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 ...