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Fernandez v. Commissioner of Correction

Court of Appeals of Connecticut

October 22, 2019


          Argued May 20, 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, Oliver, J.; judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Dante R. Gallucci, for the appellant (petitioner).

          James 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 appellee (respondent).

          Alvord, Bright and Bear, Js.


          ALVORD, J.

         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 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.

         The 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.

         ‘‘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 [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.'

         ‘‘On 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.

         ‘‘On 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.

         ‘‘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.'

         ‘‘On 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.

         ‘‘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: You're 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 do not want to retain him.

         ‘‘The Court: And you don't want the services of a public defender . . . on a full-time basis?

         ‘‘The [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.

         ‘‘On 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.

         ‘‘On 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.

         ‘‘On 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.''[1] (Footnote omitted; internal quotation marks omitted.) Id., 644-45.

         In a 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 ...

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