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Turner v. Commissioner of Correction

Appellate Court of Connecticut

March 8, 2016

COREY TURNER
v.
COMMISSIONER OF CORRECTION

         Argued December 9, 2015.

Page 1254

          Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Danbury and tried to the court, White, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court, which dismissed the appeal; subsequently, the Supreme Court denied the petition for certification to appeal; thereafter, the matter was transferred to the judicial district of Tolland; subsequently, the court, Cobb, J., denied the petitioner's motion to open the judgment; thereafter, the court, Cobb, J., denied the petition for certification to appeal, and the petitioner appealed to this court.

          SYLLABUS

         The petitioner appealed to this court following the habeas court's denial of his petition for certification to appeal from the judgment of the habeas court denying his motion to open a 2002 habeas judgment, in which the habeas court had denied his claims of ineffective assistance of counsel in his first petition for a writ of habeas corpus. The petitioner filed the motion to open in 2011, claiming that the 2002 habeas judgment resulted from fraud committed upon the court through the collusion of his criminal trial counsel and counsel for the respondent, the Commissioner of Correction. Specifically, he claimed that his trial counsel had perjured himself before the habeas court in 2002 and that the respondent's counsel at that time had intentionally elicited that testimony even though she knew that it was false. Held that the habeas court did not abuse its discretion in denying the petition for certification to appeal, as that court's determination that the petitioner's motion to open and set aside the 2002 final judgment was brought after an unreasonable delay was not debatable among jurists of reason; that court properly determined that the petitioner had failed to establish the criteria necessary to prove that the 2002 judgment was based on fraud, which was necessary for the petitioner to overcome the statutory (§ 52-212a) four month time limitation governing a motion to open, as the habeas court found that the motion to open was raised after an unreasonable delay of more than eight years, that the petitioner did not develop any new facts or claims to support his assertion of fraud, but instead sought to set aside the 2002 judgment with facts that were known to him, as well as the habeas court, at the time of his first petition for a writ of habeas corpus, and that the petitioner did not offer any argument that justified his lengthy delay in bringing the motion to open.

         Corey Turner, self-represented, the appellant (petitioner).

         Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

         Alvord, Sheldon and Mullins, Js. ALVORD, J. In this opinion the other judges concurred.

          OPINION

Page 1255

          [163 Conn.App. 558] ALVORD, J.

          The petitioner, Corey Turner, appeals from the judgment of the habeas court denying his motion to open and set aside a 2002 habeas judgment and denying him certification to appeal from that decision. On appeal, the petitioner claims that the habeas court, Cobb, J., abused its discretion by denying his petition for certification to appeal and determining that his motion to open and set aside the judgment of the first habeas court, White, J., was time barred. We dismiss the appeal.

         The following facts and procedural history are relevant to this appeal. In 1997, the petitioner was convicted of murder in violation of General Statutes § 53a-54a and first degree assault in violation of General Statutes § 53a-59. In 2000, our Supreme Court affirmed his conviction. State v. Turner, 252 Conn. 714, 751 A.2d 372 (2000). The petitioner's first petition for writ of habeas corpus, which is the focus of the present appeal, was adjudicated in 2002. In that case, the habeas court, White, J., denied the petitioner's writ of habeas corpus alleging claims of ineffective assistance of counsel both in his underlying criminal trial and on his direct appeal. This court dismissed the petitioner's appeal. Turner v. Commissioner of Correction, 86 Conn.App. 341, 861 A.2d 522 (2004), cert. denied, 272 Conn. 914, 866 A.2d 1286 (2005).[1]

Page 1256

          [163 Conn.App. 559] During his 2002 habeas trial, the petitioner alleged that his criminal trial counsel had been ineffective for failing to convince the criminal trial court to admit evidence that supported his defense of alibi. The petitioner had testified, during his criminal trial, that he was with an acquaintance at the time of the murder. He called the acquaintance witness to testify and she repeated the same story. During cross-examination of the petitioner, the state questioned him about a recorded prison phone call between the petitioner and the acquaintance witness, suggesting that he had fabricated the story. In an attempt to refute the state's rebuttal evidence, the petitioner's criminal ...


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