Kowalyshyn v. Commissioner of Correction
155 Conn.App. 384
Conn. App. Ct.2015Background
- Petitioner Michael Kowalyshyn was convicted in 2007 of multiple offenses and sentenced to eight years plus special parole; his direct appeal was affirmed.
- He filed a habeas petition in 2010 alleging (1) altered pretrial records, (2) ineffective trial counsel, and (3) ineffective appellate counsel; counsel were appointed twice (O’Brien then Holmes).
- O’Brien later withdrew citing safety concerns; Holmes moved to withdraw claiming threats and a breakdown in the attorney-client relationship.
- The habeas court granted Holmes’s motion to withdraw, found the petitioner’s threats amounted to waiver of the right to counsel, and declined to appoint successor counsel; the habeas trial proceeded and the petition was denied.
- The petitioner sought certification to appeal under § 52-470(g) but filed only a generic request stating he needed counsel to articulate grounds (citing prison restrictions on legal access); the habeas court denied certification and this appeal followed.
Issues
| Issue | Kowalyshyn's Argument | Commissioner’s Argument | Held |
|---|---|---|---|
| Whether habeas court abused discretion by granting counsel’s motion to withdraw | Court wrongly allowed Holmes to withdraw, prejudicing petitioner | Withdrawal was justified by threatened conduct and breakdown of relationship | Dismissed: petitioner failed to preserve this as a ground for certification; not reviewed |
| Whether habeas court erred in refusing to appoint successor counsel, finding petitioner waived right to counsel by misconduct | Court should have appointed successor counsel despite alleged threats | Court properly found waiver by misconduct and properly declined appointment | Dismissed: claim not raised in petition for certification; appellate review refused |
Key Cases Cited
- Simms v. Warden, 229 Conn. 178 (standard for appellate review after denial of certification)
- Lozada v. Deeds, 498 U.S. 430 (standard referenced for determining abuse of discretion in certification denials)
- Tutson v. Commissioner of Correction, 144 Conn. App. 203 (application of certification-abuse standard)
- Stenner v. Commissioner of Correction, 144 Conn. App. 371 (claims not raised in certification petition are not reviewed)
- Campbell v. Commissioner of Correction, 132 Conn. App. 263 (refusal to review issues not presented in certification petition)
- Reddick v. Commissioner of Correction, 51 Conn. App. 474 (petitioner must establish abuse of discretion to obtain review)
- Keating v. Glass Container Corp., 197 Conn. 428 (appellate courts will not consider errors not properly preserved)