McGee v. Commissioner of Correction, 157 Conn.App. 863

Background

Frank McGee was convicted by a jury in Waterbury of two counts of robbery in the second degree, conspiracy to commit robbery in the second degree, sexual assault in the fourth degree, and breach of the peace in the second degree; acquitted of larceny in the second degree and sexual assault in the third degree.
On direct appeal, this court affirmed the conviction, citing State v. Arroyo to reject review of an allegedly inconsistent verdict.
McGee later filed an amended habeas petition alleging ineffective assistance of trial counsel, tried before a habeas court with expert and family testimony.
The habeas court denied the petition for certification to appeal, finding trial counsel’s performance reasonable on cross‑examination, juror misconduct, posttrial motion conduct, and sentencing preparation.
On appeal, McGee challenges the habeas court’s certification decision, arguing multiple ineffective‑assistance claims and related rulings; this court dismisses the appeal.
The court ultimately concludes the arguments do not meet the Simms/Lozada standard for appellate review of habeas denials and affirms the dismissal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the habeas court abused its discretion in denying certification to appeal.	McGee argues the court should review his ineffective‑assistance claims on appeal.	Commissioner contends the denial was not an abuse and merits no appellate review.	No; denial affirmed; claims not debatable or suitable for further review.
Whether trial counsel rendered ineffective assistance in cross‑examining Refalo and T.	McGee claims counsel's cross‑examination was deficient and damaging testimony was elicited.	Counsel’s questioning was strategic and within reasonable professional standards.	No; cross‑examination was reasonable and not prejudicial.
Whether trial counsel was ineffective for failing to respond to juror misconduct.	McGee asserts trial counsel should have acted on alleged juror misconduct.	Missed misconduct claim lacked merit; clerk’s mistake showed no prejudice.	No; failure to pursue meritless claim not deficient performance.
Whether trial counsel failed to file a posttrial motion on an inconsistent verdict.	McGee contends counsel should have moved for a judgment of acquittal on inconsistency.	Claim barred by res judicata from direct appeal.	Yes; barred by res judicata.
Whether counsel was ineffective in preparation for sentencing based on PSI issues.	McGee argues PSI inaccuracies and lack of mitigation evidence were inadequately pursued.	Habeas court found preparation reasonable and errors insubstantial.	No; no prejudice shown; sentencing outcome not proven different absent alleged deficiencies.

Key Cases Cited

State v. Arroyo, 292 Conn. 558 (2009) (reviewability of inconsistent verdict claims limited by appellate doctrine)
State v. McGee, 124 Conn. App. 261 (2010) (direct‑appeal review of inconsistent verdict barred by Arroyo doctrine)
Simms v. Warden, 229 Conn. 178 (1994) (two‑pronged habeas standard for certification to appeal; abuse of discretion and merits review)
Simms v. Warden, 230 Conn. 608 (1994) (clarifies standard and deference to habeas court rulings)