Gray v. Commissioner of Correction
Appellate counsel did not render deficient performance by electing to maneuver within the existing law and arguing the standard set forth in the 1995 Connecticut Supreme Court case of Copas v. Commissioner of Correction. Bennie Gray pleaded nolo contendere to manslaughter in the first degree with a firearm and was sentenced to 20 years imprisonment. He filed a petition for a writ of habeas corpus claiming, inter alia, that trial counsel, Burton Weinstein, rendered ineffective assistance by fraudulently inducing him to enter the plea. The habeas court denied the petition concluding that the petitioner "persuaded this [c]ourt that [trial counsel] used improper tactics to pressure the [p]etitioner to plead nolo contendere and accept the plea bargain but has not met his burden of proving that [trial counsel's] actions constituted ineffective assistance of counsel in view of the result as opposed to the potential result." The Appellate Court affirmed the judgment. Gray filed a second habeas petition claiming that habeas appellate counsel, Donald O'Brien, rendered ineffective assistance by failing to challenge directly the habeas court's application of the incorrect standard for ineffective assistance of trial counsel in guilty plea cases, which failure caused the Appellate Court to render an erroneous decision. Gray contended that the appropriate standard is in the 1985 U.S. Supreme Court case of Hill v. Lockhart and not Copas. Gray alleged that because his case did not involve a failure of trial counsel to discover evidence or defenses, under Hill, the focus is on the plea proceeding and its outcome, not the outcome of a possible criminal trial. The habeas court denied the petition. Gray appealed. The Appellate Court affirmed the judgment. Gray failed to show that appellate counsel's performance was deficient based on any failure to brief properly and advocate the appropriate standard for ineffective assistance of trial counsel in guilty plea cases. No expert testimony was offered on the issue. Appellate counsel did briefly raise the argument advanced by the petitioner setting forth the Hill standard and attempting to distinguish Copas. But, Copas was binding precedent. The petitioner cited no Connecticut case accepting his argument or addressing the apparent dichotomy between Hill and Copas advocated. By arguing the Copas standard, appellate counsel elected to maneuver within the existing law and did not render deficient performance.