Michael G. v. Commissioner of Correction

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MICHAEL G.* v. COMMISSIONER
OF CORRECTION
(AC 34796)
DiPentima, C. J., and Prescott and Bear, Js.
Argued September 8—officially released October 21, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Michael D. Day, assigned counsel, for the appel-
lant (petitioner).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were David S. Shepack, state’s
attorney, and Angela R. Macchiarulo, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Michael G., appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. We
conclude that the habeas court did not abuse its discre-
tion in denying certification to appeal. Accordingly, we
dismiss the appeal.
The petitioner was convicted of multiple counts of
sexual assault in the first degree and risk of injury
to a child involving his daughter. The complete facts
pertaining to the petitioner’s crimes are set forth in
State v. Michael G., 107 Conn. App. 562, 945 A.2d 1062(affirming judgment of conviction), cert. denied, 287
Conn. 924, 951 A.2d 574 (2008). Following his direct
appeal, the petitioner filed his amended petition seeking
a writ of habeas corpus on March 16, 2012, claiming
that his trial counsel had provided ineffective assistance
during the criminal trial by deciding not to call the
petitioner’s mother as a witness for the defense. Upon
the conclusion of the habeas trial, the court determined
that the decision not to call the mother as a witness
was that of a ‘‘competent and qualified defense attor-
ney,’’ and that the petitioner had not proven that his
defense counsel’s performance was deficient. The court
specifically found that the petitioner’s mother lacked
credibility as a witness when she testified during the
habeas trial. Accordingly, the habeas court denied the
petition, and subsequently denied the petition for certi-
fication to appeal. This appeal followed.
On appeal, the petitioner argues that the habeas court
abused its discretion in denying his petition for certifica-
tion by (1) finding that he had received effective assis-
tance of counsel, and (2) determining that the
petitioner’s mother lacked credibility as a witness.
We disagree.
We begin by setting forth the appropriate standard
of review. ‘‘Faced with the habeas court’s denial of
certification to appeal, a petitioner’s first burden is to
demonstrate that the habeas court’s ruling constituted
an abuse of discretion. . . . If the petitioner succeeds
in surmounting that hurdle, the petitioner must then
demonstrate that the judgment 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.’’ (Citation omitted; internal
quotation marks omitted.) Spyke v. Commissioner of
Correction, 145 Conn. App. 419, 423, 75 A.3d 738, cert.
denied, 310 Conn. 932, 78 A.3d 858 (2013). ‘‘In determin-
ing whether the habeas court abused its discretion in
denying the petitioner’s request for certification, we
necessarily must consider the merits of the petitioner’s
underlying claims to determine whether the habeas
court reasonably determined that the petitioner’s
appeal was frivolous.’’ (Internal quotation marks omit-
ted.) Tutson v. Commissioner of Correction, 144 Conn.
App. 203, 215, 72 A.3d 1162, cert. denied, 310 Conn. 928,
78 A.3d 145 (2013).
The petitioner first claims that the habeas court erred
in concluding that counsel’s performance was not defi-
cient when he decided not to call the petitioner’s mother
as a witness during his criminal trial. The petitioner
asserts that, if called, his mother would have testified
that she had heard the victim recant her accusations
against the petitioner, and that such evidence likely
would have had a favorable impact on the outcome of
the case.1 We disagree.
The applicable standard for reviewing claims of inef-
fective assistance of counsel during criminal proceed-
ings was articulated by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, the
court held that such a claim ‘‘must be supported by
evidence establishing that (1) counsel’s representation
fell below an objective standard of reasonableness, and
(2) counsel’s deficient performance prejudiced the
defense because there was a reasonable probability
that the outcome of the proceedings would have been
different had it not been for the deficient performance.
. . . The first prong is satisfied by proving that counsel
made errors so serious that he was not functioning as
the counsel guaranteed by the sixth amendment. The
second prong is satisfied if it is demonstrated that there
exists a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) Crocker
v. Commissioner of Correction, 126 Conn. App. 110,
116, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d
333 (2011).
In this case, the habeas court did not credit the testi-
mony of the petitioner’s mother that the victim had
recanted her accusations, finding that the witness
lacked ‘‘even the slightest bit of credibility . . . .’’ To
the contrary, the habeas court specifically credited the
petitioner’s trial counsel, who testified that the decision
not to call the mother as a witness was based on his
being unable to get a ‘‘straight answer’’ as to what she
actually had heard the victim say and because calling
the mother to testify would likely have opened the door
for the state to introduce damaging evidence that pre-
viously had been excluded. It is axiomatic that the
habeas court is the ‘‘sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.) Davis v. Commis-
sioner of Correction, 140 Conn. App. 597, 602, 59 A.3d
403, cert. denied, 308 Conn. 920, 62 A.3d 1133 (2013).
Accordingly, having reviewed the record, we conclude
that the habeas court properly determined that trial
counsel’s decision not to call the mother as a witness
was that of a ‘‘competent and qualified defense
attorney.’’
The petitioner next claims that the habeas court’s
finding that his mother lacked credibility as a witness
was clearly erroneous because the habeas judge ‘‘main-
tained a bias or an appearance of bias’’ against her. As
the sole basis supporting his claim, the petitioner points
to the habeas court’s assessment of the mother’s credi-
bility as a witness delivered in its ruling from the bench
upon the conclusion of the trial. The habeas court stated
that given the potential damaging nature of ‘‘the addi-
tional evidence that [defense] counsel was able to keep
out of trial,’’ the court found ‘‘it, frankly, rather appalling
that [the mother] would even be willing to come in here
and present the testimony.’’
The petitioner did not raise any claim of judicial bias
during the habeas trial. Furthermore, the petitioner has
not requested explicitly that we consider his claim
under the plain error doctrine—the proper legal princi-
ple reserved for instances of unpreserved claims involv-
ing judicial bias. We thus conclude that his claim is
unpreserved and decline to review it.
‘‘It is well settled that courts [generally] will not
review a claim of judicial bias on appeal unless that
claim was properly presented to the trial court through
a motion for disqualification or a motion for a mistrial.’’
(Internal quotation marks omitted.) State v. James R.,
138 Conn. App. 181, 202, 50 A.3d 936, cert. denied, 307
Conn. 940, 56 A.3d 949 (2012). ‘‘Because an accusation
of judicial bias or prejudice strikes at the very core of
judicial integrity and tends to undermine public confi-
dence in the established judiciary . . . we . . . have
reviewed unpreserved claims of judicial bias under the
plain error doctrine [when raised on appeal].’’ (Internal
quotation marks omitted.) Burns v. Quinnipiac Uni-
versity, 120 Conn. App. 311, 317, 991 A.2d 666, cert.
denied, 297 Conn. 906, 995 A.2d 634 (2010). We have,
however, declined to review claims of alleged judicial
bias if no claim of plain error was made by a party on
appeal. See State v. Moore, 65 Conn. App. 717, 728, 783
A.2d 1100 (declining review where no plain error claim
was made), cert. denied, 258 Conn. 940, 786 A.2d 427(2001); see also State v. James R., supra, 202 (same).2
In this case, the petitioner does not argue that plain
error exists and, therefore, we decline to review his
claim.3 In sum, the petitioner has not proven that the
issues in the underlying claim 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. We con-
clude, therefore, that the habeas court did not abuse
its discretion in denying the petition for certification
to appeal from the judgment denying his amended peti-
tion for a writ of habeas corpus.
The appeal is dismissed.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the petitioner’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
During the habeas trial, the petitioner’s mother presented her version
of the events in her testimony.
2
We are also aware of the recent decision by our Supreme Court in
Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 162 n.33, 84 A.3d 840 (2014), where the court made it
clear that a reviewing court is not required to ‘‘raise an issue implicating
plain error . . . sua sponte if a party itself has failed to do so.’’
3
Even if we were to assume, arguendo, that the petitioner’s claim properly
was preserved or raised on appeal, our review of the record leaves us
convinced that the claim is without merit. The habeas judge’s assessment
of the petitioner’s mother as a witness was made after both parties in the
case had presented their evidence and delivered the closing arguments in
the case. There is no indication in the record that the habeas judge had
expressed any bias or appearance of bias toward any witness who testified
during the habeas trial. Because the habeas judge formed and expressed
his view of the petitioner’s mother’s credibility after the parties had pre-
sented their evidence, his finding was not affected by impermissible bias.
See State v. Rizzo, 303 Conn. 71, 125, 31 A.3d 1094 (2011) (finding nothing
impermissible about opinion formed by judge after trial has concluded and
based on evidence and arguments presented and judge’s evaluation of them),
cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012).