Foote v. Commissioner of Correction ( 2014 )

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EUGENE FOOTE, JR. v. COMMISSIONER
OF CORRECTION
(AC 35129)
DiPentima, C. J., and Keller and Pellegrino, Js.
Argued February 6—officially released July 15, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
David B. Bachman, assigned counsel, for the appel-
lant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Maureen Platt, state’s attorney, and
Eva B. Lenczewski, supervisory assistant state’s attor-
ney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Eugene Foote, Jr.,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his petition for a writ of habeas corpus. On
appeal, the petitioner claims that the failure of the
habeas court to inquire adequately into his request for
new counsel was (1) an abuse of discretion and (2)
plain error. We dismiss the appeal.
The following facts and procedural history are rele-
vant to our resolution of this appeal. ‘‘At approximately
6 o’clock in the morning of July 2, 2007, Glorimary
Guerra heard a knock on her door at 45 Long Hill Road
in Waterbury. Expecting her boyfriend, she opened the
door to instead find the [petitioner] there. When he
inquired if anyone was hiding inside the apartment,
Guerra responded in the negative. As she began to close
the door, the [petitioner] pushed her back into the apart-
ment and entered. The [petitioner] then brandished a
black-handled knife and proceeded through each room
of the apartment with Guerra. As this transpired, the
[petitioner] repeatedly insisted that Guerra was hiding
someone, and Guerra attempted to convince him other-
wise. Because she was unsure of his intent, Guerra
constantly looked at the [petitioner’s] face. When they
entered the kitchen, the [petitioner] proceeded to the
back door, at which point Guerra attempted to flee to
the front door of the apartment. That effort proved
unsuccessful, as the [petitioner] ran after her and closed
the door. Fearful, Guerra sat down and began to cry.
The [petitioner] then attempted to calm Guerra. As she
testified at trial: ‘[H]e was just telling me . . . that he’s
just looking for the person, that he wants me to tell
him who the person is, and I’m telling him I don’t know
where the person is. He’s telling me to calm down, that
he’s not going to hurt [me]. But I don’t know how he
wants me to calm down because he’s already in my
house with the knife out, I’m pregnant, I’m seven and
a half months pregnant, and I’m just scared, I don’t
know what to do. . . .’ The [petitioner] gave Guerra $3
and exited the apartment, at which point Guerra called
911 to report the incident.’’ State v. Foote, 122 Conn.
App. 258, 259–60, 998 A.2d 240, cert. denied, 298 Conn.
913, 4 A.3d 834 (2010).
‘‘The [petitioner] thereafter was charged by long form
information with burglary in the first degree in violation
of General Statutes (Rev. to 2007) § 53a-101 (a) (1) and
unlawful restraint in the first degree in violation of
[General Statutes] § 53a-95 (a). . . . A trial followed, at
the conclusion of which the jury found the [petitioner]
guilty on both counts. The court rendered judgment
accordingly and sentenced the [petitioner] to a total
effective term of twenty years incarceration.’’ Id., 261.
The petitioner filed a direct appeal challenging the
court’s judgment and this court affirmed the conviction.
Id., 270.
On January 7, 2009, on his own behalf, the petitioner
filed a petition for a writ of habeas corpus, claiming,
inter alia, that he received ineffective assistance of trial
counsel because his trial counsel had failed to investi-
gate and to present adequately his alibi defense, and
because his trial counsel failed to investigate his mental
health. In response to the petitioner’s motion, the court
appointed him habeas counsel on September 3, 2009.
On December 7, 2010, pursuant to Practice Book § 23-
41, Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967), and State v. Pascucci, 161
Conn. 382, 386–87, 288 A.2d 408 (1971), the petitioner’s
habeas counsel moved for permission to withdraw his
appearance, claiming that there were no nonfrivolous
issues to be raised in the petitioner’s habeas petition.1
The petitioner filed a written objection to habeas coun-
sel’s motion. The court, Solomon, J., denied the motion
for permission to withdraw after finding that, although
habeas counsel’s ‘‘investigation and conclusions regard-
ing the investigation and presentation of petitioner’s
alibi defense [were] sufficient . . . his investigation
into the mental health issues raised by the petitioner
[were] not adequately addressed in his Report to Court
In Support of Motion to Withdraw.’’ Thereafter, the
petitioner’s habeas counsel continued to represent the
petitioner, and appeared with the petitioner at his
habeas trial on September 19, 2012.
Prior to the commencement of the habeas trial, the
petitioner’s habeas counsel informed the court that he
had just learned that the petitioner intended to ask the
court to discharge him as the petitioner’s attorney. The
petitioner alleged that he had received a ‘‘letter’’ from
Judge Solomon in which it stated that his habeas coun-
sel was to investigate his medical records. The peti-
tioner further alleged that in the nine months since he
received the ‘‘letter’’ from Judge Solomon, his habeas
counsel did not meet with him until the day of trial and
did not review his medical records.
The petitioner’s habeas counsel asserted that he had
met with his client the week before his trial and that
the petitioner did not voice any concerns to him at
that time. He further explained that the ‘‘letter’’ the
petitioner was referring to was actually under seal and
was in response to a motion he had filed regarding the
petitioner’s claims.2 He indicated to the habeas court,
Cobb, J., that on the basis of his review of ‘‘all of the
documents and all of the evidence . . .’’ that he did
not think there was any relevance to the issues that the
petitioner had just brought to the attention of the habeas
court. The habeas court denied the petitioner’s request
for new counsel, stating that there was no motion before
the court to remove the petitioner’s current habeas
counsel and that the petitioner was only bringing his
concern to the court on the day of trial. The habeas trial
proceeded, and after the hearing, the court rendered an
oral decision from the bench. The habeas court found
that the petitioner had failed to meet his burden of
proof as to his claim of ineffective assistance of trial
counsel, and denied his petition for a writ of habeas
corpus. Thereafter, the petitioner requested certifica-
tion to appeal from the judgment of the habeas court.
In his petition for certification, the petitioner claimed
that the habeas court erred by finding that he received
effective assistance of trial counsel. The petitioner also
included a general request that the habeas court certify
‘‘[a]ny other issues that become apparent upon a review
of the record.’’ On October 4, 2012, the habeas court
denied the petition for certification to appeal. This
appeal followed.
I
The petitioner claims that the habeas court erred in
denying his petition for certification to appeal because
the failure of the habeas court to inquire adequately
into his request for new habeas counsel was an abuse
of discretion. The petitioner’s claim lacks merit.
General Statutes § 52-470 (g) provides: ‘‘No appeal
from the judgment rendered in a habeas corpus pro-
ceeding brought by or on behalf of a person who has
been convicted of a crime in order to obtain such per-
son’s release may be taken unless the appellant, within
ten days after the case is decided, petitions the judge
before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated
by the Chief Court Administrator, to certify that a ques-
tion is involved in the decision which ought to be
reviewed by the court having jurisdiction and the judge
so certifies.’’
‘‘Our Supreme Court has explained that one of the
goals of this statute is to limit the number of appeals
filed in criminal cases and to hasten the conclusion of
the criminal justice process. . . . Additionally, § 52-
470 [g] acts as a limitation on the scope of review, and
not the jurisdiction, of the appellate tribunal.’’ (Citation
omitted.) Logan v. Commissioner of Correction, 125
Conn. App. 744, 750, 9 A.3d 776 (2010), cert. denied,
300 Conn. 918, 14 A.3d 333 (2011).
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated 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. . . .
Second, if the petitioner can show an abuse of discre-
tion, he must then prove that the decision of the habeas
court should be reversed on its merits.’’ (Internal quota-
tion marks omitted.) Logan v. Commissioner of Correc-
tion, supra, 125 Conn. App. 750–51.
‘‘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.’’ (Internal
quotation marks omitted.) Id., 751; see also Reddick v.
Commissioner of Correction, 51 Conn. App. 474, 477,
722 A.2d 286 (1999).
In the present case, the only claim advanced by the
petitioner in his petition for a writ of habeas corpus
was ineffective assistance of trial counsel. On appeal,
the petitioner does not claim that the court abused its
discretion in denying certification to appeal from the
denial of his habeas petition on the ground that the
resolution of his claim of ineffective assistance of trial
counsel is debatable among jurists of reason or could
be resolved differently by another court. Instead, the
petitioner argues that the court abused its discretion
in denying his oral request for new habeas counsel, an
issue that the petitioner did not present to the habeas
court in his petition for certification, but one that he
raises for the first time on appeal to this court. This
court has held that ‘‘a court [cannot] abuse its discretion
in failing to grant a [petitioner’s] certification to appeal
to challenge an issue that was not first presented to
the [habeas] court and then ruled upon by it.’’ Mitchell
v. Commissioner of Correction, 68 Conn. App. 1, 7, 790
A.2d 463, 467, cert. denied, 260 Conn. 903, 793 A.2d
1089 (2002). Accordingly, this claim fails.
II
The petitioner next claims that it was plain error for
the habeas court to deny his request for new habeas
counsel without adequately investigating his request.
We disagree.
As discussed in part I of this opinion, we note that the
petitioner did not preserve his request for new habeas
counsel claim by presenting it in his petition for certifi-
cation to appeal. The petitioner alternatively seeks to
prevail on his claim pursuant to the plain error doctrine.
‘‘[T]he plain error doctrine . . . has been codified at
Practice Book § 60-5, which provides in relevant part
that [t]he court may reverse or modify the decision of
the trial court if it determines . . . that the decision is
. . . erroneous in law.’’ (Internal quotation marks omit-
ted.) State v. D’Antonio, 274 Conn. 658, 669, 877 A.2d
696 (2005). ‘‘The plain error doctrine is not . . . a rule
of reviewability. It is a rule of reversibility. That is, it
is a doctrine that this court invokes in order to rectify
a trial court ruling that, although either not properly
preserved or never raised at all in the trial court, none-
theless requires reversal of the trial court’s judgment,
for reasons of policy. . . . The plain error doctrine is
reserved for truly extraordinary situations where the
existence of the error is so obvious that it affects the
fairness and integrity of and public confidence in the
judicial proceedings. . . . A party cannot prevail under
plain error unless he demonstrates that the claimed
error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injus-
tice.’’ (Internal quotation marks omitted.) Ajadi v. Com-
missioner of Correction, 280 Conn. 514, 526, 91 A.2d
712 (2006) (applying plain error doctrine to petitioner’s
unpreserved claim of judicial misconduct following
denial of petitioner’s petition for certification to appeal
by habeas court); see also Melendez v. Commissioner
of Correction, 141 Conn. App. 836, 841, 62 A.3d 629(Appellate Court affording petitioner plain error review
to claim not preserved in petition for certification to
appeal), cert. denied, 310 Conn. 921, 77 A.3d 143 (2013).
Although there is no constitutional right to counsel
for a habeas petitioner as there is for a criminal defen-
dant, ‘‘General Statutes § 51-296 . . . creates a statu-
tory right to counsel . . . for an indigent [petitioner]
. . . in any habeas corpus proceeding arising from a
criminal matter . . . .’’ (Emphasis in original; internal
quotation marks omitted.) Morgan v. Commissioner of
Correction, 87 Conn. App. 126, 132, 866 A.2d 649 (2005);
see also Practice Book § 44-1. We, therefore, look
toward established legal principles addressing a defen-
dant’s right to counsel to guide our analysis in this
case. ‘‘A defendant has no unbridled right to discharge
counsel on the eve of trial . . . . In order to work a
delay by a last minute discharge of counsel there must
exist exceptional circumstances. . . . The right to
counsel . . . does not include . . . an unlimited
opportunity to obtain alternate counsel . . . or the
absolute right to counsel of one’s choice that must give
way to the need for fair and efficient administration of
justice. . . .
‘‘While a criminal defendant’s right to be represented
by counsel implies a degree of freedom to be repre-
sented by counsel of [the] defendant’s choice . . . this
guarantee does not grant a defendant an unlimited
opportunity to obtain alternate counsel on the eve of
trial. . . . Although the court has a responsibility to
inquire into and to evaluate carefully all substantial
complaints concerning court-appointed counsel . . .
the extent of such inquiry lies within the court’s sound
exercise of discretion. After it has given the defendant
an adequate opportunity to inform it of his or her com-
plaints, the court has broad discretion in determining
whether circumstances warrant the appointment of
new counsel or the dismissal of the defendant’s existing
counsel.’’ (Citations omitted; emphasis omitted; inter-
nal quotation marks omitted.) State v. Turner, 133
Conn. App. 812, 820, 37 A.3d 183, cert. denied, 304 Conn.
929, 42 A.3d 390 (2012). ‘‘It is within the trial court’s
discretion to determine whether a factual basis exists
for appointing new counsel. . . . Moreover, absent a
factual record revealing an abuse of that discretion, the
court’s failure to allow new counsel is not reversible
error. . . . Such a request must be supported by a sub-
stantial reason and, [i]n order to work a delay by a last
minute discharge of counsel there must exist excep-
tional circumstances.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. David M., 109 Conn. App.
172, 177, 950 A.2d 599, cert. denied, 289 Conn. 924, 958
A.2d 154 (2008).
After the petitioner requested new habeas counsel,
the habeas court adequately inquired into the matter
and permitted the petitioner to provide an explanation
as to why he wanted alternate counsel. In response,
the petitioner represented that his counsel had failed
to meet with him and had failed to investigate his mental
health. Upon further inquiry, the petitioner’s habeas
counsel represented that he had met with the petitioner
the week prior and that the petitioner had not indicated
that he was dissatisfied with his representation. The
petitioner’s habeas counsel also stated that he intended
to assist his client in presenting testimony.3 Aside from
the petitioner’s general complaints, which the court
did not credit, the petitioner failed to offer any further
reasons to support his verbal motion for the appoint-
ment of new habeas counsel. The petitioner’s bare
assertions did not create a factual record to support a
finding of good cause or exceptional circumstances
to warrant a last minute change in habeas counsel.
Accordingly, we conclude that there is no error so obvi-
ous that it affects the fairness and integrity of and public
confidence in the judicial proceedings. Thus, this claim
also fails.
The appeal is dismissed.
In this opinion PELLEGRINO, J., concurred.
1
Pursuant to Practice Book § 23-41 (c), the petitioner’s habeas counsel
filed the motion for permission to withdraw and the accompanying report
under seal.
2
See footnote 1 of this opinion.
3
The petitioner’s habeas counsel continued by saying, ‘‘I explained to [the
petitioner] and [he] persists with his version of what happened from both
at the trial and to this day. Based on my review, all of the documents and
all of the evidence and everything that I have, I don’t think that there’s any
relevance to any of the issues that he’s just brought up as far as potential
habeas claims.’’