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GERALD W.* v. COMMISSIONER

OF CORRECTION

(AC 37576)

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

Argued September 16—officially released November 29, 2016

(Appeal from Superior Court, judicial district of

Tolland, Sferrazza, J.)

James E. Mortimer, with whom, on the brief, was

Michael D. Day, for the appellant (petitioner)

Linda F. Currie-Zeffiro, assistant state’s attorney,

with whom, on the brief, were John C. Smriga, state’s
attorney, Craig P. Nowak, senior assistant state’s attorney, and Susann E. Gill, former supervisory assistant

state’s attorney, for the appellee (respondent).
Opinion

PRESCOTT, J. The petitioner, Gerald W., appeals

from the judgment of the habeas court denying his

amended petition for a writ of habeas corpus.1 On

appeal, the petitioner claims that the habeas court

improperly rejected his claim that he received ineffective assistance from his prior habeas counsel. We affirm

the judgment of the habeas court.

The record reveals the following relevant facts and

procedural history. The petitioner was convicted following a jury trial of three counts of risk of injury to

a child in violation of General Statutes § 53-21 (a) (2),

and one count of attempt to commit sexual assault in

the first degree in violation of General Statutes §§ 53a49 (a) (2) and 53a-70 (a) (2). The relevant facts underlying the judgment of conviction were set forth in this

court’s opinion affirming that judgment. ‘‘From the evidence adduced at trial, the jury reasonably could have

found the following facts. The victims are three minor

children, S, the [petitioner’s] daughter; P, the [petitioner’s] cousin; and T, the cousin of the [petitioner’s] girlfriend. At the time of trial, the three victims were age

fourteen, fifteen and sixteen, respectively. The victims

often would visit the [petitioner] at his apartment,

where he lived with his girlfriend. When S was approximately six years old, she began visiting the [petitioner]

on a weekly basis. Sometime in December, 2001, when

she was eleven years old, the [petitioner] engaged in

what would become a pattern of sexual abuse of S,

which continued until sometime in early 2003. During

some of these visits, the [petitioner] would touch her

chest and vaginal area with his penis, finger or hand.

On one evening during 2001, when P was eleven, the

[petitioner] pulled down her pants and attempted to

engage in sexual intercourse. When T was nine years

old, she began to visit the [petitioner] and her cousin.

During the ensuing five year period, the [petitioner]

inappropriately touched both her chest and vaginal area

approximately ten times.

‘‘After the [petitioner’s] conduct was disclosed to the

police, the [petitioner] was arrested and charged in a

substitute information dated May 5, 2005, with three

counts of risk of injury to a child and one count of

attempt to commit sexual assault in the first degree.

Following a jury trial, the [petitioner] was convicted on

all counts and sentenced to a total effective term of

forty years imprisonment.’’ State v. Gerald W., 103 Conn.

App. 784, 786–87, 931 A.2d 383, cert. denied, 284 Conn.

933, 935 A.2d 152 (2007).

As previously indicated, the petitioner appealed from

the judgment of conviction. He claimed on appeal that

the trial court improperly had instructed the jury regarding the presumption of innocence and had construed

the rape shield statute improperly in excluding evidence
of T’s allegations of prior sexual abuse by her biological

father. Id., 786. This court affirmed the judgment of the

trial court on September 18, 2007, and our Supreme

Court later denied certification to appeal. Id.

In April, 2007, the petitioner filed his first petition

for a writ of habeas corpus. Throughout that first habeas

action, the petitioner was represented by Attorney Jodi

Zils Gagne. He alleged in his first petition that his trial

counsel, Jonathan Demirjian, had provided ineffective

assistance in a number of ways. In particular, the operative petition provided that Demirjian was ineffective

because he had failed (1) to move for separate trials

as to each of the three victims; (2) to compel the prosecutor to specify the precise dates of the offenses; (3)

to investigate alibi witnesses adequately; (4) to advise

the petitioner about the maximum jail time he faced if

unsuccessful at trial; (5) to submit into evidence videotaped forensic interviews of the victims; (6) to explain

to the petitioner the state’s evidence against him; (7)

to prevent the admission of improper evidence offered

by the state, including evidence of uncharged misconduct; (8) to subpoena testimony from the Department

of Children and Families (department) about its investigation; and (9) to correct allegedly confusing information provided to the jury regarding the existence of

a police report. Zils Gagne eventually withdrew the

specifications of ineffective assistance that related to

the videotaped interviews of the victims and to Demirjian’s failure to call witnesses about the department’s

investigation. Following a trial, the habeas court denied

the first petition and subsequently denied a petition for

certification to appeal. The petitioner appealed from

the habeas court’s decision. This court dismissed the

appeal by a memorandum decision dated January 24,

2012, and our Supreme Court subsequently denied certification to appeal. Gerald W. v. Commissioner of Correction, 133 Conn. App. 901, 33 A.3d 898, cert. denied,

304 Conn. 901, 38 A.3d 113 (2012).

On February 21, 2012, the petitioner filed a second

habeas petition—the petition underlying the present

appeal. An amended petition was filed on April 1, 2014,

and contained two counts. The first count reasserted

that trial counsel had provided ineffective assistance.

Although the petitioner acknowledged in the petition

that he previously had raised this claim in his first

habeas petition, he asserted that he had not received

a full and fair hearing of the claim. The petitioner listed

thirteen specifications of ineffective assistance by trial

counsel, the majority of which were not raised in the

first habeas petition.2

The second count of the petition asserted that the

petitioner received ineffective assistance from his prior

habeas counsel, Zils Gagne. The sole ground alleged

in the count was that Zils Gagne’s ‘‘performance was

deficient because she failed to adequately raise the
[specifications of ineffective assistance of trial counsel]

identified in [count] one of this amended petition for

a writ of habeas corpus.’’

In his response to the habeas petition, the respondent,

the Commissioner of Correction, pleaded by way of a

special defense that the first count directed at trial

counsel’s performance had been raised previously and

unsuccessfully litigated in the petitioner’s first habeas

action, and, therefore, it was barred by the doctrines

of successive petition, res judicata and/or collateral

estoppel.

The habeas court, Sferrazza, J., conducted a trial on

the second habeas petition over four days in August

and September, 2014. The petitioner presented testimony from a number of witnesses including Demirjian,

Zils Gagne, and Michael Blanchard, a criminal defense

attorney with experience in child sexual abuse cases.

At the close of evidence, the habeas court, with the

consent of counsel, dismissed the first count of the

petition, noting on the record that it was ‘‘really just

part of the proof of the second count,’’ and that ‘‘there

was already a habeas [court judgment] which addressed

trial counsel.’’ The parties each submitted posttrial

briefs. On December 15, 2014, the court issued a memorandum of decision denying the remainder of the

habeas petition.

The court first noted that although the petitioner had

presented expert testimony from Blanchard in support

of his claim that prior habeas counsel was ineffective,

Blanchard testified extensively only about the performance of trial counsel, and ‘‘expressed no opinion concerning habeas counsel’s performance in the first

habeas action. Nor did he voice any opinion regarding

whether the purported deficiencies of [trial counsel]

affected the outcome of the earlier habeas case or the

criminal trial. In short, the petitioner produced no

expert witness who maintained that [habeas counsel]

rendered unprofessional legal assistance for the first

habeas trial nor as to the prejudice prong of the Strickland standard with respect to either level of litigation.’’

(Emphasis omitted.) See Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)

(establishing standard that to prevail on claim of ineffective assistance of counsel, petitioner bears burden

of establishing both that counsel’s performance was

deficient and that petitioner suffered actual prejudice

as result of that performance).

The court next proceeded to evaluate whether the

petitioner had satisfied his burden of demonstrating

that Zils Gagne’s decision not to raise the specifications

of deficient performance by trial counsel as set forth

in the second habeas petition amounted to ineffective

assistance. The court rejected the arguments offered

by the petitioner. In particular, the court found that Zils

Gagne was ‘‘an experienced criminal defense attorney,’’
and that she had prepared by reviewing the criminal

file, the trial transcripts, and the evidence admitted at

trial, and by discussing with the petitioner his complaints about trial counsel. She reviewed the forensic

interviews of the victims several times, including once

with the petitioner present. She sought to establish

whether there may have been alternative, innocent

explanations for the actions of the petitioner toward

the victims, although the petitioner either denied the

acts outright or claimed that he could not remember

because he consumed alcohol during the time period

when the assaults occurred. The court further found

that Zils Gagne pursued seven specifications of ineffective assistance of trial counsel in the first habeas petition and indicated that she strategically and reasonably

had chosen not to pursue several claims that she

believed would have been unsuccessful.

Ultimately, the habeas court concluded: ‘‘[T]he petitioner has failed to satisfy his burden of proving, by a

preponderance of the evidence, any allegation of ineffective assistance on the part of Attorney Zils Gagne

under the Strickland standard.’’ The habeas court

denied the petition but later granted the petition for

certification to appeal. This appeal followed.

We begin our analysis with the law governing the

petitioner’s claim as well as our standard of review.

‘‘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.’’ (Footnote omitted; internal quotation marks omitted.) Sinchak v. Commissioner of Correction, 126 Conn. App. 684, 686–87, 14 A.3d 343, cert.

denied, 301 Conn. 901, 17 A.2d 1045 (2011). 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.’’ Lozada

v. Warden, supra, 223 Conn. 842. As to each of those

inquiries, the petitioneris required to satisfy the familiar

two-prong test set forth in Strickland v. Washington,

supra, 466 U.S. 687. ‘‘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

adversary process that renders the result unreliable.’’

Lozada v. Warden, supra, 223 Conn. 842–43. In other

words, ‘‘a petitioner claiming ineffective assistance of
habeas counsel on the basis of ineffective assistance

of trial counsel must essentially satisfy Strickland twice

. . . .’’ LaPointe v. Commissioner of Correction, 113

Conn. App. 378, 394, 966 A.2d 780 (2009).

‘‘In any case presenting an ineffectiveness claim, the

performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. . . . Judicial scrutiny of counsel’s

performance must be highly deferential and courts must

indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance; that is, the [petitioner] must overcome the

presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

. . . [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable; [but] strategic choices made

after less than complete investigation are reasonable

precisely to the extent that reasonable professional

judgments support the limitations on investigation.’’

(Citation omitted; internal quotation marks omitted.)

Bharrat v. Commissioner of Correction, 167 Conn.

App. 158, 167–68,143 A.3d 1106, cert. denied, 323 Conn.

924, A.3d (2016). With respect to the prejudice

prong, the petitioner must establish that if he had

received effective representation by habeas counsel,

there is ‘‘a reasonable probability that the habeas court

would have found that he was entitled to reversal of

the conviction and a new trial . . . .’’ (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, 126 Conn. App. 110, 117, 10 A.3d 1079, cert.

denied, 300 Conn. 919, 14 A.3d 333 (2011).

It is well settled that in reviewing the denial of a

habeas petition alleging the ineffective assistance of

counsel, ‘‘[t]his court cannot disturb the underlying

facts found by the habeas court unless they are clearly

erroneous, but our review of whether the facts as found

by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of

counsel is plenary.’’(Internal quotation marks omitted.)

Robinson v. Commissioner of Correction, 167 Conn.

App. 809, 817, 144 A.3d 493 (2016).

The petitioner’s sole claim on appeal is that the

habeas court improperly determined that he had failed

to prove that his prior habeas counsel provided ineffective assistance. Having thoroughly reviewed the record

presented, we conclude that the habeas court properly

denied the petition for a writ of habeas corpus.

We first clarify that our review of the petitioner’s

ineffective assistance claim is limited to those specifications of deficient performance properly raised before

and considered by the habeas court. Although the petitioner alleged in the underlying habeas petition that his

trial counsel was ineffective in a variety of ways, his

allegations regarding habeas counsel were much
more limited.3

Ourreview of the operative amended habeas petition,

the transcripts of the habeas trial, and the petitioner’s

posttrial brief reveals that the only argument properly

before the habeas court regarding the alleged deficient

performance by Zils Gagne was that she had failed to

raise in the first habeas action those specifications of

ineffective assistance of trial counsel that the petitioner

set forth in the second habeas petition. The petitioner

argues in his appellate brief that Zils Gagne also was

ineffective because, like trial counsel, she failed to consult with a forensic psychologist or some other party

with sufficient expertise in evaluating child sexual

abuse allegations. He did not, however, include that

particular specification in his habeas petition or raise

the argument at the habeas trial or in his posttrial brief.

In fact, in the petitioner’s posttrial brief, the analysis

was limited almost entirely to a discussion of his trial

counsel’s performance without any independent discussion of Zils Gagne’s performance, including whether

she should have consulted with an expert.4

Accordingly, the only issue is whether the petitioner

proved before the habeas court that Zils Gagne provided

ineffective assistance by failing to raise and prosecute

the claims of ineffective assistance of trial counsel set

forth in count one of the habeas petition. See footnote

2 of this opinion. In his reply brief, the petitioner has

defined his claim on appeal in even narrower terms,

describing the singular issue before this court as

whether ‘‘habeas counsel rendered ineffective assistance in her failure to raise and litigate a claim that trial

counsel rendered ineffective assistance by his failure to

retain, consult with and offerthe testimony of a forensic

psychiatrist, psychologist or other mental health professional with expertise in investigating and evaluating

child sexual abuse allegations.’’ In so doing, the petitioner has abandoned many unrelated issues.

The habeas court, however, determined that the petitioner had failed to demonstrate that he was prejudiced

by trial counsel’s performance with respect to the consultation with and presentation of a child sexual abuse

expert. It follows that Zils Gagne’s failure to raise a

related claim in the prior habeas action was not professionally deficient performance. In its memorandum of

decision, the habeas court stated as follows: ‘‘Regarding

the petitioner’s specification of ineffectiveness premised on [trial counsel’s] failure to consult with and present the testimony of a sexual abuse expert for the

defense, the court finds that the petitioner has failed

to prove, by a preponderance of the evidence, the prejudice component of the Strickland test. [Blanchard]

identified in his testimony those areas that such an

expert might have assisted defense counsel, but no

credible evidence was produced which persuades the

court that there exists a reasonable likelihood that, but
for the absence of such consultation, the outcome of

the criminal trial would have differed.

‘‘A major difficulty for the petitioner to overcome

was that, not one, but three preteen girls all swore that

the petitioner sexually molested them. No persuasive

evidence of any conspiracy to fabricate allegations

against the petitioner or mutuality of motive to lie about

his behavior was adduced at his criminal trial, his first

habeas trial, or [in] the present case. The three girls

were not very young children as their ages ranged from

nine to thirteen when the assaults occurred.

‘‘The petitioner contends, therefore, that it was

incumbent upon [trial] counsel to point to the girls’

‘aunt,’ Juanita W., to account for why they would wrongfully implicate him. He argues that [trial counsel]

needed to probe into Juanita’s past and psyche to establish that she was hypervigilant to the possibility of preteen molestation because she had endured such abuse.

Also, Juanita W.’s sister was the petitioner’s wife when

the petitioner left her to cohabit with his wife’s daughter, a teenager.

‘‘As to the latter circumstance, the evidence unquestionably showed that Juanita W. felt that the petitioner

had brought shame and scandal to her extended family

by consorting with his stepdaughter. The petitioner

complains that [trial counsel] ought to have explored

the topic of this family dynamic more extensively to

convince the jury that Juanita W. somehow coaxed the

three victims to concoct false accusations of sexual

abuse by him. The court concludes that this tactical

approach would have been self-defeating and unlikely

to accomplish the goal proposed.

‘‘First, it would emphasize that the petitioner had a

penchant for sexual relations with teenagers. Second,

and, more significantly, the petitioner’s [trial counsel]

would necessarily have to have argued that the collusion was a response for having incurred shame for the

family by accusing the petitioner of committing even

more reprehensible acts and bringing greater shame

down upon the family.

‘‘Besides the absurdity of that argument for why the

three girls all falsely reported abuse by the petitioner

while under the vengeful spell of Juanita W., this court

had the benefit of having Juanita W. testify at the habeas

trial. She came across as an honest, caring woman, who

learned of the [sexual] abuse complaints in a straight

forward manner. She made a genuine effort to take

appropriate steps to help the three girls. The court

determines that the jury would have reacted likewise

to her testimony.’’

The habeas court, which heard testimony from a

defense expert at the habeas trial, further rejected the

petitioner’s argument that a defense expert would have

been useful in countering the testimony of the state’s
sexual abuse expert, Lisa Melillo, finding that the

experts’ opinions were ‘‘essentially consistent on the

primary feature revealed by [Melillo], namely, delayed

disclosure.’’ Finally, the court rejected any notion that

consultation with an expert would have aided counsel

with the cross-examination of the victims and other

prosecution witnesses, concluding that ‘‘the petitioner’s

specifications of ineffective assistance on these

grounds is meritless.’’ The habeas court found that trial

counsel handled their cross-examinations ‘‘delicately,

deftly, and thoroughly’’ and that, accordingly, ‘‘Zils

Gagne quite properly declined to raise any claims of

deficient performance in this regard.’’ The petitioner

has not shown that the habeas court made any factual

findings that are clearly erroneous, and we agree with

the habeas court’s analysis regarding lack of prejudice

and Zils Gagne’s performance.

Having thoroughly reviewed the record presented,

we conclude that the petitioner has failed to meet his

burden of demonstrating that his previous habeas counsel’s performance fell outside of the wide range of reasonable professional assistance, and, in particular, has

failed to demonstrate that but for habeas counsel’s performance there is a reasonable probability that the

habeas court would have found in favor of the petitioner

and granted a new trial. Accordingly, the habeas court

properly denied the amended petition for a writ of

habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to identify the victims or others through whom the victims’ identities may

be ascertained. See General Statutes § 54-86e.

1 The habeas court granted certification to appeal from the judgment.

2 Paragraph 28 of the amended habeas petition provided as follows: ‘‘The

petitioner’s trial counsel’s performance was deficient because:

(A) he failed to retain, consult with, and presentthe testimony of, a forensic

psychologist, forensic psychiatrist, or other mental health professional, with

an expertise in investigating and evaluating child sexual abuse allegations;

(B) he failed to adequately seek production and disclosure of educational

records, psychological records, medical records, [department] records,

police records, and other records related to the forensic investigation and

evaluation of the complainants’ allegations;

(C) he failed to adequately present alternative innocent explanations for

the child sexual abuse allegations made against petitioner, and he failed

to adequately present testimony that contradicts, refutes, and otherwise

challenges the complainants’ allegations;

(D) he failed to adequately challenge the prosecuting authority’s failure

to investigate and rule out alternative innocent explanations for the child

sexual abuse allegations made against the petitioner;

(E) he failed to adequately cross-examine, impeach, and otherwise challenge the testimony of the complainants;

(F) he failed to adequately cross-examine, impeach, and otherwise challenge the testimony of Cynthia Williams;

(G) he failed to adequately cross-examine, impeach, and otherwise challenge the testimony of Victoria Hester;

(H) he failed to adequately cross-examine, impeach, and otherwise challenge the testimony of Juanita W.;

(I) he failed to adequately cross-examine, impeach, and otherwise challenge the testimony of Officer Jessica Tillson;

(J) he failed to adequately cross-examine, impeach, and otherwise chal-
lenge the testimony of Officer Sandra Gonzalez;

(K) he failed to adequately cross-examine, impeach, and otherwise challenge the testimony of Lisa Bush;

(L) he failed to adequately challenge the misapplication of the Connecticut

rape shield statute to charges of risk of injury to a minor; and

(M) he failed to object to improper appeals to the jurors as parents made

during the prosecuting authority’s closing arguments.’’

3

‘‘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).

4 Although we do not reach the issue, the record does not appear to

support the notion that Zils Gagne’s failure to consult with a mental health

expert rendered her unprepared to litigate the habeas action. As the habeas

court found, at the time Zils Gagne represented the petitioner, she was an

experienced criminal defense lawyer. She had tried approximately twenty

other habeas actions. In addition, her uncontested testimony during the

habeas trial was that she had handled direct criminal appeals that involved

child sexual abuse and, thus, was familiar with how such cases were

defended. The habeas court’s findings also establish that Zils Gagne thoroughly researched the facts and the law at issue in the case. She obtained

and reviewed the petitioner’s defense file, discussed the case with the petitioner at length, including his expectations and his complaints concerning

his trial attorney, and reviewed the transcripts and the evidence from the

criminal trial. She reviewed on more than one occasion the forensic interviews conducted of the victims, including one time in the presence of the

petitioner. On the basis of her review, she found the victims’ statements in

those interviews credible and, despite some inconsistencies, likely to have

been believed by a jury if admitted at trial. Given the petitioner’s inability

to provide her with any innocent explanation for the allegation made by

the three victims, she ultimately reached the conclusion that it would have

been highly detrimental to the defendant’s case if the forensic interviews

had been admitted into evidence and viewed by the jury.