Hedge v. Commissioner of Correction ( 2014 )

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KAREEM HEDGE v. COMMISSIONER
OF CORRECTION
(AC 34681)
Lavine, Keller and Flynn, Js.
Argued March 13—officially released August 5, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
William A. Snider, assigned counsel, for the appel-
lant (petitioner).
Adam E. Mattei, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Craig P. Nowak, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
KELLER, J. The petitioner, Kareem Hedge, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court erro-
neously (1) determined that the petitioner’s trial coun-
sel did not have an actual conflict of interest that
rendered his representation ineffective, (2) failed to
examine whether the petitioner’s trial counsel had a
potential conflict of interest that rendered his represen-
tation ineffective, and (3) dismissed the petitioner’s due
process claim concerning the trial court’s alleged failure
to properly canvass the petitioner and to inquire into
a possible conflict of interest. We affirm the judgment
of the habeas court.
The following facts, as found by the habeas court,
and procedural history are relevant to this appeal. On
March 13, 2003, the petitioner was arrested and charged
with a variety of offenses by way of a two part informa-
tion.1 Attorney Richard Silverstein’s firm agreed to rep-
resent the petitioner on those charges on June 19, 2003.
Prior to his representation of the petitioner, Sil-
verstein was arrested and charged with drug related
crimes on two separate occasions. In 1999, Silverstein
was arrested and charged with one or more drug
offenses. Those charges were dismissed following Sil-
verstein’s completion of a diversionary program. In Jan-
uary, 2003, Silverstein was arrested and charged with
possession of illegal drugs. The trial court granted Sil-
verstein entry into an accelerated rehabilitation pro-
gram on August 27, 2003, a supervised diversionary
program that requires no admission of guilt. The
charges against him were dismissed following his com-
pletion of the program.
Following Silverstein’s January, 2003 arrest, the New
Haven judicial district grievance panel initiated pro-
ceedings against him. On June 23, 2003, the court, Silb-
ert, J., issued an order that required Silverstein (1) to
inform his current and prospective clients in writing of
the criminal charges presently pending against him, and
(2) to inform his clients in writing in any case in which
he was counsel of record that proceeded to jury selec-
tion, that the clients could require him to disclose to
prospective jurors during voir dire the pendency of his
own criminal charges.2
Despite Judge Silbert’s order, Silverstein failed to
provide any notice to the petitioner regarding Sil-
verstein’s pending criminal charges. During a pretrial
hearing on the eve of jury selection in January, 2004,
the petitioner informed the court that he had learned
earlier that day of the charges pending against Sil-
verstein and expressed concern about retaining Sil-
verstein as his counsel. The court explained to the
petitioner that he could require Silverstein to inform
prospective jurors during voir dire of the charges pend-
ing against him.3 The petitioner made no such request
at any time before or during voir dire, although Sil-
verstein did inquire generally before individual voir dire
whether any prospective juror knew of him. No eventual
juror acknowledged recognizing Silverstein.
A jury found the petitioner guilty of all the charges
alleged in the first part of the information on January
27, 2004, and the court sentenced the petitioner to a
total effective sentence of twenty-three years incarcera-
tion on April 2, 2004. Following a trial to the court on
the charge in the second part of the information, the
court sentenced the petitioner to five years incarcera-
tion, which was to run concurrently with the twenty-
three year sentence on October 21, 2004. This court
affirmed the trial court’s judgment on appeal. State v.
Hedge, 93 Conn. App. 693, 695, 890 A.2d 612, cert.
denied, 227 Conn. 930, 896 A.2d 102 (2006).
On December 12, 2011, the petitioner filed the fourth
amended petition for a writ of habeas corpus, which is
at issue in this appeal.4 The amended petition contains
four counts. Count one alleges that Silverstein provided
ineffective assistance of counsel by failing to abide by
Judge Silbert’s order and having an actual conflict of
interest. Count two alleges that Silverstein provided
ineffective assistance of counsel due to inadequate trial
preparation and performance. Count three alleges that
the trial court violated the petitioner’s due process
rights by failing to inquire into the possibility that Sil-
verstein had a conflict of interest and to canvass the
petitioner regarding Silverstein’s prior arrests, possible
conflict of interest, and Judge Silbert’s order. Count four
alleges that the petitioner’s appellate counsel provided
ineffective assistance of counsel due to his failure to
raise certain claims in the petitioner’s direct appeal.
The respondent, the Commissioner of Correction, filed
a return to the petition on October 17, 2011, denying
the petitioner’s allegations and raising the special
defense of procedural default with regard to the peti-
tioner’s claims in counts one and two.5
Following a trial to the court, the habeas court issued
a comprehensive and well reasoned memorandum of
decision denying the petition on April 27, 2012. First,
the court determined that Silverstein did not have a
conflict of interest which rendered his assistance inef-
fective because (1) Silverstein was not convicted of the
crimes charged against him, (2) the publicity sur-
rounding Silverstein’s 2003 arrest and the court’s grant-
ing of his entry into accelerated rehabilitation was
minimal and transitory, (3) Silverstein’s arrest occurred
in New Haven and the petitioner’s trial took place in
Bridgeport, a city in which Silverstein had no significant
reputation and to which he had no connection, and (4)
the trial court had informed the petitioner that he could
compel Silverstein to inquire whether prospective
jurors had knowledge of his pending legal issues.
Although the court found that Silverstein failed to fol-
low Judge Silbert’s order, the court determined that the
breach of his ethical duty to the court did not give rise
to the creation of a conflict of interest in representing
the petitioner in this case. Second, the court determined
that the petitioner failed to submit sufficient evidence
to prove that Silverstein’s trial preparation and perfor-
mance prejudiced the petitioner or fell below the stan-
dard of care required under Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Third, the court determined that, because there
was no conflict of interest between the petitioner and
Silverstein, the trial court did not err by failing to inquire
into a possible conflict of interest and to canvass the
petitioner regarding his rights under Judge Silbert’s
order. Fourth, the court determined that the petitioner’s
ineffective assistance of appellate counsel claim failed
because the petitioner did not show a reasonable proba-
bility that the issues his counsel failed to raise on appeal
would have been successful.6
The petitioner subsequently filed a petition for certifi-
cation to appeal from the court’s judgment on all four
counts, which was granted on May 8, 2012. This appeal
followed, wherein the petitioner raised claims only as
to counts one and three of his fourth amended petition
for a writ of habeas corpus. Additional facts will be set
forth as necessary.
I
First, the petitioner claims that the court erred in
concluding that Silverstein did not have an actual con-
flict of interest with the petitioner that rendered his
representation ineffective. We disagree.
We begin by setting forth the relevant standard of
review governing ineffective assistance of counsel
claims based on an actual conflict of interest. ‘‘ ‘The
sixth amendment to the United States constitution as
applied to the states through the fourteenth amend-
ment, and article first, § 8, of the Connecticut constitu-
tion, guarantee to a criminal defendant the right to
effective assistance of counsel.’ . . . Santiago v. Com-
missioner of Correction, 87 Conn. App. 568, 582, 867
A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).
‘As an adjunct to this right, a criminal defendant is
entitled to be represented by an attorney free from
conflicts of interest.’ . . . Adorno v. Commissioner
of Correction, 66 Conn. App. 179, 194, 783 A.2d 1202,
cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). Thus,
‘[t]he underlying right to conflict free representation is
effective assistance of counsel.’ State v. Rodriguez, [61
Conn. App. 700, 706, 767 A.2d 756 (2001)].
‘‘ ‘In a case of a claimed conflict of interest . . . in
order to establish a violation of [his constitutional
rights] the [petitioner] has a two-pronged task. He must
establish (1) that counsel actively represented conflict-
ing interests and (2) that an actual conflict of interest
adversely affected his lawyer’s performance.’ . . .
Phillips v. Warden, [220 Conn. 112, 132–33, 595 A.2d
1356 (1991)]; Anderson v. Commissioner of Correction,
127 Conn. App. 538, 549, 15 A.3d 658 (2011), [aff’d, 308
Conn. 456, 64 A.3d 325 (2013)]. ‘Unlike other claims of
ineffective assistance of counsel, where a petitioner
claims that his counsel’s performance was deficient
because of an actual conflict of interest, prejudice does
not need to be established.’ Zollo v. Commissioner of
Correction, 93 Conn. App. 755, 757, 890 A.2d 120, cert.
denied, 278 Conn. 904, 896 A.2d 108 (2006); see also
Phillips v. Warden, supra, 133–34. Instead, ‘[w]here
there is an actual conflict of interest, prejudice is pre-
sumed because counsel [has] breach[ed] the duty of
loyalty, perhaps the most basic of counsel’s duties.’
. . . Phillips v. Warden, supra, 133; Anderson v. Com-
missioner of Correction, supra, 549; see Strickland v.
Washington, [supra, 466 U.S. 692] (‘[p]rejudice is pre-
sumed . . . if the [petitioner] demonstrates that coun-
sel actively represented conflicting interests and that an
actual conflict of interest adversely affected his lawyer’s
performance’ . . .); State v. Vega, 259 Conn. 374, 387,
788 A.2d 1221 (same), cert. denied, 537 U.S. 836, 123
S. Ct. 152, 154 L. Ed. 2d 56 (2002).
‘‘ ‘On appellate review, the historical facts found by
the habeas court may not be disturbed unless they were
clearly erroneous . . . . When . . . those facts are
essential to a determination of whether the petitioner’s
sixth amendment rights have been violated, we are pre-
sented with a mixed question of law and fact requiring
plenary review.’ . . . Adorno v. Commissioner of Cor-
rection, supra, 66 Conn. App. 194.’’ Rodriguez v. Com-
missioner of Correction, 131 Conn. App. 336, 342–44,
27 A.3d 404 (2011), aff’d, 312 Conn. 345, A.3d
(2014).
The petitioner argues that an actual conflict of inter-
est existed in the underlying case pursuant to Phillips
v. Warden, supra, 220 Conn. 112. In Phillips, John M.
Phillips was convicted of sexual assault, unlawful
restraint and burglary. Id., 114. Phillips was represented
by Attorney Bernard L. Avcollie, who had been con-
victed of murdering his own wife prior to representing
Phillips. Id. Avcollie’s trial and conviction occurred in
the same judicial district where Phillips’ trial was held,
and Avcollie was appealing his conviction while repre-
senting Phillips. Id., 116–18. Avcollie’s indictment, trial,
conviction, and ensuing appeals received ‘‘widespread
publicity’’ for over seven years. Id., 140. In addition,
Avcollie believed that the prospective jurors knew of
his conviction, but he decided not to specifically ask
them to confirm his suspicions during jury selection.
Id., 125. Phillips filed a petition for a writ of habeas
corpus claiming that he had been denied effective assis-
tance of counsel due to an actual conflict of interest.
Id., 116–17. The habeas court denied the petition, and
this court affirmed that judgment on appeal. Id., 117.
Our Supreme Court reversed this court’s judgment,
holding that an actual conflict of interest may exist
when there is an ‘‘impermissible risk that the jury will
identify [the attorney’s] conduct with that of [the] client.
. . . Thus, an attorney may be considered to be laboring
under an impaired duty of loyalty, and thereby be sub-
ject to conflicting interests, because of interests or fac-
tors personal to [the attorney] that are inconsistent,
diverse or otherwise discordant with [the interests] of
[the] client . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 138–39. The court then con-
cluded that an actual conflict existed, noting that
‘‘[s]urely no other criminal defendant in the history of
Connecticut jurisprudence—indeed, in the history of
American jurisprudence—has ever had to face a jury
in a trial for serious and violent criminal offenses, while
represented by a convicted murderer, whose conviction
was likely to have been known by the jurors, in the
judicial district where both the murder and conviction
took place, where both the murder and its ensuing legal
aftermath had been widely reported in the press, and
when the murderer was literally on his own way to
prison. Surely, no other attorney in the history of Con-
necticut or American jurisprudence has ever brought
with him to the criminal jury courtroom the potential
for prejudice to his client that Avcollie brought to the
. . . courtroom . . . . Under these unique factual cir-
cumstances, we are constrained to conclude that there
was a constitutionally impermissible risk that [Phillips’]
jurors would identify Avcollie’s status as a convicted
murderer with his client’s status as an accused rapist,
kidnapper and burglar, and that they would transfer to
[Phillips] the distaste or revulsion that they may have
felt for his lawyer.’’ (Footnote omitted.) Id., 140–41. In
reaching its conclusion, the court noted that the facts
of the case did not involve ‘‘a conflict of interest in the
classic sense of separate clashing interests . . . .’’ Id.,
139. Instead, a conflict of interest existed due to the
‘‘unique facts’’ of the case. Id.; see also State v. Thomp-
son, 118 Conn. App. 140, 149, 983 A.2d 20 (2009), cert.
denied, 294 Conn. 932, 986 A.2d 1057 (2010).
Our Supreme Court recently applied the reasoning
of Phillips to a similar case concerning an ineffective
assistance of counsel claim based on an actual conflict
of interest. In Rodriguez v. Commissioner of Correc-
tion, 312 Conn. 345, 348–49, A.3d (2014),
Eddie Rodriguez was convicted of burglary in the first
degree, attempt to commit assault in the first degree,
robbery in the first degree, interfering with an officer,
and carrying a dangerous weapon. He was represented
by Attorney Frank Cannatelli, who at the time he filed
his appearance on behalf of Rodriguez had bribery
charges pending against him, but who was acquitted
before the Rodriguez trial began.7 Id., 348. Cannatelli’s
prosecution occurred in the same judicial district as
Rodriguez’ trial. Id. Prior to jury selection, Rodriguez
expressed concern to the trial court that Cannatelli’s
prosecution created a conflict of interest. Id. The trial
court subsequently determined that no conflict existed.
Id. Rodriguez was found guilty by a jury on all charges,
and this court affirmed the trial court’s judgment. Id.,
349.
Subsequently, Rodriguez filed a petition for a writ
of habeas corpus arguing that Cannatelli’s prosecution
created an actual conflict of interest pursuant to Phil-
lips.8 Id. The habeas court denied the petition on the
basis of its findings that the press coverage of Canna-
telli’s prosecution was minimal and that Cannatelli gen-
erally had asked each prospective juror during
individual voir dire whether he or she recognized him.
Id., 349–50. This court affirmed the judgment of the
habeas court. Id., 351.
On appeal, our Supreme Court affirmed this court’s
judgment. The court agreed that the ‘‘impermissible
risk’’ articulated in Phillips that the jury would impute
Cannatelli’s conduct to Rodriguez was nonexistent and
held that Cannatelli did not have a conflict of interest
because (1) Cannatelli was acquitted, not convicted,
of his criminal charges; (2) Cannatelli’s charges were
nonviolent in nature while Rodriguez’ crimes involved
severe violence; (3) Cannatelli was not a popular politi-
cal figure and there was no evidence suggesting that
his case generated significant public interest or public-
ity; (4) there was no evidence that Cannatelli believed
that the prospective jurors knew of his arrest and prose-
cution; and (5) Cannatelli generally inquired during indi-
vidual voir dire whether any eventual juror recognized
him or his law firm. Id., 356–58.
Our Supreme Court established in Phillips that there
is no per se rule that ‘‘a conflict of interest arises any
time a lawyer who has been prosecuted or convicted of
a crime subsequently represents a criminal defendant.’’
Rodriguez v. Commissioner of Correction, supra, 131
Conn. App. 348. To determine whether a conflict of
interest exists here, we must consider ‘‘the facts of the
particular case, viewed as of the time of [the] counsel’s
conduct.’’ (Internal quotation marks omitted.) Phillips
v. Warden, supra, 220 Conn. 134. Accordingly, we must
undertake a careful consideration of the facts in the
present case to determine whether a conflict of interest
existed. See Rodriguez v. Commissioner of Correction,
supra, 348.
In the present case, the habeas court determined that
the ‘‘impermissible risk’’ articulated in Phillips did not
exist and, accordingly, that Silverstein did not have an
actual conflict of interest. The court distinguished the
facts of the underlying case from Phillips in four ways.
First, Silverstein was granted entry into the accelerated
rehabilitation program, which did not require an admis-
sion of guilt. Second, the publicity surrounding Sil-
verstein’s 2003 arrest and his being granted accelerated
rehabilitation was minimal, consisting of three on-line
articles. Third, Silverstein’s arrest occurred in New
Haven, whereas the petitioner’s case was tried in
Bridgeport, a city with which Silverstein had no signifi-
cant relationship. Fourth, the trial court had informed
the petitioner that he could compel Silverstein, pursu-
ant to Judge Silbert’s order, to inquire whether prospec-
tive jurors knew of his legal issues to identify jurors
who may have a bias against him.
After careful consideration of the facts in the present
case, we agree with the habeas court that the impermis-
sible risk articulated in Phillips was absent and that
there was no actual conflict of interest that rendered
Silverstein’s representation of the petitioner ineffective.
First, the publicity of Silverstein’s 2003 arrest and
related proceedings was minimal compared with Avcol-
lie’s media coverage in Phillips. Here, only a handful
of on-line newspaper articles covered Silverstein’s 2003
arrest and the court’s granting of his entry into the
accelerated rehabilitation program.9 See also Rodriguez
v. Commissioner of Correction, supra, 312 Conn. 357
(‘‘ ‘number of newspaper clippings and articles’ ’’ refer-
encing attorney’s prosecution and acquittal did not
amount to significant publicity). Further, Silverstein’s
arrest and entry into accelerated rehabilitation received
media coverage over the course of approximately one
year, but Avcollie’s proceedings and related media cov-
erage lasted over seven years. The petitioner argues
that this court should take into account Silverstein’s
prior arrest and the resolution of that case in 1999 in
conjunction with his 2003 arrest and being granted entry
into accelerated rehabilitation, creating a continuous
four year period during which Silverstein combatted
legal problems. We find this unavailing, as the 1999
arrest was an isolated incident that did not have ongoing
proceedings or coverage after its resolution upon Sil-
verstein’s completion of a diversionary program in 1999.
Second, unlike the facts in Phillips, Silverstein’s 2003
arrest occurred in a different judicial district than that
in which the petitioner was tried and convicted. Sil-
verstein’s arrest occurred in New Haven, but the peti-
tioner’s case was tried in Bridgeport. Moreover,
Silverstein was not a well-known public figure like
Avcollie. See id., 357–58 (fact that attorney was not
prominent public figure factored into conclusion that
no conflict existed). Third, unlike the facts in Phillips,
Silverstein was never convicted of the crimes charged
against him. Silverstein was granted entry into an accel-
erated rehabilitation program, which did not require a
lengthy and publicized trial or an admission of guilt.
The fact that Silverstein was never tried and found
guilty ‘‘mitigate[s] any concern that the jury would [have
been] biased toward the petitioner.’’ Id., 356. Further-
more, there was minimal overlap between Silverstein’s
proceedings and the petitioner’s trial. Fourth, although
both Silverstein and the petitioner were charged with
drug related crimes, none of the charges involved vio-
lent crimes. As our Supreme Court explained in Rodri-
guez, ‘‘it was the similarly violent nature of the serious
offenses in Phillips that enhanced the potential for
juror bias in that case.’’ (Emphasis in original.) Id., 357.
Finally, unlike the facts in Phillips, there is no evidence
showing that Silverstein believed that the prospective
jurors knew of his criminal charges. See id., 358 (fact
that attorney did not believe prospective jurors had
knowledge of his criminal charges factored into conclu-
sion that no conflict existed).
We acknowledge that, unlike the facts in Rodriguez,
Silverstein did not generally inquire during individual
voir dire whether any prospective juror recognized him.
Silverstein did, however, generally instruct all prospec-
tive jurors before individual voir dire to alert the court
if any of them recognized him, and the court individually
asked every eventual juror during individual voir dire
whether he or she had any potential bias in the case.
As a result, Silverstein’s failure to utilize individual voir
dire to further confirm that the individual prospective
jurors were not prejudiced does not undermine the
reasons previously discussed supporting our conclu-
sion that Silverstein did not have an actual conflict
of interest.
Before concluding our discussion, we briefly address
the petitioner’s argument that the trial court failed to
explain adequately Judge Silbert’s order to him and
improperly recommended against instructing Sil-
verstein to probe prospective jurors about the charges
against Silverstein. This argument is immaterial
because the habeas court’s reliance on the trial court’s
discussion with the petitioner regarding Judge Silbert’s
order was misplaced. Judge Silbert’s order appears to
have been intended to protect Silverstein’s clients from
jurors who were biased by requiring a prophylactic
inquiry to discover existing conflicts of interest. The
protection offered by the order would only be beneficial
if an actual conflict of interest existed. The petitioner’s
alleged lack of knowledge regarding his authority under
the order and his failure to exercise that authority in
no way impacted the existence of a conflict of interest
for Silverstein.10 As we have determined, Silverstein did
not have a conflict of interest in this case and any
inadequacy or impropriety in the trial court’s explana-
tion of the petitioner’s rights under Judge Silbert’s order
is inconsequential to that issue.
II
Second, the petitioner claims that the habeas court
improperly failed to inquire whether a potential conflict
of interest existed after it determined that Silverstein
did not have an actual conflict of interest. The petitioner
failed to raise this claim in his fourth amended petition
for a writ of habeas corpus or before the habeas court.
‘‘It is well established that [w]e do not entertain claims
not raised before the habeas court but raised for the first
time on appeal.’’ (Internal quotation marks omitted.)
Hankerson v. Commissioner of Correction, 150 Conn.
App. 362, 369, 90 A.3d 368 (2014). ‘‘[I]t is axiomatic that
a petitioner is bound by his petition. . . . While 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. . . . Having
not raised [an] issue before the habeas court, [a] peti-
tioner is barred from raising it on appeal. . . . This
court is not bound to consider claimed errors unless it
appears on the record that the question was distinctly
raised . . . and was ruled upon and decided by the
court adversely to the [petitioner’s] claim. . . . This
court is not compelled to consider issues neither alleged
in the habeas petition nor considered at the habeas
proceeding . . . .’’ (Internal quotation marks omitted.)
Id., 367; see also Rodriguez v. Commissioner of Correc-
tion, supra, 131 Conn. App. 351 (no review when peti-
tioner raised claim for first time on appeal).
Accordingly, we decline to review this claim on appeal.
III
Finally, the petitioner claims that the habeas court
erred in dismissing his due process claim alleging that
the trial court’s failure to properly canvass him and
to inquire into Silverstein’s alleged conflict of interest
denied him the opportunity to make a knowing and
voluntary waiver of his right to conflict free representa-
tion. The petitioner’s claim is immaterial because Sil-
verstein did not have an actual conflict of interest. It
would be incongruous to vacate the petitioner’s convic-
tion due to the trial court’s allegedly inadequate canvass
and failure to inquire into a potential conflict of interest
following our conclusion that there was no conflict of
interest in this case. Myers v. Commissioner of Correc-
tion, 68 Conn. App. 31, 38–39, 789 A.2d 999, cert. denied,
260 Conn. 907, 795 A.2d 545 (2002); see also State v.
Cruz, 41 Conn. App. 809, 816, 678 A.2d 506, cert. denied,
239 Conn. 908, 682 A.2d 1008 (1996) (no further inquiry
or waiver required when no conflict existed). Accord-
ingly, we conclude that the habeas court correctly dis-
missed the petitioner’s due process claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The first part of the information charged the petitioner with possession
of narcotics with intent to sell in violation of General Statutes § 21a-278
(b), possession of narcotics with intent to sell by a person who is not drug-
dependent within 1500 feet of a school or housing project in violation of
General Statutes § 21a-278a (b), possession of narcotics in violation of Gen-
eral Statutes § 21a-279 (a), and interfering with an officer in violation of
General Statutes § 53a-167a. The second part of the information charged
the petitioner with committing the crimes cited while released on bond in
violation of General Statutes § 53a-40b.
2
The order further required, inter alia, Silverstein to ‘‘discuss with the
client[s] the basis for the advice, including Phillips v. Warden, 220 Conn.
112 [595 A.2d 1356] (1991)’’ and to offer clients the opportunity to consult
with independent counsel of the clients’ choosing concerning the issue at
Silverstein’s expense.
3
Judge Silbert’s order referred to Silverstein’s criminal charges, but the
trial court told the petitioner that he could require Silverstein to inquire
whether prospective jurors knew of his grievance charge.
4
The petitioner first filed a petition for a writ of habeas corpus on June
2, 2008. Subsequently, the petitioner filed amended petitions on July 28,
October 11, and December 12, 2011.
5
The petitioner filed a reply to the return on October 19, 2011. The peti-
tioner later submitted a final amended petition on the first day of trial,
December 12, 2011. The parties agreed to permit the petitioner to file the
amended petition and to allow the respondent to submit a reply to clarify
any scrivener’s errors or responses previously filed that were based on
allegations in the amended petition dated October 11, 2011. The respondent
subsequently filed a reply to the petitioner’s amended petition on December
14, 2011, a day after the trial had ended.
6
The court did not address the respondent’s special defense of procedural
default in its memorandum of decision.
7
Cannatelli filed his appearance on behalf of Rodriguez on May 29, 1991.
Rodriguez v. Commissioner of Correction, supra, 312 Conn. 348. Cannatelli’s
trial began in October, 1991, and the judgment was rendered on October
29, 1991. Id. Jury selection for Rodriguez’ trial began on November 26,
1991. Id.
8
In 2002, Rodriguez had commenced his probation when he was arrested
for violating the terms of his probation. Rodriguez v. Commissioner of
Correction, supra, 312 Conn. 349. The court determined that Rodriguez had
violated the terms of his probation and sentenced him to serve the remaining
seven years of his unexecuted sentence. Id. The operative petition for a
writ of habeas corpus was filed in December, 2008. Id.
9
The petitioner submitted into evidence a single article that covered
Silverstein’s 1999 arrest. The habeas court found that various television
agencies had covered Silverstein’s 2003 arrest and his entry into the acceler-
ated rehabilitation program, but the record does not contain evidence regard-
ing such television coverage.
10
In fact, our Supreme Court acknowledged ‘‘inherent flaws’’ in requiring
an attorney to ‘‘inform previously unaware jurors of the fact of the attorney’s
criminal prosecution,’’ noting that such a disclosure would ‘‘create bias
where none may have existed.’’ Rodriguez v. Commissioner of Correction,
supra, 312 Conn. 359.