Bagalloo v. Commissioner of Correction

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GIFTON G. BAGALLOO v. COMMISSIONER
OF CORRECTION
(AC 41765)
DiPentima, C. J., and Keller and Bright, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming, inter alia, that his
trial counsel, W, rendered ineffective assistance by failing to inform him
adequately about his ineligibility for presentence confinement credit
and by failing to request that the trial judge award him that confinement
credit. On March 31, 2009, the petitioner, while serving a sentence for
a narcotics offense and a violation of probation, was arrested for conspir-
acy to commit murder. The petitioner pleaded guilty to the conspiracy
charge and, on December 10, 2013, received a sixteen year sentence.
Although the petitioner was held in custody on the homicide case, in
lieu of bond, since March 31, 2009, pursuant to statute (§ 18-98d [a] [1]
[B]), he did not receive credit for the time he spent in confinement from
that date to September 9, 2011, the date his sentence for the narcotics
offense and violation of probation terminated. The petitioner only
received presentence confinement credit toward the sixteen year sen-
tence from September 10, 2011, to December 10, 2013. The habeas court
conducted a trial, during which the petitioner and W testified. The court
rendered judgment denying the habeas petition, concluding, inter alia,
that W had not rendered ineffective assistance of counsel and that he
informed the petitioner adequately about the length of his sentence.
Thereafter, the habeas court denied the petition for certification to
appeal, and the petitioner appealed to this court. Held:
1. The petitioner’s claim that W rendered ineffective assistance because he
failed to properly inform the petitioner that he would not receive credit
for the time he spent in presentence confinement from March 31, 2009,
to September 9, 2011, before the petitioner pleaded guilty to conspiracy
to commit murder, was unavailing; the habeas court found that W had
specifically informed the petitioner that the petitioner’s resolution of the
narcotics and violation of probation case created a dead time scenario
whereby the petitioner would receive no confinement credit against any
prison sentence for the homicide case that preceded the completion of
that earlier sentence, and, thus, because the habeas court found that
W’s testimony was credible as to his communications with the petitioner
regarding the dead time he would be serving, it did not abuse its discre-
tion in denying the petition for certification to appeal with regard to
that claim.
2. The petitioner could not prevail on his claim that W provided ineffective
assistance by failing to ask the trial judge to order the Department of
Correction to award presentence confinement credit, despite the fact
that the petitioner was ineligible for such credit under § 18-98d (a)
(1) (B), which was based on the petitioner’s claim that because the
Department of Correction has a policy of honoring court awarded con-
finement credit, even if the petitioner did not qualify for it under § 18-
98d, and requesting the credit would not have harmed the petitioner,
W rendered deficient performance by not making such a request; con-
trary to the petitioner’s claim, our Supreme Court previously has made
clear that awarding credit for presentence confinement is permissible
only for defendants who qualify under § 18-98d, and, therefore, W could
not have rendered deficient performance for failing to request confine-
ment credit for which the petitioner was not eligible under the applica-
ble statute.
Argued October 23, 2019—officially released February 4, 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, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Judie Marshall, for the appellant (petitioner).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were John C. Smriga and Matthew
C. Gedansky, state’s attorneys, and Tamara Grosso,
assistant state’s attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Gifton G. Bagalloo,
appeals after 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. On appeal, the
petitioner claims that the habeas court (1) abused its
discretion in denying his petition for certification to
appeal and (2) improperly denied his petition for a writ
of habeas corpus in which he alleged, inter alia, that
his trial counsel provided ineffective assistance when
the petitioner entered into a plea agreement. Because
the petitioner has failed to demonstrate that the habeas
court abused its discretion in denying the petition for
certification to appeal, we dismiss the appeal.
In its memorandum of decision, the habeas court
set forth the following relevant facts and procedural
history. ‘‘On November 10, 2008, the [trial] court sen-
tenced the petitioner to seven years [of] imprisonment,
execution suspended after three years, and three years
[of] probation for a narcotics offense and a violation
of probation. While serving that sentence, the police, on
March 31, 2009, arrested the petitioner for conspiracy
to commit murder . . . [to which he pleaded guilty],
and [he] received a sixteen year sentence on December
10, 2013.
***
‘‘The three year sentence terminated on September
[9], 2011. Under General Statutes § 18-98d (a) (1) (B),1
the petitioner only received pretrial jail credit toward
the sixteen year sentence beginning after that date. This
was so because previous to that date he was confined
as a sentenced prisoner. Lee v. Commissioner of Correc-
tion, 173 Conn. App. 379, 385–86, [163 A.3d 702, cert.
denied, 326 Conn. 924, 169 A.3d 233] (2017). In short,
although held in custody on the homicide case, in lieu
of bond, since March 31, 2009, the calculation set forth
in § 18-98d (a) (1) (B) disallowed jail credit as long as
the earlier, three year sentence continued to run. The
petitioner has received pretrial jail credit for confine-
ment from September 10, 2011, to December 10, 2013.’’
(Citations omitted; emphasis in original; footnote
added.)
On or about April 21, 2014, the petitioner filed a
motion to withdraw his guilty plea. In the motion, the
self-represented petitioner argued that his plea was not
knowing and voluntary because he was not advised
adequately by his trial counsel, John Walkley, about the
length of his sentence and the amount of jail credit he
would receive from his pretrial confinement. On June
23, 2014, the trial court denied the motion. In denying
the motion, the court found that because the presen-
tence jail credit was never part of the plea agreement,
the court did not have to ensure that the petitioner was
aware of the impact of § 18-98d (a) (1) (B) on the plea
agreement or that he would be serving ‘‘dead time.’’2 The
petitioner did not appeal from the denial of this motion.
On December 19, 2014, the self-represented petitioner
filed a petition for a writ of habeas corpus. On May 1,
2017, the petitioner, represented by counsel, filed an
amended petition. In his amended petition, the peti-
tioner alleged that (1) Walkley rendered ineffective
assistance by failing to inform him adequately about
his ineligibility for jail credit and by failing to request
that the sentencing judge award him jail credit, and
(2) his guilty plea was not knowingly, intelligently and
voluntarily given because he was not informed properly
about the length of his sentence. On August 10, 2017,
the respondent, the Commissioner of Correction, filed
a return in response, claiming that the petitioner’s peti-
tion was procedurally defaulted because he failed to
appeal the trial court’s denial of his motion to withdraw
his guilty plea. See Practice Book § 23-30 (b). The
habeas court conducted a trial, during which the peti-
tioner and Walkley testified.
On April 30, 2018, the habeas court issued a memoran-
dum of decision in which it denied the petition for
habeas corpus relief. The habeas court found that the
petitioner failed to satisfy the ‘‘good cause and preju-
dice’’ standard to overcome the procedural default for
failing to appeal from the trial court’s denial of his
motion to withdraw his guilty plea. The habeas court
also determined that the petitioner’s trial counsel had
not rendered ineffective assistance and that he
informed the petitioner adequately about the length of
his sentence.
Thereafter, the petitioner filed a petition for certifica-
tion to appeal from the habeas court’s judgment. The
petitioner sought to raise two issues on appeal: (1)
whether the court erred in finding that the petitioner
failed to show cause sufficient to overcome procedural
default for his claim that his guilty plea was not know-
ing, intelligent and voluntary,3 and (2) whether the court
erred in finding that the petitioner failed to prove inef-
fective assistance of counsel. The habeas court denied
the petition. This appeal followed.
On appeal, the petitioner argues that the habeas court
(1) abused its discretion in denying the petitioner’s
request for certification to appeal, and (2) erred in deny-
ing the petitioner’s claim that his trial counsel rendered
ineffective assistance. We disagree.
We first set forth the standard of review relevant to
our resolution of this appeal. ‘‘Faced with the habeas
court’s denial of certification to appeal, a petitioner’s
first burden is to demonstrate that the habeas court’s
ruling constituted an abuse of discretion. . . . A peti-
tioner may establish an abuse of discretion by demon-
strating that the issues are debatable among jurists of
reason . . . [the] court could resolve the issues [in a
different manner] . . . or . . . the questions are ade-
quate to deserve encouragement to proceed further.
. . . The required determination may be made on the
basis of the record before the habeas court and applica-
ble legal principles. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court must
be affirmed. . . .
‘‘We examine the petitioner’s underlying claim[s] of
ineffective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. Our standard
of review of a habeas court’s judgment on ineffective
assistance of counsel claims is well settled. In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary. . . .
‘‘In Strickland v. Washington [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. . . . Unless a [peti-
tioner] makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
. . . Because both prongs . . . must be established for
a habeas petitioner to prevail, a court may dismiss a
petitioner’s claim if he fails to meet either prong. . . .
‘‘To satisfy the performance prong [of the Strickland
test] the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance; that is, the [petitioner] must over-
come the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy.’’ (Citations omitted; internal quotation marks
omitted.) Coward v. Commissioner of Correction, 143
Conn. App. 789, 794–96, 70 A.3d 1152, cert. denied, 310
Conn. 905, 75 A.3d 32 (2013).
Accordingly, in order to determine whether the
habeas court abused its discretion in denying the peti-
tion for certification to appeal, we must consider the
merits of the petitioner’s underlying claims that trial
counsel provided ineffective assistance. With the fore-
going principles in mind, we now address the petition-
er’s claims.
I
The petitioner first claims that his trial counsel was
ineffective because he failed to inform the petitioner
about the length of his sentence before entering into
the plea agreement. Specifically, the petitioner argues
that Walkley did not communicate that the petitioner
would not receive credit for the time he spent in presen-
tence confinement from March 31, 2009, to September
9, 2011. The petitioner further argues that had he known
that he would not receive credit for the 893 days he
spent in presentence confinement, he would have
rejected the plea and elected to go to trial instead.
The following additional facts are necessary for the
disposition of this claim. At the habeas trial, the court
found that Walkley had ‘‘specifically informed the peti-
tioner that the petitioner’s resolution of the other case
. . . created a ‘dead time’ scenario whereby the peti-
tioner would receive no jail credit against any prison
sentence for the homicide case that preceded the com-
pletion of that earlier sentence.’’ The court further
determined that Walkley’s testimony was ‘‘very credi-
ble’’ about his communications with the petitioner
regarding the unavailability of presentence jail credit
and that he would be serving ‘‘ ‘dead time.’ ’’4 Therefore,
the petitioner’s claim that Walkley did not inform him
about his ineligibility for jail credit fails because ‘‘[a]s
an appellate court, we do not reevaluate the credibility
of testimony, nor will we do so in this case. The habeas
judge, as the trier of facts, is the sole arbiter of the
credibility of witnesses and the weight to be given to
their testimony. . . . This court does not retry the case
or evaluate the credibility of witnesses. Rather, we must
defer to the [trier of fact’s] assessment of the credibility
of the witnesses based on its firsthand observation of
their conduct, demeanor and attitude.’’ (Citation omit-
ted; internal quotation marks omitted.) Corbett v. Com-
missioner of Correction, 133 Conn. App. 310, 316–17,
34 A.3d 1046 (2012). Because the habeas court found
Walkley’s testimony credible as to informing the peti-
tioner of the ‘‘dead time’’ he would be serving, we do
not disturb the court’s finding that Walkley’s perfor-
mance was not deficient. See Corbett v. Commissioner
of Correction, supra, 316–17. Accordingly, the habeas
court did not abuse its discretion in denying the petition
for certification to appeal with regard to this claim.
II
The petitioner’s second claim is that Walkley pro-
vided ineffective assistance by failing to ask the sen-
tencing judge to order the Department of Correction
to award presentence confinement credit, despite the
fact that the petitioner was ineligible for such jail credit
under § 18-98d (a) (1) (B). The petitioner argues that
because the Department of Correction has a policy of
honoring court awarded jail credit, even if the petitioner
does not qualify for it under § 18-98d, and requesting the
credit would not have harmed the petitioner, Walkley
rendered deficient performance by not making such
a request.
During testimony before the habeas court, the peti-
tioner sought to demonstrate that because it is a com-
mon practice in Connecticut for attorneys to request
jail credit at sentencing, Walkley acted deficiently by
failing to request it. The habeas court, however, dis-
agreed and held: ‘‘In Washington v. Commissioner of
Correction, 287 Conn. 792, 950 A.2d 1220 (2008), our
Supreme Court disabused trial courts, attorneys, and
the [Department of Correction] from the delusion that
judges could recoup [presentence] jail credit and cir-
cumvent the disqualification posed by the text of § 18-
98d (a) (1) by judicial fiat. Id., 802–803. This court has
held that defense counsel cannot be faulted for declin-
ing to make such an unlawful request. Palmenta v.
Warden, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX-S (May 21, 2014), aff’d sub
nom. Palmenta v. Commissioner of Correction, 161
Conn. App. 901, 125 A.3d 302, cert. denied, 320 Conn.
909, 128 A.3d 507 (2015).’’ See also Gooden v. Commis-
sioner of Correction, 169 Conn. App. 333, 338, 339–40
and n.3, 150 A.3d 738 (2016). In addition, the habeas
court noted, and the record demonstrates, that Walkley
testified that he attempted to ask the prosecutor to
include in the recommended sentence the ‘‘ ‘dead
time’ ’’ that the petitioner had served before trial.
On appeal, the petitioner argues that § 18-98d
‘‘strongly indicates that a sentencing court has no dis-
cretion to deny a valid request for jail credit.’’ The peti-
tioner’s reliance on our Supreme Court’s decision in
Washington in support of this proposition is misplaced
because, although that court did discuss how § 18-98d
mandates that presentence confinement credit be
granted to a defendant who qualifies for it under the
statute, the petitioner here could not make a ‘‘valid
request’’ for jail credit because he did not qualify for
presentence confinement credit under § 18-98d. Indeed,
contrary to the petitioner’s argument, our Supreme
Court in Washington made clear that awarding jail
credit for presentence confinement is permissible only
for defendants who qualify under § 18-98d. See Wash-
ington v. Commissioner of Correction, supra, 287
Conn. 802–803. Consequently, we agree with the habeas
court that Walkley cannot be considered to have ren-
dered deficient performance for failing to request jail
credit for which the petitioner was not eligible under
the statute. See Weathers v. Commissioner of Correc-
tion, 133 Conn. App. 440, 444, 35 A.3d 385 (holding that
‘‘[t]he petitioner has not demonstrated that effective
representation requires that an attorney, at the time of
sentencing, ask for every conceivable type of sentenc-
ing consideration, including credit to which he lacks
any entitlement by operation of law’’), cert. denied, 304
Conn. 918, 41 A.3d 305 (2012). Accordingly, the habeas
court properly determined that the petitioner’s trial
counsel did not render deficient performance by not
requesting unauthorized jail credit from the trial court.
On the basis of the foregoing, we conclude that the
habeas court properly determined that Walkley did not
render ineffective assistance of counsel by failing to
request presentence confinement credit for which the
petitioner was ineligible under § 18-98d. The petitioner
has failed to prove any of the three criteria that consti-
tutes an abuse of discretion. Accordingly, the petitioner
has not demonstrated that the habeas court abused
its discretion in denying the petition for certification
to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
General Statutes § 18-98d (a) (1) provides: ‘‘Any person who is confined
to a community correctional center or a correctional institution for an
offense committed on or after July 1, 1981, under a mittimus or because
such person is unable to obtain bail or is denied bail shall, if subsequently
imprisoned, earn a reduction of such person’s sentence equal to the number
of days which such person spent in such facility from the time such person
was placed in presentence confinement to the time such person began
serving the term of imprisonment imposed; provided (A) each day of presen-
tence confinement shall be counted only once for the purpose of reducing
all sentences imposed after such presentence confinement; and (B) the
provisions of this section shall only apply to a person for whom the existence
of a mittimus, an inability to obtain bail or the denial of bail is the sole
reason for such person’s presentence confinement, except that if a person
is serving a term of imprisonment at the same time such person is in
presentence confinement on another charge and the conviction for such
imprisonment is reversed on appeal, such person shall be entitled, in any
sentence subsequently imposed, to a reduction based on such presentence
confinement in accordance with the provisions of this section. In the case
of a fine, each day spent in such confinement prior to sentencing shall be
credited against the sentence at a per diem rate equal to the average daily
cost of incarceration as determined by the Commissioner of Correction.’’
2
‘‘[D]ead time is prison parlance for presentence confinement time that
cannot be credited because the inmate is a sentenced prisoner serving
time on another sentence.’’ (Internal quotation marks omitted.) Smith v.
Commissioner of Correction, 179 Conn. App. 160, 163 n.2, 178 A.3d 1079
(2018).
3
The petitioner included this issue on his petition for certification to
appeal; however, this issue was not briefed and the petitioner does not
challenge this determination by the habeas court on appeal.
4
The petitioner argues that Walkley’s testimony that he did not recall the
specific conversations he had with the petitioner regarding the unavailability
of jail credit demonstrates that Walkley did not provide effective assistance
of counsel. In response the respondent cites Budziszewski v. Commissioner
of Correction, 322 Conn. 504, 517 n.2, 142 A.3d 243 (2016) (expressing
concern with trial court’s finding fault with counsel for his failure to recall
‘‘all of the advice he gave the petitioner’’ by noting that ‘‘the habeas court
must presume that counsel acted competently and the burden lies with the
petitioner, as the party asserting ineffectiveness, to overcome this presump-
tion and prove that [counsel] failed to give the required warning’’). This
binding precedent disposes of the petitioner’s argument.