Toccaline v. Commissioner of Correction, 102417 CTCA, AC 38415

Docket Nº:AC 38415
Opinion Judge:LAVINE, J.
Party Name:LENNARD TOCCALINE v. COMMISSIONER OF CORRECTION
Attorney:Andrew P. O'Shea, for the appellant (petitioner). Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, was Michael J. Proto, assistant state's attorney, for the appellee (respondent).
Judge Panel:Lavine, Sheldon and Flynn, Js.
Case Date:October 24, 2017
Court:Appellate Court of Connecticut
 
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LENNARD TOCCALINE

v.

COMMISSIONER OF CORRECTION

No. AC 38415

Court of Appeals of Connecticut

October 24, 2017

Argued May 16, 2017

Andrew P. O'Shea, for the appellant (petitioner).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, was Michael J. Proto, assistant state's attorney, for the appellee (respondent).

Lavine, Sheldon and Flynn, Js.

Syllabus

The petitioner filed a third amended petition for a writ of habeas corpus, claiming, inter alia, that he was actually innocent of the crimes of which he had been convicted, and that his rights to due process were violated as a result of the prosecutor's unknowing presentation of false testimony and alleged failure to disclose certain exculpatory evidence. The petitioner further claimed that he received ineffective assistance from his criminal trial counsel, from S, his counsel in his first habeas trial and first habeas appeal, and from P Co., his counsel in his second habeas trial. The first habeas court had rendered judgment granting the petition for a writ of habeas corpus as to certain of the petitioner's claims, but this court reversed that judgment on the ground that the habeas court did not use the proper standard for deciding ineffective assistance of counsel claims and directed the habeas court on remand to dismiss the petition. After a second habeas trial, the habeas court rendered judgment dismissing and denying certain of the petitioner's claims, and this court affirmed that judgment. Thereafter, the petitioner filed a third amended habeas petition, and the respondent Commissioner of Correction filed a motion to dismiss that petition. The habeas court granted the respondent's motion to dismiss and rendered judgment dismissing the third amended habeas petition, and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. Held:

1. The habeas court did not abuse its discretion in denying the petition for certification to appeal as to the petitioner's claim of actual innocence, that court having properly determined that the petitioner's actual innocence claim was barred by the doctrine of res judicata; the claim had been raised, litigated and decided on the merits in his first two habeas actions, the petitioner did not appeal from the rejection of that claim in either of those actions, and he conceded in the present appeal to this court that he did not have, and did not intend to present, any newly discovered evidence.

2. The habeas court did not abuse its discretion in denying the petition for certification to appeal as to the petitioner's claim that his rights to due process were violated when the prosecutor unknowingly presented false testimony: there wasno Connecticut case that supported the proposition that the petitioner's due process rights could have been violated by the prosecutor's presentation of false testimony when the prosecutor neither knew nor should have known that the testimony was false, the issue has not been decided by the United States Supreme Court, and the claim would fail even under the more lenient approach that provides that due process is violated when the testimony is material and the court is left with a firm belief that, but for the perjured testimony, the petitioner most likely would not have been convicted, as the petitioner failed to show that absent the inaccurate testimony, there was a reasonable probability that he would not have been convicted in light of the other significant, incriminating evidence that had been presented against him.

3. Although the habeas court improperly dismissed the claim that S was ineffective as the petitioner's first habeas appellate counsel on the ground that it was successive, the court, nevertheless, did not abuse its discretion in denying the petition for certification to appeal on the alternative ground that the claim was without merit: the petitioner failed to show that S's performance was deficient for failing to move to have the first habeas court articulate its factual findings, as the petitioner did not allege which factual findings were absent or show that the first habeas court did not articulate the factual findings supporting its decision; moreover, although this court subsequently reversed the decision of the first habeas court, that reversal was not because the court's factual findings were insufficient or because the record was inadequate for review.

4. There was no merit to the petitioner's claim that the habeas court abused its discretion in denying the petition for certification to appeal as to his assertion that P Co. was ineffective in representing him in his second habeas trial, as the petitioner failed to show that P Co. was ineffective in failing to raise or adequately argue claims in counts one through six of his third amended habeas petition; the petitioner's claim in count one of actual innocence was successive, his claim in count two that the prosecutor violated his due process rights by failing to timely disclose a certain report had been fully litigated, and this court previously decided that any failure to disclose the report was harmless error, the assertion in count three that the prosecutor violated the petitioner's rights to due process by unknowingly presenting false testimony failed to state a claim on which relief could be granted, the petitioner's claims in counts four and five that his criminal trial counsel and S, as his first habeas counsel, rendered ineffective assistance were previously rejected by this court, and the petitioner could not show that he was prejudiced as a result of P Co.'s failure to allege that S was ineffective as appellate counsel in the first habeas appeal as alleged in count six, as the petitioner could not show that the outcome of his criminal trial would have been different in light of the incriminating evidence against him and the significant evidence supporting his guilt.

Procedural History

Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Fuger, J.; judgment dismissing the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

OPINION

LAVINE, J.

The petition for a writ of habeas corpus at issue in the present appeal is the third filed by the petitioner, Lennard Toccaline. He appeals following the habeas court's denial of his petition for certification to appeal from the judgment of the habeas court granting the motion to dismiss filed by the respondent, the Commissioner of Correction. He claims that the habeas court abused its discretion by denying his petition for certification to appeal and improperly dismissed four counts of his third amended petition. We dismiss the appeal.

The following facts and lengthy procedural history are relevant to our resolution of the petitioner's appeal. In 1999, following a jury trial, the petitioner was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the fourth degree in violation of General Statutes (Rev. to 1995) § 53a-73a (a) (1) (A), and three counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21 (2), as amended by No. 95-142, § 1, of the 1995 Public Acts. Subsequently, the trial court, Sferrazza, J., found the petitioner guilty of being a persistent felony offender in violation of General Statutes (Rev. to 1995) § 53a-40 (a). The petitioner was sentenced to a total effective term of forty years imprisonment, execution suspended after twenty-five years, followed by ten years of probation.

In 2001, he appealed from his conviction, [1] and our Supreme Court set forth in detail the facts underlying his conviction. It explained that the petitioner, a thirty-five year old man, had engaged in three acts of sexual contact with MC, the twelve year old victim.2 After MC told her mother about the sexual contact, the petitioner gave an incriminating statement to the police, which was read to the jury at trial. In the statement, the petitioner claimed that MC never objected to the contact and that the contact did not constitute sexual inter-course.3 State v.

Toccaline, 258 Conn. 542, 546-47, 783 A.2d 450 (2001) (Toccaline I). Our Supreme Court affirmed the petitioner's conviction because the claims were not reviewable4 but noted that ‘‘the jury was presented with significant evidence, aside from the victim's testimony, that the sexual abuse had in fact occurred. For example, MC's physician testified that a physical examination revealed that MC had experienced vaginal penetration, which most likely was caused through sexual relations. . . . Most importantly, the

[petitioner's] own written statement...

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