Brown v. Comm'r of Corr.

• Citation: 61 A.3d 554,141 Conn.App. 251
• Decision Date: 12 March 2013
• Docket Number: No. 34036.,34036.
• Court: Appellate Court of Connecticut
• Parties: Judson BROWN v. COMMISSIONER OF CORRECTION.

141 Conn.App. 251

61 A.3d 554

Judson BROWN

v.COMMISSIONER OF CORRECTION.

No. 34036.

Appellate Court of Connecticut.

Argued Nov. 15, 2012.

Decided March 12, 2013.

John C. Drapp III, assigned counsel, with whom, on the brief, were Joseph A. Jaumann, assigned counsel, and Diana M. Gomez, assigned counsel, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David Clifton, assistant state's attorney, for the appellee (respondent).

ROBINSON, ESPINOSA and SHELDON, Js.

SHELDON, J.

The petitioner, Judson Brown, appeals from the denial of his second postconviction petition for a writ of habeas corpus challenging the legality of his 1998 convictions for arson in the first degree and conspiracy to commit arson in the first degree. On appeal, the petitioner claims that the second habeas court improperly rejected his claim that counsel in his first postconviction habeas corpus proceeding rendered ineffective assistance, based on her failure to raise certain claims on his behalf in that proceeding. The court ruled that counsel in the first habeas proceeding was not ineffective for failing to raise the claims in question because the petitioner had procedurally defaulted on those claims in a manner that did not justify their later assertion under the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and, thus, he could not have prevailed on such claims in his first habeas proceeding. On that basis, the second habeas court determined that the first habeas counsel's failure to raise those claims was not prejudicial to the petitioner in that proceeding. We affirm the judgment of the habeas court.

The following procedural history underlies the present appeal.¹ In October, 1996, the petitioner was arrested and charged with two counts of arson in the first degree in violation of General Statutes §§ 53a–111a) (3) and 53a–111 (a)(4) and one count of conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a–111 and 53a–48, in connection with a fire that occurred in August, 1996, at a building in New Haven, which was owned by an associate of the petitioner. The state alleged that the petitioner committed the crimes in question to collect a share of the insurance proceeds paid out in connection with the fire.

After his arrest, the petitioner, claiming indigency, applied for the services of a public defender for his defense at trial. His application was granted and, in December, 1996, Attorney Mary Haselkamp, an assistant public defender, filed an appearance on his behalf. Two years later, in October, 1998, as the scheduled date of trial approached, Attorney Francis Mandanici, an assistant public defender, also appeared in the case to assist in the petitioner's defense.

Shortly thereafter, however, on November 12, 1998, the state filed a motion for a judicial determination of the petitioner's eligibility for public defender services. The following day, the petitioner's public defenders, upon reviewing the state's motion and supporting documentation and after conducting their own investigation of the matter, determined that the petitioner was not, in fact, eligible for public defender services. On the basis of that determination, they promptly filed a motion to withdraw their appearances for the petitioner pursuant to General Statutes § 51–297(c).² Although jury selection in the petitioner's trial was scheduled to begin shortly after the motion to withdraw was filed, the public defenders believed, correctly, that if their motion to withdraw were granted, the court would grant the petitioner a reasonable continuance to retain private counsel for his defense at trial. In fact, the petitioner's trial did not begin until approximately six months after the court granted the motion to withdraw on November 16, 1998.

The petitioner initially chose to pursue an appeal to the court from his public defenders' determination that he was ineligible for their services pursuant to General Statutes § 51–297(g), which provides: “If the Chief Public Defender or anyone serving under the Chief Public Defender determines that an individual is not eligible to receive the services of a public defender under this chapter, the individual may appeal the decision to the court before which the individual's case is pending.” On November 18, 1998, at the beginning of the evidentiary hearing on his statutory appeal, however, the petitioner expressly waived his right to continue prosecuting the appeal. Thereafter, on December 11, 1998, having decided to represent himself at trial rather than hire private counsel, the petitioner filed a pro se appearance.

The petitioner's jury trial, in which he represented himself, commenced in May, 1999. At the conclusion of the trial, the petitioner was convicted of all charges against him. Ultimately, he was sentenced on those convictions to a total effective sentence of twenty-five years imprisonment.

Thereafter, the petitioner appealed his convictions to our Supreme Court, on the sole ground of prosecutorial impropriety.³ Upon rejecting that claim, the court affirmed the judgment of conviction. State v. Brown, 256 Conn. 291, 293–94, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S.Ct. 670, 151 L.Ed.2d 584 (2001).

The petitioner filed his first postconviction petition for a writ of habeas corpus on June 7, 2002.⁴ In that proceeding, he was represented by Attorney Justine Miller, special public defender.⁵ In the petition on which he went to trial, the petitioner challenged his arson and conspiracy convictions on four grounds: improper withdrawal by trial counsel from his case; ineffective assistance by his trial counsel; judicial misconduct by the trial judge; and ineffective assistance by his appellate counsel. The habeas court, A. Robinson, J., denied the petition, and this court later affirmed its judgment on appeal. Brown v. Commissioner of Correction, 92 Conn.App. 382, 383, 885 A.2d 761 (2005), appeal dismissed, 281 Conn. 466, 915 A.2d 870 (2007).⁶

In the present case, the petitioner's second postconviction habeas corpus proceeding, the petitioner claims that his counsel in the first habeas proceeding rendered ineffective assistance to him by: (1) failing to raise the claim that he was entitled to a new trial because he was deprived of his constitutional right to counsel at trial; and (2) failing to raise the claim that his appellate counsel was ineffective in failing to raise the aforementioned right to counsel claim on his direct appeal. The respondent commissioner of correction (commissioner) answered this second habeas petition by denying both of the petitioner's claims and asserting, as special defenses, that his claims were barred by the doctrine of res judicata, or, in the alternative, that the doctrine of deliberate bypass prohibited the petitioner from raising those claims.⁷ Following an evidentiary hearing, the court, Fuger, J., in a thorough memorandum of decision, denied the petition on the ground of lack of prejudice because the petitioner could not have prevailed on either unraised claim on habeas corpus by reason of procedural default of such a manner that prevented the petitioner from presenting any evidence that would have allowed the court “to conclude that there was any cause or prejudice to override the procedural default.” The court granted the petitioner's subsequent petition for certification to appeal from that judgment on August 26, 2011, and this appeal followed.

“Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Morris v. Commissioner of Correction, 131 Conn.App. 839, 842, 29 A.3d 914, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011).

The intersection of the petitioner's claim of ineffective assistance of counsel with the doctrine of procedural default implicates both the “performance and prejudice” test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the “cause and prejudice” standard of Wainwright v. Sykes, supra, 433 U.S. at 87, 97 S.Ct. 2497. As a threshold matter, “[t]o succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, [supra, 466 U.S. at 687, 104 S.Ct. 2052].Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.... The claim will succeed only if both prongs are satisfied.... As applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding. Thus ... the petitioner will have to prove that ... prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial....” (Citation omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, 133 Conn.App. 96, 101–102, 33 A.3d 883, cert. denied, 303 Conn. 941, 37 A.3d 153 (2012).

In the present case, the court ruled that the petitioner was unable to demonstrate that Miller's allegedly deficient performance in the first habeas proceeding prejudiced him, as is required to succeed on his ineffective assistance of counsel claim. According to the habeas court,...