Morgan v. Commissioner of Correction

• Citation: 866 A.2d 649,87 Conn.App. 126
• Decision Date: 01 February 2005
• Docket Number: No. 24270.,24270.
• Court: Appellate Court of Connecticut
• Parties: Lloyd George MORGAN, Jr. v. COMMISSIONER OF CORRECTION.

866 A.2d 649

87 Conn.App. 126

Lloyd George MORGAN, Jr. v. COMMISSIONER OF CORRECTION.

No. 24270.

Appellate Court of Connecticut.

Argued September 8, 2004.

Decided February 1, 2005.

Raymond L. Durelli, special public defender, for the appellant (petitioner).

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

WEST, J.

The petitioner, Lloyd George Morgan, Jr., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus and requests that we order a new habeas proceeding for reconsideration of his petition. On appeal, the petitioner does not challenge the court's rejection of the underlying claims in his petition. Rather, he claims that the court violated his due process right to effective assistance of habeas counsel and the correlative right to representation that is free from conflicts of interest. He asserts that the court did so by failing to inquire into the nature of three grievances that he filed against his habeas attorney with the statewide grievance committee prior to the habeas proceedings.¹ Viewing the record before us, it is not possible for this court to determine whether an actual conflict of interest existed and, if so, whether it rendered counsel's assistance ineffective. We do agree with the petitioner, however, that the record demonstrates that the possibility of a conflict of interest became sufficiently apparent during the habeas proceeding so as to impose on the court a duty to inquire further. Accordingly, we remand the case to the habeas court to determine the nature of the three grievances; in the event that the habeas court finds that an actual conflict of interest existed that influenced habeas counsel in making basic strategic decisions, we reverse the judgment and remand the case for a habeas trial; in the event that the habeas court finds that there was no actual conflict of interest that influenced habeas counsel's basic strategic decision making, we affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner's appeal.² On April 25, 2000, the petitioner filed a petition for a writ of habeas corpus. The court subsequently appointed Kenneth P. Fox as habeas counsel for the petitioner. On February 10, 2003, the petitioner filed his second, and last, amended petition for a writ of habeas corpus. The petitioner's habeas proceedings took place on March 20 and April 10, 2003. At those proceedings, the petitioner, asking the court to disqualify his habeas attorney, alerted the court to what he believed were two possible claims of conflict of interest against Fox.

First, the petitioner argued that a conflict of interest existed because he disagreed with the strategy that Fox employed at the habeas proceedings. At the proceeding on March 20, 2003, the court explained to the petitioner that "creative differences" in what "course should be taken [do] not constitute a conflict of interest." At the proceeding on April 10, 2003, responding again to the petitioner's dissatisfaction with Fox's strategy, the court stated: "That is not a conflict of interest."³

Second, at the proceeding on March 20, 2003, the court asked the petitioner, "How is there a conflict of interest between you and [counsel]?" The petitioner replied, "I have filed several grievances [against] him with the statewide [grievance committee], at least five." Fox promptly corrected the petitioner and informed the court that the petitioner had filed three grievances against him. Immediately after the petitioner had informed the court of the grievances and Fox had confirmed that the petitioner in fact had filed three grievances, the court stated that it "[did not] see any conflict, per se." At no point later in the proceedings did the court inquire into the nature of the grievances filed by the petitioner against Fox.

On April 11, 2003, the court denied the petitioner's amended petition for a writ of habeas corpus and issued a memorandum of decision rejecting, on the merits, all of the underlying claims in that petition. On April 17, 2003, the petitioner filed a petition for certification to appeal. The court granted the petition and issued notice thereof on April 24, 2003. On May 5, 2003, the petitioner filed this appeal.

The petitioner claims that the court improperly violated his due process right to effective assistance of counsel and the correlative right to representation that is free from conflicts of interest. He asserts that the court did so by failing to inquire into the nature of three grievances that he filed against his habeas attorney prior to the habeas proceedings. In support of his claim, the petitioner first argues in his brief that there is a right to effective assistance of habeas counsel that is predicated on the statutory right to habeas counsel under General Statutes § 51-296(a).⁴ In support of his argument, the petitioner cites Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), and notes with particularity that in that case, our Supreme Court remarked that counsel appointed in postconviction matters must be effective and competent. Id., at 838-39, 613 A.2d 818.

Citing State v. Martin, 201 Conn. 74, 82, 513 A.2d 116 (1986), the petitioner then reminds us that "[t]o safeguard a criminal defendant's right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial judge in a timely manner." He notes that in Martin, our Supreme Court held that when counsel makes a timely assertion of a conflict of interest, "[t]he trial court's failure to inquire [is] error." Id., at 83, 513 A.2d 116. He also cites State v. Vega, 259 Conn. 374, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002), in which our Supreme Court reiterated that "[t]here are two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial ... or (2) when the trial court knows or reasonably should know that a particular conflict exists...." (Internal quotation marks omitted.) Id., at 388, 788 A.2d 1221.

The petitioner next argues that when a court becomes aware that a party previously has filed a grievance against his court-appointed counsel, the court, to safeguard the party's right to effective assistance of counsel, must inquire into whether the substance of the grievance constitutes a conflict of interest. To support that argument, the petitioner discusses the facts of Vega. In that case, on learning that the defendant had filed a grievance against his court-appointed counsel, the trial court inquired into (1) when the grievance had been filed, (2) whether a copy of the grievance was available and (3) whether the defendant could recall the nature of the grievance. Id., at 390-91 n. 18, 788 A.2d 1221. Our Supreme Court "conclude[d] that the trial court conducted an appropriate inquiry as to the conflict of interest alleged by [the defendant's counsel] and the potential violation of the defendant's sixth amendment rights." Id., at 391, 788 A.2d 1221.

Having laid that foundation, the petitioner argues that by informing the court that he previously had filed three grievances against counsel, the court was obligated to inquire into whether the substance of any of those grievances constituted a conflict of interest. He further argues that by failing to conduct any inquiry into the nature of those grievances, the court deprived him of his due process right to effective assistance of counsel and the correlative right to representation that is free from conflicts of interest. To the extent that the court should have inquired into the nature of the grievances, we agree with the petitioner. Reviewing the legal principles that guide us in our analysis, we first note that although there is no constitutional right to counsel in habeas proceedings, "General Statutes § 51-296 ... creates a statutory right to counsel ... for an indigent defendant ... in any habeas corpus proceeding arising from a criminal matter...." (Emphasis in original; internal quotation marks omitted.) Franko v. Bronson, 19 Conn.App. 686, 691-92, 563 A.2d 1036 (1989). In addition to creating a right to counsel in habeas proceedings themselves, § 51-296 creates a right to counsel in appeals therefrom. Id., at 692, 563 A.2d 1036. We previously have concluded that "the [statutory] right to appeal in habeas corpus actions should be extended the same protections as those set out in [Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)]." Franko v. Bronson, supra, at 692, 563 A.2d 1036. "The Anders decision [was] based upon constitutional requirements guaranteed by the sixth amendment in criminal cases."⁵ Id., at 691, 563 A.2d 1036. Given our willingness to extend the weight of sixth amendment protection to the statutory right to appeal in habeas actions, we therefore also extend the weight of sixth amendment protection to the underlying statutory right to counsel in habeas proceedings themselves.

In so doing, we note that "[t]he sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to [the] effective assistance of counsel.... Where a constitutional right to counsel exists ... there is a correlative right to representation that is free from conflicts of interest.... To safeguard a criminal defendant's right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial [court] in a...