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JOHN SLATER v. COMMISSIONER OF CORRECTION

(AC 35897)

DiPentima, C. J., and Mullins and West, Js.

Argued December 2, 2014—officially released July 14, 2015

(Appeal from Superior Court, judicial district of

Tolland, Newson, J.)

David V. DeRosa, assigned counsel, for the appellant (petitioner).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, were Maureen Platt, state’s attorney, and Terence D. Mariani, senior assistant state’s

attorney, for the appellee (respondent).
Opinion

WEST, J. The petitioner, John Slater, appeals from

the judgment of the habeas court denying in part his

amended petition for a writ of habeas corpus. On

appeal, the petitioner claims that the habeas court

improperly (1) rejected his claim that the failure of his

trial counsel to raise the statute of limitations as an

affirmative defense at trial constituted ineffective assistance and (2) rejected his claim that the failure of his

appellate counsel to adequately investigate his claim

that he was substantially prejudiced by the more than

six year delay between the incident and his arrest constituted ineffective assistance.1 We affirm the judgment

of the habeas court.

In the petitioner’s direct appeal, our Supreme Court

summarized the underlying facts as follows: ‘‘On May

6, 1997, in the city of Waterbury, the [petitioner] forced

the victim into a van with a knife, which he used to

poke her in the hand. The [petitioner] first forced the

victim to perform oral sex on him. The [petitioner]

then had vaginal intercourse with the victim. Shortly

thereafter, Barry Kilcran and Gary Jones, who were at

Kilcran’s house at 129 Warner Street in Waterbury,

heard the victim coming down the street screaming and

crying that someone had tried to rape her. The victim

approached the two men in a disoriented and hysterical

state and told them that ‘a black male with a big knife’

had raped her. Kilcran and Jones brought the victim

inside the house and telephoned the police.

‘‘The police thereafter transported the victim to the

hospital, where she was admitted to the emergency

room. Catherine Judd, a registered nurse, found the

victim trying to hide in a corner of the emergency room,

crying and upset. The victim informed Judd that she

had been raped. Mickey Wise, a physician, then examined the victim and administered a rape kit, with which

he took a vaginal swab and collected other physical

evidence. The victim informed Wise that an ‘unknown

person forced her into his car and . . . forced her to

perform oral sex on him, then vaginal intercourse. [He]

[e]jaculated in her vagina . . . . He had a large knife

with which he poked her on the right hand.’

‘‘No timely arrest was made in connection with the

alleged assault. On or about July 31, 2001, however, the

police learned that the DNA obtained from the victim’s

rape kit matched that of the [petitioner]. At that time,

Waterbury police detective Anthony Rickevicius went

to see the victim, but did not show her a photograph

of the [petitioner]. Rickevicius then applied for a search

warrant for a blood sample from the [petitioner], which

was granted, and the police took the [petitioner’s] blood

sample on February 8, 2002. Before the confirmation

results arrived, however, the victim died of causes unrelated to the assault. On or about August 18, 2003, the
police questioned the [petitioner] about the incident

and showed him a photograph of the victim. At that

time, the [petitioner] signed a statement attesting that

he did not know the victim and had not had sexual

relations with her, ‘forced or consensual.’ The [petitioner] subsequently was charged with sexual assault

in the first degree and kidnapping in the first degree in

October, 2003.’’ (Footnote omitted.) State v. Slater, 285

Conn. 162, 166–67, 939 A.2d 1105, cert. denied, 553 U.S.

1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).

The sexual assault of the victim occurred on May 6,

1997. At the time the crime was committed, the applicable statute of limitations for the Class B felony of sexual

assault in the first degree was five years pursuant to

General Statutes § 54-193 (b).2 However, on May 16,

2000, General Statutes § 54-193b3 became effective, and

created a twenty year statute of limitations for the prosecution of a sexual assault offense that was reported

to police within five years of its occurrence and where

the identity of the perpetrator could be established by

DNA. There was no statute of limitations for the Class

A felony of kidnapping. See General Statutes (Rev. to

1997) § 54-193 (a). An arrest warrant for the petitioner

was not issued until October 23, 2003, a period of six

years and five months after the crime had occurred,

and the petitioner was not arrested on that warrant

until October 27, 2003.

Before the petitioner’s criminal trial, his trial counsel

filed a motion to dismiss both charges. Trial counsel

argued that the court should dismiss the Class B felony

of sexual assault because the application of the new

twenty year statute of limitations violated the ex post

facto clause of the United States constitution and the

five year statute of limitations expired prior to the issuance of the arrest warrant or the arrest of the petitioner.

Trial counsel also argued that the court should dismiss

both charges due to the delay in the arrest of the petitioner. He argued that the delay resulted in actual substantial prejudice to the petitioner and was wholly

unjustified.4 The trial court, Holden, J., held an evidentiary hearing on the motion before denying the motion

by oral decision on December 13, 2004. Trial counsel

did not reassert the statute of limitations claim as an

affirmative defense at trial.

Following a jury trial, the petitioner was found guilty

of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and kidnapping in the first

degree in violation of General Statutes § 53a-92 (a) (2)

(B). On February 10, 2005, the trial court, Holden, J.,

sentenced the petitioner to concurrent fifteen year

terms of imprisonment with five years of special parole.

The judgment of conviction was affirmed on direct

appeal. State v. Slater, 98 Conn. App. 288, 908 A.2d 1097

(2006), aff’d, 285 Conn. 162, 939 A.2d 1105, cert. denied,

553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).
On November 27, 2009, the petitioner filed a petition

for a writ of habeas corpus as a self-represented litigant.

He subsequently obtained an attorney, who filed a nine

count amended petition on February 15, 2012. The

counts relevant to this appeal are paragraph 69 (k) of

count seven,5 paragraph 75 (f) of count eight, and count

nine. In paragraph 69 (k) of count seven, the petitioner

alleged that his trial counsel was ineffective for failing

to raise the statute of limitations as an affirmative

defense at trial. In paragraph 75 (f) of count eight,

the petitioner alleged that his appellate counsel was

ineffective for failing to raise ‘‘any claims arising from

the allegation[s] in [c]ount [n]ine of [his] [p]etition.’’ In

count nine, the petitioner alleged that his constitutional

right to due process was violated when the trial court

applied the new twenty year statute of limitations to

his sexual assault in the first degree charge, and when

the trial court rejected his prearrest delay claim.

A habeas trial was held on February 21 and 22, 2013.

On February 22, 2013, the habeas court, Newson, J.,

rendered an oral judgment in favor of the respondent,

the Commissioner of Correction, in part, denying all of

the claims in the amended petition with the exception

of the claims in count one,6 paragraph 69 (k) of count

seven, and count nine. In a memorandum of decision

filed July 2, 2013, the habeas court granted the petition

as to count one7 and denied it as to paragraph 69 (k)

of count seven. With respect to paragraph 69 (k) of

count seven, the habeas court concluded that the petitioner’s claim failed on the prejudice prong.

The petitioner subsequently filed a petition for certification to appeal the partial denial of his amended petition on July 15, 2013, which the habeas court granted

on July 17, 2013. This appeal followed. Additional facts

and procedural history will be set forth as necessary.

We begin by providing the appropriate standard of

review for a challenge to a denial of a petition for a

writ of habeas corpus when certification to appeal is

granted. ‘‘The underlying historical facts found by the

habeas court may not be disturbed unless the findings

were clearly erroneous. . . . The conclusions reached

by the habeas court in its decision to dismiss a habeas

petition are matters of law, subject to plenary review.’’

(Citation omitted.) Haywood v. Commissioner of Correction, 153 Conn. App. 651, 655, 105 A.3d 238, cert.

denied, 315 Conn. 908, 105 A.3d 235 (2014). ‘‘When our

review is plenary, we must determine whether [the

court’s legal conclusions] are legally and logically correct and whether they find support in the facts set out

in the court’s [ruling] . . . .’’ (Internal quotation marks

omitted.) Council v. Commissioner of Correction, 114

Conn. App. 99, 103, 968 A.2d 483, cert. denied, 292 Conn.

918, 973 A.2d 1275 (2009). ‘‘The habeas judge, as the

trier of facts, is the sole arbiter of the credibility of

witnesses and the weight to be given to theirtestimony.’’
(Internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 717, 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).

I

We first address the petitioner’s claim that the habeas

court improperly rejected his claim that the failure of

his trial counsel to raise the statute of limitations as

an affirmative defense at trial constituted ineffective

assistance.

The following additional facts are relevant to this

claim. In its memorandum of decision, the habeas court

concluded that the petitioner’s claim that trial counsel

was ineffective for failing to raise the statute of limitations as an affirmative defense for the jury’s consideration failed on the prejudice prong. The habeas court

found that ‘‘[i]n denying defense counsel’s pretrial

motion to dismiss, the trial court ruled that, the crime

having been reported within five years ofits occurrence,

and there being DNA to identify the perpetrator, the

applicable statute of limitations was . . . § 54-193b,

and not the five year period set forth in § 54-193.’’ The

court further found that ‘‘it is reasonable for this court

to presume that, had defense counsel made an effort

to present evidence to the jury that the applicable statute of limitation was anything other than that contained

in . . . § 54-193b, the trial court would have prohibited it.’’

The habeas court concluded: ‘‘Therefore, there is no

reasonable probability to believe that there would have

been a different or more favorable result for the petitioner, because it is unlikely the jury would have ever

have heard evidence that a different statute of limitations applied. As such the petitioner cannot establish

he was prejudiced.’’

We begin by stating the law regarding claims of ineffective assistance of trial counsel. ‘‘The petitioner’s

right to the effective assistance of counsel is assured

by the sixth and fourteenth amendments to the federal

constitution, and by article first, § 8, of the constitution

of Connecticut. In Strickland v. Washington, 466 U.S.

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

United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of

counsel, he must show that counsel’s assistance was

so defective as to require reversal of [the] conviction.

. . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) 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. . . .

‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that

counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.

. . . It is not enough for the [petitioner] to show that

the errors had some conceivable effect on the outcome

of the proceedings. . . . Rather, [t]he [petitioner] must

show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome. . . . When a [petitioner] challenges a conviction, the question is whether there is

a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.’’ (Internal quotation marks omitted.) Smith

v. Commissioner of Correction, 148 Conn. App. 517,

523–25, 85 A.3d 1199, cert. denied, 312 Conn. 901, 91

A.3d 908 (2014).

The petitioner argues that his trial counsel was ineffective for failing to reassert the statute of limitations

claim made in the motion to dismiss as an affirmative

defense at trial, waiving any right the petitioner may

have had to raise issues relating to those claims on

appeal. The petitioner relies on State v. Coughlin, 61

Conn. App. 90, 97, 762 A.2d 1 (2000), cert. denied, 255

Conn. 934, 767 A.2d 105 (2001), arguing that it stands

for the proposition that if defense counsel moves to

dismiss the case and the trial court denies the motion,

the defendant must still plead the statute of limitations

as an affirmative defense to the jury or the issue is

waived on appeal.

We agree with the habeas court’s conclusion that the

petitioner failed to prove prejudice. The facts underlying the court’s decision in State v. Coughlin, supra, 61

Conn. App. 97, are distinguishable from the facts of this

case. In Coughlin, this court found that the defendant

had waived his statute of limitations claim, despite raising it in a pretrial motion to dismiss, because there was

no evidence that it had been raised as an affirmative

defense at trial. Id. In that case, however, the defendant’s statute of limitations claim did not involve a

dispute as to which statute of limitations applied.

Rather, the claim involved whether the statute of limitations had been tolled by the factual circumstances of

the case. Id. Put simply, the defendant’s claim involved

a factual determination for the jury. Id.

In contrast, in the present case, the petitioner’s statute of limitations claim involved a dispute about which

of two statutes of limitation applied. The petitioner’s

trial counsel argued that the application of the newly

extended twenty year statute of limitations would open

him to liability that did not exist at the time of the crime

and therefore, violated his rights under the ex post

facto clause. There were no factual determinations to

be made by the jury. It was solely a legal question for
the court. See General Statutes § 52-216 (‘‘The court

shall decide all issues of law and all questions of law

arising in the trial of any issue of fact; and, in committing

the action to the jury, shall direct them to find accordingly. The court shall submit all questions of fact to the

jury, with such observations on the evidence, for their

information, as it thinks proper, without any direction

as to how they shall find the facts.’’); Practice Book

§ 16-9 (same).

Further, we agree with the habeas court’s analysis

that in denying trial counsel’s motion to dismiss, the

trial court determined that the applicable statute of

limitations was § 54-193b, not § 54-193 (b). It, therefore,

is reasonable to presume, given that ruling, that had

trial counsel attempted to present evidence to the jury

that the applicable statute of limitations was anything

other than § 54-193b, the trial court would have prohibited it. There is no reasonable probability that there

would have been a different or more favorable result.

We, therefore, conclude that the petitioner failed to

show that he was prejudiced by trial counsel’s not having attempted to argue a statute of limitations defense to

the jury, and thus, he cannot succeed on his ineffective

assistance of trial counsel claim. See Thomas v. Commissioner of Correction, 141 Conn. App. 465, 472–73,

62 A.3d 534 (failure to present evidence of prejudice

fatal to ineffective assistance claim), cert. denied, 308

Conn. 939, 66 A.3d 881 (2013).

II

We now address the petitioner’s claim that the habeas

court improperly rejected his claim that the failure of

his appellate counsel to adequately investigate his claim

that he was substantially prejudiced by the more than

six year delay between the incident and his arrest constituted ineffective assistance.

The following additional facts are relevant to this

claim. At the hearing before the trial court on the petitioner’s motion to dismiss, Judge Holden found the following facts with respect to the prearrest delay claim.

The incident took place on May 6, 1997, a rape kit was

collected, and then the case was closed on September

3, 1997, because the victim was uncooperative. On

March 30, 2001, almost four years later, the petitioner

provided a blood sample in compliance with the state

sex offender registry, and on July 31, 2001, the police

matched the petitioner’s DNA to the victim’s rape kit.

The victim was contacted by the police about this new

information, but was not shown a photographic array.

A search and seizure warrant was executed on February

8, 2002, for a sample of the petitioner’s blood, and a

confirmation of the match was received on May 10,

2002. In the meantime, however, the victim died on

April 4, 2002, of causes unrelated to the assault. It was

not until August 18, 2003, that the police got a statement

from the petitioner regarding the incident, and then
not until October 23, 2003, that an arrest warrant was

issued. The petitioner was arrested on that warrant on

October 27, 2003.

The trial court concluded: ‘‘The court has heard no

evidence to suggest, and although I am troubled by the

time line, too long a time line, I have not heard anything

at all to suggest that the police did anything to put

themselves in a tactical advantage. Indeed but for there

being contact by the state police that there was a hit,

we can say that [the state’s] case remained closed as

it had for six years, for at least the four years prior to

that knowledge.

‘‘Actual substantial prejudice resulting from the

delay? I see none. As counsel has made certain claims

in his motion regarding alibi and other issues that might

have been utilized had the state in a timely manner or

the police proceeded with this investigation and arrest,

particularly, when they had developed [the petitioner]

as a suspect almost on the very day the incident

occurred. Whether they should have employed other

investigative procedures to implement the arrest sooner

. . . they, perhaps, could have. But, in any event,

whether or not those that were employed affected any

prejudice to [the petitioner’s] trial, I have seen no evidence of that in this hearing nor have I seen any evidence that the delay is wholly unjustifiable. I’ve seen

no evidence that the state intended to use this delay to

gain a tactical advantage over the [petitioner].’’

At the habeas trial, appellate counsel testified that

he could not recall what he had reviewed in preparing

the petitioner’s appeal. In response to the question of

whether he had reviewed trial counsel’s motion to dismiss, appellate counsel testified that the motion

‘‘appears to be something I would expect I reviewed,’’

but that he had no specific recollection of what he had

reviewed. When entering its oral judgment on February

22, 2013, the habeas court denied count eight of the

amended petition, finding ‘‘credible counsel’s testimony

that his standard appellate practice, which he believed

he would have engaged in on this matter, would have

been to review all transcripts, counsel’s defense file

and all other things in the record. Notwithstanding even

his admission that he doesn’t think he reviewed specifically the court file, there was no proof that counsel

engaged in deficient performance or that there was

any prejudice.’’

‘‘To succeed on an ineffective assistance of appellate

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

. . . To satisfy the prejudice prong, the petitioner must

demonstrate that there is a reasonable probability that,

but for appellate counsel’s failure to raise the issue on

appeal, the petitioner would have prevailed in his direct

appeal, i.e., reversal of his conviction or granting a

new trial.’’ (Citation omitted; internal quotation marks
omitted.) Haywood v. Commissioner of Correction,

supra, 153 Conn. App. 662. ‘‘[I]t is well settled that [a]

reviewing court can find against a petitioner on either

ground, whichever is easier.’’ (Emphasis in original;

internal quotation marks omitted.) Sanchez v. Commissioner of Correction, 314 Conn. 585, 606, 103 A.3d

954 (2014).

The petitioner argues that it is an appellate lawyer’s

professional obligation to adequately investigate the

entire record, court file, exhibits, and to conduct a conversation with his client. Appellate counsel cannot

know what is best to include in an appellate brief without reviewing the court record and exhibits. He argues

that the prearrest delay claim was a strong claim that

could and should have been raised because, in comparison to the claim pursuant to Crawford v. Washington,

541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004),

that appellate counsel chose to raise, which would have

resulted in a new trial, the prearrest delay claim would

have prevented prosecution and, therefore, resulted in

a judgment of acquittal for the petitioner. The petitioner

argues that had his appellate counsel investigated properly and raised the prearrest delay claim on appeal,

there is a reasonable probability that he would have prevailed.

‘‘The role of due process protections with respect to

pre-accusation delay has been characterized as a limited

one. . . . [T]he Due Process Clause does not permit

courts to abort criminal prosecutions simply because

they disagree with a prosecutor’s judgment as to when

to seek an indictment. . . . Our task is more circumscribed. We are to determine only whether the action

complained of . . . violates those fundamental conceptions of justice which lie at the base of our civil and

political institutions . . . and which define the community’s sense of fair play and decency . . . . The due

process clause has not replaced the applicable statute

of limitations . . . [as] . . . the primary guarantee

against bringing overly stale criminal charges. . . .

‘‘In order to establish a due process violation because

of pre-accusation delay, the defendant must show both

that actual substantial prejudice resulted from the delay

and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant. . . . [P]roof of prejudice is

generally a necessary but not sufficient element of a

due process claim, and . . . the due process inquiry

must consider the reasons for the delay as well as the

prejudice to the accused.’’ (Citations omitted; emphasis

added; footnote omitted; internal quotation marks omitted.) State v. Morrill, 197 Conn. 507, 521–22, 498 A.2d

76 (1985).

We agree with the habeas court’s conclusion that

the petitioner failed to prove he was prejudiced under

Strickland. The petitioner offered no evidence at the
habeas trial that the prearrest delay claim would have

been successful if pursued. ‘‘The burden to demonstrate

what benefit additional investigation would have

revealed is on the petitioner.’’ Holley v. Commissioner

of Correction, 62 Conn. App. 170, 175, 774 A.2d 148

(2001); see also Norton v. Commissioner of Correction,

132 Conn. App. 850, 860, 33 A.3d 819 (‘‘[m]ere allegation

and speculation are insufficient’’), cert. denied, 303

Conn. 936, 36 A.3d 695 (2012). Although we acknowledge, as both the trial and habeas courts did, the lapse

in time between the incident and the petitioner’s arrest,

we agree with the habeas court that the petitioner failed

to show that he suffered actual substantial prejudice

as a result of the lapse of time or that the delay was

wholly unjustifiable. We, therefore, conclude that

because the petitioner has failed to demonstrate that

this claim had a reasonable probability of success on

appeal, the petitioner has not shown that he was prejudiced by appellate counsel’s failure to raise it.

The judgment is affirmed.

In this opinion the other judges concurred.

1 We conclude that the petitioner’s claim as to his appellate counsel is

limited to the failure to adequately investigate whether the petitioner was

prejudiced by the delay between the incident and his arrest. The petitioner

did not raise a claim that his appellate counsel was ineffective for failing

to investigate or raise a claim as to the statute of limitations.

2 General Statutes § 54-193 (b) provides: ‘‘No person may be prosecuted

for any offense, other than an offense set forth in subsection (a) of this

section,for which the punishmentis or may be imprisonmentin excess of one

year, except within five years next afterthe offense has been committed.’’ We

note that § 54-193 (b) was amended by No. 10-180 of the 2010 Public Acts.

The changes are not relevant to this appeal. All references are to the current

version of the statute.

3 Public Acts 2000, No. 00-80, § 1, provides: ‘‘Notwithstanding the provisions of sections 54-193 and 54-193a of the general statutes, a person may

be prosecuted for a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71,

53a-72a or 53a-72b of the general statutes not later than twenty years from

the date of the commission of the offense, provided (1) the victim notified

any police officer or state’s attorney acting in such police officer’s or state’s

attorney’s official capacity of the commission of the offense not later than

five years after the commission of the offense, and (2) the identity of the

person who allegedly committed the offense has been established through

a DNA (deoxyribonucleic acid) profile comparison using evidence collected

at the time of the commission of the offense.’’

4 We note that trial counsel made one additional argument in his motion

to dismiss—the court should dismiss both charges due to insufficient evidence to justify continuing the case or placing the petitioner on trial—that

is not at issue in this appeal.

5 We note that the petitioner appears to have mislabeled the subsections

in paragraph 69 of count seven by mistakenly labeling two subsections

‘‘h.’’ The subsection at issue follows subsection j and should have been

labeled ‘‘k.’’

6

In count one of the amended petition, the petitioner alleged that the

trial court improperly instructed the jury as to the charge of kidnapping in

the first degree.

7 The petitioner alleged that pursuant to our Supreme Court’s reinterpretation of the kidnapping statutes in State v. Salamon, 287 Conn. 509, 949 A.2d

1092 (2008), he was entitled to an instruction that the jury must find that

he ‘‘had intended to prevent the victim’s liberation for a longer period of

time or to a greater degree than that which is necessary to commit [the

underlying] crime.’’ (Internal quotation marks omitted.) The habeas court

granted the petition as to count one and ordered the petitioner’s conviction

for kidnapping vacated. The court found that the petitioner was entitled to

habeas relief because there was a reasonable possibility that a properly
instructed jury would have reached a different result. This determination

is not challenged on appeal.