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Barlow v. Commissioner of Correction

Court of Appeals of Connecticut

June 28, 2016

ALISON BARLOW
v.
COMMISSIONER OF CORRECTION

          Argued February 9 2016

         Appeal from Superior Court, judicial district of Tolland, Sferrazza, J.

          Naomi T. Fetterman, with whom was Aaron J. Romano, for the appellant (petitioner).

          Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Eva B. Lenczewski, supervisory assistant state’s attorney, for the appellee (respondent).

          Beach, Keller and West, Js.

          OPINION

          KELLER, J.

         Following a grant of certification to appeal, the petitioner, Alison Barlow, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court improperly (1) denied his motion for recusal, (2) denied his request for a new evidentiary hearing, and (3) concluded that he failed to demonstrate prejudice as a result of his trial counsel’s deficient performance.[1] We agree with the first and second claims raised by the petitioner, reverse the judgment of the habeas court, and remand the case for further proceedings consistent with this opinion.

         The following facts and procedural history are relevant to this appeal. In 1998, following a jury trial, the petitioner was convicted of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and alteration of a firearm identification number in violation of General Statutes § 29-36. The petitioner was sentenced to a total effective term of thirty-five years imprisonment. Following a direct appeal brought by the petitioner, this court affirmed the judgment of conviction. State v. Barlow, 70 Conn.App. 232, 797 A.2d 605, cert. denied, 261 Conn. 929, 806 A.2d 1067 (2002).

         Following his conviction, the petitioner brought several petitions for a writ of habeas corpus. At issue in the present appeal is an amended petition that the petitioner filed on January 17, 2002-his third petition for a writ of habeas corpus-in which he alleged in count one that his trial counsel, Attorney Sheridan L. Moore, rendered ineffective assistance in connection with a plea bargain offer[2] and in connection with the representation that she afforded the petitioner during the trial generally.[3] In count two, the petitioner alleged that his prior habeas counsel, Attorney Christopher Neary, rendered ineffective assistance by failing to pursue a claim that Moore had rendered ineffective representation during his criminal trial.

         Following a hearing, the habeas court, Sferrazza, J., dismissed the amended petition with respect to the claim of ineffective representation by Moore set forth in count one. With respect to this count, the court, sua sponte, invoked the doctrine of deliberate bypass and stated, in relevant part: ‘‘This, the petitioner’s third habeas action in which he has asserted claims of ineffectiveness against Moore, is a blatant example of the procedural evils that the deliberate bypass rule was created to thwart.’’ The court denied the petition with respect to the claim of ineffective representation by Neary set forth in count two. In rejecting the claim that Neary rendered ineffective representation for, in relevant part, failing to pursue a claim of ineffective representation against Moore, the court made several findings with respect to the nature of Moore’s representation of the petitioner with respect to the plea offer. In relevant part, the court stated: ‘‘The court has found that Moore fully apprised the petitioner as to the terms of the plea offer, including its temporary nature, the strengths and weaknesses of the prosecution and defense cases, and the possible outcomes after trial. ...

         ‘‘Moore, at the time of the petitioner’s criminal case, had seventeen years of experience handling serious criminal matters as a special public defender and five and one-half years as a public defender for the Water-bury judicial district. This experience entailed defending clients charged with murder and trying such cases to verdict. No expert witness testified critically of Moore’s representation of the petitioner. To the contrary, Attorney Neary averred that he examined Moore’s performance for the petitioner’s defense and found no basis for such an ineffective assistance claim against her.

         ‘‘The court determines that the petitioner has failed to prove that Moore was deficient in any of the ways alleged surrounding the petitioner’s rejection of the nine year plea offer. As a result, the petitioner has also failed to meet his burden of establishing that [prior habeas counsel had] rendered ineffective assistance by withdrawing the claims against Moore through amended petitions.’’ (Citations omitted.)

         The petitioner appealed to this court from the judgment of the habeas court. With respect to the petitioner’s claim that the habeas court improperly dismissed his claim that Moore had rendered ineffective assistance with respect to the trial court’s plea offer, this court ruled that, in the absence of any claim by the respondent, the Commissioner of Correction, that the doctrine of deliberate bypass applied in the present case, the habeas court erroneously had relied on that doctrine in dismissing that aspect of the petition. Barlow v. Commissioner of Correction, 150 Conn.App. 781, 785–88, 93 A.3d 165 (2014). After reviewing the findings of the habeas court and the evidence in the record, which included Moore’s testimony during the habeas trial, this court disagreed with the habeas court’s assessment of Moore’s representation. This court, referring to Moore’s undisputed testimony at the habeas trial, concluded as a matter of law that Moore’s performance with respect to the plea offer was deficient ‘‘because she did not give the petitioner her professional advice and assistance concerning, and her evaluation of, the court’s plea offer.’’ Id., 802.

         Although we resolved the issue of deficient performance in the petitioner’s favor, this court rejected the petitioner’s argument that, on the basis of the record, we could presume that he was prejudiced, under the applicable standard of prejudice, as a result of Moore’s deficient performance concerning the plea offer. Id. This court agreed with the respondent that the habeas court was in the best position to determine an unresolved issue integral to whether the petitioner was prejudiced by Moore’s deficient performance, specifically, ‘‘whether it is reasonably likely that the petitioner would have accepted the offer hadhe received adequate advice from Moore.’’ Id., 804. In light of our resolution of the claim concerning Moore, this court concluded that it did not need to consider, on its merits, ‘‘the issue of whether Neary’s performance was deficient for failing to pursue the issue of Moore’s performance.’’ Id., 783 n.1.

         In the rescript of our opinion, this court set forth the following order: ‘‘The judgment is reversed in part and the case is remanded for further proceedings on the issue of whether the petitioner was prejudiced by counsel’s deficient performance. In the event that the habeas court finds that the petitioner has established prejudice, and no timely appeal is taken from that decision, the judgment is reversed and the case is remanded with direction to grant the petition for a writ of habeas corpus. In the event that the habeas court finds that the petitioner has failed to demonstrate prejudice, and no timely appeal is taken from that decision, the judgment is reversed only as to form and the court is ordered to render judgment denying rather than dismissing the petition as it relates to the claim that Moore provided ineffective assistance of counsel.’’ Id., 804–805.

         Judge Sferrazza, who had presided over the habeas proceedings and, as discussed previously in this opinion, had issued the prior judgment that was the subject of this court’s prior decision in the habeas matter, presided over the proceedings on remand. The record reflects that on August 5, 2014, at a hearing following the issuance of this court’s remand order, Judge Sferrazza asked the parties to express their positions with respect to several issues, including whether this court’s remand order required the court to hold an evidentiary hearing or whether the order required the court to make the required finding with respect to prejudice on the basis of the evidence in the record. Additionally, Judge Sferrazza raised the issue of whether, following this court’s reversal of his prior judgment, he was presumptively disqualified from continuing with the case.

         The petitioner argued that this court’s remand order required a new evidentiary hearing and argued that the matter shouldbe heard and decided by a different judge. The petitioner’s attorney stated that the petitioner would not waive his right to have the matter heard by a different judge. The respondent argued that this court’s remand order did not require a new evidentiary hearing, but merely a decision to be made on the basis of the evidence already in the record. Further, the respondent argued that, because Judge Sferrazza had not yet decided the specific factual issue set forth in this court’s remand order, it was proper for him to hear and decide the matter. Thereafter, on August 11, 2014, Judge Sferrazza issued a memorandum of decision in which he concluded that this court’s remand order did not require a new evidentiary hearing. In relevant part, the court stated: ‘‘The court and the parties have found this remand order somewhat perplexing. The respondent asserts that the Appellate Court’s order is in the nature of an articulation order concerning the prejudice determination. Under this view, this court would simply review the evidence adduced at the habeas hearing and render a decision resolving the prejudice question.

         ‘‘The petitioner, on the other hand, argues that the Appellate Court intended that a new evidentiary hearing take place at which the parties could introduce evidence not previously presented. He also contends that General Statutes § 51-183c would necessitate that a different habeas judge preside over the new evidentiary hearing.’’ The court went on to conclude that the respondent’s interpretation of the order was more logical. Among the reasons it set forth for its interpretation of this court’s remand order, the court observed that the order did not explicitly mandate a new hearing, but merely necessitated further proceedings. Accordingly, with respect to the prejudice issue before the court, it directed the parties to submit supplemental briefs ‘‘based on the evidence previously admitted . . . .’’

         On August 15, 2014, the petitioner filed a motion for review of Judge Sferrazza’s decision with this court. The respondent opposed the motion. This court dismissed the motion on the ground that the issues raised therein were not subject to interlocutory review.[4]

         On September 24, 2014, the petitioner filed a motion for recusal in which he brought into focus some of the arguments he had raised at the previous hearing concerning this court’s remand order.[5] Relying on § 51-183c[6] and Practice Book § 1-22 (a), [7] the petitioner argued that, following this court’s reversal of the prior judgment, Judge Sferrazza was prohibited from retrying the case on remand. Additionally, relying on rule 2.11 (a)[8] of the Code of Judicial Conduct, the petitioner argued that recusal was warranted because Judge Sferrazza’s impartiality during the proceedings on remand might reasonably be questioned. The petitioner, first noting that, in his prior decision, Judge Sferrazza, sua sponte, had applied the doctrine of deliberate bypass in the respondent’s favor and, in the context of rejecting the petitioner’s claim against habeas counsel, had rejected the petitioner’s argument that Moore had performed deficiently in connection with the plea agreement, argued: ‘‘It is difficult to conceive that the trial court will be able to render a finding that [the petitioner] was prejudiced by conduct that, on the same record, the trial court did not find to be deficient, and afford [the petitioner] the requested relief. In order to preserve the appearance of impartiality and [the petitioner’s] constitutional rights to a fair trial, this court should recuse itself.’’

         In his memorandum of decision denying the petitioner’s motion for recusal, Judge Sferrazza stated in relevant part: ‘‘The court discerns no cogent reason for recusal. . . . [T]his court has construed the remand order to compel the court to issue findings and rulings pertinent to the prejudice component of [Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] without the taking of additional evidence. It would be impossible for a different judge to fulfill that mandate. This would fly in the teeth of the Appellate Court’s remand order.

         ‘‘More importantly, the mere fact that a trial court has ruled against a party on one aspect of a case and that ruling was reversed on appeal fails to implicate General Statutes § 51-183c. The Appellate Court did not order a new trial, nor did it reverse this court as to the prejudice prong of Strickland.’’ (Emphasis in original.) The court, relying on Taft v. Wheelabrator Putnam, Inc., 255 Conn. 916, 763 A.2d 1044 (2000), and State v. Santiago, 245 Conn. 301, 715 A.2d 1 (1998), concluded that recusal was not required by the Code of Judicial Conduct. The court stated in relevant part: ‘‘The present case, on remand, involves no new evidence. Although it is not an articulation order, which compels a trial court to explain the conclusion it reached previously, the remand order is in the nature of an articulation of a previously undecided matter. . . . [R]eversal of a judge’s decision on one, limited issue in a case does not disqualify the judge from further participation with respect to other aspects of the case despite having the salutary experience of being overturned by a higher tribunal.’’

         After the court ruled on the motion for recusal, both the petitioner and the respondent filed briefs with respect to the issue set forth in this court’s remand order. The respondent objected to any attempt by the petitioner to rely on matters that were outside of the evidence that had been admitted at the petitioner’s habeas trial.

         In his written memorandum of decision of November 17, 2014, which is the subject of this appeal, Judge Sferrazza stated: ‘‘Because the remand order [of the Appellate Court] lacks clarity in some respects, a controversy had arisen as to whether the Appellate Court intended to require an entirely new habeas trial, before a different habeas judge, limited to adjudicating the prejudice issue, or simply was returning the matter to this court to make findings and draw conclusions as to prejudice utilizing the prejudice test . . . based on the evidence previously admitted. This court resolved that conundrum . . . holding that the Appellate Court meant for this court to supplement its original decision by determining those factual issues as to prejudice, which were previously unaddressed [in its prior decision].’’

         In its memorandum of decision, the court set forth several findings concerning Moore that it had set forth in its prior memorandum of decision addressing the merits of the petition for a writ of habeas corpus. Although it is unnecessary for us to set forth these findings in detail, we observe that the court once again set forth a generally positive assessment of Moore’s performance with respect to the plea offer. The habeas court found that Moore advised the petitioner of the status of the plea offer made by the trial court, ‘‘thoroughly reviewed’’ the evidence and possible witnesses, discussed matters related to the plea negotiations, and cautioned the petitioner that ‘‘a jury might find the prosecution’s case persuasive despite his denials of participation in the drive-by shooting’’ at issue in the case. The petitioner, who received a sentence of thirty-five years of incarceration, attempted to demonstrate that, with proper counsel from Moore, it is reasonably likely that he would have accepted a plea offer that would have required him to serve fourteen years, execution suspended after nine years. The court found: ‘‘At no time did the petitioner express any interest in accepting a plea disposition which entailed more than six years incarceration. At the habeas trial, the petitioner averred that, had Moore recommended that he agree to the plea offer as being in his best interest, he would have readily changed his plea and accepted the sentence indicated, namely, fourteen years, execution suspended after the service of nine years.’’ After observing that this court had determined ...


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