COMMISSIONER OF CORRECTION[*]
September 18, 2019
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Kwak, J.; judgment denying the petition, from
which the petitioner, on the granting of certification,
appealed to this court. Affirmed.
L. O'Brien, assigned counsel, with whom, on the brief,
was Christopher Y. Duby, assigned counsel, for the appellant
Timothy F. Costello, assistant state's attorney, with
whom, on the brief, were Patrick J. Griffin, state's
attorney, and Rebecca A. Barry, supervisory assistant
state's attorney, for the appellee (respondent).
DiPentima, C. J., and Bright and Lavery, Js.
petitioner, Michael D., appeals from the judgment of the
habeas court denying his petition for a writ of habeas
corpus. He claims that the habeas court erred in concluding
that he did not prove that his trial counsel provided
ineffective assistance of counsel by failing (1) to ensure
that a pornographic magazine was not admitted into evidence
by ensuring that the trial court conduct an in camera review
of the magazine and (2) to request a specific unanimity
instruction. We disagree and affirm the judgment of the
following facts-as gleaned from the record, by this court in
the petitioner's direct appeal from his conviction and by
the habeas court in its memorandum of decision-and procedural
history are relevant to our disposition of the appeal.
‘‘The [petitioner] and Ann P. were married in
December, 1999. At the time of their marriage, Ann P. had a
six year old daughter from a previous relationship, the
victim. From 1999 until 2005, the [petitioner] lived with
[Ann P.] and the victim in Meriden. The state alleged that
the [petitioner] sexually assaulted the victim on three
separate occasions between 2001 and 2003. The victim
testified that the assaults had taken place at intervals of
approximately one year . . . .
October, 2004, Ann P. became suspicious that the [petitioner]
was having an affair. Believing that she might find evidence
of her husband's suspected infidelity, Ann P. searched
the vehicle the [petitioner] regularly drove . . . . Secreted
in a small storage space behind the rear row of seats in the
vehicle she found a plastic bag. Upon examining the contents
of the bag, she discovered that it contained several articles
of her daughter's outgrown clothing . . . and two
pornographic magazines: an unnamed adult fetish magazine and
another magazine entitled ‘Barely Legal,' in which
young females were depicted in sexually suggestive settings
and poses. . . . At some point, she went through the bag and
discovered that some of her daughter's clothing felt
‘stiff' to the touch, which she attributed to the
possible presence of semen. Shortly after discovering the bag
and its contents, Ann P. filed for divorce. The divorce was
finalized in February, 2005.
the years following the divorce, Ann P. occasionally asked
her daughter ‘in a roundabout way' whether
‘anybody [had] ever done anything' inappropriate to
her. . . . She disclosed at that time that the [petitioner]
had sexually assaulted her.'' State v. Michael
D., 153 Conn.App. 296, 299-301, 101 A.3d 298, cert.
denied, 314 Conn. 951, 103 A.3d 978 (2014).
October 27, 2009, the petitioner was arrested and charged
with sexual assault in the first degree in violation of
General Statutes § 53a-70 (a) (2), risk of injury to a
child in violation of General Statutes § 53-21 (a) (1),
and risk of injury to a child in violation of § 53-21
(a) (2). He was represented by public defenders Joseph Lopez
and Tejas Bhatt. Prior to trial, in a memorandum of law in
support of a motion in limine filed on January 18, 2012,
defense counsel moved to preclude from evidence the
‘‘Barely Legal'' magazine (magazine) and
the shorts found in the petitioner's car on the grounds
that such items were ‘‘immaterial, irrelevant,
unreliable and, even if relevant, their admission would be
unfairly prejudicial and outweigh whatever minimal probative
value they possess.'' In support of the motion, trial
counsel presented the testimony of Dennis Gibeau, a clinical
psychologist specializing in the assessment and treatment of
sexual offenders. The trial court denied this motion, and
counsel orally renewed the motion. The court stood by its
prior ruling and admitted the magazine as a full exhibit at
petitioner was convicted, after a three day jury trial, of
both risk of injury to a child charges but was acquitted of
the sexual assault charge. He subsequently filed adirect
appeal, and this court affirmed the petitioner's
conviction. See State v. Michael D., supra,
153 Conn.App. 299.
12, 2017, the petitioner filed the operative amended habeas
petition, in which he alleged that his criminal trial
counsel, attorneys Lopez and Bhatt, had provided ineffective
assistance of counsel. Following a trial on December 11,
2017, the habeas court denied the petition in a written
memorandum of decision issued on April 9, 2018. The
petitioner then filed a petition for certification to appeal
the habeas court's decision on April 17, 2018, which the
court granted on April 19, 2018. This appeal followed.
petitioner claims that the habeas court erred in concluding
that he failed to prove ineffective assistance of counsel by
his trial attorneys. He contends that Lopez and Bhatt
rendered ineffective assistance by failing (1) to assert a
proper challenge to the admission of the magazine into
evidence by ensuring that the trial court conducted an in
camera review of the magazine and (2) to request a specific
unanimity instruction. We are not persuaded.
a habeas appeal, this court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous, but our review of whether the facts as found by
the habeas court constituted a violation of the
petitioner's constitutional right to effective assistance
of counsel is plenary.'' (Internal quotation marks
omitted.) Baillargeon v. Commissioner of Correction,
67 Conn.App. 716, 720, 789 A.2d 1046 (2002).
criminal defendant's right to the effective assistance of
counsel . . . is guaranteed by the sixth and fourteenth
amendments to the United States constitution and by article
first, § 8, of the Connecticut constitution. . . . To
succeed on a claim of ineffective assistance of counsel, a
habeas petitioner must satisfy the two-pronged test
articulated in Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).''
(Citations omitted.) Small v. Commissioner of
Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert.
denied sub nom. Small v. Lantz, 555 U.S. 975, 129
S.Ct. 481, 172 L.Ed.2d 336 (2008).
petitioner has the burden of establishing that
‘‘(1) counsel's representation fell below an
objective standard of reasonableness, and (2) counsel's
deficient performance prejudiced the defense because there
was a reasonable probability that the outcome of the
proceedings would have been different had it not been for the
deficient performance.'' (Emphasis omitted.)
Johnson v. Commissioner of Correction, 285 Conn.
556, 575, 941 A.2d 248 (2008).
‘‘[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.'' Strickland v. Washington, supra,
466 U.S. 686. ‘‘A court can find against a
petitioner, with respect to a claim of ineffective assistance
of counsel, on either the performance prong or the prejudice
prong . . . .'' (Internal quotation marks omitted.)
Brian S. v. Commissioner of Correction, 172
Conn.App. 535, 539, 160 A.3d 1110, cert. denied, 326 Conn.
904, 163 A.3d 1204 (2017).
first address the petitioner's claim that the habeas
court erred in concluding that he had failed to prove that
trial counsel had rendered ineffective assistance by failing
to challenge the admission of the magazine into evidence by
ensuring that the trial court conduct an in camera review of
the magazine. He contends that the attorneys were aware of
the impact the magazine could have on the jury. In
particular, the petitioner argues: ‘‘They also
knew that it needed to be understood to appreciate
how irrelevant and prejudicial it truly was. They failed to
take steps to make [the trial court] understand the magazine
. . . .'' (Emphasis in original.) Specifically, the
habeas court found that the petitioner's amended petition
claimed that trial counsel provided ineffective assistance by
‘‘failing to (1) file a written request for an in
camera review of the ‘Barely Legal' magazine found
in the petitioner's vehicle, (2) ask the trial court to
articulate whether it had made an in camera review of the
magazine, [and] (3) ask the trial court to reconsider its
ruling based on an in camera review of the magazine . . .
.'' The respondent, the Commissioner of Correction,
argues that the habeas court was correct in concluding that
the petitioner failed to prove that ‘‘his counsel
performed deficiently in their efforts to preclude the
magazine, where they filed a motion in limine and presented
testimony, evidence, and argument in support of the motion .
. . .'' We agree with the respondent.
satisfy the performance prong, a claimant must demonstrate
that counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed . . . by
the [s]ixth [a]mendment.'' (Internal quotation marks
omitted.) Ledbetter v. Commissioner of Correction,
275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub
nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct.
1368, 164 L.Ed.2d 77 (2006), quoting Strickland v.
Washington, supra, 466 U.S. 687. ‘‘It is not
enough for the petitioner to simply prove the underlying
facts that his attorney failed to take a certain action.
Rather, the petitioner must prove, by a preponderance of the
evidence, that his counsel's acts or omissions were so
serious that counsel was not functioning as the
‘counsel' guaranteed by the sixth amendment, and as
a result, he was deprived of a fair trial.''
Jones v. Commissioner of Correction, 169 Conn.App.
405, 415-16, 150 A.3d 757 (2016), cert. denied, 324 Conn.
909, 152 A.3d 1246 (2017). When assessing trial counsel's
performance, the habeas court is required to
‘‘indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance . . . .'' Strickland v.
Washington, supra, 689.
trial attorneys testified at the habeas trial and conceded
that neither conclusively knew whether the trial court ever
had reviewed the contents of the magazine. They also
testified, however, to the numerous steps they took in their
attempt to preclude the magazine from being admitted into
evidence. When Attorney Lopez asked the trial court to
reconsider its ruling, he specifically asked the court to
review the contents, and not just the cover, of the magazine
in balancing its potential prejudicial effect against its
probative value. The trial court responded that it would
review the magazine's contents and rule on the
petitioner's request for reconsideration the next
morning. Additionally, Attorney Bhatt orally
requested that the trial court articulate the relevancy of
the magazine as related to the petitioner's ...