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ERNEST FRANCIS v. COMMISSIONER

OF CORRECTION

(AC 34349)

(AC 34449)

DiPentima, C. J., and Gruendel and Mihalakos, Js.

Argued April 24—officially released July 15, 2014

(Appeal from Superior Court, judicial district of

Tolland, Newson, J.)

Ernest Francis, self-represented, the appellant (petitioner).

Margaret Gaffney Radionovas, senior assistant

state’s attorney, with whom, on the brief, were Gail

P. Hardy, state’s attorney, and Jo Anne Sulik, senior

assistant state’s attorney, forthe appellee (respondent).
Opinion

PER CURIAM. The self-represented petitioner,

Ernest Francis, appeals from 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.1 First, the petitioner claims that the

habeas court abused its discretion in denying his petition for certification to appeal. Second, the petitioner

claims that the habeas court improperly (1) dismissed

his constitutional claims, (2) rejected his claims of ineffective assistance of counsel, and (3) denied him the

opportunity to subpoena certain witnesses. We dismiss

the appeal.

In 1992, the petitioner was convicted of murder and

sentenced to fifty years incarceration. State v. Francis,

228 Conn. 118, 635 A.2d 762 (1993). In 1995, the petitioner filed his first petition for a writ of habeas corpus.

After a trial, the court denied the petition and the petitioner’s subsequent petition for certification to appeal.

See Francis v. Warden, Superior Court, judicial district

of Hartford–New Britain at Hartford, Docket No. CV95-0550706 (February 18, 1998), appeal dismissed, 63

Conn. App. 282, 775 A.2d 1004, cert. denied, 256 Conn.

933, 776 A.2d 1150 (2001). In 2000, the petitioner filed

his second petition for a writ of habeas corpus. After

a trial, the court denied the petition. This court affirmed

that judgment. Francis v. Commissioner of Correction,

142 Conn. App. 530, 66 A.3d 501, cert. denied, 310 Conn.

92, 177 A.3d 141 (2013). In 2008, the petitioner filed his

third petition for a writ of habeas corpus, the subject

of the present appeal.

In a six count amended petition, the petitioner alleged

that (1) General Statutes § 54-46a, the statute providing

for probable cause hearings for persons charged with

crimes punishable by death or life imprisonment, is

unconstitutional, and (2) his prior habeas counsel provided ineffective assistance of counsel. The respondent,

the Commissioner of Correction, denied the allegations

and raised several special defenses. On October 28,

2011, the habeas court dismissed the petitioner’s constitutional claims. On December 19, 2011, following an

evidentiary hearing, the habeas court rejected the petitioner’s claims of ineffective assistance of counsel. Subsequently, the petitioner filed a petition for certification

to appeal the habeas court’s decision, which was

denied. This appeal followed.

‘‘The standard of review and the hurdles a petitioner

must overcome to obtain appellate review of a habeas

court’s denial of a petition for a writ of habeas corpus

after certification to appeal has been denied are well

known. . . . In Simms v. Warden, 229 Conn. 178, 187,

640 A.2d 601 (1994), [our Supreme Court] concluded

that . . . [General Statutes] § 52-470 (b) prevents a

reviewing court from hearing the merits of a habeas
appeal following the denial of certification to appeal

unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas

court. In Simms v. Warden, 230 Conn. 608, 615–16, 646

A.2d 126 (1994), [our Supreme Court] incorporated the

factors adopted by the United States Supreme Court in

Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860,

112 L. Ed. 2d 956 (1991), as the appropriate standard

for determining whether the habeas court abused its

discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the

issues are debatable among jurists of reason; that a

court could resolve the issues [in a different manner];

orthatthe questions are adequate to deserve encouragement to proceed further. . . . A petitioner who establishes an abuse of discretion through one of the factors

listed above must then demonstrate that the judgment

of the habeas court should be reversed on its merits.

. . . In determining whether the habeas court abused

its discretion [a reviewing court] necessarily must consider the merits of the petitioner’s underlying claims to

determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.’’ (Citation omitted; emphasis omitted; internal quotation

marks omitted.) Oliphant v. Commissioner of Correction, 146 Conn. App. 499, 513–14, 79 A.3d 77, cert.

denied, 310 Conn. 963, 83 A.3d 346 (2013).

Having considered the merits of the petitioner’s

claims on appeal, we are not persuaded that the habeas

court abused its discretion in denying the petition for

certification to appeal, as the issues are not debatable

among jurists of reason, a court could not resolve the

issues in a different manner and the questions presented

are not adequate to deserve encouragement to proceed further.

First, the petitioner’s claim that § 54-46a is unconstitutional in that it fails to provide a right to disqualify

a judge, a right to an impartial tribunal or a right to

participate is meritless. The right of the accused to be

heard by an impartial tribunal is guaranteed by the state

and federal constitutions and need not be recited in

each statute delineating the criminal procedure of the

state. See Conn. Const., art. I, § 8; U.S. Const., amend.

VI. A mechanism to challenge the judge presiding at

the petitioner’s probable cause hearing and trial existed

at the time of those proceedings and exists today. Practice Book §§ 1-22 and 1-23 (formerly Practice Book

[1978–97] §§ 996 and 997).

Second, the petitioner’s claims of ineffective assistance of counsel are meritless in light of the habeas

court’s factual findings. Both attorneys alleged to have

performed ineffectively testified at the habeas trial and

expressly were found to be credible and to have performed competently. The habeas court also expressly

found that the petitioner had failed to produce any
credible evidence supporting his allegations. The

habeas court specified that the petitioner had not met

his burden with respect to either performance or prejudice as to any of his claims. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984) (requiring that habeas petitioner satisfy performance prong, by demonstrating that counsel made

errors so serious that counsel was not functioning as

constitutionally guaranteed counsel, and prejudice

prong, by demonstrating reasonable probability that,

but for counsel’s unprofessional errors, result of proceeding would have been different). The habeas court’s

findings are supported by evidence in the record and

there is no basis to disturb them on appeal. Linarte v.

Commissioner of Correction, 147 Conn. App. 500, 504,

89 A.3d 1 (‘‘As an appellate court, we do not reevaluate

the credibility of testimony . . . . Rather, we must

defer to the [trier of fact’s] assessment of the credibility

of the witnesses based on its firsthand observation of

their conduct, demeanor and attitude.’’ [Internal quotation marks omitted.]), cert. denied, 311 Conn. 944,

A.3d (2014).

Finally, the petitioner’s claims that the habeas court

improperly denied him the opportunity to subpoena

certain witnesses is meritless.2 The court is granted

broad discretion in issuing subpoenas for witnesses on

behalf of self-represented parties. Practice Book § 7-19

(‘‘[a] judge . . . may direct or deny the issuance of

subpoenas as such judge deems warranted under the

circumstances, keeping in mind the nature of the scheduled hearing and future opportunities for examination

of witnesses, as may be appropriate’’). The petitioner

has not presented any persuasive argument as to why

the habeas court’s decision not to issue subpoenas to

certain witnesses constitutes an abuse of that discretion.

Accordingly, we conclude that all of the petitioner’s

claims are without merit and that the habeas court

acted properly in denying his petition for certification

to appeal.

The appeal is dismissed.

1 On February 14, 2012, the petitioner filed two appeals from the same

underlying judgment of the habeas court, one to this court and one to our

Supreme Court. On April 20, 2012, our Supreme Court transferred the latter

appeal to this court pursuant to Practice Book § 65-4. On August 2, 2012,

by order of this court, the two appeals were consolidated pursuant to Practice Book § 61-7.

2 The petitioner also claims that the habeas court improperly denied him

access to the court when it did not review all of the evidence before it. The

petitioner relies exclusively on an excerpt of the hearing transcript wherein

the court states that ‘‘during lunch break, the court has taken the opportunity

to review, not all clearly, but a decent portion of the exhibits.’’ It cannot

be inferred from this single comment that the court failed to review the

entirety of the evidence at any point during the proceedings. Therefore, we

conclude that this claim is also meritless.