January 3, 2019
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Oliver, J.; judgment denying the petition, from which
the petitioner, on the granting of certification, appealed to
this court. Affirmed.
T. Fetterman, for the appellant (petitioner).
B. Smoker, senior assistant state's attorney, with whom,
on the brief, were Patrick Griffin, state's attorney, and
Adrienne Russo, assistant state's attorney, for the
DiPentima, C.J., and Sheldon and Moll, Js.
the granting of his petition for certification to appeal, the
petitioner, Bernard Smalls, appeals from the judgment of the
habeas court denying his amended petition for a writ of
habeas corpus. The petitioner claims that the habeas court
erred in rejecting his claim that his prior habeas attorney
rendered ineffective assistance by failing effectively to
raise his claim that his attorney in his underlying criminal
trial rendered ineffective assistance by failing to explain
to him the implications of a plea offer that he rejected. We
affirm the judgment of the habeas court.
following undisputed procedural history is relevant to this
appeal. On December 7, 2001, the petitioner was sentenced to
a total effective sentence of fifty years incarceration after
being convicted of murder by use of a firearm in violation of
General Statutes § 53a-54a (a), risk of injury to a
child in violation of General Statutes (Rev. to 1999) §
53-21 (1), and criminal possession of a firearm in violation
of General Statutes (Rev. to 1999) § 53a-217 (a). His
sentence was enhanced by a guilty finding of commission of a
class A, B or C felony with a firearm in violation of General
Statutes § 53-202k. The petitioner's conviction was
affirmed on direct appeal. See State v. Smalls, 78
Conn.App. 535, 548, 827 A.2d 784, cert. denied, 266 Conn.
931, 837 A.2d 806 (2003).
petitioner filed his first habeas petition in 2004. On July
31, 2007, the petitioner, who was then represented by
Attorney Cheryl A. Juniewic, filed an amended petition,
wherein he alleged, inter alia,  that he was denied the
effective assistance of his trial counsel, Michael Moscowitz.
The petitioner claimed, inter alia, that Moscowitz
‘‘did not adequately consult with or advise [the]
petitioner concerning the status of any plea negotiations,
any potential plea agreements or the consequences of
accepting a plea agreement as opposed to the consequences of
going to trial before a jury.'' The habeas court
rejected the petitioner's claim, finding that
‘‘the twenty-five year offer of pleading to
murder was in fact conveyed to [the petitioner], and he
rejected that offer.'' This court dismissed the
petitioner's appeal from the judgment of the habeas
court. See Smalls v. Commissioner of Correction, 146
Conn.App. 909, 78 A.3d 307 (2013), cert. denied, 311 Conn.
931, 87 A.3d 579 (2014).
March 12, 2012, the petitioner commenced this habeas action,
claiming ineffective assistance by Juniewic in his prior
habeas action. He filed a second amended petition on January
20, 2017, wherein he claimed that Juniewic rendered
ineffective assistance by, inter alia, failing effectively to
raise the claim that Moscowitz was ineffective for failing to
fully explain the plea offer to him.
two day trial, the habeas court rendered a decision rejecting
the petitioner's claim that Juniewic rendered ineffective
assistance to him in his previous habeas action. The habeas
court concluded that the petitioner failed to prove that
Juniewic's representation of him was deficient or
prejudicial. The court explained its ruling as follows:
‘‘In the instant matter, all of the credible
evidence adduced at the habeas trial clearly demonstrates
that the petitioner would not have accepted any plea offer
for a murder charge from the prosecuting authority. Attorney
Moscowitz testified credibly at the habeas trial that he
reviewed with the petitioner the nature and elements of the
charges against him, the minimum and maximum sentences he
could receive if convicted, and what the state would have to
prove in order to convict the petitioner of the charges.
Attorney Moscowitz also testified that he presented a
twenty-five year offer to the petitioner and advised him to
take it, but the petitioner refused to plead guilty unless
the [principal charge was] reduced from murder to
manslaughter, which [the state's attorney] was unwilling
to do. The petitioner also testified at the habeas trial that
he did not want to plead guilty to a murder charge.
Furthermore, [the state's attorney] testified thathe was
responsible for all decisions regarding the charges the
petitioner faced, and he was not willing to reduce the murder
charge in this case. As a result, the court finds that
Attorney Moscowitz properly conveyed the information
regarding the plea offer to the petitioner, and therefore his
conduct did not constitute deficient performance.
Furthermore, it is not reasonably probable that the
petitioner was going to accept the plea offer given the fact
that he admitted that he did not want to plead [guilty] to a
murder charge. As a result, the petitioner has failed to
sustain his burden of establishing that Attorney Moscowitz
was ineffective for failing to properly explain a plea offer,
and therefore his claim of ineffective assistance against
Attorney Juniewic must be denied.'' The habeas court
granted the petitioner's petition for certification to
appeal, and this appeal followed.
petitioner claims that the habeas court erred in rejecting
his claim that Juniewic rendered ineffective assistance in
his first habeas action. Specifically, the petitioner claims
that Juniewic rendered ineffective assistance by failing
effectively to argue that Moscowitz's representation of
him was ineffective because he failed to explain that the
twenty-five year plea offer would have resolved all charges
that were then pending against him. We disagree.
use of a habeas petition to raise an ineffective assistance
of habeas counsel claim, commonly referred to as a habeas on
a habeas, was approved by our Supreme Court in Lozada v.
Warden, 223 Conn. 834, 613 A.2d 818 (1992). In
Lozada, the court determined that the statutory
right to habeas counsel for indigent petitioners provided in
General Statutes § 51-296 (a) includes an implied
requirement that such counsel be effective, and it held that
the appropriate vehicle to challenge the effectiveness of
habeas counsel is through a habeas petition. . . . In
Lozada, the court explained that [t]o succeed in his
bid for a writ of habeas corpus, the petitioner must prove
both (1) that his appointed habeas counsel was ineffective,
and (2) that his trial counsel was ineffective. [Id., ] 842.
As to each of those inquiries, the petitioner is required to
satisfy the familiar two-pronged test set forth in
Strickland v. Washington, [466 U.S. 668');">466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. First, the [petitioner]
must show that counsel's performance was deficient. . . .
Second, the [petitioner] must show that the deficient
performance prejudiced the defense. . . . Unless a
[petitioner] makes both showings, it cannot be said that ...