Turner v. Comm'r of Corr.

• Decision Date: 08 March 2016
• Docket Number: No. 36601.,36601.
• Citation: 134 A.3d 1253,163 Conn.App. 556
• Court: Connecticut Court of Appeals
• Parties: Corey TURNER v. COMMISSIONER OF CORRECTION.

163 Conn.App. 556

134 A.3d 1253

Corey TURNER

v.COMMISSIONER OF CORRECTION.

No. 36601.

Appellate Court of Connecticut.

Argued Dec. 9, 2015.

Decided March 8, 2016.

Corey Turner, self-represented, the appellant (petitioner).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

ALVORD, SHELDON and MULLINS, Js.

ALVORD

, J.

The petitioner, Corey Turner, appeals from the judgment of the habeas court denying his motion to open and set aside a 2002 habeas judgment and denying him certification to appeal from that decision. On appeal, the petitioner claims that the habeas court, Cobb, J., abused its discretion by denying his petition for certification to appeal and determining that his motion to open and set aside the judgment of the first habeas court, White, J., was time barred. We dismiss the appeal.

The following facts and procedural history are relevant to this appeal. In 1997, the petitioner was convicted of murder in violation of General Statutes § 53a–54a

and first degree assault in violation of General Statutes § 53a–59. In 2000, our Supreme Court affirmed his conviction. State v. Turner, 252 Conn. 714, 751 A.2d 372 (2000). The petitioner's first petition for writ of habeas corpus, which is the focus of the present appeal, was adjudicated in 2002. In that case, the habeas court, White, J., denied the petitioner's writ of habeas corpus alleging claims of ineffective assistance of counsel both in his underlying criminal trial and on his direct appeal. This court dismissed the petitioner's appeal. Turner v. Commissioner of Correction, 86 Conn.App. 341, 861 A.2d 522 (2004), cert. denied, 272 Conn. 914, 866 A.2d 1286 (2005).¹

During his 2002 habeas trial, the petitioner alleged that his criminal trial counsel had been ineffective for failing to convince the criminal trial court to admit evidence that supported his defense of alibi. The petitioner had testified, during his criminal trial, that he was with an acquaintance at the time of the murder. He called the acquaintance witness to testify and she repeated the same story. During cross-examination of the petitioner, the state questioned him about a recorded prison phone call between the petitioner and the acquaintance witness, suggesting that he had fabricated the story. In an attempt to refute the state's rebuttal evidence, the petitioner's criminal trial counsel attempted to admit into evidence the recording of the phone call between the petitioner and the acquaintance witness, but the trial court sustained the state's objection.²

In his first habeas trial, the petitioner called his criminal trial counsel as a witness in an effort to elicit testimony that would show that he had been ineffective by failing to have the recorded phone call admitted as evidence in the criminal trial. On cross-examination, the petitioner's criminal trial counsel testified that the petitioner presented him with two witnesses who would testify to an alibi, in addition to and separate from the acquaintance witness. The petitioner's criminal trial counsel testified that initially during the trial, he interviewed one of the two additional witnesses and found that she was not credible and thus did not present their testimony in the petitioner's defense. The petitioner, representing himself at the habeas trial, attempted to impeach his criminal trial counsel through use of a prior inconsistent statement concerning the additional witnesses. The petitioner sought to admit as evidence the criminal trial counsel's written response to a 1997 grievance that was filed against him by the petitioner. The petitioner claimed that the written response proved that the petitioner provided his criminal trial counsel with only the one acquaintance witness in regard to his alibi, contradicting counsel's habeas testimony.³ However, the habeas court sustained the objection of the respondent, the Commissioner of Correction, to the introduction of this extrinsic evidence because the habeas court concluded that the statements would be cumulative and involved a collateral matter. The next day, the petitioner moved for a mistrial because he claimed that his criminal trial counsel had perjured himself and the court had denied him the opportunity to present evidence that would have supported that claim. The court denied the motion. Ultimately, the habeas court, White, J., denied the petitioner's writ of habeas corpus. The petitioner appealed from the judgment of the habeas court, but he did not argue that the court had erred by sustaining the state's objection to his admission of the grievance response into evidence. This court dismissed the appeal. Turner v. Commissioner of Correction, supra, 86 Conn.App. at 343, 861 A.2d 522

.

On July 27, 2011, the petitioner filed a motion to open and set aside the 2002 judgment of the habeas court, White, J., on his first petition for writ of habeas corpus. The petitioner claimed that the judgment resulted from a fraud committed upon the court through the collusion of his criminal trial counsel and the respondent's counsel in the first habeas action. Specifically, the petitioner claimed that his criminal trial attorney had perjured himself in testimony before the habeas court, White, J., and that the respondent's counsel had intentionally elicited this testimony even though she knew that it was false.⁴ During the habeas court's hearing on the motion, the petitioner argued that his criminal trial counsel's statement regarding multiple alibis had undermined his petition for writ of habeas corpus because it supported the respondent's contention that the acquaintance witness' testimony as to the petitioner's alibi had been fabricated. The habeas court, Cobb, J., denied the petitioner's motion to open and set aside the judgment based on his failure to satisfy any of the factors set out in Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980)

, to prove that the judgment was based on fraud.⁵ The habeas court also denied the petitioner certification to appeal.⁶ This appeal of the habeas court's denial of certification followed.

"We begin by setting forth the applicable standard of review and procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court's denial of the habeas petition following denial of certification to appeal. In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994)

, [our Supreme Court] concluded that ... [General Statutes] § 52–470(b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court.... This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court couldresolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits.... 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Brewer v. Commissioner of Correction, 162 Conn.App. 8, 12–13, 130 A.3d 882 (2015)

.

"Habeas corpus is a civil proceeding.... The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment ... is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.... The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did." (Citation omitted; internal quotation marks omitted.) Foote v. Commissioner of Correction, 125 Conn.App. 296, 300, 8 A.3d 524 (2010)

.

A motion to open and set aside judgment is governed by General Statutes § 52–212a

and Practice Book § 17–4. Dougherty v. Dougherty, 109 Conn.App. 33, 38, 950 A.2d 592 (2008). Section 52–212a provides in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed...."

For claims of fraud brought in a civil action, our Supreme Court has established the criteria necessary for a party to overcome the statutory time limitation governing a motion to open and set aside judgment. Varley v. Varley, supra, 180 Conn. at 4, 428 A.2d 317

. "To have a judgment set aside on the basis of fraud which occurred during the course of the trial upon a subject on which both parties presented evidence is especially difficult.... The question presented by a charge of fraud is whether a judgment that is fair on its face should be examined in its underpinnings concerning the very matters it purports to resolve. Such relief will only be granted if the unsuccessful party is not barred by any of the following restrictions: (1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover...