Barlow v. Comm'r of Corr.

166 Conn.App. 408

142 A.3d 290

Alison BARLOW

v.COMMISSIONER OF CORRECTION.

No. 37417.

Appellate Court of Connecticut.

Argued Feb. 9, 2016.

Decide June 28, 2016.

Naomi T. Fetterman, with whom was Aaron J. Romano, Bloomfield, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).

BEACH, KELLER and WEST, Js.

KELLER, J.

Following a grant of certification to appeal, the petitioner, Alison Barlow, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court improperly (1) denied his motion for recusal, (2) denied his request for a new evidentiary hearing, and (3) concluded that he failed to demonstrate prejudice as a result of his trial counsel's deficient performance. ¹ ] We agree with the first and second claims raised by the petitioner, reverse the judgment of the habeas court, and remand the case for further proceedings consistent with this opinion.

The following facts and procedural history are relevant to this appeal. In 1998, following a jury trial, the petitioner was convicted of attempt to commit murder in violation of General Statutes §§ 53a–49 (a)(2) and 53a–54a, conspiracy to commit murder in violation of General Statutes §§ 53a–48 (a) and 53a–54a, two counts of assault in the first degree in violation of General Statutes § 53a–59 (a)(1) and alteration of a firearm identification number in violation of General Statutes § 29–36. The petitioner was sentenced to a total effective term of thirty-five years imprisonment. Following a direct appeal brought by the petitioner, this court affirmed the judgment of conviction. State v. Barlow, 70 Conn.App. 232, 797 A.2d 605, cert. denied, 261 Conn. 929, 806 A.2d 1067 (2002).

Following his conviction, the petitioner brought several petitions for a writ of habeas corpus. At issue in the present appeal is an amended petition that the petitioner filed on January 17, 2002—his third petition for a writ of habeas corpus—in which he alleged in count one that his trial counsel, Attorney Sheridan L. Moore, rendered ineffective assistance in connection with a plea bargain offer² and in connection with the representation that she afforded the petitioner during the trial generally.³ In count two, the petitioner alleged that his prior habeas counsel, Attorney Christopher Neary, rendered ineffective assistance by failing to pursue a claim that Moore had rendered ineffective representation during his criminal trial.

Following a hearing, the habeas court, Sferrazza, J., dismissed the amended petition with respect to the claim of ineffective representation by Moore set forth in count one. With respect to this count, the court, sua sponte, invoked the doctrine of deliberate bypass and stated, in relevant part: “This, the petitioner's third habeas action in which he has asserted claims of ineffectiveness against Moore, is a blatant example of the procedural evils that the deliberate bypass rule was created to thwart.” The court denied the petition with respect to the claim of ineffective representation by Neary set forth in count two. In rejecting the claim that Neary rendered ineffective representation for, in relevant part, failing to pursue a claim of ineffective representation against Moore, the court made several findings with respect to the nature of Moore's representation of the petitioner with respect to the plea offer. In relevant part, the court stated: “The court has found that Moore fully apprised the petitioner as to the terms of the plea offer, including its temporary nature, the strengths and weaknesses of the prosecution and defense cases, and the possible outcomes after trial....

“Moore, at the time of the petitioner's criminal case, had seventeen years of experience handling serious criminal matters as a special public defender and five and one-half years as a public defender for the Waterbury judicial district. This experience entailed defending clients charged with murder and trying such cases to verdict. No expert witness testified critically of Moore's representation of the petitioner. To the contrary, Attorney Neary averred that he examined Moore's performance for the petitioner's defense and found no basis for such an ineffective assistance claim against her.

“The court determines that the petitioner has failed to prove that Moore was deficient in any of the ways alleged surrounding the petitioner's rejection of the nine year plea offer. As a result, the petitioner has also failed to meet his burden of establishing that [prior habeas counsel had] rendered ineffective assistance by withdrawing the claims against Moore through amended petitions.” (Citations omitted.)

The petitioner appealed to this court from the judgment of the habeas court. With respect to the petitioner's claim that the habeas court improperly dismissed his claim that Moore had rendered ineffective assistance with respect to the trial court's plea offer, this court ruled that, in the absence of any claim by the respondent, the Commissioner of Correction, that the doctrine of deliberate bypass applied in the present case, the habeas court erroneously had relied on that doctrine in dismissing that aspect of the petition. Barlow v. Commissioner of Correction, 150 Conn.App. 781, 785–88, 93 A.3d 165 (2014). After reviewing the findings of the habeas court and the evidence in the record, which included Moore's testimony during the habeas trial, this court disagreed with the habeas court's assessment of Moore's representation.

This court, referring to Moore's undisputed testimony at the habeas trial, concluded as a matter of law that Moore's performance with respect to the plea offer was deficient “because she did not give the petitioner her professional advice and assistance concerning, and her evaluation of, the court's plea offer.” Id., at 802, 93 A.3d 165.

Although we resolved the issue of deficient performance in the petitioner's favor, this court rejected the petitioner's argument that, on the basis of the record, we could presume that he was prejudiced, under the applicable standard of prejudice, as a result of Moore's deficient performance concerning the plea offer. Id. This court agreed with the respondent that the habeas court was in the best position to determine an unresolved issue integral to whether the petitioner was prejudiced by Moore's deficient performance, specifically, “whether it is reasonably likely that the petitioner would have accepted the offer had he received adequate advice from Moore.” Id., at 804, 93 A.3d 165. In light of our resolution of the claim concerning Moore, this court concluded that it did not need to consider, on its merits, “the issue of whether Neary's performance was deficient for failing to pursue the issue of Moore's performance.” Id., at 783 n. 1, 93 A.3d 165.

In the rescript of our opinion, this court set forth the following order: “The judgment is reversed in part and the case is remanded for further proceedings on the issue of whether the petitioner was prejudiced by counsel's deficient performance. In the event that the habeas court finds that the petitioner has established prejudice, and no timely appeal is taken from that decision, the judgment is reversed and the case is remanded with direction to grant the petition for a writ of habeas corpus. In the event that the habeas court finds that the petitioner has failed to demonstrate prejudice, and no timely appeal is taken from that decision, the judgment is reversed only as to form and the court is ordered to render judgment denying rather than dismissing the petition as it relates to the claim that Moore provided ineffective assistance of counsel.” Id., at 804–805, 93 A.3d 165.

Judge Sferrazza, who had presided over the habeas proceedings and, as discussed previously in this opinion, had issued the prior judgment that was the subject of this court's prior decision in the habeas matter, presided over the proceedings on remand. The record reflects that on August 5, 2014, at a hearing following the issuance of this court's remand order, Judge Sferrazza asked the parties to express their positions with respect to several issues, including whether this court's remand order required the court to hold an evidentiary hearing or whether the order required the court to make the required finding with respect to prejudice on the basis of the evidence in the record. Additionally, Judge Sferrazza raised the issue of whether, following this court's reversal of his prior judgment, he was presumptively disqualified from continuing with the case.

The petitioner argued that this court's remand order required a new evidentiary hearing and argued that the matter should be heard and decided by a different judge. The petitioner's attorney stated that the petitioner would not waive his right to have the matter heard by a different judge. The respondent argued that this court's remand order did not require a new evidentiary hearing, but merely a decision to be made on the basis of the evidence already in the record. Further, the respondent argued that, because Judge Sferrazza had not yet decided the specific factual issue set forth in this court's remand order, it was proper for him to hear and decide the matter. Thereafter, on August 11, 2014, Judge Sferrazza issued a memorandum of decision in which he concluded that this court's remand order did not require a new evidentiary hearing. In relevant part, the court stated: “The court and the parties have found this remand order somewhat perplexing. The respondent asserts that the Appellate Court's order is in the nature of an articulation order concerning the prejudice determination. Under this view, this court would simply review the evidence adduced at the habeas hearing and render a decision resolving the...