May 20, 2019
from Superior Court, Judicial District of Tolland, Vernon D.
[Copyrighted Material Omitted]
R. Gallucci, Fairfield, for the appellant (petitioner).
M. Ralls, assistant states attorney, with whom, on the
brief, were Gail P. Hardy, states attorney, and Jo Anne
Sulik, supervisory assistant states attorney, for the
Bright and Bear, Js.
Conn.App. 747] The petitioner, Rafael Fernandez, appeals from
the judgment of the habeas court dismissing his second
amended petition for a writ of habeas corpus, which alleged
that communications between the then self-represented
petitioner and the assistant states attorney during plea
negotiations, and the resulting implication of the assistant
states attorney as a potential witness at the petitioners
trial, required the disqualification of all of the states
attorneys offices and the Office of the Chief States
Attorney, and that the failure of the Office of the Chief
States Attorney to disqualify itself violated his right to a
fair trial. On appeal, the petitioner claims that the habeas
court improperly granted the motion to dismiss the petition
filed by the respondent, the Commissioner of Correction, on
the ground that the petition failed to state a claim upon
which habeas corpus relief can be granted. We disagree and,
accordingly, affirm the judgment of the habeas court.
following relevant facts and procedural history are set forth
in part in our Supreme Courts decision on the petitioners
direct appeal from his conviction. See [193 Conn.App. 748]
State v. Fernandez, 254 Conn. 637, 758 A.2d 842
(2000), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149
L.Ed.2d 153 (2001). "The [petitioner] was arrested on
September 14, 1995, and charged with felony murder in
violation of General Statutes § 53a-54c, murder in violation
of [General Statutes] § 53a-54a (a), first degree burglary in
violation of General Statutes § 53a-101 (a), and first degree
arson in violation of [General Statutes] § 53a-111 (a) (1).
In addition, the [petitioner] was charged with tampering with
physical evidence in violation of General Statutes § 53a-155
(a) (1). The [petitioner] received the assistance of the
office of the public defender from the time that he first
appeared before the court on September 15, 1995, until a
privately retained counsel, Attorney William T. Gerace, filed
an appearance on the [petitioner]s behalf on December 19,
1995." (Footnotes omitted.) Id., at 640, 758
A.2d 842. On May 15, 1996, Gerace made an oral motion to
withdraw from the case, which was granted by the court,
Espinosa, J. Id., at 640-41, 758 A.2d 842.
"Gerace indicated that the [petitioner] could retain new
counsel within two weeks ...." Id., at 641, 758
"Evidently, the [petitioner] did not retain new counsel
during the period between May 15 and May 29, 1996. Although
the record is unclear at this point, it appears that the
[petitioner] had asked the court if he could proceed pro se
because, on May 30, 1996, Judge Espinosa indicated that she
had not decided whether ... [the petitioner was going to] be
allowed to represent [himself] .... Judge Espinosa then
appointed a public defender who would serve as standby
counsel in the event that the [petitioner] was allowed to
proceed pro se or who would serve as lead counsel in the
event that the [petitioner] was not permitted to proceed pro
se. Judge Espinosa then stated that, in the meantime, the
public defender could talk to the [petitioner] about the
[petitioners] decision to proceed pro se. Judge Espinosa
also tried to impress upon the [petitioner] the seriousness
of his situation and the foolhardiness of proceeding pro se:
You are not a lawyer and you are [193 Conn.App. 749] going
to be going against an experienced lawyer on the other side
that wants to convict you and send you to jail for sixty
"On June 24, 1996, the matter of the [petitioners]
representation still was not finalized. Michael Isko, a
public defender, filed an appearance as standby counsel for
the [petitioner], and Judge Espinosa granted another
continuance in light of the [petitioners] request for more
time to retain private counsel.
"On July 10, 1996, however, the [petitioner] appeared in
court with Isko and stated that he wanted to represent
himself. At that time, the [petitioner] knowingly and
intelligently waived his right to counsel before the trial
court, Norko, J. Isko remained as standby counsel.
"Throughout the following months, the [petitioner] filed
various pro se motions, including a motion for access to a
law library on September 18, 1996, which Judge Barry granted
on October 2, 1996, subject to availability of
accommodations within the dep[artment] of [c]orrection.
October 30, 1996, the office of the attorney general appeared
on behalf of the commissioner of correction and moved to
vacate Judge Barrys October 2 order granting the
[petitioner] access to a law library. Arguments on that
motion were heard on October 30." (Footnotes omitted.)
Id., at 641-43, 758 A.2d 842.
"Before indicating how he would decide the motion to
vacate, Judge Barry again stressed to the [petitioner] the
seriousness of his decision to represent himself:
"The Court: Youre unable to retain your own attorney, I
presume, a private attorney? Is that right?
"[The Petitioner]: I do not want to retain. I can afford
it, but I ...