Ricardo R. v. Comm'r of Corr.

185 Conn.App. 787

198 A.3d 630

RICARDO R.

v.COMMISSIONER OF CORRECTION^*

AC 39578

Appellate Court of Connecticut.

Argued September 6, 2018

Officially released November 6, 2018

Vishal K. Garg, Wethersfield, for the appellant (petitioner).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Richard Colangelo, Jr., Norwalk, state's attorney, and Jo Anne Sulik, Rocky Hill, supervisory assistant state's attorney, for the appellee (respondent).

DiPentima, C.J., and Keller and Pellegrino, Js.

KELLER, J.

Opinion

The petitioner, Ricardo R., appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal and (2) erred by failing to conclude that his criminal trial counsel provided ineffective assistance.¹ We disagree, and, accordingly, dismiss the appeal.

On direct appeal from the petitioner's underlying conviction, our Supreme Court set forth the following relevant facts that the jury reasonably could have found. "When S was approximately four months old, her mother, F, began a relationship with the [petitioner]. In 1996, when S was five years old, the [petitioner] and F moved into an apartment together. S grew up thinking of the [petitioner] as her father, and called him ‘Papi,’ which means ‘dad’ in Spanish. The [petitioner] and F subsequently had two children together, S's two half sisters, G and M. The [petitioner] also had fathered two children with his former girlfriend, J: a daughter, A, who was one year older than S, and a son, R. A and R lived with J, but they often stayed with S's family and the siblings saw each other at least every weekend.

"When F was away or at work, the [petitioner] watched the children. During that time, the [petitioner] engaged in a number of behaviors that made S feel uncomfortable, such as walking around the house naked. The [petitioner] also watched pornographic media while the children were home, and did not turn it off when they walked into the room while he was watching it. On one occasion, when S was in the third or fourth grade, the [petitioner] showed S a homemade videotape of himself and F engaged in various sexual acts. At times, the [petitioner] grabbed S's hand and placed it on his crotch, over his clothing. S was afraid of the [petitioner] because he hit her, particularly when he was drunk, and sometimes with a closed fist. On occasions, S also witnessed the [petitioner] hitting and punching F. A testified at the [petitioner's] trial, describing the effect that the [petitioner's] physical abuse had on the children's behavior: ‘[I]t seemed like we were always trying everything in our power to just do what he wanted so that we didn't have to get disciplined in that way.’

"One particular day, the [petitioner] made S and A play a ‘modeling game.’ During the game, the [petitioner] waited in the living room, while the children went into the bedroom where they had a box of costumes—dresses. They changed into the costumes, and, wearing no underwear as the [petitioner] had instructed, walked into the living room one at a time to be ‘judged’ by the [petitioner]. The [petitioner] told them that he would pay money to whoever walked best like a model. When S came into the living room, the [petitioner] had S lie down on the couch, and he placed his hands under her dress, rubbing her vaginal area with his hands, telling her not to worry, because he had done the same thing to A. On two or three occasions after that, the [petitioner] made S play the modeling game without A. He warned S that if she told anyone what had happened, everyone would blame her and hate her for it.

"In 2001, F left the [petitioner] and moved into her mother's home with her three daughters. The [petitioner] moved into a studio apartment in a neighboring town, where F allowed S and her sisters to continue visiting and staying with him. During this time period, the [petitioner] continued periodically to grab S surreptitiously. On one occasion, when S was in the fifth grade, A and S, who had been playing outside, went inside to take a shower together. While they were in the shower, the [petitioner] walked into the bathroom, removed his clothes and got into the shower with the girls. He ‘bathed’ them, touching their private areas with his hands and made them do the same to him. At that time, S told no one what was transpiring between her and the [petitioner].

"In 2002, when S was approximately eleven or twelve years old, the [petitioner] and F reconciled and moved back in together. The [petitioner's] physical abuse of S continued, and the sexual abuse escalated significantly. The [petitioner] continued to touch S inappropriately, sometimes using his fingers to penetrate her vaginally. The [petitioner] also made S masturbate him with her hands and forced her to give and receive oral sex, striking her if she refused or tried to stop him. In December, 2002, S reported to a teacher at her school that the [petitioner] had hit her. As a result, S and her two sisters were removed from the home and placed with Kids In Crisis.² After one month, G and M were returned to the family home, while S was placed with her grandparents. Some time thereafter, when S assured officials that everything was ‘okay’ at home, she was returned to F and the [petitioner]. At that point, S did not tell F that the [petitioner] was sexually abusing her, nor did she report any sexual abuse to social workers with the department of children and families, who now visited the home. When S returned home, the [petitioner] initially refrained from abusing her. Once the social workers ceased monitoring the home, however, he resumed his physical and sexual abuse of S.

"In February, 2004, F once again broke off her relationship with the [petitioner], and she and the children moved out. Soon thereafter, A filed a complaint alleging that the [petitioner] had physically abused her, exposed the children to pornography, and made A and S shower with him and play the ‘modeling game.’ When the officials who were investigating the complaint questioned S concerning A's allegations, she confirmed that the [petitioner] had showered with A and S, and played the modeling game with them, but she did not discuss the sexual aspects of either incident, and she denied that the [petitioner] had touched her inappropriately in either instance. S did not tell investigators about the additional times that the [petitioner] had played the modeling game with her alone, and when investigators asked her if the [petitioner] had sexually assaulted her, she told them that he had not. After A filed her complaint, F did not allow the [petitioner] to see S, and F subsequently broke off contact with him.

"S first told F about the sexual abuse in June, 2007, and F reported the sexual abuse to the Greenwich police the next day. The state subsequently charged the [petitioner] in a substitute information with one count of risk of injury to a child in violation of [General Statutes] § 53-21 (a) (2), and two counts of sexual assault in the first degree in violation of [General Statutes] § 53a-70 (a) (1) and (2). The jury found the [petitioner] guilty on all counts. On January 7, 2010, the trial court sentenced the [petitioner] to twenty years incarceration on each count, with the sentences to run concurrently, followed by five years of special parole." (Footnotes altered or omitted.) State v. Ricardo R. , 305 Conn. 581, 584–87, 46 A.3d 139 (2012). Our Supreme Court affirmed the petitioner's conviction. Id., at 594, 46 A.3d 139. Additional facts will be set forth as necessary.

On April 13, 2011, the petitioner, as a self-represented litigant, filed a petition for a writ of habeas corpus. On December 22, 2014, after being appointed counsel, the petitioner filed an amended petition alleging, in relevant part, that his representation by his criminal trial counsel, Attorney Wayne Keeney, was deficient because Keeney failed to adequately cross-examine, impeach, and challenge the testimony of the state's expert witness, Dr. Larry Rosenberg; that he failed to consult with and present testimony of a forensic psychologist; and that he failed to adequately present an alternative innocent explanation for the complainant's allegations of sexual abuse.³ The petitioner's first hearing was declared a mistrial by Oliver, J. , and a new hearing on the amended petition was held by Fuger, J. The habeas court, in a sixteen page memorandum of decision, denied the petitioner's amended petition.⁴ On August 22, 2016, the petitioner filed a petition for certification to appeal, which was later denied. That denial is the focus of this appeal.

I

The petitioner first claims that the habeas court improperly denied his petition for certification to appeal. We disagree.

Our Supreme Court has made clear that an appellate court need not reach the merits of a habeas appeal following a denial of certification unless the petitioner can demonstrate that the habeas court abused its discretion in doing so. Simms v. Warden , 229 Conn. 178, 187, 640 A.2d 601 (1994). In determining whether a habeas court abused its discretion in denying certification to appeal, the petitioner must 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." (Internal quotation marks omitted.) Henderson v. Commissioner of Correction , 181 Conn. App. 778, 794–95, 189 A.3d 135, cert. denied, 329 Conn. 911, 186 A.3d 707 (2018).

In ascertaining whether the habeas court abused its discretion in a denial of certification case, "we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the...