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McGee v. Commissioner of Correction

Appellate Court of Connecticut

June 16, 2015

FRANK MCGEE
v.
COMMISSIONER OF CORRECTION

Argued, March 2, 2015

Page 141

[Copyrighted Material Omitted]

Page 142

Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Cobb, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court.

SYLLABUS

The petitioner, who had been convicted of various crimes in connection with a robbery, sought a writ of habeas corpus, claiming that his trial counsel had provided ineffective assistance by, inter alia, eliciting damaging testimony from certain witnesses on cross-examination and failing to prepare adequately for the petitioner's sentencing hearing. The habeas court rendered judgment denying the petition and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court did not abuse its discretion in denying the petition for certification to appeal, the petitioner having failed to demonstrate that a resolution of his alleged ineffective assistance of counsel claims involved issues that were debatable among jurists of reason, that a court could have resolved the issues in a different manner, or that the questions raised were adequate to deserve encouragement to proceed further: trial counsel was not ineffective in his cross-examination of the petitioner's codefendant and the robbery victim, as counsel's approach fell within the range of reasonable professional assistance and was not prejudicial to the petitioner; furthermore, trial counsel was not ineffective for failing to respond to an claim of alleged juror misconduct concerning the discussion of the case in the jury room, as the habeas court properly found no juror misconduct because the case had been submitted to the jury for deliberations; moreover, trial counsel was not ineffective in failing to file a motion for a judgment of acquittal on the basis of an inconsistent verdict, as that claim was precluded by the doctrine of res judicata because it was previously decided in the petitioner's direct appeal; finally, trial counsel's performance in the petitioner's sentencing hearing was objectively reasonable and the petitioner failed to show that he was prejudiced by any alleged deficient preparation.

Albert J. Oneto IV, assigned counsel, with whom was David B. Rozwaski, assigned counsel, for the appellant (petitioner).

Emily Graner Sexton, special deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Cynthia S. Serafini, senior assistant state's attorney, for the appellee (respondent).

Lavine, Keller and Flynn, Js.

OPINION

Page 143

LAVINE, J.

[157 Conn.App. 864] The petitioner, Frank McGee, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal. He argues that the court improperly found that his trial counsel did not render ineffective assistance by failing to: (1) adequately cross-examine two material witnesses; (2) respond to alleged juror misconduct; (3) file a posttrial motion on the basis of an inconsistent verdict; and (4) adequately prepare for the petitioner's sentencing hearing.[1] We dismiss the petitioner's appeal.

The underlying facts were set forth in this court's opinion in State v. McGee, 124 Conn.App. 261, 4 A.3d 837, cert. denied, 299 Conn. 911, 10 A.3d 529 (2010), cert. denied, ___ U.S. ___, 131 S.Ct. 2114, 179 L.Ed.2d 908 (2011), in which this court affirmed the trial [157 Conn.App. 865] court's judgment of conviction. The jury reasonably could have found the following facts. " At approximately 1 a.m. on March 23, 2007, the victims, D and T,[2] were on Pine Street in Waterbury, where they purchased a small amount of cocaine from an unidentified individual. Soon thereafter, a silver Lexus, driven by the [petitioner], pulled up to the victims. . . . The [petitioner] began asking D and T if they wanted to get shot. . . . The [petitioner] started going through D's pockets and found $6, which he took from him. The [petitioner] then searched T for cocaine by placing his hands on different parts of her body. . . . D went to his home, two houses away, and called 911. Police officers arrived and found a car matching the description given by D on Congress Avenue. D and T went to Congress Avenue and positively identified the [petitioner] and the other occupants of his car, who were arrested." (Footnote in original; internal quotation marks omitted.) Id., 263-64.

The petitioner was convicted, after a jury trial, of two counts of robbery in the second degree in violation of General Statutes § 53a-135 (a) (1) and (2), conspiracy to commit robbery in the second degree in violation of General Statutes § § 53a-48 (a) and 53a-135 (a) (2), sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2) and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (3). Id., 263. The petitioner was acquitted of charges of larceny in the second degree in violation of ...


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