Michael G. v. Comm'r of Corr., 34796.

• Decision Date: 21 October 2014
• Docket Number: No. 34796.,34796.
• Court: Connecticut Court of Appeals
• Parties: MICHAEL G. v. COMMISSIONER OF CORRECTION.

153 Conn.App. 556

102 A.3d 132

MICHAEL G.^*

v.COMMISSIONER OF CORRECTION.

No. 34796.

Appellate Court of Connecticut.

Argued Sept. 8, 2014.

Decided Oct. 21, 2014.

Michael D. Day, assigned counsel, for the appellant (petitioner).

Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and PRESCOTT and BEAR, Js.

Opinion

PER CURIAM.

The petitioner, Michael G., appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. We conclude that the habeas court did not abuse its discretion in denying certification to appeal. Accordingly, we dismiss the appeal.

The petitioner was convicted of multiple counts of sexual assault in the first degree and risk of injury to a child involving his daughter. The complete facts pertaining to the petitioner's crimes are set forth in State v. Michael G., 107 Conn.App. 562, 945 A.2d 1062 (affirming judgment of conviction), cert. denied, 287 Conn. 924, 951 A.2d 574 (2008). Following his direct appeal, the petitioner filed his amended petition seeking a writ of habeas corpus on March 16, 2012, claiming that his trial counsel had provided ineffective assistance during the criminal trial by deciding not to call the petitioner's mother as a witness for the defense. Upon the conclusion of the habeas trial, the court determined that the decision not to call the mother as a witness was that of a “competent and qualified defense attorney,” and that the petitioner had not proven that his defense counsel's performance was deficient. The court specifically found that the petitioner's mother lacked credibility as a witness when she testified during the habeas trial. Accordingly, the habeas court denied the petition, and subsequently denied the petition for certification to appeal. This appeal followed.

On appeal, the petitioner argues that the habeas court abused its discretion in denying his petition for certification by (1) finding that he had received effective assistance of counsel, and (2) determining that the petitioner's mother lacked credibility as a witness. We disagree.

We begin by setting 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.... 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.... To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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.” (Citation omitted; internal quotation marks omitted.) Spyke v. Commissioner of Correction, 145 Conn.App. 419, 423, 75 A.3d 738, cert. denied, 310 Conn. 932, 78 A.3d 858 (2013). “In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous.” (Internal quotation marks omitted.) Tutson v. Commissioner of Correction, 144 Conn.App. 203, 215, 72 A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d 145 (2013).

The petitioner first claims that the habeas court erred in concluding that counsel's performance was not deficient when he decided not to call the petitioner's mother as a witness during his criminal trial. The petitioner asserts that, if called, his mother would have testified that she had heard the victim recant her accusations against the petitioner, and that such evidence likely would have had a favorable impact on the outcome of the case.¹ We disagree.

The applicable standard for reviewing claims of ineffective assistance of counsel during criminal proceedings was articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the court held that such a claim “must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.... The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the counsel guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Crocker v. Commissioner of Correction, 126 Conn.App. 110, 116, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011).

In this case, the habeas court did not credit the testimony of the petitioner's mother that the victim had recanted her accusations, finding that the witness lacked “even the slightest bit of credibility....” To the contrary, the habeas court specifically credited the petitioner's trial counsel, who testified that the decision not to call the mother as a witness was based on his being unable to get a “straight answer” as to what she actually had heard the victim say and because calling the mother to testify would likely have opened the door for the state to introduce damaging evidence that previously had been excluded. It is axiomatic that the habeas court is the “sole arbiter of the credibility of witnesses and the weight to be given to their testimony.”

Internal quotation marks omitted.) Davis v. Commissioner of Correction, 140 Conn.App. 597, 602, 59 A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d 1133 (2013). Accordingly, having reviewed the record, we conclude that the habeas court properly determined that trial counsel's decision not to call the mother as a witness was that of a “competent and qualified defense attorney.”

The petitioner next claims that the habeas court's finding that his mother lacked credibility as a witness was clearly erroneous because the habeas judge “maintained a bias or an appearance of bias” against her. As the sole basis supporting his claim, the petitioner points to the habeas court's assessment of the mother's credibility as a witness delivered in its ruling from the bench upon the conclusion of the trial. The habeas court stated that given the potential damaging nature of “the additional evidence that [defense] counsel was able to keep out of trial,” the court found “it, frankly, rather appalling that [the mother] would even be willing to come in here and present the testimony.”

The petitioner did not raise any claim of judicial bias during the...