Schuler v. Comm'r of Corr.

200 Conn.App. 602

238 A.3d 835

Sheldon SCHULER

v.COMMISSIONER OF CORRECTION

AC 41886

Appellate Court of Connecticut.

Argued July 1, 2020

Officially released October 6, 2020

Vishal K. Garg, assigned counsel, for the appellant (petitioner).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, Gary Nicholson, former senior assistant state's attorney, and Adrienne Russo, assistant state's attorney, for the appellee (respondent).

Lavine, Alvord and Bright, Js.^*

ALVORD, J.

The petitioner, Sheldon Schuler, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus, in which he challenged his conviction of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (3). On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly denied his ineffective assistance of counsel claim. We dismiss the appeal.

In its memorandum of decision, the habeas court quoted this court's decision in State v. Schuler , 157 Conn. App. 757, 118 A.3d 91, cert. denied, 318 Conn. 903, 122 A.3d 633 (2015), which summarized the facts reasonably found by the jury in the petitioner's underlying criminal case. "On January 27, 2012, the victim was celebrating her thirtieth birthday at her home with several friends and family members. Among those in attendance were the victim's three older sisters, CM, LM and SM, and the [petitioner]. The [petitioner] cohabitated with SM at the time and is the father of three of her children.

"During the party, the victim drank three shots of alcohol and one wine glass sized cup of vodka punch and smoked marijuana. At around 12 a.m., the victim started to take a sip of vodka punch when she felt a spinning sensation in her head. One of her sisters, CM, observed the victim stumble and noted that she appeared to be intoxicated. Shortly afterwards, the victim decided to go upstairs and lie down. After going upstairs, she felt cool air coming from a fan in her son's bedroom and decided to enter that room instead of her own bedroom. She lay down on the floor, hoping that the cool air would alleviate the spinning sensation in her head. When SM entered the room and asked the victim if everything was okay, the victim responded that something was wrong. The victim then removed her jewelry and shirt and fell asleep. SM noticed that the victim appeared to be intoxicated.

"At around 1:30 a.m., the party ended and SM and KS, a friend of the victim, went upstairs to say goodbye. SM placed the victim's cell phone near her head and told her that they had cleaned up and were going to leave. At that point, only CM, SM, KS, and the [petitioner] remained in the house. After locking the doors, CM drove SM and the [petitioner] to their home. KS left the victim's house separately.

"At approximately 1:40 a.m., SJ, the victim's boyfriend, arrived at the victim's house. He had been invited to the party but had been unable to attend. On his way over to the victim's house, he placed several calls to the victim's cell phone but received no response. Upon arriving at the house, he noticed that the lights were on, and he proceeded to knock on the door, ring the doorbell, and shout into the mailbox slot. After receiving no response, SJ left the victim's house and went out with a friend. SJ testified that the victim was a very heavy sleeper, especially after consuming alcohol.

"Meanwhile, SM and the [petitioner] arrived back at their home. Just before 2:46 a.m., the [petitioner] told SM that he needed to go to the bank and to buy cigarettes.

The [petitioner] walked several blocks from his house and then called a taxi using SM's cell phone. The taxi picked up the [petitioner] at 2:53 a.m. and dropped him off at the victim's house. The [petitioner] then entered the victim's house using keys given to him by SM earlier in the night.

"At approximately 3 a.m., the victim believed that she was dreaming that someone was on top of her, licking her breasts and vagina, and penetrating her vagina. When the victim awoke, she found the [petitioner] on top of her, subjecting her to sexual intercourse. She quickly pushed the [petitioner] off of her, screamed, and ran into her bedroom. Although it was dark in her son's room, she was able to identify the [petitioner] because the lights in her bedroom were on, casting light into her son's room. The victim heard the [petitioner] walk downstairs and then saw him, through an upstairs window, exit the house through the back door. The victim quickly located her car keys and cell phone, and drove to SM's home.

"As she was driving to SM's home, the victim contacted SJ on his cell phone. The victim was crying and more upset than SJ had ever witnessed her at any other time during their four year relationship. The victim would not explain to SJ what was wrong, but told him that she was driving to SM's home. When she arrived, the victim told SM what had happened. SM responded by stating her belief that the [petitioner] was at home, but after searching the home, she determined that he was not there.

"About ten to fifteen minutes later, SJ arrived at SM's home. As he was standing outside, the [petitioner] arrived. The [petitioner] approached SJ and said, ‘Do you wanna fight?’ SJ was confused by the question, as he had not yet been apprised of the evening's events. As a result, no confrontation occurred between him and the [petitioner], and the [petitioner] entered the home. When the [petitioner] entered, SM began to yell at him and hit him repeatedly. Initially, the victim ran away, but later she joined her sister in hitting the [petitioner]. Eventually, SJ pulled the victim away from the [petitioner], and together they left the premises in SJ's car.

"SJ then drove the victim to Yale-New Haven Hospital, where she was examined by a nurse with specialized training in treating victims of sexual assault. After examining the victim, the nurse gathered evidence from her using a sexual assault evidence collection kit, and notified the police of the incident. During the examination, saliva was found on both of the victim's breasts and sperm was found in the victim's vagina. Subsequent testing of DNA extracted from the seized saliva and sperm samples revealed that it matched the [petitioner's] DNA.

"The [petitioner] was subsequently charged with one count of sexual assault in the second degree in violation of § 53a-71 (a) (3). On July 10, 2013, at the conclusion of trial, a jury found the [petitioner] guilty as charged. The court then sentenced the [petitioner] to ten years imprisonment, execution suspended after seven years, with fifteen years of probation." (Footnotes omitted.) Id., at 759–62, 118 A.3d 91. Following his conviction, the petitioner appealed to this court, claiming that the trial court improperly (1) admitted evidence of his prior sexual misconduct toward the victim and (2) instructed the jury concerning such prior sexual misconduct evidence. Id., at 758–59, 118 A.3d 91. This court affirmed the trial court's judgment of conviction; id., at 759, 118 A.3d 91 ; and our Supreme Court denied the petitioner's petition for certification to appeal. State v. Schuler , 318 Conn. 903, 122 A.3d 633 (2015).

On February 27, 2015, the self-represented petitioner filed a petition for a writ of habeas corpus. On July 18, 2017, following the appointment of counsel, the petitioner filed an amended petition, in which he alleged that Christopher Y. Duby, defense counsel at his criminal trial, rendered ineffective assistance.¹ Following a trial on the amended petition, the habeas court issued a memorandum of decision on May 10, 2018, in which it denied the petitioner's claims. Thereafter, on May 16, 2018, the petitioner filed a petition for certification to appeal on Judicial Branch form JD-CR-84A (petition for certification form). The petition for certification form contains a section wherein a petitioner must set forth "[t]he grounds for [his] request for certification" by marking one of two boxes. By marking the first box, a petitioner indicates that his grounds for certification are "written in the Application for Waiver of Fees, Costs and Expenses and Appointment of Counsel on Appeal (Form JD-CR-73), which [he will be] submitting with [his] petition." By marking the second box, a petitioner indicates that his grounds for certification are stated on the petition for certification form, specifically in a lined space to the right of the second box and adjacent text stating, "(Specify grounds, attach additional sheets if necessary )." (Emphasis in original.)

In the present case, the petitioner marked the first box, signaling that his grounds for certification were written in the application for waiver of fees, costs and expenses and appointment of counsel on appeal form (application form) that he would attach to his petition for certification form. The petitioner, however, failed to attach an application form to his petition for certification form. Moreover, on his petition for certification form, the petitioner neither marked the second box nor wrote his grounds for certification in the lined space to the right of the second box. Accordingly, no specific grounds for appeal were raised before the habeas court.

On June 15, 2018, the court denied the petitioner's petition for certification, writing on its denial: "No grounds stated; no fee waiver with grounds filed." On June 28, 2018, the petitioner filed his application form. The application form was dated May 16, 2018. In the space provided to write the "grounds on which [he] propose[d] to appeal," the petitioner wrote: "1.) Whether or not the court [erred] in not finding ineffective assistance of counsel. 2.) Any other issue that may become apparent after a review of the trial transcripts." On June 28, 2018, the court...