Diaz v. Comm'r of Corr.

• Docket Number: SC 20536
• Decision Date: 16 August 2022
• Parties: Daniel DIAZ v. COMMISSIONER OF CORRECTION
• Court: Connecticut Supreme Court

344 Conn. 365

279 A.3d 147

Daniel DIAZ

v.COMMISSIONER OF CORRECTION

SC 20536

Supreme Court of Connecticut.

Argued December 17, 2021

Officially released August 16, 2022

Robert L. O'Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, North Haven, assigned counsel, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Brian W. Preleski, former state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

MULLINS, J.

The petitioner, Daniel Diaz, appeals from the judgment of the Appellate Court dismissing his appeal from the judgment of the habeas court. The primary issue on appeal is whether the habeas court abused its discretion by denying his petition for certification to appeal with respect to the claim that his defense counsel at his second criminal trial rendered ineffective assistance of counsel by laboring under a conflict of interest, namely, simultaneously working as defense counsel and as an active duty police officer in a different city. Although counsel's failure to disclose the potential conflict to the petitioner is deeply troubling, and although we conclude that the legal issues raised are fairly debatable among jurists of reason, such that certification to appeal should have been granted, we ultimately agree with the respondent, the Commissioner of Correction, that the petitioner failed to prove his claim that his counsel labored under an actual conflict of interest.

I

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. See Diaz v. Commissioner of Correction , 200 Conn. App. 524, 526–29, 545–47, 240 A.3d 795 (2020). "In early 2001, the [petitioner] was under investigation by the New Britain [P]olice [D]epartment for illegal drug related activities. On March 13, 2001, New Britain police officers arrested Kevin Lockery, who was known by the police as a drug user, for a narcotics offense. In an effort to gain lenient treatment, Lockery identified the [petitioner] as a drug dealer and provided the police with information about the [petitioner]. At the direction of the police, Lockery called the [petitioner] on a [cell phone] and arranged to purchase five bags of heroin at a specific location in New Britain. Shortly after the [petitioner] received Lockery's call, the [petitioner] left his residence and drove to that location. Lockery did not meet the [petitioner] as arranged, and, after several minutes, the [petitioner] began to drive away.

"Police officers stopped the [petitioner's] automobile. A search of the [petitioner] yielded twenty-five packets of heroin, $1025 and a [cell] phone that displayed among received calls the telephone number from which Lockery had called the [petitioner] to arrange the drug purchase. A subsequent search of the [petitioner's] residence, pursuant to a warrant, yielded 168 packets of heroin, [16] grams of marijuana, a [12] gauge shotgun, several shotgun shells and numerous other items typically used in the sale and distribution of illegal drugs. ...

"In his first criminal trial in 2002, the petitioner was found guilty by a jury of having committed multiple charged offenses, but the judgment of conviction was reversed by [this court] because the petitioner had received an inadequate canvass from the trial court regarding his decision to waive counsel and [to] represent himself. See State v. Diaz , 274 Conn. 818, 828, 878 A.2d 1078 (2005). In his second criminal trial in 2006, the petitioner was found guilty by a jury of [one count of] possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes [Rev. to 2001] § 21a-278 (b), two counts of possession of narcotics in violation of General Statutes [Rev. to 2001] § 21a-279 (a), and [one count of] criminal possession of a firearm in violation of General Statutes [Rev. to 2001] § 53a-217 (a) (1). [The Appellate Court] affirmed the judgments of conviction on appeal. See State v. Diaz , [109 Conn. App. 519, 559, 952 A.2d 124, cert. denied, 289 Conn. 930, 958 A.2d 161 (2008) ]." (Citation omitted; internal quotation marks omitted.) Diaz v. Commissioner of Correction , supra, 200 Conn. App. at 526–27, 240 A.3d 795.

"[In] ... 2015, the petitioner ... filed an amended petition for a writ of habeas corpus, which is the operative petition in this appeal. The petition contained five counts, only [one] of which [is] relevant to this appeal." Id., at 528, 240 A.3d 795. "In the third count, the petitioner alleged that Frank Canace, his defense counsel in the second criminal trial, had a conflict of interest as a result of his employment as a New Haven police officer while representing the petitioner as a special public defender." Id.

The petitioner alleged that "Canace served as a special public defender representing indigent criminal defendants in ... the judicial district of New Britain. While representing the petitioner, Canace was employed as a police officer for the city of New Haven. The petitioner was not aware that Canace was employed as a New Haven police officer, and Canace did not inform him of that fact." Id., at 545, 240 A.3d 795.

"Before Canace began representing criminal defendants in approximately 1996 or 1997, Canace [had] made known to the New Haven Police Department his desire to do so. To determine whether it was appropriate for Canace to be employed as a New Haven police officer while simultaneously representing criminal defendants, corporation counsel for the city of New Haven solicited opinions on the matter from the American Bar Association, the Statewide Grievance Committee, and the New Haven state's attorney's office. Corporation counsel concluded that Canace could represent criminal defendants in Connecticut courts, with the exception of those located in the judicial district of New Haven." Id., at 545–46, 240 A.3d 795.

"In 2006, Preston Tisdale, an attorney employed as the director of the special public defender program at the Division of Public Defender Services, was informed that Canace was employed as a New Haven police officer while also representing criminal defendants as a special public defender. Tisdale consulted with the Office of the Chief Public Defender and, ultimately, decided that Canace would have to resign as a special public defender. Tisdale provided two reasons for his decision: (1) Canace exhibited a lack of candor in his application for a special public defender contract by vaguely describing his position for the city of New Haven as a municipal employee, and (2) other clients of Canace might raise ineffective assistance of counsel claims against him.

"In his petition, the petitioner alleged that Canace had a conflict of interest as a result of his employment as a police officer while representing the petitioner. The petitioner further alleged that Canace's conflict of interest presented itself when he failed (1) to move to dismiss the petitioner's criminal charges on double jeopardy grounds, (2) to identify false statements by police officers in the search warrant affidavit, and (3) to adequately cross-examine police officers regarding their prior inconsistent statements and the different logos on the packaging of the drugs seized from the petitioner and those on Lockery's person during his arrest. The petitioner also alleged particular instances in which Canace provided deficient performance at [the petitioner's] second criminal trial." (Internal quotation marks omitted.) Id., at 546–47, 240 A.3d 795.

A trial on the habeas petition was held in 2017. Id., at 529, 240 A.3d 795. The habeas court denied each of the petitioner's claims. Id. With respect to the claim that Canace labored under an actual conflict of interest, the court found no evidence that "Canace's representation of the petitioner was directly adverse to another client" or that it was "limited by his responsibilities to the New Haven Police Department." Among other things, the habeas court implicitly agreed with and credited Canace's view that his obligations as a police officer under General Statutes § 54-1f (b)¹ did not give rise to a conflict of interest when he represented criminal defendants in other locales. Ultimately, the habeas court determined that Canace's representation of the petitioner was not limited by his responsibilities to the New Haven Police Department.

Thereafter, the petitioner filed a petition for certification to appeal from the denial of his petition for a writ of habeas corpus, which the habeas court denied. See Diaz v. Commissioner of Correction , supra, 200 Conn. App. at 529, 240 A.3d 795. The petitioner then appealed to the Appellate Court, and that court dismissed the appeal, finding no merit to the petitioner's claims. See id., at 554, 240 A.3d 795. This certified appeal followed.² Additional facts will be set forth as necessary.

II

A

The following legal principles govern our resolution of the petitioner's appeal. "We begin by setting forth the applicable standard of review. The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. ... The application of [the pertinent legal standard to] the habeas court's factual findings ... however, presents a mixed question of law and fact, which is subject to plenary 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. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason ... [the] court could resolve the issues [in a different manner] ... or ... the questions are adequate to deserve encouragement to proceed further. ... The required determination may be made on the basis...