Lewis v. Comm'r of Corr.

• Decision Date: 08 March 2022
• Docket Number: AC 43381
• Parties: Kacey LEWIS v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

211 Conn.App. 77

271 A.3d 1058

Kacey LEWIS

v.COMMISSIONER OF CORRECTION

AC 43381

Appellate Court of Connecticut.

Argued October 20, 2021

Officially released March 8, 2022

Kacey Lewis, self-represented, the appellant (petitioner).

Margaret Gaffney Radionovas, special deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Jo Anne Sulik and David A. Gulick, senior assistant state's attorneys, for the appellee (respondent).

Suarez, Clark and Pellegrino, Js.

CLARK, J.

The self-represented petitioner, Kacey Lewis, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing in part and denying in part his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion by (1) denying his motion to sequester a subpoenaed witness, (2) striking his motion to reconstruct and correct the record, (3) denying his request to issue a subpoena, (4) dismissing in part and denying in part his amended petition for a writ of habeas corpus, and (5) denying his petition for certification to appeal. We dismiss the appeal.

The following facts are relevant to our resolution of the petitioner's appeal. The petitioner represented himself at the criminal trial.¹ On December 11, 2009, a jury found him guilty of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), interfering with an officer in violation of General Statutes § 53a-167a (a), and possession of narcotics in violation of General Statutes § 21a-279 (a).² See State v. Lewis , 148 Conn. App. 511, 512, 84 A.3d 1238, cert. denied, 311 Conn. 940, 89 A.3d 349 (2014), cert. denied, 574 U.S. 854, 135 S. Ct. 132, 190 L. Ed. 2d 101 (2014). The petitioner's convictions arose out of events that took place in Waterbury on the evening of July 20, 2009. Id. At that time, the petitioner and his then girlfriend, Alana Thompson (victim), were driving "around the streets of Waterbury trying to sell heroin." Id. Later in the evening, the two had a disagreement, and the petitioner assaulted and kidnapped the victim in an attempt to force her into his vehicle. Id., at 513–14, 84 A.3d 1238. The petitioner released the victim when two plainclothes police officers arrived at the scene. Id., at 514, 84 A.3d 1238. As a result of his convictions, the trial court, Schuman, J. , sentenced the petitioner to a total effective sentence of twenty-five years of incarceration, execution suspended after fifteen years, and five years of probation. Id.

The petitioner appealed from the judgment of conviction, and Attorney Christopher Duby was appointed to represent him. On direct appeal, Duby raised one claim, to wit: the evidence adduced at trial was insufficient to support the petitioner's conviction of kidnapping in the first degree under State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008). See State v. Lewis , supra, 148 Conn. App. at 512, 84 A.3d 1238. This court affirmed the judgment of conviction; id., at 517, 84 A.3d 1238 ; and our Supreme Court denied certification to appeal. State v. Lewis , 311 Conn. 940, 89 A.3d 349 (2014), cert. denied, 574 U.S. 854, 135 S. Ct. 132, 190 L. Ed. 2d 101 (2014).

On December 24, 2014, the self-represented petitioner filed a petition for a writ of habeas corpus. On September 10, 2015, he filed a 100 page document that the habeas court referred to as an amended petition for a writ of habeas corpus (amended petition). The amended petition contained seven claims denominated as grounds I through VII; each ground contained subparts. Grounds I through VI alleged constitutional claims of juridical error and a violation of Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), that allegedly occurred at the criminal trial.³ Ground VII alleged that Duby's representation on the criminal appeal was ineffective and that such representation prejudiced the petitioner.⁴

On October 4, 2016, the respondent, the Commissioner of Correction, filed a return in which he denied the petitioner's claims and pleaded numerous affirmative defenses, including that the petitioner's claims, with the exception of the ineffective assistance of appellate counsel claim, were in procedural default. On February 23, 2017, the petitioner responded to the allegations of procedural default by amending grounds I though VI. He also denied that his claims were in procedural default and pleaded allegations to establish cause and prejudice.

The petitioner represented himself at the habeas trial that was held on August 22, 2018, and February 28, 2019. The petitioner testified on his own behalf but called no other witnesses. The habeas court, Newson, J. , issued a memorandum of decision on May 17, 2019. In its decision, the court first noted that the respondent had raised the affirmative defense of procedural default to many of the petitioner's claims and that Connecticut has adopted the procedural default standard used by the federal courts. "Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. ... [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance .... The cause and prejudice requirement is not jurisdictional in nature, but rather a prudential limitation on the right to raise constitutional claims in collateral proceedings. ... The prudential considerations underlying the procedural default doctrine are principally intended to vindicate two concerns: federalism/comity and finality of judgments." (Citations omitted; internal quotation marks omitted.) Hinds v. Commissioner of Correction , 321 Conn. 56, 71, 136 A.3d 596 (2016).

The habeas court found that in grounds I and II of the amended petition, the petitioner alleged certain defects in the rulings of the trial court, including that he was deprived of a fair trial because the court denied his requests for the appointment of an investigator and an expert witness and denied him a writing instrument so that he could take notes during the trial. The petitioner also alleged that several of the trial court's evidentiary rulings interfered with his right to present a defense, such as prohibiting him from introducing the victim's signed statement while he was cross-examining her and failing to hold a hearing to investigate the petitioner's claims that judicial marshals allegedly had confiscated his defense strategy materials.

The court stated that the petitioner's claims of interference with his right to a fair trial, to confront witnesses, and to present a defense were of constitutional magnitude; see State v. Holley , 327 Conn. 576, 593, 175 A.3d 514 (2018) (rights to confront witnesses against defendant and to present defense are guaranteed by sixth amendment to United States constitution); and that they could have been, and should have been, raised on direct appeal.

The court also found that, other than his own self-serving and conclusory testimony, the plaintiff offered no evidence to explain why those constitutional claims were not raised on direct appeal or to establish that he had been prejudiced in any way. Although Duby was in the courtroom during the habeas trial, the petitioner did not call him as a witness. The court stated that, although it is not necessary in every case to call prior counsel as a witness to establish ineffective representation, some evidence of counsel's decision-making process is usually required to overcome the presumption that counsel's decisions were made on the basis of sound legal strategy. See Boyd v. Commissioner of Correction , 130 Conn. App. 291, 298, 21 A.3d 969 ("[i]t is well established that [a] reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time" (internal quotation marks omitted)), cert. denied, 302 Conn. 926, 28 A.3d 337 (2011).

With respect to ground III of the amended petition, the court found that the petitioner alleged that his right to self-representation was violated when he was excluded from a bench conference involving the prosecutor and standby counsel, that standby counsel interfered in his rights to self-representation and to present a defense, and that judicial marshals confiscated his defense strategy materials. The court stated that, because the right to self-representation is one of constitutional magnitude, the petitioner's claims should have been raised before the trial court and on direct appeal. The court, quoting State v. Webb , 238 Conn. 389, 427, 680 A.2d 147 (1996), noted that "[t]he right to appear [as a self-represented party] exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused's best possible defense. ... It is also consistent with the ideal of due process as an expression of fundamental fairness. To force a lawyer on a defendant can only lead him to believe that the law contrives against him." (Citation omitted; internal quotation marks omitted.) The court concluded that the petitioner had failed to present any evidence, other than his own self-serving testimony, to show cause for failing to raise grounds I, II, and III on direct appeal and to establish that he was prejudiced by the alleged violations of his constitutional rights.⁵

The habeas court found that ground IV of the amended petition alleged that the state violated the petitioner's rights to due process and a fair trial by withholding certain photographs of the victim...