Riddick v. Commissioner of Correction

• Decision Date: 31 March 2009
• Docket Number: No. 27975.,27975.
• Citation: 966 A.2d 762,113 Conn. App. 456
• Court: Connecticut Court of Appeals
• Parties: Jeffrey RIDDICK v. COMMISSIONER OF CORRECTION.

966 A.2d 762

113 Conn.App. 456

Jeffrey RIDDICK v.COMMISSIONER OF CORRECTION.

No. 27975.

Appellate Court of Connecticut.

Argued December 8, 2008.

Decided March 31, 2009.

Deborah G. Stevenson, special public defender, for the appellant (petitioner).

Rita M. Shair, senior assistant state's attorney, with whom, on the brief, were John A. Connelly and Gail P. Hardy, state's attorneys, for the appellee (respondent).

DiPENTIMA, ROBINSON and SCHALLER, Js.

DiPENTIMA, J.

The petitioner, Jeffrey Riddick, appeals following the habeas court's denial of his petition for certification to appeal from the judgment dismissing his petition for a writ of habeas corpus.On appeal, the petitioner claims that the court(1) abused its discretion by denying his petition for certification to appeal from the dismissal of his habeas petition, (2) improperly granted habeas counsel's motion to withdraw, (3) improperly dismissed the habeas petition without an evidentiary hearing and (4) violated the petitioner's right to due process by waiting two years before ruling on the petition for certification to appeal from the dismissal of the habeas petition.We conclude that the court did not abuse its discretion in denying the petition for certification and, accordingly, dismiss the petitioner's appeal.

The petitioner was convicted of murder in violation of General Statutes § 53a-54a and risk of injury to a child in violation of General Statutes § 53-21(1).The trial court sentenced the petitioner to a term of incarceration of sixty-three years.This court upheld the petitioner's conviction in State v. Riddick,61 Conn.App. 275, 763 A.2d 1062, cert. denied, 255 Conn. 946, 769 A.2d 61(2001).

The petitioner, acting pro se, commenced the present action, setting forth a claim of ineffective assistance of trial counsel, attorney Jayne Kennedy.In August, 2001, attorney Margaret P. Levy entered an appearance on behalf of the petitioner.On October 15, 2003, the petitioner filed an amended petition for a writ of habeas corpus, alleging a denial of due process and ineffective assistance of counsel.

On December 10, 2003, pursuant to Practice Book§ 23-41, Levy filed a notice of motion for leave to withdraw, a motion for leave to withdraw and a memorandum of law in support of the motion for leave to withdraw.In her motion, Levy concluded that the petitioner's claims were "factually and legally wholly frivolous" and therefore requested to withdraw her appearance.By way of a letter dated December 12 2003, the clerk of the Superior Court informed the petitioner of Levy's motion and indicated that any objection was required in writing by January 12, 2004.On January 9, 2004, the petitioner filed his written objection to Levy's motion.

The habeas court issued a memorandum of decision on February 24, 2004, granting Levy's motion to withdraw her appearance.The court found that both the due process claim and the ineffective assistance of trial counsel claim were frivolous.The court also dismissed the petition for a writ of habeas corpus pursuant to Practice Book§ 23-42.On March 11, 2004, the petitioner filed a petition for certification to appeal, which the court denied on August 4, 2006.This appeal followed.

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden,229 Conn. 178, 640 A.2d 601(1994), and adopted in Simms v. Warden,230 Conn. 608, 612, 646 A.2d 126(1994).First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion....Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the 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."(Internal quotation marks omitted.)Coleman v. Commissioner of Correction,108 Conn. App. 836, 838, 949 A.2d 536, cert. denied, 289 Conn. 913, 957 A.2d 876(2008);Holmes v. Commissioner of Correction,107 Conn.App. 662 664-65, 946 A.2d 291, cert. denied, 288 Conn. 905, 953 A.2d 649(2008).

I

The petitioner first claims that the court abused its discretion in denying his petition for certification to appeal as to his claim that the court improperly granted Levy's motion for permission to withdraw.Specifically, he argues that (1)the court failed to comply with the requirements of Anders v. California,386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), (2) Levy failed to comply with the requirements of Anders and (3)the court improperly granted the motion to withdraw when there were nonfrivolous issues before the court.We are not persuaded and conclude that the court did not abuse its discretion in denying the petition for certification to appeal.¹

The following additional facts are necessary for our discussion.In the amended petition for a writ of habeas corpus, the petitioner alleged that he was denied due process as a result of (1) the failure to accommodate his hearing impairment pursuant to the Americans with Disabilities Act,42 U.S.C. § 12101 et seq., (2) his conviction being based on unreliable evidence and (3) actual innocence.Additionally, he claimed that he had received ineffective assistance of counsel as a result of Kennedy's failure (1) to conduct a full and adequate investigation of the state's case and his innocence, (2) to arrange for independent forensic testing of certain physical evidence, (3) to preserve the request that the trial court instruct the jury that it could consider the circumstances under which his statement to the police was taken and (4) to ensure that the petitioner be convicted only under the reasonable doubt standard.

In the memorandum of law in support of her motion to withdraw, Levy stated that she conducted a "conscientious investigation and examination" with respect to the claims set forth in the habeas petition.She spoke with two audiologists, who each stated that the assistive device provided to the petitioner at the criminal trial was appropriate.²One of the audiologists indicated that the petitioner's reading level may have caused his difficulty with the device used at the trial.After investigation, Levy learned that the petitioner's department of correction file did not contain any educational records and that his high school records were two decades old as of the time of trial.Thus, these records would not provide accurate information pertaining to the petitioner's reading ability at the trial.She also observed that this court had concluded, on direct appeal, that the petitioner's claim that he was entitled to additional accommodations pursuant to 42 U.S.C. § 12101 et seq. was without merit.SeeState v. Riddick,supra, 61 Conn.App. at 282-84, 763 A.2d 1062.

Levy consulted with "a number of experienced criminal attorneys in Connecticut, including several with extensive experience in habeas corpus matters."All of these attorneys agreed that the petitioner's claims were wholly frivolous.Levy also spoke with Kennedy, who stated that the petitioner never provided her with an alibi or witness who could testify as to his whereabouts during the period from December 23 through 25, 1996.³Additionally, the petitioner failed to provide Levy with any evidence in support of his claim of actual innocence.

Levy also spoke with Kennedy as to why no independent forensic testing had been done.Kennedy informed Levy that none of the test results connected the petitioner to the evidence, and, therefore, further testing would not have been helpful and could have been extremely harmful if damaging evidence linking the petitioner to the crimes had been uncovered.

In the petitioner's objection to the motion to withdraw, he stated, inter alia, that certain inconsistencies as to when the victim died were relevant to his claim of actual innocence.He further stated that he learned that his department of education records were available and that a certain witness was "ready and willing to testify" that the victim was alive on the morning of December 25, 1996.The petitioner, however, failed to provide a copy of his educational records or the promised affidavit from his witness.

On February 24, 2004, the habeas court issued its memorandum of decision.It stated that it had reviewed the file, including both Levy's memorandum of law and the petitioner's objection.The court stated: "[Levy's] memorandum of law contains numerous [citations] to the trial transcript that reveal that trial counsel did raise issues that the petitioner claims were not raised.It is also apparent from the file that the petitioner has never proffered an alibi, witness or any other evidence of actual innocence to any of his counsel.The petitioner complained in his amended petition that trial counsel was ineffective since she did not perform an independent investigation into certain evidence presented by the state.There was, however, no prejudice to the petitioner because the evidence in question did not connect the petitioner to the crime."The court also concluded that the due process claim relating to his hearing impairment previously had been litigated and, therefore, was barred by the doctrine of res judicata.

Following the petitioner's appeal, the respondent, the commissioner of correction, filed a motion requesting that the court articulate what comprised the file that it had reviewed in deciding the motion to withdraw.On March 27, 2008, the court issued its articulation, stating that although it had no independent recollection of the present case, its "normal procedure...