Perillo v. Commissioner of Correction , 149 Conn. App. 58 ( 2014 )

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RUSSELL PERILLO v. COMMISSIONER OF
CORRECTION
(AC 34604)
DiPentima, C. J., and Beach and Keller, Js.
Submitted on briefs January 22—officially released March 25, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Matthew D. Dyer, assigned counsel, filed a brief for
the appellant (petitioner).
David S. Shepack, state’s attorney, Timothy F. Cos-
tello, assistant state’s attorney, and Marcia A. Pillsbury,
deputy assistant state’s attorney, filed a brief for the
appellee (respondent).
Opinion
PER CURIAM. The petitioner, Russell Perillo, appeals
from the denial of certification to appeal from the denial
of his petition for a writ of habeas corpus. In an unusual
approach, the petitioner forgoes any challenge to the
actions of the criminal trial counsel and instead makes
the claim that his habeas counsel provided ineffective
assistance of counsel during the proceedings underlying
this appeal. We dismiss the appeal.
On February 11, 2008, the petitioner pleaded guilty
pursuant to the Alford1 doctrine to manslaughter in the
first degree in violation of General Statutes § 53a-55 (a)
(3) and escape from custody in violation of General
Statutes § 53a-171 (a) (1). The court sentenced the peti-
tioner in accordance with a plea deal to thirty years
incarceration, suspended after twenty years, and five
years probation. The petitioner did not file a direct
appeal from this conviction, but instead commenced the
present habeas action acting as a self-represented party.
On August 25, 2011, Attorney Michael D. Day filed a
second amended petition for a writ of habeas corpus
on behalf of the petitioner. The petition alleged that the
petitioner’s criminal trial counsel, Attorney Christopher
M. Cosgrove, had provided constitutionally deficient
representation in a variety of ways, including the failure
to investigate, the failure to advance a claim of self-
defense pursuant to General Statutes § 53a-19, and the
failure to assist the petitioner with his mental health
issues. The petition also alleged that the petitioner’s
right to due process was violated because his plea was
not knowing, intelligent and voluntary.
On February 28, 2012, after trial, the court issued an
oral decision2 denying the petition for a writ of habeas
corpus.3 On February 29, 2012, the petitioner filed a
petition for certification to appeal the denial of his
petition for a writ of habeas corpus. Specifically, he
sought certification for the following issues: ‘‘(1)
Whether the [p]etitioner’s constitutional right to the
effective assistance of counsel . . . was violated; and
(2) [w]hether the petitioner’s due process rights were
violated because his plea was not knowing, intelligent
and voluntary.’’ The court denied the petition for certifi-
cation to appeal on March 2, 2012. This appeal followed.
The Office of the Chief Public Defender filed an
appearance in lieu of Day and appealed from the denial
of certification to appeal and the judgment of the habeas
court. Attorney Matthew D. Dyer subsequently
appeared as assigned counsel in place of the public
defender’s office and submitted an appellate brief chal-
lenging the actions of Day, the petitioner’s habeas trial
counsel, and not Cosgrove, his criminal trial counsel.
‘‘Faced with the habeas court’s denial of certification
to appeal, a petitioner’s first burden is to demonstrate
that the habeas court’s ruling constituted an abuse of
discretion. Abuse of discretion is the proper standard
because that is the standard to which we have held
other litigants whose rights to appeal the legislature
has conditioned upon the obtaining of the trial court’s
permission. . . . If the petitioner succeeds in sur-
mounting that hurdle, the petitioner must then demon-
strate that the judgment of the habeas court should be
reversed on its merits. . . . To prove an abuse of dis-
cretion, the petitioner must demonstrate that the [reso-
lution of the underlying claim involves issues that] 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. . . . If this burden is not satisfied,
then the claim that the judgment of the habeas court
should be reversed does not qualify for consideration by
this court.’’ (Citation omitted; internal quotation marks
omitted.) Spyke v. Commissioner of Correction, 145
Conn. App. 419, 423, 75 A.3d 738, cert. denied, 310 Conn.
932, 78 A.3d 858 (2013); see also Crespo v. Commis-
sioner of Correction, 292 Conn. 804, 811, 975 A.2d 42(2009); Stepney v. Commissioner of Correction, 129
Conn. App. 364, 366, 19 A.3d 1262 (2011).
The petition for certification to appeal contained
claims of alleged deficiencies by Cosgrove, the petition-
er’s criminal trial counsel. On appeal, however, the peti-
tioner challenges the actions of Day during the habeas
trial. Specifically, he argues that Day should have pre-
sented evidence, including expert testimony, to set forth
the standard of care to measure the actions of Cosgrove,
and that Day should have presented evidence regarding
the terms of the plea deal offered by the state.
The fatal flaw in the petitioner’s appeal is that these
claims were not presented to the habeas court for a
determination of whether certification to appeal should
have been granted. ‘‘This court has determined that
a petitioner cannot demonstrate that a habeas court
abused its discretion in denying a petition for certifica-
tion 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 certifi-
cation 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.’’ (Citations omitted; internal quotation marks
omitted.) Campbell v. Commissioner of Correction, 132
Conn. App. 263, 267, 31 A.3d 1182 (2011); see also Perry
v. Commissioner of Correction, 131 Conn. App. 792,
796, 28 A.3d 1015 (Appellate Court declined to review
claim not included in petition for certification to
appeal), cert. denied, 303 Conn. 913, 32 A.3d 966 (2011);
Logan v. Commissioner of Correction, 125 Conn. App.
744, 752, 9 A.3d 776 (2010) (same), cert. denied, 300
Conn. 918, 14 A.3d 333 (2011); see generally Mitchell
v. Commissioner of Correction, 68 Conn. App. 1, 6–7,
790 A.2d 463, cert. denied, 260 Conn. 903, 793 A.2d 1089(2002). Our habeas jurisprudence does not permit the
approach taken by the petitioner in this case. We con-
clude that the petitioner has failed to satisfy the thresh-
old requirement that the habeas court abused its
discretion in denying certification to appeal.
The appeal is dismissed.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
The court signed the transcript of its oral decision in compliance with
Practice Book § 64-1.
3
The court noted that it found Cosgrove to be a credible witness and that
the petitioner’s testimony ‘‘lacked any real credibility.’’