Santiago v. Commissioner of Correction ( 2022 )

***********************************************
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.
***********************************************
JOAQUIN SANTIAGO v. COMMISSIONER
OF CORRECTION
(AC 44533)
Elgo, Cradle and Alexander, Js.
Syllabus
The petitioner, who had been convicted of, inter alia, felony murder, and
sentenced to fifty years’ incarceration, sought a writ of habeas corpus,
claiming ineffective assistance of his trial counsel for failure to preserve
his direct appeal. Following the imposition of his sentence, the trial
court clerk handed the petitioner notices of the right to appeal and the
right to sentence review and informed the petitioner that by signing the
documents, he acknowledged receipt of them. The petitioner’s trial
counsel, a special public defender, explained to the petitioner what the
documents were and also what had to be done to initiate the appeal,
in particular that in order for the appellate process to start in motion,
an application for waiver of costs and fees and appointment of appellate
counsel had to be filed. After receiving this information, the petitioner
signed the notice forms. Trial counsel then asked the petitioner if he
wanted him to initiate the appeal process or forward the matter to the
Office of the Chief Public Defender so that the appellate unit might
begin an appeal. Angered by the verdict and lengthy sentence imposed,
the petitioner abruptly told his trial counsel that he wanted him to have
no contact with his case any longer. Despite the advice of the trial clerk,
his trial counsel, and the contents of the notice itself, the petitioner
mistakenly believed that signing the notice of right to appeal form was
all that was necessary to begin his appeal. The habeas court, after a
hearing at which the petitioner and his trial counsel testified, dismissed
the petition for a writ of habeas corpus and denied the petition for
certification to appeal. The petitioner did not immediately appeal from
the judgment of the habeas court. Approximately twenty-five years later,
the petitioner filed an application for waiver of fees and for appointment
of counsel to appeal the judgment of the habeas court. Subsequently,
the court granted the petitioner’s application for waiver of fees and
referred his petition for appointment of appellate counsel to the Office of
the Chief Public Defender, which appointed counsel. On the petitioner’s
appeal to this court, held:
1. The petitioner failed to establish that the habeas court abused its discretion
in denying his petition for certification to appeal, the petitioner having
failed to establish that the issues raised were debatable among jurists
of reason, that they reasonably could be resolved by a court differently,
or that they raised questions deserving further appellate scrutiny.
2. The petitioner could not prevail on his claim that the habeas court’s
conclusion that he was not denied the effective assistance of trial counsel
rested on clearly erroneous factual findings concerning his trial counsel’s
representations to him during his sentencing proceeding, a careful
review of the record, including the transcript of the habeas trial, having
revealed that the court’s findings were supported by the evidence in
the record; the court’s factual findings set forth in its memorandum of
decision were derived directly from the testimony of the petitioner’s
trial counsel at the habeas trial, the court had discretion to credit or
discredit the witnesses who testified and was the sole arbiter of the
weight to be given to witness testimony, and, in light of the testimony,
there was ample evidence in the record to support the court’s findings
that the petitioner’s trial counsel advised the petitioner regarding the
initiation of the appeals process and offered to initiate the appeals
process on the petitioner’s behalf or forward the matter to the Office
of the Chief Public Defender.
3. The petitioner could not prevail on his claim that the habeas court erred
in concluding that his trial counsel’s representation was not deficient
and therefore that the petitioner failed to satisfy the performance prong
of Strickland v. Washington (466 U.S. 668): it was undisputed that the
petitioner expressly discharged his trial counsel following the imposition
of his sentence, and it was reasonable for trial counsel to believe that
initiating an appeal on the petitioner’s behalf would contradict the peti-
tioner’s explicit instructions and violate his ethical duty to the petitioner,
and it was clear that trial counsel was prepared to assist the petitioner
in initiating the appeals process but ultimately deferred to the petitioner’s
instructions to not handle his file any longer.
Argued March 1—officially released June 21, 2022
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, Sferrazza, J.; judgment
dismissing the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Deborah G. Stevenson, assigned counsel, for the
appellant (petitioner).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, was Sharmese L. Walcott, state’s
attorney, for the appellee (respondent).
Opinion
CRADLE, J. The petitioner, Joaquin Santiago, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court dismiss-
ing his petition for a writ of habeas corpus. On appeal,
the petitioner claims that the court abused its discretion
in denying his petition for certification and improperly
dismissed his petition for a writ of habeas corpus by
concluding that he was not denied the effective assis-
tance of his trial counsel, Special Public Defender John
Stawicki, with respect to Stawicki’s failure to preserve
the petitioner’s direct appeal. We disagree and, accord-
ingly, dismiss the appeal.
The following facts and procedural history are rele-
vant to our disposition of the petitioner’s claim. Follow-
ing a jury trial, at which the petitioner was represented
by Stawicki, the petitioner was convicted of one count
of felony murder in violation of General Statutes (Rev.
to 1991) § 53a-54c, and four other related charges. On
May 21, 1992, the trial court, Miano, J., sentenced the
petitioner to a total effective sentence of fifty years of
incarceration.
‘‘On May 26, 1993, the petitioner filed [a pro se petition
for a writ of habeas corpus]’’ on the ground that he had
been denied his constitutional right to the effective
assistance of counsel. The petitioner was subsequently
appointed counsel and, in his amended petition, claimed
that Stawicki rendered deficient performance by failing
to preserve his right to appeal from the judgment of
conviction after sentencing.
A habeas trial was held on August 24, 1995, whereby
the petitioner presented the testimony of two witnesses,
himself and Stawicki. On August 28, 1995, the habeas
court, Sferrazza, J., dismissed the petition for a writ
of habeas corpus. In its memorandum of decision, the
court found as follows: ‘‘Stawicki was appointed to
represent the petitioner as a special public defender.
Stawicki handled the petitioner’s case for over a year,
which case culminated in a jury trial at which the peti-
tioner was found guilty of felony murder and related
charges. . . . Following imposition of the sentence,
the court clerk handed to the petitioner notices of the
right to appeal and the right to sentence review. The
clerk informed the petitioner that by signing these docu-
ments, the petitioner would be acknowledging receipt
of them. Before the petitioner signed the documents,
Stawicki explained to the petitioner what [the docu-
ments] were and also what had to be done to initiate
the appeal. In particular, Stawicki explained that, in
order for the appellate process to start in motion, an
application for waiver of costs and fees and appoint-
ment of appellate counsel had to be filed. After receiving
this information the petitioner signed the notice forms.
‘‘Stawicki then asked the petitioner if he wanted
Stawicki to initiate the appeal process or forward the
matter to the [Office of the Chief Public Defender] so
that the appellate unit at that office might begin the
appeal. Angered by the verdict and lengthy sentence
imposed, the petitioner abruptly told Stawicki that he
wanted Stawicki to have no contact with his case any
longer. Stawicki respected the petitioner’s desire and
had no further communication with the petitioner
regarding the case. . . . Despite the advice of the clerk,
Stawicki, and the contents of the notice itself, the peti-
tioner mistakenly believed that signing the notice of
right to appeal form was all that was necessary to begin
his appeal.’’
Applying the test set forth in Strickland v. Washing-
ton, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984), the court then determined that the petitioner
had failed to demonstrate that he had been denied the
effective assistance of counsel. Specifically, the court
held that Stawicki properly had advised the petitioner
regarding the initiation of the appeals process and will-
ingly had offered to assist the petitioner in filing the
application for waiver of costs and fees and the appoint-
ment of appellate counsel, or in having the appellate
unit of the Office of the Chief Public Defender process
the petitioner’s appeal. The court also determined that
the petitioner ‘‘out of anger and frustration curtly
refused Stawicki’s assistance and discharged him’’ and
that it was ‘‘the petitioner’s errors, not his counsel’s,
which resulted in the failure to file a timely appeal.’’
The court concluded, accordingly, that Stawicki did not
render deficient performance.1 The petitioner subse-
quently filed a petition for certification to appeal from
the decision of the habeas court, which the habeas
court denied.
The petitioner did not immediately appeal from the
judgment of the habeas court. Instead, on or about July
21, 2020, the petitioner filed an application for waiver
of fees and for appointment of counsel to appeal the
judgment of the habeas court. The habeas court subse-
quently returned the application to the petitioner and
informed the petitioner that his file was destroyed on
November 16, 2006, pursuant to Practice Book §§ 7-102
and 7-11.3
On August 24, 2020, the petitioner filed with this court
a motion for review of the return of his application for
waiver of fees and for appointment of counsel. In his
motion, the petitioner requested that this court ‘‘remand
the fee waiver back to the trial court for approval to
appeal the [habeas] court’s improper dismissal of [his]
habeas petition.’’ The respondent, the Commissioner
of Correction, subsequently filed an opposition to the
petitioner’s motion in which he argued, inter alia, that
this court should deny the petitioner’s motion because
his attempt to appeal the dismissal of his petition for
a writ of habeas corpus was untimely. The respondent
also contended that granting the petitioner’s requested
relief would prejudice the respondent given that
approximately twenty-five years had passed ‘‘since the
matter was heard and the fact that the habeas file was
[subsequently] destroyed . . . .’’4
On October 7, 2020, this court granted the petitioner’s
motion for review and vacated the habeas court’s return
of the application for waiver of fees. This court also
ordered, sua sponte, that the petitioner file with the
habeas court an application for waiver of fees to file
an appeal on or before November 18, 2020, and that
the petitioner’s application be referred to the presiding
judge of the habeas court. The habeas court, Oliver, J.,
subsequently granted the petitioner’s application for
waiver of fees, but denied the appointment of appellate
counsel.
On December 2, 2020, the petitioner filed a motion
for extension of time to file a motion to review the
habeas court’s denial of appellate counsel. On Decem-
ber 8, 2020, this court denied the petitioner’s motion
without prejudice to the petitioner filing with the trial
court a request for a hearing on the denial of his applica-
tion for appointment of appellate counsel on or before
January 8, 2021. The petitioner subsequently filed a
request for a hearing on the denial of his application
for appointment of appellate counsel.
On January 20, 2021, the trial court, Oliver J., held
a hearing on the petitioner’s motion for appointment
of appellate counsel. In an oral ruling, the court ordered
that the petitioner’s application be referred to the Office
of the Chief Public Defender for an expedited investiga-
tion. Appellate counsel subsequently was appointed and
the petitioner filed the present appeal as to the dismissal
of his 1995 habeas petition and the denial of certification
to appeal.
On appeal, the petitioner claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal because it improperly concluded that he
was not denied the effective assistance of counsel at
his criminal trial. More specifically, the petitioner
argues that (1) the habeas court’s conclusion that Staw-
icki did not render deficient performance rested on
clearly erroneous factual findings, and (2) the court
improperly determined that Stawicki did not render
deficient performance by failing either to perfect the
petitioner’s direct appeal or to forward the petitioner’s
file to the Office of the Chief Public Defender, so that
the office could preserve the petitioner’s right to appeal
and appoint new counsel to represent the petitioner.
We disagree.
We first set forth the standard of review relevant to
our resolution of this appeal. ‘‘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. . . . A peti-
tioner may establish an abuse of discretion by demon-
strating that the issues are debatable among jurists of
reason . . . [the] court could resolve the issues [in a
different manner] . . . or . . . the questions are ade-
quate to deserve encouragement to proceed further.
. . . The required determination may be made on the
basis of the record before the habeas court and applica-
ble legal principles. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court must
be affirmed. . . .
‘‘We examine the petitioner’s underlying claim[s] of
ineffective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. Our standard
of review of a habeas court’s judgment on ineffective
assistance of counsel claims is well settled. In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary. . . .
‘‘In Strickland v. Washington, [supra, 466 U.S. 687],
the United States Supreme Court established that for
a petitioner to prevail on a claim of ineffective assis-
tance of counsel, he must show that counsel’s assis-
tance 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 showings, it can-
not be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the
result unreliable. . . . Because both prongs . . . must
be established for a habeas petitioner to prevail, a court
may dismiss a petitioner’s claim if he fails to meet either
prong. . . .
‘‘To satisfy the performance prong [of the Strickland
test] the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy. . . . To satisfy the prejudice prong, a claim-
ant must demonstrate that there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.
. . . A reasonable probability is a probability sufficient
to undermine confidence in the outcome. . . . In its
analysis, a reviewing court may look to the performance
prong or to the prejudice prong, and the petitioner’s
failure to prove either is fatal to a habeas petition.’’
(Citations omitted; internal quotation marks omitted.)
Anderson v. Commissioner of Correction, 201 Conn.
App. 1, 11–13, 242 A.3d 107, cert. denied, 335 Conn. 983,
242 A.3d 105 (2020).
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. Prevailing norms of practice as reflected in
American Bar Association standards and the like, e.g.,
ABA Standards for Criminal Justice . . . are guides to
determining what is reasonable, but they are only
guides. No particular set of detailed rules for counsel’s
conduct can satisfactorily take account of the variety
of circumstances faced by defense counsel or the range
of legitimate decisions regarding how best to represent
a criminal defendant. Any such set of rules would inter-
fere with the constitutionally protected independence
of counsel and restrict the wide latitude counsel must
have in making tactical decisions. . . . Indeed, the
existence of detailed guidelines for representation
could distract counsel from the overriding mission of
vigorous advocacy of the defendant’s cause. Moreover,
the purpose of the effective assistance guarantee of the
[s]ixth [a]mendment is not to improve the quality of
legal representation, although that is a goal of consider-
able importance to the legal system. The purpose is
simply to ensure that criminal defendants receive a
fair trial.
‘‘Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant
to second-guess counsel’s assistance after conviction
or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuc-
cessful, to conclude that a particular act or omission
of counsel was unreasonable. . . . A fair assessment
of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inher-
ent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance
. . . .’’ (Citations omitted.) Strickland v. Washington,
supra, 466 U.S. 688–89.
I
The petitioner first claims that the court’s conclusion
that he was not denied the effective assistance of coun-
sel rested upon clearly erroneous factual findings con-
cerning Stawicki’s representations to the petitioner dur-
ing his sentencing proceeding. Specifically, the
petitioner alleges that the court erred in finding that
Stawicki ‘‘properly advised the petitioner regarding the
initiation of the appeals process’’ and offered ‘‘to initiate
the appeal process [on the petitioner’s behalf] or for-
ward the matter to the [Office of the Chief Public
Defender] . . . .’’ We are not persuaded.
It is well established that ‘‘[t]he habeas court is
afforded broad discretion in making its factual findings,
and those findings will not be disturbed [on appeal]
unless they are clearly erroneous. . . . Thus, [t]his
court does not retry the case or evaluate the credibility
of the witnesses. . . . Rather, we must defer to the
[trier of fact’s] assessment of the credibility of the wit-
nesses based on its firsthand observation of their con-
duct, demeanor and attitude. . . . The habeas judge,
as the trier of facts, is the sole arbiter of the credibility
of witnesses and the weight to be given to their testi-
mony. . . . Thus, the court’s factual findings are enti-
tled to great weight. . . . Furthermore, [a] finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) David P. v. Commissioner of
Correction, 167 Conn. App. 455, 470, 143 A.3d 1158,
cert. denied, 323 Conn. 921, 150 A.3d 1150 (2016).
Our careful review of the record, including the tran-
script of the habeas trial, reveals that the court’s find-
ings are supported by the evidence in the record. At
the habeas trial, Stawicki testified: ‘‘I explained to [the
petitioner] . . . as I usually do . . . that I can file
these papers; that either myself or somebody from the
Public Defender’s Office—since I was an appointed spe-
cial public defender in this case—would handle his
appeal.’’ When Stawicki was asked specifically whether
he would handle the petitioner’s appeal, he responded,
‘‘I believe the fairer characterization would be that
somebody would handle his appeal. If he would like
me to handle it, I would handle it. And my recollection
of the reaction was that he was so dissatisfied, he
would take care of things himself.’’ (Emphasis added.)
On cross-examination, Stawicki reiterated, ‘‘I explained
to [the petitioner] that he had a right of sentence review.
I went through what the notice entailed. I also told [the
petitioner] that he had a right to appeal. It was an
absolute right. I told [the petitioner] that before he could
file the appeal and have representation from the [Office
of the Chief Public Defender] that there would have to
be a waiver of costs and fees granted. My recollection is
that [the petitioner] was not listening extremely closely.
[The petitioner] was quite upset about his sentence,
and he indicated to me that he didn’t want me further
handling his case; but I did go through the paperwork.’’
It is clear that the court’s factual findings set forth
in its memorandum of decision derive directly from
Stawicki’s testimony at the habeas trial. Indeed, it is
well established that the habeas court has discretion
to credit or discredit the witnesses who testify at the
habeas trial and is the ‘‘sole arbiter of . . . the weight
to be given to [witness] testimony.’’ (Internal quotation
marks omitted.) David P. v. Commissioner of Correc-
tion, supra, 167 Conn. App. 470; see also Crespo v.
Commissioner of Correction, 292 Conn. 804, 810 n.5,
975 A.2d 42 (2009). In light of Stawicki’s testimony,
there was ample evidence in the record to support the
habeas court’s findings that Stawicki advised the peti-
tioner ‘‘regarding the initiation of the appeals process’’
and offered ‘‘to initiate the appeal process [on the peti-
tioner’s behalf] or forward the matter to the [Office of
the Chief Public Defender] . . . .’’ We conclude, there-
fore, that the court’s factual findings were not clearly
erroneous.
II
The petitioner’s second claim is that the habeas court
erred in concluding that Stawicki’s representation of
the petitioner was not deficient and, therefore, that the
petitioner failed to satisfy the performance prong of
Strickland. In particular, the petitioner contends that
Stawicki’s performance fell below an objective standard
of reasonableness because Stawicki had an ‘‘affirmative
duty’’ to preserve the petitioner’s right to appeal or to
forward the petitioner’s file to the Office of the Chief
Public Defender. We are not persuaded.
The United States Supreme Court has established
that, although a lawyer who disregards a defendant’s
specific instructions to file a notice of appeal acts in a
professionally unreasonable manner; see Rodriquez v.
United States, 395 U.S. 327, 328–30, 332, 89 S. Ct. 1715,
23 L. Ed. 2d 340 (1969); a defendant who explicitly
instructs his attorney not to file an appeal on his behalf
cannot later complain that, by following those instruc-
tions, his counsel performed deficiently. See Jones v.
Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d
987 (1983) (accused has ultimate authority to make
certain fundamental decisions regarding case, including
whether to take appeal).
In the present case, it is undisputed that the petitioner
expressly discharged Stawicki following the imposition
of his sentence. Specifically, the petitioner told Stawicki
that ‘‘he didn’t want [Stawicki] to handle his file any
longer’’ and that ‘‘he wanted [Stawicki] to have nothing
more to do with his case. Period.’’ In light of these
statements, it was reasonable for Stawicki to believe,
based on his experience representing criminal defen-
dants,5 that initiating an appeal on the petitioner’s behalf
would contradict the petitioner’s explicit instructions
and violate his ethical duty to the petitioner.6
Nevertheless, the petitioner contends that Stawicki
had a professional responsibility, even after being dis-
charged from the representation, to either preserve the
petitioner’s appellate rights, contact the Office of the
Chief Public Defender concerning the petitioner’s
appellate rights, or better explain the nature of the
appeals process. In support of his claim, the petitioner
cites several professional rules and guidelines7 to
advance the argument that Stawicki’s performance fell
below an objective standard of reasonableness.8 The
habeas court found, however, that Stawicki adequately
had explained the nature of the appeals forms to the
petitioner, instructed the petitioner that the forms
would have to be filed in order to perfect his appeal,
and informed the petitioner that either he or another
attorney from the public defender’s office could repre-
sent the petitioner on appeal. The court also determined
that the petitioner had discharged Stawicki under rule
1.16 (a) (3) of the Rules of Professional Conduct and
explicitly directed Stawicki to ‘‘play no further role in
his case.’’ Accordingly, it is clear that Stawicki was
prepared to assist the petitioner initiate the appeals
process, but ultimately deferred to the petitioner’s
instructions to not ‘‘handle his file any longer.’’
Even if we assume that Stawicki violated one of the
cited provisions, it is well established that professional
rules and guidelines do not establish the constitutional
requirements for adequate performance. Rather, ‘‘[p]re-
vailing norms of practice as reflected in American Bar
Association standards and the like, e.g., ABA Standards
for Criminal Justice . . . are guides to determining
what is reasonable, but they are only guides. No particu-
lar set of detailed rules for counsel’s conduct can satis-
factorily take account of the variety of circumstances
faced by defense counsel or the range of legitimate
decisions regarding how best to represent a criminal
defendant.’’ (Citation omitted; emphasis added.) Strick-
land v. Washington, supra, 466 U.S. 688–89.
Considering the circumstances of this case, particu-
larly the court’s finding that the petitioner discharged
Stawicki and directed him to take no further action on
the petitioner’s behalf, we cannot conclude that Staw-
icki’s performance was so egregious that he was not
‘‘functioning as counsel . . . .’’ Ostolaza v. Warden, 26
Conn. App. 758, 761, 603 A.2d 768, cert. denied, 222
Conn. 906, 608 A.2d 692 (1992). Indeed, Stawicki
explained the appellate process to the petitioner and
offered either to represent the petitioner on appeal, or
to forward the petitioner’s file to the Office of the Chief
Public Defender. Despite these representations, the
petitioner discharged Stawicki, instructed Stawicki to
have nothing more to do with his case, and told Stawicki
that he would personally handle his own appeal. To
reiterate, a defendant has the ultimate authority to make
certain fundamental decisions in his case, including the
decision of whether to take an appeal. See Jones v.
Barnes, supra, 463 U.S. 751. Therefore, it was not unrea-
sonable for Stawicki to believe that the petitioner would
represent himself on appeal or find alternative represen-
tation. We conclude, accordingly, that the habeas court
did not abuse its discretion in determining that Stawicki
did not render deficient performance.9
For the foregoing reasons, we conclude that the peti-
tioner has failed to establish that the issues raised are
debatable among jurists of reason, that they reasonably
could be resolved by a court differently, or that they
raise questions deserving further appellate scrutiny.
Accordingly, the petitioner has failed to establish that
the court abused its discretion in denying his petition
for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Having concluded that Stawicki did not render deficient performance,
the court declined to address the prejudice prong of the Strickland test.
See Chance v. Commissioner of Correction, 184 Conn. App. 524, 534, 195
A.3d 422 (‘‘[t]he court . . . can find against a petitioner . . . on either
the performance prong or the prejudice prong’’ (internal quotation marks
omitted)), cert. denied, 330 Conn. 934, 194 A.3d 1196 (2018).
2
Practice Book § 7-10 provides: ‘‘The files in all civil, family and juvenile
actions, including summary process and small claims, which, before a final
judgment has been rendered on the issues, have been terminated by the
filing of a withdrawal or by a judgment of dismissal or nonsuit when the
issues have not been resolved on the merits or upon motion by any party
or the court, or in which judgment for money damages only has been
rendered and a full satisfaction of such judgment has been filed, may be
destroyed upon the expiration of one year after such termination or the
rendition of such judgment.’’
3
Practice Book § 7-11 provides in relevant part: ‘‘(a) With the exception
of actions which affect the title to land and actions which have been disposed
of pursuant to Section 7-10, the files in civil, family and juvenile actions in
which judgment has been rendered may be stripped and destroyed pursuant
to the schedule set forth in subsection (d), except that requests relating
to discovery, responses and objections thereto may be stripped after the
expiration of the appeal period. . . .’’
4
At oral argument before this court, the respondent stipulated that the
petitioner’s appeal was reviewable and properly before the court for consid-
eration on the merits.
5
Stawicki testified that he had previously represented clients who
instructed Stawicki not to file an appeal on their behalf. Specifically, Stawicki
testified that he ‘‘had several clients who did not want appeals. I’ve had
others who, although they’ve been unhappy with the result, have still had
me file appeals. I’ve had some just have me file the waiver of costs and
fees, and then I send . . . my file down to New Haven to the appellate
office.’’ Accordingly, Stawicki understood the petitioner’s statements that
he did not want Stawicki to ‘‘handle his file any longer’’ or ‘‘have [anything]
more to do with his case’’ as explicit instructions not to file the petition-
er’s appeal.
6
We note that the petitioner’s instruction that Stawicki ‘‘play no further
role’’ in handling his case distinguishes the present situation from our
Supreme Court’s decision in Fredericks v. Reincke, 152 Conn. 501, 208 A.2d
756 (1965), on which the petitioner relies. In that case, the special public
defender appointed to represent the plaintiff disregarded the plaintiff’s
explicit request to pursue an appeal on his behalf. Id., 503–504. Rather, the
plaintiff’s counsel determined that the plaintiff’s appeal was frivolous and
withdrew from the representation. Id., 504. Our Supreme Court, relying on
Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963),
held that ‘‘when the special public defender who conducted the plaintiff’s
defense at his trial came to the conclusion that he could not conscientiously
proceed with the appeal which he had taken to preserve the plaintiff’s rights,
and for which he had obtained an extension of time within which to file
the papers essential to the processing of the appeal, and had notified both
the plaintiff and the court of his decision, the plaintiff was entitled to have
competent counsel appointed to represent him on the appeal.’’ Fredericks
v. Reincke, supra, 505. In the present case, Stawicki was prepared to either
represent the petitioner on appeal, or to forward the petitioner’s file to the
Office of the Chief Public Defender, so that another attorney could represent
the petitioner throughout the appeals process. The petitioner, however,
discharged Stawicki from the representation and informed Stawicki that
‘‘he would take care of things himself.’’ We cannot conclude that Stawicki
performed unreasonably by following the petitioner’s explicit instruction.
7
In particular, the petitioner cites to the Connecticut Public Defender
Services Commission Guidelines on Indigent Defense §§ 1.3 and 10.2 (guide-
lines); available at https://portal.ct.gov/-/media/OCPD/Important-Informa-
tion/PDGuidelinespdf.pdf (last visited June 16, 2022); and rules 1.4 and
1.16 of the Rules of Professional Conduct. The Public Defender Services
Commission, however, did not promulgate the guidelines until 1997, two
years after the habeas court denied the petitioner’s writ of habeas corpus.
See Division of Public Defender Services, ‘‘30 Years in Review,’’ available
at https://portal.ct.gov/OCPD/Org-and-Admin/30-Years-in-Review (last vis-
ited June 16, 2022). Accordingly, the court could not have considered the
guidelines in determining that Stawicki rendered adequate performance.
At the time of the petitioner’s habeas trial, rule 1.4 of the Rules of Profes-
sional Conduct provided in relevant part: ‘‘A lawyer shall keep a client
reasonably informed about the status of a matter and promptly comply with
reasonable requests for information . . . [and] shall explain a matter to the
extent reasonably necessary to permit the client to make informed decisions
regarding the representation.’’ Rules of Professional Conduct (1978-97) 1.4.
At the time of petitioner’s habeas trial, rule 1.16 of the Rules of Professional
Conduct provided in relevant part: ‘‘(a) Except as stated in paragraph (c), a
lawyer shall not represent a client or, where representation has commenced,
shall withdraw from the representation of a client if . . .
(3) The lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from repre-
senting a client if withdrawal can be accomplished without material adverse
effect on the interests of the client, or if:
(1) The client persists in a course of action involving the lawyer’s services
that the lawyer reasonably believes is criminal or fraudulent;
(2) The client has used the lawyer’s services to perpetrate a crime or fraud;
(3) The client insists upon pursuing an objective that the lawyer considers
repugnant or imprudent;
(4) The client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer’s services and has been given reasonable warning that
the lawyer will withdraw unless the obligation is fulfilled;
(5) The representation will result in an unreasonable financial burden on
the lawyer or has been rendered unreasonably difficult by the client; or
(6) Other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall continue representa-
tion notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client’s interests, such as giving
reasonable notice to the client, allowing time for employment of other
counsel, surrendering papers and property to which the client is entitled
and refunding any advance payment of fee that has not been earned. The
lawyer may retain papers relating to the client to the extent permitted by
other law.’’ Rules of Professional Conduct (1978-97) 1.16.
8
In his brief to this court, the petitioner also cites to the United States
Supreme Court decisions in Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct.
1029, 145 L. Ed. 2d 985 (2000), and Garza v. Idaho, U.S. , 139 S. Ct.
738, 203 L. Ed. 2d 77 (2019), to argue that Stawicki’s failure to take reasonable
steps to preserve his right to appeal (1) falls below an objective standard
of reasonableness as measured by prevailing professional norms and (2)
entitles him to a ‘‘presumption of prejudice.’’ These decisions, however,
were released several years after the habeas court issued its memorandum
of decision denying the petitioner’s writ of habeas corpus in 1995. The
petitioner has not raised the claim, pursuant to the framework set forth in
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), and
adopted by our courts in Thiersaint v. Commissioner of Correction, 316
Conn. 89, 113, 111 A.3d 829 (2015) (‘‘[w]e therefore adopt the framework
established in Teague, with the caveat that, while federal decisions applying
Teague may be instructive, this court will not be bound by those decisions
in any particular case, but will conduct an independent analysis and applica-
tion of Teague’’), that the decisions in Flores-Ortega and Garza apply retroac-
tively to his petition for a writ of habeas corpus. Accordingly, we decline
to review such a claim. See Jobe v. Commissioner of Correction, 334 Conn.
636, 659 n.9, 224 A.3d 147 (2020).
9
Because we conclude that the court properly found that the petitioner
failed to demonstrate that Stawicki’s performance fell below an objectively
reasonable standard, we do not address the prejudice prong of the Strickland
test. See Anderson v. Commissioner of Correction, supra, 201 Conn. App.
13 (‘‘a reviewing court may look to the performance prong or to the prejudice
prong, and the petitioner’s failure to prove either is fatal to a habeas petition’’
(internal quotation marks omitted)).