163 Conn.App. 761
Conn. App. Ct.
2016
Case Information

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CHARLES FULLENWILEY COMMISSIONER OF CORRECTION (AC 37491) DiPentima, C. J., and Beach and Flynn, Js.

Argued January 14—officially released March 15, 2016 (Appeal from Superior Court, judicial ‍‌‌​​‌​‌‌​​​​‌​‌​​‌‌​‌​​​‌​​‌‌​‌‌​​‌‌​​‌​‌​​​‌​‌‌‍district of Tolland, Sferrazza, J.) Robert J. McKay , assigned counsel, for the appel- lant (petitioner).

Sarah Hanna , assistant state’s attorney, with whom, on the brief, were Maureen Platt , state’s attorney, and Eva B. Lenczewski , supervisory assistant state’s attor- ney, for the appellee (respondent).

Opinion

PER CURIAM. The petitioner, Charles Fullenwiley, appeals following the denial of his petition for certifica- tion to appeal from the judgment of the habeas court denying his revised amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly denied (1) his petition for certifica- tion tо appeal and (2) his petition for a writ of habeas corpus. Because the petitioner has not demonstrated that the court abused its discretion in denying the peti- tion for certification to appeal, we dismiss the appeal.

The following facts and procedural history are rele- vant to our resolution of this appeаl. On June 3, 2008, the petitioner pleaded guilty, under the Alford [1] doctrine, to possession of child pornography in the first degree. He was sentenced to a term of twenty years incarcera- tion, execution suspended after twelve years, and fif- teen years of probation. The petitioner ‍‌‌​​‌​‌‌​​​​‌​‌​​‌‌​‌​​​‌​​‌‌​‌‌​​‌‌​​‌​‌​​​‌​‌‌‍filed a revised amended petition for a writ of habeas corpus, which contained two claims—ineffective assistance of trial counsel and actual innocence. The petitioner raises only the former claim оn appeal.

The habeas court denied the petitioner’s revised amended petition for habeas corpus relief. The court noted that ‘‘the state’s casе against the petitioner was overwhelming. . . . The petitioner had admitted to possessing this material while knowing its nature. . . . The petitioner’s own forensic expert reported to [the petitioner’s trial counsel] that the depictions were genu- ine photographic recordings and not computer gener- ated simulations. . . . The petitioner’s criminаl history at the time of his prosecution for this charge was atro- cious.’’ The court concluded that the petitioner’s allega- tions of ineffective assistance of counsel failed because the petitioner had not established that he was preju- diced by the performance of his trial counsel. [2]

Thereafter, the petitioner sought certification to appeal from the judgment denying his petition for a writ of habeas corpus, which the court denied. This appeal followed.

On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and that the court improperly denied his peti- tiоn for a writ of habeas corpus. The petitioner essen- tially contends that his trial counsel performed deficiently in his representation of the petitioner during plea negotiations.

We first set forth our standard of review. ‘‘Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Simms Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To prove an abuse of discretion, the petitioner ‍‌‌​​‌​‌‌​​​​‌​‌​​‌‌​‌​​​‌​​‌‌​‌‌​​‌‌​​‌​‌​​​‌​‌‌‍must demonstrate that the issues are debatable аmong *4 jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are ade- quate to deserve encouragement to procеed further. . . . Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). If the petitioner succeeds in surmounting that hurdle, the peti- tioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Id., 612.’’ (Internal quotation marks omitted.) Elliston v. Com- missioner of Correction , 131 Conn. App. 787, 788–89, 28 A.3d 1019 (2011).

A claim of ineffective assistance of counsel consists of two components: a performance prong and a preju- dice prong. ‘‘In Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United Stаtes Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to rever- sal of a conviction due to ineffective assistancе of coun- sel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [peti- tioner] must show that the deficient performance preju- diced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial pro- cess that renders the result unreliable. . . . A reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one.’’ (Internal quotation marks omitted.) McGee v. Commissioner of Correction , 157 Conn. App. 863, 868, 118 A.3d 140, cert. denied, 318 Conn. 903, 122 A.3d 633 (2015). ‘‘To satisfy the prеjudice prong, a [petitioner] must demonstrate that there is a reasonable probability that, but for counsel’s ‍‌‌​​‌​‌‌​​​​‌​‌​​‌‌​‌​​​‌​​‌‌​‌‌​​‌‌​​‌​‌​​​‌​‌‌‍unprofessional errors, the result of the proceeding wоuld have been different.’’ (Internal quotation marks omitted.) Atkinson v. Com- missioner of Correction , 125 Conn. App. 632, 638, 9 A.3d 407 (2010), cert. denied, 300 Conn. 919, 14 A.3d 1006 (2011). ‘‘[I]n the context of a guilty plea . . . to succeed on the prejudice prong the petitioner must demonstrate that, but for counsel’s alleged ineffective performance, the petitioner would not have pleaded guilty and would have proceeded to trial.’’ (Internal quotation marks omitted.) Carraway Commissioner of Correction , 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015).

After reviewing the record, briefs, and the habeas court’s thoughtful memorandum of decision, we con- clude that the petitioner has not contested the habeas сourt’s finding of lack of prejudice. The habeas court concluded that the petitioner failed to demonstrate prej- udice as a result of the alleged ineffective assistance of counsel, yet, in his appellate brief, the petitioner argued only that counsel’s performance was deficient. Without a showing that the petitiоner would not have pleaded guilty but for the deficient performance of his trial counsel, the prejudice requirement has not been *5 met. See Atkinson v. Commissioner of Correction , supra, 125 Conn. App. 637. Accordingly, the petitioner has failed to sustain his burden of persuasion that the habeas court abused its discretion by denying his peti- tion for certification to appeal. See Simms v. Warden , supra, 230 Conn. 612.

The appeal is dismissed. 162 (1970). [1] North Carolina See Alford , 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d tance of counsel as follows: ‘‘[Trial counsel] failed adequately to explain to [2] The habeas court listed the petitioner’s allegations of ineffective ‍‌‌​​‌​‌‌​​​​‌​‌​​‌‌​‌​​​‌​​‌‌​‌‌​​‌‌​​‌​‌​​​‌​‌‌‍assis- the petitioner the plea canvass process, the nature of an Alford plea, and/ or the purpose of a presentence investigation report . . . he insufficiently investigated the state’s сase against the petitioner by failing to review and make use of an internal affairs report in order to negotiate more favorable terms for disposition . . . he failed to learn whether or not the petitioner was arrested pursuant to an arrest warrant which charged the petitioner with child pornography . . . he failed to apprisе the petitioner of the possi- bility of using the testimony of [a] Waterbury police officer . . . for the defense case . . . he misinformed the petitioner that his daughter . . . would be cаlled as a defense witness . . . he failed to interview [a] [then detective] of the Waterbury Police Department, [the petitioner’s daughter], or [an additional witness] . . . he failed to inform the petitioner of the elements of the crime of possession of child pornography [in the] first degree . . . and . . . he forced the petitioner to plead guilty.’’

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