Turner v. Commissioner of Correction ( 2020 )

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COREY TURNER v. COMMISSIONER
OF CORRECTION
(AC 42437)
Lavine, Moll and Suarez, Js.
Syllabus
The petitioner, who previously had been convicted of the crimes of murder
and assault in the first degree in connection with the shooting death of
the victim, sought a writ of habeas corpus, claiming, inter alia, that the
respondent Commissioner of Correction violated his due process rights
by eliciting perjured testimony from his criminal trial counsel at his first
habeas trial. The habeas court rendered judgment dismissing in part
and denying in part the habeas petition. Thereafter, the habeas court
denied his petition for certification to appeal, and the petitioner appealed
to this court. Subsequently, the petitioner filed a motion to open the
judgment and to disqualify the judicial authority, which the court denied
and the petitioner amended his appeal. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal; the habeas court reasonably determined that
the petitioner’s claims were frivolous and not debatable among jurists
of reason.
2. The habeas court properly dismissed as nonjusticiable that count of the
petition that alleged that the petitioner’s due process rights had been
violated due to newly discovered evidence that the respondent’s counsel
elicited perjured testimony from his criminal trial counsel at his first
habeas trial: the court lacked authority to open the judgment rendered
in the first habeas action and, therefore, the court could provide no
practical relief to the petitioner on his claim, rendering the case moot;
moreover, the petitioner’s allegations regarding his criminal trial coun-
sel’s testimony at the first habeas trial did not constitute a constitutional
violation of the petitioner’s liberty and, therefore, the court did not have
subject matter jurisdiction.
3. The habeas court did not improperly deny those counts of the petitioner’s
petition alleging suppression of and failure to preserve evidence of K-
9 tracking of the alleged perpetrator during the police investigation of
the murder: the court concluded that evidence of K-9 tracking had not
been proven to exist, and the petitioner failed to demonstrate that there
was evidence of the K-9 track that the state suppressed or the police
failed to preserve; moreover, the court’s decision was predicated in part
on its determination that the testimony of a patrol sergeant, that if he
had performed a K-9 track, he would have written a report, and that he
could not recall using a K-9, was credible, and it is not the role of
appellate courts to second-guess credibility determinations.
4. This court declined to review the petitioner’s claim that the habeas court
abused its discretion in denying his postjudgment motion to open the
judgment and disqualify the judicial authority because the record was
inadequate; the petitioner failed to follow the procedures required for
disqualification, as the petitioner’s affidavit and good faith certificate
failed to comport with legal standards, the motion was not timely filed,
there was no opportunity for a hearing to be held on the motion to
disqualify to create a factual record for review and the petitioner failed to
demonstrate good cause for failing to comply with the rules of practice.
Argued September 14—officially released November 3, 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, Westbrook, J.; judgment
dismissing the petition in part and denying the petition
in part; thereafter, the court denied the petition for
certification to appeal, and the plaintiff appealed to this
court; subsequently, the court, Westbrook, J., denied
the petitioner’s motion to open the judgment and to
disqualify the judicial authority, and the petitioner filed
an amended appeal. Appeal dismissed.
Corey Turner, self-represented, the appellant (peti-
tioner).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, former
state’s attorney, and JoAnne Sulik, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
LAVINE, J. The self-represented petitioner, Corey
Turner, appeals from the judgment of the habeas court,
Westbrook, J., denying his petition for certification to
appeal from the court’s judgment dismissing in part and
denying in part his second amended fifth petition for
a writ of habeas corpus. On appeal, the petitioner claims
that the habeas court abused its discretion by (1) deny-
ing his petition for certification to appeal, (2) dismissing
his claim that he was deprived of a fair trial during
his first habeas trial, (3) denying his claims that the
prosecuting authority violated his state and federal con-
stitutional rights by failing (a) to disclose exculpatory
evidence and (b) to preserve the exculpatory evidence,
and (4) denying his motion to open the judgment and
disqualify the judicial authority. We dismiss the appeal.
The following procedural summary provides context
for the petitioner’s present appeal. In 1997, the jury
found the petitioner guilty of murder in violation of
General Statutes § 53a-54a and assault in the first degree
in violation of General Statutes § 53a-59 for fatally
shooting Richard Woods in Hartford in 1995. See State
v. Turner, 252 Conn. 714, 716–17, 751 A.2d 372 (2000).1
The trial court, Koletsky, J., sentenced the petitioner
to a total effective term of sixty years of incarceration.
Turner v. Commissioner of Correction, 86 Conn. App.
341, 342, 861 A.2d 522 (2004), cert. denied, 272 Conn.
914, 866 A.2d 1286 (2005). Our Supreme Court upheld
the petitioner’s conviction on direct appeal. State v.
Turner, supra, 750. The petitioner subsequently filed a
succession of state and federal petitions for a writ of
habeas corpus, as well as, a writ of error coram nobis,
motions to open and set aside judgments, and a statu-
tory petition for a new trial.2 None of the petitioner’s
myriad efforts for postconviction relief has been suc-
cessful.
The issues in the present appeal are related to the
denials of the petitioner’s first petition for a writ of
habeas corpus and his motion to open the first habeas
court judgment. The relevant procedural history was
summarized comprehensively by this court in Turner
v. Commissioner of Correction, 163 Conn. App. 556,
134 A.3d 1253, cert. denied, 323 Conn. 909, 149 A.3d
1253 (2016), in which the petitioner appealed from the
judgment of the habeas court, Cobb, J., claiming in
part that Judge Cobb improperly determined that the
petitioner’s motion to open and set aside the judgment
rendered by the first habeas court, White, J., was time
barred. Id., 558.
‘‘The petitioner’s first petition for writ of habeas cor-
pus . . . was adjudicated in 2002. In that case, [Judge
White] denied the petitioner’s writ of habeas corpus
alleging claims of ineffective assistance of counsel both
in his underlying criminal trial and on his direct appeal.
This court dismissed the petitioner’s appeal. Turner v.
Commissioner of Correction, 86 Conn. App. 341, 861
A.2d 522 (2004), cert. denied, 272 Conn. 914, 866 A.2d
1286 (2005).
‘‘During [the first] habeas trial, the petitioner alleged
that his criminal trial counsel had been ineffective for
failing to convince the criminal trial court to admit
evidence that supported his defense of alibi. The peti-
tioner had testified, during his criminal trial, that he
was with [Fonda Williams, the mother of his child] at
the time of the murder. He called [Williams] to testify
and she repeated the same story. During cross-examina-
tion of the petitioner, the state questioned him about a
recorded prison [telephone] call between the petitioner
and [Williams], suggesting that he had fabricated the
story. In an attempt to refute the state’s rebuttal evi-
dence, the petitioner’s criminal trial counsel [Leon
Kaatz] attempted to admit into evidence the recording
of the [telephone] call between the petitioner and [Wil-
liams], but the trial court sustained the state’s
objection.3
‘‘In his first habeas trial, the petitioner called [Kaatz]
as a witness in an effort to elicit testimony that would
show that he had been ineffective by failing to have the
recorded [telephone] call admitted as evidence in the
criminal trial. On cross-examination, [Kaatz] testified
that the petitioner presented him with two witnesses
who would testify to an alibi, in addition to and separate
from [Williams]. [Kaatz] testified that initially during the
trial, he interviewed one of the two additional witnesses
and found that she was not credible and thus did not
present their testimony in the petitioner’s defense. The
petitioner, representing himself at the habeas trial,
attempted to impeach [Kaatz] through use of a prior
inconsistent statement concerning the additional wit-
nesses. The petitioner sought to admit as evidence
[Kaatz’] written response to a 1997 grievance that was
filed against him by the petitioner. The petitioner
claimed that the written response proved that the peti-
tioner provided [Kaatz] with only [Williams] in regard
to his alibi, contradicting [Kaatz’] habeas testimony.4
However, [Judge White] sustained the objection of the
respondent . . . to the introduction of this extrinsic
evidence because the habeas court concluded that the
statement would be cumulative and involved a collat-
eral matter. The next day, the petitioner moved for a
mistrial because he claimed that [Kaatz] had perjured
himself and the court denied him the opportunity to
present evidence that would have supported that claim.
The court denied the motion. Ultimately, [Judge White]
denied the petitioner’s writ of habeas corpus. The peti-
tioner appealed from [Judge White’s judgment], but he
did not argue that the court had erred by sustaining
the [respondent’s] objection to his admission of the
grievance response into evidence. This court dismissed
the appeal. Turner v. Commissioner of Correction,
supra, 86 Conn. App. 343 . . . .
‘‘On July 27, 2011, the petitioner filed a motion to
open and set aside the . . . judgment [rendered by
Judge White] on his first petition for writ of habeas
corpus. The petitioner claimed that the judgment
resulted from a fraud committed upon the court through
the collusion of [Kaatz] and the respondent’s counsel
[Angela Macchiarulo] in the first habeas action. Specifi-
cally, the petitioner claimed that [Kaatz] had perjured
himself in testimony before [Judge White] and that
[Macchiarulo] had intentionally elicited this testimony
even though she knew that it was false. During [Judge
Cobb’s] hearing on the motion, the petitioner argued
that [Kaatz’] statement regarding multiple alibis had
undermined his petition for writ of habeas corpus
because it supported the respondent’s contention that
[Williams’] testimony as to the petitioner’s alibi had
been fabricated. [Judge Cobb] denied the petitioner’s
motion to open and set aside the judgment based on
his failure to satisfy any of the factors set out in Varley
v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980), to prove
that the judgment was based on fraud.5 [Judge Cobb]
also denied the petitioner certification to appeal.’’
(Footnotes added and omitted.) Turner v. Commis-
sioner of Correction, supra, 163 Conn. App. 558–62.
After Judge Cobb denied the motion to open and set
aside the judgment in a memorandum of decision dated
December 19, 2012, the petitioner filed two motions for
reconsideration, which were denied. Id., 562 n.6. In
June, 2013, the petitioner sought to appeal from the
denial of his motion to open and set aside the judgment,
but this court dismissed the appeal because the peti-
tioner had failed to seek certification to appeal from
the habeas court judgment. Id. The petitioner filed a
petition for certification to appeal, which was denied
in November, 2013. Id. In March, 2014, the petitioner
appealed from the habeas court’s denial of his petition
for certification. Id.
In deciding the petitioner’s appeal from the judgment,
this court considered the controlling law. ‘‘Habeas cor-
pus is a civil proceeding. . . . The principles that gov-
ern motions to open or set aside a civil judgment are
well established. A motion to open and vacate a judg-
ment . . . is addressed to the [habeas] court’s discre-
tion, and the action of the [habeas] court will not be
disturbed on appeal unless it acted unreasonably and
in clear abuse of its discretion.’’ (Internal quotation
marks omitted.) Id., 563.
‘‘A motion to open and set aside judgment is governed
by General Statutes § 52-212a and Practice Book § 17-4.
. . . Section 52-212a provides in relevant part: ‘Unless
otherwise provided by law and except in such cases
in which the court has continuing jurisdiction, a civil
judgment or decree rendered in the Superior Court may
not be opened or set aside unless a motion to open or
set aside is filed within four months following the date
on which it was rendered or passed. . . .’ ’’ (Citation
omitted.) Id., 563–64.
‘‘For claims of fraud brought in a civil action, our
Supreme Court has established the criteria necessary
for a party to overcome the statutory time limitation
governing a motion to open and set aside judgment.
Varley v. Varley, supra, 180 Conn. 4 . . . . To have a
judgment set aside on the basis of fraud which occurred
during the course of the trial upon a subject on which
both parties presented evidence is especially difficult.
. . . The question presented by a charge of fraud is
whether a judgment that is fair on its face should be
examined in its underpinnings concerning the very mat-
ters it purports to resolve. Such relief will only be
granted if the unsuccessful party is not barred by any
of the following restrictions: (1) There must have been
no laches or unreasonable delay by the injured party
after the fraud was discovered. (2) There must have
been diligence in the original action, that is, diligence
in trying to discover and expose the fraud. (3) There
must be clear proof of the perjury or fraud. (4) There
must be a substantial likelihood that the result of the
new trial will be different.’’ (Internal quotation marks
omitted.) Turner v. Commissioner of Correction,
supra, 163 Conn. App. 564.
This court concluded that Judge Cobb ‘‘properly
denied the petitioner’s motion to open and set aside
the judgment [rendered in the first habeas trial] because
it was raised after an unreasonable delay. [Judge White]
denied the petitioner’s first petition for a writ of habeas
corpus on January 4, 2002. More than eight years later,
the petitioner filed the present motion with [Judge
Cobb]. During that span of time, the petitioner did not
develop any new facts or claims to support his assertion
of fraud. The petitioner instead seeks to set aside [Judge
White’s] judgment with facts that were known to him,
as well as to the habeas court, at the time of his first
petition for a writ of habeas corpus. The petitioner has
not offered this court any argument that justifies his
lengthy delay in bringing this motion in a habeas action.
The determination that the petitioner delayed an unrea-
sonable period of time in pursuit of his claim of fraud
is not debatable among jurists of reason.’’ Id., 564–65.
This court dismissed the appeal from the denial of the
motion to open and set aside the judgment in the first
habeas case. Id., 565.
On September 10, 2014, the petitioner filed a fifth
petition for a writ of habeas corpus, which is the subject
of the present appeal. He filed a second amended peti-
tion (amended petition) on May 31, 2017, in which he
alleged five counts: (1) the respondent violated his
rights to due process at the first habeas trial by eliciting
perjured testimony from Kaatz; (2) Kaatz rendered inef-
fective assistance at the criminal trial by failing to reha-
bilitate the credibility of the petitioner and Williams
after their credibility had been impeached by the state
with false claims of a recently fabricated alibi defense;
(3) Kaatz rendered ineffective assistance by failing to
investigate deficiencies in the police investigation; (4)
the state suppressed exculpatory evidence of K-9
tracking during the police search; and (5) the police
department failed to preserve exculpatory evidence of
K-9 tracking during the police search. Prior to trial, the
petitioner withdrew his second and third counts. In her
September 17, 2018 memorandum of decision, Judge
Westbrook concluded that the petitioner’s claim that
Kaatz testified falsely at the first habeas trial was not
justiciable and dismissed it. She also concluded that the
evidence that the petitioner claims the state suppressed
and that the police department did not preserve never
existed and, therefore, she denied the petitioner’s sec-
ond and third counts.6 The habeas court also denied
the petitioner’s petition for certification to appeal. The
petitioner appealed on December 31, 2018.
On January 7, 2019, the petitioner filed a motion with
the habeas court to open the judgment and to disqualify
the judicial authority (motion to open and disqualify).
Judge Westbrook denied the motion to open and dis-
qualify on January 15, 2019. On February 15, 2019, the
petitioner filed an amended appeal to challenge the
habeas court’s denial of his motion to open and disqual-
ify filed postjudgment. Additional facts will be set forth
as necessary.
I
The petitioner first claims that the habeas court
abused its discretion by denying his petition for certifi-
cation to appeal. We conclude that the habeas court
did not abuse its discretion.
Pursuant to General Statutes § 52-470 (g), a petitioner
may appeal from the decision of the habeas court if
‘‘the judge before whom the case was tried . . . [certi-
fies] that a question is involved in the decision which
ought to be reviewed by the court having jurisdiction
. . . .’’ Section 52-470 (g) was enacted to discourage
frivolous habeas corpus appeals by conditioning the
petitioner’s right to appeal upon obtaining certification
from the habeas court. See Simms v. Warden, 230 Conn.
608, 616, 646 A.2d 126 (1994). A petitioner who was
denied certification to appeal but nonetheless appeals
must first demonstrate that the denial of certification
constituted an abuse of the habeas court’s discretion.
See id.
A petitioner can establish that the habeas court
abused its discretion by denying certification to appeal
if the petitioner can demonstrate that either ‘‘[1] the
issues are debatable among jurists of reason; [2] that
a court could resolve the issues [in a different manner];
or [3] that the questions are adequate to deserve encour-
agement to proceed further.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Lozada v. Deeds, 498 U.S.
430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); see
also Simms v. Warden, supra, 230 Conn. 616. Pursuant
to Simms, the reviewing court consequently must con-
sider the merits of the petitioner’s claims in order to
determine whether a certifiable issue exists under
Lozada. Simms v. Warden, supra, 616. ‘‘In determining
whether the habeas court abused its discretion in deny-
ing the petitioner’s request for certification, we neces-
sarily must consider the merits of the petitioner’s under-
lying claims to determine whether the habeas court
reasonably determined that the petitioner’s appeal was
frivolous.’’ Taylor v. Commissioner of Correction, 284
Conn. 433, 449, 936 A.2d 611 (2007). Pursuant to our
review of the petitioner’s claims as addressed herein,
we conclude that the habeas court reasonably deter-
mined that the petitioner’s claims are frivolous and
denied certification to appeal.
II
The petitioner claims that the court improperly dis-
missed count one of his amended petition as nonjusti-
ciable. We disagree that the habeas court improperly
determined that count one was nonjusticiable.
A claim regarding the court’s subject matter jurisdic-
tion raises a question of law. See Windels v. Environ-
mental Protection Commission, 284 Conn. 268, 279,
933 A.2d 256 (2007). The plenary standard of review
applies to questions of law. Id.
The following facts are relevant to this claim. In count
one of his amended petition, the petitioner alleged that
his due process rights were violated due to newly dis-
covered evidence related to the first habeas trial in
2002. The petitioner alleged that, Macchiarulo, counsel
for the respondent, elicited testimony from Kaatz that
she knew or should have known was perjured, false or
misleading and that there was a reasonable likelihood
that the false testimony could have affected the judg-
ment Judge White rendered.
In its return, the respondent pleaded that the claim
alleged in count one failed to state a cause of action
and was otherwise barred by the doctrine of res judicata
or collateral estoppel.7 The respondent argued that,
although the petitioner claimed that he was entitled to
a new habeas corpus trial on the basis of false testimony
allegedly given at the first habeas trial, he was not
challenging the lawfulness of his custody. Furthermore,
the respondent argued, the purpose of habeas corpus
is to challenge the legality of custody and because the
petitioner did not challenge the legality of his custody
in count one, the claim is not cognizable.
The habeas trial was held on July 26 and September
20, 2017. The habeas court issued a memorandum of
decision on September 17, 2018, after the parties sub-
mitted posttrial briefs. In its memorandum of decision,
the habeas court demonstrated its familiarity with the
factual history of the underlying crime as set forth in
State v. Turner, supra, 252 Conn. 717–18, and the proce-
dural history set forth in this court’s opinion in Turner
v. Commissioner of Correction, supra, 163 Conn. App.
559–61 (dismissing appeal from denial of motion to
open judgment in first habeas trial).8 The court agreed
with the respondent that there was no relief that it
could provide the petitioner and, therefore, that the
claim was not justiciable.
The habeas court cited the controlling law. ‘‘A peti-
tion for a writ of habeas corpus is a civil action . . . .’’
(Citation omitted.) Gonzalez v. Commissioner of Cor-
rection, 127 Conn. App. 454, 460, 14 A.3d 1053 (2011).
‘‘A court will not resolve a claimed controversy on the
merits unless it is satisfied that the controversy is justi-
ciable. . . . Justiciability requires (1) that there be an
actual controversy between or among the parties to the
dispute . . . (2) that the interests of the parties be
adverse . . . (3) that the matter in controversy be
capable of being adjudicated by judicial power . . .
and (4) that the determination of the controversy will
result in practical relief to the complainant.’’ (Citation
omitted; emphasis added; internal quotation marks
omitted.) Mejia v. Commissioner of Correction, 112
Conn. App. 137, 146, 962 A.2d 148, cert. denied, 291
Conn. 910, 969 A.2d 171 (2009).
A habeas court may not set aside or vacate the judg-
ment of a prior habeas court. General Statutes § 52-
212a provides in relevant part: ‘‘Unless otherwise pro-
vided by law and except in such cases in which the
court has continuing jurisdiction, a civil judgment or
decree rendered in the Superior Court may not be
opened or set aside unless a motion to open or set aside
is filed within four months following the date on which
it was rendered or passed. . . .’’
Our Supreme Court has stated that Connecticut’s
‘‘jurisprudence concerning the trial court’s authority
to overturn or to modify a ruling in a particular case
assumes, as a proposition so basic that it requires no
citation of authority, that any such action will be taken
only by the trial court with continuing jurisdiction over
the case, and that the only court with continuing juris-
diction is the court that originally rendered the ruling.’’
Valvo v. Freedom of Information Commission, 294
Conn. 534, 543–44, 985 A.2d 1052 (2010). ‘‘This assump-
tion is well justified in light of the public policies
favoring consistency and stability of judgments and the
orderly administration of justice.’’ Id., 545. It would
wreak havoc on the judicial system to permit a trial
court to second guess the judgment of another trial
court in a separate proceeding. Id. ‘‘This is especially
true when a direct challenge to the original ruling can
be made by any person at any time in the trial court
with continuing jurisdiction’’; id.; as in the present case.
The petitioner took a direct appeal from his criminal
conviction, which was denied; State v. Turner, supra,
252 Conn. 714; and from the denial of his first petition
for a writ of habeas corpus. Turner v. Commissioner
of Correction, supra, 86 Conn. App. 341.
In the present case, Judge Westbrook lacked author-
ity to open the judgment rendered in the first habeas
action. For that reason, she was not able to render
practical relief to the petitioner on count one. ‘‘[C]ourts
are established to resolve actual controversies [and]
before a claimed controversy is entitled to a resolution
on the merits it must be justiciable.’’ (Internal quotation
marks omitted.) Valvo v. Freedom of Information Com-
mission, supra, 294 Conn. 540. If the court is not capa-
ble of providing practical relief to the complainant, the
case is moot. Id., 541. Mootness is a question of justicia-
bility that implicates the court’s subject matter jurisdic-
tion. Id. If a court lacks subject matter jurisdiction over
an alleged claim, the claim must be dismissed. See, e.g.,
O’Reilly v. Valletta, 139 Conn. App. 208, 216, 55 A.3d 583
(2012), cert. denied, 308 Conn. 914, 61 A.3d 1101 (2013).9
The petitioner also claims that the habeas court
improperly dismissed count one for lack of subject mat-
ter jurisdiction because, as a court of equity, it was
‘‘permitted to fashion a remedy or provide practical
relief commensurate with the scope of the constitu-
tional violation alleged . . . .’’ The respondent con-
tends that the petitioner’s claim that Kaatz testified
falsely at the first habeas trial, not at his criminal trial,
does not implicate a constitutional right. We agree with
the respondent. ‘‘Subject matter jurisdiction for adjudi-
cating habeas petitions is conferred on the Superior
Court by General Statutes § 52-466, which gives it the
authority to hear those petitions that allege illegal con-
finement or deprivation of liberty.’’ (Internal quotation
marks omitted.) Anthony A. v. Commissioner of Cor-
rection, 159 Conn. App. 226, 234, 122 A.3d 730 (2015).10
’’Habeas corpus provides a special and extraordinary
legal remedy for illegal detention. . . . The deprivation
of legal rights is essential before the writ may be issued.
. . . Questions which do not concern the lawfulness
of the detention cannot properly be reviewed on habeas
corpus. . . . When a habeas petition is properly before
a court, the remedies it may award depend on the consti-
tutional rights being vindicated.’’ (Citations omitted;
internal quotation marks omitted.) Vincenzo v. Warden,
26 Conn. App. 132, 137–38, 599 A.2d 31 (1991). In the
present case, the petitioner’s allegations regarding
Kaatz’ testimony do not constitute a constitutional vio-
lation of the petitioner’s liberty and, therefore, the
habeas court had no subject matter jurisdiction. When
a court finds that it lacks jurisdiction, it must dismiss
the case. See Pet v. Dept. of Health Services, 207 Conn.
346, 351, 542 A.2d 672 (1988), overruled on other
grounds by Mangiafico v. Farmington, 331 Conn. 404,
425, 204 A.3d 1138 (2019).
In the present case, the habeas court lacked subject
matter jurisdiction because the petitioner’s claim is not
justiciable and, therefore, the habeas court properly
dismissed count one of the petition.
III
The defendant’s second claim is that the habeas court
abused its discretion by denying those counts alleging
violation of his constitutional rights under the fifth and
fourteenth amendments to the United States constitu-
tion and article first, §§ 8 and 9, of the constitution of
Connecticut in that (a) the state suppressed evidence
of a K-9 track used during the police investigation of
the crime scene in violation of Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),11 and
(b) the police failed to preserve evidence of the K-9
track in violation of Arizona v. Youngblood, 488 U.S.
51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988),12 and State
v. Morales, 232 Conn. 707, 657 A.2d 585 (1995). We
disagree.
The petitioner has predicated his claim on the follow-
ing testimony presented at his criminal trial. A Hartford
police officer, Mark Castagna, was dispatched to the
scene of the shooting and notified the patrol com-
mander, Sergeant Stephen O’Donnell, of the seriousness
of Woods’ injuries. The crime scene had been secured
when O’Donnell arrived. Castagna learned from Betty
Lewis, who lived at 141 Homestead Avenue, that the
perpetrator of the shooting came from the backyards
of 143-145 Homestead Avenue and fled there after the
shooting. According to Castagna, it would have been
normal to call in a K-9 to track of the perpetrator in an
investigation such as this, but he did not know whether
it was done in this case. The state’s lead investigator,
Keith Knight, responded to the crime scene after it had
been processed. According to Knight, a police sergeant
would have been in charge of the investigation. Knight
reviewed the police reports submitted to determine
whether follow-up was needed. He did not know
whether a K-9 unit was called to assist in the investiga-
tion, and he did not see one. According to Knight, it
would have been good police work to call in a K-9 unit
in a case such as this. In 2015, the petitioner retained
private investigators to investigate whether there was
evidence to challenge his conviction.
On the basis of the record and evidence presented
at the habeas trial, Judge Westbrook made the following
findings in her memorandum of decision. ‘‘At the peti-
tioner’s criminal trial [Castagna], Detective Jim Chrystal
and Detective Keith Knight were all questioned on
whether a K-9 unit was present at the crime scene during
the investigation on August 11 and August 12, 1995, and
none of the witnesses could recall seeing one there. At
the present habeas trial, the petitioner presented the
court with a supplemental police report involving the
crime scene filed by [O’Donnell, who is now retired].
The supplemental report does not reference any use
of a K-9. The petitioner also presented documentary
evidence indicating that [O’Donnell] attended a K-9
training program from February 2, 1992, to April 17,
1992.
‘‘[The petitioner’s] [p]rivate investigators, Thomas
LaPointe and Jacqueline Bainer, testified at the habeas
trial as to interviews they each had with [O’Donnell].
LaPointe’s report . . . indicates that [O’Donnell]
informed him that he had a vague recollection of per-
forming a K-9 track in the area the crime occurred, but
that he had performed tracking in that area on other
occasions so he could not be certain that his recollec-
tion was related to the petitioner’s case. Bainer’s report
. . . indicates that [O’Donnell] informed her that he
could not recall if he was handling a K-9 [unit] during
the investigation of the petitioner’s case, but he would
have reported it if the dog had hit upon a scent.
‘‘At the habeas trial [O’Donnell] testified that on the
night of the underlying incident, he responded to the
crime scene as a patrol sergeant. He also testified that
he believed he was a K-9 handler during that time, but
that there was a period of time where he stopped being
a K-9 handler so that he could accept a promotion to
sergeant. [O’Donnell] further testified that he does not
recall whether a track was performed that night, but
that he would have written a report if he had performed
one. The court finds [O’Donnell’s] testimony to be credi-
ble.’’13 (Emphasis added.) We now turn to the petition-
er’s claims regarding evidence of an alleged K-9 track
at the scene of the shooting.
A
In count two of the amended petition, the petitioner
alleged that the state suppressed evidence that would
have raised opportunities for the defense to attack the
thoroughness or good faith of the police investigation.
Specifically, the petitioner alleged that the state failed
to disclose the use of a K-9 to track the perpetrator of
the crime.
In its memorandum of decision, the habeas court
found that ‘‘there was no evidence presented that a K-
9 track actually occurred during the course of the police
investigation in the petitioner’s case. The police officers
who were present at the scene and testified at the under-
lying criminal trial could not recall the use of a K-9
during the investigation. . . . O’Donnell, a trained K-9
handler present at the crime scene, testified that he
could not recall the use of a K-9 during the investigation
of the petitioner’s case. There is no reference to the
use of a K-9 team in any of the police reports submitted.
As a result, a claim that the state suppressed such evi-
dence that has not been proven to exist cannot survive.’’
The court, therefore, denied count two of the
amended petition.
B
In count three of the amended petition, the petitioner
alleged that the Hartford Police Department violated
his constitutional right to due process because it failed,
in bad faith, to document or otherwise preserve material
scientific or technical evidence, i.e., dog tracking evi-
dence, which was subject to misinterpretation by the
jury.
With respect to this count, in which the petitioner
alleged a violation of Arizona v. Youngblood, supra,
488 U.S. 51, the habeas court noted that in State v.
Morales, supra, 232 Conn. 707, our Supreme Court
‘‘rejected the bad faith litmus test from Youngblood as
inadequate to determine whether the defendant had
been afforded due process under the state constitution,
and instead [the court] incorporated the Asherman14
balancing test as the appropriate framework for decid-
ing whether the failure of the police to preserve evi-
dence deprived the defendant of his state constitutional
rights to due process. . . . Accordingly, applying the
Asherman test, [the court] weigh[s] the reasons for the
unavailability of the evidence, the materiality of the
missing evidence, the likelihood of mistaken interpreta-
tion of it by witnesses or the jury and the prejudice
to the defendant.’’ (Citation omitted; footnote added.)
State v. Estrella, 277 Conn. 458, 483, 893 A.2d 348 (2006).
The habeas court found no proof that evidence of the
K-9 track the petitioner alleged that the police failed to
preserve actually existed. The court therefore denied
count three of the amended petition.
C
We thoroughly have reviewed the record and the
briefs of the parties, and conclude that the petitioner
has failed to demonstrate that the habeas court improp-
erly denied counts two and three of his amended peti-
tion regarding the alleged suppression and failure to
preserve K-9 evidence. The petitioner has failed to dem-
onstrate that there was evidence that the state sup-
pressed or that the police failed to preserve. Moreover,
the habeas court’s decision is predicated in part on its
credibility determination. It is not the role of appellate
courts to second-guess credibility determinations made
by the habeas court. See Fields v. Commissioner of
Correction, 179 Conn. App. 567, 577, 180 A.3d 638
(2018). The petitioner’s claims regarding suppressed or
unpreserved evidence of a K-9 track therefore fail.
IV
In his amended appeal, the petitioner claims that
the habeas court abused its discretion by denying his
postjudgment motion to open the judgment and disqual-
ify the judicial authority (motion to open and disqual-
ify). The respondent contends that the claim is not
reviewable because the record is inadequate due to the
petitioner’s failure to comply with Practice Book § 1-
23. We agree that the claim is not reviewable.
The record discloses the following procedural his-
tory. The habeas court issued its memorandum of deci-
sion on September 17, 2018, and the petitioner filed an
appeal therefrom on December 31, 2018. On January
7, 2019, almost four months after the judgment was
rendered, the petitioner filed the motion seeking to
open the September 17, 2018 judgment dismissing count
one and denying counts two and three of his amended
petition and the recusal of Judge Westbrook ‘‘for the
reasons set forth in the accompanying memorandum
of law . . . .’’ In the accompanying memorandum of
law, the petitioner stated that ‘‘the court’s ruling dis-
missing the claims raised in count one of his amended
petition evidences a deep-seated favoritism for the
respondent warden or antagonism towards the peti-
tioner that made a fair judgment on the merits of the
petitioner’s claims impossible.’’ He represented that the
record demonstrates that, during the habeas trial, Mac-
chiarulo uttered a false statement in violation of General
Statutes § 53a-15615 by testifying that Kaatz’ testimony
during the first habeas trial was not an indication of
perjury. The petitioner also represented that the habeas
court hindered prosecution in violation of General Stat-
utes § 53a-167 (a)16 by failing to hold Macchiarulo
accountable for having committed perjury before the
court or to otherwise report her conduct to authorities.
On January 15, 2019, the habeas court denied the
motion to open and disqualify.17 The petitioner
requested, pursuant to Practice Book § 64-1, that the
habeas court file a memorandum of decision regarding
its denial of the motion to open and disqualify. On
February 15, 2019, the petitioner filed an amended
appeal to challenge the habeas court’s denial of his
motion to open and disqualify.
On February 25, 2019, the habeas court issued an
order pursuant to the petitioner’s request.18 The court
stated: ‘‘The principles that govern motions to open or
set aside a civil judgment are well established. Within
four months of the date of the original judgment, Prac-
tice Book [§ 17-4] vests discretion in the trial court
to determine whether there is a good and compelling
reason for its modification or vacation. . . . Chapman
Lumber, Inc. v. Tager, 288 Conn. 69, 94, 952 A.2d 1
(2008). Practice Book § 1-22 (a) provides in relevant
part: A judicial authority shall, upon motion of either
party or upon its own motion, be disqualified from act-
ing in a matter if such judicial authority is disqualified
from acting therein pursuant to Rule 2.11 of the Code
of Judicial Conduct . . . . Rule 2.11 (a) of the Code
of Judicial Conduct states in pertinent part: A judge
shall disqualify himself or herself in any proceeding
in which the judge’s impartiality might be reasonably
questioned . . . . Practice Book § 1-23 provides: A
motion to disqualify a judicial authority shall be in writ-
ing and shall be accompanied by an affidavit setting
forth the facts relied upon to show the grounds for
disqualification and a certificate of the counsel of
record that the motion is made in good faith. The motion
shall be filed no less than ten days before the time the
case is called for trial or hearing, unless good cause is
shown for failure to file within such time.’’ (Internal
quotation marks omitted.)
The court found that the petitioner had alleged that
its denial of his petition for a writ of habeas corpus
‘‘evidences a deep-seated favoritism for the respondent
warden or antagonism toward the petitioner that made
a fair judgment on the merits of the petitioner’s claims
impossible.’’ The petitioner alleges that the court ‘‘ren-
dered criminal assistance’’ to Macchiarulo by declining
to hold her in contempt or to report her to the appro-
priate authorities for having committed perjury for
soliciting and offering false testimony from Kaatz in a
prior habeas proceeding. The court, however, found
that the petitioner had failed to demonstrate that per-
jury in violation of § 53-156, in fact, had occurred. See
footnote 15 of this opinion. The court found that the
petitioner had not shown that Kaatz intentionally made
a material false statement under oath or that Macchiar-
ulo knew or should have known that Kaatz intentionally
made a material false statement under oath.
The habeas court also found that the petitioner had
failed to demonstrate that the court’s failure to take
certain action ‘‘rendered criminal assistance’’ for pur-
poses of the offense of hindering prosecution pursuant
to General Statutes § 53a-165.19 The court found no indi-
cation that it had committed any of the specific acts
that constitute the offense of hindering prosecution as
defined by § 53a-165.
Significantly, the habeas court also found that the
petitioner had failed to file the motion to disqualify with
a proper affidavit or within ten days of the proceeding
as required by Practice Book § 1-23. The petitioner also
had not demonstrated good cause for failing to do so.
The court concluded, therefore, that the petitioner had
failed to demonstrate a good and compelling reason
for opening the judgment or questioning the court’s
impartiality for disqualification purposes and reaf-
firmed its denial of the motion to open and disqualify.
We decline to review the petitioner’s claim due to
an inadequate record because the petitioner failed to
follow the procedures required for disqualification.
Practice Book § 1-23 provides that ‘‘[a] motion to dis-
qualify the judicial authority shall be in writing and
shall be accompanied by an affidavit setting forth the
facts relied upon to show the grounds for disqualifica-
tion and a certificate of the counsel of record that the
motion is made in good faith. The motion shall be filed
no less than ten days before the time the case is called
for trial or hearing, unless good cause is shown for
failure to file within such time.’’ The respondent argues
that we should not review the petitioner’s claim because
he failed to file the motion to open and disqualify at
least ten days prior to the habeas trial and failed to file
an affidavit and good faith certificate, citing Olson v.
Olson, 71 Conn. App. 826, 830, 804 A.2d 851 (2002). The
failure to file an affidavit and good faith certificate,
however, is not always fatal to a motion to disqualify.
See State v. Milner, 325 Conn. 1, 6–10, 155 A.3d 730
(2017), and cases cited therein. The petitioner argues
that he, in fact, filed an affidavit with the motion to
open and disqualify.
Our review of the record disclosed that the petitioner
attached to the motion to open and disqualify a docu-
ment titled ‘‘Petitioner’s Affidavit Filed in Support of
his Motion for Recusal.’’ The document, which is signed
by the petitioner but not witnessed, states: ‘‘The under-
signed is over the age of 21, and has personal knowledge
of the facts stated herein. In particular, the facts stated
in the undersigned’s memorandum of law dated January
3, 2019 are hereby incorporated by reference and made
the facts of this affidavit. See Petitioner’s Memorandum
of Law dated January 3, 2019. Pursuant to Connecticut
Practice [Book] § 1-23 the undersigned hereby [certi-
fies] that this motion is made in good faith.’’ Milner
teaches that the import of an affidavit is to provide a
factual record. State v. Milner, supra, 325 Conn. 9–10.
Evidence of bias sufficient to support a claim of judicial
disqualification must be ‘‘based on more than opinion
or conclusion.’’ (Internal quotation marks omitted.)
State v. Bunker, 89 Conn. App. 605, 613, 874 A.2d 301
(2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521
(2006). ‘‘Our Supreme Court has indicated that, where
there is a factual dispute involved in a claim of judicial
bias, an evidentiary hearing may be in order, and it has
implied that the hearing be before another judge. See
Papa v. New Haven Federation of Teachers, 186 Conn.
725, 750–53, 444 A.2d 196 (1982).’’ Szypula v. Szypula,
2 Conn. App. 650, 653, 482 A.2d 85 (1984).
Although the petitioner’s affidavit does not comport
with legal standards nor does his purported good faith
certificate, we need not decide that the record is inade-
quate for review on that basis alone. The petitioner’s
appellate claim is not reviewable because his motion
to open and disqualify was not timely filed and there
was no opportunity for a hearing to be held on the
motion to disqualify to create a factual record for
review. Practice Book § 1-23 provides that the motion
be filed at least ten days before the judicial proceeding.
If the motion is not filed within that time, good cause
must be shown for failure to do so. In his appellate brief,
the petitioner responds to the respondent’s position
that the claim is not reviewable, stating that the motion
to open and disqualify is ‘‘based upon an issue that did
not materialize until after trial’’ and therefore he can
demonstrate good cause for failing to comply with the
rules of practice. He relies on State v. Rizzo, 303 Conn.
71, 122, 31 A.3d 1094 (2011) (‘‘[b]ecause the defendant
could not have been aware of this claimed basis for
disqualification at the time of the [relevant proceed-
ings], he cannot be faulted for his failure to raise it in
an objection’’). The petitioner’s argument is disingenu-
ous, to say the least. For almost two decades, the peti-
tioner has represented himself in habeas appeals in this
court trying to undo his criminal conviction.20
The petitioner’s argument also is unpersuasive. He
waited almost four months after the habeas court ren-
dered judgment on his petition to file the motion to
open and disqualify. The petitioner may not legitimately
claim judicial bias after he receives a judgment that is
not to his liking. See McGuire v. McGuire, 102 Conn.
App. 79, 83, 924 A.2d 886 (2007) (parties not permitted
to anticipate favorable decision, reserving right to
impeach it or set it aside if it happens to be against
them, for cause known to them before or during trial).
‘‘Although we allow [self-represented parties] some
latitude, the right of self-representation provides no
attendant license not to comply with relevant rules of
procedural and substantive law. . . . Self-represented
parties are not afforded a lesser standard of compliance
and although we are solicitous of the rights of [self-
represented parties] . . . [s]uch a litigant is bound by
the same rules . . . and procedure as those qualified
to practice law.’’ (Internal quotation marks omitted.)
In re Enrico S., 136 Conn. App. 754, 757, 46 A.3d 173
(2012). It is the policy of Connecticut courts to be solici-
tous of self-represented parties and to construe the
rules of practice liberally ‘‘when it does not interfere
with the rights of other parties . . . .’’ (Emphasis omit-
ted; internal quotation marks omitted.) Rosato v.
Rosato, 53 Conn. App. 387, 390, 731 A.2d 323 (1999).
Our liberal policy toward self-represented parties is,
however, ‘‘severely curtailed in cases where it interferes
with the rights of other parties.’’ Id.
The petitioner in the present case is no ordinary self-
represented party in the Appellate Court, as footnote
2 of this opinion and the record in the present appeal
demonstrate. He files habeas petitions and appeals fre-
quently. He is well versed in the rules of practice as
demonstrated by his several petitions for a writ of
habeas corpus and appeals, many motions for articula-
tion, to reargue, to reopen and set aside and for permis-
sion to file late. The petitioner’s failure to comply with
the requirements of Practice Book § 1-23 has interfered
with the rights of the respondent who was not afforded
an opportunity to respond and to appear at a hearing
on the motion. Moreover, the petitioner’s claims against
the habeas court are of the most serious nature in that
they attack the court’s impartiality and integrity and
the fairness of our judicial system. Motions to disqualify
are to be filed no fewer than ten days before the judicial
proceeding in order for the factual allegations against
the court to be adjudicated by a different judge. The
path taken by the petitioner interfered with the respon-
dent’s rights and was an affront to the court itself.
We decline to review the claim because the record
is inadequate.
For the reasons stated herein, we conclude that the
habeas court did not abuse its discretion by denying
certification to appeal from the judgment dismissing in
part and denying in part the petitioner’s second
amended fifth petition for a writ of habeas corpus. The
issues are not debatable among jurists of reason. See
Lozada v. Deeds, supra, 498 U.S. 431–32.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The jury reasonably could have found the following facts. On the evening
of August 11, 1995, the petitioner and Woods had an argument in front of
a house at 141 Homestead Avenue in Hartford. State v. Turner, supra, 252
Conn. 717. At approximately 11 p.m., a group of people were standing in
front of the house when the petitioner and his brother, Charles Turner,
drove by the house in a tan Oldsmobile. Id., 717–18. Shortly thereafter,
Charles Turner, alone in the car, drove back and parked the car. Id., 718.
Charles Turner got out of the car and approached the group standing in
front of the house and began ‘‘dancing around.’’ Id., 718. Meanwhile, the
petitioner ‘‘wearing a mask and dark clothing, approached the group and
shot at Woods with a handgun. . . . Woods shouted ‘Boku shot me. Boku
did it.’ ‘Boku’ is [the petitioner’s] street name.’’ Id. Darius Powell and Ken-
drick Hampton recognized the petitioner as the assailant. Id. The petitioner
escaped by running behind 141 Homestead Avenue and through the yards
of other houses on the street. Id. ‘‘Charles Turner, who had jumped back
into the tan Oldsmobile when the shooting began, drove down Homestead
Avenue and picked up [the petitioner] four houses away.’’ Id.
2
See Turner v. Commissioner of Correction, supra, 86 Conn. App. 341
(appeal from denial of petition alleging ineffective assistance of trial and
appellate counsel); Turner v. Commissioner of Correction, 97 Conn. App.
15, 902 A.2d 716 (appeal from dismissal of petition alleging ineffective assis-
tance of trial counsel), cert. denied, 280 Conn. 922, 908 A.2d 546 (2006);
Turner v. Dzurenda, 596 F. Supp. 2d 525 (D. Conn. 2009) (petition alleging
state habeas court unreasonably applied Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 672 (1984)), aff’d, 381 Fed. Appx. 41 (2d
Cir.), cert. denied, 562 U.S. 1032, 131 S. Ct. 574, 178 L. Ed. 2d 419 (2010);
Turner v. Commissioner of Correction, 118 Conn. App. 565, 984 A.2d 793
(2009) (appeal from denial of petition alleging ineffective assistance of first
habeas appellate counsel), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010);
Turner v. Commissioner of Correction, 134 Conn. App. 906, 40 A.3d 345
(appeal from denial of writ of error coram nobis), cert. denied, 307 Conn.
904, 53 A.3d 219 (2012); Turner v. Commissioner of Correction, 139 Conn.
App. 906, 55 A.3d 626 (appeal from denial of motion to set aside judgment
of conviction), cert. denied, 308 Conn. 946, 67 A.3d 289 (2012); Turner v.
Warden, Superior Court, judicial district of Tolland, CV-XX-XXXXXXX-S (July
9, 2013); Turner v. Commissioner of Correction, 163 Conn. App. 556, 134
A.3d 1253 (appeal from denial of motion to open first habeas judgment),
cert. denied, 323 Conn. 909, 149 A.3d 1253 (2016); Turner v. State, 172 Conn.
App. 352, 1604 A.2d 398 (2017) (appeal from denial of petition for new trial).
In addition, the petitioner has filed an appeal from the denial of his sixth
petition for a writ of habeas corpus, which currently is pending in this
court. Turner v. Commissioner of Correction, Connecticut Appellate Court,
Docket No. AC 43401 (appeal filed September 16, 2019).
3
On direct appeal, the petitioner claimed that the trial court abused its
discretion by sustaining the state’s objection to the tape recording of the
petitioner’s conversation with Williams. State v. Turner, supra, 252 Conn.
724. Our Supreme Court concluded that the trial court did not abuse its
discretion, reasoning that the petitioner ‘‘did not point to anything in the
offered tape that would have been helpful to his case with regard to the
state’s rebuttal evidence. Rather, he argued that the offered tape would
substantiate his testimony on cross-examination concerning his conversa-
tion with Williams. Bolstering of defense evidence is not permitted on surre-
buttal.’’ Id.
4
In deciding the appeal, this court carefully reviewed the grievance
response and concluded that it did not reveal a clear discrepancy between
the response and Kaatz’ testimony at the criminal trial. ‘‘In the 1997 grievance,
[Kaatz] was writing in response to the petitioner’s specific claims that he
did not interview the witness who supported his alibi: ‘On Friday, July 25,
at the end of the first week of evidence in the trial, Petitioner did, for the
first time, reveal to me the identity of his alibi witness, her name was Fonda
Williams.’ The state argues that any discrepancy was explained by [Kaatz]
in his response to a second grievance filed by the petitioner. The statement
was made in a grievance response dated March 21, 2003; a document that
the petitioner included in his pretrial brief to the habeas court supporting
his motion to open and vacate the judgment. [Kaatz] stated: ‘My dialogue
with these women took place 7 years ago and my recollection of precisely
what was said may be sketchy. I do recall, however, that at no time did
either of these women tell me they were acting on their own. Further . . .
in future dialogues I had with [the petitioner] about these women, [the
petitioner] never stated or even suggested that the two women were acting on
their own without his knowledge.’ ’’ Turner v. Commissioner of Correction,
supra, 163 Conn. App. 560 n.3.
5
Judge Cobb stated: ‘‘The petitioner’s delay in filing the motion to open
is unreasonable, the prosecution of said motion has not been diligent, there
is no clear proof of perjury or fraud, and there is no reasonable probability
that the result of a new habeas trial will be different.’’ (Internal quotation
marks omitted.) Turner v. Commissioner of Correction, supra, 163 Conn.
App. 562 n.5.
6
In her memorandum of decision, Judge Westbrook renumbered the peti-
tioner’s counts and referenced them as count one, count two, and count
three. We have adopted the habeas court’s reference to the counts of the
amended fifth habeas petition.
7
Because we conclude that the habeas court properly concluded that the
allegations contained in count one were not justiciable, we decline to address
the respondent’s res judicata argument.
8
Judge Westbrook noted when dismissing the petitioner’s appeal from
the motion to open that ‘‘the petitioner did not develop any new facts or
claims to support his assertion of fraud. The petitioner instead seeks to set
aside the habeas court’s judgment with facts that were known to him, as
well as to [Judge White], at the time of his first petition for a writ of
habeas corpus.’’ Turner v. Commissioner of Correction, supra, 163 Conn.
App. 565–66.
9
The habeas court also pointed out that a habeas petitioner seeking relief
on a claim that a witness testified falsely at the habeas trial may file (1) a
motion to open and set aside the judgment pursuant to § 52-212a and Practice
Book § 17-4, or (2) a petition for a new trial pursuant to General Statutes
§ 52-270 and Practice Book § 17-4A. The respondent correctly notes that
the petitioner has availed himself of those options, albeit without success.
10
The petitioner also claims on appeal that the habeas court failed to
exercise its discretion to fashion a remedy for the relief sought. As we have
pointed out, the habeas court had no authority to affect the judgments
rendered in the petitioner’s criminal or first habeas trials. Moreover, the
basic premise of the petitioner’s claim that there is newly found evidence
is fundamentally flawed. During the first habeas trial, the petitioner moved
for a mistrial on the basis of Kaatz’ testimony.
11
‘‘[I]n Brady v. Maryand, [supra, 373 U.S. 87], the United States Supreme
Court held that the suppression by the prosecution of evidence favorable
to an accused . . . violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution. To establish a Brady violation, the defendant must show
that (1) the government suppressed evidence, (2) the suppressed evidence
was favorable to the defendant, and (3) it was material [either to guilt or
to punishment].’’ (Internal quotation marks omitted.) State v. Kelsey, 93
Conn. App. 408, 418, 889 A.2d 855, cert. denied, 277 Conn. 928, 895 A.2d
800 (2006).
12
‘‘The United States Supreme Court, employing a federal due process
clause analysis, explained that when confronted with a claim that the state
failed to preserve evidence that could have been subjected to tests, the
results of which might have exonerated the defendant; Arizona v. Young-
blood, [supra, 488 U.S. 57]; unless a criminal defendant can show bad faith
on the part of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law.’’ (Internal quotation
marks omitted.) State v. Barnes, 127 Conn. App. 24, 30–31, 15 A.3d 170
(2011), aff’d, 308 Conn. 38, 60 A.3d 256 (2013). But see State v. Morales,
supra, 232 Conn. 720–27 (applying balancing test under constitution of Con-
necticut).
13
On appeal, the respondent notes that a determination of a habeas claim
that required ‘‘the court to perform its legitimate and essential role of
weighing and evaluating the credibility of conflicting testimony does not,
by itself, render a court’s conclusion debatable among jurists of reason for
the purpose of appellate review.’’ (Internal quotation marks omitted.) Bellino
v. Commissioner of Correction, 75 Conn. App. 743, 748, 817 A.2d 704, cert.
denied, 264 Conn. 915, 826 A.2d 1159 (2003). The respondent argues that
because credibility determinations are not reviewable for error, they neces-
sarily are not debatable among reasonable jurists, subject to a different
resolution or deserving of further argument, citing Washington v. Commis-
sioner of Correction, 166 Conn. App. 331, 344–45, 141 A.3d 956, cert. denied,
323 Conn. 912, 149 A.3d 981 (2016). We agree with the respondent.
14
See State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert.
denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 3d 814 (1985).
15
General Statutes § 53a-156 (a) provides in relevant part: ‘‘A person is
guilty of perjury if, in any official proceeding, such person intentionally,
under oath or in an unsworn declaration . . . makes a false statement
swears, affirms or testifies falsely, to a material statement which such person
does not believe to be true.’’
16
General Statutes § 53a-167 (a) provides: ‘‘A person is guilty of hindering
prosecution in the third degree when such person renders criminal assis-
tance to another person who has committed a class C, D or E felony or an
unclassified felony for which the maximum penalty is imprisonment for ten
years or less but more than one year.’’
17
On February 28, 2019, the petitioner filed a motion for articulation of
the habeas court’s September 17, 2018 memorandum of decision denying
his petition for a writ of habeas corpus. The court denied the motion for
articulation on March 14, 2019. On April 1, 2019, the petitioner filed a motion
for review of the habeas court’s denial of his motion for articulation with
this court. This court granted the motion for review but denied the relief
requested on May 16, 2019.
On April 9, 2019, the petitioner filed a revised motion for summary reversal
of the habeas court’s judgment, which was directed to the postjudgment
motion to open and disqualify underlying the amended appeal. On May 16,
2019, this court denied the revised motion for summary reversal.
18
The habeas court first noted that the petitioner had filed numerous
posttrial pleadings during the pendency of the present appeal, including the
motion to open and disqualify. The court opined that given the procedural
posture of the case, the motion to open and disqualify should not be consid-
ered a final judgment for purposes of Practice Book § 64-1 (a), and that it
was illogical for the motion to open and disqualify to constitute a final
judgment for purposes of appeal when there is an appeal pending from the
judgment on the merits after trial. The court, nevertheless, set forth its
reasons for denying the motion to open and disqualify.
19
General Statutes § 53a-165 provides that ‘‘a person ‘renders criminal
assistance’ when, with intent to prevent, hinder or delay the discovery or
apprehension of, or the lodging of a criminal charge against, another person
whom such person knows or believes has committed a felony or is being
sought by law enforcement officials for the commission of a felony, or with
intent to assist another person in profiting or benefiting from the commission
of a felony, such person: (1) Harbors or conceals such person; or (2) warns
such other person of impending discovery or apprehension; or (3) provides
such other person with money, transportation, weapon, disguise or other
means of avoiding discovery or apprehension; or (4) prevents or obstructs,
by means of force, intimidation or deception, any person from performing
an act which might aid in the discovery or apprehension of such person or
in the lodging of a criminal charge against such person; or (5) suppresses,
by an act of concealment, alteration or destruction, any physical evidence
which might aid in the discovery or apprehension of such other person or
in the lodging of a criminal charge against such other person, or (6) aids
such other person to protect or expeditiously profit from an advantage
derived from such crime.’’
20
In the twenty-three years since the petitioner murdered Woods, he has
freely leveled serious, unsubstantiated accusations at a number of people.
We view this claim to be another such accusation.