Ross v. Commissioner of Correction ( 2023 )

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JERMAINE ROSS v. COMMISSIONER
OF CORRECTION
(AC 45062)
Bright, C. J., and Prescott and Moll, Js.
Syllabus
The petitioner, who had been convicted, on a plea of guilty, of the crime
of kidnapping in the second degree, sought a writ of habeas corpus,
claiming, inter alia, that he was actually innocent and that his court-
appointed standby counsel, R, had rendered ineffective assistance when
the petitioner represented himself during his second criminal trial. At
the petitioner’s first criminal trial, the state introduced evidence that
the petitioner had lured the victim into his car by promising her money
in exchange for sex and then drove to a market where video footage
from two surveillance cameras showed the victim getting out of the car,
entering the market to make a purchase and then reentering the car
before it was driven away. When the victim told the petitioner that she
had changed her mind and asked that he drop her off, he refused and
drove to a parking lot where he sexually assaulted her. After the petition-
er’s first criminal trial ended in a mistrial, the petitioner invoked his
right to represent himself at his retrial and proceeded with R acting
as standby counsel. During jury selection, the trial court ordered the
petitioner removed from the courtroom because of his belligerent con-
duct and directed R to continue with jury selection. The petitioner
resumed self-representation before the completion of jury selection and
his acceptance of the state’s plea offer. The habeas court granted in
part the motion filed by the respondent Commissioner of Correction to
dismiss the petitioner’s habeas petition. At the habeas trial, the petitioner
claimed, inter alia, that inconsistencies in the victim’s recounting of
events and discrepancies in the video surveillance footage that under-
mined the victim’s testimony that she was at the market with him consti-
tuted newly discovered evidence that established his claim of actual
innocence. The petitioner further claimed that R had rendered ineffective
assistance by failing to inform him of a potential legal claim pertaining
to the interception by the Department of Correction of his mail that
contained his defense strategy, which thereafter was provided to the
state’s attorney. The habeas court denied the petitioner’s actual inno-
cence claim, concluding that he had not presented any newly discovered
evidence that was not available at the time of the underlying criminal
proceedings. The court also determined that the petitioner’s ineffective
assistance claim was without merit, reasoning that, once he decided to
represent himself, he had no right to the effective assistance of counsel
in any capacity. The habeas court thereafter rendered judgment dismiss-
ing the habeas petition, from which the petitioner, on the granting of
certification, appealed to this court. Held:
1. The habeas court did not err in rejecting the petitioner’s claim that he
was actually innocent, as he failed to present any newly discovered
evidence to establish his innocence by clear and convincing evidence:
a. This court rejected the petitioner’s assertion that evidence need not
be newly discovered to establish a claim of actual innocence, as that
assertion was flatly contradictory to this court’s binding precedent that
an actual innocence claim must be based on newly discovered evidence.
b. This court concluded that, even if there were no requirement that
evidence must be newly discovered to establish an actual innocence
claim, the petitioner’s efforts to undermine the credibility of the victim’s
testimony by calling into question the reliability of the surveillance video
was unavailing, because, even if the reliability of the surveillance video
were called into question, undermining one piece of evidence did not
constitute affirmative evidence of his actual innocence; moreover, the
evidence the petitioner adduced concerning the surveillance video
merely attempted to discredit a portion of the state’s evidence at his
underlying criminal trial and would not negate the other ample evidence
of his guilt that was admitted at that trial, which included evidence that
his DNA was found in the victim, evidence of tire marks at the crime
scene that matched the petitioner’s vehicle, cell phone location data
placing him near the scene at the relevant time, and evidence that the
police found him in the same location several days later with another
sex worker in a car that matched the vehicle described by the victim.
2. There was no merit to the petitioner’s claim that the habeas court improp-
erly failed to conclude that R had rendered ineffective assistance in his
role as standby counsel, as the petitioner had no right to the effective
assistance of counsel in any capacity after he waived his sixth amend-
ment right to counsel and exercised his right to represent himself: the
petitioner cited no legal authority to support his contention that R had
a duty to inform him of potential legal issues in connection with his
intercepted prison mail, the evidence showed that R’s role as standby
counsel was limited in that he neither examined witnesses nor argued
to the jury but mostly responded to requests from the petitioner, R’s
actions readily fell into the category of assisting the petitioner with
overcoming routine procedural obstacles to the completion of tasks the
petitioner wanted to complete, and, despite the assistance R provided
by offering the petitioner unsolicited advice and conducting voir dire
on the day the petitioner was removed from the courtroom, the petitioner
unmistakably represented himself through the conclusion of his criminal
matter, during which he filed and argued numerous motions, represented
himself at multiple hearings and, on several occasions, reaffirmed to
the trial court his desire to represent himself; moreover, nothing in the
record indicated that the petitioner was confused about the role of
standby counsel, he never expressed to the trial court any uncertainty
about R’s role, and he presented no evidence to the habeas court that
he relied on R to provide unsolicited advice or to identify and inform
him of potential legal issues.
3. The petitioner could not prevail on his claim that the habeas court improp-
erly dismissed that count of his habeas petition in which he alleged that
his rights to due process and the assistance of counsel were violated as
a result of the interception of his prison mail: contrary to the petitioner’s
contention that those allegations related to the knowing and voluntary
nature of his guilty plea, they did not sufficiently demonstrate an interre-
lationship between the plea and the alleged ineffective assistance by R
such that it could be said that the plea was not made knowingly and
voluntarily, as there could be no ineffective assistance of counsel
because the petitioner represented himself, the count at issue could not
reasonably be read to set forth a claim that the plea was not made
knowingly and voluntarily, and this court declined to consider the peti-
tioner’s memorandum of law opposing the respondent’s motion to dis-
miss, in which he argued for the first time that his plea was not made
knowingly or voluntarily, as a memorandum of law is not a proper vehicle
for supplementing factual allegations in a habeas petition; moreover, a
plain reading of the allegations at issue showed that they asserted only
a claim that the petitioner had lost an opportunity to have the charges
against him dismissed because of the interception of his mail, as the
count at issue contained no allegations relating to the knowing and
voluntary nature of his guilty plea, at no point did he amend his habeas
petition to allege that the plea was unknowingly and involuntarily made
due to the interception of his mail, and, as alleged in the count at issue,
the petitioner was fully aware of the interception of his mail prior to
entering his guilty plea; furthermore, because a plea is made knowingly
and voluntarily regardless of whether a defendant is made aware of
every motion being waived by entering the plea, the petitioner knowingly
and willingly assumed that risk and had been advised of it by the trial
court when he chose to represent himself.
Argued October 3, 2022—officially released January 17, 2023
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Chaplin, J., granted in part
the motion to dismiss filed by the respondent Commis-
sioner of Correction; thereafter, the petitioner withdrew
the petition in part; subsequently, the case was tried to
the court, Oliver, J.; judgment denying the petition,
from which the petitioner, on the granting of certifica-
tion, appealed to this court. Affirmed.
Naomi T. Fetterman, assigned counsel, for the appel-
lant (petitioner).
Nathan J. Buchok, deputy assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Jo Anne Sulik, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
BRIGHT, C. J. Following the granting of certification
to appeal, the petitioner, Jermaine Ross, appeals from
the judgment of the habeas court denying his second
revised, amended petition for a writ of habeas corpus.
On appeal, the petitioner claims that the habeas court
improperly (1) rejected his actual innocence claim, (2)
concluded that he failed to establish that standby coun-
sel provided ineffective assistance, and (3) dismissed
count two of the habeas petition.1 We disagree and,
accordingly, affirm the judgment of the habeas court.
The habeas court set forth the following relevant
factual and procedural background in its memorandum
of decision. ‘‘The petitioner was the defendant in State
v. Ross, Docket No. CR-XX-XXXXXXX-S, in the judicial
district of Hartford. The petitioner was charged with
one count of sexual assault in the first degree in viola-
tion of General Statutes § 53a-70 (a) (1), and one count
of kidnapping in the first degree in violation of General
Statutes § 53a-92 (a) (2) (A). Although the petitioner
was initially represented by two different attorneys
prior to trial, he exercised his right to represent himself.
The petitioner’s first criminal trial proceeded as far as
jury deliberations but resulted in a mistrial after the
jury was unable to reach a unanimous verdict. After
the mistrial, the petitioner was briefly represented by
a third attorney, who was discharged, and the petitioner
[was assigned] his fourth counsel, Attorney Aaron
Romano. The petitioner again invoked his right to repre-
sent himself, which was granted [after he was fully
canvassed by the court, Dewey, J.], and he proceeded
with the assistance of Romano acting in the capacity
of standby counsel.
‘‘Jury selection for a second trial commenced with
the petitioner representing himself and Romano [acting]
as standby counsel. However, after the petitioner indi-
cated on June 4, 2013, that he did not want to proceed
with the trial that day, he was ordered removed from
the courtroom. Romano took over representation and
continued with the jury selection, although the peti-
tioner resumed representing himself before jury selec-
tion completed. On January 24, 2014, the state conveyed
a plea offer to the petitioner, which he accepted that
day. In exchange for pleading guilty to one count of
kidnapping in the second degree in violation of General
Statutes § 53a-94, the petitioner would receive a total
effective sentence of ten years of incarceration, sus-
pended after the service of five years, followed by five
years of probation. . . . The petitioner pleaded guilty
pursuant to the Alford doctrine2 and, after a thorough
canvass by the court, Alexander, J., was sentenced in
accordance with the plea agreement.
‘‘The prosecutor put the following facts on the record
to support the petitioner’s guilty plea: ‘[T]his occurred
on [November 22, 2009]. The [petitioner] had picked
up a woman on Webster Street in Hartford, who admit-
ted to the police that she was working as a [sex worker]
at the time. He had lured her into his car with the
promise of money in exchange for sex [and] began
driving her to another location. Along the way, she
changed her mind [and] asked to be brought back to
Hartford. He did not follow those wishes [and] took
her to Farmington where the other events unfolded.’
. . . The court then described to the petitioner the ele-
ments of kidnapping in the second degree and can-
vassed him to determine whether he understood what
the state would have to prove at trial. The petitioner
acknowledged that he understood the court’s explana-
tion.’’ (Citations omitted; footnote in original.)
On May 1, 2014, the petitioner filed the underlying
habeas petition as a self-represented party. The court
subsequently appointed counsel to represent the peti-
tioner, and assigned counsel filed the operative second
revised, amended petition. In the operative petition,
which included eight counts, the petitioner alleged that
(1) he is actually innocent, (2) his right to due process
and his right to counsel were violated by the Depart-
ment of Correction’s having intercepted mail intended
for his attorney that contained his defense strategy, (3)
his rights to due process and to a fair trial were violated
by the prosecutor’s alleged Brady3 violation, (4) his
right to due process was violated (a) when the criminal
proceedings against him continued without his pres-
ence after he was removed from the courtroom and
standby counsel took over representation, and (b)
because the petitioner’s decision to plead guilty to kid-
napping in the second degree was not made knowingly,
intelligently, and voluntarily, as he did not know or
understand that sex offender treatment would be a con-
dition of his probation, (5) his right to self-representa-
tion was violated, (6) his right to the effective assistance
of standby counsel was violated, (7) his right to the
effective assistance of counsel was violated construc-
tively, and (8) his right to counsel was violated because
his waiver of that right was ineffective.
On June 3, 2019, the respondent, the Commissioner
of Correction, pursuant to Practice Book § 23-29, filed
a motion to dismiss counts one, two, three, five, six,
seven, and the portion of count four involving the con-
tinuation of jury selection in the petitioner’s criminal
trial after he had been removed from the courtroom.
On June 25, 2019, the petitioner filed a memorandum
of law in opposition to the motion, and the parties
appeared in court and argued the motion to dismiss
and the opposition thereto on September 5, 2019. At
the hearing, the respondent’s counsel clarified that she
was not moving to dismiss the portion of count four
relating to sex offender treatment. Further, habeas
counsel represented to the court that he had filed a
motion in the petitioner’s criminal case requesting that
the trial court preclude the imposition of sex offender
treatment and stated that the issue would ‘‘very likely
become moot if this case goes forward . . . .’’ The
habeas court responded that, until the trial court
addressed the pending motion regarding sex offender
treatment, ‘‘there is nothing for this court to address
on that point . . . .’’
Following the hearing, the court, Chaplin, J., issued
a memorandum of decision granting the respondent’s
motion to dismiss as to counts two, three, five, seven,
and the challenged portion of count four pertaining to
the petitioner’s removal from the courtroom on June
4, 2013,4 and denying the motion as to counts one and
six. The petitioner subsequently withdrew count eight,
and the matter proceeded to trial on count one, in which
the petitioner claimed that he was actually innocent,
and on count six, in which he alleged ineffective assis-
tance of standby counsel.5
A two day habeas trial was held on January 15 and
February 4, 2021. In a memorandum of decision filed
July 8, 2021, the court, Oliver, J., denied the petition.
The court stated: ‘‘The petitioner testified in support
of his claims and presented the testimony of former
Detective Tracy Enns . . . Romano, and Victor San-
chez. The petitioner entered documents, mostly con-
sisting of transcripts, into evidence, as well as a flash
drive containing two videos. The respondent entered
one exhibit into evidence. The petitioner and the
respondent filed posttrial briefs.’’
The court denied the petitioner’s actual innocence
claim on the grounds that ‘‘the petitioner [had] failed
to present any newly discovered evidence that was not
available at the time of the criminal proceedings,’’ and
that ‘‘[t]here [was] no evidence affirmatively establish-
ing that the petitioner did not commit the charged
offense and is actually innocent.’’ As to the petitioner’s
ineffective assistance of counsel claim, the court, quot-
ing State v. Oliphant, 47 Conn. App. 271, 281, 702 A.2d
1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3(1998), found that the claim was ‘‘without merit because
after deciding to proceed pro se, [the petitioner had]
no constitutional right to the effective assistance of
counsel in any capacity’’; (internal quotation marks
omitted); and, because there is no constitutional right
to standby counsel, the petitioner could not prove that
standby counsel was ineffective. The court further con-
cluded that the petitioner had failed to prove that
Romano failed to perform his limited standby counsel
duties or that Romano had assumed the role of counsel
other than briefly during voir dire of potential jurors.
Finally, the court concluded that there was ‘‘no other
credible evidence that Romano overrode or infringed
upon the petitioner’s right to represent himself.’’ On July
19, 2021, the petitioner filed a petition for certification
to appeal, which the habeas court granted. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
The petitioner first claims that the habeas court
improperly denied his actual innocence claim. This
claim is without merit.
We begin by setting forth the law governing claims
of actual innocence and the corresponding standard of
review. ‘‘Actual innocence, also referred to as factual
innocence . . . is different than legal innocence.
Actual innocence is not demonstrated merely by show-
ing that there was insufficient evidence to prove guilt
beyond a reasonable doubt. . . . Rather, actual inno-
cence is demonstrated by affirmative proof that the
petitioner did not commit the crime. . . .
‘‘[T]he proper standard for evaluating a freestanding
claim of actual innocence . . . is twofold. First, the
petitioner must establish by clear and convincing evi-
dence that, taking into account all of the evidence—
both the evidence adduced at the original criminal trial
and the evidence adduced at the habeas corpus trial—
he is actually innocent of the crime of which he stands
convicted. Second, the petitioner must also establish
that, after considering all of that evidence and the infer-
ences drawn therefrom as the habeas court did, no
reasonable fact finder would find the petitioner guilty
of the crime. . . .
‘‘Our Supreme Court . . . clarified the actual inno-
cence standard in Gould [v. Commissioner of Correc-
tion, 301 Conn. 544, 560–61, 22 A.3d 1196 (2011)]. In
Gould, the habeas court found that the petitioner was
entitled to relief on his actual innocence claim after the
recantations of testimony that was the sole evidence
of [the petitioner’s] guilt. . . . On appeal, our Supreme
Court held that the clear and convincing burden . . .
requires more than casting doubt on evidence presented
at trial and the burden requires the petitioner to demon-
strate actual innocence through affirmative evidence
that the petitioner did not commit the crime. . . .
‘‘Affirmative proof of actual innocence is that which
might tend to establish that the petitioner could not
have committed the crime even though it is unknown
who committed the crime, that a third party committed
the crime or that no crime actually occurred. . . .
Clear and convincing proof of actual innocence does
not, however, require the petitioner to establish that
his or her guilt is a factual impossibility. . . .
‘‘With respect to the first component of the petition-
er’s burden, namely, the factual finding of actual inno-
cence by clear and convincing evidence . . . [t]he
appropriate scope of review is whether, after an inde-
pendent and scrupulous examination of the entire
record, we are convinced that the finding of the habeas
court that the petitioner is actually innocent is sup-
ported by substantial evidence.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Jackson v. Commissioner of Correction, 149 Conn.
App. 681, 706–707, 89 A.3d 426 (2014), appeal dismissed,
321 Conn. 765, 138 A.3d 278, cert. denied sub nom.
Jackson v. Semple, 580 U.S. 1035, 137 S. Ct. 602, 196 L.
Ed. 2d 482 (2016); see also Miller v. Commissioner of
Correction, 242 Conn. 745, 791–92, 700 A.2d 1108 (1997);
Myers v. Commissioner of Correction, 215 Conn. App.
592, 614, 284 A.3d 309 (2022); Ortiz v. Commissioner
of Correction, 166 Conn. App. 635, 659–60, 145 A.3d
937, cert. denied, 323 Conn. 906, 150 A.3d 680 (2016).
Although our Supreme Court has yet to address the
issue of whether an actual innocence claim must be
supported by newly discovered evidence; see Gould v.
Commissioner of Correction, supra, 301 Conn. 551 n.8;
this court has consistently held that ‘‘[a] claim of actual
innocence must be based on newly discovered evi-
dence. . . . This evidentiary burden is satisfied if a
petitioner can demonstrate, by a preponderance of the
evidence, that the proffered evidence could not have
been discovered prior to the petitioner’s criminal trial
by the exercise of due diligence.’’ (Internal quotation
marks omitted.) Ampero v. Commissioner of Correc-
tion, 171 Conn. App. 670, 687, 157 A.3d 1192, cert.
denied, 327 Conn. 953, 171 A.3d 453 (2017).
The following additional facts and procedural history
are relevant to our resolution of this claim. At the peti-
tioner’s first criminal trial, the victim testified that, on
the evening of November 22, 2009, she met a man she
later identified as the petitioner in Hartford, where she
was working as a sex worker. She agreed to get into
the petitioner’s car after he told her he would pay her
forty dollars in exchange for sex. The petitioner then
drove to Victoria’s Market where the victim purchased
a condom. The victim then returned to the car with the
condom, got into the passenger seat, and the petitioner
began driving. The state introduced video surveillance
footage from Victoria’s Market of the victim exiting the
petitioner’s vehicle, entering the store, and making a
purchase on that evening.
The victim testified that, during the drive, she told
the petitioner that she wanted to go home and asked
that he drop her off. The petitioner refused and became
agitated. The petitioner took her against her will to
the parking lot of a landscaping company where he
proceeded to sexually assault her. The petitioner there-
after removed the victim from his car and drove away.
The victim then made her way out to the road where
she flagged down a passing motorist for assistance.
While the victim was speaking with the motorist, a
Farmington police officer pulled over to assist. The
victim informed the officer that she had been sexually
assaulted and accompanied the officer in his police
cruiser to the location where the assault had occurred.
She informed the officer that her assailant had been
driving a black Nissan Maxima. The victim was eventu-
ally taken to the University of Connecticut Medical Cen-
ter emergency department where she was examined by
medical personnel who administered a sexual assault
kit and gathered physical evidence from her body.
At trial, the state introduced evidence establishing
that the petitioner’s DNA matched DNA of spermatozoa
recovered from the victim, that the tires on the petition-
er’s vehicle matched the tire marks at the crime scene,
and that the petitioner’s cell phone was in the area of the
assault at the relevant time. The state also introduced
evidence that, on November 27, 2009, five nights after
the assault, Farmington police located the petitioner
parked in the same location where the assault had
occurred. The petitioner was seated in his black Nissan
Maxima with another sex worker.
In count one of the habeas petition, the petitioner
alleged that newly discovered evidence in the form of
cell phone records, computer records, and ‘‘challenges
to the reliability of the forensic evidence’’ established
that he was actually innocent of the charge of kidnap-
ping in the second degree. At the habeas trial, the peti-
tioner testified in support of his claim and presented the
testimony of Sanchez, whose family owned Victoria’s
Market, and Enns, who, at the time of the events at
issue, was employed in the Farmington Police Depart-
ment. The petitioner also introduced the transcripts
from the original criminal trial and two surveillance
videos from Victoria’s Market, which had been intro-
duced at trial. The first video captures the interior of
Victoria’s Market and shows the victim entering the
market and making a purchase. The second video
depicts a view looking out into the parking area of
Victoria’s Market and shows the victim exiting a vehicle
that matched the victim’s description of the petitioner’s
vehicle and then entering the market.
At the habeas trial, Enns testified that she retrieved
the video evidence directly from Victoria’s Market and
downloaded it onto a flash drive. She obtained the video
to ‘‘corroborate what the victim was telling us in the
case . . . .’’ Enns confirmed that the videos did corrob-
orate a portion of the victim’s statement and that the
videos were introduced at the petitioner’s criminal trial
for that purpose.
In an effort to call into question the authenticity of
the Victoria’s Market videos, the petitioner called San-
chez as a witness at the habeas trial. Sanchez testified
that there had never been a camera located outside of
Victoria’s Market, but he could not recall the exact
location of the security cameras in 2009 and acknowl-
edged that the cameras had been replaced and that the
camera angles may have changed. Before the video
evidence was shown to Sanchez and the court, habeas
counsel asked Sanchez: ‘‘Would it have been possible
for someone to produce camera footage from outside
the store in 2009?’’ Sanchez responded: ‘‘How can—
how can you do that? There’s no camera outside.’’ After
he was shown the video of the exterior of the market,
Sanchez initially stated that he ‘‘[didn’t] think’’ he was
familiar with the camera angle depicted in that video.
On cross-examination, however, Sanchez clarified that
there was a security camera located inside Victoria’s
Market that captured the front of the store, cars outside
the front door, the street outside, and people coming
into the store. Upon viewing the video of the exterior
of the market again, Sanchez confirmed that the images
shown in that video looked like what one could see from
an interior camera in 2009. On redirect examination,
habeas counsel asked Sanchez: ‘‘Is there something that
makes you question that [the video of the exterior of
the market] might not be from the store or from the
cameras?’’ Sanchez responded: ‘‘No, no.’’
Although the petitioner claimed in his habeas petition
that his cell phone and computer records would prove
he was innocent, no such records were offered at his
habeas trial. The petitioner also did not challenge the
DNA evidence introduced at his first criminal trial. The
petitioner did testify, however, that, on the night of
the kidnapping, November 22, 2009, he was in Bristol
working on several school papers and that, just after
midnight, he was on the phone with the Department of
Labor filing an unemployment claim.
The petitioner argued that questions about the sur-
veillance video undermined the victim’s testimony that
she was at Victoria’s Market with him. In particular, he
pointed to Sanchez’ testimony that there was no camera
on the outside of Victoria’s Market and that Sanchez,
on direct examination, did not recognize the camera
angle in the video displaying the petitioner’s car in the
parking lot of Victoria’s Market. The petitioner also
asserted that ‘‘a review of the video exhibits that were
entered into evidence as the surveillance videos seized
by police and played by the prosecuting authority at
the petitioner’s criminal trial makes it clear that the
two videos do not meaningfully correspond. Individuals
that enter and leave the market on the in-store camera
are not seen outside in the parking lot on the other
video.’’ According to the petitioner, ‘‘[i]f [the videos]
could have been undermined as false or fabricated, a
jury would have been left with a firm conviction that
the alleged victim’s version of events had been falsified.
This, in conjunction with the petitioner’s testimony that
he was at home doing schoolwork on the evening of
the alleged incident, would display convincingly that
the petitioner did not commit the crime or that no crime
was committed.’’
The habeas court rejected the petitioner’s actual inno-
cence claim, concluding that the petitioner ‘‘failed to
present any newly discovered evidence that was not
available at the time of the criminal proceedings,’’ and
that there was ‘‘no evidence affirmatively establishing
that the petitioner did not commit the charged offense
and is actually innocent.’’
On appeal, the petitioner claims that the evidence
introduced at the habeas trial relating to the video from
Victoria’s Market constitutes sufficient affirmative evi-
dence of his actual innocence. In advancing his claim,
the petitioner challenges the requirement that evidence
must be newly discovered to support a claim of actual
innocence. He argues that, because a writ of habeas
corpus acts as a ‘‘ ‘bulwark against convictions that
violate fundamental fairness’ ’’; Engle v. Isaac, 456 U.S.
107, 126, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982); ‘‘there
is simply no reasoned basis to require that evidence
must be newly discovered in order for a petitioner to
establish his claim of actual innocence.’’ The respon-
dent, conversely, argues that the habeas court, follow-
ing the well settled precedent of this court, correctly
concluded that the petitioner failed to present any
newly discovered evidence in support of his claim of
actual innocence. The respondent further claims that,
regardless of whether it was newly discovered, the evi-
dence presented by the petitioner at the habeas trial
fell below the standard required to demonstrate actual
innocence. We agree with the respondent.
A
On appeal, the petitioner does not meaningfully chal-
lenge the habeas court’s conclusion that the evidence
relating to the video from Victoria’s Market was not
newly discovered. The videos were admitted as evi-
dence at the petitioner’s first criminal trial, and there
is no evidence that Sanchez was not available to testify
at that trial. Rather, the petitioner argues that ‘‘the ques-
tion should [not be] whether the evidence is newly
discovered but whether [the petitioner] is actually inno-
cent of the crime for which he stands convicted.’’6 We
reject the petitioner’s argument because it is flatly con-
tradictory to our binding precedent.
This court has held repeatedly that an actual inno-
cence claim must be based on newly discovered evi-
dence. See, e.g., Outing v. Commissioner of Correction,
190 Conn. App. 510, 540, 211 A.3d 1053, cert. denied,
333 Conn. 903, 214 A.3d 382 (2019), cert. denied sub
nom. Outing v. Cardona, U.S. , 140 S. Ct. 1166,
206 L. Ed. 2d 212 (2020); Weinberg v. Commissioner
of Correction, 112 Conn. App. 100, 118–19, 962 A.2d
155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009);
Williams v. Commissioner of Correction, 41 Conn.
App. 515, 523–29, 677 A.2d 1 (1996), appeal dismissed,
240 Conn. 547, 692 A.2d 1231 (1997); Thompson v. Com-
missioner of Correction, Superior Court, judicial dis-
trict of Tolland, Docket No. CV-XX-XXXXXXX (August 4,
2014) (reprinted at 172 Conn. App. 141, 157–58, 158
A.3d 815), appeal dismissed, 172 Conn. App. 139, 158
A.3d 814, cert. denied, 325 Conn. 927, 169 A.3d 232(2017). ‘‘[I]t is axiomatic that one panel of this court
cannot overrule the precedent established by a previous
panel’s holding.’’ Connelly v. Commissioner of Correc-
tion, 149 Conn. App. 808, 815, 89 A.3d 468 (2014); see
also State v. Houghtaling, 326 Conn. 330, 343, 163 A.3d
563 (2017) (‘‘Appellate Court panel appropriately con-
sidered itself bound by its own precedent’’), cert.
denied, U.S. , 138 S. Ct. 1593, 200 L. Ed. 2d
776 (2018). Because this court is bound to follow the
precedent from other panels of this court, the petition-
er’s claim that newly discovered evidence should not
be required to establish a claim of actual innocence
must be rejected.7 Consequently, because the petitioner
failed to present any newly discovered evidence in sup-
port of his actual innocence claim, the habeas court
properly rendered judgment in favor of the respondent
on count one of the habeas petition.
B
Furthermore, even if there was no newly discovered
evidence requirement, we agree with the habeas court’s
conclusion that the petitioner’s claim fails because the
supporting evidence he presented did not constitute
clear and convincing affirmative evidence of his actual
innocence. See, e.g., Jackson v. Commissioner of Cor-
rection, supra, 149 Conn. App. 706 (‘‘the clear and con-
vincing burden . . . requires the petitioner to demon-
strate actual innocence through affirmative evidence
that the petitioner did not commit the crime’’ (internal
quotation marks omitted)).
On appeal, the petitioner argues that Sanchez’ testi-
mony and the alleged discrepancies in the surveillance
videos undermine the credibility of the victim’s testi-
mony, leaving the petitioner’s alibi testimony as the
only credible evidence as to whether he was involved
in any kidnapping and sexual assault of the victim. In
further support of his claim, the petitioner points to
several inconsistencies in the evidence regarding the
victim’s recounting of events. Specifically, he points to
the testimony of the motorist that the victim had said
she was thrown out of a truck and, by contrast, to the
testimony of one of the responding police officers that
the victim said she had been pushed out of a Nissan
Maxima. The petitioner also relies on the fact that the
victim informed the police officers that she had been
sexually assaulted outside the car on the pavement,
whereas she later reported and testified that the assault
took place in the backseat of the car. The petitioner
then points to the testimony of a police officer that it
had been raining on the day of the assault and that he
did not recall seeing any mud on the victim. On the
basis of these inconsistencies, the petitioner argues:
‘‘As . . . Enns testified, the purpose of the surveillance
video was to provide independent corroboration for the
[victim’s] allegations. . . . [The victim’s] credibility at
the [first] criminal trial was already severely impeached,
the jury [having been] unable to reach a verdict of guilty.
The surveillance video and corresponding identification
of the [victim] by . . . Enns bolstered the [victim’s]
testimony, providing extrinsic support of veracity.’’
(Citation omitted.) Without such corroboration, the
petitioner asserts, the respondent cannot surmount the
inconsistencies within the victim’s testimony. Thus,
‘‘[w]hen the evidence presented at the criminal trial is
coupled with . . . Sanchez’ testimony at the habeas
trial, this evidence is sufficient to ‘induce in the mind
of the trier a reasonable belief’ that [the petitioner] is
actually innocent.’’ We are not persuaded.
Initially, we agree with the habeas court that the
evidence adduced at the habeas trial did not undermine
the reliability of the video depicting the exterior of
Victoria’s Market. Although Sanchez initially testified
that there was no camera located outside of Victoria’s
Market, after viewing the actual video in question, he
clarified that there was a camera mounted inside Victo-
ria’s Market that looked out to the parking lot and that
the images on the video of the exterior depicted what
one would see from that camera in 2009. Further, as
determined by the habeas court, the activities captured
by both surveillance videos depict a consistent ‘‘chrono-
logical flow: the car arrives (outside view 02:16:17); the
individual exits the car and begins walking to the store
(outside view 02:16:27); the entrance door opens and
the individual enters the store (inside view 02:16:41);
the individual exits the store (inside view 02:16:55); the
individual passes in front of the camera and goes to
the waiting vehicle (outside view 02:17:05); and the
vehicle leaves the parking lot (outside view 02:17:33).’’
There are no apparent inconsistencies between the
two videos.
Moreover, even if we assume, arguendo, that the evi-
dence introduced at the habeas trial did call into ques-
tion the reliability of the videos, undermining one piece
of evidence against the petitioner does not constitute
‘‘affirmative evidence’’ that he is actually innocent. See
Gould v. Commissioner of Correction, supra, 301 Conn.
561. To prove an actual innocence claim, ‘‘petitioners
must affirmatively demonstrate that they are in fact
innocent’’ by establishing, through clear and convincing
evidence, that they did not commit the crime, a third
party committed the crime, or no crime occurred.
(Emphasis omitted.) Id. This burden is not met by sim-
ply ‘‘[d]iscrediting the evidence on which the conviction
rested . . . .’’ Id., 567; see also Myers v. Commissioner
of Correction, supra, 215 Conn. App. 616–17.
The evidence produced at the petitioner’s habeas trial
did not unquestionably establish the petitioner’s inno-
cence but was offered merely to attempt to discredit a
portion of the state’s evidence at the underlying criminal
trial. Thus, the petitioner did not satisfy the clear and
convincing standard. Undermining the credibility of the
victim’s testimony by questioning the reliability of the
surveillance video would not negate the other ample
evidence of the petitioner’s guilt that was admitted at
his criminal trial, which included evidence that the peti-
tioner’s DNA was found in the victim, evidence that
tire marks at the crime scene matched the petitioner’s
vehicle, cell phone location data placing him near the
scene at the relevant time, and evidence that the peti-
tioner was found in the same location several days later
with another sex worker in a car matching the vehicle
described by the victim. At most, undermining the credi-
bility of the victim’s testimony could have raised a rea-
sonable doubt in the minds of the jury. That, however, is
not enough to satisfy the clear and convincing standard
under Gould and Miller. See Gould v. Commissioner
of Correction, supra, 301 Conn. 560–61 (‘‘Actual inno-
cence is not demonstrated merely by showing that there
was insufficient evidence to prove guilt beyond a rea-
sonable doubt. . . . Rather, actual innocence is dem-
onstrated by affirmative proof that the petitioner did
not commit the crime.’’ (Citations omitted.)); Miller v.
Commissioner of Correction, supra, 242 Conn. 795(‘‘the clear and convincing evidence standard . . . for-
bids relief whenever the evidence is loose, equivocal
or contradictory’’ (emphasis added; internal quotation
marks omitted)).
Accordingly, for the foregoing reasons, we conclude
that the habeas court did not err in rejecting the petition-
er’s actual innocence claim.
II
The petitioner next claims that the habeas court
improperly concluded that he failed to prove that his
standby counsel, Romano, had provided ineffective
assistance. In particular, the petitioner argues, ‘‘the
actions of standby counsel . . . served to distort and
blur the lines [between retained or assigned] counsel
and standby counsel, and the result was that the peti-
tioner was placed in a position where it was impossible
for him to discern what was within and what was
beyond the scope of that relationship.’’ (Internal quota-
tion marks omitted.) He argues that, as a result of
Romano’s overreach in his role as standby counsel to
that of acting as retained or assigned counsel, Romano
had a duty to inform the petitioner of a potential legal
claim under State v. Lenarz, 301 Conn. 417, 22 A.3d
536 (2011), cert. denied, 565 U.S. 1156, 132 S. Ct. 1095,
181 L. Ed. 2d 977 (2012),8 which arose from the intercep-
tion of the petitioner’s prison correspondence prior to
the petitioner’s first criminal trial. The respondent
argues that, ‘‘by knowingly and intelligently waiving
his sixth amendment right to counsel and electing to
represent himself, the petitioner no longer had a right to
effective representation of any kind and cannot obtain
habeas relief based on a claim that standby counsel
rendered deficient performance.’’ We agree with the
respondent.
A sixth amendment claim of ineffective assistance of
counsel is necessarily premised on the fact that the
petitioner was represented by counsel. In addition to
the right to effective assistance of counsel, the sixth
amendment also embodies a right to self-representa-
tion. See Faretta v. California, 422 U.S. 806, 819, 95 S.
Ct. 2525, 45 L. Ed. 2d 562 (1975). Notably, ‘‘[t]he right
to counsel and the right to self-representation present
mutually exclusive alternatives. A criminal defendant
has a constitutionally protected interest in each, but
since the two rights cannot be exercised simultane-
ously, a defendant must choose between them.’’ (Inter-
nal quotation marks omitted.) State v. Connor, 292
Conn. 483, 508, 973 A.2d 627 (2009). Therefore, when
a defendant voluntarily and intelligently exercises his
right to self-representation, he waives his sixth amend-
ment right to counsel. See id. A defendant has a right
to either represent himself or to be represented by
counsel, but he does not have any right, under the
federal or Connecticut constitutions, to hybrid repre-
sentation. See, e.g., State v. Gethers, 197 Conn. 369,
384–87, 497 A.2d 408 (1985).
Pursuant to Practice Book § 44-4,9 the court has dis-
cretion to appoint standby counsel for self-represented
defendants in criminal matters. Although a court may
appoint standby counsel, ‘‘a defendant does not have a
state or federal constitutional right to standby counsel.’’
State v. Oliphant, supra, 47 Conn. App. 281. ‘‘Absent
a constitutional right to standby counsel, a defendant
generally cannot prove standby counsel was ineffec-
tive.’’ United States v. Schmidt, 105 F.3d 82, 90 (2d
Cir.), cert. denied, 522 U.S. 846, 118 S. Ct. 130, 139
L. Ed. 2d 80 (1997). It follows that a self-represented
petitioner has no grounds on which to claim ineffective
assistance of standby counsel ‘‘because after deciding
to proceed pro se, he [has] no constitutional right to
the effective assistance of counsel in any capacity.’’
State v. Oliphant, supra, 281; see also State v. Kenney,
53 Conn. App. 305, 327, 730 A.2d 119 (having chosen
to represent himself, ‘‘defendant is the master of his
fate and cannot . . . complain that he was denied the
effective assistance of counsel’’), cert. denied, 249
Conn. 930, 733 A.2d 851 (1999).
As this court noted in Oliphant, the United States
Supreme Court has recognized an exception to this rule
that allows a petitioner to assert a sixth amendment
claim when standby counsel’s actions interfered with
the petitioner’s right of self-representation, including
his right to make tactical decisions and to maintain the
appearance before the jury of one who is defending
himself. See State v. Oliphant, supra, 47 Conn. App.
281, citing McKaskle v. Wiggins, 465 U.S. 168, 177–79,
104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). In the present
case, the petitioner does not claim that Romano, as
standby counsel, did too much and, hence, interfered
with his right of self-representation. Instead, he claims
that Romano did too little after giving the petitioner the
impression that he would provide legal advice typically
provided by retained or appointed counsel. We are not
persuaded.
The following additional facts are relevant to our
review of this claim. Following the mistrial of the peti-
tioner’s first criminal trial, Romano was appointed to
represent the petitioner. On September 7, 2012, the peti-
tioner informed the court that he wanted to discharge
Romano and represent himself. That same day, due to
the petitioner’s disruptive behavior, the court, Alexan-
der, J., ordered a competency evaluation pursuant to
General Statutes § 54-56d.10 On the basis of the petition-
er’s evaluation, the court, Dewey, J., found him compe-
tent on October 23, 2012. The court, Dewey, J., there-
after canvassed the petitioner to ensure that he was
knowingly and voluntarily waiving his right to counsel
and advised him of the risks associated with self-repre-
sentation. The petitioner stated that he understood the
risks and still wanted to represent himself. The court
then granted the petitioner’s request, ordered Romano
to act as standby counsel, and explained to the peti-
tioner standby counsel’s limited role.11 The petitioner
went on to represent himself at multiple hearings, filed
and argued numerous motions and, on several occa-
sions, reaffirmed his desire to continue to represent
himself.
On June 4, 2013, the parties appeared in court for
jury selection for the petitioner’s retrial. During that
day’s proceedings, the petitioner refused to participate
in jury selection. Because the petitioner had twice
attempted to leave the courtroom and had acted in a
belligerent fashion toward the court, the court ordered
the petitioner removed from the courtroom. Despite
the petitioner’s statement that he did not want ‘‘Romano
to be on my case, I don’t want him as a standby,’’ the
court ordered Romano to act as full counsel to proceed
with jury selection.12 Romano conducted voir dire in
the petitioner’s absence for the remainder of the day.
The following day, June 5, 2013, the petitioner returned
to the courtroom and renewed his request to represent
himself. Romano thereafter resumed his role as standby
counsel, and the petitioner represented himself for the
remainder of jury selection. The petitioner then fell ill
and the matter was suspended.13 On January 24, 2014,
the petitioner entered a guilty plea pursuant to the
Alford doctrine to one count of kidnapping in the sec-
ond degree. The petitioner represented himself at the
plea hearing with Romano acting as standby counsel.
At the habeas trial, Romano testified that he had
assisted the petitioner as standby counsel by researching
law, drafting and filing motions, and finding addresses
and contact information for potential witnesses, as well
as being the petitioner’s means of interacting with
experts and investigators. Romano also recalled dis-
cussing with the petitioner cell phone records, tire mark
evidence, experts, the Victoria’s Market surveillance
videos, and how to authenticate records.
Romano further testified that he explained to the
petitioner his limitations in acting as standby counsel
‘‘in terms of what [he] could do with respect to [the
petitioner’s] requests.’’ Romano testified, however, that
he viewed it as his duty to apprise the petitioner of a
potential issue or legal claim if one became apparent
to him, even if it had not been raised by the petitioner.
For example, Romano discussed immigration and
deportation issues with the petitioner that could result
from his conviction.
On cross-examination, Romano reiterated that, as
standby counsel, he answered whatever questions the
petitioner raised or asked him, tried to help engage
experts, and approached the prosecutor at the petition-
er’s request to resolve the case via a plea agreement.
Romano provided the petitioner with all of the discov-
ery he received but complied with any court instruc-
tions that limited specific information (e.g., the redac-
tion of the victim’s name). After his role as standby
counsel ceased, Romano refused to answer questions
posed by the petitioner when the petitioner contacted
his office seeking materials, case law or other items of
interest. Romano informed the petitioner that he could
provide him with names of attorneys the petitioner
could consult for further legal advice. Nevertheless,
Romano did assist the petitioner to some degree after
the plea and sentencing by gathering parts of his file
and some evidence.
At the habeas trial, the petitioner testified that his
relationship with Romano ‘‘was respectful, but as far
as helping [him] to pursue what [he] wanted to pursue
. . . [Romano] wasn’t helpful.’’ The petitioner testified
that, from the beginning, he had concerns about
Romano’s involvement in his case because Romano’s
reputation was not ‘‘good’’ among the petitioner’s fellow
inmates. The petitioner further testified that, initially,
there was some confusion as to Romano’s status as
standby counsel, stemming from the fact that he had
objected to Romano’s being appointed as standby coun-
sel, ‘‘but after considering how much work and . . .
how [he was] going to go about doing stuff, [he] realized
having someone, even though [he] may not like . . .
even though [he] may disagree with this person . . .
is better than having no one at all.’’
The petitioner recalled that his issues with his prior
attorneys related to the fact that they did not seem
‘‘interested in’’ obtaining certain records that he
believed would demonstrate his innocence. Similarly,
in relation to Romano’s actions as standby counsel, the
petitioner testified that ‘‘there were several things [he
had] asked . . . Romano to do in the course of . . .
being [his] standby counsel. And, again, they weren’t
done.’’ In particular, the petitioner testified that he had
asked Romano to send an investigator to Victoria’s Mar-
ket to take photographs of the building to demonstrate
that there were no surveillance cameras in the parking
lot but that Romano had not done so. The petitioner
further testified that, although he discussed the plea
with Romano, he discussed neither potential legal
claims on appeal or on habeas, nor the elements of
kidnapping with Romano.
In addition, the petitioner testified about a letter inter-
cepted by the Department of Correction in November,
2010, prior to the first criminal trial. According to the
petitioner, he was attempting to contact attorneys who
might represent him. The letter detailed the procedural
history and facts related to the petitioner’s then pending
charges and asked for assistance in his case. The
intended recipient was ‘‘Mr. Michael Banks’’ in Philadel-
phia, Pennsylvania. Although the petitioner signed the
letter with his own name, the return address on the
envelope in which the letter was enclosed was ‘‘William
Patterson, #259062, Walker C.I., 1153 East Street, South,
Suffield, CT 06080.’’
At the habeas trial, Enns explained that, as part of
the criminal investigation, Farmington police made a
request to the Department of Correction, pursuant to
established procedures, to review the correspondence
the petitioner had sent while incarcerated. Enns noted
that there is a procedure through which the petitioner
could send legal correspondence while incarcerated,
that the petitioner was made aware of the procedure,
and that, if the petitioner had followed that procedure,
any legal correspondence would not have been inter-
cepted or reviewed by the Department of Correction.
On cross-examination, the petitioner acknowledged
sending letters in violation of Department of Correction
regulations regarding legal correspondence.
As a result of the mail review, the Department of
Correction provided the intercepted letter to the police
and, consequently, to the state’s attorney. The letter
and a police report generated regarding the letter were
submitted as evidence at the habeas trial. The report
provided to the state’s attorney reads: ‘‘This fax
included a copy of an envelope addressed to Mr.
Michael Banks with a return name of William Patterson
#259062, and a letter written by [the petitioner]. In this
letter he admits to using a [‘friend’s’] information to
send this letter, because his mail is monitored and held.
He is requesting assistance from Banks law firm,
[denies] being involved in the sexual assaults, and
details his case.’’
The letter was contained in the discovery materials
given to Romano when he was acting as standby counsel
for the petitioner. At the habeas trial, Romano testified
that he did not independently recall receiving in hand
the state’s discovery materials or providing them to the
petitioner but, after reviewing his records, concluded
that he had done so. Romano testified that, because
the role of standby counsel is limited, when acting as
standby counsel, he does not review discovery materi-
als unless a defendant were to request that he do so.
Therefore, Romano had no specific recollection of
reviewing the discovery materials he provided to the
petitioner and could not recall the letter or issues per-
taining to the Department of Correction’s interception
of the letter.
On appeal, the petitioner claims that, because Romano
took on more responsibility than that required of
standby counsel, Romano ‘‘derivatively had a duty to
inform the petitioner of potential legal issues arising
from the petitioner’s intercepted prison correspon-
dence.’’ The petitioner claims that, by failing to inform
the petitioner of those potential legal issues, Romano
‘‘rendered deficient performance.’’ In support of this
argument, the petitioner points to Romano’s testimony
that he thought he may have given the petitioner guid-
ance about matters that were ‘‘outside of the confines
of issues [the petitioner] strictly brought’’ to him as
requests for assistance, as well as Romano’s statement
that he believed it would be his ‘‘duty to inform [the
petitioner] about a potential [legal issue]’’ outside of
what the petitioner had discussed with him. The peti-
tioner’s claim is without merit.
The petitioner voluntarily and intelligently exercised
his right to self-representation, waiving his sixth amend-
ment right to counsel. Accordingly, the petitioner had
no constitutional right to the effective assistance of
counsel in any capacity. See, e.g., State v. Wang, 312
Conn. 222, 262–63 n.37, 92 A.3d 220 (2014); State v.
Oliphant, supra, 47 Conn. App. 281; see also State v.
Kenney, supra, 53 Conn. App. 327.
The petitioner cites no legal authority supporting this
claim, nor does he identify a legal source of the ‘‘duty’’
that standby counsel allegedly had to inform the peti-
tioner of all potential motions. No such duty is set forth
in Practice Book § 44-5, which provides: ‘‘If requested
to do so by the defendant, the standby counsel shall
advise the defendant as to legal and procedural matters.
If there is no objection by the defendant, such counsel
may also call the judicial authority’s attention to matters
favorable to the defendant. Such counsel shall not inter-
fere with the defendant’s presentation of the case and
may give advice only upon request.’’ (Emphasis added.)
Although the petitioner has not pointed us to any
authority for his ineffective assistance of counsel claim
against Romano, we find the decision of the United
States Court of Appeals for the Second Circuit in United
States v. Schmidt, supra, 105 F.3d 82, instructive. In
Schmidt, the self-represented defendant claimed that
her standby counsel’s representation at her criminal
trial ‘‘was so deficient and prejudicial to her that it
constituted ineffective assistance of counsel. Specifi-
cally, she criticize[d] his failure to call witnesses and
present documentary evidence in support of her dimin-
ished capacity defense.’’ Id., 89. In addressing the defen-
dant’s claim, the court first noted that the defendant
had exercised her sixth amendment right to represent
herself, that there is no constitutional right to hybrid
representation and that standby counsel’s duties ‘‘are
considerably more limited than the obligations of
retained or appointed counsel.’’ Id., 90. Nevertheless,
the court posited: ‘‘Perhaps in a case where standby
counsel held that title in name only and, in fact, acted
as the defendant’s lawyer throughout the proceedings,
we would consider a claim of ineffective assistance
of standby counsel.’’ Id. It then considered the tasks
standby counsel performed during the defendant’s crim-
inal trial and concluded that such a line had not been
crossed. Id., 90–91. In particular, the court noted that,
during the trial, standby counsel had examined and
cross-examined witnesses and delivered the closing
argument. Id., 90. The court further noted that,
‘‘[a]lthough [standby counsel’s] role expanded as the
case continued, he did not play the same role that
defense counsel normally would in preparing the strat-
egy for a criminal defense.’’ Id. Consequently, the court
concluded that, ‘‘[b]ecause [the defendant] proceeded
pro se, she may not now assign blame for her conviction
to standby counsel.’’ Id.In the present case, the evidence reflects that
Romano had a much more limited role than did standby
counsel in Schmidt. He neither examined witnesses
nor argued before the jury. Aside from a motion for
disclosure pursuant to the petitioner’s request that
Romano contact a DNA expert, Romano did not argue
any motions before the court. Romano testified that he
mostly responded to requests from the petitioner, as is
typical of standby counsel. The fact that Romano may
have, on occasion, offered unsolicited advice does not
mean that he undertook to represent the petitioner as
retained or appointed counsel or somehow changed the
petitioner’s status from self-represented to represented
by counsel. Further, the only instance in which Romano
assumed the role of ‘‘full’’ counsel was when the court
ordered the petitioner removed from jury selection on
June 4, 2013, and Romano conducted voir dire of poten-
tial jurors until the petitioner resumed representing
himself.14 This interruption in self-representation lasted
just one day before the petitioner, representing himself,
continued with voir dire on June 5, 2013. Significantly,
before jury selection resumed on June 5, 2013, the court
specifically reaffirmed that Romano’s role was that of
standby counsel only.15
In addition, nothing in the record indicates that the
petitioner was confused about the role of standby coun-
sel. The court explained to the petitioner the limited
role of standby counsel when it granted his motion
to represent himself. Thereafter, the petitioner never
expressed to the court any uncertainty about Romano’s
role. In addition, the petitioner presented no evidence
to the habeas court that he relied on Romano to provide
unsolicited legal advice or to identify legal issues and
bring them to the petitioner’s attention.
As was true in Schmidt, Romano did not play the
same role that defense counsel normally would play.
Romano’s actions readily fell into the category of
‘‘assist[ing] the pro se defendant in overcoming routine
procedural . . . obstacles to the completion of some
specific task . . . that the defendant has clearly shown
that he wishes to complete.’’ McKaskle v. Wiggins,
supra, 465 U.S. 183. In fact, despite whatever assistance
Romano provided to him, the petitioner unmistakably
was representing himself through the conclusion of his
criminal matter. As was true of the defendant in
Schmidt, the petitioner in the present case repeatedly
affirmed to the court that he was representing himself.
‘‘Having chosen to represent [himself, the petitioner]
may not now be heard to complain that [his] own short-
comings spell out some sort of constitutional depriva-
tion.’’ United States v. Schmidt, supra, 105 F.3d 90; see
also United States v. Archambault, 740 Fed. Appx. 195,
199 (2d Cir. 2018) (defendant who made opening and
closing arguments to jury and examined witnesses
could not assert claim of ineffective assistance as to
standby counsel); United States v. Morrison, 153 F.3d
34, 55 (2d Cir. 1998) (defendant’s ineffective assistance
of standby counsel claim failed because defendant
‘‘retained control of his own defense throughout the
proceedings’’); People v. Kevorkian, 248 Mich. App. 373,
426, 639 N.W.2d 291 (2001) (ineffective assistance of
standby counsel claim failed because standby counsel
‘‘did nothing to interfere with [the] defendant’s right to
control the case or to alter the jury’s perception that
[the] defendant was representing himself’’), appeal
denied, 465 Mich. 973, 642 N.W.2d 681, cert. denied,
537 U.S. 881, 123 S. Ct. 90, 154 L. Ed. 2d 137 (2002).
Consequently, Romano was standby counsel in reality,
as well as in name, and the habeas court properly denied
the petitioner’s claim of ineffective assistance of coun-
sel in count six of his amended petition.
III
The petitioner last claims that the court improperly
dismissed count two of his habeas petition pursuant to
Practice Book § 23-29 (2) and (5)16 because ‘‘[this] claim
[goes] to the knowing and voluntary nature of the plea,
[and is] thus not waived by [the petitioner’s] Alford plea
and would provide a basis for relief.’’ The respondent
disagrees, arguing that the habeas court correctly held
that the petitioner’s due process claim in count two of
the habeas petition related solely to a pretrial constitu-
tional defect and, therefore, was waived by the petition-
er’s guilty plea. We agree with the respondent.
‘‘The standard of review of a motion to dismiss is
. . . well established. In ruling upon whether a [habeas
petition] survives a motion to dismiss, a court must
take the facts to be those alleged in the [petition],
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader. . . . The conclusions reached by the
[habeas] court in its decision to dismiss the habeas
petition are matters of law, subject to plenary review.
. . . Thus, [w]here the legal conclusions of the court
are challenged, we must determine whether they are
legally and logically correct . . . and whether they find
support in the facts in the record. . . .
‘‘It is well settled that [t]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil
action. . . . The principle that a plaintiff may rely only
upon what he has alleged is basic. . . . It is fundamen-
tal in our law that the right of a plaintiff to recover is
limited to the allegations of his complaint.’’ (Internal
quotation marks omitted.) Zollo v. Commissioner of
Correction, 133 Conn. App. 266, 276–77, 35 A.3d 337,
cert. granted, 304 Conn. 910, 39 A.3d 1120 (2012) (appeal
dismissed May 1, 2013). ‘‘Thus, as it would do in evaluat-
ing the allegations in a civil complaint, in evaluating
the legal sufficiency of allegations in a habeas petition,
a court must view the allegations in the light most
favorable to the petitioner, which includes all facts nec-
essarily implied from the allegations.’’ Finney v. Com-
missioner of Correction, 207 Conn. App. 133, 142, 261
A.3d 778, cert. denied, 339 Conn. 915, 262 A.3d 134(2021).
‘‘As a general rule, an unconditional plea of guilty
or nolo contendere, intelligently and voluntarily made,
operates as a waiver of all nonjurisdictional defects and
bars the later assertion of constitutional challenges to
pretrial proceedings. . . . Therefore, only those issues
fully disclosed in the record which relate either to the
exercise of jurisdiction by the court or to the voluntary
and intelligent nature of the plea are ordinarily appeal-
able after a plea of guilty or nolo contendere.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) State v. Christensen, 157 Conn. App. 290,
295–96, 115 A.3d 1138 (2015); see also Tollett v. Hender-
son, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d
235 (1973) (‘‘[w]hen a criminal defendant has solemnly
admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter
raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of
the guilty plea’’). Thus, to obtain review of a nonjurisdic-
tional claim, a petitioner must demonstrate that there
is ‘‘such an interrelationship’’ between the claimed error
‘‘and the plea that it can be said [that] the plea was not
voluntary and intelligent because of’’ the error. Dukes
v. Warden, 161 Conn. 337, 344, 288 A.2d 58 (1971), aff’d,
406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45 (1972); see
also Mincewicz v. Commissioner of Correction, 162
Conn. App. 109, 116, 129 A.3d 791 (2015).
On appeal, the petitioner claims that count two of
his petition, if properly construed and read in the light
most favorable to him, stated a claim for habeas relief
because it challenged the knowing and voluntary nature
of his guilty plea and, therefore, should not have been
dismissed prior to a habeas trial or proceedings at which
the petitioner would have had some opportunity to pres-
ent evidence potentially linking his allegations with
whether his decision to enter a guilty plea was know-
ingly and voluntarily made. Specifically, the petitioner
argues that ‘‘[a] fair reading of [his] petition and coun-
sel’s arguments clearly indicate that [the petitioner] is
challenging the knowing and voluntary nature of his
plea [because] . . . had the state not learned of his
defense strategy, [the petitioner] would not have
plead[ed] guilty but, instead, would have proceeded
to trial.’’ To resolve this claim we must examine the
allegations in count two of the habeas petition to deter-
mine if they properly challenged the knowing and volun-
tary nature of the petitioner’s guilty plea, thus stating
a cognizable claim for habeas relief.
In count two of the petition, the petitioner alleged
that his ‘‘constitutional right to due process and the
assistance of counsel [were] violated by the state’s inter-
ception and possession of documents outlining the peti-
tioner’s defense strategy.’’ Notably, the allegations did
not specify how the interception of these documents
resulted in a violation of the petitioner’s rights to due
process and the assistance of counsel. Nevertheless, a
plain reading of the petitioner’s allegations in count two,
in the context of his entire second revised, amended
petition, leads us to conclude that they are properly
understood as asserting only a claim that, due to
standby counsel’s ineffective assistance, the petitioner
lost the opportunity to have the charges against him
dismissed based on State v. Lenarz, supra, 301 Conn.
419.17 After setting forth the allegations regarding the
interception of his correspondence, the petitioner
alleged: ‘‘No attorney ever placed on the record the fact
that the petitioner’s privileged and confidential defense
strategy had been intercepted by the prosecuting
authority.’’ The petitioner then concluded count two by
alleging: ‘‘No motion to dismiss or other challenge to
the violation of the petitioner’s right to counsel was
raised before the petitioner’s guilty plea.’’ Thus, the
petitioner’s complaint was not that his guilty plea was
involuntary and unknowing but that the charges against
him should have been dismissed.
Further, count two did not contain any allegations
relating to the knowing and voluntary nature of the
petitioner’s guilty plea. The petitioner’s allegations in
count two stand in stark contrast to his allegations in
count four, in which he specifically alleged that his
guilty plea ‘‘was not made knowingly, intelligently, and
voluntarily’’ because he had not been informed that sex
offender treatment would be required as a result of his
plea. Clearly, the petitioner and his counsel understood
how to assert a claim that his guilty plea was not know-
ing and voluntary. They did so in count four but failed
to do so in count two.
The first time the petitioner specifically argued that
his guilty plea was not knowing or voluntary was in his
memorandum of law in opposition to the respondent’s
motion to dismiss, in which the petitioner argued:
‘‘Because each alleged violation included in the amended
petition is a reflection of the alleged corruption of the
judicial process that induced the petitioner to enter an
unintelligent and involuntary plea, none of these claims
are waived by the petitioner’s guilty plea that was
induced by those errors. . . . Where a criminal defen-
dant believes that it will be impossible to proceed to
trial because the prosecuting authority is in possession
of his entire defense strategy, a guilty plea under those
circumstances can hardly be knowing, intelligent, and
voluntary.’’
Our Supreme Court, however, has held that ‘‘a memo-
randum of law is not a proper vehicle for supplementing
the factual allegations in a complaint . . . and we do
not believe that a different rule should pertain to habeas
petitions.’’ (Citations omitted.) Nelson v. Commis-
sioner of Correction, 326 Conn. 772, 781–82, 167 A.3d
952 (2017). Therefore, we do not consider the petition-
er’s memorandum of law in opposition to the motion to
dismiss in determining whether count two sufficiently
challenged the knowing and voluntary nature of the
petitioner’s guilty plea.
Moreover, at no point in the proceedings did the
petitioner amend his petition to allege that his guilty
plea had been made unknowingly or involuntarily due
to the interception of his legal correspondence. Thus,
as the respondent’s counsel stated at the hearing on
the motion to dismiss, ‘‘although the petitioner . . .
made a number of allegations about how his will was
overborne and he finally gave in . . . and [pleaded]
guilty . . . [the petitioner has] raised seven counts and
not a single one . . . allege[s] that his plea was not
knowing and voluntarily entered.’’18
The petitioner tries to overcome this omission as it
relates to count two by relying on Finney v. Commis-
sioner of Correction, supra, 207 Conn. App. 133. In
Finney, this court addressed the issue of ‘‘whether [a]
petition should be dismissed for failing to state a claim
upon which habeas relief can be granted because the
petitioner’s guilty plea waived collateral attacks on his
conviction that do not go to the voluntary, knowing
and intelligent nature of the plea, and [the] petition
[failed] to make such a claim . . . .’’ (Internal quotation
marks omitted.) Id., 139.
In Finney, the self-represented petitioner filed a peti-
tion for a writ of habeas corpus, alleging that he had
been improperly convicted because his trial counsel
had provided him with constitutionally ineffective assis-
tance. Id., 136–37. By way of relief, the petitioner sought
to have the court allow him to withdraw his guilty
plea. Id., 137. Ultimately, this court determined that,
‘‘although . . . the petition [failed] to connect
expressly the asserted allegations of ineffective assis-
tance of counsel directly to whether the petitioner’s
decision to enter a guilty plea was knowing and volun-
tary . . . it [was] reasonable to infer such an interrela-
tionship from the allegations.’’19 Id., 144. ‘‘Although ulti-
mately it may prove that the petitioner is unable to
produce evidence to support his allegations of ineffec-
tive assistance or to demonstrate any causal connection
linking those allegations with his decision to enter a
guilty plea, such speculation cannot support the grant-
ing of a motion to dismiss.’’ Id.
This court in Finney explained that ‘‘[t]he allegations
of ineffective assistance of counsel . . . reasonably
[could] be construed as asserting—not expressly, but
by implication—that the petitioner’s decision to plead
guilty was not knowingly made because his trial counsel
had failed to investigate his case properly, to review
the evidence against him or to consider whether a viable
trial strategy existed. In other words, the allegations,
read in the light most favorable to the petitioner as is
required at the pleading stage, suggest that counsel
failed to prepare the case adequately so that the peti-
tioner could have sufficient knowledge of the strength
of the case and could make an informed decision as
to whether to plead guilty. If proven, the petitioner
could be permitted to withdraw the guilty plea, which
is the only relief requested in the petition. In short, read
in the context of the petition as a whole, including the
relief requested, we conclude that the petitioner has
raised allegations that implicitly challenge whether he
knowingly and voluntarily entered a guilty plea, which
states a cognizable claim for habeas relief. Accordingly,
the habeas court improperly granted its own motion to
dismiss.’’ (Emphasis added; footnote omitted.) Id., 146–
47.
As in Finney, the petitioner in the present case
framed count two of his petition as a sixth amendment
ineffective assistance of counsel claim. Nevertheless,
we conclude that, unlike in Finney, the allegations in
count two of the habeas petition did not sufficiently
demonstrate an interrelationship between the ineffec-
tive assistance of counsel and the petitioner’s guilty
plea such that it can be said that the plea was not made
knowingly and voluntarily. See id., 143; Mincewicz v.
Commissioner of Correction, supra, 162 Conn. App.
116.
First, as discussed in part II of this opinion, the peti-
tioner represented himself. Accordingly, because there
was no counsel representing the petitioner, there can
be no ineffective assistance of counsel. Thus, the allega-
tions of ineffective assistance of counsel in count two
cannot demonstrate such an interrelationship between
the nonexistent ineffective assistance of counsel and
the guilty plea such that it can be said that the plea
was not made knowingly and voluntarily. In addition,
as previously noted, unlike in Finney, count two of the
petitioner’s second revised, amended petition, drafted
by counsel, cannot reasonably be read as setting forth
a claim that his guilty plea was not made knowingly
and voluntarily.20
We also find it significant that the petitioner’s appel-
late brief blends the arguments relating to his claim of
ineffective assistance of standby counsel with his claim
that count two was improperly dismissed: ‘‘[W]hile
standby counsel did not have a duty to pursue a motion
to dismiss based upon the interception of the petition-
er’s legal mail, he did have a duty, within the role that
he created during the representation, to inform the peti-
tioner about the significance of the issue. This was
necessary in order for the petitioner to consider pursu-
ing the issue through a motion, and it was necessary
for the petitioner to understand the implications of
his guilty plea.’’ (Emphasis added; internal quotation
marks omitted.) Perhaps more strikingly, the petitioner
argues on appeal that, ‘‘[h]ad [he] been advised by . . .
Romano that a motion in accordance with Lenarz could
be filed and that prejudice could be presumed, resulting
in the dismissal of the charges against him, as [the
petitioner] testified, he would have filed such a motion.
. . . Absent a showing that [the petitioner] knew of
his right to pursue a motion to dismiss on this ground,
and subsequently declined to proceed with its filing,
it cannot be said that his plea was truly knowing and
voluntary.’’ (Citation omitted; emphasis added.)
It is well settled, however, that a plea is made know-
ingly, voluntarily, and intelligently regardless of
whether the defendant was made aware of every possi-
ble motion he would be waiving as a result thereof.
See, e.g., State v. Johnson, 253 Conn. 1, 42, 751 A.2d
298 (2000) (‘‘[i]t is . . . not necessary for the trial court
to canvass the defendant to determine that [he] under-
stands that [his] plea of guilty or nolo contendere oper-
ates as a waiver of any challenge to pretrial proceed-
ings’’ (internal quotation marks omitted)); State v.
Gilnite, 202 Conn. 369, 383, 521 A.2d 547 (1987) (‘‘[t]here
is no requirement . . . that the defendant be advised
of every possible consequence of such a plea’’). Further-
more, not knowing which motions he was able to file
is exactly the kind of risk the petitioner knowingly and
willingly assumed when he chose to represent himself.
In fact, the trial court specifically advised him of this
very risk by informing the petitioner during its canvass
that there ‘‘are legal consequences if you don’t file the
right motions at the right time . . . .’’
More to the point, as acknowledged in count two
of his petition, the petitioner was fully aware of the
intercepted legal mail prior to pleading guilty. In fact,
he stated at his plea proceeding and sentencing hearing
that, ‘‘[f]rom the inception of these charges, the Depart-
ment of Correction has been holding on to my mails,
turning [them] over to the prosecutor.’’ In cases involv-
ing the claim that a guilty plea was made unknowingly or
involuntarily, the petitioner typically must demonstrate
unawareness of certain facts or issues when pleading
guilty. For example, in Finney, the petitioner’s allega-
tions specifically referenced counsel’s failure to prepare
the case adequately so that the petitioner could have
sufficient knowledge of the strength of the case and
could make an informed decision as to whether to
plead guilty. See Finney v. Commissioner of Correc-
tion, supra, 207 Conn. App. 146–47; see also Dukes v.
Warden, supra, 161 Conn. 345 (court did not err in
concluding that plea was not rendered involuntary and
unintelligent as result of alleged conflict of interest
when petitioner knew when he engaged counsel that
counsel was representing two defendants in unrelated
case in which petitioner was codefendant); Mincewicz
v. Commissioner of Correction, supra, 162 Conn. App.
116–17 (‘‘[i]f any ineffective assistance conceivably
occurred, it was antecedent to the plea hearing and
known by the petitioner and, as such, was effectively
waived upon entry of the plea’’ (emphasis added));
accord Henderson v. Commissioner of Correction, 181
Conn. App. 778, 799, 189 A.3d 135 (same), cert. denied,
329 Conn. 911, 186 A.3d 707 (2018). Accordingly, the
petitioner’s plea was in fact made knowingly and volun-
tarily even if he was unaware that he could file a motion
to dismiss based on Lenarz.
We therefore conclude that, read in the context of
the habeas petition as a whole, including the relief
requested, count two of the second revised, amended
petition failed to allege facts that directly or implicitly
demonstrated ‘‘an interrelationship’’ between the
claimed ineffective assistance of counsel and the guilty
plea such that it can be said that the plea was not made
knowingly and voluntarily. The petitioner thus did not
state a cognizable claim for relief. Accordingly, the
habeas court properly dismissed count two of the peti-
tion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his appellate brief, the petitioner also claimed that the habeas court
erred in dismissing count four of the amended petition. In particular, the
petitioner argued that the court improperly dismissed his claim in count
four that his guilty plea was not knowing and voluntary because he was not
informed that he would be ordered to participate in sex offender treatment
as a result of his plea. In his appellate brief, the respondent, the Commis-
sioner of Correction, argued that the habeas court did not dismiss the sex
offender treatment claim but dismissed only the portion of count four that
alleged a due process violation regarding jury selection, which occurred
before the petitioner entered his guilty plea. At oral argument before this
court, the petitioner’s counsel abandoned the sex offender treatment claim.
Consequently, we do not address it further. See, e.g., Cunningham v. Com-
missioner of Correction, 195 Conn. App. 63, 65 n.1, 223 A.3d 85 (2019)
(declining to review claims counsel expressly abandoned at oral argument),
cert. denied, 334 Conn. 920, 222 A.3d 514 (2020). Furthermore, because the
petitioner mentioned but did not otherwise address in his brief the habeas
court’s dismissal of the jury selection claim, we deem any claim related to
that ruling abandoned. See, e.g., Antonio A. v. Commissioner of Correction,
205 Conn. App. 46, 80–81, 256 A.3d 684 (‘‘[W]e are not required to review
issues that have been improperly presented to this court through an inade-
quate brief. . . . Analysis, rather than mere abstract assertion, is required
in order to avoid abandoning an issue by failure to brief the issue properly.’’
(Internal quotation marks omitted.)), cert. denied, 339 Conn. 909, 261 A.2d
744 (2021).
2
‘‘North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, L. Ed. 2d 162 (1970).
‘Under North Carolina v. Alford, [supra, 37] . . . a criminal defendant is
not required to admit his guilt, but consents to being punished as if he were
guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the
Alford doctrine is a judicial oxymoron in that the defendant does not admit
guilt but acknowledges that the state’s evidence against him is so strong that
he is prepared to accept the entry of a guilty plea nevertheless.’ (Emphasis
omitted.) State v. Wheatland, 93 Conn. App. 232, 234 n.1, 888 A.2d 1098,
cert. denied, 277 Conn. 919, 895 A.2d 793 (2006).’’
3
See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963) (suppression by prosecution of evidence favorable to accused upon
request violates due process when evidence is material either to guilt or to
punishment, irrespective of good faith or bad faith of prosecution).
4
See footnote 1 of this opinion.
5
Although the court never dismissed the portion of count four of the
second revised, amended petition, which alleged that the petitioner’s guilty
plea was not knowingly and voluntarily made because he had not been
informed that his plea would result in sex offender treatment, the petitioner
did not pursue that claim at trial and apparently abandoned it in light of
his pursuit of relief from that requirement in the criminal court. In any
event, as previously noted, during oral argument before this court, the
petitioner’s appellate counsel expressly abandoned any claim related to sex
offender treatment. See footnote 1 of this opinion.
6
The petitioner argues that the newly discovered evidence requirement
‘‘is especially concerning for individuals situated as [is the petitioner], who
was incarcerated and proceeded pro se in the underlying criminal matter.’’
To the extent that the petitioner is suggesting that we should abandon the
newly discovered evidence requirement for self-represented petitioners, we
decline to do so. ‘‘[T]he right of self-representation provides no attendant
license not to comply with relevant rules of procedural and substantive
law.’’ (Internal quotation marks omitted.) Ajadi v. Commissioner of Correc-
tion, 280 Conn. 514, 549, 911 A.2d 712 (2006).
7
In his appellate brief, the petitioner acknowledges this court’s binding
precedent that newly discovered evidence is required to succeed on a claim
of actual innocence. He maintains, however, that this precedent ‘‘remains
an open question in the Connecticut Supreme Court.’’ During oral argument
before this court, the petitioner’s appellate counsel stated that she raised
the claim solely to preserve it for review by our Supreme Court.
8
In State v. Lenarz, supra, 301 Conn. 419, our Supreme Court held that,
when a ‘‘case is irreversibly tainted by the prosecutor’s intrusion into the
privileged communications [between a defendant and his attorney], the only
available appropriate remedy is dismissal of the charge of which he was
convicted.’’ The court explained ‘‘generally that prejudice may be presumed
when the prosecutor has invaded the attorney-client privilege by reading
privileged materials containing trial strategy, regardless of whether the inva-
sion of the attorney-client privilege was intentional. We further conclude
that the state may rebut that presumption by clear and convincing evidence.
Finally, we conclude that, when a prosecutor has intruded into privileged
communications containing a defendant’s trial strategy and the state has
failed to rebut the presumption of prejudice, the court, sua sponte, must
immediately provide appropriate relief to prevent prejudice to the defen-
dant.’’ Id., 425–26.
9
Practice Book § 44-4 provides in relevant part: ‘‘When a defendant has
been permitted to proceed without the assistance of counsel, the judicial
authority may appoint standby counsel, especially in cases expected to be
long or complicated or in which there are multiple defendants. A public
defender or special public defender may be appointed as standby counsel
only if the defendant is indigent and qualifies for appointment of counsel
under General Statutes § 51-296, except that in extraordinary circumstances
the judicial authority, in its discretion, may appoint a special public defender
for a defendant who is not indigent.’’
10
General Statutes § 54-56d provides in relevant part: ‘‘(a) A defendant
shall not be tried, convicted or sentenced while the defendant is not compe-
tent. For the purposes of this section, a defendant is not competent if the
defendant is unable to understand the proceedings against him or her or
to assist in his or her own defense. . . .
‘‘(d) If the court finds that the request for an examination is justified and
that, in accordance with procedures established by the judges of the Superior
Court, there is probable cause to believe that the defendant has committed
the crime for which the defendant is charged, the court shall order an
examination of the defendant as to his or her competency. . . .’’
Although the focus of the competency evaluation is the defendant’s compe-
tency to stand trial, the court stated that it was ordering the evaluation
‘‘specifically for the purpose of determining [the petitioner’s] competence
to represent himself at trial . . . .’’ We note that, strictly speaking, once a
defendant is found competent to stand trial, the rules do not provide for a
separate competency determination as to the waiver of the right to counsel
and the right to self-representation. Instead, Practice Book § 44-3 provides:
‘‘A defendant shall be permitted to waive the right to counsel and shall be
permitted to represent himself or herself at any stage of the proceedings,
either prior to or following the appointment of counsel. A waiver will be
accepted only after the judicial authority makes a thorough inquiry and is
satisfied that the defendant:
‘‘(1) Has been clearly advised of the right to the assistance of counsel,
including the right to the assignment of counsel when so entitled;
‘‘(2) Possesses the intelligence and capacity to appreciate the conse-
quences of the decision to represent oneself;
‘‘(3) Comprehends the nature of the charges and proceedings, the range
of permissible punishments, and any additional facts essential to a broad
understanding of the case; and
‘‘(4) Has been made aware of the dangers and disadvantages of self-
representation.’’
Nevertheless, the petitioner made no claim in his habeas petition regarding
the court’s use of a § 54-56d competency evaluation in connection with his
request to waive his right to counsel and to represent himself.
11
The following colloquy occurred between the court and the petitioner:
‘‘The Court: Now, you want to proceed without an attorney. Is that what
you indicated?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: Do you want an attorney to be on standby to help you file
the legal motions, sir? You can have that option.
‘‘[The Petitioner]: Okay. I’m not sure at this point, to be quite honest
with you.
‘‘The Court: Well, what I’ll do is, I’ll appoint one for standby just to assist
you in the law. Do you understand that?
‘‘[The Petitioner]: Okay.
‘‘The Court: But it’s—the attorney will be assisting you in the legal aspect
of it. Do you understand?
‘‘[The Petitioner]: Okay. . . .
‘‘The Court: What I’m going to do is order standby counsel, order Attorney
Romano to do that. You are to consult with him whenever you need assis-
tance in filing those legal motions that you have. Do you understand that?
And that’s assistance, so that you don’t do something in the motion that’s
going to cause the motion not to be heard or not to be properly filed, so
that you have the basis of the law covered in the motion, so that you’re
preserving your record. Do you understand that, sir?
‘‘[The Petitioner]: Yes, I understand that, ma’am.’’
12
The following colloquy occurred between the court and Romano:
‘‘The Court: You are standby, counsel. You’re the only one prepared to
go forward right now. Bring in the jury. . . .
‘‘[Romano]: Your Honor, I do have another request, if I may?
‘‘The Court: Yes.
‘‘[Romano]: The request is, if Your Honor is—am I right in assuming that
you’re directing me to go forward in abstentia as standby—
‘‘The Court: Yes.
‘‘[Romano]: —counsel? Are you now appointing me as full?
‘‘The Court: Yes.’’
13
The record is unclear as to whether a mistrial was declared. Neverthe-
less, jury selection was not completed, and a jury was not empaneled.
14
The petitioner does not raise a claim of ineffective assistance of counsel
with respect to the manner in which Romano conducted voir dire on June
4, 2013.
15
The following colloquy occurred between the court and Romano:
‘‘[Romano]: Your Honor, if—just a question with respect to the procedures.
If at any point during the voir dire [the petitioner] has questions of me, how
would you like to field that?
‘‘The Court: At the end of his voir dire, he can ask whatever questions
he wishes of you, briefly, but we’re not going to have two attorneys. He’s
representing himself.
‘‘[Romano]: I understand.
‘‘The Court: Yes.
‘‘[Romano]: I just wanted to clear up the procedures so he understands
and I know what my role is and he knows what his role is—
‘‘The Court: His role is—
‘‘[Romano]: —and it’s clearly defined.
‘‘The Court: —to conduct the voir dire. Your role is standby counsel—
‘‘[Romano]: Thank you very much.
‘‘The Court: —to address legal questions, not factual questions, legal
questions.’’
16
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion or upon motion of the respondent,
dismiss the petition, or any count thereof, if it determines that . . .
‘‘(2) the petition, or a count thereof, fails to state a claim upon which
habeas corpus relief can be granted . . .
‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’
17
See footnote 8 of this opinion.
18
As we previously noted, this statement is not accurate, as the petitioner
did allege in count four that his plea was not knowingly and voluntarily
made because he had not been adequately advised of the requirement that
he undergo sex offender treatment.
19
This inference was ‘‘particularly true given the early stage of the proceed-
ings and the fact that the petition was filed by a self-represented party.’’
Finney v. Commissioner of Correction, supra, 207 Conn. App. 144.
20
In reaching our decision, we are mindful that, unlike in Finney, the
petitioner in the present case was represented by counsel when he filed
the second revised, amended habeas petition. Accordingly, there is no reason
to construe the allegations in the petition with the same degree of leniency
this court used in Finney. Cf. Gilchrist v. Commissioner of Correction, 334
Conn. 548, 560, 223 A.3d 368 (2020) (‘‘when a petitioner has proceeded [as
a self-represented party] . . . courts should review habeas petitions with
a lenient eye, allowing borderline cases to proceed’’ (internal quotation
marks omitted)); Kaddah v. Commissioner of Correction, 299 Conn. 129,
140, 7 A.3d 911 (2010) (cautioning that courts ‘‘should be solicitous to [self-
represented] petitioners and construe their pleadings liberally in light of the
limited legal knowledge they possess’’).