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KACEY LEWIS v. COMMISSIONER OF CORRECTION
(AC 43381)
Suarez, Clark and Pellegrino, Js.
Syllabus
The self-represented petitioner, who had been convicted of the crimes of
kidnapping in the first degree, assault in the third degree, interfering
with an officer, and possession of narcotics, sought a writ of habeas
corpus. His amended petition set forth seven grounds of alleged error.
Grounds I through VI alleged that, at his criminal trial, his constitutional
rights to a fair trial, to present a defense, to represent himself, and to
counsel were violated and that the prosecutor violated the disclosure
requirements of Brady v. Maryland (373 U.S. 83). Ground VII alleged
that the petitioner’s appellate counsel, D, provided ineffective assistance
during his direct appeal by raising only one claim, namely, that the
evidence adduced at trial was insufficient to support the petitioner’s
conviction of kidnapping in the first degree under State v. Salamon (287
Conn. 509). The habeas court dismissed grounds I through VI of the
amended petition, concluding that the petitioner’s claims were procedur-
ally defaulted because he failed to present any evidence, other than his
own self-serving testimony, to show cause for failing to raise the claims
on direct appeal and to establish that he was prejudiced by the alleged
violations of his constitutional rights. The habeas court denied ground
VII of the amended petition, concluding that the petitioner failed to
establish that D’s performance was deficient or that the petitioner suf-
fered any prejudice as a result of D’s representation. The petitioner filed
a petition for certification to appeal from the judgment of the habeas
court with respect only to the issue of whether his constitutional right
to the effective assistance of appellate counsel was violated. The habeas
court denied the petition, and the petitioner appealed to this court. Held:
1. This court declined to review the petitioner’s claims that the habeas court
improperly denied his motion to sequester D, struck his motion to
reconstruct and correct the record, and denied his application to issue
a subpoena: an appellate court can review only the merits of the claims
specifically set forth in the petition for certification to appeal, and,
because the petitioner failed to include such claims in his petition, the
habeas court did not have the opportunity to consider such issues in
the context of a petition for certification to appeal; accordingly, such
claims were not properly before this court and were not reviewable.
2. The habeas court did not abuse its discretion by denying the petition for
certification to appeal its dismissal of grounds I through VI of the
amended petition and its denial of ground VII of the amended petition
because the petitioner failed to raise a claim that met any part of the
test for certification to appeal from the denial of his petition:
a. The habeas court properly dismissed the petitioner’s claims alleged in
grounds I through VI of the amended petition on the ground of procedural
default: the petitioner failed to meet his burden of demonstrating that
he had satisfied the cause and prejudice standard required to raise such
claims in a collateral proceeding because, contrary to his assertions, he
provided no specific evidence, other than his own self-serving testimony,
to support his claim that he introduced sufficient evidence at the habeas
trial to rebut the presumption that his counsel rendered adequate assis-
tance and made all significant decisions in the exercise of reasonable
professional judgment, as he did not call D as a witness to explain why
he raised only a claim of insufficient evidence in the petitioner’s criminal
appeal nor did he present any expert testimony or other competent
evidence to demonstrate that D’s representation was deficient as a result
of his failure to raise the claims alleged in grounds I through VI of the
petitioner’s amended petition.
b. The habeas court did not err by denying ground VII of the petitioner’s
amended petition: the petitioner failed to adequately brief his claim
because, although his principal appellate brief contained a litany of errors
that D allegedly committed with respect to the petitioner’s criminal
appeal, he did not provide any legal analysis regarding how the habeas
court erred with respect to those claims, and his self-represented status
did not excuse such failure; moreover, the petitioner’s attempt to remedy
his failure by providing supplemental information in his reply brief was
inadequate because such arguments could not be raised for the first time
in a reply brief; furthermore, the petitioner failed to demonstrate that
the habeas court’s finding that he failed to provide evidence, beyond
his own self-serving, conclusory testimony, that D provided ineffective
assistance was clearly erroneous, as the petitioner failed to call D as a
witness or to present expert testimony to demonstrate that D’s represen-
tation fell below an objective standard of reasonableness.
Argued October 20, 2021—officially released March 8, 2022
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, Newson, J.; judgment dismissing
in part and denying in part the petition; thereafter, the
court denied the petition for certification to appeal, and
the petitioner appealed to this court. Appeal dismissed.
Kacey Lewis, self-represented, the appellant (peti-
tioner).
Margaret Gaffney Radionovas, special deputy assis-
tant state’s attorney, with whom, on the brief, were
Maureen Platt, state’s attorney, and Jo Anne Sulik and
David A. Gulick, senior assistant state’s attorneys, for
the appellee (respondent).
Opinion
CLARK, J. The self-represented petitioner, Kacey
Lewis, appeals following the denial of his petition for
certification to appeal from the judgment of the habeas
court dismissing in part and denying in part his amended
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the habeas court abused its dis-
cretion by (1) denying his motion to sequester a subpoe-
naed witness, (2) striking his motion to reconstruct and
correct the record, (3) denying his request to issue a
subpoena, (4) dismissing in part and denying in part
his amended petition for a writ of habeas corpus, and
(5) denying his petition for certification to appeal. We
dismiss the appeal.
The following facts are relevant to our resolution
of the petitioner’s appeal. The petitioner represented
himself at the criminal trial.1 On December 11, 2009, a
jury found him guilty of kidnapping in the first degree
in violation of General Statutes § 53a-92 (a) (2) (A),
assault in the third degree in violation of General Stat-
utes § 53a-61 (a) (1), interfering with an officer in viola-
tion of General Statutes § 53a-167a (a), and possession
of narcotics in violation of General Statutes § 21a-279
(a).2 See State v. Lewis, 148 Conn. App. 511, 512, 84
A.3d 1238, cert. denied, 311 Conn. 940, 89 A.3d 349
(2014), cert. denied, 574 U.S. 854, 135 S. Ct. 132, 190 L.
Ed. 2d 101 (2014). The petitioner’s convictions arose out
of events that took place in Waterbury on the evening
of July 20, 2009. Id. At that time, the petitioner and his
then girlfriend, Alana Thompson (victim), were driving
‘‘around the streets of Waterbury trying to sell heroin.’’
Id. Later in the evening, the two had a disagreement,
and the petitioner assaulted and kidnapped the victim
in an attempt to force her into his vehicle. Id., 513–14.
The petitioner released the victim when two plain-
clothes police officers arrived at the scene. Id., 514. As
a result of his convictions, the trial court, Schuman,
J., sentenced the petitioner to a total effective sentence
of twenty-five years of incarceration, execution sus-
pended after fifteen years, and five years of proba-
tion. Id.
The petitioner appealed from the judgment of convic-
tion, and Attorney Christopher Duby was appointed to
represent him. On direct appeal, Duby raised one claim,
to wit: the evidence adduced at trial was insufficient
to support the petitioner’s conviction of kidnapping in
the first degree under State v. Salamon, 287 Conn. 509,
949 A.2d 1092 (2008). See State v. Lewis, supra, 148
Conn. App. 512. This court affirmed the judgment of
conviction; id., 517; and our Supreme Court denied certi-
fication to appeal. State v. Lewis, 311 Conn. 940, 89
A.3d 349 (2014), cert. denied, 574 U.S. 854, 135 S. Ct.
132, 190 L. Ed. 2d 101 (2014).
On December 24, 2014, the self-represented petitioner
filed a petition for a writ of habeas corpus. On Septem-
ber 10, 2015, he filed a 100 page document that the
habeas court referred to as an amended petition for a
writ of habeas corpus (amended petition). The amended
petition contained seven claims denominated as
grounds I through VII; each ground contained subparts.
Grounds I through VI alleged constitutional claims of
juridical error and a violation of Brady v. Maryland,
373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
that allegedly occurred at the criminal trial.3 Ground
VII alleged that Duby’s representation on the criminal
appeal was ineffective and that such representation
prejudiced the petitioner.4
On October 4, 2016, the respondent, the Commis-
sioner of Correction, filed a return in which he denied
the petitioner’s claims and pleaded numerous affirma-
tive defenses, including that the petitioner’s claims, with
the exception of the ineffective assistance of appellate
counsel claim, were in procedural default. On February
23, 2017, the petitioner responded to the allegations of
procedural default by amending grounds I though VI.
He also denied that his claims were in procedural
default and pleaded allegations to establish cause and
prejudice.
The petitioner represented himself at the habeas trial
that was held on August 22, 2018, and February 28,
2019. The petitioner testified on his own behalf but
called no other witnesses. The habeas court, Newson,
J., issued a memorandum of decision on May 17, 2019.
In its decision, the court first noted that the respondent
had raised the affirmative defense of procedural default
to many of the petitioner’s claims and that Connecticut
has adopted the procedural default standard used by
the federal courts. ‘‘Under this standard, the petitioner
must demonstrate good cause for his failure to raise a
claim at trial or on direct appeal and actual prejudice
resulting from the impropriety claimed in the habeas
petition. . . . [T]he cause and prejudice test is
designed to prevent full review of issues in habeas cor-
pus proceedings that counsel did not raise at trial or
on appeal for reasons of tactics, inadvertence or igno-
rance . . . . The cause and prejudice requirement is
not jurisdictional in nature, but rather a prudential limi-
tation on the right to raise constitutional claims in col-
lateral proceedings. . . . The prudential considera-
tions underlying the procedural default doctrine are
principally intended to vindicate two concerns: federal-
ism/comity and finality of judgments.’’ (Citations omit-
ted; internal quotation marks omitted.) Hinds v. Com-
missioner of Correction, 321 Conn. 56, 71, 136 A.3d
596 (2016).
The habeas court found that in grounds I and II of
the amended petition, the petitioner alleged certain
defects in the rulings of the trial court, including that
he was deprived of a fair trial because the court denied
his requests for the appointment of an investigator and
an expert witness and denied him a writing instrument
so that he could take notes during the trial. The peti-
tioner also alleged that several of the trial court’s evi-
dentiary rulings interfered with his right to present a
defense, such as prohibiting him from introducing the
victim’s signed statement while he was cross-examining
her and failing to hold a hearing to investigate the peti-
tioner’s claims that judicial marshals allegedly had con-
fiscated his defense strategy materials.
The court stated that the petitioner’s claims of inter-
ference with his right to a fair trial, to confront wit-
nesses, and to present a defense were of constitutional
magnitude; see State v. Holley, 327 Conn. 576, 593, 175
A.3d 514 (2018) (rights to confront witnesses against
defendant and to present defense are guaranteed by
sixth amendment to United States constitution); and
that they could have been, and should have been, raised
on direct appeal.
The court also found that, other than his own self-
serving and conclusory testimony, the plaintiff offered
no evidence to explain why those constitutional claims
were not raised on direct appeal or to establish that he
had been prejudiced in any way. Although Duby was
in the courtroom during the habeas trial, the petitioner
did not call him as a witness. The court stated that,
although it is not necessary in every case to call prior
counsel as a witness to establish ineffective representa-
tion, some evidence of counsel’s decision-making pro-
cess is usually required to overcome the presumption
that counsel’s decisions were made on the basis of
sound legal strategy. See Boyd v. Commissioner of
Correction, 130 Conn. App. 291, 298, 21 A.3d 969 (‘‘[i]t
is well established that [a] reviewing court must view
counsel’s conduct with a strong presumption that it
falls within the wide range of reasonable professional
assistance and that a tactic that appears ineffective in
hindsight may have been sound trial strategy at the
time’’ (internal quotation marks omitted)), cert. denied,
302 Conn. 926, 28 A.3d 337 (2011).
With respect to ground III of the amended petition,
the court found that the petitioner alleged that his right
to self-representation was violated when he was
excluded from a bench conference involving the prose-
cutor and standby counsel, that standby counsel inter-
fered in his rights to self-representation and to present
a defense, and that judicial marshals confiscated his
defense strategy materials. The court stated that,
because the right to self-representation is one of consti-
tutional magnitude, the petitioner’s claims should have
been raised before the trial court and on direct appeal.
The court, quoting State v. Webb, 238 Conn. 389, 427,
680 A.2d 147 (1996), noted that ‘‘[t]he right to appear
[as a self-represented party] exists to affirm the dignity
and autonomy of the accused and to allow the presenta-
tion of what may, at least occasionally, be the accused’s
best possible defense. . . . It is also consistent with the
ideal of due process as an expression of fundamental
fairness. To force a lawyer on a defendant can only
lead him to believe that the law contrives against him.’’
(Citation omitted; internal quotation marks omitted.)
The court concluded that the petitioner had failed to
present any evidence, other than his own self-serving
testimony, to show cause for failing to raise grounds I,
II, and III on direct appeal and to establish that he was
prejudiced by the alleged violations of his constitu-
tional rights.5
The habeas court found that ground IV of the amended
petition alleged that the state violated the petitioner’s
rights to due process and a fair trial by withholding
certain photographs of the victim and by failing to dis-
close timely the criminal records of several witnesses
who testified at trial in violation of Brady v. Maryland,
supra, 373 U.S. 83. The court noted that, as a rule,
due process requires the state to disclose exculpatory
information to a defendant in a timely manner. See
State v. Pollitt, 199 Conn. 399, 414, 508 A.2d 1 (1986)
(under Brady, evidence required to be disclosed must
be disclosed in time for effective use at trial; delayed
disclosure of exculpatory material by prosecution, how-
ever, is not per se reversible error). The habeas court
again found that the petitioner had failed to present
any evidence to justify ‘‘ ‘cause’ ’’ for not having raised
the Brady claims on direct appeal and to overcome the
presumption that Duby made a reasoned decision not
to pursue a Brady claim on direct appeal. See Boyd v.
Commissioner of Correction, supra, 130 Conn. App.
297–98. The petitioner also failed to present any evi-
dence of prejudice. See Hinds v. Commissioner of Cor-
rection, supra, 321 Conn. 71 (noting our Supreme
Court’s adoption of cause and prejudice standard).
Ground V of the amended petition alleged that, during
the course of the criminal proceedings, several judges
failed to canvass the petitioner pursuant to Practice
Book § 44-36 regarding his decision to represent himself.
The petitioner specifically claimed that no court can-
vassed him to ensure that he was aware that he faced
a ten year mandatory, minimum prison sentence if he
were convicted of kidnapping in the first degree.7 The
habeas court noted that the claim is one of constitu-
tional magnitude; see State v. Braswell, 318 Conn. 815,
828–29, 123 A.3d 835 (2015) (waiver of right to counsel
must be knowing and voluntary); and that the petitioner
did not raise it at trial or on direct appeal. The court
again found that the petitioner had failed to present
any evidence to justify cause for not having raised those
claims on direct appeal or to overcome the presumption
that not pursuing them on direct appeal was the result
of Duby’s reasoned legal decision. The petitioner also
failed to present any evidence to support his claim that
he was prejudiced by Duby’s representation.
In ground VI, the petitioner alleged that his right to
self-representation was impeded when the court failed
to provide him with adequate time to prepare for trial.
The habeas court once more found that the petitioner
had failed to present any evidence as to the cause for
his failure to raise this claim on direct appeal. The court
therefore concluded that the claim was procedurally
defaulted.
In summary, the habeas court dismissed grounds I
through VI of the amended petition because the claims
were procedurally defaulted. See Hinds v. Commis-
sioner of Correction, supra, 321 Conn. 71 (describing
requirements of cause and prejudice standard).
In ground VII of the amended petition, the petitioner
alleged that Duby’s representation was ineffective
because, on direct appeal, he failed to raise any of the
claims alleged in grounds I through VI of the amended
petition. The habeas court determined that the claim
failed for lack of evidence. The petitioner was the only
witness to testify in this matter. Duby was present in the
courtroom on the second day of trial, but the petitioner
chose not to call him as a witness.
The court set forth the legal standard applicable to
claims of ineffective assistance of appellate counsel.
‘‘[W]hen a petitioner is claiming ineffective assistance
of appellate counsel, he must establish that there is a
reasonable probability that but for appellate counsel’s
error, [he] would have prevailed in his direct appeal.’’
(Internal quotation marks omitted.) Davis v. Commis-
sioner of Correction, 117 Conn. App. 737, 740, 980 A.2d
933 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062
(2010). Moreover, it is the petitioner’s obligation to pres-
ent evidence to support a claim of ineffective assistance
of appellate counsel. See Nieves v. Commissioner of
Correction, 51 Conn. App. 615, 622–24, 724 A.2d 508,
cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).
‘‘[W]hen analyzing a claim of ineffective assistance,
counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exer-
cise of reasonable professional judgment. . . . As with
any refutable presumption, the petitioner may rebut
the presumption on adequate proof of sufficient facts
indicating a less than competent performance by coun-
sel.’’ (Citation omitted; internal quotation marks omit-
ted.) Sanders v. Commissioner of Correction, 83 Conn.
App. 543, 551, 851 A.2d 313, cert. denied, 271 Conn. 914,
859 A.2d 569 (2004).
The court found that the only evidence the petitioner
presented with respect to Duby’s performance was his
own self-serving conclusions that certain issues should
have been raised on direct appeal. The petitioner
offered no evidence, however, with respect to the strate-
gic basis for Duby’s decisions or the probability that
any of the issues alleged would have changed the out-
come of his direct appeal. The court concluded that
ground VII failed because the petitioner failed to estab-
lish that Duby’s performance was deficient or that the
petitioner suffered any prejudice as a result of Duby’s
representation. Consequently, the court denied ground
VII of the amended petition.
On the basis of its conclusions regarding the allega-
tions of the amended petition, the court rendered judg-
ment dismissing in part and denying in part the amended
petition.
On May 21, 2019, the petitioner filed a petition for
certification to appeal from the judgment of the habeas
court as to the following legal issues: ‘‘Whether the
petitioner’s constitutional right to the effective assis-
tance of appellate counsel was violated; and . . .
[s]uch other errors as are revealed upon a review of
the transcripts and record.’’8 The habeas court denied
the petition for certification to appeal on May 22, 2019.
On May 31, 2019, the petitioner filed an application
for waiver of fees, costs and expenses.9 On June 20,
2019, the court found that the petitioner was indigent
and granted his application for waiver of fees and costs.
In accordance with the petitioner’s request, the court
did not appoint counsel for the petitioner. The peti-
tioner filed the present appeal on September 10, 2019.
In his principal brief on appeal, the petitioner identi-
fied the following claims for review: the habeas court
(1) abused its discretion by denying his motion to
sequester Duby, (2) erred by striking his motion to
reconstruct and correct the record, (3) abused its dis-
cretion by denying his application to issue a subpoena,
(4) abused its discretion by dismissing in part and deny-
ing in part the amended petition, and (5) abused its
discretion by denying the petitioner’s petition for certifi-
cation to appeal. In his brief, the respondent has argued
that the petitioner’s first three claims are not reviewable
because the petitioner failed to include them in his
petition for certification to appeal. With respect to the
petitioner’s other claims, the respondent argued that
they were inadequately briefed and that the petitioner
failed to demonstrate that Duby rendered ineffective
assistance. Thereafter, the petitioner filed a reply brief
with an appendix of more than 500 pages in which he
sought to remedy the deficiencies in his principal brief
that were pointed out by the respondent.
‘‘We begin by setting forth the applicable standard
of review and procedural hurdles that the petitioner
must surmount to obtain appellate review of the merits
of a habeas court’s denial of the habeas petition follow-
ing denial of certification to appeal. In Simms v. War-
den, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our
Supreme Court] concluded that . . . [General Stat-
utes] § 52-470 (b)10 prevents a reviewing court from
hearing the merits of a habeas appeal following the
denial of certification to appeal unless the petitioner
establishes that the denial of certification constituted
an abuse of discretion by the habeas court. In Simms
v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994),
[our Supreme Court] incorporated the factors adopted
by the United States Supreme Court in Lozada v. Deeds,
498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956
(1991), as the appropriate standard for determining
whether the habeas court abused its discretion in deny-
ing certification to appeal. This standard requires the
petitioner to demonstrate that the issues are debatable
among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further.
. . . A petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . In determining whether
the habeas court abused its discretion in denying the
petitioner’s request for certification, we necessarily
must consider the merits of the petitioner’s underlying
claims to determine whether the habeas court reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis in original; footnote added; internal
quotation marks omitted.) Tutson v. Commissioner of
Correction, 144 Conn. App. 203, 214–15, 72 A.3d 1162,
cert. denied, 310 Conn. 928, 78 A.3d 145 (2013). We now
turn to the petitioner’s claims.
I
The petitioner claims that the habeas court improp-
erly (1) denied his motion to sequester Duby, (2) struck
his motion to reconstruct and correct the record, and
(3) denied his application to issue a subpoena. The
respondent argues that those claims are not reviewable
because the petitioner failed to list them in his petition
for certification to appeal. We agree with the respon-
dent.
‘‘[Section] 52-470 (g) provides: No appeal from the
judgment rendered in a habeas corpus proceeding
brought by or on behalf of a person who has been
convicted of a crime in order to obtain such person’s
release may be taken unless the appellant, within ten
days after the case is decided, petitions the judge before
whom the case was tried or, if such judge is unavailable,
a judge of the Superior Court designated by the Chief
Court Administrator, to certify that a question is
involved in the decision which ought to be reviewed by
the court having jurisdiction and the judge so certifies.
‘‘As our Supreme Court has explained, one of the
goals our legislature intended by enacting this statute
was to limit the number of appeals filed in criminal
cases and hasten the final conclusion of the criminal
justice process . . . . [T]he legislature intended to dis-
courage frivolous habeas appeals. . . . [Section] 52-
470 (b)11 acts as a limitation on the scope of review,
and not the jurisdiction, of the appellate tribunal.’’
(Footnote in original; internal quotation marks omit-
ted.) Whistnant v. Commissioner of Correction, 199
Conn. App. 406, 414, 236 A.3d 276, cert. denied, 335
Conn. 969, 240 A.3d 286 (2020).
An appellate court, however, reviews only ‘‘the merits
of the claims specifically set forth in the petition for
certification.’’ Johnson v. Commissioner of Correction,
181 Conn. App. 572, 578, 187 A.3d 543, cert. denied, 329
Conn. 909, 186 A.3d 13 (2018). ‘‘This court has declined
to review issues in a petitioner’s habeas appeal in situa-
tions where the habeas court denied certification to
appeal and the issues on appeal had not been raised in
the petition for certification.’’ (Internal quotation marks
omitted.) Id.
The standard of review of ‘‘an appeal following the
denial of a petition for certification to appeal from the
judgment [disposing of] a petition for a writ of habeas
corpus is not the appellate equivalent of a direct appeal
from a criminal conviction. Our limited task as a
reviewing court is to determine whether the habeas
court abused its discretion in concluding that the peti-
tioner’s appeal is frivolous. Thus, we review whether
the issues for which certification to appeal was sought
are debatable among jurists of reason, a court could
resolve the issues differently or the issues are adequate
to deserve encouragement to proceed further. . . .
Because it is impossible to review an exercise of discre-
tion that did not occur, we are confined to reviewing
only those issues which were brought to the habeas
court’s attention in the petition for certification to
appeal. . . .
‘‘It is well established that a petitioner cannot demon-
strate that the habeas court abused its discretion in
denying a petition for certification to appeal if the issue
raised on appeal was never raised before the court at
the time that it considered the petition for certification
to appeal as a ground on which certification should be
granted.’’ (Citation omitted; internal quotation marks
omitted.) Whistnant v. Commissioner of Correction,
supra, 199 Conn. App. 416.
In his petition for certification to appeal, the peti-
tioner stated in relevant part that he was petitioning to
appeal the following legal issues: ‘‘Whether the petition-
er’s constitutional right to the effective assistance of
appellate counsel was violated; and . . . [s]uch other
errors as are revealed upon a review of the transcripts
and record.’’ He made no mention in his petition of
the habeas court’s evidentiary rulings he now seeks to
challenge on appeal. Nevertheless, in his reply brief,
the petitioner claims that Johnson and Whistnant are
not applicable to the present case because the habeas
court actually considered whether to deny his motion
to sequester Duby, to strike his motion to reconstruct
and correct the record, and to deny his application to
issue a subpoena during the habeas trial. The petition-
er’s argument misapprehends the consideration that is
relevant to a petition for certification to appeal.
Although the habeas court may have considered and
exercised its discretion with respect to rulings it made
during the habeas trial, the court did not have an oppor-
tunity to consider those issues in the context of a peti-
tion for certification to appeal because the petitioner
failed to include them in his petition. The only issue
the petitioner presented for consideration by the habeas
court with respect to the petition for certification to
appeal was whether its denial of the petitioner’s claim
that his appellate counsel was ineffective should be
appealed.
Because the habeas court did not have an opportunity
to consider the petitioner’s appellate claims that it
improperly (1) denied his motion to sequester Duby,
(2) struck his motion to reconstruct and correct the
record and (3) denied his application to issue a sub-
poena, those claims are not properly before us and,
therefore, are not reviewable. ‘‘A review of such claims
would amount to an ambuscade of the [habeas] judge.’’
(Internal quotation marks omitted.) Johnson v. Com-
missioner of Correction, supra, 181 Conn. App. 579–80.
We therefore decline to review the petitioner’s first
three appellate claims.
II
The petitioner’s second claim is that the court
improperly (1) dismissed grounds I through VI of his
amended petition for a writ of habeas corpus because
they were procedurally defaulted and (2) denied ground
VII because he failed to demonstrate that his appellate
counsel rendered ineffective assistance or that he was
prejudiced by appellate counsel’s representation. We
disagree.
A
The petitioner claims that the habeas court erred by
dismissing grounds I through VI of the amended petition
on the grounds of procedural default.12 In grounds I
through VI of the amended petition, the petitioner
alleged that his constitutional rights to a fair trial, to
present a defense, to represent himself, and to counsel
were violated at the criminal trial. In addition, the peti-
tioner alleged that the prosecutor violated Brady v.
Maryland, supra, 373 U.S. 87. See footnote 3 of this
opinion.
‘‘The conclusions reached by the trial court in its
decision to dismiss [a] habeas petition are matters of
law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . . [A] finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Citations
omitted; internal quotation marks omitted.) Harris v.
Commissioner of Correction, 107 Conn. App. 833, 838,
947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652
(2008).
‘‘The appropriate standard for reviewability of [a pro-
cedurally defaulted claim] . . . is the cause and preju-
dice standard. Under this standard, the petitioner must
demonstrate good cause for his failure to raise a claim
at trial or on direct appeal and actual prejudice resulting
from the impropriety claimed in the habeas petition.
. . . [T]he cause and prejudice test is designed to pre-
vent full review of issues in habeas corpus proceedings
that counsel did not raise at trial or on appeal for rea-
sons of tactics, inadvertence or ignorance . . . .
‘‘Once the respondent has raised the defense of proce-
dural default in the return, the burden is on the peti-
tioner to prove cause and prejudice. . . . [When] no
evidence [of cause and prejudice] has been provided
[to the habeas court], [the reviewing] court can inde-
pendently conclude that the petitioner has failed to
meet the cause and prejudice test.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Council v. Commissioner of Correction, 286 Conn. 477,
489–90, 944 A.2d 340 (2008).
On appeal, the petitioner claims that he demonstrated
good cause for failing to raise these claims in his direct
appeal because he introduced evidence at the habeas
trial that was sufficient to rebut the presumption that
counsel rendered adequate assistance and made all sig-
nificant decisions in the exercise of reasonable profes-
sional judgment. He points to no specific evidence, how-
ever, to support his position. Instead, he argues in
conclusory fashion that, in light of the ‘‘compelling—
uncontested testimonial and documentary evidence
[he] . . . presented at the trial in [the present] case,
the habeas court’s finding that [he] offered no evidence,
other than his own self-serving conclusory testimony
is clearly an erroneous factual finding. Any plain reading
of the facts in [the present] case makes it clear that the
evidence [he] presented . . . was sufficient to rebut
the presumption that counsel’s assistance was reason-
able, and that [he] was prejudiced by counsel’s ineffec-
tiveness.’’
The respondent contends that the habeas court prop-
erly dismissed grounds I through VI of the amended
petition because the petitioner did not prove that Duby
performed deficiently. The petitioner offered no evi-
dence that the reason Duby did not raise certain claims
on appeal was attributable to anything other than
Duby’s reasonable professional judgment.
On the basis of our review of the record and the
briefs of the parties, we conclude that the habeas court
did not abuse its discretion by denying certification
to appeal its dismissal of grounds I through VI of the
amended petition. We agree with the habeas court that
the petitioner offered no evidence to prove cause and
prejudice by overcoming the presumption that Duby
provided adequate representation. The petitioner did
not call Duby as a witness to explain why he raised
only a claim of insufficient evidence in the petitioner’s
criminal appeal. He presented no expert testimony or
other competent evidence that Duby’s representation
was deficient for failing to raise the claims the petitioner
alleged in grounds I through VI. The petitioner failed
to carry his burden to prove cause and prejudice. The
court, therefore, properly dismissed the claims alleged
in grounds I through VI of the amended petition on the
grounds of procedural default.
B
The petitioner also claims that the habeas court erred
by denying ground VII of his amended petition, alleging
that Duby provided ineffective assistance. We do not
agree.
Ground VII of the amended petition alleges that the
petitioner was denied the constitutional right to the
effective assistance of appellate counsel because
Duby’s ‘‘representation fell below the objective stan-
dard of reasonableness when [he] failed to correct sub-
stantial errors and omissions in the record, failed to
raise plain error in the record and failed to raise signifi-
cant obvious errors in the record and such failures . . .
resulted in prejudice to the petitioner on his direct
appeal . . . .’’
The two-pronged test of Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), applies to claims of ineffective assistance of
appellate counsel. See Camacho v. Commissioner of
Correction, 148 Conn. App. 488, 494–95, 84 A.3d 1246,
cert. denied, 311 Conn. 937, 88 A.3d 1227 (2014). ‘‘Strick-
land requires that a petitioner satisfy both a perfor-
mance and a prejudice prong. To satisfy the perfor-
mance 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]mend-
ment. . . . To satisfy the prejudice prong, a claimant
must demonstrate that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’’ (Internal
quotation marks omitted.) Davis v. Commissioner of
Correction, 198 Conn. App. 345, 352–53, 233 A.3d 1106,
cert. denied, 335 Conn. 948, 238 A.3d 18 (2020).
‘‘[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the [petitioner]
must overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy. . . . [C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.’’ (Internal quotation marks
omitted.) Id., 353. ‘‘In a habeas proceeding, the petition-
er’s burden of proving that a fundamental unfairness
had been done is not met by speculation . . . but by
demonstrable realities.’’ (Internal quotation marks
omitted.) Id., 354.
‘‘To establish that the petitioner was prejudiced by
appellate counsel’s ineffective assistance, the petitioner
must show that, but for the ineffective assistance, there
is a reasonable probability that, if the issue were
brought before us on direct appeal, the petitioner would
have prevailed.’’ Id., 354–55, quoting Small v. Commis-
sioner of Correction, 286 Conn. 707, 728, 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).
In his appellate brief, the petitioner has argued that
Duby ‘‘presented a weak—single—insufficient evidence
claim on direct appeal, which had the least likelihood
of succeeding, while ignoring strong claims—plain
error and substantial obvious error in the record.’’ He
claimed that at the habeas trial he demonstrated that
Duby was ineffective and that he was prejudiced when
Duby ignored important arguable constitutional viola-
tions that are obvious from even a cursory reading of
the record, i.e., the trial court erred by depriving the
petitioner of investigative services, and that counsel
was ineffective and the petitioner was prejudiced when
Duby failed to raise confrontation violations, a Brady
violation, and plain error and also failed to correct sub-
stantial errors and omissions in the record. Although
the petitioner’s principal brief contains a litany of errors
Duby allegedly committed with respect to the petition-
er’s criminal appeal, the petitioner failed to provide any
legal analysis as to how the court erred with respect
to those claims.
The respondent contends that the petitioner has not
adequately briefed his claims. We agree that the peti-
tioner has not provided the type of legal analysis neces-
sary to prevail on appeal. Although the petitioner repre-
sented himself at his criminal trial, at his habeas trial,
and in the present appeal, his self-represented status
does not excuse his failure to provide a factual and
legal analysis as to why the habeas court erred when
it denied ground VII of the amended petition. See
Turner v. Commissioner of Correction, 201 Conn. App.
196, 224, 242 A.3d 512 (2020), cert. denied, 336 Conn.
945, 250 A.3d 694 (2021).
‘‘This court has always been solicitous of the rights
of [self-represented] litigants and . . . will endeavor
to see that such a litigant shall have the opportunity to
have his case fully and fairly heard so far as such latitude
is consistent with the just rights of any adverse party.
. . . Although we will not entirely disregard our rules of
practice, we do give great latitude to [self-represented]
litigants in order that justice may both be done and be
seen to be done. . . . For justice to be done, however,
any latitude given to [self-represented] litigants cannot
interfere with the rights of other parties, nor can we
disregard completely our rules of practice.’’ (Internal
quotation marks omitted.) Shobeiri v. Richards, 104
Conn. App. 293, 296, 933 A.2d 728 (2007).
In his reply brief, the petitioner concedes that he did
not adequately brief his claims in his principal brief.
He stated: ‘‘Although the [self-represented] petitioner
should have more specifically complied with the techni-
cal requirements of the Connecticut Practice Book
when briefing his challenge to the habeas court’s rejec-
tion of his claims of ineffective assistance of appellate
counsel, this court has an adequate basis on which to
review the claim because the evidence is printed in the
appendices to the brief(s) filed by the petitioner [in]
this appeal.’’
We acknowledge the petitioner’s status as a self-rep-
resented party, but it is not the responsibility of this
court to comb the record for the petitioner and to invent
arguments on his behalf. Moreover, ‘‘[i]t is . . . a well
established principle that arguments cannot be raised
for the first time in a reply brief. . . . [I]t is improper
to raise a new argument in a reply brief, because doing
so deprives the opposing party of the opportunity to
respond in writing.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Myers, 178 Conn. App.
102, 106, 174 A.3d 197 (2017).
Notwithstanding the inadequacies of the petitioner’s
principal brief, on the basis of our review of the record,
we conclude that the petitioner has not demonstrated
that the habeas court’s finding that he failed to provide
evidence beyond his self-serving, conclusory testimony
that Duby provided ineffective assistance is clearly erro-
neous. The petitioner failed to call Duby as a witness,
and he presented no expert testimony to demonstrate
that Duby’s representation fell below ‘‘an objective stan-
dard of reasonableness considering all of the circum-
stances.’’ (Internal quotation marks omitted.) Camacho
v. Commissioner of Correction, supra, 148 Conn. App.
494. Because the petitioner failed to present the habeas
court with evidence that Duby’s representation was
ineffective, we conclude that the court did not err by
denying ground VII of the amended petition.
Because we conclude that the habeas court did not
err by dismissing grounds I through VI of the amended
petition or by denying ground VII thereof, and because
the petitioner has not raised any claim that meets any
part of the test for certification to appeal from the denial
of his petition for certification to appeal, we conclude
that the habeas court did not abuse its discretion by
denying the petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Attorney Leslie Cavanagh was appointed standby counsel.
2
The jury found the petitioner not guilty of two counts of assault of public
safety personnel in violation of General Statutes § 53a-167c (a) (1). State v.
Lewis, 148 Conn. App. 511, 512 n.1, 84 A.3d 1238, cert. denied, 311 Conn.
940, 89 A.3d 349 (2014), cert. denied, 574 U.S. 854, 135 S. Ct. 132, 190 L. Ed.
2d 101 (2014).
3
Judge Schuman presided at the petitioner’s criminal trial. Other judges
presided at pretrial proceedings.
Ground I alleged that the petitioner was deprived of a fair trial and a
meaningful opportunity to prepare and defend when (1) the trial court,
Damiani, J., denied him investigative services, (2) Judge Schuman denied
him expert witness services, and (3) Judge Damiani denied his motion for
access to an ink pen. It also alleged that the courts’ rulings were harmful
to the petitioner.
Ground II alleged that the petitioner was denied his right to present a
defense when Judge Schuman (1) precluded him during cross-examination
from (a) showing the victim her signed statement that was inconsistent and
(b) putting the statement into evidence, (2) precluded him from recalling
the victim as a witness, and (3) failed to conduct an inquiry into the judicial
marshal’s ‘‘confiscation’’ of his defense strategy materials.
Ground III alleged that the petitioner’s right to self-representation was
violated when (1) Judge Schuman (a) forced him to represent himself in
leg shackles without exercising juridical scrutiny or placing on the record
the reason for the use of restraints and (b) excluded him from a bench
conference, (2) standby counsel unduly interfered with the petitioner’s pre-
sentation and strategy, (3) judicial marshals confiscated the petitioner’s
defense strategy materials, and (4) Judge Damiani denied his request for
an ink pen. The petitioner alleged that the constitutional violations were
not subject to harmless error analysis.
Ground IV alleged that the prosecution suppressed exculpatory materials
and failed to make a timely disclosure of material impeachment evidence
in violation of Brady v. Maryland, supra, 373 U.S. 87, by (1) withholding
photographs of the victim and (2) failing to disclose the criminal records
of its witnesses Diane Martell, Amanda Blouin, and the victim.
Ground V alleged that Judge Fasano, Judge Damiani, and Judge Schuman
violated the petitioner’s constitutional right to counsel by failing to canvass
him adequately, by failing to advise him of the mandatory minimum ten
year sentence he faced if he were convicted of one of the crimes with which
he was charged, and by allowing him to represent himself.
Ground VI alleged that the trial court failed to give him sufficient time
to prepare for his criminal trial.
Ground VII alleged that the petitioner was denied the right to the effective
assistance of appellate counsel because Duby’s ‘‘legal representation fell
below the objective standard of reasonableness when counsel failed to
correct substantial errors and omissions in the record, failed to raise plain
error in the record and failed to raise significant obvious errors in the record
and such failures constitute[d] ineffectiveness that resulted in prejudice to
the petitioner on his direct appeal . . . .’’
4
The petitioner more specifically alleged that Duby only ‘‘presented a
weak—single—insufficient evidence claim . . . which had the least likeli-
hood of succeeding, while ignoring strong claims—plain error and substan-
tial obvious error in the record.’’ He further alleged that Duby should have
raised claims that (1) the trial court erred in denying his (a) motion for an
investigator and (b) motion for an expert witness, (2) the prosecutor violated
Brady v. Maryland, supra, 373 U.S. 83, (3) the court violated his right to
confrontation by unduly restricting his cross-examination of the victim, and
(4) the court committed plain error by forcing him to wear leg shackles at
trial and failed to create a record as to the reason for doing so.
5
The habeas court examined the trial record and made several findings.
With respect to the petitioner’s claim that he was denied a writing instrument,
the record disclosed that Judge Damiani stated that the petitioner will ‘‘have
a pen and paper to make all the notes [he] want[s].’’ Although the petitioner
admitted that there is nothing in the record to demonstrate that he was
excluded from a bench conference or that he objected to the same, he
claimed that facts supporting his claim were removed from the record. As
to his claim that judicial marshals confiscated his defense strategy materials,
the court found that the petitioner’s family delivered documents intended
for him to standby counsel in court. Standby counsel knew that the petitioner
was incarcerated and that the marshals had to examine anything in the
petitioner’s possession for security reasons. Standby counsel expressed
concern that the package may have contained attorney-client privileged
materials. The trial court suggested that the marshals use the metal detector
to screen the package for contraband without necessarily examining the
contents. The habeas court found no evidence that the marshals confiscated
the package as the word ‘‘confiscated’’ is commonly used.
In the present appeal, the petitioner has brought to our attention a portion
of the trial transcript that discloses that Judge Schuman held a bench confer-
ence with the prosecutor and standby counsel. The petitioner who was
representing himself did not object. The transcript also discloses that
standby counsel conferred with the petitioner immediately following the
bench conference. Because the petitioner did not raise this claim on direct
appeal, it is in procedural default, and we therefore need not address it fur-
ther.
6
Practice Book § 44-3, titled ‘‘Waiver of Right to Counsel,’’ provides: ‘‘A
defendant shall be permitted to waive the right to counsel and shall be
permitted to represent himself or herself at any stage of the proceedings,
either prior to or following the appointment of counsel. A waiver will be
accepted only after the judicial authority makes a thorough inquiry and is
satisfied that the defendant:
‘‘(1) Has been clearly advised of the right to the assistance of counsel,
including the right to the assignment of counsel when so entitled;
‘‘(2) Possesses the intelligence and capacity to appreciate the conse-
quences of the decision to represent oneself;
‘‘(3) Comprehends the nature of the charges and proceedings, the range
of permissible punishments, and any additional facts essential to a broad
understanding of the case; and
‘‘(4) Has been made aware of the damages and disadvantages of self-
representation.’’
7
Kidnapping in the first degree is a class A felony punishable by a term
of imprisonment not less than ten nor more than twenty-five years. See
General Statutes §§ 53a-92 (a) (2) (A) and 53a-35a (4).
8
On appeal, the respondent argues that the petitioner may not use the
catchall phrase ‘‘[s]uch other errors as are revealed upon a review of the
transcripts and record’’ to bootstrap into the petition any claims he later
decides to add on appeal, after the court has denied his petition for certifica-
tion to appeal. We agree that, following the denial of his petition for certifica-
tion to appeal, the petitioner is limited to the claims stated in his petition
for certification to appeal. ‘‘Because it is impossible to review an exercise
of discretion that did not occur, [a reviewing court is] confined to reviewing
only those issues which were brought to the habeas court’s attention in the
petition for certification to appeal.’’ Tutson v. Commissioner of Correction,
144 Conn. App. 203, 216, 72 A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d
145 (2013).
9
In his application for waiver of fees and costs, which was filed after the
court had denied his petition for certification to appeal, the petitioner stated
the following grounds for his appeal: (1) whether the habeas court abused
its discretion when denying his petition for certification to appeal, (2)
whether the court abused its discretion in dismissing and denying the claims
raised in the amended petition, (3) whether the court erred in denying the
petitioner’s motion for default judgment, (4) whether the court abused its
discretion in denying the petitioner’s motion for summary judgment, (5)
whether the court erred in denying the petitioner’s motions to subpoena
the audio tapes of his criminal trial, (6) whether the court erred in failing
to grant the petitioner’s motion to correct and reconstruct the record, (7)
whether the court erred in denying the petitioner’s oral motion for sequestra-
tion of Duby, (8) whether the petitioner’s constitutional right to effective
assistance of appellate counsel was violated, and (9) such other errors as
are revealed on a review of the transcript and record.
10
See footnote 11 of this opinion.
11
‘‘Pursuant to No. 12-115, § 1, of the 2012 Public Acts, subsection (b) of
§ 52-470 was redesignated as subsection (g).’’ (Internal quotation marks
omitted.) Whistnant v. Commissioner of Correction, 199 Conn. App. 406,
414 n.8, 236 A.3d 276, cert. denied, 335 Conn. 969, 240 A.3d 286 (2020).
12
The petitioner did not specifically include those claims in his petition
for certification to appeal. The habeas court dismissed those claims, in part,
on the ground that the petitioner had failed to demonstrate good cause for
not raising those claims in his direct appeal. In reaching that conclusion,
the habeas court found that the petitioner had failed to demonstrate that his
failure to raise the claims on direct appeal was caused by Duby’s ineffective
assistance. As a result, we review these claims because they arguably are
subsumed within that part of his petition for certification seeking review
of whether his ‘‘constitutional right to the effective assistance of appellate
counsel was violated . . . .’’