Ouellette v. Commissioner of Correction ( 2015 )

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MICHAEL OUELLETTE v. COMMISSIONER
OF CORRECTION
(AC 35548)
Lavine, Beach and Alvord, Js.
Argued May 20—officially released September 15, 2015
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
David B. Rozwaski, assigned counsel, for the appel-
lant (petitioner).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Kevin T. Kane, chief
state’s attorney, and Erika L. Brookman, assistant
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Michael Ouellette,
appeals after the habeas court denied his petition for
certification to appeal from the court’s judgment deny-
ing his amended petition for a writ of habeas corpus.
On appeal, he claims that the habeas court abused its
discretion in denying his petition for certification to
appeal and erred in denying his claim that his right to
due process was violated. The petitioner’s due process
claim was based upon his argument that he was
deprived of a fair trial in his underlying criminal case
because of judicial bias. We conclude that the habeas
court did not abuse its discretion in denying his petition
for certification to appeal. Accordingly, we dismiss
the appeal.
The following facts and procedural history are rele-
vant to this appeal. The petitioner was charged with
murder in violation of General Statutes § 53a-54a. He
waived his right to a jury trial and elected to be tried
by a three judge court, Leuba, Wollenberg, and Wiese,
Js., pursuant to General Statutes § 54-82 (b). The court
found him guilty of murder and sentenced him to a
term of sixty years imprisonment. In affirming his con-
viction on appeal, our Supreme Court determined that
the court reasonably could have found the following
facts. ‘‘On the evening of June 24, 1999, the [petitioner],
a diagnosed paranoid schizophrenic, brutally blud-
geoned to death Robert Lysz, a Roman Catholic priest,
inside St. Matthew’s Church in Bristol. The [petitioner]
was discovered the next morning hiding in the church
rectory, wearing the victim’s pants and in possession
of the victim’s wallet, credit card, and driver’s license.
Initially, the defendant told the police that he had killed
the victim in self-defense, but subsequently raised the
affirmative defense of mental disease or defect and the
alternative affirmative defense of extreme emotional
disturbance.’’ State v. Ouellette, 271 Conn. 740, 743–44,
859 A.2d 907 (2004).
On February 21, 2012, the petitioner filed an amended
petition for a writ of habeas corpus. In the amended
petition, he alleged, inter alia,1 that he was deprived of
his rights to due process and a fair trial because he
‘‘discovered information that Judge Wollenberg had
been discussing the case and the petitioner’s defense
prior to the close of evidence and before the three-
judge panel was to make a decision of the petitioner’s
guilt or innocence.’’ The return by the respondent, the
Commissioner of Correction, raised the affirmative
defense of procedural default as to the claim of judicial
bias. On March 4, 2013, the habeas court, Newson, J.,
held an evidentiary hearing on the amended petition.
The petitioner called three witnesses: (1) Eric Edman,
a former judicial marshal; (2) Gregory Senick, an inves-
tigator for the petitioner; and (3) Kenneth Simon, the
petitioner’s trial counsel.
After trial, the habeas court issued an oral ruling
denying the petition. The court rejected the respon-
dent’s defense of procedural default and concluded that
the petitioner failed to prove that there was any viola-
tion of his due process rights or that he was prejudiced.
The court stated that ‘‘[t]he petitioner has merely pre-
sented evidence that the court should, through innu-
endo and speculation, determine that a judge had
inappropriate conversations prior to rendering a deci-
sion in the matter that would have indicated that the
court had made up his mind prior to the disposition.
There’s been no evidence whatsoever presented to sup-
port that.’’ (Emphasis added.) In finding that the peti-
tioner failed to prove any prejudice, the court noted
that the petitioner was requesting the court to make a
‘‘speculative leap.’’ On March 12, 2013, the petitioner
filed an application for certification to appeal, which the
habeas court denied. This appeal followed. Additional
facts will be set forth as necessary.
We begin our analysis with the relevant standard of
review. ‘‘Faced with a habeas court’s denial of a petition
for certification to appeal, a petitioner can obtain appel-
late review of the dismissal of his petition for habeas
corpus only by satisfying the two-pronged test enunci-
ated by our Supreme Court in Simms v. Warden, 229
Conn. 178, 640 A.2d 601 (1994), and adopted in Simms
v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).
First, he must demonstrate that the denial of his petition
for certification constituted an abuse of discretion. . . .
To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . Sec-
ond, if the petitioner can show an abuse of discretion,
he must then prove that the decision of the habeas
court should be reversed on the merits. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling . . . [and]
[r]eversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done.’’ (Internal quotation marks omitted.) McGee v.
Commissioner of Correction, 157 Conn. App. 863, 867,
A.3d (2015).
On appeal, the petitioner claims that the court
improperly concluded that he failed to prove his claim
that judicial bias deprived him of due process.2 Specifi-
cally, the petitioner argues that Judge Wollenberg ‘‘was
predisposed towards the petitioner’s case’’ when he
allegedly made off the record comments to Edman, a
judicial marshal in his court, regarding the petitioner’s
guilt, which deprived the petitioner of his constitutional
right to due process and to have his case heard by an
impartial trier of fact. We disagree.
‘‘Accusations of judicial bias or misconduct implicate
the basic concepts of a fair trial. . . . The standard that
we employ on appellate review is whether a reasonable
person who is aware of the circumstances surrounding
the judicial proceeding would question the judge’s
impartiality.’’ (Internal quotation marks omitted.) State
v. Eric M., 79 Conn. App. 91,102, 829 A.2d 439 (2003),
aff’d, 271 Conn. 641, 858 A.2d 767 (2004). In this case,
the habeas court reasoned that the petitioner’s allega-
tions of judicial impropriety amounted to nothing more
than mere speculation. ‘‘[S]peculation is insufficient to
establish an appearance of impropriety. As this court
has explained, [a] factual basis is necessary to deter-
mine whether a reasonable person, knowing all of the
circumstances, might reasonably question the trial
judge’s impartiality.’’ (Internal quotation marks omit-
ted.) McKenna v. Delente, 123 Conn. App. 137, 144, 1
A.3d 260 (2010).
After a thorough review of the record and briefs, we
agree with the habeas court’s finding that the petitioner
failed to present a factual basis for his claim of judicial
bias. We conclude that the petitioner did not demon-
strate that the issues he has raised in the petition for
certification to appeal are debatable among jurists of
reason, that a court could resolve those issues differ-
ently or that the questions raised deserve encourage-
ment to proceed further. Accordingly, we conclude that
the petitioner has failed to demonstrate that the court
abused its discretion in denying his petition for certifica-
tion to appeal.
The appeal is dismissed.
1
At the habeas trial, the petitioner withdrew count one of his amended
petition, which alleged ineffective assistance of trial counsel. The court
dismissed the claim with prejudice as having been abandoned.
2
The petitioner also claims that the court erred in limiting the testimony
of Senick at the habeas trial. The respondent argues that the petitioner’s
claim is unpreserved because he did not raise it in his petition for certification
to appeal. In his petition for certification to appeal, the petitioner lists three
grounds: ‘‘(1) Whether or not the habeas court erred in finding that one of
the petitioner’s criminal trial judges was biased and predisposed to finding
the petitioner guilty prior to rendering a verdict; (2) Whether or not the
habeas court erred in concluding that if the petitioner had proven bias that
he would still need to demonstrate prejudice to the proceedings; and (3)
Such other errors as may become evident after a review of the transcripts
and the trial record.’’ Neither the petition for certification to appeal nor the
application for waiver of fees, costs and expenses included the petitioner’s
evidentiary claim that the court erred in precluding Senick from comparing
Edman’s testimony before the habeas court with what Edman told Senick
during his investigation. We do not believe such broad language, as alleged
in the third ground for appeal, is sufficient to preserve the petitioner’s
evidentiary claim.
‘‘This court has determined that a petitioner cannot demonstrate that a
habeas court abused its discretion in denying a petition for certification to
appeal on the basis of issues that were not actually raised in the petition
for certification to appeal. . . . Under such circumstances, the petition for
certification to appeal could not have apprised the habeas court that the
petitioner was seeking certification to appeal based on such issues. . . . A
review of such claims would amount to an ambuscade of the [habeas] judge.’’
(Internal quotation marks omitted.) Stenner v. Commissioner of Correction,
144 Conn. App. 371, 374–75, 71 A.3d 693, cert. denied, 310 Conn. 918, 76
A.3d 633 (2013). Accordingly, we decline to review the petitioner’s claim.