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*********************************************** 
DAVID A. ABRAMS v. COMMISSIONER

OF CORRECTION

(AC 40719)

Keller, Bright and Devlin, Js.

Syllabus

The petitioner, who had been convicted of the crimes of attempt to commit

murder, assault in the first degree, and criminal possession of a firearm

in connection with a shooting incident, filed a fourth petition for a writ

of habeas corpus, claiming that he had received ineffective assistance

of counsel from D, who had represented him with respect to his appeal

of the habeas court’s denial of his first habeas petition. Specifically, the

petitioner alleged that D was ineffective for withdrawing the appeal at

the petitioner’s direction and that he would not have withdrawn the

appeal but for D’s poor advice regarding his ability to proceed with

the appeal as a self-represented party, and that his subsequent habeas

counsel, A and M, rendered ineffective assistance by failing to raise a

claim regarding D’s ineffectiveness. The habeas court rendered judgment

denying the habeas petition, from which the petitioner, on the granting of

certification, appealed to this court. Held that the habeas court properly

determined that D did not render ineffective assistance; that court properly determined that D acted reasonably in withdrawing the appeal, as

it would have been unreasonable for D to ignore the petitioner’s directive

to withdraw the appeal under the circumstances and, thus, D’s conduct

in withdrawing the appeal did not fall below an objective standard of

reasonableness, and the petitioner’s claim that D was deficient in failing

to advise the petitioner that he had a right to proceed as a self-represented party was unavailing, as the petitioner’s expression of dissatisfaction with D’s choice of claims to raise on appeal did not confer on D a

duty to explain to the petitioner his right to proceed as a self-represented

party, the petitioner did not indicate to D that he was interested in

proceeding as self-represented, and, thus, there was no reason for D to

discuss the attendant rights with him.

Argued May 29—officially released September 17, 2019

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland and tried to the court, Oliver, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court.

Affirmed.

Judie Marshall, with whom, on the brief, was Walter

C. Bansley IV, for the appellant (petitioner).

Sarah Hanna, assistant state’s attorney, with whom,

on the brief, were Stephen J. Sedensky, state’s attorney,

and Jo Anne Sulik, supervisory assistant state’s attorney, for the appellee (respondent).
Opinion

DEVLIN, J. The petitioner, David A. Abrams,1 appeals,

following the granting of his certification to appeal,

from the judgment of the habeas court denying his

fourth petition for a writ of habeas corpus. He claims

that counsel who represented him in the appeal taken

from the denial of his first petition for a writ of habeas

corpus, John C. Drapp, rendered ineffective assistance

by withdrawing the appeal pursuant to Practice Book

§ 63-9.2 On appeal, the petitioner asserts that the habeas

court erred in concluding that Drapp did not render

ineffective assistance by withdrawing the appeal at the

petitioner’s direction because his decision to withdraw

the appeal was based on Drapp’s poor advice.3 We disagree and, accordingly, affirm the judgment of the

habeas court.

The following procedural history and facts, as found

by the habeas court, are relevant to this appeal. The

petitioner was convicted, following a jury trial, of

attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree

in violation of General Statutes § 53a-59 (a) (1), and

criminal possession of a firearm in violation of General

Statutes § 53a-217. The petitioner’s sentence was

enhanced pursuant to General Statutes § 53-202k based

on the finding that he committed a class B felony with

a firearm. On December 7, 2011, the petitioner was

sentenced to a total effective sentence of fifty-one years

of incarceration, followed by nine years of special

parole.4 The petitioner subsequently appealed to this

court, which affirmed the judgment of the trial court

and determined that the jury reasonably could have

found the following facts:

‘‘The [petitioner] and the victim, Jacqueline Peton,

were involved in a sometimes volatile, live-in relationship from December, 1994, until August, 2000, during

which time they had a child. Prior to the relationship

ending, the victim called the Danbury police in August,

2000, claiming that the [petitioner] had violated the

restraining order that she had obtained against him

living with her. At that time, to give the victim ‘a taste

of her own medicine,’ the [petitioner] called her

employer and reported that she was stealing cleaning

products at work and selling them.

‘‘On November 1, 2000, the [petitioner] went to the

victim’s apartment to see his son. When the victim did

not allow him into her apartment, the [petitioner] threatened to kill her and stated that he was going to report

her to the department of children and families for child

abuse. During the early evening hours of November 3,

2000, the [petitioner] and the victim had an argument

during a telephone conversation. After the victim hung

up, the [petitioner] repeatedly called her telephone

number. Despite the [petitioner]’s objections, she went
out that night with Ricky Cordiero. At approximately

5 a.m. on November 4, 2000, the victim returned to her

apartment complex and observed the [petitioner] sitting

in his vehicle, a black Chrysler sedan with custom wheel

rims. As the victim walked toward her building, the

[petitioner] ran to her with a gun in his hand and

grabbed her. When she escaped, the [petitioner] circled

her and fired a series of shots at her, wounding her in

the leg, elbow and buttocks. After the [petitioner]’s gun

jammed, as he left the scene, he told the victim, ‘I’m

going to get you. I’m going to have somebody f*cking

kill you.’ ’’ State v. Abrahams, 79 Conn. App. 767, 769–

70, 831 A.2d 299 (2003).

The petitioner filed his first amended petition for a

writ of habeas corpus on September 17, 2003, in which

he asserted twenty-three claims of ineffective assistance of trial counsel, Joseph Romanello. The petition

was denied by the habeas court in a memorandum of

decision issued February 28, 2005.

The petitioner filed an appeal from the denial of his

first habeas petition on August 3, 2005, wherein he was

represented by Drapp. Drapp submitted a brief to the

Appellate Court on February 22, 2006, in which he raised

the following issue: ‘‘Did the habeas trial court err in

finding that the petitioner received effective assistance

of counsel at the sentencing hearing on the underlying

criminal charges?’’ More specifically, the petitioner

claimed that the habeas court erred in not finding that

his trial counsel was ineffective for failing to take any

action to stop the petitioner’s verbal assault of the victim, the judge, the prosecutor and his own trial counsel

during allocution at sentencing. Drapp also filed a reply

brief for the case on August 9, 2006, and the case was

‘‘marked ready’’ on the same date. On September 26,

2006, Drapp withdrew the appeal pursuant to Practice

Book § 63-9, indicating on the required form that he

was withdrawing ‘‘as a result of some activity before

the case was assigned to the settlement program.’’

(Emphasis omitted.)

Prior to the withdrawal of the appeal from the denial

of his first habeas petition, the petitioner had filed a

second petition for a writ of habeas corpus, in which

he was represented by Attorney Salvatore Adamo. This

second habeas petition was denied in a memorandum

of decision dated April 7, 2008; Abrams v. Warden,

State Prison, Superior Court, judicial district of Tolland,

Docket No. CV-04-4000112-S (April 7, 2008); and the

appeal was dismissed by this court on February 16,

2010. Abrams v. Commissioner of Correction, 119

Conn. App. 414, 987 A.2d 370, cert. denied, 295 Conn.

920, 991 A.2d 564 (2010). The petitioner’s third habeas

petition, in which he was represented by Attorney Justine Miller, was also denied by the habeas court;Abrams

v. Commissioner of Correction, Superior Court, judicial

district of Tolland, Docket No. CV-10-4003316-S
(November 13, 2012); and the appeal was subsequently

dismissed by this court on April 8, 2014. Abrams v.

Commissioner of Correction, 149 Conn. App. 903, 87

A.3d 631, cert. denied, 312 Conn. 905, 93 A.2d 157 (2014).

Neither the petitioner’s second nor third habeas petitions alleged that Drapp was ineffective for withdrawing

the first habeas appeal.

In his amended petition in the present case, the petitioner alleged that Drapp rendered ineffective assistance by withdrawing the appeal taken from the denial

of his first habeas petition and that subsequent habeas

counsel, Adamo and Miller, also rendered ineffective

assistance of counsel by failing to raise a claim regarding Drapp’s ineffectiveness, as a result of his withdrawal

of the appeal in the first habeas petition, in the second

and third habeas petitions, respectively. At the trial on

the underlying habeas petition, Drapp testified that he

represented the petitioner in the appeal from the denial

of his first habeas petition. Based on his review of the

pleadings, the evidence presented at the first habeas

trial, the habeas court’s decision, and appropriate legal

research, he determined that he would raise one issue

on appeal, namely, that the habeas court had erred in

concluding that the petitioner’s trial counsel did not

render ineffective assistance at the petitioner’s sentencing.

Prior to oral argument, Drapp received a letter from

the petitioner stating that he wished to withdraw the

appeal. Drapp, however, could not recall some eleven

years later what the petitioner’s stated reason was in

the letter for his request to withdraw the appeal. After

receiving the letter, Drapp spoke with the petitioner

about the request. Although he could not remember the

details of the conversation, Drapp testified that he was

certain that they would have discussed his reasons for

requesting the withdrawal and also believed that he

would have advised the petitioner that it was against

his interests to withdraw the appeal.

The petitioner then testified as to his recollection of

the events at issue. He agreed that Drapp visited him

at the correctional institution where he was housed to

discuss the letter before withdrawing the appeal. During

the meeting, the petitioner expressed his concern that

Drapp had elected to raise only one issue on appeal

when twenty-three issues had been litigated at the

habeas trial. In response to the petitioner’s concerns,

Drapp stated that the only issue that was preserved for

appeal was the one that he had raised in his brief. The

petitioner then informed Drapp that the brief he had

prepared was ‘‘garbage’’ and that the issue he had chosen to pursue was not a winnable one. Drapp replied

that the only option, rather than go forward on the one

issue as briefed, would be to withdraw the appeal and

proceed with his second habeas corpus petition against

Attorney Bruce McIntyre, the petitioner’s first habeas
attorney. The petitioner, believing that he could not win

on the appeal as it was briefed and wanting to avoid

any further delay in litigation, directed Drapp to withdraw the appeal in subsequent correspondence.

The petitioner testified that, during their conversation about withdrawing the appeal, Drapp never

informed him that he could proceed as a self-represented party and, therefore, he believed his only option

was to proceed with the appeal as briefed or to withdraw. He further asserted that, had Drapp explained

that he had the right to proceed as self-represented, he

would have done so because he had represented himself

in the past. Finally, the petitioner testified that he discussed with both Adamo and Miller raising a claim of

ineffective assistance by Drapp based on his withdrawal

of the appeal, but neither counsel raised this claim in

their respective habeas petitions.

The court denied the petition in a memorandum of

decision issued on July 12, 2017, finding that the petitioner had failed to establish that Drapp’s performance

was constitutionally deficient and had further failed to

establish that he was prejudiced by Drapp’s withdrawal

of the appeal by demonstrating that, but for the withdrawal, the petitioner would have prevailed on his claim

on appeal. The court granted the petitioner’s petition

for certification to appeal on July 21, 2017, and this

appeal followed.

‘‘Before turning to the petitioner’s claims, we set forth

basic principles governing the present appeal. The use

of a habeas petition to raise an ineffective assistance

of habeas counsel claim, commonly referred to as a

habeas on a habeas, was approved by our Supreme

Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d

818 (1992). In Lozada, the court determined that the

statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296 (a) includes

an implied requirement that such counsel be effective,

and it held that the appropriate vehicle to challenge the

effectiveness of habeas counsel is through a habeas

petition. . . . In Lozada, the court explained that [t]o

succeed in his bid for a writ of habeas corpus, the

petitioner must prove both (1) that his appointed habeas

counsel was ineffective, and (2) that his trial counsel

was ineffective.’’ (Internal quotation marks omitted.)

Adkins v. Commissioner of Correction, 185 Conn. App.

139, 150–51, 196 A.3d 1149, cert. denied, 330 Conn. 946,

196 A.3d 326 (2018).

‘‘To succeed on an ineffective assistance of appellate

counsel claim, the petitioner must satisfy both the performance prong and the prejudice prong of Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984). Small v. Commissioner of Correction,

286 Conn. 707, 712–13, 728, 946 A.2d 1203, cert. denied

sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,

172 L .Ed. 2d 336 (2008). In Strickland . . . the United
States Supreme Court enunciated the two requirements

that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner]

must show that the deficient performance prejudiced

the defense. . . . Unless a [petitioner] makes both

showings, it cannot be said that the conviction . . .

resulted from a breakdown in the adversarial process

that renders the result unreliable.’’ (Internal quotation

marks omitted.) Tutson v. Commissioner of Correction, 168 Conn. App. 108, 122, 144 A.3d 519, cert. denied,

323 Conn. 933, 150 A.3d 233 (2016).

‘‘The standard of appellate review of habeas corpus

proceedings is well settled. The underlying historical

facts found by the habeas court may not be disturbed

unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and

the credibility of their narrators. So-called mixed questions of fact and law, which require the application of

a legal standard to the historical-fact determinations,

are not facts in this sense. . . . Whether the representation a defendant received at trial was constitutionally

inadequate is a mixed question of law and fact. . . .

As such, that question requires plenary review by this

court unfettered by the clearly erroneous standard.’’

(Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d

248 (2008).

As an initial matter, it is undisputed that Drapp withdrew the appeal at the direction of the petitioner. The

parties, however, disagree on the proper framework for

evaluating Drapp’s performance. The parties do not cite,

nor are we aware of, any case directly addressing an

ineffective assistance of counsel claim wherein an attorney withdrew an appeal at the petitioner’s direction

after it had been filed and briefed.5 The respondent

argues that the court’s inquiry into Drapp’s performance

should end with the finding that the petitioner

instructed him to withdraw the appeal. The petitioner

argues that the circumstances leading up to the withdrawal are part and parcel of the petitioner’s claim.

Specifically, the petitioner argues that Drapp performed

deficiently when he failed to inform him that he could

proceed as a self-represented party and, thus, he

believed that his only options were to proceed with

an appeal that he did not believe could succeed or to

withdraw the appeal. The respondent counters that this

is a freestanding claim that the petitioner was required

to plead separately on appeal and, therefore, this court

cannot properly consider Drapp’s advice leading to the

petitioner’s decision to instruct him to withdraw the

appeal when reviewing his performance.

‘‘It is well settled that [t]he petition for a writ of

habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil

action. . . . It is fundamental in our law that the right

of a plaintiff to recover is limited to the allegations of

his complaint. . . . [Although] the habeas court has

considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to

look beyond the pleadings and trial evidence to decide

claims not raised. . . . The purpose of the [petition] is

to put the [respondent] on notice of the claims made,

to limit the issues to be decided, and to prevent surprise.

. . . [T]he [petition] must be read in its entirety in such

a way as to give effect to the pleading with reference

to the general theory upon which it proceeded, and

do substantial justice between the parties.’’ (Internal

quotation marks omitted.) Newland v. Commissioner

of Correction, 322 Conn. 664, 678, 142 A.3d 1095 (2016).

In the present case, the amended petition alleged, in

relevant part, that ‘‘habeas appellate counsel, Attorney

Drapp, was ineffective for withdrawing the petitioner’s

first habeas appeal.’’ There was no further explanation

within the petition for a writ of habeas corpus regarding

the petitioner’s theory of the case for this claim. The

habeas court certified one issue for this court on appeal,

that is: ‘‘Whether the court erred in finding that the

petitioner failed to prove ineffective assistance of appellate counsel for withdrawing the petitioner’s first

habeas appeal.’’

In support of its position, the respondent relies on

Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145

L. Ed. 2d 985 (2000). ‘‘If counsel has consulted with

the defendant, the question of deficient performance is

easily answered: Counsel performs in a professionally

unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal.’’

Id., 478. Thus, the state argues, it would have been

ineffective for Drapp not to have withdrawn the appeal

after the petitioner had instructed him to do so, and

that should end the court’s review of his performance.

In Roe, the Supreme Court considered the ‘‘proper

framework for evaluating an ineffective assistance of

counsel claim, based on counsel’s failure to file a notice

of appeal without [the] respondent’s consent.’’ Id., 473.

The court reasoned: ‘‘We have long held that a lawyer

who disregards specific instructions from the defendant

to file a notice of appeal acts in a manner that is professionally unreasonable. . . . This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice.

Counsel’s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the

defendant’s wishes. At the other end of the spectrum,

a defendant who explicitly tells his attorney not to

file an appeal plainly cannot later complain that, by
following his instructions, his counsel performed deficiently. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.

Ct. 3308, 77 L .Ed. 2d 987 (1983) (accused has ultimate

authority to make fundamental decision whether to take

an appeal).’’ (Citations omitted; emphasis altered.)

Id., 477.

The petitioner disagrees and asserts that his ‘‘claim

that counsel was ineffective for withdrawing his appeal

requires this court to look at the context in which the

appeal was withdrawn,’’ which ‘‘necessitates this court

to examine the . . . advice given leading up to counsel’s withdrawal of [his] appeal.’’ We need not resolve

this question in the present case, however, because our

analysis would reach the same conclusion even if we

take the more expansive view of Drapp’s performance

as urged by the petitioner.

We agree with the habeas court that Drapp acted

reasonably in withdrawing the appeal. The petitioner

had written a letter directing Drapp to withdraw the

appeal. Drapp then met with the petitioner who,

throughout the conversation, continued to express his

desire to withdraw the appeal. In subsequent correspondence, the petitioner indicated for a third time that he

still wished for Drapp to withdraw his appeal. Evaluating counsel’s conduct from his perspective at the time,

we cannot conclude that it fell below an objective standard of reasonableness for Drapp to withdraw the

appeal. Guided by Roe, we agree with the respondent

that it would have been unreasonable for Drapp to

ignore the petitioner’s directive to withdraw the appeal

under the circumstances.

Moreover, the petitioner’s argument that Drapp performed deficiently by failing to advise him that he had

the right to proceed as a self-represented party is also

unpersuasive. Under the sixth amendment to the United

States constitution, an accused is guaranteed the right

to represent himself. See Faretta v. California, 422 U.S.

806, 819–20, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

A criminal defendant is entitled to proceed as a selfrepresented party if he knowingly, voluntarily, and

unequivocally waives his right to appointed counsel.

See id., 835. Our Supreme Court has stated that ‘‘[t]he

court is not obligated to suggest self-representation to

a defendant as an option simply because the defendant

repeatedly expressed dissatisfaction with his courtappointed counsel.’’ (Internal quotation marks omitted.) State v. Pires, 310 Conn. 222, 249, 77 A.3d 87 (2013).

Indeed, ‘‘because self-representation relinquishes . . .

many of the traditional benefits associated with the

right to counsel . . . the right to self-representation

does not attach unless it is asserted clearly and unequivocally . . . .’’ (Citation omitted; internal quotation

marks omitted.) United States v. Barnes, 693 F.3d 261,

271 (2d Cir. 2012), cert. denied, 568 U.S. 1113, 133 S.

Ct. 917, 184 L. Ed. 2d 704 (2013).
In the present case, the petitioner’s expressed dissatisfaction with Drapp’s choice of claims to raise on

appeal did not confer a duty on Drapp to explain to

the petitioner his right to proceed as a self-represented

party. The petitioner did not indicate to Drapp that he

was interested in proceeding as self-represented, thus,

there was no reason for Drapp to discuss the attendant

rights with him. We conclude, therefore, that Drapp did

not render ineffective assistance by failing to do so.

For the foregoing reasons, we agree with the court

that Drapp’s performance was not deficient. Because

we agree with the habeas court that Drapp did not

perform deficiently, we need not reach the issue of

prejudice. See Ouellette v. Commissioner of Correction, 154 Conn. App. 433, 448 n.9, 107 A.3d 480 (2014)

(‘‘[a] court evaluating an ineffective assistance claim

need not address both components of the Strickland

test if the [claimant] makes an insufficient showing on

one’’ [internal quotation marks omitted]).

The judgment is affirmed.

In this opinion the other judges concurred.

1 The petitioner is also known as David A. Abrahams. His conviction in

the case underlying his habeas petition was confirmed by this court in State

v. Abrahams, 79 Conn. App. 767, 831 A.2d 299 (2003). Because, when the

petitioner testified at the habeas trial, he identified himself as David Abrams

and also indicated that his name has been misspelled in the record, we use

the name David A. Abrams in this appeal. There is no dispute that David

A. Abrahams and David A. Abrams are the same individual.

2 Practice Book § 63-9 provides in relevant part: ‘‘Prior to oral argument

or the date the appeal is assigned for disposition without oral argument,

an appeal or writ of error may be withdrawn as of right by filing form JDAC-008 with the appellate clerk. . . .’’

3 On appeal, the petitioner also argues that the habeas court erred in

concluding that Drapp did not render ineffective assistance because he

failed to raise numerous assertedly viable appellate issues in his appellate

brief, which ultimately caused the petitioner to direct Drapp to withdraw

the appeal on his behalf. The petitioner, however, raised one issue in his

petition for a writ of habeas corpus and one question was certified by

the habeas court for appeal, that is, whether Drapp was ineffective for

withdrawing the petitioner’s appeal from the denial of his first petition for

a writ of habeas corpus. Whether Drapp was ineffective for failing to raise

all of the purportedly meritorious issues available to him in the appeal to

this court is a distinct question. See, e.g. Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied sub nom. Small v.

Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008) (petitioner

claimed that appellate counsel rendered ineffective assistance in failing to

raise certain claims on direct appeal). It is well settled that the right of a

petitioner to relief is limited to the allegations raised in his petition. See

Newland v. Commissioner of Correction, 322 Conn. 664, 678, 142 A.3d 1095

(2016). The petitioner, however, failed to plead this issue in his petition or

raise it as a distinct claim in his appellate brief. Thus, it is not reviewable.

4 Specifically, the petitioner was sentenced in the underlying criminal

prosecution to a total effective sentence of forty-six years of incarceration,

followed by nine years of special parole. He was also found by the court

to be in violation of probation and was sentenced to an additional five years

of incarceration to run consecutive to all other sentences.

5 Our Supreme Court has been asked to consider the question before, but

has never reached the merits of the issue. See Kaddah v. Commissioner

of Correction, 299 Conn. 129, 139–40, 7 A.3d 911 (2010) (concluding that

petitioner did not allege ineffectiveness by particular attorney who had

represented him when appeal was withdrawn and, thus, failed to state

claim on which relief could be granted). Our Supreme Court, however, has

considered whether counsel was ineffective for failing to advise a defendant
of the right to appeal; see, e.g., Ghant v. Commissioner of Correction, 255

Conn. 1, 761 A.2d 740 (2000); how Strickland should apply to the failure

to file a timely appeal altogether; see, e.g., Iovieno v. Commissioner of

Correction, 242 Conn. 689, 699 A.2d 1003 (1997); and whether an attorney

was ineffective for failing to plead and argue certain issues on direct appeal.

See, e.g., Small v. Commissioner of Correction, supra, 286 Conn. 707.