Benjamin v. Commissioner of Correction
ORDER. For the reasons stated in the attached ruling, the petition for writ of habeas corpus [ECF No. 1] is DENIED. The Clerk is directed to enter judgment in favor of Respondent and to close this case.Any appeal from this order would not be taken in good faith because Petitioner has not shown that he was denied a constitutionally or federally protected right. Thus, a certificate of appealability will not issue. Signed by Judge Michael P. Shea on 4/28/2021. (Super, John)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
COMMISSIONER OF CORRECTION, :
RULING ON PETITION FOR HABEAS CORPUS RELIEF
Petitioner Ezra Benjamin, a prisoner currently confined at the MacDougall-Walker
Correctional Institution, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254, challenging his 2002 state convictions rendered in the two sexual assault cases of victims
D and C that were consolidated for trial in the Connecticut Superior Court for the Judicial
District of Waterbury. See Petition, ECF No. 1 at 2. The respondent, Commissioner of
Correction, has filed a memorandum in opposition to the Petition. ECF No. 16. Petitioner has
filed a response thereto. Pet.’s Response, ECF No. 19.
In the instant petition, Petitioner presents three grounds for relief: (1) ineffective
assistance of trial counsel because his attorney failed to properly investigate the case; (2)
ineffective assistance of trial counsel because his counsel was called upon to render assistance
under circumstances in which no competent attorney could do so under United States v. Cronic,
466 U.S. 648 (1984); and (3) ineffective assistance of trial counsel because his attorney failed to
properly cross examine witnesses Charles Fontano and Detective Michael Silva. See Petition,
ECF No. 1 at ¶ 19, pp. 9-18.
After consideration of the petition, Respondent’s arguments, and Petitioner’s response
thereto, the court concludes that the petition should be DENIED.
In Connecticut Superior Court, criminal docket number CR01-304486, Petitioner was
convicted for sexual assault in the first degree in violation of Connecticut General Statutes § 53a70(a)(1), sexual assault in the second degree in violation of Connecticut General Statutes § 53a60(a)(1), unlawful restraint in the first degree in violation of Connecticut General Statutes § 53a95, and assault in the third degree in violation of Connecticut General Statutes § 53a-61(a)(1). In
criminal docket number CR01-304482, Petitioner was convicted of sexual assault in the second
degree, unlawful restraint in the first degree, and assault in the third degree. See State v.
Benjamin, 2008 WL 2314082 (Super. Ct. May 19, 2008). The state court sentenced Petitioner on
January 10, 2003 to a total effective sentence of forty years’ imprisonment. Id.; see also Petition,
ECF No. 1 at 2.
On direct appeal, the Connecticut Appellate Court determined that the jury could have
reasonably found the following facts regarding the underlying offenses:
At approximately 9 p.m. on the evening of September 26, 2001, the victim, D, who
worked as a prostitute, was walking on Cherry Street in Waterbury and was approached
by [Petitioner], who was driving his maroon Mitsubishi convertible. [Petitioner] asked D
if she wanted a ride home and offered her $50. D agreed and entered [Petitioner]'s
vehicle. [Petitioner] then drove to Fulton Park in Waterbury. Upon arriving at Fulton
Park, [Petitioner] exited the vehicle. D, however, refused to exit until she received the
$50. [Petitioner] then showed D some papers in his pocket that appeared to be money and
D exited the vehicle. At that time, [Petitioner] seized D by the neck with his forearm and
dragged her to a tree in the park. There, [Petitioner] began to beat D. [Petitioner] struck D
in the head with a rock, causing a laceration, and also struck D in the head and eye. D
attempted to fight back by scratching [Petitioner], but lost consciousness as [Petitioner]
choked her. Upon regaining consciousness, D was partially unclothed. D was wearing
only a bloody white T-shirt and one sneaker. Her pants and bra had been removed during
After seeing that [Petitioner] had left the scene, D asked people nearby to take her to St.
Mary's Hospital, where she was examined. When D went to the emergency room, her
head, eye and throat were in pain, and she was bleeding from her head. D suffered
lacerations to her scalp and back, and facial trauma, and showed signs of life threatening
During the same evening of September 26, 2001, the other victim, C, was working as a
prostitute in the vicinity of Walnut Street and Orange Street in Waterbury. That night, C
entered a vehicle operated by [Petitioner], a maroon Mitsubishi convertible with
temporary license plates. After C entered the vehicle, [Petitioner] drove around the block
and parked in a nearby lot. Once at the lot, [Petitioner] and C exited the vehicle. While
outside the vehicle, [Petitioner] showed C $50 and then put the money back into his
pocket. At that, C began to walk away. [Petitioner] seized C from behind and choked her
with his forearm, which caused her to lose consciousness.
When C regained consciousness, her pants were pulled down, and [Petitioner] was
sexually assaulting her. [Petitioner] still had his hand on C's throat. [Petitioner] then
asked C if she wanted to die. C began to cry, and [Petitioner] removed his hand from her
throat. C then began to scream and attempted to get away from [Petitioner], but lost
consciousness once more when [Petitioner] strangled her again. When C regained
consciousness, [Petitioner] had left. C then began to scream for help. She was found,
partially undressed, by a friend. C's pants, underwear and jacket had been removed
during the attack. C was taken to St. Mary's Hospital, where she was examined. Upon
arriving at the hospital, C's eyes and nose were bloody, and there were marks on her
neck, hands and legs. C was found to have abrasions to her face, trunk, chest area, back
and extremities, and a bloody nose. She also had injuries to her eyes and contusions
around her neck. As a result of being choked to unconsciousness, a life threatening
condition, C displayed conjunctival hemorrhaging.
Both C and D were questioned by the police, and they provided a description of the
assailant and the vehicle that he was driving. Officers then went to the area of Fulton
Park where D was attacked. While at the scene of the attack, the police discovered,
among other items, a remote keyless entry device for an automobile. Upon locating a
maroon Mitsubishi convertible near the place where C was assaulted, the police used the
entry device to unlock the vehicle's doors. The police then ascertained that [Petitioner]
was the owner of the vehicle. That night, the police found [Petitioner] hiding naked in a
cabinet in a bathroom closet in his apartment.
State v. Benjamin, 86 Conn. App. 344, 346-348 (2004).
At the trial, the jury considered the witness testimony, police evidence, and DNA
evidence. Id. at 361. The jury heard testimony, inter alia, about the victims’ picking Petitioner
out of an array of photographs; the victims’ identification of Petitioner as the attacker; testimony
from a witness who stated he had observed C get into Petitioner’s vehicle shortly before the
attack; and the DNA evidence from Petitioner’s clothing (including semen and blood stains),
which connected Petitioner to the attack. Id. at 361-362
Petitioner was charged in both attacks on D and C in two separate criminal cases for
sexual assault in the first degree in violation of Connecticut General Statutes § 53a-70(a)(1),
sexual assault in the second degree in violation of Connecticut General Statutes § 53a-60(a)(1),
unlawful restraint in the first degree in violation of Connecticut General Statutes § 53a-95, and
assault in the third degree in violation of Connecticut General Statutes § 53a-61(a)(1). See Resp.
App’x. B, ECF No. 16-2 at 31-34. Petitioner pleaded not guilty to all the charges in both cases
and elected to proceed to a jury trial. See Resp. App’x. B at 35. Attorney Robert Berke was
appointed to represent Petitioner as a special public defender in early August 2002, although
most of the pre-trial phase had been handled by other counsel. See Benjamin v. Warden, 2018
WL 793898 at *3 (Conn. Super. Ct. Jan. 11, 2018), aff'd sub nom. Benjamin v. Comm'r of
Correction, 189 Conn. App. 905 (2019).
At the time of Attorney Berke’s appointment, Petitioner faced trial in five separate cases.
See Trial Transcript, Resp. App’x. P (8/28/02), ECF No. 16-29 at 2. By motion, the State sought
to consolidate three of those cases for trial, including the two which are the subject of this federal
proceeding. Id. Following argument on August 28, 2002, the trial court ordered the two cases
concerning the attacks on D and C consolidated. Id. at 8. Attorney Berke had managed, however,
to prevent these two cases from being consolidated with a third case concerning a sexual assault
committed prior to the separate attacks on D and C. Id. at 6, 8.
Petitioner’s jury trial began on October 16, 2002. See Trial Transcript, Resp. App’x. P
(10/16/02), ECF No. 16-34. Petitioner’s jury returned its verdict on October 29, 2002. Record on
Direct Appeal, Resp. App’x. B, ECF 16-2 at 35-38. The jury found Petitioner not guilty on the
charge of sexual assault in the first degree with respect to the attack on D, but otherwise
convicted him of all charges in both cases. Id. On January 10, 2003, the trial court sentenced
Petitioner to a total effective sentence of thirty years for his attacks on C. On the charges for the
attack on D, the trial court sentenced Petitioner to a total effective sentence of ten years, to run
consecutive to the convictions for the attack on C. Id. Thus, Petitioner received a total effective
sentence of imprisonment of forty years. Id. at 26.
Petitioner’s Direct Appeal
Petitioner appealed from the judgment of conviction to the Connecticut Appellate Court,
claiming that (1) his conviction in each information of assault in the second degree and assault in
the third degree violated the prohibition against double jeopardy, (2) the court's instructions to
the jury improperly reduced the State's burden of proof as to the element of restraint necessary to
prove a violation of unlawful restraint in the first degree, and (3) he was denied his right to due
process because of prosecutorial misconduct. See Benjamin, 86 Conn. App. at 345-46.
On December 14, 2004, the Appellate Court reversed the judgment of the trial court in
part, remanding with direction to merge the sentences for the charges of assault in the third
degree with those of the second-degree assault. Id. at 352, 362. The judgments were affirmed in
all other respects. Id. at 362. Petitioner did not seek discretionary review of the Appellate Court’s
decision from Connecticut Supreme Court. On May 2, 2005, Petitioner was resentenced in
accordance with the Appellate Court’s decision with no changes to the total effective sentence.
Pet.’s Habeas Appeal Brief, Resp. App’x. J, ECF No. 16-10 at 8.
Petitioner’s State Habeas Corpus Case
On July 12, 2012, Petitioner initiated a habeas corpus action in the Judicial District of
Tolland, CV12-4004820-S. Case Detail, Resp. App’x. G, ECF No. 16-7. Petitioner was assigned
counsel in his habeas proceeding, but he elected to proceed pro se at the time of trial. Id.; see
also Benjamin v. Warden, 2018 WL 793898 at *1.
On May 12, 2016, Petitioner filed an amended petition which became the operative
pleading at the subsequent state habeas trial. See Pet.’s Habeas Appeal Brief, Resp. App’x. J
(Amended Petition), ECF No. 16-10 at 49-64. In its decision, the state habeas court identified the
amended petition claim’s as follows:
[Petitioner] alleges that his trial counsel, appointed two months before the trial began,
rendered ineffective assistance in three ways. First, he allegedly failed to properly
investigate the DNA evidence relied upon by the state to obtain his conviction, including
the circumstances under which his own DNA sample was obtained by the state. Second,
he claims that the circumstances under which trial counsel was called upon to represent
him - an appointment two months prior to trial combined with the state's late disclosure
of DNA evidence and trial counsel's obligations in another trial proceeding
contemporaneously with this one - rendered trial counsel's assistance presumptively
ineffective under U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Finally, he maintains trial counsel's cross examination of several witnesses at trial was
Benjamin v. Warden, 2018 WL 793898 at *1.
Petitioner’s habeas trial was held on July 21, 2017. See Habeas Trial Transcript, Resp.
App’x. Q (7/21/17), ECF No. 16-45. Petitioner presented testimony from Anita Vailonis, a
criminalist at the state lab, who also testified at Petitioner’s underlying criminal trial (id. at 1574); Kevin Daly, an attorney for the City of Waterbury, which responded to a FOIA request from
petitioner (id. at 75-80); and Michelle Jones, Petitioner’s sister (id. at 81-87). Petitioner did not
testify. Respondent presented testimony from trial attorney Robert Berke. id. at 90-148.
On January 11, 2018, the state habeas court denied the petition. Benjamin v. Warden,
2018 WL 793898. The state habeas court also denied Petitioner’s petition for certification to
appeal to the Connecticut Appellate Court on January 29, 2018. See Case Detail, Resp. App’x.
G, ECF No. 16-7 at 5.
Petitioner, represented by assigned counsel, Justine Miller, filed an appeal of the state
habeas court’s denial of his petition. See Pet.’s Habeas Appeal Brief, Resp. App’x. J, ECF No.
16-10. On appeal, Petitioner presented the following three issues: (1) “Whether the habeas court
abused its discretion when it denied the petitioner’s petition for certification to appeal it[s]
decision denying the petitioner’s writ of habeas corpus[;]” (2) “Whether the habeas court erred in
denying the habeas petition where no competent attorney could have provided effective
representation under the circumstances and prejudice should be presumed[;]” and (3) “Whether
the habeas court erred in denying the habeas petition where habeas trial counsel performed
deficiently and prejudice resulted.” Id. at 4.
In a per curiam decision dated April 11, 2019, the Appellate Court dismissed the appeal
without further comment. Benjamin v. Commissioner of Correction, 189 Conn. App. 905 (2019).
Petitioner sought discretionary review from the Connecticut Supreme Court, with the
following question presented for review: “Did the Appellate Court err in summarily dismissing
the petitioner’s [appeal], finding that the habeas court did not abuse its discretion denying the
petitioner’s [petition] where counsel faced circumstances in which no competent attorney could
ha[ve] provided effective assistance and where petitioner’s counsel[’s performance] was
deficient and prejudicial.” Petition for Cert., Resp. App’x. M, ECF No. 16-13; see also Opp. to
Petition for Cert., Resp. App’x. N, ECF No. 16-14.
On June 12, 2019, the Connecticut Supreme Court denied the petition for certification
without further comment. Benjamin v. Commissioner of Correction, 332 Conn. 906 (2019).
Review of the Merits
This Court will entertain a petition for writ of habeas corpus challenging a state court
conviction under § 2254 only if Petitioner claims that his custody violates the Constitution or
federal laws. See 28 U.S.C. § 2255(a). A claim that a state conviction was obtained in violation
of state law is not cognizable in this court. See Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Section 2254(d) “imposes a highly deferential standard for evaluating state-court rulings
and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559
U.S. 766, 773 (2010) (citations and internal quotations omitted). This court cannot grant a
petition for 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
(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
28 U.S.C. § 2254(d). 1 This is a very difficult standard to meet. Metrish v. Lancaster, 569 U.S.
351, 357-58 (2013).
Clearly established federal law is found in holdings, not dicta, of the United States
The federal court examines the “last reasoned decision” by the state courts in determining whether a
federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
Supreme Court at the time of the state court decision. See Howes v. Fields, 565 U.S. 499, 505
(2012); Carey v. Musladin, 549 U.S. 70, 74 (2006). “[C]ircuit precedent does not constitute
‘clearly established Federal law, as determined by the Supreme Court.’” Parker v. Matthews, 567
U.S. 37, 48 (2012) (quoting 28 U.S.C. § 2254(d)(1)). A decision is “contrary to” clearly
established federal law when it applies a rule different from that set forth by the Supreme Court
or if it decides a case differently than the Supreme Court on essentially the same facts. Bell v.
Cone, 535 U.S. 685, 694 (2002). A state court unreasonably applies Supreme Court law when it
has correctly identified the law but unreasonably applies that law to the facts of the case, or
refuses to extend a legal principle clearly established by the Supreme Court to circumstances
intended to be encompassed by the principle. See Davis v. Grant, 532 F.3d 132, 140 (2d Cir.
It is not enough that the state court decision is incorrect or erroneous. Eze v. Senkowski,
321 F.3d 110, 124-25 (2d Cir. 2003). Rather, the state court’s application of clearly established
law must be objectively unreasonable, a substantially higher standard. Id.; Schriro v. Landrigan,
550 U.S. 465, 473 (2007). Thus, a state prisoner must show that the challenged court ruling “was
so lacking 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 Williams v. Taylor, 529 U.S. 362, 389 (2000) (“state-court judgments must be
upheld unless, after the closest examination of the state-court judgment, a federal court is firmly
convinced that a federal constitutional right has been violated”).
To determine whether habeas relief should be granted, the federal court must consider:
“(1) Was the principle of the Supreme Court case law relied upon by the petitioner ‘clearly
established’ when the state court ruled? (2) If so, was the state court’s decision ‘contrary to’ that
established Supreme Court precedent? (3) If not, did the state court decision constitute an
‘unreasonable application’ of that principle?” Williams v. Artuz, 237 F.3d 147, 152 (2d Cir.
2000), cert. denied, 534 U.S. 924 (2001).
When reviewing a habeas petition, the court presumes that the factual determinations of
the state court are correct. 28 U.S.C. § 2254(e)(1). Petitioner bears the burden of rebutting that
presumption by clear and convincing evidence. Id. Moreover, this 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 v. Pinholster, 563 U.S. 170, 181 (2011).
A. Petitioner’s Federal Petition
Petitioner’s three grounds for relief assert claims of ineffective assistance of counsel: (1)
ineffective assistance of trial counsel for failure to properly investigate the case; (2) ineffective
assistance of trial counsel because his counsel was called upon to render assistance under
circumstances in which no competent attorney could do so under United States v. Cronic, 466
U.S. 648 (1984)); and (3) ineffective assistance of trial counsel for failure to properly cross
examine witnesses Charles Fontano and Detective Michael Silva. See Petition, ECF No. 1 at ¶
19, pp. 9-16.
To succeed on an ineffective assistance of counsel claim, the moving party must
demonstrate that (1) “counsel's performance was deficient” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The performance
prong of the two-part Strickland test requires a showing that “counsel's representation fell below
an objective standard of reasonableness,” in light of “prevailing professional norms.” Strickland,
466 U.S. at 688.
To satisfy the prejudice prong, the 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. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. “In applying this standard, a reviewing court must make every effort ... to
eliminate the distorting effects of hindsight and indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance ... [and] might be
considered sound trial strategy.” United States v. Cohen, 427 F.3d 164, 167 (2d Cir. 2005)
(internal quotation marks omitted) (brackets in original). “The Strickland standard is rigorous,
and the great majority of habeas petitions that allege constitutionally ineffective counsel founder
on that standard.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
In United States v. Cronic, 466 U.S. 648 (1984), the Supreme Court “recognized a
narrow exception to Strickland’s holding that a defendant who asserts ineffective assistance of
counsel must demonstrate not only that his attorney's performance was deficient, but also that the
deficiency prejudiced the defense.” Fla. v. Nixon, 543 U.S. 175, 190 (2004) (citing Cronic, 466
at 658). The Supreme Court identified three “circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a particular case is unjustified.” Id. at 658-9. See
Bell v. Cone, 535 U.S. 685, 695–96(2002). As the Supreme Court explained in Bell, a
presumption of prejudice arises (1) “where the accused is denied the presence of counsel at ‘a
critical stage,’ … that held significant consequences for the accused[;]” (2) “if ‘counsel entirely
fails to subject the prosecution's case to meaningful adversarial testing[;]” or (3) “where counsel
is called upon to render assistance under circumstances where competent counsel very likely
could not[.]” Id. (citing Cronic, 466 U.S. at 659–662) (other internal citations omitted).
When pursuing a state-exhausted ineffective assistance claim in federal court, it is not
enough for the petitioner “to convince [the] federal habeas court that, in its independent
judgment, the state-court decision applied Strickland incorrectly.” Eze, 321 F.3d at 124 (internal
quotation marks omitted). Rather, petitioner must show that the state habeas court
applied Strickland in an objectively unreasonable manner. Id.; see also Williams v. Taylor, 529
U.S. 3 at 410 (unreasonable application of federal law different from incorrect application of
Respondent’s opposition to the petition argues that Petitioner’s grounds for relief must be
denied. Resp. Opp., ECF No. 16. Petitioner’s reply states that although he does not contest his
responsibility for assaulting victim D, his incarceration is unlawful as it pertains to victim C due
to evidence planted on his clothing and vehicle in order to obtain a conviction. Pet.’s Response,
ECF No. 19 at 3-4.
Because Petitioner’s second ground for relief raises the issue of whether ineffective
assistance of counsel prejudice should be presumed under Cronic due to his counsel’s
appointment only two months prior to trial, late disclosures, and his counsel’s trial obligations in
a separate case, the court will first address this ground for relief and then will consider
Petitioner’s first and third grounds for relief. See Petition at ¶ 19, ECF No. 1 (grounds one
through three); see also Benjamin v. Warden, 2018 WL 793898 at *1.
B. Whether the State Habeas Court Reasonably Considered Petitioner’s Ineffective
Assistance Claim under Cronic
The state habeas court correctly stated that the presumption under Cronic applies “under
circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a
particular case is unjustified,” and it identified that prejudice may be presumed “(1) when
counsel is denied to a defendant at a critical stage of the proceeding; (2) when counsel entirely
fails to subject the prosecution's case to meaningful adversarial testing; and (3) when counsel is
called upon to render assistance in a situation in which no competent attorney could do so.” See
Benjamin v. Warden, 2018 WL 793898, at *5 (citations omitted). In considering whether
Petitioner’s claim satisfied the standards under Cronic, the habeas court considered Petitioner’s
circumstances and how they were distinguishable from those at issue in Cronic:
The court's review of the criminal trial transcript reflects not only that Mr. Benjamin had
the assistance of counsel throughout the trial, his attorney conducted a diligent and
competent defense overall. Mr. Benjamin emphasizes the fact that Attorney Berke was
appointed only two months prior to trial, had to contend with the state's late disclosure of
evidence and was also involved in another case at the time of Mr. Benjamin's trial.
Attorney Berke, however, did not testify that he was under inordinate constraints or
deprived of an adequate opportunity to prepare for trial. He obtained the continuances he
needed in order to prepare Mr. Benjamin's defense. In United States v. Cronic, the Court
declined to apply a presumption of prejudice under much more extreme circumstances. In
that case, the court appointed a young real estate attorney with no criminal or trial
experience only twenty-five days prior to the trial of a mail fraud case, involving
thousands of documents, that the Government had spent four and one-half years
investigating. Attorney Berke, in contrast, was a very experienced criminal trial lawyer
who had handled many sexual assault cases and clearly had the background and ability to
examine, analyze and question the state's DNA evidence. The constraints on his
performance identified by Mr. Benjamin are not unusual for such an experienced
practitioner and Attorney Berke managed those constraints appropriately, as experienced
practitioners do. The adversarial process did not break down because of Attorney Berke's
late appointment, the state's late disclosure of evidence and the trial awaiting Attorney
Berke at the end of Mr. Benjamin's trial. See United States v. Smith, 982 F.2d 757 (1992)
(counsel's appointment over the weekend to represent the petitioner at a revocation
hearing on Monday did not implicate the Cronic standard).
Although appointed twenty-six days prior to the joinder hearing, Attorney Berke was able
to prevent the joinder of charges from an earlier sexual assault. See Trial Transcript, Resp.
App’x. P (8/28/02), ECF No. 16-29 at 8. Moreover, Petitioner has not shown that the joinder of
the cases of victims D and C would have been preventable in light of the cross-admissible facts
in the two cases as the two assaults occurred on the same night and involved similar conduct,
locations, victims and vehicle. See State v. Atkinson, 235 Conn. 748, 765 (1996) (joinder is
appropriate when evidence is cross admissible).
Petitioner complains that Attorney Berke had to prepare for another criminal sexual
assault case pending in the Judicial District of Ansonia/Milford during the months preceding
Petitioner’s trial. Although Attorney Berke noted that he had a jury selection in the Milford case
on October 3, 2020, he indicated that the evidence would not begin until after Petitioner’s trial.
Trial Transcript, Resp. App’x. P (10/02/02), ECF No. 16-32 at 38-42.
Petitioner complains that Berke also had to prepare for a motion in limine argument on
October 2, 2002, but he has not shown that Attorney Berke’s performance was deficient with
regard to Petitioner’s case. At the habeas trial, Attorney Berke testified that it was “a challenge
just trying to jockey both, but that’s not the first time I’ve been forced to do that.” Habeas
Transcript, Resp. App’x. Q, ECF No. 16-45 at 104, lines 11-14.
With respect to the late disclosure of DNA reports, Attorney Berke was able to obtain
continuances when necessary. On October 2, 2002, the trial court instructed the State to disclose
its report prior to trial and ordered that counsel be afforded an opportunity to consult with an
expert. Trial Transcript, Resp. App’x. P (10/02/02), ECF No. 16-32 at 40-42. Two days later,
Attorney Berke informed the trial judge that he did not need a lengthy continuance to prepare for
cross examination, but the trial court afforded him a break in the trial of a half day plus the
weekend to prepare his cross examination of the DNA expert. Trial Transcript, Resp. App’x. P
(10/04/02), ECF No. 16-33 at 9-13. The DNA expert testified on Friday, October 18, 2002.
Benjamin v. Warden, 2018 WL 793898 at *3. On Monday, October 21, Attorney Berke’s cross
examination was further continued to October 23, because a criminalist report identifying
evidence of blood and semen on clothing had surfaced (the trial judge denied Berke’s motion for
a mistrial). Trial Transcript, Resp. App’x. P (10/21/02), ECF No. 16-37 at 10-11.
Thus, the habeas court reasonably concluded that Attorney Berke had obtained
continuances as necessary to manage the constraints of the situation as an experienced
professional and that the adversary process did not break down. Benjamin v. Warden, 2018 WL
793898 at *5. The habeas court observed that Attorney Berke “obtained time from the court to
prepare his cross examinations both before and after the state's experts testified on direct
examination, he consulted with his own expert, he cross examined the state's witnesses
extensively, and he brought in a criminalist from the state lab to explain that trace analyses of the
sexual assault kits failed to connect Mr. Benjamin to the victims.” Id. at *6. It also noted that
Attorney Berke had made a tactical decision to request a break in the trial (rather than “move to
preclude the DNA report disclosed on September 30, 2002 or to seek a continuance of the
trial,”), which was arguably more effective because he procured an extended period of time to
prepare his cross examinations after the state's witnesses testified on direct. Id. at *6.
Review of the underlying record shows that the habeas court reasonably concluded that
the circumstances of Petitioner’s case involving Attorney Berke’s late appointment, his other
obligations, and the States’ late disclosures did not justify the presumption of prejudice to
Petitioner in accordance with Cronic. Because the state habeas court decision reasonably applied
the standard articulated by Cronic, Petitioner’s claim for habeas relief on this ground must be
C. Petitioner’s Ineffective Assistance of Trial Counsel Claims: Grounds One and
This Court concludes the habeas court properly considered the record relevant to
Petitioner’s ineffective assistance of counsel claims under both Strickland’s performance and
prejudice prongs to determine (1) whether Petitioner had demonstrated that “his attorney's
representation was not reasonably competent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal law[;]” and (2) whether Petitioner
demonstrated “a reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different.” See Benjamin v. Warden, 2018 WL 793898, at *4
1. Whether the State Habeas Court Reasonably Considered Petitioner’s Ineffective
Assistance of Trial Counsel Based on Failure to Properly Investigate DNA
Evidence: Ground One
Petitioner asserts that Attorney Berke should have argued for preclusion of the late
disclosed DNA report rather than seek a continuance; spent more time conferring with the expert
so that he could undermine the state’s DNA expert; filed a motion to suppress after he heard
conflicting testimony indicating that Petitioner’s blood may have been drawn prior to the
issuance of the authorizing warrant; and contacted Petitioner’s sister and brother-in-law. See
Petition, ECF No. 1 at ¶ 19(a) p. 10-11 (ground one); see also Pet.’s Response, ECF No. 19 at 19
(referencing Pet.’s Habeas Appeal Brief, App’x. J, ECF No. 16-10 at 30-39).
Under Strickland, "counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at
691. An attorney’s decision not to investigate must be assessed for reasonableness under the
circumstances. See id. Moreover, “strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. at 690–91.
Where an ineffective assistance of counsel claim is premised on counsel's failure to make
a suppression motion, a showing of prejudice under Strickland requires that the underlying
suppression claim was “meritorious” and that “there is a reasonable probability that the verdict
would have been different absent the excludable evidence.” Maldonado v. Burge, 697 F.Supp.2d
516, 525 (S.D.N.Y. 2010) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).
a. Attorney Berke’s Decisions Relevant to Late Disclosure of Evidence
The habeas court first determined that Attorney Berke had “thoroughly investigated,
examined and tested the state's DNA evidence[,]” noting that Attorney Berke had obtained time
to prepare for his cross examinations “both before and after the state's experts testified on direct
examination[;]” consulted with an expert; “extensively” cross examined the state's witnesses; and
had a “criminalist from the state lab … explain that trace analyses of the sexual assault kits failed
to connect [Petitioner] to the victims.” Benjamin v. Warden, 2018 WL 793898 at *6. The habeas
court also concluded that Attorney Berke had made reasonable tactical decisions “based on
sound trial strategy,” not to preclude the DNA report but to procure a continuance to prepare his
cross examinations of the State’s witnesses, and to “undermine the reliability of the state's DNA
evidence, rather than assert a claim that the police had fabricated or planted evidence.“ Id. Thus,
the habeas court concluded that Attorney Berke made the “reasonable strategic decision” not to
argue that the police had fabricated or planted evidence, which was entitled to deference, so as to
avoid “alienat[ing] the jury with a sensational claim he could not prove” and instead “to expose
the improprieties in the handling of evidence before the jury and allow the jury to draw its own
As to the second prong, the habeas court concluded that Petitioner failed to demonstrate
that “a continuance of the trial would have impacted the reliability of the DNA evidence beyond
what Attorney Berke was actually able to accomplish at trial.” Id. at *7. The court observed that
“the late disclosure of DNA evidence” would not “have led the trial court to grant a motion to
suppress or exclude the DNA evidence[,]” although the court “might have granted a continuance
of the trial”, which was “arguably not as desirable as the outcome actually achieved by Attorney
Berke by securing an extended break in the middle of the trial.” Id. The court noted further that
Petitioner “failed to produce any evidence of bad faith on the part of the state in withholding
DNA evidence” and “the transcript of the criminal trial proceedings suggests nothing of the
Upon review of the record, this court concludes the habeas court properly considered that
Petitioner challenged Attorney Berke’s strategic or tactical decisions with regard to seeking a
continuance rather than preclusion of evidence. As the habeas court observed, the record
indicated that the state’s late disclosure of DNA evidence would not “have led the trial court to
grant a motion to suppress or exclude the DNA” Id. at *7. Under Connecticut law, a court should
avoid preclusion if a less severe remedy will suffice and a continuance is generally adequate to
cure an unintentional nondisclosure. See State v. Jackson, 304 Conn. 383, 412-13, n. 23 (2012);
see also Conn. Gen. Stat. ¶ 54-86k(c) (court has discretion to allow continuance or “under the
appropriate circumstances” to bar evidence). Thus, the record also fails to demonstrate that
Attorney Berke’s decision not to seek preclusion of the DNA evidence resulted in prejudice.
Petitioner’s claim that Attorney Berke could have undermined the state’s DNA expert had he
devoted more time to conferring with his own expert to analyze the DNA evidence is
Accordingly, the habeas court reasonably applied the standards under Strickland to
Petitioner’s claim that Attorney Berke rendered ineffective assistance of counsel with respect to
the late disclosed DNA. The Petition for habeas relief must be denied on this ground.
b. Failure to File a Motion to Suppress Due to Conflicting Testimony
Petitioner argues that Attorney Berke provided ineffective assistance of counsel by not
filing a motion to suppress evidence about his blood testing. The habeas court first considered
whether the trial testimony had raised any inconsistencies that showed Petitioner’s blood had
been drawn prior to the issuance of the warrant:
At 2:20 p.m. on September 27, 2001 a warrant was obtained authorizing the police to
obtain biological samples from Mr. Benjamin for purposes of blood testing as well as
DNA analysis and comparison with the two victims. These samples were obtained at St.
Mary's Hospital by Dr. Stephen Holland. According to Doctor Holland, refreshing his
recollection from his report, he did this work between 3:30 p.m. and 4:00 p.m. that day.
There was arguably conflicting testimony, however, from Detective Silva and Sargent
Eugene Coyle. Neither of these witnesses testified at the habeas trial. At Mr. Benjamin's
criminal trial, Detective Silva testified that after leaving Mr. Benjamin's home on the
initial visit in the early morning of September 27th, he was at the hospital “in the later
hours of that morning.” His testimony suggests that he may have been present at the
hospital when Mr. Benjamin's samples were obtained, but he also testified that it was
another Detective, Lucinda Lopes, who received the kit from Dr. Holland. The
significance to Mr. Benjamin is that it is possible to infer that the samples were taken
before the warrant was obtained, if it is inferred from Detective Silva's testimony that all
the testing occurred “in the later hours of that morning.” It is also possible to infer,
however, that Detective Silva was present at the hospital when the victims' samples were
obtained that morning, not when Mr. Benjamin's samples were obtained later in the day.
Sargent Coyle was involved in the initial investigation at both crime scenes and at Mr.
Benjamin's home when he was arrested. He spoke to him briefly at the police station, but
had no dealings with him after that. He was not present at the hospital at any time that
day. He testified that he did not know when Mr. Benjamin's sexual assault kit was done,
but nevertheless he believed it was done between 9:00 a.m. and 11:00 a.m. that morning.
This testimony was elicited by Attorney Berke on cross examination. Sargent Coyle also
testified on redirect, however, that the samples were taken after the search warrant was
Mr. Benjamin claims that Detective Lopes, also with the Waterbury crime lab, gave
conflicting testimony as well. The court's review of that testimony, however, reflects that
it was not inconsistent with that of Dr. Holland. Mr. Benjamin's argument is based upon
the contextual events of that day for Detective Lopes, two doctors' appointments she
attended in order to get cleared for upcoming surgery. Mr. Benjamin believes her
testimony contradicts Detective Silva's testimony that it was her who received the
evidence obtained by Dr. Holland from Mr. Benjamin. Her first appointment delayed her
arrival at work on the morning of September 27th. She arrived between 10:45 a.m. and
11:00 a.m. She then was present during the search of Mr. Benjamin's home, but left there
for her second appointment scheduled for 1:30 p.m. Mr. Benjamin concludes it could not
have been Detective Lopes who obtained the samples taken from Mr. Benjamin, although
she testified she was there, because there is no evidence that she returned to work after
the second appointment. There is evidence, however, that she did return to work after that
appointment. Detective Lopes testified that she participated in the examination of Mr.
Benjamin's car, which took place “late in the day on the twenty-seventh, because we went
to [Mr. Benjamin's home] first, then we went to St. Mary's Hospital for the search
warrant on Mr. Benjamin, and then the vehicle.”
Benjamin, 2018 WL 793898 at *2.
The habeas court noted that Attorney Berke could have sought to suppress the DNA
evidence “based on the limited conflicts that did exist between the testimony of Detective [Silva]
and Sargent Coyle and that of Dr. Holland and Detective Lopes[,]” but he “had very little chance
of success since the trial court would have had to credit the vague and speculative testimony of
Detective [Silva] and Sargent Coyle on the subject against the more reliable testimony of Dr.
Holland based on his review of his contemporaneous record of the examination, as well as
Detective Lopes' testimony that she was the officer who obtained Mr. Benjamin's samples at the
hospital on the afternoon of September 27th.” Id. at *6. The habeas court concluded that “such a
tactic also would have provided the police witnesses an opportunity to better prepare for their
trial testimony, and that Petitioner had not established whether Attorney Berke was unaware of
the testimony conflicts but should have been or whether he was aware of conflicts but chose not
to seek suppression.” Id. (citing Sargent v. Commissioner of Correction, 121 Conn. App. 725,
740–44, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010) (affirming habeas court's conclusion that
trial counsel's tactical decision not to pursue motion suppress was reasonable, where hearing on
motion to suppress would have given police witnesses a “dry run” and be better prepared at
trial)). Accordingly, the habeas court concluded that Attorney Berke’s failure to pursue a motion
to suppress was a reasonable tactical decision and that the record “supported the conclusion that
the biological samples taken from Mr. Benjamin were obtained following the issuance of the
search warrant[.]” See Benjamin v. Warden, 2018 WL 793898, at *7.
Upon review of the record, this court concludes that the habeas court reasonably applied
the relevant Strickland standards to Petitioner’s claim that Attorney Berke provided ineffective
assistance by failing to file a motion to suppress. Notably, Petitioner did not call any of the
witnesses who could have testified about the timing of the blood draw so that the habeas court
could have evaluated their testimony to determine whether Petitioner incurred prejudice due to
Attorney Berke’s failure to move to suppress. Moreover, even if Petitioner’s blood had been
drawn prior to the issuance of the warrant, the warrant was being procured and the blood testing
would have been obtained thereafter. Thus, under the inevitable discovery doctrine exception,
the evidence from Petitioner’s blood testing would still be admissible. See Murray v. United
States, 487 U.S. 533, 539 (1988) (explaining under inevitable discovery doctrine that body found
through illegal source was still admissible because it would have been discovered by the search
that had been underway but had been called off due to the discovery of the body); State v. Cobb,
251 Conn. 285, 337-39 (1999) (evidence admissible if lawful means for inevitable discovery of
evidence was possessed by police and actively being pursed prior to constitutional violation).
Accordingly, the habeas petition must be denied on this claim.
c. Attorney Berke’s Failure to Contact Petitioner’s Family Members
Petitioner claims that Attorney Berke was ineffective for failing to investigate his case
because Attorney Berke did not speak to his sister and brother-in-law. Petition, ECF No. 1 at ¶
19(a). Petitioner maintains that his sister, Michelle Jones, should have been called to testify
about his whereabouts on the night the offenses occurred. See Pet.’s Habeas Appeal Brief, Resp.
App’x. J, ECF No. 16-10 at 10. As stated in Petitioner’s appellate brief, Petitioner contends that
if Attorney Berke had contacted his sister, Michelle Jones, he would have learned that she was
willing to testify at his trial that Petitioner had spent a good portion of his time at her home on
the evening of the attacks. Id. at 35.
At the habeas trial, Jones testified that her husband had passed away prior to the habeas
trial. Resp. App’x. Q (7/21/17), ECF No. 16-45 at 81. Jones stated that the dirt on Petitioner’s
pant seat could be explained because when he visited her, he would play with her dogs in her
yard that had grass and dirt, and that on September 26, 2001, he was at her house from about
4:30 to 10 p.m. Id. at 82-83. Specifically, she stated: “That night it would have been maybe
around 10 or just a little before 10; around 10. I’m sorry, or a little after. I usually get up around
10 o’clock to go to work that night and [Petitioner was] just getting ready to leave.” Id. at 83.
She indicated further that she was not with Petitioner after she went to work at 10 p.m. Id. at 87.
She testified that she had tried to speak to Petitioner’s attorney but got no response, that she had
reached out to a male attorney whose first name was John, and that Petitioner also had a female
attorney whose last name was Eschuk.2 Id. at 83-87.
Attorney Berke testified that he remembered “some family member” of Petitioner had
been involved in or assisted in his defense, although he could not recall what the relationship of
that individual was to Petitioner; that he had mechanisms for family or potential witnesses to
reach him; and that he did not recognize Jones after seeing her in the courtroom or hearing her
name. Id. at 96, 112. He also stated that he did not know whether he would have presented
Jones’s testimony about Petitioner being at her house from 4:30 to 10 p.m. to a jury at trial, and
that the decision would depend upon the closeness in time “between the allegations and the event
for it to have significance in [his] eyes.” Id. at 97.
The habeas court decision did not specifically address this claim. However, the decision
reflects that the habeas court reviewed the testimony from Petitioner’s sister at his habeas
At the trial of this case Mr. Benjamin, who was self-represented, presented testimony
from Anita Vailonis, a criminalist at the state lab who testified at Mr. Benjamin's criminal
trial, Kevin Daly, who is an attorney that responded to a FOIA request from Mr.
Benjamin, and Michelle Jones, Mr. Benjamin's sister. Mr. Benjamin did not testify. The
respondent presented testimony from Robert Berke, who was Mr. Benjamin's criminal
defense attorney at the underlying criminal trial. The court has considered all of the
testimony at trial and has reviewed and considered all the exhibits introduced into
evidence, including a transcript of the entire trial that resulted in Mr. Benjamin's
Cara Eschuk served as a prosecutor at Petitioner’s trial in 2002. See Trial Transcript, Resp. App’x. P,
ECF Nos. 16-27, 16-29-16-43; Resp. Brief, ECF No. 16, at 47, n.6.
Benjamin, 2018 WL 793898, at *1. Upon review of this evidence, the habeas court concluded
that Petitioner’s “specific claims of ineffective assistance of counsel fail to satisfy either prong of
the Strickland analysis.” Id. at *6. Thus, the denial of the petition constituted an implicit
rejection of Petitioner’s ineffective assistance of counsel claim based on Attorney’s Berke’s
asserted failure to contact Petitioner’s family members.
Upon review of the record, this court concludes that the habeas court’s denial of this
claim does not constitute an objectively unreasonable application of Strickland. Jones’s
testimony did not identify Attorney Berke whose first name is Robert rather than John, and she
provided no further factual support for her assertion of contacting Petitioner’s attorney.
Moreover, Jones’s testimony did not reasonably substantiate that Petitioner had sustained
prejudice due to Attorney Berke’s failure to call her as a witness. Jones’s testimony was unclear
about when he left her house and therefore did not necessarily discredit D’s testimony that
Petitioner had brought her to Fulton Park around 9 or 9:30 p.m. Trial Transcript, Resp. App’x. P
(10/16/02), ECF 16-34 at 202, 214. In addition, Jones’s testimony would not have provided an
alibi for the attack on C, which occurred later during the night some time before 1:00 AM. See
id. at 45 (lines 13-14).
In addition, Jones’s testimony that the dirt on Petitioner’s jeans could be explained by his
playing with her dogs would not have likely countered what the Connecticut Appellate Court
termed as “overwhelming evidence of [Petitioner’s] guilt,” including the two victims’
identification of Petitioner from photographic arrays; the keyless entry to Petitioner's maroon
automobile found near the location of D's attack; and the DNA evidence (Petitioner’s DNA
under D’s fingernails; C and D's DNA on Petitioner’s boxers; D’s DNA on Petitioner’s
sweatshirt; C’s DNA on Petitioner’s T shirt; and D’s DNA in a stain on his car window). See
Benjamin, 86 Conn. App. at 361-62.
Thus, in light of the weaknesses of Jones’s testimony for providing Petitioner a potential
alibi or counter to the evidence against him in his criminal case, the court concludes that the
habeas court reasonably determined that Petitioner’s claim did not satisfy the performance or
prejudice prongs of Strickland.
D. Ineffective Assistance Due to Failure to Properly Cross-Examine Witnesses
Charles Fontano and Detective Michael Silva (Ground Three)
Petitioner asserts that his trial counsel provided ineffective assistance due to improper
cross examination of the State’s witnesses, Charles Fontano and Detective Michael Silva.
Petition, ECF No. 1. at ¶ 19, p. 15-16 (ground three); see also Pet.’s Response, ECF No. 19 at 19
(referencing Pet.’s Habeas Appeal Brief, App’x. J, ECF No. 16-10 at 30-39).
Courts “should recognize that counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690. Thus, “[t]here is a ‘strong presumption’ that counsel's
attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer
neglect.’” Harrington v. Richter, 562 U.S. 86, 109(2011) (quoting Yarborough v. Gentry, 540
U.S. 1, 8 (2003) (per curiam)). As the Supreme Court explained:
After an adverse verdict at trial even the most experienced counsel may find it difficult to
resist asking whether a different strategy might have been better, and, in the course of
that reflection, to magnify their own responsibility for an unfavorable outcome.
Strickland, however, calls for an inquiry into the objective reasonableness of counsel's
performance, not counsel's subjective state of mind.
Id. at 109-110 (citing Strickland, 466 U.S. at 688). Thus, the “conduct of examination and crossexamination is entrusted to the judgment of the lawyer,” and a reviewing court “should not
second-guess such decisions unless there is no strategic or tactical justification for the course
taken.” United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998). For a cross examination to be
constitutionally deficient, a court must find that “‘there is no strategic or tactical justification for
the course taken.’” Eze, 321 F.3d at 127 (quoting Luciano, 158 F.3d at 660). However, courts
within the Second Circuit afford “significant deference ... [to] a trial counsel's decision how to
conduct cross examination,” and “refus[e] to use perfect hindsight to criticize unsuccessful trial
strategies.” Id. at 132.
Petitioner argues that Attorney Berke failed to question Fontano about a significant
inconsistency in his testimony. See Pet., ECF No. 1 at 16; Pet.’s Habeas Appeal Brief, Resp.
App’x. J, ECF No. 16-10 at 35-37. Specifically, Petitioner’s brief pointed out that Fontano had
initially testified at his criminal trial that he was on Walnut Street in Waterbury when he
observed C, his girlfriend, enter Petitioner’s automobile, but he later corrected himself to say he
was on Orange Street. Id. at 35-36; Trial Transcript, Resp. App’x. P (10/16/02), ECF No. 16-34
at 134-35. Petitioner argued that he was prejudiced by Attorney Berke’s failure to question
Fontano about his location, which he maintains could have diminished Fontano’s credibility and
the strength of the State’s case by showing "how unlikely" it was that Fontano was on Orange
Street, and that he could not have seen the car if he was on Walnut Street instead. Pet.’s Habeas
Appeal Brief, Resp. App’x. J, ECF No. 16-10 at 37.
At the habeas trial, Attorney Berke testified that a decision about whether he will pursue
witness testimony inconsistencies depends upon the significance of the particular inconsistency
and that he would not challenge other inconsistencies that would not be “worthwhile” and could
result in “annoying” the jury. Habeas Transcript, Resp. App’x. Q (7/21/17), ECF No. 16-45 at
99-100. He indicated that it was typically his strategy to impeach a witness’s credibility when
possible, although there were times when he was "better off staying quiet." Id. at 107, lines 1823.
The transcript from Petitioner’s criminal trial reflects that Attorney Berke did impeach
Fontano's credibility on cross-examination: he was able to have Fontano admit to providing a
signed statement to the police under a false name due to warrants against him; that the police
statement (which Fontano had reviewed) indicated he had informed the police that C was pulled
in through the car window without fighting back, although he later disputed that he had said
through the window; that he was fifty feet away from the car and could not “see around the car;”
that he used heroin and crack with C on the evening of the attack; and that he was in custody
serving a sentence and had prior convictions for larceny and burglary. Trial Transcript, Resp.
App’x. P (10/16/02), ECF No. 16-34 at 149-157, 160.
The state habeas court noted:
Mr. Benjamin also claims that Attorney Berke did not cross examine an eyewitness,
Charles Fontano, thoroughly and aggressively enough. Mr. Fontano was in a romantic
relationship with one of the victims. He initially testified that he was on Walnut Street in
Waterbury when he observed his girlfriend enter Mr. Benjamin's car. He then corrected
himself, without any prompting, to say that he was on Orange Street. He later found his
girlfriend on Walnut Street after she had been assaulted. Attorney Berke did not cross
examine Mr. Fontano on his initial confusion over which street the victim was on when
she entered the car. He did cross examine him, however, on the inconsistency between
his testimony at trial and the statement he gave to the police indicating that his girlfriend
had been pulled into Mr. Benjamin's car through the passenger side window. The victim
herself testified that she had entered the car voluntarily and not through the window.
Attorney Berke testified at the habeas trial, not surprisingly, that as trial counsel he does
not pursue every inconsistency in the testimony of a witness. He pursues the ones he
considers significant, and not the ones “that are just annoying to a jury.” He appears to
have followed that practice in this instance.
See Benjamin v. Warden, 2018 WL 793898 at *4.3 The habeas court concluded that Attorney
Berke’s decision not to cross examine Fontano on his initial misstatement about his location
"was a reasonable tactical decision by counsel" and that Petitioner failed to show that Fontano's
confusion "was of critical significance to his convictions." See Id. at *7. At his habeas trial,
Petitioner failed to call Fontano as a witness to demonstrate what facts a different crossexamination would have revealed.
The record as a whole demonstrates that Attorney Berke elicited testimony to undermine
Fontano’s credibility. The habeas court reasonably determined that Attorney Berke’s decision
not to cross examine Fontano relevant to his prior testimony about his location was a strategic or
tactical decision. Thus, the Court concludes the habeas court reasonably applied the highly
deferential standard in Strickland to Petitioner’s ineffective assistance claim based on Attorney
Berke’s cross examination of Fontano. This claim for habeas relief must be denied.
2. Detective Silva
Petitioner asserts that his trial counsel provided ineffective assistance in his crossexamination of Detective Michael Silva of the Waterbury Police Department. Petition, ECF No.
1 at 15-16; Pet. Response, ECF No. 19 at 19. In his brief on appeal of the state habeas decision,
Attorney Berke's cross-examination of Detective Silva did not establish
that his examination of the clothing evidence, done after the clothes were bagged,
3Petitioner’s brief on appeal of the state habeas decision challenged the habeas court’s characterization of Fontano’s
correction “without prompting.” Pet.’s Habeas Appeal Brief, Resp. App’x. J, ECF No. 16-10 at 36-37. The record
reflects that the State’s Attorney showed Fontano a photograph of the Walnut street area and that he first indicated
he was coming down Walnut Street; after she asked him if he was “coming down” a street shown on the photograph,
he corrected himself, stating “No, it was right here coming down. I believe that is Orange Street.” Trial Transcript,
Resp. App’x. P (10/16/02), ECF No. 16-34 at 133-35. Thus, the transcript shows that the State’s Attorney did not
directly coach Fontano to change his testimony about his location. Accordingly, the habeas court reasonably
characterized Fontano’s self-correction as “without any prompting.” See id.
sealed and deposited in the evidence room contaminated the various articles of
clothing. Although at the habeas trial, Attorney Berke recalled having Detective Silva
admit that he had  deposited [the] various articles of clothing on the same floor after he
examined them and possibly caused touch cross contamination, this admission alone
was not sufficient to [create] a strong enough inference that Detective Silva had tampered
with the evidence in a manner that disadvantaged the petitioner's defense.
See Pet.’s Habeas Appeal Brief, Resp. App’x. J, ECF No. 16-10 at 38.
The habeas court concluded that “Attorney Berke conducted substantive and pointed
cross-examination of the state’s witnesses at [petitioner]’s trial[.]” Benjamin v. Warden, 2018
WL 793898, at *3. The court noted that Attorney Berke had questioned the propriety of
Detective Silva's conduct in taking Mr. Benjamin's clothing out of the sealed bags, purportedly to
photograph them, and handling those items in such a way as to risk cross contamination[,]” and
that “Attorney Berke testified at the habeas trial that although Mr. Benjamin contended the
evidence was fabricated, his own judgment was that there was insufficient evidence to establish
that contention and Attorney Berke believed there were more fruitful grounds for cross
examination of the police witnesses.” Id. The court observed further that Attorney Berke applied
a reasonable strategy by seeking “to expose the improprieties in the handling of evidence before
the jury and allow the jury to draw its own conclusions.” Id.
The trial transcript reflects that Attorney Berke’s cross-examination of Detective Silva
challenged the police evidence collection methods and handling of evidence that could have
created a risk of cross contamination with respect to the DNA evidence. Resp. App’x. P, ECF
No. 16-39 (10/24/02) at 114-143. He specifically questioned Detective Silva about
photographing evidentiary items on the floor of the police department and whether that was
acceptable protocol for avoiding contamination. Id. at 141 (lines 4-9). He also questioned
Detective Silva about why certain clothing items were placed on a bed overlapping each other
while being photographed and queried whether doing so would defeat the purpose of separating
the items to avoid cross-contamination. Id. at 142-143. Notably, Petitioner did not call Detective
Silva to testify at the habeas trial so that he could demonstrate that Attorney Berke should have
conducted a different cross examination or that Attorney Berke’s cross examination prejudiced
After review of the record, the court concludes that the habeas court rendered a
reasonable application of Strickland’s highly deferential standard to Petitioner’s claim of
ineffective assistance of counsel based on Attorney Berke’s cross examination of Detective
Silva. Accordingly, the Petitioner’s request for habeas relief must be denied on this ground.
For the foregoing reasons, the petition for writ of habeas corpus [ECF No. 1] is
DENIED. The clerk is directed to enter judgment in favor of Respondent and to close this case.
Any appeal from this order would not be taken in good faith because Petitioner has not
shown that he was denied a constitutionally or federally protected right. Thus, a certificate of
appealability will not issue.
SO ORDERED at Hartford, Connecticut this 28th day of April, 2021.
Michael P. Shea
United States District Judge
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