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Ouellette v. Comm'r of Corr.

Appellate Court of Connecticut

September 15, 2015

MICHAEL OUELLETTE
v.
COMMISSIONER OF CORRECTION

Argued May 20, 2015

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

SYLLABUS

The petitioner sought a writ of habeas corpus claiming that his rights to due process and to have his case heard by an impartial trier of fact were violated at his criminal trial before a three judge court because one of the judges was biased. 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 present evidence that his claim of judicial bias 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; the petitioner failed to present a factual basis for his claim of judicial bias, as he failed to present any evidence to support his claim that the judge had an off the record conversation with a judicial marshal regarding the petitioner's guilt prior to rendering judgment of conviction, and as the petitioner's allegations of judicial impropriety constituted mere speculation, they were insufficient to establish an appearance of impropriety such that a reasonable person who was aware of the circumstances surrounding the proceeding would question the judge's impartiality.

David B. Rozwaski, assigned counsel, for the appellant (petitioner).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, and Erika L. Brookman, assistant state's attorney, for the appellee (respondent).

Lavine, Beach and Alvord, Js.

OPINION

Page 1257

[159 Conn.App. 855] PER CURIAM.

The petitioner, Michael Ouellette, appeals after the habeas court denied his petition for certification to appeal from the court's judgment denying his amended petition for a writ of habeas corpus. On appeal, he claims that the habeas court abused its discretion in denying his petition for certification to appeal and erred in denying his claim that his right to due process was violated. The petitioner's due process claim was based upon his argument that he was deprived of a fair trial in his underlying criminal case because of judicial bias. We conclude that the habeas 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 relevant to this appeal. The petitioner was charged with [159 Conn.App. 856] murder in violation of General Statutes § 53a-54a. He waived his right to a jury trial and elected to be tried by a three judge court, Leuba, Wollenberg, and Wiese, Js., pursuant to General Statutes § 54-82 (b). The court found him guilty of murder and sentenced him to a term of sixty years imprisonment. In affirming his conviction on appeal, our Supreme Court determined that the court reasonably could have found the following facts. " On the evening of June 24, 1999, the [petitioner], a diagnosed paranoid schizophrenic, brutally bludgeoned to death Robert Lysz, a Roman Catholic priest, inside St. Matthew's Church in Bristol. The [petitioner] was discovered the next morning hiding in the church rectory, wearing the victim's pants and in possession of the victim's wallet, credit card, and driver's license. Initially, the defendant told the police that he had killed the victim in self-defense, but subsequently raised the affirmative defense of mental disease or defect and the alternative affirmative defense of extreme emotional disturbance." State v. Ouellette, 271 Conn. 740, 743-44, 859 A.2d 907 (2004).

On February 21, 2012, the petitioner filed an amended petition for a writ of habeas corpus. In the amended petition, he alleged, inter alia,[1] that he was deprived of his rights to due process and a fair trial because he " discovered information that Judge Wollenberg had been discussing the case and the petitioner's defense prior to the close of evidence and before the three-

Page 1258

judge panel was to make a decision of the petitioner's guilt or innocence." The return by the respondent, the Commissioner of Correction, raised the affirmative defense of procedural default as to the claim of judicial bias. On March 4, 2013, the habeas court, Newson, J., held an evidentiary hearing on the amended petition. [159 Conn.App. 857] The petitioner called three witnesses: (1) Eric Edman, a former judicial marshal; (2) ...


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