STEPHEN S.* v. COMMISSIONER OF CORRECTION
(AC 42384)
Connecticut Appellate Court
July 21, 2020
DiPentima, C. J., and Lavine and Keegan, Js.
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STEPHEN S.* v. COMMISSIONER OF CORRECTION
Syllabus
The petitioner, who had been convicted of multiple charges involving the sexual abuse of a minor, filed a third petition for a writ of habeas corpus, claiming that his trial counsel and appellate counsel had rendered ineffective assistance. The first two habeas courts denied the first two petitions. The third habeas court rendered judgment declining to issue the writ, determining, pursuant to the applicable rule of practice (
Submitted on briefs March 17—officially released July 21, 2020
Procedural History
Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Newson, J., rendered judgment declining to issue a writ of habeas corpus; thereafter, the petitioner, on the granting of certification, appealed to this court. Reversed; judgment directed; further proceedings.
Vishal K. Garg, assigned counsel, filed a brief for the appellant (petitioner).
Opinion
KEEGAN, J. The petitioner, Stephen S., appeals from the judgment of the habeas court declining to issue a writ of habeas corpus pursuant to
The following facts and procedural history are relevant to this appeal. Following a jury trial, the petitioner was found guilty of multiple charges involving the sexual abuse of a minor and was sentenced to sixty years of incarceration. The petitioner appealed from the judgment of conviction to this court, claiming that the trial court improperly allowed (1) pornographic materials to be admitted into evidence even though the victim had not specifically identified them, (2) the admission of prejudicial hearsay pursuant to the constancy of accusation doctrine, and (3) prosecutorial misconduct to occur. This court disagreed and affirmed the judgment of the trial court.
Thereafter, the petitioner filed his first petition for a writ of habeas corpus in which he alleged the ineffective assistance of his trial counsel, Martin McQuillan, and his appellate counsel, David T. Grudberg. Specifically, the petitioner claimed that McQuillan had failed (1) to “conduct sufficient consultation regarding the medical proofs available to the state,” (2) to “meaningfully challenge the testimony of medical personnel who testified for the state,” (3) to “present medical testimony to support the petitioner‘s declaration of innocence,” (4) to “introduce as evidence medical reports concerning the complaining witness’ behavior and mental health,” (5) to “object to constancy of accusation witnesses,” and (6) to “object to the state‘s attorney‘s cross-examination of the [petitioner].” Thereafter, the petitioner amended his petition to include a claim that McQuillan had failed to adequately consult with an expert, and to present expert testimony, regarding child abuse and sexual child abuse “within the context of the criminal case allegations and available information.” Additionally, the petitioner claimed that Grudberg had failed (1) to “raise as an issue the trial court‘s overruling of [the petitioner‘s] objection to allowing the constancy of accusation witnesses to testify that the [victim] told them about oral, anal and vaginal contact,” and (2) to adequately “[present] the prosecutorial misconduct claim regarding the prosecutor‘s cross-examination of the [petitioner] because he failed to detail all of the instances of claimed misconduct and failed to provide a [harm] analysis.”
After a trial on the merits, the habeas court, T. Santos, J., concluded that the petitioner had failed to prove any of his claims of ineffective assistance of counsel and, accordingly, denied the petition in a lengthy and comprehensive memorandum
Thereafter, the petitioner filed his second habeas petition, in which he claimed that McQuillan, his criminal trial counsel; Bruce B. McIntyre, his habeas counsel; and Mary Trainer, his appellate habeas counsel, were ineffective. Specifically, the petitioner alleged that McQuillan failed to properly and adequately to investigate evidence underlying the petitioner‘s case and to consult with and to present expert testimony needed to refute allegations of sexual assault against the petitioner. McIntyre, he claimed, had failed to properly and adequately raise and argue the petitioner‘s constitutional right to the effective assistance of counsel pursuant to the sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the constitution of Connecticut. Last, the petitioner claimed that Trainer failed to raise a claim on appeal contesting the determination of the habeas court that the petitioner‘s right to the effective assistance of counsel was not violated when McQuillan failed “to consult with a medical expert.” Following a trial, the habeas court, Fuger, J., held that the claims asserted against McQuillan were successive to the claims that had been pleaded against him in the first habeas petition. Additionally, the court concluded that the petitioner‘s claims were “absurd given the fact that he actually consulted with and used” the medical expert in question. Finally, the court concluded that the remaining claims against McIntyre and Trainer were unsupported by the evidence that was presented to the court. The petitioner filed an appeal from the second habeas court‘s judgment but later withdrew it.
Subsequently, the petitioner filed his third habeas petition, as a self-represented party, which is the subject of the present appeal. Again, the petitioner claimed that McQuillan and Grudberg had been ineffective. Specifically, the petitioner claimed that McQuillan was ineffective in his representation because he failed (1) to file a motion to dismiss the charges, (2) to investigate and to present evidence regarding the petitioner‘s custody battle with his former wife, (3) to impeach the testimony of his former wife regarding access she and the victim had to his apartment and his belongings, (4) to challenge the testimony of the state‘s witness, Janet Murphy, a nurse practitioner, regarding her credentials and qualifications, and her physical and psychological examination of the victim, (5) to present the testimony of various medical and psychological experts, (6) to object to, obtain, challenge, and preserve medical and psychiatric clinic and hospital records relating to the victim that had been redacted at trial, (7) to investigate and to present the testimony of a defense character witness, (8) to move to compel a pretrial competency hearing regarding the victim, and (9) to move for a judgment of acquittal “on a case that was a ‘credibility contest.’ ” Additionally, the petitioner further claimed that Grudberg had failed to raise a claim on direct appeal regarding the redacted records that served as the basis for the claim against McQuillan previously set forth. Last, the petitioner asserted a claim of actual innocence, which was predicated on McQuillan‘s alleged deficiencies.
We begin with the standard of review. The habeas court‘s determination that a petition for a writ of habeas corpus is frivolous, and its decision declining to issue the writ of habeas corpus, are reviewed for an abuse of discretion. Fernandez v. Commissioner of Correction, 125 Conn. App. 220, 223, 7 A.3d 432 (2010), cert. denied, 300 Conn. 924, 15 A.3d 630 (2011).
“(a) The judicial authority shall promptly review any petition for a writ of habeas corpus to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that . . . (2) the petition is wholly frivolous on its face . . . .”
In the present matter, the sole issue before this court is whether the habeas court abused its discretion in declining to issue the petitioner‘s writ of habeas corpus pursuant to
Although there is limited authority addressing
In Alvarado, the self-represented petitioner alleged that his confinement was illegal because a “parole hearing was denied [to him] or the hearing was improper.” (Internal quotation marks omitted.) Alvarado v. Commissioner of Correction, supra, 75 Conn. App. 894-95. Thereafter, the habeas court dismissed the petition for a writ of habeas corpus pursuant to
In Fernandez, the self-represented petitioner alleged that he was a “foreign national, who is being treated as a ‘slave’ and a ‘prisoner of war’ in that he is being held at the ‘plantation of MacDougall-Walker’ [Correctional Institution] in violation of his constitutional rights and ‘Geneva Convention Treaties, Convention Against Torture,
Additionally, we find that Gilchrist, a recent decision of our Supreme Court, provides clarity as to the precise issue before us, although it is procedurally distinct from the present case. In Gilchrist, the self-represented petitioner filed a petition for a writ of habeas corpus. Gilchrist v. Commissioner of Correction, supra, 334 Conn. 550. He included with the petition an application for a waiver of fees and the appointment of counsel. Id., 551. Thereafter, the habeas court assigned a docket number to the petition and granted the petitioner‘s application for a waiver of fees but took no action regarding his request for the appointment of counsel. Id. One week later, the habeas court, sua sponte and without providing notice to the petitioner or giving him an opportunity to be heard, rendered judgment of dismissal because the court lacked jurisdiction pursuant to
In clarifying this procedure, our Supreme Court explained that habeas courts should proceed “with a lenient eye” and “[allow] borderline cases to proceed” when determining whether to issue a writ of habeas corpus: “To be clear, the screening function of
Upon a review of case law in our jurisdiction, we conclude that the facts in both Alvarado and Fernandez are distinguishable from the present case. In the present case, the petitioner‘s petition for a writ of habeas corpus alleged cognizable claims of ineffective assistance of trial and prior habeas counsel along with a claim of actual innocence. These claims on their face are not “obviously and unequivocally defective“; id.; but, rather, are cognizable claims that should have survived the “screening function” of
The judgment is reversed and the case is remanded with direction to issue the writ and for further proceedings according to law.
In this opinion the other judges concurred.