Fernandez v. Commissioner of Correction

         Argued May 20, 2019

         Appeal from Superior Court, Judicial District of Tolland, Vernon D. Oliver, J.

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[Copyrighted Material Omitted]

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          Dante R. Gallucci, Fairfield, 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.

          OPINION

         ALVORD, J.

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          [193 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 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 [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 A.2d 842.

          "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 [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 years.’

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          "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 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.’

         "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., 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: 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 ...