Kaddah v. Comm'r of Corr.

211 Conn.App. 823

274 A.3d 115

Nabeel KADDAH

v.COMMISSIONER OF CORRECTION

AC 42942

Appellate Court of Connecticut.

Argued February 17, 2021

Officially released April 26, 2022

Robert L. O'Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, North Haven, assigned counsel, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and Craig P. Nowak, senior assistant state's attorney, for the appellee (respondent).

Alvord, Elgo and Alexander, Js.

ELGO, J.

The petitioner, Nabeel Kaddah,¹ appeals from the judgment of the habeas court denying his third petition for a writ of habeas corpus, which alleged that his first and second habeas counsel rendered ineffective assistance. On appeal, the petitioner claims that the court erred in rejecting his claim that his prior habeas attorneys were ineffective in not pursuing the claim that his trial and appellate counsel were ineffective for their failure to challenge the trial court's jury instructions as to (1) the element of intent required for the specific offenses alleged against him and (2) his affirmative defense of mental disease or defect. We disagree and, accordingly, affirm the judgment of the habeas court.

The following facts, as set forth by our Supreme Court in the petitioner's direct appeal, and procedural history are relevant to our resolution of the petitioner's claims. "Between 3 and 3:30 a.m. on August 27, 1994, the [petitioner], while driving his gray Pontiac Grand Prix, approached Leanne Kollar on Middle Street in Bridgeport. Kollar, who was working as a prostitute, entered the [petitioner's] car in anticipation of engaging in sex for money.

The [petitioner] drove around Bridgeport, eventually stopping on Salem Street. He turned off the engine and locked the doors to the vehicle. The [petitioner] then began to choke Kollar, telling her that, if she removed her clothes, he would not hurt her. Kollar began to undress, and the [petitioner] reclined her seat back and started to choke her again. Kollar managed to open the car door in an attempt to escape, and the [petitioner] began hitting and punching her. They both rolled out of the car together, after which the [petitioner] kneeled over Kollar and continued strangling her. After hitting the [petitioner] and knocking [the petitioner's] eyeglasses off his face, Kollar was able to flee to a nearby house. The [petitioner] then drove away.

"When the police arrived, Kollar gave them a description of the [petitioner] and told the officers where the [petitioner] lived, as she had been to his apartment on prior occasions. The police went to the [petitioner's] apartment and waited for him to return. Meanwhile, the [petitioner] returned to Middle Street and picked up Jennifer Williamson, another prostitute. The [petitioner] drove to the corner of Maplewood and Laurel Avenues, where he and Williamson engaged in a physical struggle. The [petitioner] hit Williamson, bit her on the back and strangled her. During the struggle, Williamson stopped moving and the [petitioner] pushed her out of the car and drove away.

"Sara Iza, a resident of Laurel Avenue, saw the [petitioner's] car on Maplewood Avenue at approximately 5:30 a.m. on August 27, 1994. When her husband, Luis Iza, went outside to start his car at approximately 6 a.m., he saw Williamson's naked body lying in the street, in the same spot where Sara Iza had seen the [petitioner's] car stop earlier. Malka Shah of the [O]ffice of the [C]hief [M]edical [E]xaminer testified that Williamson died from asphyxia, which had been caused by strangulation.

"At his trial, the [petitioner] raised the defenses of mental disease or defect and, alternatively, extreme emotional disturbance. The jury rejected these defenses and found the [petitioner] guilty of the murder of Williamson and the attempted murder and unlawful restraint of Kollar."² (Footnotes omitted.) State v. Kaddah (Kaddah I) , 250 Conn. 563, 565–66, 736 A.2d 902 (1999). Our Supreme Court subsequently affirmed the petitioner's conviction on direct appeal. See id., 581, 736 A.2d 902.

"In 2001, the petitioner, represented by [A]ttorney Salvatore Adamo, filed his first petition for a writ of habeas corpus, alleging that his appellate counsel, [A]ttorney Glenn Falk, had rendered ineffective assistance in the direct appeal of the underlying criminal case because he had failed to argue the existence of a conflict between the petitioner and his trial attorney, James Ruane, and had failed to raise a Connecticut constitutional claim. The petitioner further alleged that Ruane had rendered ineffective assistance in the underlying criminal case. The petitioner alleged, among other things, that Ruane had asserted the defense of mental disease or defect against the petitioner's wishes, did not permit the petitioner to testify on his behalf and failed to argue effectively against the sparse medical evidence used to convict the petitioner. The court, White, J ., denied the habeas petition. The petitioner appealed from the judgment of the habeas court but withdrew the appeal before this court rendered judgment." Kaddah v. Commissioner of Correction , 105 Conn. App. 430, 433–34, 939 A.2d 1185, cert. denied, 286 Conn. 903, 943 A.2d 1101 (2008).

In 2004, the petitioner, represented by Attorney Joseph Visone, filed a second habeas petition alleging ineffective assistance of counsel by Adamo in the first habeas proceeding.³ Id., at 434, 939 A.2d 1185. The habeas court, Fuger, J ., denied that petition, along with the petitioner's petition for certification to appeal. Id. This court subsequently dismissed the petitioner's appeal from the denial of the second habeas petition, concluding that Judge Fuger had not abused his discretion in denying the petition for certification to appeal. See id., at 446, 939 A.2d 1185.

The petitioner filed the third and present habeas petition on September 28, 2012, alleging, inter alia,⁴ that Visone rendered ineffective assistance while representing the petitioner in the second habeas petition by failing to raise certain claims regarding the jury instructions at his criminal trial. See Kaddah v. Commissioner of Correction (Kaddah III) , 324 Conn. 548, 553, 153 A.3d 1233 (2017). More specifically, the petitioner argued that the trial court improperly instructed the jury as to (1) the element of intent required to prove the specific crimes charged by the state and (2) his affirmative defense of mental disease or defect. The habeas court initially dismissed the petition on September 29, 2014, concluding that it was "not cognizable as a matter of law." Id., at 551, 153 A.3d 1233. Our Supreme Court subsequently reversed in part the judgment of the habeas court and remanded the case to that court for further proceedings. See id., at 571, 153 A.3d 1233.

On remand, the habeas court conducted a trial on the present petition on October 2, 2018. The parties waived their right to present additional evidence and stipulated to the claims being resolved based on the record of the prior habeas trial, of which the court took judicial notice. On March 13, 2019, the court issued a memorandum of decision in which it denied the petitioner's habeas petition. The court granted the petitioner's request for certification to appeal, and this appeal followed. Additional facts will be set forth as necessary.

Before considering the petitioner's claims, we note the well established precepts that govern our review. "The [ultimate] conclusions reached by the [habeas] court in its decision [on 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 a definite and firm conviction that a mistake has been committed. ... A reviewing court ordinarily will afford deference to those credibility determinations made by the habeas court on the basis of [the] firsthand observation of [a witness’] conduct, demeanor and attitude." (Internal quotation marks omitted.) Noze v. Commissioner of Correction , 177 Conn. App. 874, 885–86, 173 A.3d 525 (2017).

"In Lozada [v. Warden , 223 Conn. 834, 842–43, 613 A.2d 818 (1992)], our Supreme Court established that habeas corpus is an appropriate remedy for the ineffective assistance of appointed habeas counsel, authorizing what is commonly known as a habeas on a habeas, namely, a second petition for a writ of habeas corpus ... challenging the performance of counsel in litigating an initial petition for a writ of habeas corpus ... [that] had claimed ineffective assistance of counsel at the petitioner's underlying criminal trial or on direct appeal. ... Nevertheless, the court in Lozada , also emphasized that a petitioner asserting a habeas on a habeas faces a herculean task ...." (Internal quotation marks omitted.) Lebron v. Commissioner of Correction , 204 Conn. App. 44, 50, 250 A.3d 44, cert. denied, 336 Conn. 948, 250 A.3d 695 (2021). "To prevail on an ineffective assistance of habeas counsel claim ... the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. ... As to each of these inquiries, the petitioner is required to satisfy the familiar two-pronged test set forth in Strickland v. Washington , [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. First, the [petitioner] must show that counsel's performance was deficient....