Nelson v. Commissioner of Correction ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STEPHEN NELSON v. COMMISSIONER
OF CORRECTION
(AC 44294)
Elgo, Suarez and Clark, Js.
Syllabus
The petitioner, who had been convicted of several crimes after two trials,
sought a writ of habeas corpus, claiming that he received ineffective
assistance from counsel, F and R, who represented him in posttrial
proceedings to reduce his sentences. The petitioner had been sentenced
to eighteen years of incarceration after the first trial, in which a mistrial
was declared as to certain charges on which the jury was unable to
reach agreement. The Sentence Review Division of the Superior Court
thereafter denied the petitioner’s application for a sentence reduction.
The petitioner was then retried and convicted of the charges on which
the jury previously had failed to reach a verdict and was sentenced to
fifty-five years of incarceration to run concurrently with the sentence
in his first trial. At about the time of the second trial and after the
petitioner had cooperated with the state in conjunction with two murder
trials, F represented him in discussions that led to an agreement with
the state under which it would not oppose a sentence modification
hearing as to the fifty-five year term of imprisonment. The modification
hearing did not result in a sentence reduction. Thereafter, F discussed
with the petitioner the possibility of applying for a review of the fifty-
five year sentence, even though the deadline for such an application
had expired. The petitioner then filed petitions for a writ of habeas
corpus, which were consolidated before several counts were dismissed
by the habeas court. R, the petitioner’s habeas counsel, then negotiated
an agreement with the respondent Commissioner of Correction to file
a joint motion for a stipulated judgment under which the petitioner’s
right to apply with the Sentence Review Division for a reduction of the
fifty-five year term of imprisonment was reinstated, and the petitioner
would be foreclosed from filing any future civil actions challenging the
judgments of conviction from his two trials and the remaining counts
of his habeas petition would be stricken with prejudice. F represented
the petitioner at the review proceeding after the petitioner’s rights to
sentence review were restored. The Sentence Review Division affirmed
the petitioner’s sentence, noting that it could not consider the petitioner’s
cooperation with the state because the sentencing court had not consid-
ered it when it sentenced the petitioner. In the present habeas petition,
the petitioner alleged, inter alia, that F rendered ineffective assistance
in advising him to pursue sentence review and failing to consult with
R about the stipulation. The petitioner further claimed that R rendered
ineffective assistance because he had not investigated and consulted
with F to determine the basis for the stipulation before advising the
petitioner to forgo his habeas corpus rights in exchange for sentence
review. The habeas court denied the petition, concluding that neither
F nor R rendered ineffective assistance, and that the petitioner’s with-
drawal with prejudice of the prior habeas petition was knowing and
voluntary. Thereafter, the court granted the petitioner certification to
appeal. Held that the habeas court properly denied the petition for a
writ of habeas corpus: R informed the petitioner that the remaining
claims in his consolidated habeas petition were weak and that sentence
review might afford him relief from the fifty-five year sentence, F and
R individually counseled the petitioner in separate and distinct capacities
in the respective proceedings, and R believed that the petitioner compre-
hended the consequences of entering into the stipulated judgment,
including his waiver of habeas corpus rights arising out of his convic-
tions; moreover, the petitioner’s claim that his withdrawal of his habeas
corpus petition was not knowing or voluntary was unavailing, R having
spent approximately one hour with him discussing the six page motion
for the stipulated judgment and answering his questions before the
petitioner signed the document; furthermore, the habeas court found
R’s testimony to be more credible than the petitioner’s, and this court
was bound by those credibility determinations, as it is the habeas court
that sits as the trier of fact.
Argued October 18—officially released November 30, 2021
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Bhatt, J., rendered judgment
denying the petition; thereafter, the court granted the
petition for certification to appeal, and the petitioner
appealed to this court. Affirmed.
Peter G. Billings, assigned counsel, with whom, on
the brief, was Stephanie K. Toronto, assigned counsel,
for the appellant (petitioner).
Samantha L. Oden, former deputy assistant state’s
attorney, with whom, on the brief, were Brian Preleski,
state’s attorney, and Michael Proto, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Stephen Nelson, has
filed numerous direct and habeas corpus appeals arising
from his convictions for crimes committed on January
22, 2005. He now appeals from the judgment of the
habeas court, Bhatt, J., denying his amended petition
for a writ of habeas corpus. He claims that the habeas
court erred by determining (1) that habeas counsel’s
performance was not deficient and (2) that his with-
drawal with prejudice of a prior habeas corpus petition
was knowing and voluntary. We affirm the judgment
of the habeas court.
The following facts and lengthy procedural history
are relevant to our resolution of the present appeal.
The petitioner was arrested and charged with numerous
crimes for an incident in which he was involved on
January 22, 2005. State v. Nelson, 105 Conn. App. 393,
396–97, 937 A.2d 1249 (Nelson I), cert. denied, 286 Conn.
913, 944 A.2d 983 (2008). At trial, the petitioner was
represented by Attorney Claud Chong. Following the
presentation of evidence, the jury found the petitioner
guilty of conspiracy to commit robbery in the first
degree in violation of General Statutes §§ 53a-48 (a)
and 53a-134 (a), and not guilty of one of the other
charges. Id. Members of the jury, however, were unable
to reach a unanimous verdict on the remaining charges.
The court, Vitale, J., sentenced the petitioner to eigh-
teen years of incarceration. The conviction was upheld
on appeal to this court; id., 418; and our Supreme Court
denied certification to appeal. See State v. Nelson, 286
Conn. 913, 944 A.2d 983 (2008).
The petitioner filed an application with the Sentence
Review Division of the Superior Court, seeking to have
his eighteen year sentence reduced. The Sentence
Review Division denied the petitioner’s request. See
State v. Nelson, Superior Court, judicial district of New
Britain, Docket No. CR-05-220383 (June 24, 2008).
In December, 2006, the state retried the petitioner
on the charges on which the jury failed to reach a verdict
in Nelson I: two counts of kidnapping in the first degree
in violation of General Statutes § 53a-92 (a) (2) (A)
and (B), two counts of burglary in the first degree in
violation of General Statutes (Rev. to 2005) § 53a-101
(a) (1) and (2), and assault in the first degree in violation
of General Statutes § 53a-59 (a) (1). State v. Nelson, 118
Conn. App. 831, 833, 986 A.2d 311 (Nelson II), cert.
denied, 295 Conn. 911, 989 A.2d 1074 (2010). The peti-
tioner elected to represent himself with Chong as
standby counsel. Id., 837. The jury found the petitioner
guilty of all counts, and the court, D’Addabbo, J., sen-
tenced the petitioner to a total effective term of fifty-
five years of incarceration concurrent with the sentence
he received in Nelson I. Id., 833 n.1.
At about the time of the trial in Nelson II, the peti-
tioner cooperated with the state in conjunction with
two murder trials. As a result of his cooperation and
following his conviction in Nelson II, the petitioner
engaged in discussions with the state about a possible
modification of the sentence he received in Nelson II.
Attorney Donald Freeman represented him during those
discussions. As a result of those discussions, the state
agreed to not oppose a sentence modification hearing
for the petitioner but not to a specific sentence reduc-
tion. The modification hearing did not result in a reduc-
tion of the petitioner’s sentence.
The petitioner subsequently filed an appeal from his
Nelson II convictions. See id., 833. This court agreed
with a double jeopardy claim the petitioner asserted
and remanded the case to the trial court with direction
to merge the two kidnapping convictions and to vacate
the sentence imposed on one of them; id., 853–56; but
affirmed the judgment in all other respects. Id., 862.
On remand, the petitioner was resentenced to fifty-five
years of incarceration. He did not seek a timely review
of that sentence, thus waiving his right to sentence
review.
The self-represented petitioner then filed two peti-
tions for a writ of habeas corpus. Nelson v. Commis-
sioner of Correction, 326 Conn. 772, 777, 167 A.3d 952(2017). The petitions were consolidated, and Attorney
David Rimmer filed an amended petition containing
multiple counts. Id. The habeas court, Schuman, J.,
dismissed four of those counts. Rimmer believed that
the remaining habeas claims, although not frivolous,
were weak. Meanwhile, Freeman had discussed with
the petitioner the possibility of applying for a sentence
review in Nelson II even though the deadline for making
such an application had expired. Rimmer informed the
petitioner of his assessment of his habeas claims and
worked to accomplish a more favorable outcome
through negotiations with counsel for the respondent,
the Commissioner of Correction. As a result of those
negotiations, on December 1, 2011, the petitioner, Rim-
mer, and the respondent’s counsel signed a motion for
a stipulated judgment and filed it with the court clerk.
‘‘Under that stipulated judgment, the respondent agreed
to the reinstatement of the petitioner’s right to file an
application with the Sentence Review Division for a
reduction of the fifty-five year term of imprisonment
that the petitioner received following [Nelson II]. For
his part, the petitioner agreed to be foreclosed from
filing any future civil actions challenging the judgments
of conviction arising out of [Nelson I and Nelson II], and
further, that the remaining counts of the then pending
habeas petition were to be stricken with prejudice.’’
Id., 777; see also id., 777 n.7. On December 6, 2011, the
court, Newson, J., took the papers on the motion for
a stipulated judgment and issued an order granting it.
See id., 777.
Freeman represented the petitioner at the review pro-
ceeding after the petitioner’s rights to sentence review
were restored pursuant to the stipulated judgment. At
the sentence review hearing, Freeman and the peti-
tioner argued for a reduction of the fifty-five year sen-
tence. Although they principally argued that the victim
of the petitioner’s crimes was not murdered and did
not suffer paralysis and, therefore, that the petitioner’s
sentence was disproportionately severe compared with
sentences in other comparable cases, they also argued
that the petitioner had cooperated with the state by
testifying in two homicide trials. A member of the
review panel asked whether the petitioner’s coopera-
tion occurred before or after the Nelson II trial and
sentencing. Freeman informed the panel that the peti-
tioner cooperated with the state prior to sentencing but
that he did not testify until after he was sentenced.
The Sentence Review Division affirmed the petitioner’s
sentence, noting that it could not consider the petition-
er’s cooperation with the state because Judge D’Ad-
dabbo had not considered it when he sentenced the
petitioner. See State v. Nelson, Superior Court, judicial
district of New Britain, Docket No. CR-05-220383-A
(November 2, 2012) (54 Conn. L. Rptr. 904, 905).
In 2013, the petitioner filed another petition for a
writ of habeas corpus in which he alleged ineffective
assistance of counsel at the Nelson I and Nelson II
trials. The respondent moved to dismiss the petition
pursuant to Practice Book § 23-29 (5)1 on the basis of
the stipulated judgment that barred the petitioner from
filing any further civil actions pertaining to those trials.
The habeas court, Oliver, J., granted the motion to
dismiss. The petitioner appealed, claiming that he did
not knowingly and voluntarily enter into the stipulated
judgment. Nelson v. Commissioner of Correction,
supra, 326 Conn. 774. Our Supreme Court affirmed the
judgment of dismissal, concluding that ‘‘the petitioner
did not properly raise his challenge to the enforceability
of the stipulated judgment in the habeas court and,
further, that the stipulated judgment was a legally suffi-
cient ground for dismissal of the present habeas action.’’
Id., 775.
In 2015, the petitioner filed the present petition for
a writ of habeas corpus. In his amended three count
petition, he alleged in count one that Freeman, who
represented him before the sentence review board, had
provided ineffective assistance by advising the peti-
tioner to pursue sentence review and failing to consult
with Rimmer about the stipulation. In count two, the
petitioner alleged that Rimmer, who was the petitioner’s
habeas counsel, had rendered ineffective assistance
because he had not investigated and consulted with
Freeman to determine the basis for the stipulation
before advising the petitioner to forgo his habeas corpus
rights in exchange for sentence review. In count three,
the petitioner alleged that he was not fully and accu-
rately apprised by Rimmer as to the full scope of the
stipulation before withdrawing his habeas corpus peti-
tion.
The habeas trial was held on October 30, 2019. The
petitioner, Freeman, and Rimmer testified. Following
trial, Judge Bhatt denied the petition. As to the claim
that Freeman’s representation was ineffective, the court
found that there was no evidence that ‘‘Freeman advised
the petitioner that he should choose sentence review
in lieu of the claims in his prior habeas petition.’’ The
court found that Rimmer had made the suggestion and
concluded that Freeman’s representation was not defi-
cient.2
With respect to Rimmer’s representation, the court
credited Rimmer’s testimony that the petitioner’s habeas
claims were not strong, given that he had represented
himself in Nelson II and, therefore, was precluded from
raising a claim of ineffective assistance of counsel. Even
if the petitioner could prove that Chong provided inef-
fective assistance during Nelson I, the sentence
imposed for that conviction was eighteen years, signifi-
cantly shorter than the concurrent sentence he received
in Nelson II. The petitioner presented no evidence that
Rimmer failed to properly advise him that the sentence
review board would not consider his cooperation with
the state in the separate murder trials. Moreover, the
court stated that the petitioner’s simultaneous claims
against Freeman and Rimmer would ‘‘require actions
that each interfere with the other’s representation of
the same client. . . . [B]oth counsel strove to resolve
the petitioner’s matters by coordinating their respective
efforts [to] get meaningful relief for the petitioner. The
restoration of the petitioner’s right to sentence review
was meaningful relief.’’
The court credited Rimmer’s testimony that he spent
one hour explaining to the petitioner the motion for
the stipulated judgment and believed the petitioner
understood the motion. The petitioner, however, testi-
fied that he met with Rimmer for approximately ten
minutes and that Rimmer gave him a single sheet of
paper that he signed without reading. The motion for
the stipulated judgment was placed into evidence, and
the court found that it was six pages in length, including
the signature page, and the petitioner’s signature was
on the last page.3 The court concluded that Rimmer’s
representation was not deficient.
As to count three of the petition, which alleged that
the petitioner’s withdrawal of the prior habeas petition
was not knowing and voluntary, the habeas court
denied the claim because it was based on allegations
that both Freeman and Rimmer provided ineffective
assistance of counsel in connection with the stipulated
judgment. The court already had determined that nei-
ther counsel had rendered ineffective assistance. In
addition, the court found that the motion for a stipulated
judgment was a proper basis for dismissal of the prior
habeas petition, pursuant to our Supreme Court’s deci-
sion in Nelson v. Commissioner of Correction, supra,
326 Conn. 774. The habeas court, therefore, denied the
present petition for a writ of habeas corpus but granted
the petitioner’s petition for certification to appeal.
On appeal, the petitioner claims that the court
improperly determined that Rimmer did not render inef-
fective assistance and that the petitioner’s withdrawal
of the prior habeas petition with prejudice was knowing
and voluntary. Factually, the claims are intertwined, as
they both flow from the petitioner’s allegations that
Rimmer provided ineffective assistance by advising the
petitioner to enter into the stipulated judgment.
In Lozada v. Warden, 223 Conn. 834, 613 A.2d 818(1992), our Supreme Court ‘‘determined that the statu-
tory right to habeas counsel for indigent petitioners
provided in General Statutes § 51-296 (a) includes an
implied requirement that such counsel be effective, and
it held that the appropriate vehicle to challenge the
effectiveness of habeas counsel is through a habeas
petition.’’ (Internal quotation marks omitted.) Gerald
W. v. Commissioner of Correction, 169 Conn. App. 456,
463, 150 A.3d 729 (2016), cert. denied, 324 Conn. 908,
152 A.3d 1246 (2017). The question of whether the repre-
sentation a petitioner received ‘‘was constitutionally
inadequate is a mixed question of law and fact.’’ (Inter-
nal quotation marks omitted.) Sanders v. Commis-
sioner of Correction, 83 Conn. App. 543, 548, 851 A.2d
313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004).
‘‘In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary.’’ (Internal quotation
marks omitted.) Dwyer v. Commissioner of Correction,
102 Conn. App. 838, 841, 927 A.2d 347, cert. denied, 284
Conn. 925, 933 A.2d 724 (2007). In a habeas trial, the
court is the trier of fact and, thus, ‘‘is the sole arbiter
of the credibility of witnesses and the weight to be given
to their testimony . . . .’’ Bowens v. Commissioner of
Correction, 333 Conn. 502, 523, 217 A.3d 609 (2019). ‘‘It
is simply not the role of this court on appeal to second-
guess credibility determinations made by the habeas
court.’’ Noze v. Commissioner of Correction, 177 Conn.
App. 874, 887, 173 A.3d 525 (2017).
To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test of Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strick-
land, ‘‘the United States Supreme Court established
that for a petitioner to prevail on a claim of ineffective
assistance of counsel, he must show that counsel’s
assistance was so defective as to require reversal of
[the] conviction. . . . That requires the petitioner to
show (1) that counsel’s performance was deficient and
(2) that the deficient performance prejudiced the
defense. . . . Unless a [petitioner] makes both show-
ings, it cannot be said that the conviction . . . resulted
from a breakdown in the adversary process that renders
the result unreliable.’’ (Internal quotation marks omit-
ted.) Sanders v. Commissioner of Correction, supra,83 Conn. App. 549. A petitioner can succeed only if he
can satisfy both of the Strickland prongs. Bowens v.
Commissioner of Correction, supra, 333 Conn. 538.
On the basis of our review of the record and having
considered the briefs and arguments of the parties, we
conclude that the court properly denied the petition for
a writ of habeas corpus. Regarding the petitioner’s claim
that Rimmer provided ineffective assistance of counsel
and, on the basis of the evidence presented at trial,
the habeas court found that (1) Rimmer informed the
petitioner that the remaining claims in his consolidated
habeas petition were weak and that sentence review
might afford him relief from the fifty-five year sentence
in Nelson II; (2) Freeman and Rimmer individually
counseled the petitioner in separate and distinct capaci-
ties in the respective proceedings; (3) Rimmer met with
the petitioner for approximately one hour to review the
motion for the stipulated judgment, which was detailed
and specific, and answered the petitioner’s questions;
and (4) Rimmer believed that the petitioner compre-
hended the consequences of entering into the stipulated
judgment, including his waiver of habeas corpus rights
arising out of his convictions.
With regard to the petitioner’s claim that the with-
drawal of his habeas corpus petition was not knowing
or voluntary, the habeas court found that Rimmer spent
approximately one hour with the petitioner discussing
the six page motion for the stipulated judgment and
answering the petitioner’s questions before the peti-
tioner signed the document. Importantly, the court
found Rimmer’s testimony to be more credible than
the petitioner’s. This court is bound by the credibility
determinations of the habeas court, which sits as the
trier of fact. See Noze v. Commissioner of Correction,
supra, 177 Conn. App. 887.4
The judgment is affirmed.
1
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion or upon motion of the respondent,
dismiss the petition, or any count thereof, if it determines that . . . (5) any
other legally sufficient ground for dismissal of the petition exists.’’
2
On appeal, the petitioner has not challenged the court’s finding with
respect to Freeman.
3
Our review of the motion for stipulated judgment confirms the court’s
finding. Page 6 of the document contains the signatures and names of the
petitioner, Rimmer, and counsel for the respondent.
4
In his habeas corpus petition, the petitioner did not allege that his waiver
of his habeas rights were not voluntary and knowing because Judge Newson
did not canvass him before granting the motion for the stipulated judgment.
Judge Bhatt addressed the issue in his decision, and the petitioner made
the argument in his appellate brief. The petitioner has not identified any
authority in support of his argument other than Practice Book § 39-24 and
Almedina v. Commissioner of Correction, 109 Conn. App. 1, 7, 950 A.2d
553, cert. denied, 289 Conn. 925, 958 A.2d 150 (2008). Those authorities are
inapposite, as they both concern a guilty plea. Moreover, during oral argu-
ment before this court, counsel for the petitioner made clear that he was
not claiming that the petitioner had a constitutional right to be canvassed.