Lance W. v. Comm'r of Corr.

204 Conn.App. 346

251 A.3d 619

LANCE W.

v.COMMISSIONER OF CORRECTION^*

AC 39968

Appellate Court of Connecticut.

Argued January 4, 2021

Officially released May 4, 2021

Erica A. Barber, assigned counsel, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, former state's attorney, and David M. Carlucci, senior assistant state's attorney, for the appellee (respondent).

Elgo, Cradle and Suarez, Js.

CRADLE, J.

The petitioner, Lance W., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus alleging ineffective assistance of his first habeas appellate counsel.¹ On appeal, the petitioner claims that the habeas court erred in rejecting his claim that his first habeas appellate counsel was ineffective in failing to challenge on appeal the first habeas court's rejection of his claims that (1) he is actually innocent of the crimes of which he was convicted, (2) his constitutional right to due process was violated because his conviction was based on scientifically invalid evidence, and (3) his trial counsel was ineffective in challenging the expert testimony adduced by the state pertaining to the cause of the victim's death and the fire science evidence. We affirm the judgment of the habeas court.

The following facts, as recited by our Supreme Court in upholding this court's affirmance of the petitioner's conviction on direct appeal, are relevant to our resolution of the petitioner's claims. "On November 19, 1994, at approximately 3:19 a.m., Ronald McClain and Sheila McClain, neighbors who lived across the street from the [petitioner on Hillside Avenue in Plymouth], awoke to screams from the [petitioner's] children. Ronald McClain observed an orange glow coming from the left side of the [petitioner's] house. He also observed the [petitioner's] two children on the roof of the front porch, a ladder against the front porch and the [petitioner] standing at the bottom of the ladder. [Ronald] McClain called 911 and went downstairs to let the [petitioner and his children] into [McClain's] home. The children were screaming that their house was on fire and that they could not find their mother [Wendy W.]. The [petitioner] stated that his wife was in the house, that he could not get her out and that he did not know if she had come home. The children remained at the McClain home while the [petitioner] and Ronald McClain returned to the burning house. The [petitioner] again stated that he did not know if his wife had come home that evening.

"The firefighters arrived a few minutes later and found the [petitioner] outside the house, confused and attempting to put water on the fire with a garden hose. The [petitioner] told the firefighters that he did not know his wife's whereabouts. Later, the [petitioner], while he pointed to the den, told fireman Frederick Telke, ‘Yes, she's in here, she's in here.’ When asked if he was sure, the [petitioner] walked to the driveway and pointed to his wife's car.

"Firefighters entered the home and approached the den, where the fire was concentrated, but were unable to remain due to the high temperatures, heavy smoke and unstable floor. The body of the victim ... was later found in this area. Firefighters also entered the second floor of the house and found only smoke damage. They did not hear any smoke detector alarms.

"Several hours later, Officer Gerald Allain of the Plymouth [P]olice [D]epartment questioned the [petitioner]. The [petitioner] stated that the victim smoked cigarettes and that he recalled the smoke alarms going off. He stated that the thick smoke forced him to his knees [and that] he took the children to the porch roof.

"On November 19, 1994, the [petitioner] gave a signed, written statement to the police. He indicated that the victim slept on the couch because their marriage was ‘on the rocks.’ That same day, the [petitioner] told the victim's uncle, James Castiola, that he knew what had happened. He stated that the victim had come home, and had lain down on the couch, [near] approximately fifty videotapes. While on the couch, the victim had lit a cigarette and had fallen asleep. The [petitioner] told Castiola that the fire had been accelerated by the videotapes, which cannot be put out when they catch fire.

"State Trooper Kevin McGurk was assigned to determine the cause and origin of the fire. He examined the [petitioner's] home the following morning and determined that the fire originated in the den. McGurk discovered a pour pattern [consisting of a line of holes] leading up to the area of origin, which indicated that an accelerant had been used. On the basis of his observations, McGurk concluded that the fire had been intentionally set. Other officers executed a search warrant on the [petitioner's] home and retrieved an empty bottle of bleach from the basement and a can of acetone from the storage shed. Joseph Cristino, a forensic analysis engineer, examined the two smoke detectors retrieved from the [petitioner's] home. [Cristino found that it was ‘highly improbable’ that the first floor smoke detector was working at the time of the fire and that, had the battery been connected to the second floor detector, there was a high probability that it would have worked at the time of the fire.]

"A notebook also was seized from the [petitioner's] bedroom dresser. The parties stipulated that the notes contained therein were written in the [petitioner's] handwriting. The [petitioner] was a member of the fire brigade at work and had received training in chemical fires and hazardous materials. The [petitioner] was familiar with spontaneous combustion caused by the combination of alkalies and acids. The [petitioner] admitted writing various phrases in the notebook, such as ‘lock box in shed,’ ‘tool box,’ ‘acetone,’ ‘alcohol clorox,’ ‘alm foil,’ ‘dry run,’ ‘rope kds drs,’ ‘straps,’ ‘pillow,’ ‘oil in can,’ ‘rid of stuff,’ ‘glvs,’ ‘hat,’ ‘shirt,’ ‘cigs,’ and ‘ldr.’ The [petitioner] stated that these abbreviations could have been a camping list, but that he did not know why he wrote these abbreviations." State v. Wargo , 255 Conn. 113, 117–19, 763 A.2d 1 (2000).

"On direct examination, [the state's associate medical examiner, Malka] Shah testified about the results of the autopsy that she had performed on the victim. Shah explained that the victim's body had been burned beyond recognition, and that the victim could be identified only by reference to her dental records. Shah further stated that the victim's body was so badly charred that she was unable to conduct an examination of the victim's skin. Shah, however, indicated that she was able to examine the victim's internal organs, including her lungs. Shah stated that, on the basis of her examination of those organs, the victim ‘definitely’ had died prior to the fire." Id., at 119–20, 763 A.2d 1. "Shah explained that the lack of soot in the victim's lungs and larynx and on the victim's tongue, coupled with the low level of carbon monoxide in her blood, led her to conclude that the victim ‘was definitely dead before the fire.’ " Id., at 120 n.7, 763 A.2d 1. "Moreover, although Shah testified that she could not determine either the cause of the victim's death or the manner in which she had died, Shah's examination of the victim's internal organs revealed that the victim had not died of natural causes." Id., at 120, 763 A.2d 1.

The petitioner was convicted of one count of murder in violation of General Statutes § 53-54a (a), two counts of arson in the first degree in violation of General Statutes § 53a-111 (1) and (4), one count of tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1), and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. As noted, his conviction was affirmed by this court and our Supreme Court.

On July 25, 2005, the petitioner filed an action seeking a writ of habeas corpus (first habeas action) on the following bases: (1) that he is actually innocent of the crimes of which he was convicted; (2) that his right to due process was violated because the expert testimony presented at his criminal trial regarding the cause of the victim's death and the cause and origin of the fire was false and unreliable; (3) that his trial attorney provided ineffective assistance because he had a conflict of interest in representing him in a civil contingent fee matter against his homeowners insurance carrier and in the criminal matter giving rise to the present habeas petition; and (4) that his trial attorney was ineffective in his cross-examination of the witnesses who testified as to the cause of the victim's death and the fire science evidence.

Following a ten day trial, the habeas court, Schuman, J . (first habeas court), issued a memorandum of decision dated January 20, 2011, in which it rejected all four of the petitioner's claims and denied his petition. The habeas court thereafter granted the petitioner's petition for certification to appeal to this court.

On appeal, the petitioner, who was then represented by Attorney Christopher Y. Duby, challenged only the first habeas court's rulings that the petitioner's trial counsel had a conflict of interest and inadequately cross-examined the state's expert witnesses regarding the cause of the victim's death and the cause of the fire in accordance with State v. Porter , 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), which was decided a few months after the conclusion of the petitioner's criminal trial. Wargo v. Commissioner of Correction , 144 Conn. App. 695, 73 A.3d 821 (2013), appeal dismissed, 316 Conn. 180, 112 A.3d 777 (2015). This court affirmed the judgment of the first habeas court. Id.

The petitioner thereafter filed the present habeas action, alleging ineffective assistance of Duby in appealing from the first habeas court's denial of his first habeas...