Barlow v. Comm'r of Corr.

• Decision Date: 10 June 2014
• Docket Number: No. 34925.,34925.
• Citation: 150 Conn.App. 781,93 A.3d 165
• Court: Connecticut Court of Appeals
• Parties: Alison BARLOW v. COMMISSIONER OF CORRECTION.

150 Conn.App. 781

93 A.3d 165

Alison BARLOW

v.COMMISSIONER OF CORRECTION.

No. 34925.

Appellate Court of Connecticut.

Argued Feb. 6, 2014.

Decided June 10, 2014.

Naomi T. Fetterman, assigned counsel, with whom, on the brief, was Aaron J. Romano, Bloomfield, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).

BEACH, BEAR and SHELDON, Js.^*

BEAR, J.

The petitioner, Alison Barlow, appeals from the judgment of the habeas court dismissing in part and denying in part his third petition for a writ of habeas corpus. On appeal, the petitioner claims: (1) the court erred in denying his claim that counsel for his second habeas appeal, Christopher M. Neary, provided ineffective assistance by withdrawing the petitioner's claims of ineffective assistance of counsel concerning the petitioner's criminal trial attorney, Sheridan L. Moore; (2) the court erred in dismissing his claim that Moore had provided ineffective assistance by improperly concluding that the doctrine of deliberate bypass applied to bar that claim; (3) Moore rendered deficient performance during the petitioner's criminal proceedings by failing to advise the petitioner adequately regarding the court's plea offer; and (4) although the habeas court made no findings concerning prejudice, we should presume prejudice on the basis of the record and order that the petition for a writ of habeas corpus be granted and that the court be ordered to give the petitioner the opportunity to plead guilty under the plea agreement he previously was offered by the trial court. We agree with the petitioner's second and third claims, and, on this basis, conclude that it is unnecessary to consider his first claim. We do not agree with his fourth claim, however, and thus conclude that the case must be remanded to the habeas court for further findings on the issue of prejudice. ¹ Accordingly, the judgment is reversed in part, and the case is remanded to the habeas court.

The record reveals the following relevant facts and procedural history. The petitioner had been charged with several serious crimes, including attempt to commit murder and conspiracy to commit murder. He was offered a “one time” plea deal by the court that included a sentence of nine years to serve. The petitioner instead wanted a deal that would require him to serve only six years incarceration. The court informed him that the deal it offered was good for one day only, after which his case would be placed on the trial list. The petitioner did not accept the court's offer at that time. The offer, however, ultimately remained in effect for approximately one year before it was withdrawn. The petitioner was tried by a jury and found guilty of the charges. He was given a total effective sentence of thirty-five years incarceration.² His conviction was upheld on appeal. See State v. Barlow, 70 Conn.App. 232, 797 A.2d 605, cert. denied, 261 Conn. 929, 806 A.2d 1067 (2002).

In his first habeas petition, the petitioner, initially acting in a self-represented capacity, alleged that his trial counsel, Moore, was ineffective, inter alia, in failing to counsel him fully regarding the time limitation on the availability of the trial court's plea offer. His appointed counsel, Peter Tsimbidaros, then amended the first habeas petition and withdrew the ineffective assistance claim concerning Moore. The first habeas petition was not successful.

The petitioner, again initially acting in a self-represented capacity, filed a second habeas petition alleging that Moore had been ineffective, and that Tsimbidaros had been ineffective by withdrawing the claim concerning Moore from the first habeas petition. Appointed counsel, Neary, then filed an amended petition, withdrawing those claims. This second habeas petition was denied, and the habeas court, thereafter, denied the petition for certification to appeal. We dismissed the petitioner's appeal from that judgment after concluding that the court did not abuse its discretion in denying the petition for certification to appeal. See Barlow v. Commissioner of Correction, 131 Conn.App. 90, 26 A.3d 123, cert. denied, 302 Conn. 937, 28 A.3d 989 (2011).

The present appeal concerns the petitioner's third habeas petition. In it, he alleges that Moore was ineffective, and that Neary was ineffective in amending the second habeas petition to withdraw his ineffective assistance claims concerning Tsimbidaros and Moore. The habeas court determined that the petitioner's first claim, which was based on the alleged ineffective assistance of Moore, had been deliberately bypassed, and, therefore, the court dismissed the first count of the petition. As to the second count, the court determined that the petitioner failed to prove that Neary had been ineffective by withdrawing the claims concerning Tsimbidaros and Moore. In considering the claim concerning Neary, however, the court necessarily examined whether there was merit to the petitioner's claim that Moore had been ineffective. The court specifically found that “Moore fully apprised the petitioner as to the terms of the plea offer, including its temporary nature, the strengths and weaknesses of the prosecution and defense cases, and the possible outcomes after trial.” It also found that “Neary averred that he examined Moore's performance for the petitioner's defense and found no basis for such an ineffective assistance claim [concerning] her.” The court concluded that the petitioner had failed to prove that “Moore was deficient in any of the ways alleged ... [or] that Attorney Neary or Attorney Tsimbidaros rendered ineffective assistance by withdrawing the claims [concerning] Moore....” Accordingly, the court denied the petition as to the second count. The court granted certification to appeal, and this appeal followed.

I

We first consider the petitioner's claim that the court improperly applied the doctrine of deliberate bypass to his claim that Moore's assistance was ineffective with respect to the court's plea offer. He argues that the doctrine of deliberate bypass does not apply to ineffective assistance of counsel claims in habeas proceedings, but that it applies only to claims that should have been raised on direct appeal but were deliberately bypassed. He further argues that the respondent, the Commissioner of Correction, never raised this claim before the habeas court and that our case law has established that the deliberate bypass doctrine automatically becomes inapplicable when a claim of ineffective assistance of counsel is raised. The respondent argues that the doctrine applies in this instance because the petitioner knowingly and voluntarily declined to pursue his claim concerning Moore by permitting Neary to withdraw that claim.³ The respondent also argued during appellate oral argument that, although it neither raised nor argued the doctrine of deliberate bypass before the habeas court, the court was within its authority to raise the doctrine sua sponte. We need not decide whether the doctrine could apply in this instance because we conclude that the court improperly raised the doctrine sua sponte.⁴

Practice Book § 23–30(b) provides, in relevant part, that the respondent's return “ shall allege any facts in support of any claim of procedural default, abuse of the writ, or any other claim that the petitioner is not entitled to relief.” (Emphasis added.) In Fine v. Commissioner of Correction, 147 Conn.App. 136, 141, 81 A.3d 1209 (2013), we recently explained that the doctrine of deliberate bypass “historically has arisen in the context of habeas petitions involving claims procedurally defaulted at trial and on appeal. See Crawford v. Commissioner of Correction, 294 Conn. 165, 186, 982 A.2d 620 (2009) (observing that since Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 [ (1993) ], our Supreme Court ‘consistently and broadly has applied the cause and prejudice standard to trial level and appellate level procedural defaults in habeas corpus petitions').”

“If the respondent claims that the petitioner should have raised the issue [previously] ... the claim [of procedural default] must be raised in the return or it will not be considered at the [habeas] hearing.” (Emphasis added.) W. Horton & K. Knox, 1 Connecticut Practice Series: Connecticut Superior Court Civil Rules (2013–2014 Ed.) Rule 23–30, official comments, p. 1031. “[T]he plain language of Practice Book § 23–30(b) requires the [respondent] to plead procedural default in [the] return or [the respondent] will relinquish the right to assert the defense thereafter.... [I]n Connecticut, although the petitioner has the burden of proving cause and prejudice ... that burden does not arise until after the respondent raises the claim of procedural default in [the] return.... Because the respondent did not plead procedural default as an affirmative defense ... the court could not find that the petitioner was procedurally defaulted....” (Citation omitted; internal quotation marks omitted.) Ankerman v. Commissioner of Correction, 104 Conn.App. 649, 654–55, 935 A.2d 208 (2007), cert. denied, 285 Conn. 916, 943 A.2d 474 (2008); see Milner v. Commissioner of Correction, 63 Conn.App. 726, 733, 779 A.2d 156 (2001) (supporting and applying position of federal habeas commentators that “petitioners generally need not raise waiver and procedural default matter in their initial pleading and briefs, because the burden to raise and prove those defenses is on the [respondent]” [internal quotation marks omitted] ).⁵

In the present case, the respondent did not claim in the return that the petitioner had procedurally defaulted (or that the doctrine of deliberate bypass was applicable). Accordingly, we conclude that the court improperly raised the doctrine of deliberate bypass sua sponte and,...