Commissioner of Correction

The petitioner, who had been convicted of conspiracy to commit robbery in the first degree, attempt to commit robbery in the first degree, and assault in the first degree in connection with the shooting of a pizza delivery driver, sought a writ of habeas corpus, claiming, inter alia, that his trial counsel, C, had rendered ineffective assistance. At the petitioner's criminal trial, the defense theory was that another individual, D, with whom the petitioner was visiting on the night of the shooting, had committed the charged offenses, but D testified that it was the petitioner who had made plans to rob a delivery driver and who had used D's cell phone to call and case various businesses, including the pizza restaurant that employed the victim. The habeas court denied the habeas petition, and the petitioner, on the granting of certifica- tion, appealed to the Appellate Court, which affirmed the habeas court's judgment. Although the Appellate Court agreed with the petitioner's claim that C had rendered ineffective assistance by failing to adequately investigate D's cell phone records, a majority of that court ultimately concluded that the petitioner had failed to establish that he was prejudiced by C's deficient performance. On the granting of certification, the petitioner appealed to this court, challenging the Appellate Court's determination on the issue of prejudice. Held: The Appellate Court incorrectly concluded that the petitioner had failed to establish prejudice stemming from C's failure to investigate D's cell phone records, as there was a reasonable probability that, but for C's failure to undertake such an investigation and to introduce some or all of the records at trial, the jury would have had a reasonable doubt with respect to the peti- tioner's guilt, and, accordingly, this court reversed the Appellate Court's judgment and remanded the case with direction that the habeas court grant the habeas petition, vacate his convictions, and order a new trial. The

The petitioner, who had previously pleaded guilty to possession of a weapon or dangerous instrument in a correctional institution, appealed, following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus. The petitioner claimed, inter alia, that the court improperly dismissed his habeas petition, which claimed that a prior habeas court had improperly denied his application for the appointment of counsel on appeal. Held: The habeas court did not abuse its discretion in denying the petition for certification to appeal, as the resolution of the petitioner's claim did not involve issues that are debatable among jurists of reason, that a court could resolve in a different manner, or that were adequate to deserve encourage- ment to proceed further. The habeas court properly dismissed the habeas petition pursuant to the rule of practice (§ 23-29 (2)) for failure to state a claim on which habeas corpus relief could be granted, as the petitioner's claim asking the second habeas court to review and address the validity and legal soundness of a prior habeas court's decision to deny the petitioner's request to appoint counsel on appeal was beyond the power and authority of the second habeas court, and the proper procedural vehicle to have challenged the first habeas court's determination should have been by a motion for review pursuant to the rule of practice (§ 63-7). Argued September 15—officially released December 9, 2025

The petitioner, who had been convicted, following a jury trial, of the crimes of murder and criminal possession of a pistol or revolver, filed a fourth petition for a writ of habeas corpus. The habeas court, upon the request of the respondent, the Commissioner of Correction, issued an order to show cause why the petition should not be dismissed as untimely given that it had been filed beyond the time limit for successive petitions set forth in the applicable statute (§ 52-470 (d)). The court held an eviden- tiary hearing, during which the petitioner testified that he had filed a timely third habeas petition but withdrew it prior to trial on the advice of his prior habeas counsel. The petitioner further testified that counsel did not discuss § 52-470 (d) and that, if the petitioner had known that withdrawing his third petition and refiling would result in an untimely petition, he would not have done so. The habeas court dismissed the fourth habeas petition as untimely, concluding that the petitioner had failed to demonstrate good cause for the delay in filing the petition. Thereafter, the petitioner, on the granting of certification, appealed to this court, which affirmed the judgment of the habeas court. The peti- tioner, on the granting of certification, appealed to the Supreme Court, which granted the petition for certification, vacated the judgment of this court, and remanded the case to this court for further consideration in light of Rose v. Commissioner of Correction (348 Conn. 333). Held that, after further consideration of the issue raised in this appeal, the proper remedy was to remand the matter to the habeas court for a new hearing and good cause determination under § 52-470 (d) and (e), consistent with the principles set forth in Rose, Rapp v. Commissioner of Correction (224 Conn. App. 336), and Hankerson v. Commissioner of Correction (223 Conn. App. 562). Argued April 8—officially released May 14, 2024

The petitioner, who previously had been convicted of various crimes, appealed to this court following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus as untimely pursuant to the applicable statute (§ 52-470 (d) and (e)). On appeal, the petitioner claimed that his prior habeas counsel's failure to advise him of the statutory deadline for filing a new petition prior to the withdrawal of his previously pending petition constituted ineffective assistance of counsel, which constituted good cause for the delay in filing. Held that, in accordance with our Supreme Court's recent decision in Rose v. Commissioner of Correction (348 Conn. 333) and this court's recent decision in Hankerson v. Commis- sioner of Correction (223 Conn. App. 562), this court reversed the judg- ment of the habeas court and remanded the case for a new hearing and good cause determination under § 52-470 (d) and (e). Argued April 15—officially released May 7, 2024

The petitioner sought relief in a second petition for a writ of habeas corpus, claiming, inter alia, that R, his counsel during his first habeas action, and G, his criminal trial counsel, had rendered ineffective assistance by failing to present expert testimony from a forensic pathologist to support the petitioner's claim of actual innocence. The petitioner had been con- victed of several crimes, including murder, as a result of a drug related shooting. K, an associate medical examiner, had performed an autopsy that showed that the victim died from a single gunshot to the head at close range. At the petitioner's criminal trial, K testified that the barrel of the gun had been touching the victim's skin when the gun was dis- charged and that the wound was a typical contact gunshot wound of entrance. This court upheld the petitioner's conviction on direct appeal. At his first habeas trial, R presented the testimony of C, the state's chief medical examiner, which was consistent with that of K, and the testimony of D, a forensic scientist. At that habeas trial, the petitioner claimed, inter alia, that G had improperly failed to present the testimony of an expert witness, such as D, to attack K's testimony. D, however, testified at the first habeas trial that the victim's wound could resemble a contact wound but that he could not conclude with certainty that the victim had sustained a contact wound. The habeas court denied the habeas petition, concluding that the petitioner had failed to establish that G rendered ineffective assistance. This court upheld the habeas court's decision, concluding that D had not contradicted K's opinion at the criminal trial that the victim's wound was a contact gunshot wound and that D's testimony would not have been helpful at the criminal trial to establish that the petitioner did not shoot the victim. At the second habeas trial, the petitioner presented the testimony of W, an expert in forensic pathology, who disagreed with K's conclusio

The petitioner, who previously had been convicted of various crimes, appealed to this court following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus as untimely pursuant to the applicable statute (§ 52-470 (d) and (e)). On appeal, the petitioner claimed that his prior habeas counsel's failure to advise him of the statutory deadline for filing a new petition prior to the withdrawal of his previously pending petition constituted ineffective assistance of counsel, which constituted good cause for the delay in filing. Held that, in accordance with our Supreme Court's recent decision in Rose v. Commissioner of Correction (348 Conn. 333) and this court's recent decision in Hankerson v. Commis- sioner of Correction (223 Conn. App. 562), this court reversed the judg- ment of the habeas court and remanded the case for a new hearing and good cause determination under § 52-470 (d) and (e). Argued April 15—officially released May 7, 2024

Pursuant to the rules of practice (§ 23-24), once a petition for a writ of habeas corpus is filed in the Superior Court, ''[t]he judicial authority shall promptly review [the] petition . . . to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that . . . the court lacks jurisdiction . . . the petition is wholly frivo- lous on its face . . . or . . . the relief sought is not available,'' and ''[t]he judicial authority shall notify the petitioner if it declines to issue the writ pursuant to this rule.'' Pursuant further to the rules of practice (§ 23-29 (3)), ''[t]he judicial authority may, at any time, upon its own motion . . . dismiss the petition, or any count thereof, if it determines that . . . the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .'' The petitioner, who had been convicted of arson in the first degree and conspiracy to commit arson in the first degree, filed a successive habeas petition, claiming that he was not canvassed properly about his right to appeal when the public defender assigned to represent him withdrew from representation before the start of the defendant's criminal trial. The habeas court, acting on its own motion and without notifying the parties, dismissed the petition as repetitious pursuant to Practice Book § 23-29 (3). Thereafter, the petitioner filed a petition for certification to appeal, which the habeas court denied, and the petitioner appealed to the Appellate Court, which summarily dismissed the petitioner's appeal. On the granting of certification, the petitioner appealed to this court, claiming that the habeas court improperly had dismissed his petition pursuant to § 23-29 without providing him with prior notice and an opportunity to be heard. Held that, prior to dismissing a habeas petition on its own motion under Practice Boo

The petitioner, who had been convicted of the crimes of felony murder and conspiracy to commit robbery in the first degree, sought a writ of habeas corpus, claiming, inter alia, that his prior trial, habeas, and appellate counsel had provided ineffective assistance. The respondent Commis- sioner of Correction filed a motion to dismiss the habeas petition, arguing that the petitioner had released the state from all the claims set forth therein pursuant to a settlement agreement that the petitioner had entered into with the state after he filed the habeas petition. The settle- ment agreement related to an action filed by the petitioner in federal court against employees of the Department of Correction, in which he alleged that the conditions of confinement during his incarceration violated his constitutional rights. The settlement agreement contained a general release provision that released the state from all actions arising out of any matter that had occurred as of the date of the settlement agreement. The habeas court determined that the release encompassed the habeas petition and granted the respondent's motion to dismiss. Thereafter, the habeas court granted the petition for certification to appeal, and the petitioner appealed to this court, claiming that the settlement agreement was unenforceable because the terms of the release provision in the agreement were unconscionable. Held that the habeas court did not err when it dismissed the habeas petition: our Supreme Court in Nelson v. Commissioner of Correction (326 Conn. 772) rejected the argument that habeas rights should never be subject to waiver, stating that constitutional and appellate rights could be waived as long as the waiver was intentional; moreover, the settlement agree- ment between the state and the petitioner was not procedurally uncon- scionable, as the petitioner's counsel conceded that the petitioner entered into it knowingly and voluntarily, the petitioner was represented by attorneys who nego

The petitioner, who had been convicted, in two cases, of the crime of felony murder on a plea of guilty in each case, sought a writ of habeas corpus, claiming, inter alia, that the respondent Commissioner of Correction and the Board of Pardons and Paroles improperly determined that he was not parole eligible. On the first count of felony murder, which was alleged to have been committed on June 30 or July 1, 1981, the petitioner was sentenced to an indefinite term of incarceration of not less than twenty-five years nor more than life pursuant to statute ((Rev. to 1981) § 53a-35). On the second count of felony murder, which was alleged to have been committed on August 16, 1981, the petitioner was sentenced to a definite term of incarceration of fifty-five years pursuant to statute ((Rev. to 1981) § 53a-35a). The trial court ordered the sentences to run concurrently. The petitioner had served the entire length of his definite sentence of fifty-five years, as reduced by credits he had earned while incarcerated, by May 28, 2014. He then sought a parole eligibility date for his indeterminate sentence but was told that he was not eligible for parole because his determinate sentence, which he had fully served, was not a parole eligible offense. At his habeas trial, however, S, the executive director of the board, testified that the petitioner was parole eligible. Thereafter, the habeas court dismissed the petition, concluding that it lacked jurisdiction because the petitioner failed to state a claim involving the deprivation of a recognized liberty interest and that the issue of obtaining a parole eligibility determination was moot in light of S's testimony that the board had found the petitioner to be eligible for parole but declined to grant him a hearing. The court thereafter granted the petitioner certification to appeal, and the petitioner appealed to this court. On appeal, the respondent conceded that the petitioner was eligible for parole. Held: 1. This court had jur

The petitioner, who previously had been convicted of the crimes of sexual assault in the first degree and risk of injury to a child and was found to be in violation of his probation, sought, as a self-represented party, a second writ of habeas corpus using a state supplied form. Thereafter, the habeas court granted the petitioner's request the appointment of counsel, and counsel entered an appearance on the petitioner's behalf. The respondent Commissioner of Correction, pursuant to statute (§ 52- 470 (d) and (e)), filed a request for an order to show cause why the second petition should be permitted to proceed when the petitioner had filed it more than two years after the judgment on his prior petition was final. The petitioner filed an objection in which he argued that an order to show cause was premature because he needed additional time to determine whether he met the requirements of § 52-470 (d) (3) or if good cause existed for the delay and that the court should wait until an amended petition is filed before deciding whether to issue an order. In addition, the petitioner's counsel represented that she needed additional time to fully investigate and to respond to the respondent's request. The respondent filed a reply arguing that the petitioner's counsel had eight months to determine the cause for the petitioner's delay in filing the petition and requesting that the court issue the order to show cause. Thereafter, the court held an evidentiary hearing during which the peti- tioner's counsel did not attempt to demonstrate that good cause for the delay in filing the petition existed or to argue that she needed additional time to inquire into the cause of the delay but, rather, argued that the court should deny the respondent's request because she needed additional time to inquire into a potential actual innocence claim and to file an amended petition on the petitioner's behalf. The court dis- missed the petition, and the petitioner filed a motion for reconsiderati

The petitioner, who had been convicted of various crimes, including bribery of a witness, in connection with a traffic incident, sought a writ of habeas corpus, claiming that his trial counsel and appellate counsel rendered ineffective assistance. The petitioner claimed that counsel, inter alia, improperly failed to challenge the bribery statute (§ 53a-149) as unconstitutionally overbroad on its face because it arguably could encompass legal activity. The petitioner further claimed that his trial counsel failed to request a jury instruction on true threats with respect to the petitioner's conviction under the statute (§ 53a-181 (a) (3)) crimi- nalizing breach of the peace in the second degree and that his appellate counsel failed to challenge that decision on direct appeal. The petition- er's conviction stemmed from an incident in which he drove his truck into a vehicle driven by J that was stopped at a traffic signal, causing damage. When J rejected the petitioner's offer to pay him for the damage, the petitioner, who was intoxicated, became agitated and stated to J, ''Why don't we pull over to the side and settle it like men?'' J then observed the petitioner yelling and banging on J's car window while J was calling the police. When the police arrived, an officer found the petitioner lying face down in the boat attached to the rear of the truck. The petitioner's skin was cold and appeared blue or purple, his clothing was wet, and he yelled and cursed at the police and ambulance personnel who attempted to treat him. The police told the emergency medical technician who responded to the scene to take the petitioner to a hospi- tal, where the petitioner was admitted and his blood was drawn and tested. The state issued a subpoena after the petitioner was discharged from the hospital and obtained his blood test results, which were admit- ted into evidence. The habeas court rendered judgment denying the petition. Held: 1. The petitioner's claim that his trial counsel and

The petitioner sought a writ of habeas corpus, claiming that his trial counsel had rendered ineffective assistance for failing to hire or to consult with a defense expert in arson investigation before trial. The petitioner had been convicted of various offenses in connection with his role in planning and recruiting two brothers, J and F, to burn the shed of the victim, G, with whom he quarreled over used car transactions. After G had removed two cars from the petitioner's used car lot, the petitioner took various actions that G interpreted as threats to his safety and his wife's safety. G testified that the petitioner left two sealed envelopes with ''funny money'' inside on G's lawn, indicating to G an intent to retaliate. When he thereafter observed two men near his shed just before it burst into flames, he fired a gun at the men as they fled, striking one man in the arm. J sought treatment that evening in a Massachusetts hospital for a gunshot wound to his arm; DNA from his blood was recovered outside G's home. At the criminal trial, J testified that the petitioner had hired him and F to burn the shed, had given them the gas can containing gasoline to use, and had telephoned him twice the evening of the fire. The state presented evidence that the DNA recovered from the saliva on the envelopes left on G's lawn had come from the petitioner. The state also presented the testimony of an expert, a state chemist, that the accelerant used to start the fire was not gasoline, but a compound often found in various substances used in the car repair business. Defense counsel, who had not hired an arson investigation expert, learned for the first time at trial, through the state's expert, that the accelerant was not gasoline, after he had cross-examined G. Defense counsel, because he had not known that the accelerant was a compound that G may have used to repair autos in his shed, had not questioned G regarding his access to such an accelerant to start the fire. The habeas cou

Pursuant to the rules of practice (§ 23-24), once a petition for a writ of habeas corpus is filed in the Superior Court, ''[t]he judicial authority shall promptly review [the] petition . . . to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that . . . the court lacks jurisdiction . . . the petition is wholly frivo- lous on its face . . . or . . . the relief sought is not available.'' Pursuant further to the rules of practice (§ 23-29), ''[t]he judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition . . . if it determines [inter alia] that . . . the court lacks jurisdiction . . . [or] the petition . . . fails to state a claim upon which habeas corpus relief can be granted . . . .'' The petitioner, who had been convicted, on a guilty plea, of the crime of robbery in the third degree, filed a petition for a writ of habeas corpus, seeking to withdraw his guilty plea and to have his conviction vacated or dismissed. The petitioner alleged that he had received a sentence of unconditional discharge in connection with the robbery conviction but that he remained incarcerated on unspecified other charges and that the robbery conviction was adversely affecting his eligibility for parole on the other charges. The habeas court granted the petitioner's applica- tion for a waiver of fees but took no action as to his request for the appointment of counsel. Shortly thereafter, however, the court, sua sponte and without providing the petitioner with notice or an opportunity to be heard, dismissed the petition pursuant to Practice Book § 23-29 on the ground that the habeas court lacked jurisdiction because the petitioner was not in custody for the conviction that he was challenging at the time he filed the petition. On the granting of certification, the petitioner appealed to the Appellate Court, which affirmed the habeas court's judgment, and the petitioner, on the granting

The petitioner, who had been convicted of sexual assault in the first degree and risk of injury to a child, sought a writ of habeas corpus, claiming that his trial counsel provided ineffective assistance. At the beginning of the habeas trial, the petitioner informed the court that he was with- drawing certain of his claims, including a claim that his trial counsel was ineffective in failing to present certain medical testimony. On the second day of trial, which occurred nearly two months later, the peti- tioner requested that the court permit him to ''unwithdrawn'' that claim, but the court denied the request to reinstate the claim. The habeas court rendered judgment denying the habeas petition, from which the petitioner, on the granting of certification, appealed to this court. Held: 1. The habeas court did not abuse its discretion when it denied the petition- er's request to reinstate the claim he had withdrawn: that court reason- ably recognized that almost all witnesses already had been examined when the request was made, and although not all of those witnesses would have been needed to address the claim, it would have been unfair to recall some witnesses after their dismissal, and to resurrect the claim would have required additional preparation and time to explore the claim with the previous witnesses; moreover, the petitioner waited nearly two months after the first day of trial to bring forth his request, which he could have explored at the end of the first day of trial or shortly there- after, it was the petitioner who originally brought the claim forward and then subsequently elected to withdraw it, and his claim that the habeas court should have treated the request as a motion to amend the pleadings was inadequately briefed and not reviewable. 2. The petitioner's claim that the habeas court should have allowed into evidence documents that related to his medical condition was unavailing; because the habeas court never ruled on the issue of the admissibilit

The petitioner, who previously had been convicted on a guilty plea of two counts of murder and one count of assault in the first degree, sought a writ of habeas corpus, claiming, inter alia, ineffective assistance of trial counsel. During the trial of the present case, the petitioner and A, the petitioner's grandmother, both testified that they met with the petitioner's trial counsel, who threatened the petitioner that A and the petitioner's cousin would go to prison if he did not plead guilty. The habeas court rendered judgment denying the amended habeas petition and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court did not abuse its discretion in denying the petition for certification to appeal; the petitioner's claims essentially challenged the determination of the credibility of witnesses by the habeas court, which is the sole arbiter of witness credibility and expressly found that the testimony of the petitioner and A, alleging that the petitioner had been coerced into pleading guilty, was not credible, that was the only evidence offered to support the petitioner's claims that his plea had been coerced and that his trial counsel rendered ineffective assistance, and the credibility of trial testimony is not debatable among jurists of reason. Argued September 13—officially released November 5, 2019

The petitioner, who had been convicted of murder in connection with the shooting death of the victim, sought a second writ of habeas corpus, claiming, inter alia, that his right to due process was violated because his decision to reject the state's plea offer was not made knowingly and voluntarily, and that his trial counsel for bond purposes, E, had rendered ineffective assistance. At the petitioner's arraignment, E filed an appear- ance on the petitioner's behalf for bond purposes only, and, at subse- quent pretrial proceedings, E reiterated that he had appeared for bond purposes only and informed the court that he did not intend to remain in the case and that he would return his retainer to the petitioner's family. Although the trial court discharged E from the case on March 10, 2004, at some point prior to April 9, 2004, E's investigator interviewed two witnesses to the shooting who previously had provided statements to the police implicating the petitioner. On the basis of the investigator's interview notes, E then prepared affidavits for the witnesses in which they purportedly recanted their prior statements and indicated that the police had coerced them to make those statements. The trial court subsequently appointed new counsel, S and K, to represent the peti- tioner, and the witnesses' signed affidavits became part of S and K's criminal trial file. Thereafter, the petitioner rejected a plea offer from the state and the case proceeded to trial, at which the petitioner impeached the two witnesses with their affidavits after they testified for the state, identified the petitioner as the shooter, and denied telling the investigator that they had been coerced by the police into making their prior statements. E thereafter testified for the state, stating that although he had used the investigator's notes to prepare the affidavits, he had made up certain information to fill in narrative gaps. The petitioner alleged in count one of his second habeas petition that h

The petitioner, who had been convicted of felony murder in connection with the stabbing death of the victim inside the victim's home during what appeared to be a botched burglary, sought a writ of habeas corpus, claiming, inter alia, that the state deprived him of his due process right to a fair trial insofar as it failed to correct the trial testimony of L, a former director of the state police forensic laboratory, that a red substance on a towel found in the victim's home after the murder tested positive for blood when no such test had been conducted and when subsequent testing conducted in connection with the present habeas action revealed that the red substance was not in fact blood. The habeas court rendered judgment denying the habeas petition. With respect to the petitioner's due process claim, the court concluded that, because L mistakenly but honestly believed that the towel tested positive for blood and, thus, did not give perjured testimony, the burden was on the petitioner to demonstrate that there was a reasonable probability of a different verdict if the correct evidence had been disclosed. Applying this standard, the habeas court determined that L's testimony was immaterial because, among other things, the state's criminal case against the petitioner did not rely on forensic evidence. Rather, the state proved its case primarily on the basis of testimony from witnesses who testified as to certain incriminating statements that the petitioner had made to them, testimony from neighbors of the victim that they heard a loud vehicle in the vicinity around the time of the murder, when the petitioner and his alleged accomplice, B, had stolen and were driving a vehicle without a muffler, and the testimony of the petitioner's girlfriend, who contradicted the petitioner's statements to the police regarding his whereabouts on the night of the murder. On the granting of certification, the petitioner appealed, claiming that the habeas court applied the incorrect sta