Cooke v. Commissioner of Correction ( 2019 )

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IAN COOKE v. COMMISSIONER OF CORRECTION
(AC 38272)
Lavine, Devlin and Beach, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming that his trial counsel
provided ineffective assistance. The habeas court rendered judgment
denying the habeas petition and, thereafter, denied the petition for certifi-
cation to appeal, and the petitioner appealed to this court. The petitioner
subsequently filed an application for a fee waiver and attached thereto
an affidavit requesting certification of additional issues on appeal.
Although the waiver application was granted, the court did not initially
rule on the petitioner’s request for certification of additional issues on
appeal, and the petitioner subsequently filed a motion for articulation
requesting that the court rule on his request, which the court treated
as a motion to amend the petition for certification and granted. On
appeal, the respondent Commissioner of Correction claimed that the
habeas court, having previously denied the petition for certification to
appeal, lacked jurisdiction to allow the petitioner to amend his petition
for certification to appeal. Held:
1. The respondent’s claim that the habeas court lacked jurisdiction to allow
the petitioner to amend his petition for certification to appeal was
unavailing: that court’s ruling did not implicate the four month jurisdic-
tional limit of the applicable rule of practice (§ 17-4) because courts
have continuing jurisdiction to fashion appropriate remedies pursuant
to their inherent powers, and its ruling allowing the petitioner to amend
his petition for certification to appeal was merely a clarification of an
ambiguity in the record concerning which claims the petitioner had
preserved for appeal, and although the petitioner timely raised claims
in his petition for certification to appeal and his waiver application, the
court had ruled on only the former, and the issues raised in his applica-
tion went unaddressed by the court, through no fault of the petitioner,
until he filed a motion for articulation; accordingly, the court did not open
a twenty-two month old judgment but, rather, addressed an overlooked
petition for certification to appeal that previously had been filed.
2. The habeas court did not abuse its discretion in denying the habeas
petition and concluding that trial counsel’s performance was not
deficient:
a. The petitioner could not prevail on his claim that the habeas court
erred by not analyzing whether the cumulative effect of his trial counsel’s
alleged errors constituted prejudice under Strickland v. Washington
(466 U.S. 668); the court considered and rejected multiple claims of
ineffective assistance that the petitioner alleged against his trial counsel,
noting that the state presented a strong case against the petitioner, our
Supreme Court has repeatedly declined to adopt a cumulative error
analysis, and it was not within the province of this court to reevaluate
the decisions of our Supreme Court.
b. The petitioner’s claim that his trial counsel was ineffective by failing
to ensure that he was competent to stand trial was unavailing; although
the petitioner claimed the court did not consider evidence that he suf-
fered from amnesia when the crimes were committed and throughout
his criminal trial, the petitioner’s trial counsel testified at the habeas
trial that he had reviewed three competency evaluations, all of which
indicated that the petitioner was competent to stand trial and capable
of assisting his attorney, the court found that trial counsel’s testimony
was credible and that the petitioner was intelligent and able to under-
stand the proceeding, and that the petitioner presented no evidence to
corroborate his amnesia claim or indicating what an additional investiga-
tion would have uncovered had counsel undertaken such steps, and the
petitioner failed to demonstrate that that finding of the habeas court
was clearly erroneous.
3. The petitioner could not prevail on his claim that the habeas court abused
its discretion in denying his petition for a writ of mandamus to obtain
legal assistance in preparing his appellate brief and oral argument:
a. Contrary to the claim of the respondent, the petitioner’s claim was
not moot because it fell within the capable of repetition, yet evading
review exception to the mootness doctrine; the petitioner’s claim related
to an inherently limited action that would likely be moot in a substantial
majority of cases, the petitioner alleged an ongoing constitutional viola-
tion in which our correctional facilities systematically deny inmates
meaningful access to the courts and, thus, this issue would be likely to
arise any time that an inmate proceeds self-represented, and the peti-
tioner raised a question of public importance because he alleged a
serious constitutional violation.
b. The habeas court did not abuse its discretion in denying the petition for
a writ of mandamus; the appointment of counsel for habeas petitioners
satisfies the requirements of our state constitution and Bounds v. Smith
(430 U.S. 828), which provides that inmates have a constitutional right
to access to the courts, the petitioner was not deprived of his rights
because he had the option of appointed counsel at his habeas trial and
on appeal but elected to proceed self-represented, Bounds, which affords
the states discretion to determine how to provide access to the courts,
and its progeny provide no specific requirement that the states provide
law libraries or other means of legal research to inmates, and, therefore,
the remedy sought was not a mandatory duty of the state and the
petitioner had no clear right to have the duty performed.
Argued September 23—officially released December 17, 2019
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland and
tried to the court, Cobb, J.; judgment denying the peti-
tion; thereafter, the court denied the petition for certifi-
cation to appeal, and the petitioner appealed to this
court; subsequently, the court, Cobb, J., granted the
petition for certification to appeal; thereafter, the court,
Bright, J., denied the petition for a writ of mandamus
filed by the petitioner. Affirmed.
Ian Cooke, self-represented, the appellant (peti-
tioner).
Steven R. Strom, assistant attorney general, with
whom were Matthew A. Weiner, assistant state’s attor-
ney, and, on the brief, William Tong, attorney general,
Michael L. Regan, state’s attorney, and Lawrence J.
Tytla, supervisory assistant state’s attorney, for the
appellee (respondent).
Opinion
DEVLIN, J. The petitioner, Ian Cooke, appeals from
the judgment of the habeas court denying his petition
for a writ of habeas corpus. On appeal, the petitioner
asserts that (1) his claims were properly certified for
appellate review by the habeas court, (2) the cumulative
effect of his trial counsel’s errors deprived him of effec-
tive assistance of counsel, (3) his trial counsel was
ineffective in not ensuring that he was competent to
stand trial, and (4) the court erred in failing to issue a
writ of mandamus directing the Office of the Chief
Public Defender to provide him with legal assistance
to pursue the present appeal. The respondent, in turn,
argues that the habeas court lacked jurisdiction to grant
the petition for certification to appeal more than four
months after its initial denial of certification to appeal.
In response, the petitioner contends that the court had
continuing jurisdiction to grant the petition for certifica-
tion to appeal. We agree that the court had continuing
jurisdiction to grant the petition for certification to
appeal, but conclude that it did not abuse its discretion
in denying both the petition for a writ of habeas corpus
and the petition for a writ of mandamus. Accordingly,
we affirm the judgment of the court.
The following facts and procedural history are rele-
vant to this appeal. Following a jury trial, the petitioner
was convicted of murder in violation of General Statutes
§ 53a-54a, capital felony murder in violation of General
Statutes § 53a-54b (7), and possession of a sawed-off
shotgun in violation of General Statutes § 53a-211 (a).
The court sentenced him to a total effective term of
life imprisonment without the possibility of parole. The
petitioner’s conviction was affirmed on direct appeal.
State v. Cooke, 134 Conn. App. 573, 581, 39 A.3d 1178,
cert. denied, 305 Conn. 903, 43 A.3d 662 (2012). In its
resolution of that appeal, this court set forth the follow-
ing facts, which are relevant to this appeal.
‘‘Sometime after 3 p.m. on May 27, 2006, the town of
Groton dispatch center received a 911 call from 1021
Pleasant Valley Road reporting that one Gregory Gies-
ing had been shot at his residence. Police officers,
including Officer Sean Griffin, arrived at the scene, and
Gregory Giesing’s wife, Laurel Giesing, reported that
she had observed in her driveway after she had found
her husband shot a ‘dark, silver grayish’ Jeep with thick
piping on the front. After going through the residence
to ensure that it was safe, Griffin went to the lower
unit of the residence and found Derek Von Winkle,
Gregory Giesing’s stepbrother, who also had been shot.
Shortly thereafter, fire and medical personnel arrived.
‘‘One of the responders from the fire department
informed Griffin that there had been a stabbing at the
LaTriumphe Apartments, which was near the Giesings’
residence. The police, including Griffin, responded to
that location, entered an apartment through an open
sliding door and found on the living room floor the
[petitioner], whose hand and cheek were injured. The
police spoke with the [petitioner’s] father, who had
called 911 and had told the dispatcher that his son may
have been stabbed by a drug dealer or drug dealers.
Based upon the conversation between the police and
the [petitioner’s] father, Griffin then went outside to
the parking lot to look for the Jeep that Laurel Giesing
had described. Griffin located a silver gray Jeep with
a ‘brush guard,’ and observed blood on the exterior
driver’s side and on the driver’s side interior compart-
ment of the vehicle. Laurel Giesing was later shown
the vehicle and, after examining it, stated that it looked
‘very similar’ to and ‘the same’ as the vehicle she saw
at her residence after her husband had been shot. Addi-
tionally, a search of the general outside area, including
a wooded area, around the [petitioner’s] apartment
revealed apparently bloodstained duffle bags con-
taining illegal drugs and a disassembled shotgun.
‘‘An associate medical examiner for the state deter-
mined that Gregory Giesing died of a gunshot wound
to the chest. The medical examiner concluded that Von
Winkle died of a shotgun wound to the neck and
chest. . . .
‘‘Several items of evidence, including three known
samples of DNA from Von Winkle, Gregory Giesing and
the [petitioner], were submitted to the state forensic
science laboratory for DNA analysis. Nicholas Yang, a
forensic science examiner, performed the tests. At trial,
he testified as to his findings. Yang determined that the
[petitioner’s] DNA was consistent with that found on the
exterior of a duffle bag found outside the [petitioner’s]
apartment complex, the doorknob to Von Winkle’s
apartment, multiple locations on pants retrieved from
Gregory Giesing’s body, the wooden deck area of Greg-
ory Giesing’s residence, a part of the floor mat of the
Jeep and on various parts of the disassembled shotgun.
The [petitioner] could not be eliminated as a source of
DNA on the zipper of a Dudley bag, a reddish-brown
stain on a knife found near Gregory Giesing’s body, a
blood-like substance taken from the interior door of
Gregory Giesing’s apartment, the steering wheel of the
Jeep, a hacksaw from the apartment in which the [peti-
tioner] was found, two swabs from the floor mat of the
Jeep and the brake pedal from the Jeep.’’ (Citations
omitted; footnote omitted.) Id., 575–77.
On August 4, 2011, the petitioner filed a self-repre-
sented petition for a writ of habeas corpus. Subse-
quently, Attorney John Williams was appointed to repre-
sent the petitioner. Williams never filed an amended
petition. When asked by the habeas court, Cobb, J.,
to clarify the claims raised in the petition, Williams
presented three claims that the petitioner’s trial coun-
sel, Attorney John Walkley, was ineffective by: ‘‘(1)
failing to adequately investigate and prepare the case
for trial, (2) failing to adequately challenge the prosecu-
tion’s case and present the defense’s case at trial and
(3) failing to assure that the petitioner was competent
to stand trial.’’ In addition, the petitioner’s brief to the
habeas court raised two more claims that Walkley was
ineffective in cross-examining one witness and
impeaching another witness.
The habeas court conducted a five day trial between
March 20, 2014, and September 10, 2014. On July 8, 2015,
the habeas court issued a memorandum of decision
denying the petition. The habeas court concluded that,
as to each of the petitioner’s claims, he had failed to
prove either that Walkley’s performance was deficient
or that the petitioner was prejudiced by Walkley’s per-
formance, as required by Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to
establish ineffective assistance of counsel. The habeas
court also noted that the petitioner had offered little
to no evidentiary support for most of his claims.
Shortly thereafter, on July 13, 2015, Williams filed a
petition for certification to appeal setting forth two
issues: ‘‘Did [the habeas] [c]ourt err in [1] requiring
petitioner to prove prejudice from trial counsel’s failure
to have a competency exam, when such retrospective
proof is impossible and prejudice is presumed; and [2]
in failing to address counsel’s failure to visit the crime
scene and test . . . both sound and sight?’’ The court
denied the petition for certification to appeal on July
14, 2015.
On July 22, 2015, independently of Williams, the peti-
tioner filed an application for waiver of fees, costs and
expenses and appointment of counsel on appeal (waiver
application). Attached to the waiver application, the
petitioner included a document titled, ‘‘Affidavit in Sup-
port of Petition for Certification to the Appellate Court.’’
In this affidavit, the petitioner requested certification
to appeal on different grounds than those articulated
by Williams. The petitioner sought certification to
appeal on four other issues: (1) whether the court prop-
erly considered the petitioner’s argument that he was
not competent to assist Walkley; (2) whether the evi-
dence, in the aggregate, supported the petitioner’s the-
ory that Walkley had not conducted a thorough and
complete investigation of the blood and DNA evidence;
(3) whether there were cumulative deficiencies in Wal-
kley’s representation and whether those numerous defi-
ciencies, in the aggregate, prejudiced the petitioner;
and (4) whether the court erred in not considering the
totality of Walkley’s alleged errors in conducting its
Strickland analysis. While the habeas court did grant
the petitioner’s waiver application on July 27, 2015,
there was no indication in the record at that time that
the court had ruled on the petitioner’s request for certifi-
cation of additional issues on appeal.
On August 17, 2015, the petitioner filed his appeal.
Subsequently, on November 5, 2015, Attorney Allison
Near filed her appearance as appointed appellate coun-
sel for the petitioner. On June 10, 2016, Near filed a
motion for leave to withdraw as appointed counsel
accompanied with an Anders brief.1 The petitioner later
filed, on January 4, 2017, a motion to remove Near as
appointed counsel and to proceed self-represented. The
court, Bright, J., granted the petitioner’s motion on
March 6, 2017. Subsequently, the self-represented peti-
tioner filed an appearance with this court on March
17, 2017.
On March 31, 2017, the petitioner filed a motion for
articulation, requesting that the habeas court issue a
ruling on his affidavit attached to his waiver application,
which he had filed on July 22, 2015, that outlined addi-
tional issues for appeal. In a handwritten ruling added
at the end of the petitioner’s motion and dated May 9,
2017, the court, Cobb, J., concluded that ‘‘[i]n view of
the petitioner’s status as a self-represented litigant, the
[c]ourt treats this motion for articulation as a motion to
amend his petition for certification to include additional
issues on appeal, and grants it.’’ Subsequently, on
appeal, the petitioner has challenged the habeas court’s
judgment denying his petition for a writ of habeas cor-
pus on the grounds raised in his affidavit.
On May 3, 2017, the petitioner filed a petition seeking
a writ of mandamus to compel the Office of the Chief
Public Defender to assist the petitioner’s legal research.
In his petition, the petitioner contended that he was
incapable of conducting legal research, because the
Department of Correction does not provide law libraries
or online legal resources to its inmates and, as a result
of his decision to proceed as a self-represented peti-
tioner, he did not have access to outside legal assis-
tance. Consequently, the petitioner argued that the lack
of legal resources violated his federal and state constitu-
tional right to have meaningful access to the courts
and, thus, necessitated an order to compel legal assis-
tance from the Office of the Chief Public Defender.
On June 26, 2017, the court, Bright, J., issued an oral
decision from the bench, denying the petition for man-
damus relief. In the present appeal, the petitioner chal-
lenges the court’s ruling on his petition for a writ of
mandamus.
I
Before we may reach the merits of the petitioner’s
appeal, we must first resolve the respondent’s challenge
to the subject matter jurisdiction of the habeas court,
Cobb, J. The respondent argues that, by allowing the
petitioner to amend his petition for certification to
appeal on May 9, 2017, the habeas court effectively
modified its July 14, 2015 denial of the petition for
certification to appeal. The respondent argues that the
habeas court was without jurisdiction to modify this
decision because, as this court has stated, General Stat-
utes § 52-212a and Practice Book § 17-4 provide that
unless ‘‘the court has continuing jurisdiction, a civil
judgment or decree rendered in the Superior Court may
not be opened or set aside unless a motion to open or
set aside is filed within four months following the date
on which it was rendered or passed.’’ (Internal quota-
tion marks omitted.) Gordon v. Gordon, 148 Conn. App.
59, 64, 84 A.3d 923 (2014). Thus, because the habeas
court issued its May 9, 2017 decision well beyond this
four month limit, the respondent argues that the court
was without subject matter jurisdiction to grant certifi-
cation to appeal.
We disagree with the respondent’s contention. As
we previously explained, following the habeas court’s
decision denying the petition for a writ of habeas cor-
pus, Williams filed a petition for certification to appeal
that was denied by the habeas court on July 14, 2015.
Thereafter, the petitioner filed his waiver application
on July 22, 2015. Attached to the waiver application
was a document titled ‘‘Affidavit in Support of Petition
for Certification to the Appellate Court’’ that requested
that four grounds be certified for review. Although the
waiver application was granted, no action was taken
at that time on the petitioner’s request for certification
of additional issues on appeal. On March 31, 2017, the
petitioner filed a motion for articulation requesting a
ruling on the affidavit in support of certification of
additional issues on appeal. On May 9, 2017, the habeas
court treated the motion for articulation as a motion
to amend the petition for certification and granted it.
Contrary to the respondent’s claim, we do not inter-
pret the May 9, 2017 ruling by the habeas court as
implicating the four month jurisdictional limit of Prac-
tice Book § 17-4 because, ‘‘[e]ven beyond the four
month time frame set forth in . . . § 17-4 . . . courts
have continuing jurisdiction to fashion a remedy appro-
priate to the vindication of a prior . . . judgment . . .
pursuant to [their] inherent powers . . . .’’ (Footnote
omitted; internal quotation marks omitted.) Bauer v.
Bauer, 308 Conn. 124, 130, 60 A.3d 950 (2013); see also
Practice Book § 66-5 (‘‘[t]he trial court may make such
corrections or additions as are necessary for the proper
presentation of the issues’’).
In the present appeal, the habeas court’s ruling on
May 9, 2017, was merely a clarification of the ambiguous
record. Prior to its ruling, there was an ambiguity in
the record concerning which claims the petitioner had
preserved for his appeal. While the petitioner timely
raised claims in both his petition for certification to
appeal and his waiver application, the habeas court
had ruled on only the former. For twenty-two months,
through no fault of the petitioner, the issues raised in
his waiver application went unaddressed by the court
until he filed a motion for articulation. Therefore, by
allowing the petitioner to ‘‘amend’’ his petition for certi-
fication to appeal, the habeas court was, in effect, issu-
ing a belated ruling to recognize the additional issues
raised in the petitioner’s waiver application. In other
words, the court was not opening a judgment twenty-
two months after the fact; instead, it was addressing
an overlooked petition for certification to appeal that
was filed twenty-two months previously. Consequently,
there is no jurisdictional problem as the respondent
contends.2
II
The petitioner claims that the habeas court’s May 9,
2017 order not only permitted him to expand the num-
ber of issues raised on appeal, but also granted the
petition for certification to appeal. We agree that the
decision was ambiguously written and the respondent
concedes that it was ‘‘reasonabl[e] . . . [to believe]
that the habeas court had granted certification to appeal
. . . .’’ (Emphasis in original.) Therefore, we interpret
the court’s ambiguous ruling to have granted the peti-
tion for certification to appeal.
The petitioner asserts that the court abused its discre-
tion by denying his petition for a writ of habeas corpus
for two reasons: (1) Walkley’s representation of him
was ineffective due to cumulative deficiencies in Wal-
kley’s performance; and (2) Walkley’s representation
was ineffective because Walkley did not ensure that
the petitioner was competent to stand trial.
‘‘As the United States Supreme Court articulated in
Strickland v. Washington, [supra, 468 U.S. 687], [a]
claim of ineffective assistance of counsel consists of
two components: a performance prong and a prejudice
prong. To satisfy the performance prong, a claimant
must demonstrate that counsel made errors so serious
that counsel was not functioning as the counsel guaran-
teed . . . by the [s]ixth [a]mendment. . . . Put
another way, the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. To satisfy the prejudice prong, a claimant must
demonstrate that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of
the proceeding would have been different. . . .
Because both prongs . . . must be established for a
habeas petitioner to prevail, a court may dismiss a peti-
tioner’s claim if he fails to meet either prong.’’ (Internal
quotation marks omitted.) Antwon W. v. Commissioner
of Correction, 172 Conn. App. 843, 849–50, 163 A.3d
1223, cert. denied, 326 Conn. 909, 164 A.3d 680 (2017).
A
In its memorandum of decision, the habeas court
carefully considered and rejected multiple claims of
ineffective assistance of counsel that the petitioner
alleged against Walkley. The habeas court stated, and
we agree, that the state presented a very strong case
against the petitioner. The petitioner claims, however,
that the court erred by not analyzing whether the cumu-
lative effect of Walkley’s alleged errors at trial consti-
tuted prejudice under Strickland. This claim of error
is resolved by our prior decisions. ‘‘Our appellate courts
. . . have consistently declined to adopt this [cumula-
tive error analysis]. When faced with the assertion that
the claims of error, none of which individually consti-
tuted error, should be aggregated to form a separate
basis for a claim of a constitutional violation of a right
to a fair trial, our Supreme Court has repeatedly
decline[d] to create a new constitutional claim in which
the totality of alleged constitutional error is greater
than the sum of its parts.’’ (Internal quotation marks
omitted.) Id., 850–51; see also State v. Tillman, 220
Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505
U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992).
‘‘Because it is not within the province of this court to
reevaluate decisions of our Supreme Court . . . we
lack authority under the current state of our case law
to analyze the petitioner’s ineffective assistance claims
under the cumulative error rule.’’ (Citation omitted;
footnote omitted.) Antwon W. v. Commissioner of Cor-
rection, supra, 851. Therefore, because the petitioner
is effectively asking this court to overturn our Supreme
Court’s precedent; see State v. Tillman, supra, 505; we
cannot grant the relief he seeks, and his first claim fails.
B
The petitioner next claims that the habeas court erro-
neously concluded that Walkley was not deficient and
that the petitioner was not prejudiced by Walkley’s fail-
ure to ensure that the petitioner was competent to stand
trial. The petitioner asserts that the habeas court
neglected to consider evidence that the petitioner suf-
fered from amnesia from the time that the crimes were
committed and continued to suffer from amnesia
throughout his trial. The petitioner further claims that
the evidence presented to the court demonstrated that
Walkley failed to investigate properly the petitioner’s
mental state and, if Walkley had done so, he would
have discovered that the petitioner was incompetent
to stand trial. Accordingly, the petitioner argues that
the habeas court erred by overlooking this evidence and
determining that Walkley had not rendered ineffective
assistance of counsel. We are not persuaded.
The standard of review pertaining to claims of ineffec-
tive assistance of counsel is well settled. ‘‘The habeas
court is afforded broad discretion in making its factual
findings, and those findings will not be disturbed unless
they are clearly erroneous. . . . Historical facts consti-
tute a recital of external events and the credibility of
their narrators. . . . Accordingly, [t]he habeas judge,
as the trier of facts, is the sole arbiter of the credibility
of witnesses and the weight to be given to their testi-
mony. . . . The application of the habeas court’s fac-
tual findings to the pertinent legal standard, however,
presents a mixed question of law and fact, which is
subject to plenary review.’’ (Citations omitted; internal
quotation marks omitted.) Gaines v. Commissioner of
Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).
In analyzing the performance prong of Strickland,
our focus is on ‘‘whether counsel’s assistance was rea-
sonable considering all the circumstances. . . . A fair
assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. Because of the diffi-
culties inherent in making the evaluation, a court 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 strat-
egy. . . .
‘‘Thus, a court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel’s chal-
lenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct. . . . At the
same time, the court should recognize that counsel is
strongly presumed to have rendered adequate assis-
tance and made all significant decisions in the exercise
of reasonable professional judgment.’’ (Citation omit-
ted; internal quotation marks omitted.) Gaines v. Com-
missioner of Correction, supra, 306 Conn. 679–80.
The following additional facts are relevant to our
resolution of the petitioner’s claim of ineffective assis-
tance of counsel. At the habeas trial, Walkley testified
that he received two competency evaluations from the
petitioner’s previous trial counsel. Both evaluations,
conducted in 2006 and 2007, indicated that the peti-
tioner was competent to stand trial and capable of
assisting his attorney. Despite never having been per-
sonally concerned that the petitioner was incompetent,
Walkley testified that he sought the advice of a third
psychiatric expert. Although the report from this evalu-
ation was not entered into evidence, Walkley testified
that nothing contained in the report led him to believe
that the petitioner was incompetent.
The habeas court concluded that the petitioner ‘‘pre-
sented no evidence at trial to corroborate his amnesia
claim or to establish that the petitioner was not compe-
tent to stand trial . . . [nor any] evidence to prove
what any additional investigation or an additional men-
tal health evaluation would have uncovered had such
steps been undertaken by counsel.’’ Instead, the court
found that Walkley’s testimony was credible and simi-
larly concluded that ‘‘the petitioner was very intelligent
and able to communicate and understand the proceed-
ings.’’ Thus, the court concluded that the petitioner had
not shown any error committed by Walkley to satisfy
the first prong of Strickland. The court also noted that
the petitioner failed to prove the prejudice prong of
Strickland because he had neither proven that he suf-
fered from amnesia nor established that his amnesia
would have rendered him incompetent for trial. Accord-
ingly, the court determined that the petitioner had not
demonstrated that his counsel was ineffective. We
agree.
General Statutes § 54-56d (a) provides that ‘‘[a] defen-
dant shall not be tried, convicted or sentenced while
he is not competent. For the purposes of this section,
a defendant is not competent if he is unable to under-
stand the proceedings against him or her or to assist
in his or her own defense.’’ Furthermore, ‘‘[a] defendant
is presumed to be competent. The burden of proving
that the defendant is not competent by a preponderance
of the evidence and the burden of going forward with
the evidence are on the party raising the issue.’’ General
Statutes § 54-56d (b). ‘‘The standard we use to deter-
mine whether a defendant is competent . . . is
whether [the defendant] has sufficient present ability
to consult with his lawyer with a reasonable degree of
rational understanding—and whether he has a rational
as well as factual understanding of the proceedings
against him.’’ (Citations omitted; internal quotation
marks omitted.) State v. Dort, 315 Conn. 151, 170, 106
A.3d 277 (2014).
On appeal, the petitioner contends that the evidence
presented to the habeas court supported a finding that
Walkley neglected to fully investigate the petitioner’s
mental state. Despite two prior competency evaluations
that deemed the petitioner competent to stand trial and
a third evaluation ordered by Walkley that concurred,
the petitioner argues that the habeas court should have
found that Walkley inadequately examined the petition-
er’s mental state. According to the petitioner, had Wal-
kley conducted an additional investigation, it would
have revealed that the petitioner suffered from amnesia
from the time that the crimes were committed and
continued to suffer from amnesia throughout his trial.
In light of this evidence, the petitioner claims that the
habeas court should have found that the petitioner was
incompetent to assist in his own defense. Further, the
petitioner argues that, by failing to conduct an addi-
tional investigation, Walkley’s performance was defi-
cient and per se prejudicial. We disagree.
The petitioner’s arguments are without merit. The
crux of his arguments is that he presented evidence in
support of his claims that was ignored by the habeas
court. This claim, however, is directly contradicted by
the habeas court’s findings of fact. The habeas court
found that the petitioner presented no evidence to sup-
port his claim of ineffective assistance of counsel nor
evidence of his amnesia. The petitioner, in effect,
attempts to point to evidence in the record that simply
does not exist. It is the sole province of the habeas
court to admit evidence into the record and it ‘‘is
afforded broad discretion in making its factual findings,
and those findings will not be disturbed unless they are
clearly erroneous.’’ (Internal quotation marks omitted.)
Gaines v. Commissioner of Correction, supra, 306
Conn. 677. The petitioner has asserted no basis for
this court to determine that the habeas court’s factual
finding that the petitioner provided no evidence to sup-
port his claim was clearly erroneous. Likewise, we can-
not conclude that the habeas court should have ruled
in favor of the petitioner when there was no evidence
to support the petitioner’s position. Therefore, we con-
clude that the habeas court did not abuse its discretion
in finding that Walkley’s performance was not deficient,
and we need not address the petitioner’s arguments
concerning prejudice. See Antwon W. v. Commissioner
of Correction, supra, 172 Conn. App. 849–50.
III
The last issue the petitioner raises on appeal is
whether the court, Bright, J., erred in denying his peti-
tion for a writ of mandamus to obtain legal assistance
in preparing his brief and oral argument to this court.
Before reaching this claim, we must address the respon-
dent’s argument that the petitioner’s third claim is moot.
The respondent contends that because the petitioner
already has filed his brief and presented his argument,
there is no practical relief that this court may grant
and, thus, the petitioner’s claim is moot. We disagree.
A
Despite the respondent’s argument that the petition-
er’s claim is moot, we are persuaded that the claim falls
within the ‘‘capable of repetition, yet evading review’’
exception to the mootness doctrine. See Loisel v. Rowe,
233 Conn. 370, 382–83, 60 A.3d 323 (1995). ‘‘To qualify
under this exception, an otherwise moot question must
satisfy the following three requirements: First, the chal-
lenged action, or the effect of the challenged action, by
its very nature, must be of a limited duration so that
there is a strong likelihood that the substantial majority
of cases raising a question about its validity will become
moot before appellate litigation can be concluded. Sec-
ond, there must be a reasonable likelihood that the
question presented in the pending case will arise again
in the future, and that it will affect either the same
complaining party or a reasonably identifiable group
for whom that party can be said to act as surrogate.
Third, the question must have some public importance.
Unless all three requirements are met, the appeal must
be dismissed as moot.’’ (Internal quotation marks omit-
ted.) Gainey v. Commissioner of Correction, 181 Conn.
App. 377, 383, 186 A.3d 784 (2018).
‘‘The first element in the analysis pertains to the
length of the challenged action. . . . If an action or its
effects is not of inherently limited duration, the action
can be reviewed the next time it arises, when it will
present an ongoing live controversy. Moreover, if the
question presented is not strongly likely to become
moot in the substantial majority of cases in which it
arises, the urgency of deciding the pending case is sig-
nificantly reduced.’’ (Citations omitted; footnote omit-
ted.) Loisel v. Rowe, supra, 233 Conn. 383–84.
The present appeal satisfies the first Loisel factor.
Our rules of appellate practice necessitate that the peti-
tioner file a brief and attend oral argument. Practice
Book § 66-8 provides that an appeal may be dismissed
for failure to file a brief within the forty-five day time
limit imposed by Practice Book § 67-3. Similarly, Prac-
tice Book § 70-3 provides that the court may, for nonap-
pearance of a party at oral argument, dismiss an appeal,
decide the case solely on the briefs, or further sanction
the nonappearing party. Our appellate procedural rules
have the effect of creating an inherently limited time-
frame in which the petitioner’s appeal is prosecuted.
The way the petitioner has raised this issue before this
court, and enabled us to reach the merits of his claim,
was by filing a brief and arguing his case.3 In other
words, it would be impossible for the petitioner, or any
other litigant, to seek redress on this matter in a similar
manner without mooting his claim. Therefore, the peti-
tioner’s claim relates to an inherently limited action
that will likely be moot in a substantial majority of
cases and satisfies the first Loisel factor.
The second factor ‘‘entails two separate inquiries: (1)
whether the question presented will recur at all; and
(2) whether the interests of the people likely to be
affected by the question presented are adequately repre-
sented in the present litigation.’’ Loisel v. Rowe, supra,
233 Conn. 384. ‘‘A requirement of the likelihood that a
question will recur is an integral component of the
‘capable of repetition, yet evading review’ doctrine. In
the absence of the possibility of such repetition, there
would be no justification for reaching the issue, as a
decision would neither provide relief in the present
case, nor prospectively resolve cases anticipated in the
future.’’ Id. ‘‘Commonly referred to as the surrogacy
concept, [the] second inquiry requires some nexus
between the litigating party and those people who may
be affected by the court’s ruling in the future.’’ (Internal
quotation marks omitted.) Doe v. Hartford Roman
Catholic Diocesan Corp., 96 Conn. App. 496, 500–501,
900 A.2d 572, cert. denied, 280 Conn. 938, 910 A.2d
217 (2006).
In the present appeal, the petitioner alleges an ongo-
ing constitutional violation in which our correctional
facilities systematically deny inmates access to legal
research. The petitioner argues that the denial of access
to legal research effectively has denied his right to
meaningful access to the courts. Thus, this issue is likely
to arise any time that an inmate decides to proceed
self-represented. Furthermore, the Loisel court noted
that cases brought by inmates represent one of the
quintessential examples of an adequate surrogate for
the second factor. Loisel v. Rowe, supra, 233 Conn. 386.
We agree that the petitioner can serve as an adequate
surrogate for other inmates who similarly decide to
pursue their habeas claims self-represented and are met
with the burden of conducting their own legal research.
Thus, the petitioner’s claim satisfies the second
Loisel factor.
The third factor, ‘‘[t]he requirement of public impor-
tance is largely self-explanatory. Since judicial
resources are scarce, and typically reserved for cases
that continue to be contested between the litigants, this
court does not review every issue that satisfies the
criteria of limited duration and likelihood of recur-
rence.’’ Id., 387. Typically, cases that raise a constitu-
tional issue satisfy this factor. See, e.g., In re Emma
F., 315 Conn. 414, 425, 107 A.3d 947 (2015) (noting
that appellant’s constitutional claim of violation of free
speech rights was matter of public importance); State
v. Mordasky, 84 Conn. App. 436, 442, 853 A.2d 626 (2004)
(‘‘[f]inally, because the defendant has raised a constitu-
tional issue with respect to his competence to enter
into a plea agreement, he has presented an issue that
qualifies as a question of public importance’’).
Applying these principles to the present case, we are
persuaded that the petitioner raises a question of public
importance. As noted previously, he has alleged a seri-
ous constitutional violation in that he has been deprived
of his right to meaningful access to the courts. Recogniz-
ing the constitutional magnitude of this claim, we con-
clude that the petitioner has satisfied the third Loisel
factor.
We conclude, therefore, that we have subject matter
jurisdiction to hear the merits of the petitioner’s appeal,
because it is not moot under the ‘‘capable of repetition,
yet evading review’’ exception to the mootness doc-
trine. We turn next to the petitioner’s substantive claim.
B
‘‘The requirements for the issuance of a writ of man-
damus are well settled. Mandamus is an extraordinary
remedy, available in limited circumstances for limited
purposes. . . . It is fundamental that the issuance of
the writ rests in the discretion of the court, not an
arbitrary discretion exercised as a result of caprice
but a sound discretion exercised in accordance with
recognized principles of law. . . . That discretion will
be exercised in favor of issuing the writ only where the
plaintiff has a clear legal right to have done that which
he seeks. . . . The writ is proper only when (1) the
law imposes on the party against whom the writ would
run a duty the performance of which is mandatory and
not discretionary; (2) the party applying for the writ
has a clear legal right to have the duty performed; and
(3) there is no other specific adequate remedy. . . .
Even satisfaction of this demanding [three-pronged]
test does not, however, automatically compel issuance
of the requested writ of mandamus. . . . In deciding
the propriety of a writ of mandamus, the trial court
exercises discretion rooted in the principles of equity.
. . . We review the trial court’s decision, therefore, to
determine whether it abused its discretion in denying
the writ.’’ (Citations omitted; internal quotation marks
omitted.) AvalonBay Communities, Inc. v. Sewer Com-
mission, 270 Conn. 409, 416–17, 853 A.2d 497 (2004).
‘‘In an equitable proceeding, the trial court may exam-
ine all relevant factors to ensure that complete justice
is done. . . . The determination of what equity requires
in a particular case, the balancing of the equities, is
a matter for the discretion of the trial court. . . . In
determining whether the trial court abused its discre-
tion, this court must make every reasonable presump-
tion in favor of its action.’’ (Citation omitted; internal
quotation marks omitted.) Id., 417. ‘‘Nevertheless, this
court will overturn a lower court’s judgment if it has
committed a clear error or misconceived the law.’’ Mor-
ris v. Congdon, 277 Conn. 565, 569, 893 A.2d 413 (2006).
In seeking mandamus relief from the habeas court,
the petitioner argued that the state had deprived him
of his right to meaningful access to the courts by not
providing any means of legal research. It is well estab-
lished that ‘‘prisoners have a constitutional right of
access to the courts . . . [and that such access must
be] adequate, effective and meaningful.’’ (Citations
omitted; internal quotation marks omitted.) Bounds v.
Smith, 430 U.S. 817, 821–22, 97 S. Ct. 1491, 52 L. Ed.
2d 72 (1977). ‘‘Decisions of the United States Supreme
Court have consistently required [s]tates to shoulder
affirmative obligations to assure all prisoners meaning-
ful access to the courts. . . . Bounds does not [how-
ever] guarantee inmates the wherewithal to transform
themselves into litigating engines capable of filing
everything from shareholder derivative actions to slip-
and-fall claims. The tools it requires to be provided are
those that the inmates need in order to attack their
sentences, directly or collaterally, and in order to chal-
lenge the conditions of their confinement. Impairment
of any other litigating capacity is simply one of the
incidental (and perfectly constitutional) consequences
of conviction and incarceration.’’ (Citations omitted;
internal quotation marks omitted.) Washington v. Mea-
chum, 238 Conn. 692, 735–36, 680 A.2d 262 (1996).
‘‘[T]he fundamental constitutional right of access to
the courts requires prison authorities to assist inmates
in the preparation and filing of meaningful legal papers
by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.’’
Bounds v. Smith, supra, 430 U.S. 828. Such assistance,
however, may take many forms and ‘‘Bounds . . .
guarantees no particular methodology but rather the
conferral of a capability—the capability of bringing con-
templated challenges to sentences or conditions of con-
finement before the courts.’’ Lewis v. Casey, 518 U.S.
343, 356, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996).
‘‘Insofar as the right vindicated by Bounds is concerned,
meaningful access to the courts is the touchstone . . .
and the inmate therefore must go one step further and
demonstrate that the alleged shortcomings in the library
or legal assistance program hindered his efforts to pur-
sue a legal claim.’’ (Citation omitted; internal quotation
marks omitted.) Id., 351.
In the context of a habeas appeal, this court has held
that the appointment of counsel for habeas petitioners
satisfies the requirements of Bounds and our state con-
stitution. Sadler v. Commissioner of Correction, 100
Conn. App. 659, 662–63, 918 A.2d 1033, cert. denied,
285 Conn. 901, 938 A.2d 593 (2007). Consequently, this
court held in Sadler that the absence of a law library
in our correctional facilities did not deprive a habeas
petitioner of his constitutional rights because he had
the option of appointed counsel but elected to proceed
self-represented. Id., 663. The same situation applies in
the present case.
In adjudicating the petition for a writ of mandamus,
the court correctly applied the law and concluded that
the petitioner had neither satisfied the first nor second
prongs of AvalonBay Communities, Inc. v. Sewer Com-
mission, supra, 270 Conn. 416–17. The court recognized
that Bounds affords discretion to the states to deter-
mine how best to provide meaningful access to the
courts. Moreover, the court noted that our state has
exercised its discretion to satisfy the requirements of
Bounds by providing appointed counsel to habeas peti-
tioners and, as a result, the petitioner has no clear
constitutional right to assistance with legal research in
this matter. Thus, the court concluded that mandamus
relief was improper and denied the petition. We agree.
Bounds and its progeny provide no specific require-
ment that the states provide law libraries or other means
of legal research to inmates. E.g., Lewis v. Casey, supra,
518 U.S. 356. Further, our state has satisfied the require-
ments of Bounds by providing appointed counsel to
habeas petitioners. Sadler v. Commissioner of Correc-
tion, supra, 100 Conn. App. 663. In the present case,
the state provided the petitioner with meaningful access
to the courts through the appointment of Williams to
represent him at the habeas trial and Near to represent
him on the habeas appeal. The petitioner has not pre-
sented a valid claim that his constitutional rights were
violated.4 Thus, the remedy the petitioner sought was
not a mandatory duty of the state and he had no ‘‘clear
legal right to have the duty performed . . . .’’ See Ava-
lonBay Communities, Inc. v. Sewer Commission,
supra, 270 Conn. 417. Therefore, the court properly
exercised its discretion by denying the petition for a
writ of mandamus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967).
2
We acknowledge that, by filing his own petition for certification to appeal,
the petitioner arguably violated the prohibition on hybrid representation.
See Practice Book § 62-9A (‘‘a . . . habeas petitioner has no right to self-
representation while represented by counsel’’). Given the fact that the
respondent did not object on this ground and the petitioner may, in fact, have
been unrepresented when he filed his petition, we will consider his claims.
3
We note that it has not been argued that any alternative vehicle exists
to present this issue.
4
The petitioner attempts, in his brief, to raise an independent state consti-
tutional claim under State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225
(1992). The petitioner argues that article first, § 8, of the constitution of
Connecticut guarantees the right to self-representation in criminal proceed-
ings. Article first, § 8, of the constitution of Connecticut provides in relevant
part: ‘‘In all criminal prosecutions, the accused shall have a right to be heard
by himself and by counsel . . . .’’ However, the petitioner misunderstands
his procedural posture. As a habeas petitioner, he is party to a civil proceed-
ing. Moreover, he is no longer an ‘‘accused’’ but, instead, is a person who
has been convicted. Our courts have never applied article first, § 8, of the
constitution of Connecticut to habeas petitioners, and we decline to do so
now. Therefore, because his analysis of the Connecticut constitution is
irrelevant to the present appeal, the petitioner has provided no independent
state constitutional claim. Accordingly, we limit our review to the petitioner’s
federal constitutional claim. See State v. Jarrett, 82 Conn. App. 489, 498
n.5, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004). As
discussed in part III B of this opinion, the petitioner’s federal constitutional
claim is without merit as well.