Schuler v. Commissioner of Correction ( 2020 )

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SHELDON SCHULER v. COMMISSIONER
OF CORRECTION
(AC 41886)
Lavine, Alvord and Bright, Js.*
Syllabus
The petitioner, who previously had been convicted of sexual assault in the
second degree, sought a writ of habeas corpus, claiming that his trial
counsel rendered ineffective assistance when he requested a jury instruc-
tion, which the trial court accepted and modified before instructing the
jury, that contained a mandatory presumption that, if the jury believed
that the petitioner’s prior sexual misconduct had occurred, it was
required to find that that conduct supported a theory that the petitioner
had a propensity to commit similar criminal sexual misconduct. The
habeas court rendered judgment denying the habeas petition. Thereafter,
the petitioner filed a petition for certification to appeal using a Judicial
Branch form on which he marked a box that stated that his grounds
for appeal were written in a separate Judicial Branch form that pertained
to the application for the appointment of appellate counsel and the
waiver of fees, costs and expenses for the appeal to this court. The
petitioner failed to attach that application form to his petition for certifi-
cation to appeal. After the habeas court denied the petition for certifica-
tion to appeal because it did not state any grounds for appeal, the
petitioner filed an application for appointment of counsel form on which
he identified the proposed grounds for appeal. The habeas court there-
after granted the application for a waiver of fees, costs and expenses
and appointed appellate counsel, and the petitioner appealed to this
court. Held that the habeas court did not abuse its discretion in denying
the petition for certification to appeal: the habeas court was not apprised
of the issue or issues that the petitioner sought to raise on appeal, as
the petition for certification to appeal form did not state any grounds on
which he proposed to appeal, the petitioner did not attach the application
form to his petition for certification to appeal form, and, although the
petitioner claimed that the habeas court should have reasonably con-
cluded that he intended to appeal from the denial of his ineffective
assistance of counsel claim, the habeas court was left to speculate as
to what issue or issues he might have sought to raise on appeal, and
his concession that certain other potential claims fell outside the scope
of the habeas court’s denial of certification to appeal did not negate his
failure before the habeas court; furthermore, the petitioner’s ineffective
assistance of counsel claim was unavailing, as the trial court provided
the jury with limiting instructions concerning the evidence of his prior
sexual misconduct that were sufficient to counteract any ambiguity in
his counsel’s requested instruction, the petitioner was not prejudiced
by the court’s jury instruction, as the factual similarities between the
prior sexual misconduct and that with which he was charged made the
evidence of the prior misconduct so probative of his propensity to
commit similar misconduct that there was no reasonable probability
that the result of the trial would have been different, irrespective of
any ambiguity in the court’s instruction regarding the petitioner’s prior
sexual misconduct, and there was strong evidence to support the jury’s
finding that the victim did not consent to sexual intercourse with the peti-
tioner.
Argued July 1—officially released October 6, 2020
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, Hon. Edward J. Mullar-
key, judge trial referee; thereafter, the petitioner with-
drew the petition in part; judgment denying the petition;
subsequently, the court denied the petition for certifica-
tion to appeal, and the petitioner appealed to this court.
Appeal dismissed.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Patrick
J. Griffin, state’s attorney, Gary Nicholson, former
senior assistant state’s attorney, and Adrienne Russo,
assistant state’s attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Sheldon Schuler, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his petition for a writ of habeas corpus, in which he
challenged his conviction of sexual assault in the sec-
ond degree in violation of General Statutes § 53a-71 (a)
(3). On appeal, the petitioner claims that the court (1)
abused its discretion in denying his petition for certifica-
tion to appeal and (2) improperly denied his ineffective
assistance of counsel claim. We dismiss the appeal.
In its memorandum of decision, the habeas court
quoted this court’s decision in State v. Schuler, 157
Conn. App. 757, 118 A.3d 91, cert. denied, 318 Conn.
903, 122 A.3d 633 (2015), which summarized the facts
reasonably found by the jury in the petitioner’s underly-
ing criminal case. ‘‘On January 27, 2012, the victim was
celebrating her thirtieth birthday at her home with sev-
eral friends and family members. Among those in atten-
dance were the victim’s three older sisters, CM, LM and
SM, and the [petitioner]. The [petitioner] cohabitated
with SM at the time and is the father of three of her
children.
‘‘During the party, the victim drank three shots of
alcohol and one wine glass sized cup of vodka punch
and smoked marijuana. At around 12 a.m., the victim
started to take a sip of vodka punch when she felt a
spinning sensation in her head. One of her sisters, CM,
observed the victim stumble and noted that she
appeared to be intoxicated. Shortly afterwards, the vic-
tim decided to go upstairs and lie down. After going
upstairs, she felt cool air coming from a fan in her son’s
bedroom and decided to enter that room instead of her
own bedroom. She lay down on the floor, hoping that
the cool air would alleviate the spinning sensation in
her head. When SM entered the room and asked the
victim if everything was okay, the victim responded
that something was wrong. The victim then removed
her jewelry and shirt and fell asleep. SM noticed that
the victim appeared to be intoxicated.
‘‘At around 1:30 a.m., the party ended and SM and
KS, a friend of the victim, went upstairs to say goodbye.
SM placed the victim’s cell phone near her head and
told her that they had cleaned up and were going to
leave. At that point, only CM, SM, KS, and the [peti-
tioner] remained in the house. After locking the doors,
CM drove SM and the [petitioner] to their home. KS
left the victim’s house separately.
‘‘At approximately 1:40 a.m., SJ, the victim’s boy-
friend, arrived at the victim’s house. He had been invited
to the party but had been unable to attend. On his way
over to the victim’s house, he placed several calls to
the victim’s cell phone but received no response. Upon
arriving at the house, he noticed that the lights were
on, and he proceeded to knock on the door, ring the
doorbell, and shout into the mailbox slot. After receiv-
ing no response, SJ left the victim’s house and went
out with a friend. SJ testified that the victim was a very
heavy sleeper, especially after consuming alcohol.
‘‘Meanwhile, SM and the [petitioner] arrived back at
their home. Just before 2:46 a.m., the [petitioner] told
SM that he needed to go to the bank and to buy ciga-
rettes. The [petitioner] walked several blocks from his
house and then called a taxi using SM’s cell phone. The
taxi picked up the [petitioner] at 2:53 a.m. and dropped
him off at the victim’s house. The [petitioner] then
entered the victim’s house using keys given to him by
SM earlier in the night.
‘‘At approximately 3 a.m., the victim believed that
she was dreaming that someone was on top of her,
licking her breasts and vagina, and penetrating her
vagina. When the victim awoke, she found the [peti-
tioner] on top of her, subjecting her to sexual inter-
course. She quickly pushed the [petitioner] off of her,
screamed, and ran into her bedroom. Although it was
dark in her son’s room, she was able to identify the
[petitioner] because the lights in her bedroom were on,
casting light into her son’s room. The victim heard the
[petitioner] walk downstairs and then saw him, through
an upstairs window, exit the house through the back
door. The victim quickly located her car keys and cell
phone, and drove to SM’s home.
‘‘As she was driving to SM’s home, the victim con-
tacted SJ on his cell phone. The victim was crying and
more upset than SJ had ever witnessed her at any other
time during their four year relationship. The victim
would not explain to SJ what was wrong, but told him
that she was driving to SM’s home. When she arrived,
the victim told SM what had happened. SM responded
by stating her belief that the [petitioner] was at home,
but after searching the home, she determined that he
was not there.
‘‘About ten to fifteen minutes later, SJ arrived at SM’s
home. As he was standing outside, the [petitioner]
arrived. The [petitioner] approached SJ and said, ‘Do
you wanna fight?’ SJ was confused by the question, as
he had not yet been apprised of the evening’s events.
As a result, no confrontation occurred between him
and the [petitioner], and the [petitioner] entered the
home. When the [petitioner] entered, SM began to yell
at him and hit him repeatedly. Initially, the victim ran
away, but later she joined her sister in hitting the [peti-
tioner]. Eventually, SJ pulled the victim away from the
[petitioner], and together they left the premises in
SJ’s car.
‘‘SJ then drove the victim to Yale-New Haven Hospi-
tal, where she was examined by a nurse with specialized
training in treating victims of sexual assault. After
examining the victim, the nurse gathered evidence from
her using a sexual assault evidence collection kit, and
notified the police of the incident. During the examina-
tion, saliva was found on both of the victim’s breasts
and sperm was found in the victim’s vagina. Subsequent
testing of DNA extracted from the seized saliva and
sperm samples revealed that it matched the [petition-
er’s] DNA.
‘‘The [petitioner] was subsequently charged with one
count of sexual assault in the second degree in violation
of § 53a-71 (a) (3). On July 10, 2013, at the conclusion
of trial, a jury found the [petitioner] guilty as charged.
The court then sentenced the [petitioner] to ten years
imprisonment, execution suspended after seven years,
with fifteen years of probation.’’ (Footnotes omitted.)
Id., 759–62. Following his conviction, the petitioner
appealed to this court, claiming that the trial court
improperly (1) admitted evidence of his prior sexual
misconduct toward the victim and (2) instructed the
jury concerning such prior sexual misconduct evidence.
Id., 758–59. This court affirmed the trial court’s judg-
ment of conviction; id., 759; and our Supreme Court
denied the petitioner’s petition for certification to
appeal. State v. Schuler, 318 Conn. 903, 122 A.3d 633
(2015).
On February 27, 2015, the self-represented petitioner
filed a petition for a writ of habeas corpus. On July 18,
2017, following the appointment of counsel, the peti-
tioner filed an amended petition, in which he alleged
that Christopher Y. Duby, defense counsel at his crimi-
nal trial, rendered ineffective assistance.1 Following a
trial on the amended petition, the habeas court issued
a memorandum of decision on May 10, 2018, in which
it denied the petitioner’s claims. Thereafter, on May 16,
2018, the petitioner filed a petition for certification to
appeal on Judicial Branch form JD-CR-84A (petition for
certification form). The petition for certification form
contains a section wherein a petitioner must set forth
‘‘[t]he grounds for [his] request for certification’’ by
marking one of two boxes. By marking the first box, a
petitioner indicates that his grounds for certification
are ‘‘written in the Application for Waiver of Fees, Costs
and Expenses and Appointment of Counsel on Appeal
(Form JD-CR-73), which [he will be] submitting with
[his] petition.’’ By marking the second box, a petitioner
indicates that his grounds for certification are stated
on the petition for certification form, specifically in a
lined space to the right of the second box and adjacent
text stating, ‘‘(Specify grounds, attach additional
sheets if necessary).’’ (Emphasis in original.)
In the present case, the petitioner marked the first
box, signaling that his grounds for certification were
written in the application for waiver of fees, costs and
expenses and appointment of counsel on appeal form
(application form) that he would attach to his petition
for certification form. The petitioner, however, failed
to attach an application form to his petition for certifica-
tion form. Moreover, on his petition for certification
form, the petitioner neither marked the second box nor
wrote his grounds for certification in the lined space
to the right of the second box. Accordingly, no specific
grounds for appeal were raised before the habeas court.
On June 15, 2018, the court denied the petitioner’s
petition for certification, writing on its denial: ‘‘No
grounds stated; no fee waiver with grounds filed.’’ On
June 28, 2018, the petitioner filed his application form.
The application form was dated May 16, 2018. In the
space provided to write the ‘‘grounds on which [he] pro-
pose[d] to appeal,’’ the petitioner wrote: ‘‘1.) Whether or
not the court [erred] in not finding ineffective assistance
of counsel. 2.) Any other issue that may become appar-
ent after a review of the trial transcripts.’’ On June 28,
2018, the court granted the petitioner’s application for
a waiver of fees, costs, and expenses, and appointed
counsel. This appeal followed.
‘‘We begin by setting forth the applicable standard
of review and procedural hurdles that the petitioner
must surmount to obtain appellate review of the merits
of a habeas court’s denial of the habeas petition follow-
ing denial of certification to appeal. In Simms v. War-
den, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our
Supreme Court] concluded that . . . [General Stat-
utes] § 52-470 (b) prevents a reviewing court from hear-
ing the merits of a habeas appeal following the denial of
certification to appeal unless the petitioner establishes
that the denial of certification constituted an abuse of
discretion by the habeas court. In Simms v. Warden, 230
Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme
Court] incorporated the factors adopted by the United
States Supreme Court in Lozada v. Deeds, 498 U.S. 430,
431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as
the appropriate standard for determining whether the
habeas court abused its discretion in denying certifica-
tion to appeal. This standard requires the petitioner to
demonstrate that the issues are debatable among jurists
of reason; that a court could resolve the issues [in a
different manner]; or that the questions are adequate to
deserve encouragement to proceed further.’’ (Emphasis
omitted; internal quotation marks omitted.) Tutson v.
Commissioner of Correction, 144 Conn. App. 203, 214–
15, 72 A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d
145 (2013).
‘‘As our standard of review . . . makes clear, an
appeal following the denial of a petition for certification
to appeal from the judgment denying a petition for a
writ of habeas corpus is not the appellate equivalent
of a direct appeal from a criminal conviction. Our lim-
ited task as a reviewing court is to determine whether
the habeas court abused its discretion in concluding
that the petitioner’s appeal is frivolous. . . . Because
it is impossible to review an exercise of discretion that
did not occur, we are confined to reviewing only those
issues which were brought to the habeas court’s atten-
tion in the petition for certification to appeal.’’ (Citation
omitted.) Id., 216. In past decisions, ‘‘[t]his court has
determined that a petitioner cannot demonstrate that
a habeas court abused its discretion in denying a peti-
tion for certification to appeal on the basis of issues
that were not actually raised in the petition for certifica-
tion to appeal. . . . Under such circumstances, the
petition for certification to appeal could not have
apprised the habeas court that the petitioner was seek-
ing certification to appeal based on such issues. . . .
A review of such claims would amount to an ambuscade
of the [habeas] judge.’’ (Internal quotation marks omit-
ted.) Stenner v. Commissioner of Correction, 144 Conn.
App. 371, 374–75, 71 A.3d 693, cert. denied, 310 Conn.
918, 76 A.3d 633 (2013).
On appeal, the petitioner claims that the court abused
its discretion in denying his petition for certification to
appeal and improperly denied his ineffective assistance
of counsel claim. The record reflects that the petition
for certification to appeal filed by the petitioner on
May 16, 2018, failed to state any grounds on which he
proposed to appeal, let alone that he sought to challenge
on appeal the court’s denial of his ineffective assistance
of counsel claim. The petitioner neither wrote the
grounds on which he proposed to appeal in his petition
for certification form nor attached the application form,
which purportedly contained his grounds for appeal, to
his petition for certification form. As a result, the habeas
court was not apprised of the issue or issues that the
petitioner sought to raise on appeal when it ruled on
his petition for certification to appeal on June 15, 2018.
Therefore, there is no basis for us to conclude that the
court abused its discretion in denying the petitioner’s
petition for certification because it was not called on
to exercise any such discretion as to the issue the peti-
tioner raises for the first time on appeal. See Tutson
v. Commissioner of Correction, supra, 144 Conn. App.
216 (‘‘it is impossible to review an exercise of discretion
that did not occur’’); see also id., 217 (‘‘[t]his court has
determined that a petitioner cannot demonstrate that
the habeas court abused its discretion in denying a
petition for certification to appeal if the issue that the
petitioner later raises on appeal was never presented
to, or decided by, the habeas court’’ (internal quotation
marks omitted)).
The petitioner argues that, although his petition for
certification ‘‘omitted a list of grounds on which [he]
intended to appeal,’’ we, nevertheless, can review the
merits of his ineffective assistance of counsel claim on
appeal because that was the ‘‘sole claim’’ raised in his
petition for a writ of habeas corpus, and, thus, ‘‘the
habeas court should have reasonably concluded that
[he] intended to appeal the denial of that claim.’’ We
disagree that the habeas court ‘‘reasonably’’ could have
concluded that the petitioner sought to challenge on
appeal only the denial of his ineffective assistance of
counsel claim. Rather, in the absence of any stated
grounds on which the petitioner proposed to appeal,
the habeas court was left to speculate as to what issue
or issues the petitioner might have sought to raise on
appeal. For instance, in arguing that the habeas court
‘‘should have reasonably concluded that [he] intended
to appeal the denial of’’ his ineffective assistance of
counsel claim, the petitioner, in his appellate brief, ‘‘con-
cedes that other claims, such as evidentiary claims or
rulings on pretrial motions, fall outside the scope of
the habeas court’s denial of certification, and are not
subject to this court’s review.’’ The petitioner’s conces-
sion to this court on appeal does not alter the fact that,
without having been apprised of the grounds on which
the petitioner proposed to appeal, the habeas court
could only guess whether he intended to challenge on
appeal the court’s denial of the sole claim alleged in
his petition for a writ of habeas corpus or, instead,
rulings on ‘‘evidentiary claims or . . . pretrial
motions.’’ Moreover, the petitioner’s concession to this
court on appeal does not negate his failure before the
habeas court.2 Accordingly, we conclude that the
habeas court did not abuse its discretion in denying the
petition for certification to appeal on the ground that
it contained no specified grounds for appeal.3
We further determine that, even if we were to reach
the merits of the petitioner’s claim on appeal that the
habeas court improperly denied his ineffective assis-
tance of counsel claim, we would affirm the judgment
of the habeas court.
On appeal, the petitioner argues that, at his criminal
trial, Attorney Duby ‘‘filed a proposed jury instruction
that informed the jury that, if it concluded that the peti-
tioner had engaged in prior criminal sexual misconduct,
it was required to conclude that he had a propensity
to engage in such misconduct.’’ (Emphasis in original.)
The petitioner argues that Attorney Duby’s proposed
instruction, which the trial court accepted, ‘‘was unsup-
ported by the law, which permits the jury to draw that
conclusion, but does not require it,’’ and, therefore, that
his performance was deficient. The petitioner further
argues that, but for Attorney Duby’s deficient perfor-
mance, the outcome of his criminal trial would have
been different because the jury instruction (1) ‘‘drew
the jury’s attention to the fact that uncharged criminal
sexual misconduct lent itself to the inference that an
individual had a propensity to engage in that miscon-
duct,’’ and (2) ‘‘informed the jury that it was required
to draw that inference as a matter of law’’ despite the
fact that the ‘‘evidence supporting that inference was
weak’’ and ‘‘the state’s evidence against [him] on the
question of consent was not strong.’’ (Emphasis in
original.)
The following additional facts are relevant to this
claim. ‘‘On July 8, 2013, the first day of evidence at [the
petitioner’s criminal] trial, the [petitioner] filed a motion
in limine, seeking a ruling that would preclude evidence
related to a prior instance of sexual misconduct by the
[petitioner]. . . . The state presented an offer of proof
regarding the prior misconduct evidence, consisting
entirely of testimony from the victim. The victim testi-
fied that during the summer of 2011, approximately six
months prior to the charged sexual assault, she had
had another nonconsensual sexual encounter with the
[petitioner]. The victim stated that on that occasion,
she had attended a bar with SM, the [petitioner], and
several friends. While at the bar, she had consumed
alcohol. Later that night, the [petitioner] drove SM and
the victim back to the [petitioner’s] home. Because the
victim felt intoxicated, she decided to sleep in SM’s
daughter’s bedroom, which was unoccupied that eve-
ning. She then went upstairs, took off her pants, locked
the bedroom door, and went to sleep. At some point
in the evening, she awoke to find the [petitioner] at the
bottom of her bed with his head between her legs. The
victim remembered that the [petitioner] was spreading
her legs apart, attempting to perform oral sex upon her,
and repeatedly saying, ‘stop playing.’ Upon awakening,
she jumped out of bed and ran into a nearby bathroom.
‘‘Defense counsel was then given an opportunity to
cross-examine the victim and asked whether she and
the [petitioner] had been involved in a consensual sex-
ual relationship prior to the 2011 incident. The victim
responded that they had not. . . . [T]he [trial] court
ruled that the evidence was admissible.’’ (Citation omit-
ted.) State v. Schuler, supra, 157 Conn. App. 763–64.
‘‘On July 8, 2013, after ruling on the admissibility
of evidence related to the [petitioner’s] prior sexual
misconduct, the [trial] court stated that it would give
limiting instructions to the jury after the testimony was
presented and again in its final charge. . . .
‘‘Upon the conclusion of the state’s direct examina-
tion of the victim regarding the [petitioner’s] prior sex-
ual misconduct, the court gave the jury the following
limiting instruction . . . . ‘In a criminal case in which
the [petitioner] is charged with a crime exhibiting aber-
rant and compulsive criminal sexual behavior, evidence
of the [petitioner’s] commission of another offense is
admissible and may be considered for its bearing on
any matter to which it is relevant; however, evidence
of a prior offense on its own is not sufficient to prove
the [petitioner] guilty of the crime charged in the infor-
mation. Bear in mind as you consider this evidence that
at all times the state has the burden of proving that
the [petitioner] committed each of the elements of the
offense charged in the information. I remind you that
the [petitioner] is not on trial for any act, conduct, or
offense not charged in the information.’ . . .
‘‘In its final charge to the jury, the court provided,
inter alia, the following instruction: ‘Next, I want to
talk to you about other misconduct, uncharged sexual
misconduct. Now, in a criminal case, ladies and gentle-
men, in which the [petitioner] is charged with a crime
exhibiting . . . criminal sexual misconduct, evidence
of the [petitioner’s] commission of another uncharged
offense involving similar criminal sexual misconduct
may be considered . . . for its bearing on any matter
to which it is relevant, so long as you believe it, that
the other sexual conduct did, in fact, occur and was,
in fact, criminal misconduct. Consensual sexual contact
is not criminal sexual misconduct.
‘‘ ‘In this case, the state offered evidence of prior
sexual contact between [the victim] and the [petitioner]
in August, 2011. It is your job to determine, first,
whether that prior sexual contact did, in fact, occur,
and, second, if you believe it did occur, whether it was
criminal misconduct. If you believe the prior sexual
contact occurred and that it was criminal misconduct,
then you must also find that it rationally and logically
supports a theory that the [petitioner] had a propensity
to commit similar criminal sexual misconduct. If, on
the other hand, you find the prior sexual contact either
did not occur or was not criminal misconduct, then you
must also find that it does not tend to rationally or
logically support a theory that the [petitioner] had a
propensity to commit similar criminal sexual miscon-
duct, and you must not consider the prior sexual mis-
conduct evidence for any purpose as part of your delib-
erations but must ignore it altogether.
‘‘ ‘You must keep in mind that evidence of . . . crimi-
nal sexual misconduct on its own is not sufficient to
prove the [petitioner] is guilty of the crime charged in
the information. Even if you determine the prior crimi-
nal sexual misconduct occurred, you must bear in mind
that at all times the state still has the burden of proving
that the [petitioner] committed each and every one of
the elements of the offense charged in the information.
I remind you that the [petitioner] is not on trial for any
act, conduct, or offense not charged in the information,
including any alleged prior sexual misconduct.’ ’’ Id.,
770–73. The trial court’s instruction regarding evidence
of the petitioner’s prior sexual misconduct during its
final charge to the jury was adopted from a request to
charge by Attorney Duby. Id., 774. The court added to
Attorney Duby’s proposed charge only that the prior
sexual misconduct occurred in August, 2011. Id., 775.
In his direct appeal of his conviction, the petitioner
argued; id., 774; as he does in this appeal, that the
instruction requested by Attorney Duby contained a
mandatory presumption in the following language: ‘‘If
you believe the prior sexual contact occurred and that
it was criminal misconduct, then you must also find
that it rationally and logically supports a theory that the
[petitioner] had a propensity to commit similar criminal
sexual misconduct . . . .’’ (Emphasis in original; inter-
nal quotation marks omitted.) Id., 776. This court, when
reviewing the instruction for plain error,4 concluded
that the petitioner’s interpretation of the instruction
that it contained a mandatory presumption was ‘‘not
the only reasonable one.’’ Id., 776. This court ‘‘[t]hus
. . . conclude[d] that the statement was, at most,
ambiguous . . . .’’ Id., 777.
The following standard of review and legal principles
are applicable to this claim. ‘‘In a habeas appeal, this
court cannot disturb the underlying facts found by the
habeas court unless they are clearly erroneous, but our
review of whether the facts as found by the habeas court
constituted a violation of the petitioner’s constitutional
right to effective assistance of counsel is plenary. . . .
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
must show that counsel’s assistance was so defective
as to require reversal of [the] conviction . . . . That
requires the petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense. . . . Because both
prongs . . . must be established for a habeas peti-
tioner to prevail, a court may dismiss a petitioner’s
claim if he fails to meet either prong.’’ (Internal quota-
tion marks omitted.) Holloway v. Commissioner of Cor-
rection, 145 Conn. App. 353, 363–64, 77 A.3d 777 (2013).
‘‘With respect to the prejudice component of the Strick-
land test, the petitioner must demonstrate that coun-
sel’s errors were so serious as to deprive the [petitioner]
of a fair trial, a trial whose result is reliable. . . . It is
not enough for the [petitioner] to show that the errors
had some conceivable effect on the outcome of the
proceedings. . . . Rather, [t]he [petitioner] must show
that there is a reasonable probability that, but for coun-
sel’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.’’ (Internal quotation marks omitted.) Id., 365.
We need not address whether Attorney Duby per-
formed deficiently by requesting the jury instruction
on which the petitioner’s claim is based because we
conclude that the petitioner was not prejudiced by the
instruction.5 We reach this conclusion for three reasons.
First, the striking factual similarities between the
petitioner’s prior sexual misconduct from August, 2011
(prior misconduct), and his charged sexual misconduct
from January, 2012 (charged misconduct), made the
evidence of the prior misconduct so probative of the
petitioner’s propensity to commit similar misconduct
that there is no reasonable probability that the result
of the trial would have been different, irrespective of
any ambiguity in the court’s instruction regarding the
petitioner’s prior sexual misconduct. The victim was
the subject of both the petitioner’s prior and charged
misconduct, which incidents occurred within a six
month period. State v. Schuler, supra, 157 Conn. App.
763. On both occasions, the victim was asleep when
she awoke to the petitioner sexually violating her. Id.,
760, 763. Each time the victim was intoxicated prior to
going to sleep. Id., 759, 763. According to the victim’s
boyfriend, SJ, the victim was a ‘‘very heavy sleeper,
especially after consuming alcohol.’’ Id., 760. Each time,
when the victim awoke to the petitioner sexually vio-
lating her, she reacted by immediately stopping the
petitioner and quickly exiting the room. Id., 760, 763.
These factual similitudes would be difficult for a jury to
ignore when considering whether the prior misconduct
supported a finding that the petitioner had a propensity
to commit similar sexual misconduct.
Second, there was strong evidence to support the
jury’s finding that the victim did not consent to sexual
intercourse with the petitioner. At some time after 12
a.m., both of the victim’s sisters, CM and SM, observed
the victim to be intoxicated prior to her falling asleep.
Id., 759. Combined with SJ’s testimony that the victim
was a deep sleeper when she was intoxicated; id., 760;
the jury reasonably could infer that the victim remained
asleep until awoken by the petitioner’s having sexual
intercourse with her at about 3 a.m. and, accordingly,
could not have consented to that intercourse with
the petitioner.
Perhaps the strongest evidence to support the finding
that the victim did not consent to sexual intercourse
with the petitioner was the several actions she took
immediately upon being awakened to the petitioner’s
having sexual intercourse with her. The victim ‘‘quickly
pushed the [petitioner] off of her, screamed, and ran
into her bedroom.’’ Id., 760. After the petitioner left
her home, at approximately 3 a.m., the victim ‘‘quickly
located her car keys and cell phone, and drove to SM’s
home.’’ Id., 760–61. The victim called SJ while en route
to SM’s home; she was ‘‘crying and more upset than SJ
had ever witnessed her at any other time during their
four year relationship.’’ Id., 761. After arriving at SM’s
home, the victim told SM what the petitioner did to her.
Id. When the petitioner arrived at SM’s home some ten
to fifteen minutes after the victim, ‘‘SM began to yell
at him and hit him repeatedly. Initially the victim ran
away, but later she joined her sister in hitting the [peti-
tioner].’’ Id. Thereafter, the victim was driven by SJ to
the hospital, ‘‘where she was examined by a nurse with
specialized training in treating victims of sexual
assault.’’ Id. All of the actions taken by the victim after
awaking to discover the petitioner having sexual inter-
course with her were corroborated by other witnesses
and are consistent with someone who had not con-
sented to such intercourse.
By contrast, at his criminal trial, the petitioner failed
to present any evidence to corroborate his testimony
that, prior to his sexual contact with the victim in Janu-
ary, 2012, they had an arrangement in which he paid her
for sex and, in accordance with that prior arrangement,
they had consensual sexual intercourse in January,
2012. The evidence from several witnesses as to the
victim’s actions in the instant aftermath of awaking to
find the petitioner having sexual intercourse with her
and the dearth of evidence corroborating the petition-
er’s testimony concerning consent, reflect, contrary to
the petitioner’s argument, that the case against the peti-
tioner was very strong, further undermining a claim
that any ambiguity in the court’s charge affected the
outcome of the petitioner’s criminal trial.
Third, the trial court provided the jury with limiting
instructions concerning the evidence of the petitioner’s
prior sexual misconduct following the state’s direct
examination of the victim; id., 771; and in its final
charge. Id., 771–72. Specifically, the jury was instructed
that evidence of the petitioner’s prior sexual miscon-
duct ‘‘on its own [was] not sufficient to prove the [peti-
tioner] guilty of the crime charged in the information,’’
that ‘‘at all times the state [had] the burden of proving
that the [petitioner] committed each of the elements of
the offense charged in the information,’’ and that the
petitioner was ‘‘not on trial for any act, conduct, or
offense not charged in the information.’’ (Internal quota-
tion marks omitted.) Id., 771; see also id., 773; see gener-
ally Hickey v. Commissioner of Correction, 329 Conn.
605, 620, 188 A.3d 715 (2018) (‘‘[i]ndividual jury instruc-
tions should not be judged in artificial isolation . . .
but must be viewed in the context of the overall charge’’
(internal quotation marks omitted)). We conclude that
the trial court’s limiting instructions to the jury were
sufficient to counteract any ambiguity that existed in
the propensity instruction requested by Attorney Duby.
Accordingly, even if we were to excuse the petition-
er’s failure to state the grounds on which he proposed to
appeal in his petition for certification, we, nonetheless,
would conclude that he could not satisfy the second,
prejudice prong of Strickland v. Washington, supra,
466 U.S. 687. Thus, his ineffective assistance of counsel
claim would fail.
The appeal is dismissed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Specifically, the petitioner alleged that Attorney Duby rendered ineffec-
tive assistance by (1) conceding that evidence of the petitioner’s prior sexual
misconduct was admissible under State v. DeJesus, 288 Conn. 418, 953 A.2d
45 (2008), (2) failing to object to a limiting instruction provided by the trial
court to the jury following the state’s direct examination of the victim,
(3) submitting an improper request to charge regarding evidence of the
petitioner’s prior sexual misconduct, which the trial court adopted in its
instructions to the jury, and (4) referring to the petitioner’s character for
untruthfulness several times during his closing argument. The petitioner
further alleged that Attorney Duby’s errors, ‘‘both independently and cumula-
tively,’’ constituted ineffective assistance of counsel.
At trial on the amended petition, the petitioner withdrew his first two
claims.
2
The petitioner argues that, ‘‘[i]t is notable that, in virtually every case
in which this court declined to review a claim because it was omitted from
the petition for certification to appeal, the claim this court declined to review
was not the primary claim in the proceeding below.’’ We reject the invitation
to condone the petitioner’s failure to state in his petition for certification
the grounds on which he proposed to appeal because he had alleged one
claim, as opposed to multiple claims, in his petition for a writ of habeas
corpus. As the petitioner seemingly acknowledges with his concession on
appeal, even in petitions for a writ of habeas corpus in which a petitioner
alleges one claim, there may be subsidiary issues arising from the trial of
that claim from which he or she might want to appeal. Furthermore, as set
forth previously in footnote 1 of this opinion, the petitioner alleged that his
trial counsel committed four different errors, each of which constituted
ineffective assistance of counsel. Yet, he challenges only the court’s conclu-
sion as to one of those alleged errors. Consequently, even though the peti-
tioner asserted only one ‘‘claim,’’ he made multiple arguments to the court,
and his failure to identify the issue that he wanted to raise on appeal deprived
the court of the ability to exercise properly its discretion to consider the
specific issue that the petitioner has raised before us.
3
In his brief, the petitioner states that ‘‘the omission of grounds for appeal
in the petition for certification appears to have been an administrative
oversight on the part of habeas counsel, rather than the fault of the peti-
tioner.’’ We cannot determine the accuracy of the petitioner’s appellate
statement on the basis of the record before us. Nonetheless, we cannot
conclude that the habeas court abused its discretion in denying the petition-
er’s petition for certification because, regardless of who is at fault for this
alleged oversight, the petition for certification form did not state the grounds
for appeal or have attached to it the application form stating those grounds.
4
The instruction was reviewed for plain error because it was requested
by the petitioner’s defense counsel, Attorney Duby, and, thus, if improper,
would have constituted induced error that ‘‘may not form the basis of a
reversal.’’ State v. Schuler, supra, 157 Conn. App. 775; see also id. (plain
error doctrine is ‘‘a rule of reversibility’’ that ‘‘this court invokes in order
to rectify a trial court ruling that, although either not properly preserved
or never raised at all in the trial court, nonetheless requires reversal of the
trial court’s judgment, for reasons of policy’’ (internal quotation marks
omitted)).
5
Attorney Duby’s requested instruction did not pertain to an essential
element of the petitioner’s charged offense. Accordingly, we do not analyze
prejudice in this case under the standard employed in Holloway v. Commis-
sioner of Correction, supra, 145 Conn. App. 367 (‘‘Proof of such deficient
performance in failing to object or except to the omission of any such
essential element from the court’s charge . . . will almost invariably satisfy
the second, prejudice prong of Strickland . . . because in the absence of
any alternative way for the jury to learn the requirements of the law, the
giving of such an incomplete instruction will invariably lead the jury to
deliberate on the charged offense without determining if the state has proved
the omitted element beyond a reasonable doubt. The only exceptional situa-
tion in which a different finding as to prejudice may be justified, on the
theory of harmless error, is when the reviewing court, in examining the
entire record, is satisfied beyond a reasonable doubt that the omitted element
was uncontested and supported by overwhelming evidence, such that the
jury verdict would have been the same absent the error.’’ (Emphasis omitted;
internal quotation marks omitted.)).