McCarthy v. Commissioner of Correction, 192 Conn.App. 797

McCarthy was charged with murder; at arraignment Joseph Elder entered a bond-only appearance and the court permitted him to withdraw on March 10, 2004.
Elder’s investigator interviewed two eyewitnesses; Elder prepared signed affidavits recanting their prior statements and alleging police coercion. Elder later admitted at trial he had "filled in" and at times "made up" portions.
The fabricated affidavits were given to subsequent counsel and used to impeach the witnesses at trial; McCarthy rejected a state plea to manslaughter (10–15 years) and was convicted of murder and sentenced to 50 years.
McCarthy’s second habeas petition alleged (1) a freestanding due process violation because his plea decision was not knowing/voluntary (count one) and (2) ineffective assistance by Elder for fabricating affidavits that misled him about the state’s case (count three).
The habeas court held count one procedurally defaulted for lack of cause/prejudice and held count three noncognizable as a matter of law because Elder was not counsel of record when the affidavits were fabricated.
The appellate court affirmed the procedural-default ruling as to count one but reversed as to count three, holding the habeas court applied an unduly narrow test for whether Elder was counsel for Sixth Amendment purposes and remanded for a new trial on that count.

Issue	McCarthy’s Argument	Commissioner’s Argument	Held
Whether McCarthy’s freestanding due process claim (involuntary plea) is procedurally defaulted	The claim arises from Elder’s ineffective assistance and therefore is not subject to procedural default or, alternatively, could only be raised in habeas	The claim is a freestanding due process claim that was ripe once Elder admitted fabrication at trial; respondent preserved procedural-default defense and McCarthy failed to show cause and prejudice	Court: claim is procedurally defaulted; McCarthy failed to prove cause and prejudice — affirmed
Whether an ineffective assistance claim against Elder is cognizable though Elder was not counsel of record when affidavits were prepared	Sixth Amendment can reach nonappearing / "behind-the-scenes" counsel whose out-of-court conduct negatively affects the defense; Elder may have continued to represent McCarthy and thus claim is cognizable	Elder withdrew and was not representing McCarthy at the time; ineffective-assistance claims limited to counsel who represented defendant at the relevant time	Court: habeas court erred in focusing solely on formal appearance; whether Elder was representing McCarthy is a mixed question of law and fact — reversed and remanded for new trial on count three

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance of counsel)
Cuyler v. Sullivan, 446 U.S. 335 (1980) (question whether attorney represented defendant for Sixth Amendment purposes is mixed fact and law)
Stoia v. United States, 22 F.3d 766 (7th Cir. 1994) (Sixth Amendment may extend to nonappearing counsel whose conduct negatively impacts the defense)
Martini v. United States, 31 F.3d 781 (9th Cir. 1994) (advice from a nonparticipating attorney does not negate effective assistance from counsel of record in some contexts)
Taylor v. Commissioner of Correction, 324 Conn. 631 (2017) (distinguishing freestanding constitutional claims from typical Strickland claims for procedural-default analysis)
Johnson v. Commissioner of Correction, 285 Conn. 556 (2008) (a successful Strickland claim can establish cause and prejudice to excuse procedural default)
State v. McCarthy, 105 Conn. App. 596 (2008) (direct appeal affirming McCarthy’s conviction)