Stephen S. v. Commissioner of Correction ( 2020 )

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STEPHEN S.* v. COMMISSIONER
OF CORRECTION
(AC 42384)
DiPentima, C. J., and Lavine and Keegan, Js.
Syllabus
The petitioner, who had been convicted of multiple charges involving the
sexual abuse of a minor, filed a third petition for a writ of habeas corpus,
claiming that his trial counsel and appellate counsel had rendered inef-
fective assistance. The first two habeas courts denied the first two
petitions. The third habeas court rendered judgment declining to issue
the writ, determining, pursuant to the applicable rule of practice (§ 23-
24 (a) (2)), that the petition was frivolous on its face. The court stated
that the petitioner’s third petition raised claims that were identical to
those raised, litigated and resolved against the petitioner in his first two
habeas petitions. The court thereafter granted the petitioner certification
to appeal, and the petitioner appealed to this court, asserting that his
third petition was not wholly frivolous because the claims it raised were
different from the claims raised in his first two petitions. After the
parties submitted their briefs to this court, the respondent Commissioner
of Correction conceded that the habeas court had erroneously declined
to issue the writ and concluded that the matter had to be remanded to
the habeas court with direction to issue the writ. Held that the habeas
court abused its discretion in declining to issue the writ of habeas corpus
on the ground that the petitioner’s habeas petition was wholly frivolous
on its face; the petition alleged cognizable claims of ineffective assis-
tance of trial counsel and prior habeas counsel, and a claim of actual
innocence that had not been pleaded in previous petitions, and the
petitioner’s claims should have survived the screening function of Prac-
tice Book § 23-24 and entitled the petitioner to present evidence in
support of his claims.
Submitted on briefs March 17—officially released July 21, 2020
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., rendered judgment declining to
issue a writ of habeas corpus; thereafter, the petitioner,
on the granting of certification, appealed to this court.
Reversed; judgment directed; further proceedings.
Vishal K. Garg, assigned counsel, filed a brief for the
appellant (petitioner).
Kevin T. Kane, chief state’s attorney, and Timothy
J. Sugrue, assistant state’s attorney, filed a brief for the
appellee (respondent).
Opinion
KEEGAN, J. The petitioner, Stephen S., appeals from
the judgment of the habeas court declining to issue a
writ of habeas corpus pursuant to Practice Book § 23-
24 (a) (2) because the petition was ‘‘wholly frivolous
on its face.’’ On appeal, the petitioner claims that the
habeas court improperly declined to issue the writ of
habeas corpus because the claims raised in his current
habeas petition are different from the claims raised
in his two prior habeas petitions, and, therefore, his
pleading is not wholly frivolous. After the parties sub-
mitted their briefs, the respondent, the Commissioner
of Correction, citing to Gilchrist v. Commissioner of
Correction, 334 Conn. 548, 560, 223 A.3d 368 (2020),
conceded that the habeas court erroneously declined
to issue the writ and concluded that the matter must
be remanded to the habeas court with direction to issue
the writ. We agree that a remand to the habeas court
is appropriate, and, thus, the judgment is reversed and
the case is remanded with direction to issue the writ
of habeas corpus.
The following facts and procedural history are rele-
vant to this appeal. Following a jury trial, the petitioner
was found guilty of multiple charges involving the sex-
ual abuse of a minor and was sentenced to sixty years
of incarceration. The petitioner appealed from the judg-
ment of conviction to this court, claiming that the trial
court improperly allowed (1) pornographic materials
to be admitted into evidence even though the victim
had not specifically identified them, (2) the admission
of prejudicial hearsay pursuant to the constancy of
accusation doctrine, and (3) prosecutorial misconduct
to occur. This court disagreed and affirmed the judg-
ment of the trial court.
Thereafter, the petitioner filed his first petition for a
writ of habeas corpus in which he alleged the ineffective
assistance of his trial counsel, Martin McQuillan, and
his appellate counsel, David T. Grudberg. Specifically,
the petitioner claimed that McQuillan had failed (1) to
‘‘conduct sufficient consultation regarding the medical
proofs available to the state,’’ (2) to ‘‘meaningfully chal-
lenge the testimony of medical personnel who testified
for the state,’’ (3) to ‘‘present medical testimony to
support the petitioner’s declaration of innocence,’’ (4)
to ‘‘introduce as evidence medical reports concerning
the complaining witness’ behavior and mental health,’’
(5) to ‘‘object to constancy of accusation witnesses,’’
and (6) to ‘‘object to the state’s attorney’s cross-exami-
nation of the [petitioner].’’ Thereafter, the petitioner
amended his petition to include a claim that McQuillan
had failed to adequately consult with an expert, and to
present expert testimony, regarding child abuse and
sexual child abuse ‘‘within the context of the criminal
case allegations and available information.’’ Addition-
ally, the petitioner claimed that Grudberg had failed (1)
to ‘‘raise as an issue the trial court’s overruling of [the
petitioner’s] objection to allowing the constancy of
accusation witnesses to testify that the [victim] told
them about oral, anal and vaginal contact,’’ and (2)
to adequately ‘‘[present] the prosecutorial misconduct
claim regarding the prosecutor’s cross-examination of
the [petitioner] because he failed to detail all of the
instances of claimed misconduct and failed to provide
a [harm] analysis.’’
After a trial on the merits, the habeas court, T. Santos,
J., concluded that the petitioner had failed to prove any
of his claims of ineffective assistance of counsel and,
accordingly, denied the petition in a lengthy and com-
prehensive memorandum of decision. The petitioner
appealed from the judgment of the habeas court, claim-
ing that the habeas court erred in denying his claim
of ineffective assistance of counsel because his trial
counsel failed to sufficiently consult with an expert
witness (1) regarding the physical evidence of sexual
abuse and (2) in the field of child sexual abuse to refute
the prosecution’s witness. See Stephen S. v. Commis-
sioner of Correction, 134 Conn. App. 801, 802, 40 A.3d
796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012).
This court affirmed the judgment of the habeas court. Id.
Thereafter, the petitioner filed his second habeas
petition, in which he claimed that McQuillan, his crimi-
nal trial counsel; Bruce B. McIntyre, his habeas counsel;
and Mary Trainer, his appellate habeas counsel, were
ineffective. Specifically, the petitioner alleged that
McQuillan failed to properly and adequately to investi-
gate evidence underlying the petitioner’s case and to
consult with and to present expert testimony needed
to refute allegations of sexual assault against the peti-
tioner. McIntyre, he claimed, had failed to properly and
adequately raise and argue the petitioner’s constitu-
tional right to the effective assistance of counsel pursu-
ant to the sixth and fourteenth amendments to the
United States constitution and article first, §§ 8 and 9,
of the constitution of Connecticut. Last, the petitioner
claimed that Trainer failed to raise a claim on appeal
contesting the determination of the habeas court that
the petitioner’s right to the effective assistance of coun-
sel was not violated when McQuillan failed ‘‘to consult
with a medical expert.’’ Following a trial, the habeas
court, Fuger, J., held that the claims asserted against
McQuillan were successive to the claims that had been
pleaded against him in the first habeas petition. Addi-
tionally, the court concluded that the petitioner’s claims
were ‘‘absurd given the fact that he actually consulted
with and used’’ the medical expert in question. Finally,
the court concluded that the remaining claims against
McIntyre and Trainer were unsupported by the evidence
that was presented to the court. The petitioner filed an
appeal from the second habeas court’s judgment but
later withdrew it.
Subsequently, the petitioner filed his third habeas
petition, as a self-represented party, which is the subject
of the present appeal. Again, the petitioner claimed that
McQuillan and Grudberg had been ineffective. Specifi-
cally, the petitioner claimed that McQuillan was ineffec-
tive in his representation because he failed (1) to file
a motion to dismiss the charges, (2) to investigate and
to present evidence regarding the petitioner’s custody
battle with his former wife, (3) to impeach the testimony
of his former wife regarding access she and the victim
had to his apartment and his belongings, (4) to challenge
the testimony of the state’s witness, Janet Murphy, a
nurse practitioner, regarding her credentials and qualifi-
cations, and her physical and psychological examina-
tion of the victim, (5) to present the testimony of various
medical and psychological experts, (6) to object to,
obtain, challenge, and preserve medical and psychiatric
clinic and hospital records relating to the victim that
had been redacted at trial, (7) to investigate and to
present the testimony of a defense character witness,
(8) to move to compel a pretrial competency hearing
regarding the victim, and (9) to move for a judgment
of acquittal ‘‘on a case that was a ‘credibility contest.’ ’’
Additionally, the petitioner further claimed that Grudb-
erg had failed to raise a claim on direct appeal regarding
the redacted records that served as the basis for the
claim against McQuillan previously set forth. Last, the
petitioner asserted a claim of actual innocence, which
was predicated on McQuillan’s alleged deficiencies.
Following the filing of the petitioner’s petition for a
writ of habeas corpus, the court, Newson, J., issued
a judgment declining to issue the writ: ‘‘Pursuant to
Practice Book § 23-24 (a) (2) . . . the [petition] is
wholly frivolous on its face, to wit: The petition raises
claims identical to those already raised, litigated, and
resolved against the petitioner in [the first and second
habeas actions].’’ Thereafter, the petitioner filed a
motion for rectification requesting that the habeas court
‘‘rectify the record to include any materials from the
petitioner’s prior cases upon which the [court] relied
when arriving at its decision.’’ The habeas court denied
the petitioner’s motion, explaining that rectification is
not necessary, as the court may take judicial notice of
the petitioner’s previous habeas files. Thereafter, the
petitioner filed a petition for certification to appeal,
which was granted. This appeal followed.
We begin with the standard of review. The habeas
court’s determination that a petition for a writ of habeas
corpus is frivolous, and its decision declining to issue
the writ of habeas corpus, are reviewed for an abuse of
discretion. Fernandez v. Commissioner of Correction,
125 Conn. 220, 223, 7 A.3d 432 (2010), cert. denied, 300
Conn. 924, 15 A.3d 630 (2011).
Practice Book § 23-24, titled ‘‘Preliminary Consider-
ation of Judicial Authority,’’ provides in relevant part:
‘‘(a) The judicial authority shall promptly review any
petition for a writ of habeas corpus to determine
whether the writ should issue. The judicial authority
shall issue the writ unless it appears that . . . (2) the
petition is wholly frivolous on its face . . . .’’ In the
present matter, the sole issue before this court is
whether the habeas court abused its discretion in
declining to issue the petitioner’s writ of habeas corpus
pursuant to § 23-24 (a) (2) because the petition was
‘‘wholly frivolous on its face . . . .’’
Although there is limited authority addressing Prac-
tice Book § 23-24 (a) (2), we find three cases, Alvarado
v. Commissioner of Correction, 75 Conn. App. 894, 818
A.2d 797, cert. denied, 264 Conn. 903, 823 A.2d 1220
(2003), Fernandez v. Commissioner of Correction,
supra, 125 Conn. App. 220, and Gilchrist v. Commis-
sioner of Correction, supra, 334 Conn. 548, to be partic-
ularly instructive to the resolution of the present appeal.
In Alvarado, the self-represented petitioner alleged
that his confinement was illegal because a ‘‘parole hear-
ing was denied [to him] or the hearing was improper.’’
(Internal quotation marks omitted.) Alvarado v. Com-
missioner of Correction, supra, 75 Conn. App. 894–95.
Thereafter, the habeas court dismissed the petition for
a writ of habeas corpus pursuant to Practice Book § 23-
24 (a) (2) because the petition was ‘‘frivolous on [its]
face,’’ as it failed ‘‘to allege specific facts of ineffective
assistance of counsel or ‘any other claim[s] as to why
[the petitioner’s] conviction is illegal.’ ’’ Id., 895. Upon
a review of the record, this court concluded that,
because the petitioner failed to allege any specific facts
of ineffective assistance of counsel or any other claim
as to why his underlying conviction was illegal, the
habeas court did not abuse its discretion in declining
to issue a writ of habeas corpus pursuant to § 23-24 (a)
(2). Id., 896.
In Fernandez, the self-represented petitioner alleged
that he was a ‘‘foreign national, who is being treated
as a ‘slave’ and a ‘prisoner of war’ in that he is being held
at the ‘plantation of MacDougall-Walker’ [Correctional
Institution] in violation of his constitutional rights and
‘Geneva Convention Treaties, Convention Against Tor-
ture, European Convention on Human Rights and U.S.
Human Rights Acts.’ ’’ Fernandez v. Commissioner of
Correction, supra, 125 Conn. App. 224. On appeal, this
court concluded that, because the petitioner was incar-
cerated as a result of convictions of crimes of which
he had been found guilty, the habeas court did not
abuse its discretion in declining to issue a writ of habeas
corpus. Id.
Additionally, we find that Gilchrist, a recent decision
of our Supreme Court, provides clarity as to the precise
issue before us, although it is procedurally distinct from
the present case. In Gilchrist, the self-represented peti-
tioner filed a petition for a writ of habeas corpus. Gilch-
rist v. Commissioner of Correction, supra, 334 Conn.
550. He included with the petition an application for a
waiver of fees and the appointment of counsel. Id., 551.
Thereafter, the habeas court assigned a docket number
to the petition and granted the petitioner’s application
for a waiver of fees but took no action regarding his
request for the appointment of counsel. Id. One week
later, the habeas court, sua sponte and without provid-
ing notice to the petitioner or giving him an opportunity
to be heard, rendered judgment of dismissal because
the court lacked jurisdiction pursuant to Practice Book
§ 23-29 (1). Id., 551–52. The habeas court granted the
petitioner’s petition for certification to appeal, and this
court affirmed the habeas court’s judgment of dismissal.
Id., 552. Our Supreme Court granted the petitioner’s
petition for certification to appeal. The revised certified
question before our Supreme Court was as follows:
‘‘Did the Appellate Court properly affirm the habeas
court’s dismissal of the petition under . . . [Practice
Book] § 23-29 when that dismissal occurred before the
habeas court ordered the issuance of the writ pursuant
to . . . [Practice Book] § 23-24?’’ Id. Our Supreme
Court answered that question in the negative,
explaining that, ‘‘when a petition for a writ of habeas
corpus alleging a claim of illegal confinement is submit-
ted to the court, the following procedures should be
followed. First, upon receipt of a habeas petition that
is submitted under oath and is compliant with the
requirements of Practice Book § 23-22; see Practice
Book §§ 23-22 and 23-23; the judicial authority must
review the petition to determine if it is patently defec-
tive because the court lacks jurisdiction, the petition
is wholly frivolous on its face, or the relief sought is
unavailable. Practice Book § 23-24 (a). If it is clear that
any of those defects are present, then the judicial
authority should issue a judgment declining to issue
the writ, and the office of the clerk should return the
petition to the petitioner explaining that the judicial
authority has declined to issue the writ pursuant to
[Practice Book] § 23-24. Practice Book § 23-24 (a) and
(b). If the judicial authority does not decline to issue
the writ, then it must issue the writ, the effect of which
will be to require the respondent to enter an appearance
in the case and to proceed in accordance with applica-
ble law. At the time the writ is issued, the court should
also take action on any request for the appointment of
counsel and any application for the waiver of filing fees
and costs of service. See Practice Book §§ 23-25 and
23-26. After the writ has issued, all further proceedings
should continue in accordance with the procedures set
forth in our rules of practice, including Practice Book
23-29.’’ Gilchrist v. Commissioner of Correction,
supra, 562–63.
In clarifying this procedure, our Supreme Court
explained that habeas courts should proceed ‘‘with a
lenient eye’’ and ‘‘[allow] borderline cases to proceed’’
when determining whether to issue a writ of habeas
corpus: ‘‘To be clear, the screening function of Practice
Book § 23-24 plays an important role in habeas corpus
proceedings, but it is intended only to weed out obvi-
ously and unequivocally defective petitions, and we
emphasize that [b]oth statute and case law evince a
strong presumption that a petitioner for a writ of habeas
corpus is entitled to present evidence in support of his
claims.’’ (Internal quotation marks omitted.) Id., 560.
As our Supreme Court explained, ‘‘[t]he justification for
this policy is apparent. If the writ of habeas corpus is
to continue to have meaningful purpose, it must be
accessible not only to those with a strong legal back-
ground or the financial means to retain counsel, but also
to the mass of uneducated, unrepresented prisoners.’’
(Internal quotation marks omitted.) Id.
Upon a review of case law in our jurisdiction, we
conclude that the facts in both Alvarado and Fernandez
are distinguishable from the present case. In the present
case, the petitioner’s petition for a writ of habeas corpus
alleged cognizable claims of ineffective assistance of
trial and prior habeas counsel along with a claim of
actual innocence. These claims on their face are not
‘‘obviously and unequivocally defective’’; id.; but, rather,
are cognizable claims that should have survived the
‘‘screening function’’ of Practice Book § 23-24 and enti-
tled the petitioner to present evidence in support of his
claims. Specifically, the petitioner alleged a claim of
ineffective assistance of second habeas counsel in
which he asserted that first habeas counsel had been
ineffective for failing to claim that his trial and appellate
counsel were ineffective. To support his claim, the peti-
tioner identified specific witnesses’ testimony that
would have been favorable to him, raised issues per-
taining to the adequacy of medical professionals who
were called to testify as to the reliability of the allega-
tions against him, and argued that a ‘‘toluidine blue dye
test’’ should have been conducted. Additionally, the
petitioner asserted a claim of actual innocence, a claim
that had not been pleaded in previous petitions. In light
of the foregoing facts and case precedent, we conclude
that the habeas court abused its discretion in declining
to issue the writ on the ground that the petition was
wholly frivolous on its face.
The judgment is reversed and the case is remanded
with direction to issue the writ and for further proceed-
ings according to law.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to use the petitioner’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.