Summary
This Connecticut Appellate Court opinion reviews a habeas court's partial grant of a writ of habeas corpus filed by a prisoner convicted of murder. The petitioner claimed ineffective assistance of counsel for failing to subpoena his brother, who later confessed to the shooting in video recordings. The appellate court reversed in part, holding that trial counsel's strategic decision not to call the brother as a witness was reasonable given his prior uncooperativeness and the potential risks to the defense theory.
Topics
Practice areas
Questions Presented
- Whether trial counsel rendered ineffective assistance by failing to subpoena and present the testimony of Abdus-Sabur's brother, Isa, as the shooter.
- Whether counsel's decision not to call Isa constituted deficient performance under the performance prong of Strickland v. Washington.
- Whether the habeas court improperly granted relief based on its conclusion that counsel's failure to present Isa's testimony was deficient performance.
Holdings
- The habeas petitioner failed to overcome the strong presumption that counsel's informed decision not to subpoena or present Isa was reasonable trial strategy. Given Isa's pretrial reluctance to meet with investigators, refusal to admit responsibility, failure to come forward at the criminal trial, and potentially harmful or unpredictable testimony, counsel's decision did not constitute deficient performance under Strickland.
- Because the petitioner failed to establish deficient performance, the court did not need to address the prejudice prong of Strickland.
Key quotations
“On the basis of the foregoing, we conclude that the petitioner did not meet his burden of overcoming the strong presumption that Moscowitz’ decision not to subpoena or present the testimony of Isa was reasonable trial strategy.”
“Thus, we further conclude that the habeas court improperly concluded that Moscowitz’ decision amounted to deficient performance under the Strickland standard.”
Factual background
Abdus-Sabur was convicted of shooting and killing Kareem Morey, Sr., from a third-floor landing at a Waterbury housing complex, as well as possessing a firearm. His defense theory at trial was that eyewitnesses could not reliably identify the shooter because of darkness, brief viewing opportunities, and their vantage points. In the later habeas proceeding, Abdus-Sabur claimed that his trial attorney, Michael Moscowitz, should have subpoenaed and called Abdus-Sabur's brother Isa, who testified at the habeas trial that Isa—not Abdus-Sabur—was the shooter and had made confession videos. Before the criminal trial, however, Isa had avoided or declined interviews, had not admitted responsibility to counsel's investigators, and had not come forward to testify.
Procedural history
Abdus-Sabur was convicted by a jury of murder and criminal possession of a firearm and received an effective forty-five-year sentence. He filed a third amended state habeas petition alleging actual innocence and ineffective assistance of trial and appellate counsel. The Superior Court, Bhatt, J., granted the petition in part, finding that trial counsel rendered ineffective assistance by failing to subpoena and present the testimony of Abdus-Sabur's brother, Isa. The Commissioner appealed, and the Connecticut Appellate Court reversed that portion of the judgment and directed the habeas court to deny the petition as to that claim, while affirming the judgment in all other respects.
Remand instructions
The case was remanded with direction to render judgment denying the habeas petition as to the claim that Michael Moscowitz provided ineffective assistance by failing to subpoena and present Isa's testimony. The judgment was affirmed in all other respects.