Furbush v. Commissioner of Correction

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ROBERT H. FURBUSH v. COMMISSIONER
OF CORRECTION
(AC 36269)
DiPentima, C. J., and Lavine and Mullins, Js.
Argued May 18—officially released July 28, 2015
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Cheryl A. Juniewic, assigned counsel, for the appel-
lant (petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, was Matthew C. Gedansky,
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Robert H. Furbush,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his petition for a writ of habeas corpus. On
appeal, he claims that the court (1) abused its discretion
in denying his petition for certification to appeal and
(2) improperly denied his request to have subpoenas
issued to the ‘‘vast majority of witnesses’’ that he had
requested. We conclude that the court did not abuse
its discretion in denying his petition for certification to
appeal. Accordingly, we dismiss the appeal.
The following facts and procedural history are rele-
vant to this appeal. Following a court trial, the petitioner
was found guilty of manslaughter in the second degree
and two counts of operating a motor vehicle while under
the influence of intoxicating liquor or drugs. This court
affirmed the petitioner’s conviction on direct appeal.
See State v. Furbush, 131 Conn. App. 733, 27 A.3d
497 (2011).
On October 3, 2012, the self-represented petitioner
filed a second amended petition for a writ of habeas
corpus. He alleged, inter alia, ineffective assistance of
counsel by his criminal trial attorney and his appellate
attorney. A habeas trial was held on September 9, 2013.
At the conclusion of that trial, the court issued an oral
decision denying the petition for a writ of habeas cor-
pus. The habeas court determined that neither the peti-
tioner’s criminal trial attorney nor his appellate attorney
had performed deficiently. It further concluded that the
petitioner had failed to prove prejudice.1
On September 18, 2013, the petitioner filed a petition
for certification to appeal from the judgment denying
his petition for a writ of habeas corpus. Specifically,
he alleged that the court improperly had denied 87
percent of his requests to subpoena witnesses for the
habeas trial. On October 4, 2013, the court denied the
petition for certification to appeal. This appeal
followed.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, he must then prove that the decision of the habeas
court should be reversed on its merits. . . . To prove
an abuse of discretion, the petitioner must demonstrate
that the [resolution of the underlying claim involves
issues that] 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 encourage-
ment to proceed further.’’ (Internal quotation marks
omitted.) Saunders v. Commissioner of Correction, 157
Conn. App. 257, 261–62, A.3d (2015); Collazo
v. Commissioner of Correction, 154 Conn. App. 625,
629, 108 A.3d 1145, cert. denied, 317 Conn. 901,
A.3d (2015).
On appeal, the petitioner claims that the court
improperly denied him the opportunity to have subpoe-
nas issued for a number of witnesses. We note that
‘‘[t]he court is granted broad discretion in issuing sub-
poenas for witnesses on behalf of self-represented par-
ties. [See] Practice Book § 7-19 (‘[a] judge . . . may
direct or deny the issuance of subpoenas as such judge
deems warranted under the circumstances, keeping in
mind the nature of the scheduled hearing and future
opportunities for examination of witnesses, as may be
appropriate’).’’ Francis v. Commissioner of Correction,
151 Conn. App. 574, 579, 96 A.3d 597, cert. denied, 314
Conn. 922, 100 A.3d 854 (2014). The petitioner contends
that he presented the court with thirty subpoenas and
that the court directed the issuance of only four. During
the trial, the habeas court noted that the petitioner had
failed to include the specific reasons on his applications
for subpoenaing each witness.2 Under these facts and
circumstances, the habeas court did not abuse its broad
discretion in denying the requested subpoenas. More-
over, it was not an abuse of discretion to deny the
petition for certification to appeal on this issue.3
After a thorough review of the record and briefs, we
conclude that the petitioner has not demonstrated that
the issues he has raised in the petition for certification
to appeal are debatable among jurists of reason, that a
court could resolve those issues differently or that the
questions raised deserve encouragement to proceed fur-
ther. See Saunders v. Commissioner of Correction,
supra, 157 Conn. App. 261–62; Collazo v. Commissioner
of Correction, supra, 154 Conn. App. 629. Consequently,
we conclude that the petitioner has failed to demon-
strate that the court abused its discretion in denying
his petition for certification to appeal.
The appeal is dismissed.
1
‘‘In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), the United States Supreme Court enunciated the two require-
ments that must be met before a petitioner is entitled to reversal of a
conviction due to ineffective assistance of counsel. First, the [petitioner]
must show that counsel’s performance was deficient. . . . Second, the [peti-
tioner] must show that the deficient performance prejudiced the defense.
. . . Unless a [petitioner] makes both showings, it cannot be said that the
conviction . . . resulted from a breakdown in the adversarial process that
renders the result unreliable. . . . A reviewing court need not address both
components of the inquiry if the [petitioner] makes an insufficient showing
on one.’’ (Internal quotation marks omitted.) Miller v. Commissioner of
Correction, 153 Conn. App. 747, 751–52, 104 A.3d 767 (2014), cert. denied,
315 Conn. 912, 106 A.3d 304 (2015); see also Howard v. Commissioner of
Correction, 151 Conn. App. 706, 709, 95 A.3d 1221 (2014).
2
The following colloquy occurred between the petitioner and the
habeas court:
‘‘[The Petitioner]: Yes. Could I have one thing for the record?
‘‘The Court: Yes.
‘‘[The Petitioner]: I had thirty witnesses on my witness list. You only gave
me four. The issues we’re having here with not having some of my evidence
entered into documents is the fact that the witnesses who would have been
able to make their—you know, get the evidence right, are not here because
you denied me access to 87 percent of my witnesses.
‘‘The Court: Well, in the application for approval of the issuance of a
subpoena you have to put the reasons why.
‘‘[The Petitioner]: I did.
‘‘The Court: And unless you put that specific reason in there, the court
would have no way of knowing why you wanted to call a witness.
‘‘[The Petitioner]: I have those applications and on every application I
put down the reason why I needed them to testify, and now I’m sitting here
and my evidence is not being admitted because I don’t—because I can’t—
you know, I don’t have the right people here to bring it in, so I’m handcuffed
more than steel.
‘‘The Court: Well, let me see the application again. I guess they’re right
here; is that right?
‘‘The Clerk: Your Honor, in file two, numbers 132 through 146.
‘‘The Court: Well, I’ll just give you an example. You have Attorney Susan
Marks, provide sworn statement.
‘‘[The Petitioner]: Well, she would have—
‘‘The Court: Rob Britt was not forthcoming.
‘‘[The Petitioner]: Well, Britt, Britt and [Patricia] Froehlich would have
prevented him from sitting up there lying because we would have had the—
we would have had these documents up there on the record I could have
got him for, you know.
‘‘The Court: But it doesn’t say in here to authenticate police report, et
cetera. You just have judge in trial, or Judge Schuman, court reporter.’’
‘‘[The Petitioner]: But you still only gave me four witnesses out of thirty
and now I’m handcuffed with my evidence because I can’t—
‘‘The Court: Yes, but you didn’t specify that the reason you needed them
was to authenticate or to establish any particular piece of evidence. That’s
why. You just can’t say, I want somebody because they were [a] [freedom
of information] attorney.
‘‘[The Petitioner]: Well, again, I’m pro se . . . . Maybe we should have
had a hearing on those, on those issues, and we should have decided, because
right now, right now, my documents are worthless to prove a pattern that
this, the conduct and credibility of that trooper who was just sitting up
there lying again, you know, we could have proved that if I had the right
people here to testify.
‘‘The Court: Well, that may be the case, but we have who we—
‘‘[The Petitioner]: May be the case? That is the case.
‘‘The Court: We have who we have. You want to call attorney—
‘‘[The Petitioner]: We have who you want, not who I want.
‘‘The Court: No, who you requested with the reasons you have, and you
didn’t give sufficient reasons to have the people subpoenaed, and that is
true in any case—
‘‘[The Petitioner]: Well, on my subpoena for—
‘‘The Court: Where there’s a—
‘‘[The Petitioner]: On my subpoena for Attorney [Matthew C.] Gedansky
I put nothing, and you gave me him.
‘‘The Court: Well, from reading your complaint I saw what your issue was.
‘‘[The Petitioner]: Well, if you read my complaint against—
‘‘The Court: But as to these other people, I had no idea.
‘‘[The Petitioner]: If you read my complaint against [Michael] Mathieu,
you would understand why it was important to have—
‘‘The Court: Well, I can’t anticipate—
‘‘[The Petitioner]: —the state police who investigated him, the state’s
attorney who prosecuted him, his attorney. They’re all lying.
‘‘The Court: Well, I don’t know that any of that is specified or is apparent—
‘‘[The Petitioner]: Well, you won’t know any of that is true because you
didn’t allow it.
‘‘The Court: Ok. But you didn’t indicate who you needed to authenticate
a document. That doesn’t mean they would have been allowed to testify
anyway. You’re talking about the witness’ attorney coming in . . . . But
you didn’t put it in your subpoena, and I don’t know that I would have
granted it anyway, and all pro ses who ask for subpoenas have to go through
that process. It isn’t just you.’’
3
We also note that the petitioner’s brief addressed in detail only two of
the requested subpoenas. With respect to the remaining twenty-eight, he
failed to provide the required analysis as to why the court abused its discre-
tion in denying certification to appeal. See, e.g., Jackson v. Commissioner
of Correction, 149 Conn. App. 681, 689, 89 A.3d 426, cert. granted on other
grounds, 313 Conn. 901, 96 A.3d 558 (2014).
With respect to the two subpoena requests discussed in the petitioner’s
brief, one for Robert Britt and one for Patricia Froehlich, the petitioner
argued that ‘‘these witnesses would have provided information and testi-
mony that would have gone to the credibility of the state’s accident recon-
structionist, Michael Mathieu, and in turn, how trial counsel failed to
effectively cross-examine Mathieu at trial, thus allowing [the] petitioner to
prove his claim that trial counsel provided him with deficient represen-
tation.’’
We agree with the respondent, the Commissioner of Correction, that the
petitioner cannot sustain his burden of demonstrating that the court abused
its discretion in denying certification to appeal because the state had pro-
duced another accident reconstructionist, state police Trooper James Foley.
Foley, whose credibility would not have been challenged by Britt or Froeh-
lich, reached the same conclusion as Mathieu, which was that the petitioner
was at fault for the fatal automobile accident underlying his criminal convic-
tion. In other words, even had the court granted the petitioner’s request to
subpoena Britt and Froehlich, he would not have been able to establish the
prejudice necessary to prevail on his ineffective assistance of counsel claim
due to Foley’s independent testimony.