel investigated before the hearing or had mentioned his
waiver of extradition pursuant to the IAD. The transcript of Perez’s sentencing
hearing reflects that the State of Connecticut completed a presentence investigation
report on Perez and that Perez, after reviewing it with his attorney, did not object to
the report on a substantive basis. See Resp’ts’ Mem. Opp’n Pet. Writ Habeas Corpus,
App. DD, ECF No. 18-50. Furthermore, the judge permitted Perez to make a statement
at the hearing. See id. As such, the conclusion reached by the habeas court that
Perez had not demonstrated prejudice as a result of counsel’s failure to conduct an
investigation in connection with his sentencing hearing and to inform the judge about
his extradition under the IAD constitutes a reasonable application of Strickland.
V.
Conclusion
The Court may not review the claim of trial court error pertaining to the
restriction on Perez’s right to communicate with his attorney during the suppression
hearing, the claim of an improper jury instruction on the charge of robbery in the first
degree, and claim that insufficient evidence existed to support the jury’s finding that
Perez was guilty of robbery in the first degree that are asserted in the Petition for Writ
of Habeas Corpus, [ECF No. 1], because those claims are procedurally defaulted. The
remaining claims asserted in the Petition for Writ of Habeas Corpus, [ECF No. 1], are
DENIED.
Perez has not shown that he was denied a constitutionally or federally
36
Case 3:17-cv-02162-VLB Document 23 Filed 02/23/21 Page 37 of 37
protected right. Thus, any appeal from this order would not be taken in good faith and
a certificate of appealability will not issue. See Slack v. McDaniel, 529 U.S. 473, 484
(2000) (holding that, when the district court denies a habeas petition on procedural
grounds, a certificate of appealability should issue if jurists of reason would find
debatable the correctness of the district court’s ruling).
The Clerk is directed to enter judgment against the petitioner and close this
case.
SO ORDERED at Hartford, Connecticut this 23rd day of February 2021.
_____/s/__________________
Vanessa L. Bryant
United States District Judge
37
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