Gerald W. v. Commissioner of Correction
150 A.3d 729
Conn. App. Ct.2016Background
- Petitioner Gerald W. was convicted after a jury trial of three counts of risk of injury to a child and one count of attempted first‑degree sexual assault based on allegations by three minor female victims; he received an effective 40‑year sentence.
- Petitioner’s direct appeal and an initial habeas petition alleging trial counsel ineffectiveness were unsuccessful; counsel in the first habeas was Attorney Jodi Zils Gagne.
- Petitioner filed a second habeas petition claiming (1) additional trial‑counsel errors and (2) that habeas counsel Gagne was ineffective for failing to raise those new specifications in the first habeas proceeding.
- At trial on the second habeas, the court dismissed the first count (trial counsel claims) as duplicative and tried only the claim that habeas counsel was ineffective for not raising the additional specifications, including failure to retain/consult a child‑sexual‑abuse expert.
- The habeas court found Gagne competent: she reviewed files/transcripts, repeatedly reviewed forensic interviews, pursued seven claims in the first habeas, and reasonably declined to press claims she deemed unlikely to succeed; the court also found no Strickland prejudice from failing to consult an expert given the three consistent victim accounts and weaknesses in the conspiracy theory.
- The habeas court denied relief; it granted certification to appeal. The Appellate Court affirmed, holding the petitioner failed to prove ineffective assistance of habeas counsel under Strickland/Lozada.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether habeas counsel (Gagne) rendered ineffective assistance by failing to raise new trial‑counsel claims in first habeas | Gagne performed deficiently by not raising/ litigating the additional specifications of trial‑counsel error now alleged | Gagne reasonably investigated, pursued multiple claims, and strategically declined weak claims; failure to raise others not deficient | Court held petitioner failed to prove Gagne was ineffective; performance was within reasonable professional judgment |
| Whether Gagne was ineffective for failing to retain/consult a child‑sexual‑abuse expert | Such consultation was necessary and omission prejudiced petitioner’s ability to show trial counsel’s ineffectiveness | No reasonable probability an expert would have changed outcome given three victims’ consistent testimony and lack of evidence of fabrication; cross‑examination was adequate | Held no Strickland prejudice; claim lacks merit |
| Whether petitioner satisfied Lozada requirement to show both habeas counsel and trial counsel ineffective (double Strickland) | Argues both levels were deficient, so Lozada framework satisfied | Respondent contends petitioner failed to prove either level as to the new claims | Court affirmed petitioner did not meet burden under Lozada/Strickland to show prejudice at either level |
| Whether habeas court’s factual findings (on counsel preparation, victims’ credibility, and tactical choices) were clearly erroneous | Petitioner challenges credibility findings and tactical assessments | Respondent defends factual findings supported by testimony (Gagne, witnesses) and court observations | Held findings not clearly erroneous; plenary review of legal conclusion but deference to factual findings upheld |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part test for ineffective assistance: deficient performance and prejudice)
- Lozada v. Warden, 223 Conn. 834 (Conn. 1992) (habeas on a habeas requires proving both habeas counsel and trial counsel ineffective)
- Bharrat v. Commissioner of Correction, 167 Conn. App. 158 (Conn. App. 2016) (deference to counsel’s strategic decisions after reasonable investigation)
- Crocker v. Commissioner of Correction, 126 Conn. App. 110 (Conn. App. 2011) (prejudice in habeas context requires reasonable probability habeas court would have granted relief if counsel were effective)