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Holbrook v. Commissioner of Correction

Court of Appeals of Connecticut

April 2, 2019

MICHAEL HOLBROOK
v.
COMMISSIONER OF CORRECTION

          Argued January 10, 2019

         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, Hon. John F. Mulcahy, Jr., judge trial referee; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Vishal K. Garg, assigned counsel, for the appellant (petitioner).

          C. Robert Satti, Jr., supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Emily D. Trudeau, assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Alvord and Flynn, Js.

          OPINION

          FLYNN, J.

         The petitioner, Michael Holbrook, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he failed to prove (1) ineffective assistance of his prior habeas counsel, and (2) that the state suppressed exculpatory evidence at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).[1] We affirm the judgment of the habeas court.

         The following facts and procedural history surrounding the petitioner's conviction were set forth by this court in our decision on direct appeal affirming the petitioner's conviction: ‘‘John Fred Dean was shot and killed inside a Bridgeport nightclub known as the Factory. The state charged the [petitioner] . . . with Dean's murder. In 2003, the [petitioner's] first jury trial ended in a mistrial. After a second trial, in 2004, the jury found the [petitioner] not guilty of murder but found him guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a). The jury also made a finding that the [petitioner] had committed a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The trial court rendered judgment in accordance with the verdict and sentenced the [petitioner] to a total effective term of thirty-five years incarceration.'' State v. Holbrook, 97 Conn.App. 490, 492, 906 A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006).

         In June, 2007, the petitioner filed a petition for a writ of habeas corpus, which was denied by the court, T. Santos, J., following a trial. On appeal, this court affirmed the denial of the petition. Holbrook v. Commissioner of Correction, 149 Conn.App. 901, 87 A.3d 631, cert. denied, 311 Conn. 952, 91 A.3d 464 (2014).

         In June, 2014, the petitioner, who was then self-represented, filed a petition for a writ of habeas corpus. Thereafter, represented by counsel, the petitioner filed an amended petition alleging ineffective assistance of his trial counsel, Attorney Frank J. Riccio, for declining to call Cherise Thomas as a witness; ineffective assistance of prior habeas counsel, Attorney Michael Day, for failing to pursue a claim that trial counsel was ineffective for failing to call Thomas as a witness; and the failure of the state to produce exculpatory information to the petitioner. The court, Hon. John F. Mulcahy, Jr., judge trial referee, denied the petition. The court thereafter granted the petition for certification to appeal. This appeal followed.

         I

         The petitioner claims that the court erred in concluding that Day did not render ineffective assistance for declining in the prior habeas proceeding to pursue a claim that Riccio was ineffective for failing to call Thomas as a witness in the underlying criminal trial. We do not agree.

         ‘‘It is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . As enunciated in Strickland v.Washington, [466 U.S. 668');">466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] . . . [a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . An ineffective assistance of counsel claim will succeed only if both ...


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