Alterisi v. Commissioner of Correction
Just as trial and appellate lawyers must make tactical decisions on which claims to raise—so as to focus their fact finders' minds on their strong claims and not dilute that focus by raising weak claims—habeas counsel must do the same. Allen Alterisi was convicted on counts of first degree sexual assault and risk of injury to a child, concerning allegations by his former girlfriends' two sons. His conviction and the denial of his first petition for a writ of habeas corpus were affirmed on appeal. Alterisi filed this second habeas petition. Trial ensued on claims of ineffective assistance of prior habeas counsel and appellate counsel in his direct appeal. The habeas court denied the petition. Alterisi appealed, challenging the court's conclusion that he had not established either claim. The Appellate Court affirmed the judgment. The petitioner argued that appellate counsel, Robert Casale, was ineffective for not raising a claim that the state committed prosecutorial impropriety in arguing to the jury about Alterisi's having lived with 19 other women with children. Alterisi contended that this implied other victims existed and, therefore, referred to facts not in evidence. Casale testified that he determined, as a tactical matter, to raise only the issue of whether the trial court improperly permitted the children to testify by videotape, because it was the strongest issue. He testified that he did not raise any issue of prosecutorial impropriety because it was unpreserved and would not have merited appellate reversal under the prevailing standard. The Appellate Court agreed with the habeas court's determination that this tactical choice was reasonable. It was highly unlikely that the claim would have prevailed and it only would have served to dilute the strength of the claim raised. The petitioner also could not prevail on his claim that first habeas counsel, William Palmieri, rendered ineffective assistance. It was a presumptively reasonable tactical decision by Palmieri not to raise the claim that trial attorney John Donovan was ineffective in failing to re-raise an objection to, and file a motion in limine regarding, evidence of Alterisi's personality disorder and to focus the first habeas court's eye on what he regarded as a strong claim, regarding the petitioner being left unattended at a polygraph interview. Other claims were similarly rejected.