May 20, 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 dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
R. Gallucci, for the appellant (petitioner).
M. Ralls, assistant state's attorney, with whom, on the
brief, were Gail P. Hardy, state's attorney, and Jo Anne
Sulik, supervisory assistant state's attorney, for the
Alvord, Bright and Bear, Js.
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 state's attorney during plea negotiations, and
the resulting implication of the assistant state's
attorney as a potential witness at the petitioner's
trial, required the disqualification of all of the
state's attorney's offices and the Office of the
Chief State's Attorney, and that the failure of the
Office of the Chief State's 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 Court's decision on the
petitioner's direct appeal from his conviction. See
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., 640. On
May 15, 1996, Gerace made an oral motion to withdraw from the
case, which was granted by the court, Espinosa, J.
Id., 640-41. ‘‘Ger-ace indicated that
the [petitioner] could retain new counsel within two weeks .
. . .'' Id., 641.
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
[petitioner's] 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 going to be going
against an experienced lawyer on the other side that wants to
convict you and send you to jail for sixty years.'
June 24, 1996, the matter of the [petitioner's]
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 [petitioner's] request for
more time to retain private counsel.
July 10, 1996, however, the [petitioner] appeared in court
with Isko and stated thathewanted 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.
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 Barry's October 2 order granting the
[petitioner] access to a law library. Arguments on that
motion were heard on October 30.'' (Footnotes
omitted.) Id., 641-43.
indicating how he would decide the motion to vacate, Judge
Barry again stressed to the [petitioner] the seriousness of
his decision to represent himself:
Court: You're unable to retain your own attorney, I
presume, a private attorney? Is that right?
Petitioner]: I do not want to retain. I can afford it, but I
do not want to retain him.
Court: And you don't want the services of a public
defender . . . on a full-time basis?
[petitioner] indicated that he did not want a public
defender, and that he did not wish to receive advice from
standby counsel. Judge Barry then inquired of the
[petitioner]: It may be that your only chance is by retaining
an attorney or by having access to the courts through the
public defender's office . . . . Do you understand? The
[petitioner] replied: Yes.
November 25 and December 5, 1996, the [petitioner] was
brought to court to review the state's file. At this
point, the record is unclear again. Evidently, the
[petitioner's] pro se status had changed because Isko was
appointed as the [petitioner's] public defender on
January 8, 1997 and filed an appearance in lieu of the
[petitioner] on January 15, 1997.
February 4, 1997, the [petitioner] filed another motion to
return to pro se status, which was granted by Judge Espinosa
on February 5, and Isko again was appointed standby counsel.
Jury selection began on February 10, before Judge Norko.
After several of his pro se motions had been denied, the
[petitioner], on February 14, before Judge Norko, requested
to change his pro se status, and Isko agreed to file an
appearance as full counsel. On February 27, Judge Barry
granted the commissioner's motion to vacate the previous
order granting the [petitioner] access to a law library.
March 7, 1997, Isko asked for a continuance, claiming that he
lacked sufficient time to prepare for trial in light of his
relatively recent change in status to full counsel and the
somewhat technical nature of the evidence. To accommodate
Isko, Judge Norko ordered the office of the public defender
to provide Isko with cocounsel and continued the case until
March 14, 1997. On March 14, however, Judge Norko declared a
mistrial, relying on the fact that the state's attorney
could be called as a witness because of various
communications with the [petitioner] while the [petitioner]
was proceeding pro se.'' (Footnote omitted; internal
quotation marks omitted.) Id., 644-45.
footnote, our Supreme Court provided: ‘‘Judge
Norko stated: ‘[B]ased upon [Isko's] reading of the
file and research, the [petitioner] is changing [his]
defense, which implicates the present state's attorney as
a possible witness for the state . . . . With that in mind,
the court will declare a mistrial in this particular case.
The court will also note ...