163 Conn.App. 556
Conn. App. Ct.2016Background
- Corey Turner was convicted in 1997 of murder and first degree assault; the Supreme Court affirmed his conviction on direct appeal in 2000.
- Turner filed a habeas petition adjudicated in 2002 (White, J.), alleging ineffective assistance of counsel; the habeas court denied relief and this court dismissed his appeal.
- At the 2002 habeas trial Turner sought to impeach his trial counsel with a 1997 grievance response to show counsel perjured himself about having interviewed additional alibi witnesses; the habeas court excluded that extrinsic evidence as collateral and cumulative.
- In 2011 Turner moved to open and set aside the 2002 habeas judgment, alleging fraud/perjury by his trial counsel and collusion by respondent’s habeas counsel; the motion was filed more than eight years after the 2002 judgment.
- The habeas court (Cobb, J.) denied the motion under Varley (motion to open for fraud) as untimely and for failing to satisfy Varley factors; it also denied certification to appeal.
- Turner appealed the denial of certification; the appellate court dismissed the appeal, concluding the motion to open was brought after an unreasonable delay and the denial of certification was not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument (Turner) | Defendant's Argument (Commissioner) | Held |
|---|---|---|---|
| Whether the 2011 motion to open the 2002 habeas judgment alleging fraud/perjury was timely under §52-212a and Varley | The fraud (perjury/collusion) was known at trial but warrants reopening; the grievance response shows counsel perjured himself | Motion to open is governed by a four-month rule and Varley; Turner delayed >8 years without new facts so motion is untimely | Denied — motion was filed after an unreasonable delay; Varley timeliness factor fails |
| Whether Turner proved Varley factors (no laches, diligence, clear proof of fraud, reasonable probability of different result) | There was clear proof of perjury (grievance response) and a reasonable probability a new habeas trial would differ | Turner failed laches/diligence, failed to produce clear proof, and no reasonable probability of different result | Denied — Turner did not satisfy Varley and court need not reach all factors |
| Whether the exclusion of the grievance response at the 2002 habeas trial improperly foreclosed Turner from proving fraud later | The grievance response contradicted counsel’s habeas testimony and was central to fraud claim | The grievance was collateral/cumulative and properly excluded at trial; not new evidence excusing delay | Denied — exclusion at original hearing does not justify multi-year delay in filing motion to open |
| Whether denial of certification to appeal was an abuse of discretion | Denial was improper because the underlying issues are debatable among jurists of reason | The denial was proper because the motion to open was frivolous given the unreasonable delay and failure under Varley | Denied — appellate court finds no abuse of discretion; appeal dismissed |
Key Cases Cited
- Varley v. Varley, 180 Conn. 1 (1980) (sets four-factor test to open judgment for fraud)
- Simms v. Warden, 229 Conn. 178 (1994) (denial of certification bars merits review unless denial was an abuse of discretion)
- State v. Turner, 252 Conn. 714 (2000) (direct-appeal decision addressing admissibility of surrebuttal tape)
- State v. Chambers, 296 Conn. 397 (2010) (attorney’s duty to prevent and not present false evidence)
- Duart v. Dept. of Correction, 303 Conn. 479 (2012) (modifies Varley fourth prong to require "reasonable probability" of different result)