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Toccaline v. Commissioner of Correction

Court of Appeals of Connecticut

October 24, 2017

LENNARD TOCCALINE
v.
COMMISSIONER OF CORRECTION

          Argued May 16, 2017

          Andrew P. O'Shea, for the appellant (petitioner).

          Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, was Michael J. Proto, assistant state's attorney, for the appellee (respondent).

          Lavine, Sheldon and Flynn, Js.

         Syllabus

         The petitioner filed a third amended petition for a writ of habeas corpus, claiming, inter alia, that he was actually innocent of the crimes of which he had been convicted, and that his rights to due process were violated as a result of the prosecutor's unknowing presentation of false testimony and alleged failure to disclose certain exculpatory evidence. The petitioner further claimed that he received ineffective assistance from his criminal trial counsel, from S, his counsel in his first habeas trial and first habeas appeal, and from P Co., his counsel in his second habeas trial. The first habeas court had rendered judgment granting the petition for a writ of habeas corpus as to certain of the petitioner's claims, but this court reversed that judgment on the ground that the habeas court did not use the proper standard for deciding ineffective assistance of counsel claims and directed the habeas court on remand to dismiss the petition. After a second habeas trial, the habeas court rendered judgment dismissing and denying certain of the petitioner's claims, and this court affirmed that judgment. Thereafter, the petitioner filed a third amended habeas petition, and the respondent Commissioner of Correction filed a motion to dismiss that petition. The habeas court granted the respondent's motion to dismiss and rendered judgment dismissing the third amended habeas petition, and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. Held:

         1. The habeas court did not abuse its discretion in denying the petition for certification to appeal as to the petitioner's claim of actual innocence, that court having properly determined that the petitioner's actual innocence claim was barred by the doctrine of res judicata; the claim had been raised, litigated and decided on the merits in his first two habeas actions, the petitioner did not appeal from the rejection of that claim in either of those actions, and he conceded in the present appeal to this court that he did not have, and did not intend to present, any newly discovered evidence.

         2. The habeas court did not abuse its discretion in denying the petition for certification to appeal as to the petitioner's claim that his rights to due process were violated when the prosecutor unknowingly presented false testimony: there wasno Connecticut case that supported the proposition that the petitioner's due process rights could have been violated by the prosecutor's presentation of false testimony when the prosecutor neither knew nor should have known that the testimony was false, the issue has not been decided by the United States Supreme Court, and the claim would fail even under the more lenient approach that provides that due process is violated when the testimony is material and the court is left with a firm belief that, but for the perjured testimony, the petitioner most likely would not have been convicted, as the petitioner failed to show that absent the inaccurate testimony, there was a reasonable probability that he would not have been convicted in light of the other significant, incriminating evidence that had been presented against him.

         3. Although the habeas court improperly dismissed the claim that S was ineffective as the petitioner's first habeas appellate counsel on the ground that it was successive, the court, nevertheless, did not abuse its discretion in denying the petition for certification to appeal on the alternative ground that the claim was without merit: the petitioner failed to show that S's performance was deficient for failing to move to have the first habeas court articulate its factual findings, as the petitioner did not allege which factual findings were absent or show that the first habeas court did not articulate the factual findings supporting its decision; moreover, although this court subsequently reversed the decision of the first habeas court, that reversal was not because the court's factual findings were insufficient or because the record was inadequate for review.

         4. There was no merit to the petitioner's claim that the habeas court abused its discretion in denying the petition for certification to appeal as to his assertion that P Co. was ineffective in representing him in his second habeas trial, as the petitioner failed to show that P Co. was ineffective in failing to raise or adequately argue claims in counts one through six of his third amended habeas petition; the petitioner's claim in count one of actual innocence was successive, his claim in count two that the prosecutor violated his due process rights by failing to timely disclose a certain report had been fully litigated, and this court previously decided that any failure to disclose the report was harmless error, the assertion in count three that the prosecutor violated the petitioner's rights to due process by unknowingly presenting false testimony failed to state a claim on which relief could be granted, the petitioner's claims in counts four and five that his criminal trial counsel and S, as his first habeas counsel, rendered ineffective assistance were previously rejected by this court, and the petitioner could not show that he was prejudiced as a result of P Co.'s failure to allege that S was ineffective as appellate counsel in the first habeas appeal as alleged in count six, as the petitioner could not show that the outcome of his criminal trial would have been different in light of the incriminating evidence against him and the significant evidence supporting his guilt.

         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, Fuger, J.; judgment dismissing the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

          OPINION

          LAVINE, J.

         The petition for a writ of habeas corpus at issue in the present appeal is the third filed by the petitioner, Lennard Toccaline. He appeals following the habeas court's denial of his petition for certification to appeal from the judgment of the habeas court granting the motion to dismiss filed by the respondent, the Commissioner of Correction. He claims that the habeas court abused its discretion by denying his petition for certification to appeal and improperly dismissed four counts of his third amended petition. We dismiss the appeal.

         The following facts and lengthy procedural history are relevant to our resolution of the petitioner's appeal. In 1999, following a jury trial, the petitioner was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the fourth degree in violation of General Statutes (Rev. to 1995) § 53a-73a (a) (1) (A), and three counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21 (2), as amended by No. 95-142, § 1, of the 1995 Public Acts. Subsequently, the trial court, Sferrazza, J., found the petitioner guilty of being a persistent felony offender in violation of General Statutes (Rev. to 1995) § 53a-40 (a). The petitioner was sentenced to a total effective term of forty years imprisonment, execution suspended after twenty-five years, followed by ten years of probation.

         In 2001, he appealed from his conviction, [1] and our Supreme Court set forth in detail the facts underlying his conviction. It explained that the petitioner, a thirty-five year old man, had engaged in three acts of sexual contact with MC, the twelve year old victim.[2] After MC told her mother about the sexual contact, the petitioner gave an incriminating statement to the police, which was read to the jury at trial. In the statement, the petitioner claimed that MC never objected to the contact and that the contact did not constitute sexual inter-course.[3] State v. Toccaline, 258 Conn. 542, 546-47, 783 A.2d 450 (2001) (Toccaline I). Our Supreme Court affirmed the petitioner's conviction because the claims were not reviewable[4] but noted that ‘‘the jury was presented with significant evidence, aside from the victim's testimony, that the sexual abuse had in fact occurred. For example, MC's physician testified that a physical examination revealed that MC had experienced vaginal penetration, which most likely was caused through sexual relations. . . . Most importantly, the [petitioner's] own written statement corroborated much of what MC claimed to have occurred.'' (Emphasis added.) Id., 552 n.13.

         In 2002, the petitioner filed his first petition for a writ of habeas corpus. He was represented by Attorney Conrad Ost Seifert in both his first habeas trial and his subsequent habeas appeal. His amended first petition alleged: (1) eleven counts of ineffective assistance by his trial counsel, Attorney Mark C. Hauslaib; (2) ineffective assistance by his direct appellate counsel, Attorney Richard S. Cramer; and (3) factual innocence. Following a habeas trial, the habeas court, Hon. Richard M. Rit-tenband, judge trial referee, granted the petitioner's first petition on his claims of ineffective assistance by trial and direct appellate counsel. Judge Rittenband expressly rejected his actual innocence claim on the ground that his incriminating statement to the police made his claim meritless. Toccaline v. Commissioner of Correction, Superior Court, judicial district of Hartford, Docket No. CV-02-0814816S, 2002WL31304820, *1(Sep-tember 12, 2002) (Toccaline II), rev'd, 80 Conn.App. 792, 837 A.2d 849 (Toccaline III), cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).

         The respondent appealed from Judge Rittenband's decision granting the habeas petition on the petitioner's claims of ineffective assistance by trial and direct appellate counsel, but the petitioner did not cross appeal as to the denial of his actual innocence claim. This court agreed with the respondent, reversing Judge Ritten-band's decision on the petitioner's claims of ineffective assistance by trial and direct appellate counsel, and, accordingly, directed the habeas court on remand to dismiss the petition.[5] Toccaline III, supra, 80 Conn.App. 795, 820.

         In 2008, the petitioner filed his second petition for a writ of habeas corpus. He was represented on the petition by the Pattis Law Firm. In his amended second petition, he alleged: (1) ineffective assistance by his habeas trial counsel, Seifert, during his first habeas trial, and (2) actual innocence. On June 29, 2008, the habeas court, Schuman, J., granted the respondent's motion to dismiss the petitioner's actual innocence claim on the ground of res judicata. Toccaline v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-05-4000344-S, 2008 WL 2796997, *1 n.2 (June 25, 2008) (Toccaline IV), aff'd, 119 Conn.App. 510, 987 A.2d 1097 (Toccaline V), cert. denied, 295 Conn. 921, 991 A.2d 566 (2010). After conducting a habeas trial, Judge Schuman denied the petitioner's ineffective assistance of habeas trial counsel claim. Id., *1. The petitioner appealed from Judge Schuman's decision denying his ineffective assistance of habeas trial counsel claim but did not challenge on appeal the dismissal of his actual innocence claim. Toccaline V, supra, 512 n.1. After certification to appeal was granted, this court affirmed the judgment on appeal. Id., 511-12.

         In 2012, the petitioner filed his third petition for a writ a habeas corpus, which provides the basis of the present appeal. On March 10, 2015, represented by Attorney Andrew P. O'Shea, he filed a second amended third petition, alleging: (1) actual innocence, (2) violation of his right to due processas a result of the prosecutor's failure to disclose material, exculpatory evidence during his criminal trial, (3) violation of his right to due process as a result of the prosecutor's unknowing presentation of false testimony during his criminal trial, (4) ineffective assistance from his criminal trial counsel, Hauslaib, (5) ineffective assistance from his first habeas trial counsel, Seifert, during his first habeas trial (Tocca-line II), (6) ineffective assistance from his first habeas appellate counsel, Seifert, during his first habeas appeal (Toccaline III), and (7) ineffective assistance from his second habeas trial counsel, the Pattis Law Firm, during his second habeas trial (Toccaline IV). On April 24, 2015, the respondent filed his return, in which he denied the petitioner's claims and asserted special defenses. Thereafter, on May 28, 2015, he filed a motion to dismiss. On June 3, 2015, the petitioner filed a third amended petition, which is the operative petition in this appeal. On June 19, 2015, the petitioner objected to the respondent's motion to dismiss.

         On June 23, 2015, the habeas court, Fuger, J., held a hearing on the respondent's motion to dismiss. On August 21, 2015, the habeas court granted the respondent's motion to dismiss the petitioner's third amended petition. On August 25, 2015, the petitioner filed a petition for certification to appeal from the judgment, which the habeas court denied. This appeal followed. Additional facts will be set forth as necessary.

         ‘‘Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . .

         ‘‘To prove an abuse of discretion, the petitioner must demonstrate [1] that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; [2] that a court could resolve the issues [in a different manner]; or [3] that the questions are adequate to deserve encouragement to proceed further.'' (Internal quotation marks omitted.) Kearney v. Commissioner of Correction, 113 Conn.App. 223, 228, 965 A.2d 608 (2009); see also Simms v. Warden, supra, 230 Conn. 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991). ‘‘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 petitioner's . . . claims satisfy one or more of the three criteria . . . . Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.'' (Internal quotation marks omitted.) Mourning v. Commissioner of Correction, 169 Conn.App. 444, 448, 150 A.3d 1166 (2016), cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017).

         ‘‘The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition [on a motion to dismiss] are matters of law, subject to plenary review. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts in the record.'' (Internal quotation marks omitted.) Zollo v. Commissioner of Correction, 133 Conn.App. 266, 276, 35 A.3d 337, cert. granted on other grounds, 304 Conn. 910, 39 A.3d 1120 (2012) (appeal dismissed May 1, 2013).

         The petitioner claims that the habeas court improperly dismissed counts one, three, six, and seven of his third amended petition.[6] In determining whether the habeas court abused its discretion in denying the petition for certification to appeal, we must consider the merits of the petitioner's underlying claims to determine whether they satisfy one or more of the three Simms criteria set forth in Kearney and Lozada.

         I

         COUNT ONE

         The petitioner claims that the habeas court abused its discretion when it denied his petition for certification to appeal from the ...


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