Abrams v. Commissioner of Correction

• Decision Date: 16 February 2010
• Docket Number: No. 29965.,29965.
• Citation: Abrams v. Commissioner of Correction, 987 A.2d 371, 119 Conn.App. 414 (Conn. App. 2010)
• Court: Connecticut Court of Appeals
• Parties: David A. ABRAMS<SMALL><SUP>1</SUP></SMALL> v. COMMISSIONER OF CORRECTION.

987 A.2d 371

119 Conn.App. 414

David A. ABRAMS¹ v. COMMISSIONER OF CORRECTION.

No. 29965.

Appellate Court of Connecticut.

Argued November 12, 2009.

Decided February 16, 2010.

Matthew J. Collins, special public defender, for the appellant (petitioner).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Erik T. Lohr, former assistant state's attorney, for the appellee (respondent).

FLYNN, C.J., and BISHOP and BEACH, Js.

FLYNN, C.J.

The petitioner, David A. Abrams, appeals from the judgment of the habeas court following its denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. In substance, the petitioner does not attack the court's decision denying the habeas petition on the merits of that petition but, rather, attacks the actions of the court on the day of the habeas trial; he requests a new habeas trial.² On appeal, the petitioner specifically claims that the court acted improperly (1) by failing to conduct a sufficient inquiry into his allegation that there existed a conflict of interest between him and his counsel in his second habeas trial and by summarily denying his request for a continuance and (2) by refusing to permit the petitioner to amend his habeas petition. We dismiss the appeal.

On April 26, 2007, the petitioner filed an amended petition for a writ of habeas corpus, claiming ineffective assistance of counsel in his first habeas trial. On December 31, 2007, counsel for the petitioner filed a motion to amend the petition. Prior to taking evidence at the second habeas trial, on January 2, 2008, the court, Swords, J., heard argument on the motion to amend. The petitioner argued that he wanted to amend his petition to include claims of ineffective assistance of trial counsel. The respondent, the commissioner of correction, opposed the amendment on the ground that the petitioner had alleged ineffective assistance of trial counsel in his first habeas proceeding and that, therefore, this amendment would amount to a successive petition. After listening to argument and reviewing the memorandum of decision from the first habeas proceeding, Judge Swords found that the petitioner had alleged ineffective assistance of trial counsel in count two of his habeas petition in his first habeas proceeding. Concluding that the requested amendment would amount to a successive petition and would be an abuse of the writ, the court denied the motion to amend.

The petitioner then personally requested a continuance, stating that he had not had an opportunity to meet with his attorney because the public defender's office had not been paying his special public defender and that there were other things he wanted to add to an amended petition. He also stated that the lack of payment by the public defender's office created a conflict of interest for his counsel. The petitioner's attorney stated that he could not discern a good faith reason not to move forward with the hearing that day, and he explained that he had spoken with his client on December 28, 2007, and that he had included every issue that the petitioner wanted in his amended petition. The habeas court denied the petitioner's request for a continuance. After proceeding to a hearing on the merits of the petition, the court denied the petition for a writ of habeas corpus. The court thereafter denied the petition for certification to appeal. This appeal followed.

Initially, we set forth the appropriate 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 v. 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 among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (Internal quotation marks omitted.) Id., at 616, 646 A.2d 126. "If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits." Id., at 612, 646 A.2d 126.

I

The petitioner's first claim on appeal is that the habeas court acted improperly by failing to conduct a sufficient inquiry into his allegation that there existed a conflict of interest between him and his second habeas counsel and improperly refused the petitioner's request for a continuance. The respondent argues that "the habeas court did in fact question the petitioner about his allegation of a conflict of interest and concluded that differences in trial strategy did not amount to a conflict of interest," and that the court thereafter properly denied the petitioner's request for a continuance.³ We agree with the respondent.

We have noted "that [t]he sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to [the] effective assistance of counsel. . . . Where a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest. . . . To safeguard a criminal defendant's right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial [court] in a timely manner. . . . In discharging this duty, the trial court must be able, and be freely permitted, to rely upon [defense] counsel's representation that the possibility of such a conflict does or does not exist. . . . The reliance in such an instance is upon the solemn representation of a fact made by [the] attorney as an officer of the court. . . . The course thereafter followed by the court in its inquiry depends upon the circumstances of the particular case. . . .

"[A] petitioner in a habeas proceeding has both the right to effective assistance of habeas counsel and the right to be represented by habeas counsel who is free from conflicts of interest. . . . [I]n order to safeguard a habeas petitioner's right to the effective assistance of habeas counsel, a habeas court, like a criminal trial court, has an affirmative obligation to explore the possibility that habeas counsel has a conflict of interest when that possibility is brought to the attention of the habeas court in a timely manner. In discharging that duty, the habeas court must be able, and be freely permitted, to rely on habeas counsel's representation that the possibility of such a conflict does or does not exist. The court may rely on the solemn representation of a fact made by habeas counsel as an officer of the court. The course thereafter followed by the court in its inquiry depends on the circumstances of the particular case." (Citation omitted; internal quotation marks omitted.) Morgan v. Commissioner of Correction, 87 Conn.App. 126, 132-33, 866 A.2d 649 (2005).

In the present case, we first observe that although the petitioner characterizes the attorney-client relationship as one in which a "conflict of interest" existed, his allegations do not fit into the classic legal concept of conflict of interest wherein the attorney has an interest at odds with the client's best interest.⁴ We do not agree that the petitioner's allegation constitutes a conflict of interest but, rather, an alleged disagreement with counsel over what best legal strategy should be employed.

The court thoroughly addressed the petitioner's assertion that there existed a conflict of interest between him and his counsel because of a problem with payments to counsel by the public defender's office and because he wanted to add other things to his petition. Counsel then informed the court that he had added to the petition all of the issues that the petitioner wanted included and that he saw no reason not to move forward with the proceedings. Specifically, counsel explained to the court: "[The petitioner] provided me with these issues . . . the issues he actually wanted me to put down. He drafted the petition, and I basically put down every issue that he wanted and a couple of more that I found when I spoke to [him] on [December 28]. I [can] see no good faith reason why he is not prepared. . . . I am at a loss." The petitioner also acknowledged that counsel had added "the majority" of the issues to the amended petition that he had requested. The court took the time to hear out the petitioner and then explained to him that his complaints were more about trial strategy than about a conflict of interest. It then denied the petitioner's request for a continuance and continued with the evidentiary portion of the habeas proceeding.

The record reveals that the court conducted a thorough inquiry of the petitioner. Furthermore, counsel specifically stated that he saw no good faith reason to delay the proceedings. The court is permitted to rely freely on counsel's representation that there existed no reason to delay the proceedings. See id., at 133, 866 A.2d 649 ("[t]he court may rely on the solemn representation of a fact made by habeas counsel as an officer of the court").

II

The petitioner next claims that the court improperly refused to permit him to amend his habeas petition. The respondent argues that "after reviewing the proposed amendment and the claims the petitioner had raised in his first habeas proceeding, the habeas court ruled that the amendment would constitute a successive petition in abuse of the writ" and that the court's ruling was proper. On the basis of the record before us, we reject the petitioner's claim....