Gerald W. v. Commissioner of Correction , 169 Conn. App. 456 ( 2016 )

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GERALD W.* v. COMMISSIONER
OF CORRECTION
(AC 37576)
DiPentima, C. J., and Keller and Prescott, Js.
Argued September 16—officially released November 29, 2016
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
James E. Mortimer, with whom, on the brief, was
Michael D. Day, for the appellant (petitioner)
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, Craig P. Nowak, senior assistant state’s attor-
ney, and Susann E. Gill, former supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Gerald W., appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus.1 On
appeal, the petitioner claims that the habeas court
improperly rejected his claim that he received ineffec-
tive assistance from his prior habeas counsel. We affirm
the judgment of the habeas court.
The record reveals the following relevant facts and
procedural history. The petitioner was convicted fol-
lowing a jury trial of three counts of risk of injury to
a child in violation of General Statutes § 53-21 (a) (2),
and one count of attempt to commit sexual assault in
the first degree in violation of General Statutes §§ 53a-
49 (a) (2) and 53a-70 (a) (2). The relevant facts underly-
ing the judgment of conviction were set forth in this
court’s opinion affirming that judgment. ‘‘From the evi-
dence adduced at trial, the jury reasonably could have
found the following facts. The victims are three minor
children, S, the [petitioner’s] daughter; P, the [petition-
er’s] cousin; and T, the cousin of the [petitioner’s] girl-
friend. At the time of trial, the three victims were age
fourteen, fifteen and sixteen, respectively. The victims
often would visit the [petitioner] at his apartment,
where he lived with his girlfriend. When S was approxi-
mately six years old, she began visiting the [petitioner]
on a weekly basis. Sometime in December, 2001, when
she was eleven years old, the [petitioner] engaged in
what would become a pattern of sexual abuse of S,
which continued until sometime in early 2003. During
some of these visits, the [petitioner] would touch her
chest and vaginal area with his penis, finger or hand.
On one evening during 2001, when P was eleven, the
[petitioner] pulled down her pants and attempted to
engage in sexual intercourse. When T was nine years
old, she began to visit the [petitioner] and her cousin.
During the ensuing five year period, the [petitioner]
inappropriately touched both her chest and vaginal area
approximately ten times.
‘‘After the [petitioner’s] conduct was disclosed to the
police, the [petitioner] was arrested and charged in a
substitute information dated May 5, 2005, with three
counts of risk of injury to a child and one count of
attempt to commit sexual assault in the first degree.
Following a jury trial, the [petitioner] was convicted on
all counts and sentenced to a total effective term of
forty years imprisonment.’’ State v. Gerald W., 103 Conn.
App. 784, 786–87, 931 A.2d 383, cert. denied, 284 Conn.
933, 935 A.2d 152 (2007).
As previously indicated, the petitioner appealed from
the judgment of conviction. He claimed on appeal that
the trial court improperly had instructed the jury regard-
ing the presumption of innocence and had construed
the rape shield statute improperly in excluding evidence
of T’s allegations of prior sexual abuse by her biological
father. Id., 786. This court affirmed the judgment of the
trial court on September 18, 2007, and our Supreme
Court later denied certification to appeal. Id.
In April, 2007, the petitioner filed his first petition
for a writ of habeas corpus. Throughout that first habeas
action, the petitioner was represented by Attorney Jodi
Zils Gagne. He alleged in his first petition that his trial
counsel, Jonathan Demirjian, had provided ineffective
assistance in a number of ways. In particular, the opera-
tive petition provided that Demirjian was ineffective
because he had failed (1) to move for separate trials
as to each of the three victims; (2) to compel the prose-
cutor to specify the precise dates of the offenses; (3)
to investigate alibi witnesses adequately; (4) to advise
the petitioner about the maximum jail time he faced if
unsuccessful at trial; (5) to submit into evidence video-
taped forensic interviews of the victims; (6) to explain
to the petitioner the state’s evidence against him; (7)
to prevent the admission of improper evidence offered
by the state, including evidence of uncharged miscon-
duct; (8) to subpoena testimony from the Department
of Children and Families (department) about its investi-
gation; and (9) to correct allegedly confusing informa-
tion provided to the jury regarding the existence of
a police report. Zils Gagne eventually withdrew the
specifications of ineffective assistance that related to
the videotaped interviews of the victims and to Demirji-
an’s failure to call witnesses about the department’s
investigation. Following a trial, the habeas court denied
the first petition and subsequently denied a petition for
certification to appeal. The petitioner appealed from
the habeas court’s decision. This court dismissed the
appeal by a memorandum decision dated January 24,
2012, and our Supreme Court subsequently denied certi-
fication to appeal. Gerald W. v. Commissioner of Cor-
rection, 133 Conn. App. 901, 33 A.3d 898, cert. denied,
304 Conn. 901, 38 A.3d 113 (2012).
On February 21, 2012, the petitioner filed a second
habeas petition—the petition underlying the present
appeal. An amended petition was filed on April 1, 2014,
and contained two counts. The first count reasserted
that trial counsel had provided ineffective assistance.
Although the petitioner acknowledged in the petition
that he previously had raised this claim in his first
habeas petition, he asserted that he had not received
a full and fair hearing of the claim. The petitioner listed
thirteen specifications of ineffective assistance by trial
counsel, the majority of which were not raised in the
first habeas petition.2
The second count of the petition asserted that the
petitioner received ineffective assistance from his prior
habeas counsel, Zils Gagne. The sole ground alleged
in the count was that Zils Gagne’s ‘‘performance was
deficient because she failed to adequately raise the
[specifications of ineffective assistance of trial counsel]
identified in [count] one of this amended petition for
a writ of habeas corpus.’’
In his response to the habeas petition, the respondent,
the Commissioner of Correction, pleaded by way of a
special defense that the first count directed at trial
counsel’s performance had been raised previously and
unsuccessfully litigated in the petitioner’s first habeas
action, and, therefore, it was barred by the doctrines
of successive petition, res judicata and/or collateral
estoppel.
The habeas court, Sferrazza, J., conducted a trial on
the second habeas petition over four days in August
and September, 2014. The petitioner presented testi-
mony from a number of witnesses including Demirjian,
Zils Gagne, and Michael Blanchard, a criminal defense
attorney with experience in child sexual abuse cases.
At the close of evidence, the habeas court, with the
consent of counsel, dismissed the first count of the
petition, noting on the record that it was ‘‘really just
part of the proof of the second count,’’ and that ‘‘there
was already a habeas [court judgment] which addressed
trial counsel.’’ The parties each submitted posttrial
briefs. On December 15, 2014, the court issued a memo-
randum of decision denying the remainder of the
habeas petition.
The court first noted that although the petitioner had
presented expert testimony from Blanchard in support
of his claim that prior habeas counsel was ineffective,
Blanchard testified extensively only about the perfor-
mance of trial counsel, and ‘‘expressed no opinion con-
cerning habeas counsel’s performance in the first
habeas action. Nor did he voice any opinion regarding
whether the purported deficiencies of [trial counsel]
affected the outcome of the earlier habeas case or the
criminal trial. In short, the petitioner produced no
expert witness who maintained that [habeas counsel]
rendered unprofessional legal assistance for the first
habeas trial nor as to the prejudice prong of the Strick-
land standard with respect to either level of litigation.’’
(Emphasis omitted.) See Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
(establishing standard that to prevail on claim of inef-
fective assistance of counsel, petitioner bears burden
of establishing both that counsel’s performance was
deficient and that petitioner suffered actual prejudice
as result of that performance).
The court next proceeded to evaluate whether the
petitioner had satisfied his burden of demonstrating
that Zils Gagne’s decision not to raise the specifications
of deficient performance by trial counsel as set forth
in the second habeas petition amounted to ineffective
assistance. The court rejected the arguments offered
by the petitioner. In particular, the court found that Zils
Gagne was ‘‘an experienced criminal defense attorney,’’
and that she had prepared by reviewing the criminal
file, the trial transcripts, and the evidence admitted at
trial, and by discussing with the petitioner his com-
plaints about trial counsel. She reviewed the forensic
interviews of the victims several times, including once
with the petitioner present. She sought to establish
whether there may have been alternative, innocent
explanations for the actions of the petitioner toward
the victims, although the petitioner either denied the
acts outright or claimed that he could not remember
because he consumed alcohol during the time period
when the assaults occurred. The court further found
that Zils Gagne pursued seven specifications of ineffec-
tive assistance of trial counsel in the first habeas peti-
tion and indicated that she strategically and reasonably
had chosen not to pursue several claims that she
believed would have been unsuccessful.
Ultimately, the habeas court concluded: ‘‘[T]he peti-
tioner has failed to satisfy his burden of proving, by a
preponderance of the evidence, any allegation of inef-
fective assistance on the part of Attorney Zils Gagne
under the Strickland standard.’’ The habeas court
denied the petition but later granted the petition for
certification to appeal. This appeal followed.
We begin our analysis with the law governing the
petitioner’s claim as well as our standard of review.
‘‘The use of a habeas petition to raise an ineffective
assistance of habeas counsel claim, commonly referred
to as a habeas on a habeas, was approved by our
Supreme Court in Lozada v. Warden, 223 Conn. 834,
613 A.2d 818 (1992). In Lozada, the court determined
that the statutory right to habeas counsel for indigent
petitioners provided in General Statutes § 51–296 (a)
includes an implied requirement that such counsel be
effective, and it held that the appropriate vehicle to
challenge the effectiveness of habeas counsel is through
a habeas petition.’’ (Footnote omitted; internal quota-
tion marks omitted.) Sinchak v. Commissioner of Cor-
rection, 126 Conn. App. 684, 686–87, 14 A.3d 343, cert.
denied, 301 Conn. 901, 17 A.2d 1045 (2011). In Lozada,
the court explained that ‘‘[t]o succeed in his bid for a
writ of habeas corpus, the petitioner must prove both
(1) that his appointed habeas counsel was ineffective,
and (2) that his trial counsel was ineffective.’’ Lozada
v. Warden, supra, 223 Conn. 842. As to each of those
inquiries, the petitioner is required to satisfy the familiar
two-prong test set forth in Strickland v. Washington,
supra, 466 U.S. 687. ‘‘First, the [petitioner] must show
that counsel’s performance was deficient. . . . Sec-
ond, the [petitioner] must show that the deficient per-
formance prejudiced the defense. . . . Unless a
[petitioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.’’
Lozada v. Warden, supra, 223 Conn. 842–43. In other
words, ‘‘a petitioner claiming ineffective assistance of
habeas counsel on the basis of ineffective assistance
of trial counsel must essentially satisfy Strickland twice
. . . .’’ LaPointe v. Commissioner of Correction, 113
Conn. App. 378, 394, 966 A.2d 780 (2009).
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential and courts must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.
. . . [S]trategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are
virtually unchallengeable; [but] strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.’’
(Citation omitted; internal quotation marks omitted.)
Bharrat v. Commissioner of Correction, 167 Conn.
App. 158, 167–68,143 A.3d 1106, cert. denied, 323 Conn.
924, A.3d (2016). With respect to the prejudice
prong, the petitioner must establish that if he had
received effective representation by habeas counsel,
there is ‘‘a reasonable probability that the habeas court
would have found that he was entitled to reversal of
the conviction and a new trial . . . .’’ (Internal quota-
tion marks omitted.) Crocker v. Commissioner of Cor-
rection, 126 Conn. App. 110, 117, 10 A.3d 1079, cert.
denied, 300 Conn. 919, 14 A.3d 333 (2011).
It is well settled that in reviewing the denial of a
habeas petition alleging the ineffective assistance of
counsel, ‘‘[t]his court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous, but our review of whether the facts as found
by the habeas court constituted a violation of the peti-
tioner’s constitutional right to effective assistance of
counsel is plenary.’’ (Internal quotation marks omitted.)
Robinson v. Commissioner of Correction, 167 Conn.
App. 809, 817, 144 A.3d 493 (2016).
The petitioner’s sole claim on appeal is that the
habeas court improperly determined that he had failed
to prove that his prior habeas counsel provided ineffec-
tive assistance. Having thoroughly reviewed the record
presented, we conclude that the habeas court properly
denied the petition for a writ of habeas corpus.
We first clarify that our review of the petitioner’s
ineffective assistance claim is limited to those specifica-
tions of deficient performance properly raised before
and considered by the habeas court. Although the peti-
tioner alleged in the underlying habeas petition that his
trial counsel was ineffective in a variety of ways, his
allegations regarding habeas counsel were much
more limited.3
Our review of the operative amended habeas petition,
the transcripts of the habeas trial, and the petitioner’s
posttrial brief reveals that the only argument properly
before the habeas court regarding the alleged deficient
performance by Zils Gagne was that she had failed to
raise in the first habeas action those specifications of
ineffective assistance of trial counsel that the petitioner
set forth in the second habeas petition. The petitioner
argues in his appellate brief that Zils Gagne also was
ineffective because, like trial counsel, she failed to con-
sult with a forensic psychologist or some other party
with sufficient expertise in evaluating child sexual
abuse allegations. He did not, however, include that
particular specification in his habeas petition or raise
the argument at the habeas trial or in his posttrial brief.
In fact, in the petitioner’s posttrial brief, the analysis
was limited almost entirely to a discussion of his trial
counsel’s performance without any independent discus-
sion of Zils Gagne’s performance, including whether
she should have consulted with an expert.4
Accordingly, the only issue is whether the petitioner
proved before the habeas court that Zils Gagne provided
ineffective assistance by failing to raise and prosecute
the claims of ineffective assistance of trial counsel set
forth in count one of the habeas petition. See footnote
2 of this opinion. In his reply brief, the petitioner has
defined his claim on appeal in even narrower terms,
describing the singular issue before this court as
whether ‘‘habeas counsel rendered ineffective assis-
tance in her failure to raise and litigate a claim that trial
counsel rendered ineffective assistance by his failure to
retain, consult with and offer the testimony of a forensic
psychiatrist, psychologist or other mental health profes-
sional with expertise in investigating and evaluating
child sexual abuse allegations.’’ In so doing, the peti-
tioner has abandoned many unrelated issues.
The habeas court, however, determined that the peti-
tioner had failed to demonstrate that he was prejudiced
by trial counsel’s performance with respect to the con-
sultation with and presentation of a child sexual abuse
expert. It follows that Zils Gagne’s failure to raise a
related claim in the prior habeas action was not profes-
sionally deficient performance. In its memorandum of
decision, the habeas court stated as follows: ‘‘Regarding
the petitioner’s specification of ineffectiveness prem-
ised on [trial counsel’s] failure to consult with and pre-
sent the testimony of a sexual abuse expert for the
defense, the court finds that the petitioner has failed
to prove, by a preponderance of the evidence, the preju-
dice component of the Strickland test. [Blanchard]
identified in his testimony those areas that such an
expert might have assisted defense counsel, but no
credible evidence was produced which persuades the
court that there exists a reasonable likelihood that, but
for the absence of such consultation, the outcome of
the criminal trial would have differed.
‘‘A major difficulty for the petitioner to overcome
was that, not one, but three preteen girls all swore that
the petitioner sexually molested them. No persuasive
evidence of any conspiracy to fabricate allegations
against the petitioner or mutuality of motive to lie about
his behavior was adduced at his criminal trial, his first
habeas trial, or [in] the present case. The three girls
were not very young children as their ages ranged from
nine to thirteen when the assaults occurred.
‘‘The petitioner contends, therefore, that it was
incumbent upon [trial] counsel to point to the girls’
‘aunt,’ Juanita W., to account for why they would wrong-
fully implicate him. He argues that [trial counsel]
needed to probe into Juanita’s past and psyche to estab-
lish that she was hypervigilant to the possibility of pre-
teen molestation because she had endured such abuse.
Also, Juanita W.’s sister was the petitioner’s wife when
the petitioner left her to cohabit with his wife’s daugh-
ter, a teenager.
‘‘As to the latter circumstance, the evidence unques-
tionably showed that Juanita W. felt that the petitioner
had brought shame and scandal to her extended family
by consorting with his stepdaughter. The petitioner
complains that [trial counsel] ought to have explored
the topic of this family dynamic more extensively to
convince the jury that Juanita W. somehow coaxed the
three victims to concoct false accusations of sexual
abuse by him. The court concludes that this tactical
approach would have been self-defeating and unlikely
to accomplish the goal proposed.
‘‘First, it would emphasize that the petitioner had a
penchant for sexual relations with teenagers. Second,
and, more significantly, the petitioner’s [trial counsel]
would necessarily have to have argued that the collu-
sion was a response for having incurred shame for the
family by accusing the petitioner of committing even
more reprehensible acts and bringing greater shame
down upon the family.
‘‘Besides the absurdity of that argument for why the
three girls all falsely reported abuse by the petitioner
while under the vengeful spell of Juanita W., this court
had the benefit of having Juanita W. testify at the habeas
trial. She came across as an honest, caring woman, who
learned of the [sexual] abuse complaints in a straight
forward manner. She made a genuine effort to take
appropriate steps to help the three girls. The court
determines that the jury would have reacted likewise
to her testimony.’’
The habeas court, which heard testimony from a
defense expert at the habeas trial, further rejected the
petitioner’s argument that a defense expert would have
been useful in countering the testimony of the state’s
sexual abuse expert, Lisa Melillo, finding that the
experts’ opinions were ‘‘essentially consistent on the
primary feature revealed by [Melillo], namely, delayed
disclosure.’’ Finally, the court rejected any notion that
consultation with an expert would have aided counsel
with the cross-examination of the victims and other
prosecution witnesses, concluding that ‘‘the petitioner’s
specifications of ineffective assistance on these
grounds is meritless.’’ The habeas court found that trial
counsel handled their cross-examinations ‘‘delicately,
deftly, and thoroughly’’ and that, accordingly, ‘‘Zils
Gagne quite properly declined to raise any claims of
deficient performance in this regard.’’ The petitioner
has not shown that the habeas court made any factual
findings that are clearly erroneous, and we agree with
the habeas court’s analysis regarding lack of prejudice
and Zils Gagne’s performance.
Having thoroughly reviewed the record presented,
we conclude that the petitioner has failed to meet his
burden of demonstrating that his previous habeas coun-
sel’s performance fell outside of the wide range of rea-
sonable professional assistance, and, in particular, has
failed to demonstrate that but for habeas counsel’s per-
formance there is a reasonable probability that the
habeas court would have found in favor of the petitioner
and granted a new trial. Accordingly, the habeas court
properly denied the amended petition for a writ of
habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victims or others through whom the victims’ identities may
be ascertained. See General Statutes § 54-86e.
1
The habeas court granted certification to appeal from the judgment.
2
Paragraph 28 of the amended habeas petition provided as follows: ‘‘The
petitioner’s trial counsel’s performance was deficient because:
(A) he failed to retain, consult with, and present the testimony of, a forensic
psychologist, forensic psychiatrist, or other mental health professional, with
an expertise in investigating and evaluating child sexual abuse allegations;
(B) he failed to adequately seek production and disclosure of educational
records, psychological records, medical records, [department] records,
police records, and other records related to the forensic investigation and
evaluation of the complainants’ allegations;
(C) he failed to adequately present alternative innocent explanations for
the child sexual abuse allegations made against petitioner, and he failed
to adequately present testimony that contradicts, refutes, and otherwise
challenges the complainants’ allegations;
(D) he failed to adequately challenge the prosecuting authority’s failure
to investigate and rule out alternative innocent explanations for the child
sexual abuse allegations made against the petitioner;
(E) he failed to adequately cross-examine, impeach, and otherwise chal-
lenge the testimony of the complainants;
(F) he failed to adequately cross-examine, impeach, and otherwise chal-
lenge the testimony of Cynthia Williams;
(G) he failed to adequately cross-examine, impeach, and otherwise chal-
lenge the testimony of Victoria Hester;
(H) he failed to adequately cross-examine, impeach, and otherwise chal-
lenge the testimony of Juanita W.;
(I) he failed to adequately cross-examine, impeach, and otherwise chal-
lenge the testimony of Officer Jessica Tillson;
lenge the testimony of Officer Sandra Gonzalez;
(K) he failed to adequately cross-examine, impeach, and otherwise chal-
lenge the testimony of Lisa Bush;
(L) he failed to adequately challenge the misapplication of the Connecticut
rape shield statute to charges of risk of injury to a minor; and
(M) he failed to object to improper appeals to the jurors as parents made
during the prosecuting authority’s closing arguments.’’
3
‘‘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. . . . It is fundamental in our law that the right of a plaintiff
to recover is limited to the allegations of his complaint. . . . [Although]
the habeas court has considerable discretion to frame a remedy that is
commensurate with the scope of the established constitutional violations
. . . it does not have the discretion to look beyond the pleadings and trial
evidence to decide claims not raised. . . . The purpose of the [petition] is
to put the [respondent] on notice of the claims made, to limit the issues to
be decided, and to prevent surprise. . . . [T]he [petition] must be read in
its entirety in such a way as to give effect to the pleading with reference
to the general theory upon which it proceeded, and do substantial justice
between the parties.’’ (Internal quotation marks omitted.) Newland v. Com-
missioner of Correction, 322 Conn. 664, 678, 142 A.3d 1095 (2016).
4
Although we do not reach the issue, the record does not appear to
support the notion that Zils Gagne’s failure to consult with a mental health
expert rendered her unprepared to litigate the habeas action. As the habeas
court found, at the time Zils Gagne represented the petitioner, she was an
experienced criminal defense lawyer. She had tried approximately twenty
other habeas actions. In addition, her uncontested testimony during the
habeas trial was that she had handled direct criminal appeals that involved
child sexual abuse and, thus, was familiar with how such cases were
defended. The habeas court’s findings also establish that Zils Gagne thor-
oughly researched the facts and the law at issue in the case. She obtained
and reviewed the petitioner’s defense file, discussed the case with the peti-
tioner at length, including his expectations and his complaints concerning
his trial attorney, and reviewed the transcripts and the evidence from the
criminal trial. She reviewed on more than one occasion the forensic inter-
views conducted of the victims, including one time in the presence of the
petitioner. On the basis of her review, she found the victims’ statements in
those interviews credible and, despite some inconsistencies, likely to have
been believed by a jury if admitted at trial. Given the petitioner’s inability
to provide her with any innocent explanation for the allegation made by
the three victims, she ultimately reached the conclusion that it would have
been highly detrimental to the defendant’s case if the forensic interviews
had been admitted into evidence and viewed by the jury.