Turner v. Commissioner of Correction ( 2016 )

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COREY TURNER v. COMMISSIONER OF
CORRECTION
(AC 36601)
Alvord, Sheldon and Mullins, Js.
Argued December 9, 2015—officially released March 8, 2016
(Appeal from Superior Court, judicial district of
Tolland, White, J. [judgment]; Cobb, J. [motion to
open].)
Corey Turner, self-represented, the appellant (peti-
tioner).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Angela R. Macchiarulo, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Corey Turner, appeals
from the judgment of the habeas court denying his
motion to open and set aside a 2002 habeas judgment
and denying him certification to appeal from that deci-
sion. On appeal, the petitioner claims that the habeas
court, Cobb, J., abused its discretion by denying his
petition for certification to appeal and determining that
his motion to open and set aside the judgment of the first
habeas court, White, J., was time barred. We dismiss the
appeal.
The following facts and procedural history are rele-
vant to this appeal. In 1997, the petitioner was convicted
of murder in violation of General Statutes § 53a-54a
and first degree assault in violation of General Statutes
§ 53a-59. In 2000, our Supreme Court affirmed his con-
viction. State v. Turner, 252 Conn. 714, 751 A.2d 372
(2000). The petitioner’s first petition for writ of habeas
corpus, which is the focus of the present appeal, was
adjudicated in 2002. In that case, the habeas court,
White, J., denied the petitioner’s writ of habeas corpus
alleging claims of ineffective assistance of counsel both
in his underlying criminal trial and on his direct appeal.
This court dismissed the petitioner’s appeal. Turner v.
Commissioner of Correction, 86 Conn. App. 341, 861
A.2d 522 (2004), cert. denied, 272 Conn. 914, 866 A.2d
1286 (2005).1
During his 2002 habeas trial, the petitioner alleged
that his criminal trial counsel had been ineffective for
failing to convince the criminal trial court to admit
evidence that supported his defense of alibi. The peti-
tioner had testified, during his criminal trial, that he
was with an acquaintance at the time of the murder.
He called the acquaintance witness to testify and she
repeated the same story. During cross-examination of
the petitioner, the state questioned him about a
recorded prison phone call between the petitioner and
the acquaintance witness, suggesting that he had fabri-
cated the story. In an attempt to refute the state’s rebut-
tal evidence, the petitioner’s criminal trial counsel
attempted to admit into evidence the recording of the
phone call between the petitioner and the acquaintance
witness, but the trial court sustained the state’s
objection.2
In his first habeas trial, the petitioner called his crimi-
nal trial counsel as a witness in an effort to elicit testi-
mony that would show that he had been ineffective by
failing to have the recorded phone call admitted as
evidence in the criminal trial. On cross-examination,
the petitioner’s criminal trial counsel testified that the
petitioner presented him with two witnesses who would
testify to an alibi, in addition to and separate from
the acquaintance witness. The petitioner’s criminal trial
counsel testified that initially during the trial, he inter-
viewed one of the two additional witnesses and found
that she was not credible and thus did not present their
testimony in the petitioner’s defense. The petitioner,
representing himself at the habeas trial, attempted to
impeach his criminal trial counsel through use of a
prior inconsistent statement concerning the additional
witnesses. The petitioner sought to admit as evidence
the criminal trial counsel’s written response to a 1997
grievance that was filed against him by the petitioner.
The petitioner claimed that the written response proved
that the petitioner provided his criminal trial counsel
with only the one acquaintance witness in regard to his
alibi, contradicting counsel’s habeas testimony.3 How-
ever, the habeas court sustained the objection of the
respondent, the Commissioner of Correction, to the
introduction of this extrinsic evidence because the
habeas court concluded that the statements would be
cumulative and involved a collateral matter. The next
day, the petitioner moved for a mistrial because he
claimed that his criminal trial counsel had perjured
himself and the court had denied him the opportunity
to present evidence that would have supported that
claim. The court denied the motion. Ultimately, the
habeas court, White, J., denied the petitioner’s writ
of habeas corpus. The petitioner appealed from the
judgment of the habeas court, but he did not argue that
the court had erred by sustaining the state’s objection
to his admission of the grievance response into evi-
dence. This court dismissed the appeal. Turner v. Com-
missioner of Correction, supra, 86 Conn. App. 343.
On July 27, 2011, the petitioner filed a motion to open
and set aside the 2002 judgment of the habeas court,
White, J., on his first petition for writ of habeas corpus.
The petitioner claimed that the judgment resulted from
a fraud committed upon the court through the collusion
of his criminal trial counsel and the respondent’s coun-
sel in the first habeas action. Specifically, the petitioner
claimed that his criminal trial attorney had perjured
himself in testimony before the habeas court, White,
J., and that the respondent’s counsel had intentionally
elicited this testimony even though she knew that it
was false.4 During the habeas court’s hearing on the
motion, the petitioner argued that his criminal trial
counsel’s statement regarding multiple alibis had under-
mined his petition for writ of habeas corpus because
it supported the respondent’s contention that the
acquaintance witness’ testimony as to the petitioner’s
alibi had been fabricated. The habeas court, Cobb, J.,
denied the petitioner’s motion to open and set aside
the judgment based on his failure to satisfy any of the
factors set out in Varley v. Varley, 180 Conn. 1, 4, 428
A.2d 317 (1980), to prove that the judgment was based
on fraud.5 The habeas court also denied the petitioner
certification to appeal.6 This appeal of the habeas
court’s denial of certification followed.
‘‘We begin by setting forth the applicable standard
of review and procedural hurdles that the petitioner
must surmount to obtain appellate review of the merits
of a habeas court’s denial of the habeas petition follow-
ing denial of certification to appeal. In Simms v. War-
den, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our
Supreme Court] concluded that . . . [General Stat-
utes] § 52-470 (b) prevents a reviewing court from hear-
ing the merits of a habeas appeal following the denial of
certification to appeal unless the petitioner establishes
that the denial of certification constituted an abuse of
discretion by the habeas court. . . . This standard
requires the petitioner to demonstrate that the issues
are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . . A petitioner who establishes an
abuse of discretion through one of the factors listed
above must then demonstrate that the judgment of the
habeas court should be reversed on its merits. . . .
In determining whether the habeas court abused its
discretion in denying the petitioner’s request for certifi-
cation, we necessarily must consider the merits of the
petitioner’s underlying claims to determine whether the
habeas court reasonably determined that the petition-
er’s appeal was frivolous.’’ (Citations omitted; emphasis
in original; internal quotation marks omitted.) Brewer
v. Commissioner of Correction, 162 Conn. App. 8, 12–
13, A.3d (2015).
‘‘Habeas corpus is a civil proceeding. . . . The prin-
ciples that govern motions to open or set aside a civil
judgment are well established. A motion to open and
vacate a judgment . . . is addressed to the [trial]
court’s discretion, and the action of the trial court will
not be disturbed on appeal unless it acted unreasonably
and in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
its action. . . . The manner in which [this] discretion
is exercised will not be disturbed so long as the court
could reasonably conclude as it did.’’ (Citation omitted;
internal quotation marks omitted.) Foote v. Commis-
sioner of Correction, 125 Conn. App. 296, 300, 8 A.3d
524 (2010).
A motion to open and set aside judgment is governed
by General Statutes § 52-212a and Practice Book § 17-
4. Dougherty v. Dougherty, 109 Conn. App. 33, 38, 950
A.2d 592 (2008). Section 52-212a provides in relevant
part: ‘‘Unless otherwise provided by law and except in
such cases in which the court has continuing jurisdic-
tion, 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. . . .’’
For claims of fraud brought in a civil action, our
Supreme Court has established the criteria necessary
for a party to overcome the statutory time limitation
governing a motion to open and set aside judgment.
Varley v. Varley, supra, 180 Conn. 4. ‘‘To have a judg-
ment set aside on the basis of fraud which occurred
during the course of the trial upon a subject on which
both parties presented evidence is especially difficult.
. . . The question presented by a charge of fraud is
whether a judgment that is fair on its face should be
examined in its underpinnings concerning the very mat-
ters it purports to resolve. Such relief will only be
granted if the unsuccessful party is not barred by any
of the following restrictions: (1) There must have been
no laches or unreasonable delay by the injured party
after the fraud was discovered. (2) There must have
been diligence in the original action, that is, diligence
in trying to discover and expose the fraud. (3) There
must be clear proof of the perjury or fraud. (4) There
must be a substantial likelihood that the result of the
new trial will be different.’’7 Id., 3–4.
In the present case, the habeas court properly denied
the petitioner’s motion to open and set aside the judg-
ment because it was raised after an unreasonable delay.
The habeas court, White, J., denied the petitioner’s first
petition for a writ of habeas corpus on January 4, 2002.
More than eight years later, the petitioner filed the pre-
sent motion with the habeas court, Cobb, J. During that
span of time, the petitioner did not develop any new
facts or claims to support his assertion of fraud. The
petitioner instead seeks to set aside the habeas court’s
judgment with facts that were known to him, as well
as to the habeas court, at the time of his first petition
for a writ of habeas corpus. The petitioner has not
offered this court any argument that justifies his lengthy
delay in bringing this motion in a habeas action. The
determination that the petitioner delayed an unreason-
able period of time in pursuit of his claim of fraud is
not debatable among jurists of reason.
Because the petitioner cannot succeed on the first
Varley factor, we need not consider the remaining fac-
tors. See Varley v. Varley, supra, 180 Conn. 4. The
petitioner’s 2011 motion to open and set aside a judg-
ment that was final in 2002 was brought after an unrea-
sonable delay. The habeas court properly denied this
motion. Accordingly, we conclude that the habeas court
did not abuse its discretion in denying the petition for
certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Since his original petition for a writ of habeas corpus, the petitioner has
sought the review of the appellate courts multiple times including unsuccess-
fully filing and appealing: (1) three other petitions for a writ of habeas
corpus, (2) a writ of error coram nobis, and (3) a motion to open and set
aside judgment of the underlying conviction in the criminal trial court. See
Turner v. Commissioner of Correction, 118 Conn. App. 565, 984 A.2d 793
(2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010); Turner v. Commis-
sioner of Correction, 97 Conn. App. 15, 902 A.2d 716, cert. denied, 280 Conn.
922, 908 A.2d 546 (2006); Turner v. Dzurenda, 596 F. Supp. 2d 525 (D. Conn.
2009), aff’d, 381 Fed. Appx. 41 (2d Cir. 2010), cert. denied, 562 U.S. 1032,
131 S. Ct. 574, 178 L. Ed. 2d 419 (2010); Turner v. State, 134 Conn. App.
906, 40 A.3d 345, cert. denied, 307 Conn. 904, 53 A.3d 219 (2012); State v.
Turner, 139 Conn. App. 906, 55 A.3d 626 (2012), cert. denied, 308 Conn.
946, 67 A.3d 289 (2013).
2
The Supreme Court, in 2000, addressed this claim on direct appeal of
the criminal trial conviction: ‘‘In the trial court, Corey Turner did not point
to anything in the offered tape that would have been helpful to his case
with regard to the state’s rebuttal evidence. Rather, he argued that the offered
tape would substantiate his testimony on cross-examination concerning his
conversation with [the acquaintance witness]. Bolstering of defense evidence
is not permitted on surrebuttal. . . . We conclude that there were no com-
pelling reasons for the trial court to admit Corey Turner’s surrebuttal evi-
dence.’’ (Citation omitted.) State v. Turner, supra, 252 Conn. 724.
3
A careful review of the grievance response does not reveal a clear discrep-
ancy between the response and testimony of the petitioner’s criminal trial
counsel. In the 1997 grievance, the petitioner’s criminal trial counsel was
writing in response to the petitioner’s specific claim that he did not interview
the witness who supported his alibi: ‘‘On Friday, July 25, at the end of the
first week of evidence in the trial, Petitioner did, for the first time, reveal
to me the identity of his alibi witness; her name was Fonda Williams.’’ The
state argues that any discrepancy was explained by the petitioner’s criminal
trial counsel in his response to a second grievance filed by the petitioner.
The statement was made in a grievance response dated March 21, 2003; a
document that the petitioner included in his pretrial brief to the habeas
court supporting his motion to open and vacate the judgment. Counsel
stated: ‘‘My dialogue with these women took place 7 years ago and my
recollection of precisely what was said may be sketchy. I do recall, however,
that at no time did either of these women tell me they were acting on their
own. Further . . . in future dialogues I had with [the petitioner] about these
women, [the petitioner] never stated or even suggested that the two women
were acting on their own without his knowledge.’’
4
‘‘[The Rules of Professional Conduct] confirm that the legal profession
has accepted that an attorney’s ethical duty to advance the interests of his
client is limited by an equally solemn duty to comply with the law and
standards of professional conduct; it specifically ensures that the client may
not use false evidence. This special duty of an attorney to prevent and
disclose frauds upon the court derives from the recognition that perjury is
as much a crime as tampering with witnesses or jurors by way of promises
and threats, and undermines the administration of justice.’’ (Internal quota-
tion marks omitted.) State v. Chambers, 296 Conn. 397, 420–21, 994 A.2d
1248 (2010).
5
The habeas court stated: ‘‘The petitioner’s delay in filing the motion to
open is unreasonable, the prosecution of said motion has not been diligent,
there is no clear proof of perjury or fraud, and there is no reasonable
probability that the result of a new habeas trial will be different.’’
6
After the habeas court denied the petitioner’s motion to open and set
aside the judgment in a memorandum of decision dated December 19, 2012,
the petitioner filed two motions for reconsideration that were denied. On
June 17, 2013, the petitioner sought to appeal from the judgment of the
habeas court, but this court dismissed the appeal because the petitioner
had not sought certification to appeal from the habeas court. The petitioner
filed a petition for certification to appeal with the habeas court that was
denied on November 7, 2013. On March 3, 2014, the petitioner appealed
from the habeas court’s denial of his petition for certification to appeal.
Thereafter, the petitioner filed with the habeas court several motions for
articulation that were also denied.
7
Our Supreme Court later modified the fourth requirement: ‘‘[W]e disavow
the phrasing employed in Varley and rephrase the fourth prong to require
a movant to demonstrate a reasonable probability, rather than a substantial
likelihood, that the result of a new trial will be different.’’ Duart v. Dept.
of Correction, 303 Conn. 479, 491, 34 A.3d 343 (2012).