EDWARD M.
v.
COMMISSIONER OF CORRECTION[*]
Argued
October 10, 2018
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, Graham, J.; judgment granting the petition, from which
the respondent, on the granting of certification, appealed to
this court. Affirmed.
Melissa Patterson, assistant state's attorney, with whom,
on the brief, were Gail P. Hardy, state's attorney,
Angela Macchiarulo, senior assistant state's attorney,
and Michael Proto, assistant state's attorney, for the
appellant (respondent).
Jennifer B. Smith, assigned counsel, for the appellee
(petitioner).
DiPentima, C. J., and Lavine and Pellegrino, Js.
OPINION
LAVINE, J.
This
appeal arises out of the habeas court's granting of the
second petition for a writ of habeas corpus filed by the
petitioner, Edward M. The respondent, the Commissioner of
Correction, appeals from the judgment of the habeas court,
claiming that the court improperly (1) used the
petitioner's hospital records for a purpose other than
for which they were admitted[1] and (2) concluded that the
petitioner's prior habeas counsel was ineffective and
caused prejudice to the petitioner by failing to allege the
ineffective assistance of the petitioner's criminal trial
counsel, who failed to present evidence regarding the
petitioner's circumcised penis. We disagree and,
therefore, affirm the judgment of the habeas court.
The
following facts and procedural history, as set forth in the
habeas court's memorandum of decision, are relevant to
our resolution of the issues on appeal. The petitioner was
arrested in the underlying criminal matter in April, 2007,
and charged with five counts of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (2)
and two counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (2) for crimes he was
alleged to have committed in 2004, 2005, and 2006. Attorney
John O'Brien represented the petitioner in his 2008
criminal trial.
The
habeas court found: ‘‘The case arose from sexual
abuse allegations that the complainant daughter, J, made
against her biological father, [the petitioner]. There was no
physical evidence of sexual abuse and, as the state admitted
in closing argument at the criminal trial, the case was a
contest of credibility between [the petitioner] and his
daughter.''
In a
forensic interview, J described the petitioner's penis as
having skin on it and wrinkles. At trial, J and her mother
testified that the petitioner was uncircumcised. The
petitioner, as well as A, his girlfriend at the time of the
alleged abuse, testified that he was circumcised at the time
of the alleged assaults. O'Brien did not offer the
petitioner's medical records, testimony from a neutral
third party or medical witness, or photographs of the
petitioner's penis into evidence.
The
habeas court further stated: ‘‘During the first
day of deliberations, the jury sent out a note, [asking]:
‘Why wasn't there medical certification of his
[circumcision] . . . obtained for evidence.' The court
instructed the jury that they needed to decide the case based
on the evidence presented by counsel. On the third day of
deliberations . . . the jury [found the petitioner guilty] of
all seven counts.'' The trial court sentenced the
petitioner to a total effective term of fifty years
incarceration followed by fifteen years of special parole.
This court upheld the conviction in State v.
Edward M., 135 Conn.App. 402, 41 A.3d 1165, cert.
denied, 305 Conn. 914, 46 A.3d 172 (2012).
In
2009, the self-represented petitioner filed a petition for a
writ of habeas corpus. In that habeas action, the
petitioner's appointed counsel, Christopher Duby, filed
an amended petition but did not allege that O'Brien
rendered ineffective assistance due to his failure to offer
evidence that the petitioner was circumcised. The petition
was denied. The petitioner filed and then withdrew an appeal
of that judgment. In 2014, the petitioner initiated the
present habeas proceeding. In 2017, the petitioner filed an
amended habeas petition, alleging that Duby rendered
ineffective assistance as habeas counsel by neglecting to
allege that O'Brien rendered ineffective assistance at
the criminal trial by failing to have the petitioner examined
by a physician or otherwise present evidence regarding the
petitioner's circumcision. The habeas court granted the
amended petition, and the respondent, on the granting of
certification, appealed. Additional facts will be set forth
as necessary.
‘‘Our
standard of review in a habeas corpus proceeding challenging
the effective assistance of [prior habeas] counsel is well
settled. Although a habeas court's findings of fact are
reviewed under the clearly erroneous standard of review . . .
[w]hether the representation a [petitioner] received at [a
prior habeas proceeding] was constitutionally inadequate is a
mixed question of law and fact. . . . As such, that question
requires plenary review by this court unfettered by the
clearly erroneous standard.'' (Internal quotation
marks omitted.) Toccaline v.Commissioner of
Correction, 80 ...