Fernandez v. Commissioner of Correction ( 2019 )

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RAFAEL FERNANDEZ v. COMMISSIONER
OF CORRECTION
(AC 37692)
Alvord, Bright and Bear, Js.
Syllabus
The petitioner, who previously had been convicted of arson in the first
degree and murder, filed a third petition for a writ of habeas corpus,
claiming, inter alia, that his right to a fair trial under the state and federal
constitutions had been violated. Specifically, he claimed that because
A, an attorney with the Office of the State’s Attorney, initially had
prosecuted his criminal case before the trial court declared a mistrial
on the ground that A had become a potential witness in the case, the
Office of the Chief State’s Attorney, which prosecuted the petitioner’s
criminal case in the second trial, should have disqualified itself from
the case under the Rules of Professional Conduct. The habeas court
granted the motion to dismiss filed by the respondent Commissioner
of Correction and rendered judgment thereon, from which the petitioner,
on the granting of certification, appealed to this court. Held that the
habeas court properly dismissed the petitioner’s third habeas petition,
as the petition failed to state a claim upon which habeas relief could
be granted; the petitioner could not assert, on the facts alleged, a claim
for relief under the applicable rules (1.10 and 3.7) of the Rules of Profes-
sional Conduct, as neither rule 1.10 nor 3.7 required disqualification of
the attorneys in all of the state’s attorney’s offices and the Office of the
Chief State’s Attorney, the petitioner provided no basis for any conclu-
sion that certain statements he had made to A during plea discussions
while the petitioner was self-represented were privileged, as an attorney-
client relationship did not exist between the petitioner and A, and
although the petitioner claimed that A’s potential testimony regarding
the petitioner’s statements to A would have been inadmissible and that
the threat of A’s testimony effectively prevented him from testifying in
his own defense, that claim was entirely speculative, especially given
that the petitioner did not file a motion in limine to obtain a ruling
regarding the admissibility of A’s potential testimony.
Argued May 20—officially released October 22, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, and tried to the court, Oliver, J.; judgment
dismissing the petition, from which the petitioner, on
the granting of certification, appealed to this court.
Affirmed.
Dante R. Gallucci, for the appellant (petitioner).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Jo Anne Sulik, supervisory assistant state’s
attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Rafael Fernandez,
appeals from the judgment of the habeas court dismiss-
ing his second amended petition for a writ of habeas
corpus, which alleged that communications between
the then self-represented petitioner and the assistant
state’s attorney during plea negotiations, and the
resulting implication of the assistant state’s attorney as
a potential witness at the petitioner’s trial, required the
disqualification of all of the state’s attorney’s offices
and the Office of the Chief State’s Attorney, and that
the failure of the Office of the Chief State’s Attorney
to disqualify itself violated his right to a fair trial. On
appeal, the petitioner claims that the habeas court
improperly granted the motion to dismiss the petition
filed by the respondent, the Commissioner of Correc-
tion, on the ground that the petition failed to state a
claim upon which habeas corpus relief can be granted.
We disagree and, accordingly, affirm the judgment of
the habeas court.
The following relevant facts and procedural history
are set forth in part in our Supreme Court’s decision
on the petitioner’s direct appeal from his conviction.
See State v. Fernandez, 254 Conn. 637, 758 A.2d 842
(2000), cert. denied, 532 U.S. 913, 121 S. Ct. 1247, 149
L. Ed. 2d 153 (2001). ‘‘The [petitioner] was arrested on
September 14, 1995, and charged with felony murder
in violation of General Statutes § 53a-54c, murder in
violation of [General Statutes] § 53a-54a (a), first degree
burglary in violation of General Statutes § 53a-101 (a),
and first degree arson in violation of [General Statutes]
§ 53a-111 (a) (1). In addition, the [petitioner] was
charged with tampering with physical evidence in viola-
tion of General Statutes § 53a-155 (a) (1). The [peti-
tioner] received the assistance of the office of the public
defender from the time that he first appeared before the
court on September 15, 1995, until a privately retained
counsel, Attorney William T. Gerace, filed an appear-
ance on the [petitioner]’s behalf on December 19, 1995.’’
(Footnotes omitted.) Id., 640. On May 15, 1996, Gerace
made an oral motion to withdraw from the case, which
was granted by the court, Espinosa, J. Id., 640–41. ‘‘Ger-
ace indicated that the [petitioner] could retain new
counsel within two weeks . . . .’’ Id., 641.
‘‘Evidently, the [petitioner] did not retain new counsel
during the period between May 15 and May 29, 1996.
Although the record is unclear at this point, it appears
that the [petitioner] had asked the court if he could
proceed pro se because, on May 30, 1996, Judge
Espinosa indicated that she had ‘not decided whether
. . . [the petitioner was going to] be allowed to repre-
sent [himself] . . . .’ Judge Espinosa then appointed a
public defender who would serve as standby counsel
in the event that the [petitioner] was allowed to proceed
pro se or who would serve as lead counsel in the event
that the [petitioner] was not permitted to proceed pro
se. Judge Espinosa then stated that, in the meantime,
the public defender could talk to the [petitioner] about
the [petitioner’s] decision to proceed pro se. Judge
Espinosa also tried to impress upon the [petitioner] the
seriousness of his situation and the foolhardiness of
proceeding pro se: ‘You are not a lawyer and you are
going to be going against an experienced lawyer on the
other side that wants to convict you and send you to
jail for sixty years.’
‘‘On June 24, 1996, the matter of the [petitioner’s]
representation still was not finalized. Michael Isko, a
public defender, filed an appearance as standby counsel
for the [petitioner], and Judge Espinosa granted another
continuance in light of the [petitioner’s] request for
more time to retain private counsel.
‘‘On July 10, 1996, however, the [petitioner] appeared
in court with Isko and stated that he wanted to represent
himself. At that time, the [petitioner] knowingly and
intelligently waived his right to counsel before the trial
court, Norko, J. Isko remained as standby counsel.
‘‘Throughout the following months, the [petitioner]
filed various pro se motions, including a motion for
access to a law library on September 18, 1996, which
Judge Barry granted on October 2, 1996, ‘subject to
availability of accommodations within the dep[artment]
of [c]orrection.’
‘‘On October 30, 1996, the office of the attorney gen-
eral appeared on behalf of the commissioner of correc-
tion and moved to vacate Judge Barry’s October 2 order
granting the [petitioner] access to a law library. Argu-
ments on that motion were heard on October 30.’’ (Foot-
notes omitted.) Id., 641–43.
‘‘Before indicating how he would decide the motion
to vacate, Judge Barry again stressed to the [petitioner]
the seriousness of his decision to represent himself:
‘‘The Court: You’re unable to retain your own attor-
ney, I presume, a private attorney? Is that right?
‘‘[The Petitioner]: I do not want to retain. I can afford
it, but I do not want to retain him.
‘‘The Court: And you don’t want the services of a
public defender . . . on a full-time basis?
‘‘The [petitioner] indicated that he did not want a
public defender, and that he did not wish to receive
advice from standby counsel. Judge Barry then inquired
of the [petitioner]: It may be that your only chance is
by retaining an attorney or by having access to the
courts through the public defender’s office . . . . Do
you understand? The [petitioner] replied: Yes.
‘‘On November 25 and December 5, 1996, the [peti-
tioner] was brought to court to review the state’s file.
At this point, the record is unclear again. Evidently, the
[petitioner’s] pro se status had changed because Isko
was appointed as the [petitioner’s] public defender on
January 8, 1997 and filed an appearance in lieu of the
[petitioner] on January 15, 1997.
‘‘On February 4, 1997, the [petitioner] filed another
motion to return to pro se status, which was granted
by Judge Espinosa on February 5, and Isko again was
appointed standby counsel. Jury selection began on
February 10, before Judge Norko. After several of his
pro se motions had been denied, the [petitioner], on
February 14, before Judge Norko, requested to change
his pro se status, and Isko agreed to file an appearance
as full counsel. On February 27, Judge Barry granted
the commissioner’s motion to vacate the previous order
granting the [petitioner] access to a law library.
‘‘On March 7, 1997, Isko asked for a continuance,
claiming that he lacked sufficient time to prepare for
trial in light of his relatively recent change in status to
full counsel and the somewhat technical nature of the
evidence. To accommodate Isko, Judge Norko ordered
the office of the public defender to provide Isko with
cocounsel and continued the case until March 14, 1997.
On March 14, however, Judge Norko declared a mistrial,
relying on the fact that the state’s attorney could be
called as a witness because of various communications
with the [petitioner] while the [petitioner] was proceed-
ing pro se.’’1 (Footnote omitted; internal quotation
marks omitted.) Id., 644–45.
In a footnote, our Supreme Court provided: ‘‘Judge
Norko stated: ‘[B]ased upon [Isko’s] reading of the file
and research, the [petitioner] is changing [his] defense,
which implicates the present state’s attorney as a possi-
ble witness for the state . . . . With that in mind, the
court will declare a mistrial in this particular case. The
court will also note that no witnesses were called for
the record—that we haven’t finished impaneling an
entire jury.’
‘‘Furthermore, Judge Norko indicated that he found
‘no fault’ with the state, the office of the state’s attorney
or the office of the public defender, and ‘that the court
[was] somewhat at fault for not viewing it as a possible
conflict in the future.’ Judge Norko continued: ‘How-
ever, I don’t think that anyone could have predicted
that we’d end up in this and, if the defense had remained
the same, we wouldn’t be in this particular position.’ ’’
Id., 645 n.13.
‘‘On April 23, 1998, the [petitioner] expressed his
desire to proceed pro se again, as well as his desire to
be tried by a three judge panel rather than a jury. The
[petitioner] then was canvassed by the trial court, Clif-
ford, J., regarding his decision to proceed pro se, the
appointment of standby counsel, and his election to be
tried by a three judge panel. At this time, the [petitioner]
voluntarily waived his right to counsel and his right to
a jury trial. Isko again was assigned to be standby coun-
sel. On May 18, 1998, the [petitioner’s] case was tried
before a three judge panel, Devlin, Fasano and Malo-
ney, Js. Isko served as standby counsel during that trial.
‘‘On May 29, 1998, the panel found the [petitioner]
guilty of arson in the first degree and murder. . . . The
panel found the [petitioner] not guilty of felony murder,
burglary in the first degree and tampering with physical
evidence. The [petitioner] was sentenced to a total
effective term of fifty-five years imprisonment.’’ (Cita-
tion omitted.) Id., 646. On direct appeal from his convic-
tion, the petitioner claimed that ‘‘the trial court,
Espinosa, J., denied him his constitutional right to
counsel in granting defense counsel’s motion to with-
draw,’’ and also challenged ‘‘the order of the trial court,
Barry, J., vacating its previous order, which had
granted the [petitioner’s] pro se motion to be trans-
ferred to another correctional facility in order to gain
access to a law library.’’ Id., 639. The petitioner claimed
that ‘‘this action resulted in the failure of the state to
fulfill its constitutional obligation to provide pro se
criminal defendants with access to the courts.’’ Id. Our
Supreme Court rejected both claims. Id.
Approximately eighteen months after our Supreme
Court affirmed the petitioner’s conviction, the peti-
tioner filed his first habeas petition. See Fernandez v.
Commissioner of Correction, 86 Conn. App. 42, 43–44,
859 A.2d 948 (2004). The habeas court dismissed that
petition on the ground that the two claims raised therein
‘‘were identical to those discussed and ruled on by our
Supreme Court in the petitioner’s direct appeal . . . .’’
Id., 44. This court affirmed the judgment of the habeas
court. Id., 51.
On April 1, 2005, the petitioner instituted a second
habeas action, in which he claimed that ‘‘Gerace ren-
dered ineffective assistance by virtue of the manner in
which he withdrew as the petitioner’s trial counsel,’’
and ‘‘his attorney during the first habeas trial, Timothy
Aspinwall, rendered ineffective assistance by failing to
raise a claim of ineffective assistance of counsel in the
first habeas petition.’’ Fernandez v. Commissioner of
Correction, 291 Conn. 830, 833, 970 A.2d 721 (2009).
After a hearing, the habeas court denied the petition
and granted the petition for certification to appeal filed
by the petitioner. Id., 831 n.1. Our Supreme Court
affirmed the judgment of the habeas court. Id., 837.
On March 28, 2012, the petitioner filed a third habeas
action, which underlies the present appeal. In his sec-
ond amended petition for a writ of habeas corpus, the
petitioner claimed that his right to a fair trial, under
the state and federal constitutions, was violated. He
alleged that an attorney from the Office of the State’s
Attorney for the judicial district of Hartford, Assistant
State’s Attorney Joan Alexander, initially prosecuted
his criminal case before the court declared a mistrial
on the basis that Alexander became a potential witness
in the case. The petitioner alleged that the Office of the
Chief State’s Attorney, which prosecuted his case in
the second trial, ‘‘should have disqualified itself from
the case under the Rules of Professional Conduct, Rules
3.7, and 1.10, in essence, and the State’s Attorney’s
Office for the judicial district of Hartford, and the Chief
State’s Attorney’s Office, is a ‘firm’ for purposes of those
rules, and that as a member of that firm was a potential
witness in the case, that firm was disqualified from
participation in the trial.’’2
On May 30, 2014, the respondent filed a motion to
dismiss the second amended habeas petition on the
ground that the petition failed to state a claim upon
which habeas relief could be granted. Specifically, the
respondent argued that even if the original prosecutor
was considered a necessary witness and disqualified
under rule 3.7 of the Rules of Professional Conduct,
the other attorneys in her office were not disqualified
from litigating the case. The respondent further argued
that rules 1.7, 1.9, and 1.10 of the Rules of Professional
Conduct ‘‘govern conflicts of interest with current and
former clients’’ and thus, ‘‘did not prohibit other prose-
cutors from [prosecuting] the petitioner’s case.’’ The
petitioner filed an objection to the motion to dismiss,
arguing that his claim was ‘‘more than a claim of an
ethical violation, it is a prosecutorial misconduct claim,
based upon an actual conflict of interest, which
deprived the petitioner of a fair trial . . . .’’ He argued
that the presence of the Office of the Chief State’s
Attorney in the case ‘‘had the chilling effect of pre-
venting the [petitioner] from testifying, for concern that
this ‘firm’ would call as a witness one of its own mem-
bers to rebut the defense presented, by utilizing privi-
leged information obtained before being disqualified
for possessing this very same information.’’
In support of his claim, the petitioner submitted an
affidavit from Assistant State’s Attorney Alexander.
Alexander submitted answers under oath to questions
propounded to her by the petitioner. In those answers,
she stated that she served as an assistant state’s attor-
ney for the judicial district of Hartford and was the trial
prosecutor in the case of State v. Fernandez, Superior
Court, judicial district of Hartford-New Britain at Hart-
ford, Docket No. CR-XX-XXXXXXX-S. She stated that ‘‘the
court declared a mistrial just before the evidence was
about to commence,’’ upon finding ‘‘that the [petitioner]
would be denied effective assistance of counsel.’’ She
responded that she ‘‘did not prosecute the subsequent
trial and [did] not recall any specific personal involve-
ment.’’ Alexander could not recall whether she was
assigned to the Office of the Chief State’s Attorney or
the Office of the State’s Attorney for the judicial district
of Hartford during the time of the petitioner’s second
trial in May, 1998. Alexander also could not recall
whether she testified in the petitioner’s trial at that
time. Alexander answered that she did discuss the case
with Domenick Galluzzo, Deputy Chief State’s Attorney.
The petitioner’s final question asked: ‘‘[D]id any of those
discussions include discussion of any matters discussed
with Rafael Fernandez, himself, while he was acting as
his own counsel in the first trial?’’ Alexander responded:
‘‘Not to my recollection.’’
The court held argument on the respondent’s motion
to dismiss the petition on August 13, 2014. In its memo-
randum of decision issued on December 3, 2014, the
court granted the respondent’s motion. The court noted
at the outset that the petitioner based ‘‘the entirety of
his claim on the . . . Rules of Professional Conduct
governing attorney-client relations.’’ Noting that ‘‘there
is no claim that there was ever any attorney-client rela-
tionship between the trial prosecutors and the peti-
tioner,’’ the court stated that ‘‘[t]he petitioner seeks
the creation of a new rule based on an unreasonable
interpretation of two of the Rules of Professional Con-
duct and a failure to harmonize those two rules with
the Rules of Professional Conduct as a whole.’’ As to
the claim that the disqualification of Alexander required
disqualification of all of the state’s attorney’s offices
and the Office of the Chief State’s Attorney, the court,
citing Anderson v. Commissioner of Correction, 127
Conn. App. 538, 546, 15 A.3d 658 (2011), aff’d, 308 Conn.
456, 64 A.3d 325 (2013), noted well settled case law
that ‘‘the Rules of Professional Conduct do not impute
conflicts between associated government attorneys.’’
The court concluded by stating: ‘‘In truth, the peti-
tioner is attempting to assert a claim of ineffective assis-
tance of counsel against himself and disguise it as prose-
cutorial misconduct based on a conflict of interest. No
habeas relief is available to him on these facts and
bases.’’ The court dismissed the petition on the ground
that it failed to state a cause of action upon which
relief can be granted. On December 18, 2014, the court
granted the petitioner’s petition for certification to
appeal. This appeal followed.
On appeal, the petitioner claims that the habeas court
erred in granting the respondent’s motion to dismiss.
First, he argues that ‘‘the disqualification of the trial
prosecutor’s office, the judicial district of Hartford,
should have resulted in the disqualification of the
[Office of the Chief State’s Attorney], as those offices
are part of the same law firm, for the purposes of con-
flict of interest rules . . . .’’ He argues that the failure
of the Office of the Chief State’s Attorney to disqualify
itself constituted prosecutorial misconduct. Second, he
argues that ‘‘the trial prosecutor’s obtaining of privi-
leged information during pretrial negotiations and dis-
cussions with the petitioner while he was acting pro se,
threatened testimony regarding inconsistent statements
and defenses at the subsequent trial, and disclosure
of that information to the successor counsel from the
[Office of the Chief State’s Attorney], further violated
the conflict of interest rules . . . .’’ Specifically, he
argues that he was prevented from testifying regarding
his defense of self-defense because he feared Alexander
would testify regarding prior inconsistent statements
he made to her, including that he was not present at
the time the crime occurred.3 We conclude that the
petition failed to state a claim upon which habeas relief
can be granted. Specifically, the petitioner cannot
assert, on the facts alleged, a claim for relief under the
Rules of Professional Conduct and, thus, the habeas
court properly dismissed his habeas petition.
We first set forth our standard of review. ‘‘The stan-
dard of review of a motion to dismiss is . . . well estab-
lished. In ruling upon whether a complaint survives a
motion to dismiss, a court must take the facts to be
those alleged in the complaint, including those facts
necessarily implied from the allegations, construing
them in a manner most favorable to the pleader. . . .
The conclusions reached by the [habeas] court in its
decision to dismiss the habeas petition are matters of
law, subject to plenary review. . . . Thus, [w]here the
legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct
. . . and whether they find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Abdullah v. Commissioner of Correction, 123
Conn. App. 197, 201, 1 A.3d 1102, cert. denied, 298 Conn.
930, 5 A.3d 488 (2010).
The petitioner’s claim on appeal challenges the
habeas court’s interpretation and application of the
Rules of Professional Conduct, which requires plenary
review. ‘‘Given that the Rules of Professional Conduct
appear in our Practice Book, and given that [t]he inter-
pretive construction of the rules of practice is to be
governed by the same principles as those regulating
statutory interpretation . . . we employ our well
established tools of statutory construction to determine
the term’s meaning.
‘‘The interpretation and application of a statute, and
thus a Practice Book provision, involves a question of
law over which our review is plenary. . . . The process
of statutory interpretation involves the determination
of the meaning of the statutory language as applied to
the facts of the case . . . . When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case . . . . In seeking to determine
that meaning . . . [we] consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . . We recognize that terms in a stat-
ute are to be assigned their ordinary meaning, unless
context dictates otherwise . . . .’’ (Citation omitted;
internal quotation marks omitted.) Helmedach v. Com-
missioner of Correction, 168 Conn. App. 439, 459–60,
148 A.3d 1105 (2016), aff’d, 329 Conn. 726, 189 A.3d
1173 (2018).
The petitioner’s first argument is that Alexander’s
alleged disqualification should have resulted in the dis-
qualification of the Office of the Chief State’s Attorney
because all state’s attorney’s offices are part of the same
law firm for purposes of the conflict of interest rules. We
disagree that the principle of imputed disqualification
applies in this matter.
We first set forth the relevant language of the Rules
of Professional Conduct in effect at the time of the
petitioner’s trial.4 Rule 1.7 (a) of the Rules of Profes-
sional Conduct provided: ‘‘A lawyer shall not represent
a client if the representation of that client will be
directly adverse to another client, unless: (1) The lawyer
reasonably believes the representation will not
adversely affect the relationship with the other client;
and (2) Each client consents after consultation.’’ Rule
1.7 (b) of the Rules of Professional Conduct provided:
‘‘A lawyer shall not represent a client if the representa-
tion of that client may be materially limited by the
lawyer’s responsibilities to another client or to a third
person, or by the lawyer’s own interests, unless: (1)
The lawyer reasonably believes the representation will
not be adversely affected; and (2) The client consents
after consultation. When representation of multiple cli-
ents in a single matter is undertaken, the consultation
shall include explanation of the implications of the com-
mon representation and the advantages and risks
involved.’’ Rule 1.10 (a) of the Rules of Professional
Conduct, on which the petitioner relied in his second
amended petition, stated: ‘‘While lawyers are associated
in a firm, none of them shall knowingly represent a
client when any one of them practicing alone would be
prohibited from doing so by Rules 1.7, 1.8 (c), 1.9 or
2.2.’’5 Rules 1.10 and 1.11 of the Rules of Professional
Conduct were amended, effective January 1, 2007, and
the revisions ‘‘adopted the express distinction that con-
flicts are not imputed between current government
employees.’’6 Anderson v. Commissioner of Correction,
supra, 127 Conn. App. 546, 548–49 (‘‘[R]ules of Profes-
sional Conduct do not require the imputation of con-
flicts of interest among public defenders working in the
same office on the basis of reasoning that they are
members of the same firm’’).
Rule 3.7 (a) of the Rules of Professional Conduct, on
which the petitioner also relied in his habeas petition,
provides: ‘‘A lawyer shall not act as advocate at a trial
in which the lawyer is likely to be a necessary witness
except where: (1) The testimony relates to an uncon-
tested issue; (2) The testimony relates to the nature
and value of legal services rendered in the case; or (3)
Disqualification of the lawyer would work substantial
hardship on the client.’’ Rule 3.7 (b) provided that ‘‘[a]
lawyer may act as advocate in a trial in which another
lawyer in the lawyer’s firm is likely to be called as a
witness unless precluded from doing so by Rule 1.7 or
Rule 1.9.’’
Rule 1.7 of the Rules of Professional Conduct governs
a lawyer’s representation of a client where representa-
tion of that client ‘‘will be directly adverse to another
client’’ or may ‘‘be materially limited by the lawyer’s
responsibilities to another client . . . .’’ In the present
case, the habeas court noted that the petitioner had not
alleged an attorney-client relationship between himself
and any of the prosecutors involved in his criminal
case. The habeas court found that ‘‘only an adversarial
relationship existed between the parties.’’ The peti-
tioner does not challenge this finding on appeal. Thus,
rule 1.7, which addresses conflicts of interest arising
out of the representation of clients, is inapplicable.
Rule 1.10 (a) of the Rules of Professional Conduct,
which addresses imputation of conflicts, provided that
the other lawyers in a firm cannot represent a client
when any one of them would be prohibited from doing
so by rule 1.7, which governs general conflicts; rule 1.8
(c), which prohibits the preparation of an instrument
giving the lawyer any substantial gift from a client; rule
1.9, which governs former clients; or rule 2.2, which
governs a lawyer’s action as an intermediary between
clients. Because none of the enumerated rules applied
to prohibit Alexander’s participation in the petitioner’s
case, rule 1.10 (a) would not prohibit the other lawyers
in her firm from participating in the case. In other
words, there was no conflict to be imputed to all of the
state’s attorney’s offices and the Office of the Chief
State’s Attorney.7
Additionally, even if the Office of the Chief State’s
Attorney and the Office of the State’s Attorney for the
judicial district of Hartford were considered one ‘‘firm,’’
absent the specific conflict situations addressed in rules
1.7 or 1.9, rule 3.7 did not prohibit a lawyer in the Office
of the Chief State’s Attorney from trying a case in which
another lawyer in the ‘‘firm’’ was likely to be called as
a witness. Because rules 1.7 and 1.9 did not preclude
Alexander’s participation in the petitioner’s case, there
was no disqualification to be imputed pursuant to rule
3.7.8 Accordingly, neither rule 1.10 nor rule 3.7 of the
Rules of Professional Conduct required disqualification
of the attorneys in all of the state’s attorney’s offices
and the Office of the Chief State’s Attorney.
The petitioner’s second argument is that the prosecu-
tors violated rule 3.8 of the Rules of Professional Con-
duct, which sets forth the special responsibilities of
prosecutors.9 Specifically, he emphasizes that ‘‘the trial
prosecutor’s obtaining of privileged information during
pretrial negotiations and discussions with the petitioner
while he was acting pro se, threatened testimony
regarding inconsistent statements and defenses at the
subsequent trial, and disclosure of that information to
the successor counsel from the [Office of the Chief
State’s Attorney] further violated the conflict of interest
rules . . . .’’ He argues that ‘‘the trial prosecutor did
not honor her responsibility to treat the petitioner fairly,
in obtaining the information absent a valid waiver of
his constitutional rights, if she viewed the petitioner
solely as a party, or, in threatening to testify using that
information, if she viewed the petitioner as counsel,
knowing such communications are privileged.’’ We
disagree.
Because the petitioner’s argument is predicated on
Alexander’s receipt of privileged information from the
petitioner, the lack of an attorney-client relationship
between the petitioner and Alexander is dispositive.
The petitioner provides no basis for any conclusion that
the petitioner’s statements to Alexander during plea
discussions were privileged. Although the petitioner
characterizes his communications with Alexander as
privileged, he has not alleged any relationship beyond
an adversarial one and, consequently, has identified no
privilege existing under statutory or common law that
may have attached to his statements. Cf. Hardison v.
Commissioner of Correction, 152 Conn. App. 410, 418,
98 A.3d 873 (2014) (‘‘[Our Supreme Court has] recog-
nized that the attorney-client privilege was created to
encourage full and frank communication between attor-
neys and their clients and thereby promote broader
public interests in the observation of law and the admin-
istration of justice’’ [internal quotation marks
omitted]).10
Furthermore, the petitioner’s argument that Alexan-
der’s potential testimony regarding the then self-repre-
sented petitioner’s statements made during plea discus-
sions would have been inadmissible and that the threat
of Alexander’s testimony ‘‘effectively prevent[ed] the
[petitioner] from testifying in his own defense’’ is
entirely speculative. The petitioner’s counsel recog-
nized during oral argument before this court that the
petitioner could have filed a motion in limine to obtain
a ruling regarding the admissibility of Alexander’s
potential testimony. In light of his failure to seek such
a ruling, we will not speculate whether Alexander could
have provided admissible evidence in the petitioner’s
criminal trial or whether the petitioner’s decision to
refrain from testifying in his defense was due to Alexan-
der’s potential testimony.11 See Ramos v. Commis-
sioner of Correction, 172 Conn. App. 282, 320, 159 A.3d
1174 (‘‘[b]ecause this court is constrained to evaluating
demonstrable realities, we will not engage in mere spec-
ulation’’ [internal quotation marks omitted]), cert.
denied, 327 Conn. 904, 170 A.3d 1 (2017); Grant v. Com-
missioner of Correction, 121 Conn. App. 295, 303–304,
995 A.2d 641 (‘‘[i]n a habeas corpus proceeding, the
petitioner’s burden of proving that a fundamental
unfairness had been done is not met by speculation
. . . but by demonstrable realities’’ [internal quotation
marks omitted]), cert. denied, 297 Conn. 920, 996 A.2d
1192 (2010).
We conclude that the petitioner’s habeas petition fails
to state a claim upon which habeas corpus relief can
be granted and, thus, the habeas court properly dis-
missed the habeas petition.
The judgment is affirmed.
In this opinion the other judges concurred.
1
During the March 14, 1997 court appearance, the following colloquy
occurred between the court and Isko:
‘‘The Court: Now, in your preparation for this particular position to go
to trial today as you’ve indicated, you’re prepared to begin trial, has the
theory of the defense changed in any way?
‘‘[Defense Counsel]: Most accurately, Your Honor. Based on our prepara-
tion and, again, what we needed to do was to give advice to the client, it
became clear that there were a number of theories of a defense. Clearly
what was presented to Mr. Fernandez; I have advised him on his right to
testify and that is clearly a much—clearly much more of a possibility now
than it was when he was conducting the case, yes.
‘‘In that sense a theory of defense that is a serious defense, and the court
has noted that can be full of theories of defenses based on the careful
evaluation of the evidence and that the evidentiary rules have changed, and
what can be presented now can be considerably different.
‘‘The Court: All right. And you’re aware of course, Mr. Isko, that Mr.
Fernandez in his capacity was representing himself, has had individual
conversations within the presence of the state’s attorney concerning . . .
his theory of defense of that particular period of time and other discussions
of the case with Attorney Alexander.
‘‘[Defense Counsel]: I was, at the time that these discussions were in
pretrial process, as standby counsel. Again, I was not always requested to
be present. And there were conversations that I was aware of but not present
and, again, because I was not requested to be there by Mr. Fernandez.
‘‘I want to be frank with the court so, yes, I am aware that there were
discussions going on. And just this morning it was brought to my attention
and I think I at one point I may have—I was aware [that] Mr. Fernandez
was filing motions and there was additional correspondence and statements
sent him. It has been brought to my attention, yes.
‘‘The Court: And the fact that the state has had individual correspondence,
at this particular time from your particular client specifically addressed to
the state’s attorney, does that bring any—does that concern you as to the
defense at this particular period of time?
‘‘[Defense Counsel]: Especially in light of conversations we’ve had this
past week. Let me just make it clear, it doesn’t concern me as to the actions
of the state’s attorney or the state’s attorney’s office. I don’t think they’re—
again, that the time that Mr. Fernandez sent the letters my understanding
it was before I was full counsel. He was doing that on his own as pro se.
‘‘The Court: The court’s not implying or inferring in any way there’s
anything wrong with what the state’s attorney did what was—what she was
supposed to do under the circumstances.
‘‘[Defense Counsel]: Certainly the knowledge of those letters and what the
complex sense have been related to do cause me concern as we go forward.
‘‘The Court: Yes. In that concern and with the present knowledge that
you have in your previous preparation, there in your opinion a possibility
that the state’s attorney—the present state’s attorney may have information
to the contrary, or may have information given by your client that the state
may wish to bring out in its case in chief?
‘‘[Defense Counsel]: Yes.’’
2
On May 30, 2014, the respondent filed a return, raising the affirmative
defense of procedural default. In his reply, the petitioner asserted, as good
cause for his failure to raise his claim at trial or on direct appeal, that
‘‘he, as a [self-represented] defendant, was unaware of the rules regarding
attorney as witness conflicts, and disqualification, and that this claim, and
the underlying claim of conflict, was not discovered by him until after his
trial and direct appeal.’’
In its motion to dismiss, the respondent again raised procedural default
as a ground for dismissal of this third action for a writ of habeas corpus.
In its memorandum of decision dismissing the petition, the habeas court
did not address the respondent’s procedural default defense. The respondent
argues on appeal that this court may affirm the judgment of dismissal on
the alternative legal ground that the petitioner’s claim is unreviewable
because he failed to establish good cause for his failure to raise it earlier.
We decline to reach the procedural default issue because the habeas court
addressed the petitioner’s claim on the merits and did not address expressly
the issue of procedural default. See, e.g., Crawford v. Commissioner of
Correction, 285 Conn. 585, 600 n.8, 940 A.2d 789 (2008) (declining to consider
respondent’s affirmative defense of procedural default in part because par-
ties did not raise issue at habeas hearing and habeas court did not make
any findings of fact or ruling on issue); Giuca v. Commissioner of Correction,
171 Conn. App. 619, 620 n.1, 157 A.3d 1189 (addressing merits of appeal
when habeas court did not address expressly issue of procedural default
as raised in return), cert. denied, 326 Conn. 903, 162 A.3d 726 (2017); Gibson
v. Commissioner of Correction, 135 Conn. App. 139, 153 n.2, 41 A.3d 700
(determining that it need not reach procedural default issue in part because
court did not rule on affirmative defense), cert. denied, 305 Conn. 922, 47
A.3d 881 (2012); Brown v. Commissioner of Correction, 92 Conn. App. 382,
383–84 n.1, 885 A.2d 761 (2005) (declining to address respondent’s claim
that judgment should be affirmed on alternative ground of procedural default
in light of decision on merits of petitioner’s appeal), cert. denied, 277 Conn.
908, 894 A.2d 989 (2006), appeal dismissed, 281 Conn. 466, 915 A.2d 870
(2007).
3
In his appellate brief, the petitioner represents that, in pretrial discussions
with Alexander, he had ‘‘stat[ed] a defense denying his presence at the crime
scene.’’ This description of his statement to Alexander is consistent with
the representations made by counsel for the petitioner during the hearing
before the habeas court on the motion to dismiss. The respondent’s counsel
stated during the hearing that ‘‘I don’t think anyone in this room can testify
as to what was actually said . . . in that pretrial negotiation . . . . I mean,
at this point I think we’re all just hypothesizing what could’ve possibly been
said.’’ We note that there were no factual findings made regarding the content
of the statements the petitioner made to Alexander. Because we conclude
that the petitioner cannot assert a claim for relief under the Rules of Profes-
sional Conduct, for purposes of our review, we assume that the petitioner’s
statement, in substance, was as represented.
4
All references in this opinion to the Rules of Professional Conduct are
to the rules in effect at the time of the petitioner’s trial in May, 1998, unless
otherwise noted.
5
The commentary to rule 1.10 of the Rules of Professional Conduct defined
‘‘firm’’ to include ‘‘lawyers in a private firm, and lawyers employed in the
legal department of a corporation or other organization, or in a legal ser-
vices organization.’’
6
The current version of ‘‘[r]ule 1.10 (d) of the Rules of Professional
Conduct provides: ‘The disqualification of lawyers associated in a firm with
former or current government lawyers is governed by Rule 1.11.’ Rule 1.11
(d), in turn, subjects current government lawyers to rules 1.7 and 1.9, regard-
ing personal conflicts of interest, but does not provide for the imputation
of conflicts. Rather, the commentary to rule 1.11 emphasizes that ‘Rule 1.10
is not applicable to the conflicts of interest addressed by this Rule’ and
explains that ‘[b]ecause of the special problems raised by imputation within
a government agency, subsection (d) [of rule 1.11] does not impute the
conflicts of a lawyer currently serving as an officer or employee of the
government to other associated government officers or employees, although
ordinarily it will be prudent to screen such lawyers. . . .’ (Emphasis added.)
Rules of Professional Conduct 1.11, commentary.’’ (Emphasis in original.)
Anderson v. Commissioner of Correction, supra, 127 Conn. App. 545.
7
Because there was no conflict to be imputed, we need not address
whether the amendments to rules 1.10 and 1.11 of the Rules of Professional
Conduct subsequent to the petitioner’s criminal trial, which adopted the
distinction that conflicts are not imputed between current government
employees, necessitate the conclusion that the version of rule 1.10 in effect
at the time of the petitioner’s trial would have required that any conflict be
imputed and whether that imputation would extend beyond the attorneys in
all of the state’s attorney’s offices to the Office of the Chief State’s Attorney.
8
In his appellate brief, the petitioner recognizes that ‘‘[c]learly, [rule] 1.7
[of the Rules of Professional Conduct], speaking of current clients, and
[rule] 1.9 [of the Rules of Professional Conduct] speaking of former clients,
are also inapplicable to this case.’’ Instead, he argues that ‘‘[the] issue in
this case is more analogous to the Code of Judicial Conduct, Rule 2.11 (a)
. . . .’’ Citing the current version of the Code of Judicial Conduct provision
governing the circumstances under which a judge shall disqualify himself,
the petitioner provides no authority for the application of that provision to
the attorneys of all of the state’s attorney’s offices and the Office of the
Chief State’s Attorney. Further, the application section of the current Code
of Judicial Conduct states that the code’s provisions ‘‘apply to all judges of
the Superior Court, senior judges, judge trial referees, state referees, family
support magistrates . . . and family support magistrate referees.’’
9
Rule 3.8 of the Rules of Professional Conduct provided, in relevant part,
that ‘‘[t]he prosecutor in a criminal case shall (2) Make reasonable efforts
to assure that the accused has been advised of the right to, and the procedure
for obtaining, counsel and has been given reasonable opportunity to obtain
counsel; [and] (3) Not seek to obtain from an unrepresented accused a
waiver of important pretrial rights, such as the right to a preliminary hearing
. . . .’’ The commentary to that rule stated that ‘‘[a] prosecutor has the
responsibility of a minister of justice and not simply that of an advocate. This
responsibility carries with it specific obligations to see that the defendant
is accorded procedural justice . . . .’’ Rules of Professional Conduct 3.8,
commentary.
10
Moreover, we note that although Alexander answered that she had
discussed the petitioner’s case with Galluzzo, as to whether any of her
discussions with Galluzzo ‘‘include[d] discussion of any matters discussed
with [the petitioner] himself, while he was acting as his own counsel in the
first trial,’’ she answered, ‘‘[n]ot to my recollection.’’ Thus, there was no
evidence before the habeas court that Alexander had shared the allegedly
privileged information with Galluzzo.
The petitioner argues, however, that the mere discussion of the case
between Alexander and Galluzzo constituted an impermissible breach of a
‘‘Chinese Wall’’ required pursuant to State v. Jones, 180 Conn. 443, 457, 429
A.2d 936 (1980), overruled in part on other grounds by State v. Powell, 186
Conn. 547, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459
U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982). Jones is wholly distinguishable
from and inapplicable to the present case, however, in that unlike the
defendant in Jones, the petitioner has not alleged any attorney-client relation-
ship between himself and any prosecutor affiliated with any of the state’s
attorney’s offices or the Office of the Chief State’s Attorney.
11
The respondent does not concede that Alexander’s potential testimony
would have been inadmissible and instead argues that the state ‘‘would not
necessarily have been precluded from calling Alexander for impeachment
purposes had [the] petitioner testified.’’