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ANDREATKINS v. COMMISSIONER OFCORRECTION

(AC 35191)

Lavine, Keller and Harper, Js.

Argued February 10—officially released July 28, 2015

(Appeal from Superior Court, judicial district of

Tolland, Sferrazza, J.)

James P. Sexton, assigned counsel, with whom was

Michael S. Taylor, for the appellant (petitioner).

Michele C. Lukban, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Daniel H. Miller, special deputy assistant

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

HARPER, J. The petitioner, Andre Atkins, appeals

following the denial of his petition for certification to

appeal from the judgment of the habeas court denying

his petition for a writ of habeas corpus. On appeal, the

petitioner claims that the habeas court (1) abused its

discretion when it denied his petition for certification to

appeal, (2) improperly concluded that his trial counsel,

John Cizik, did not provide ineffective assistance by

failing to call a certain ‘‘alibi’’ witness,1 and (3) improperly concluded that his trial counsel did not provide

ineffective assistance for failing to investigate the victims2 and their motives for fabricating their allegations

against the petitioner. We conclude that the court did

not abuse its discretion in denying the petition for certification to appeal, and, accordingly, dismiss the appeal.

The following facts, as recounted in the petitioner’s

direct appeal; State v. Atkins, 118 Conn. App. 520, 984

A.2d 1088 (2009), cert. denied, 295 Conn. 906, 989 A.2d

119 (2010); and procedural history are relevant to our

resolution of this appeal.

‘‘The female victim, C,3 was born in December, 1992,

and the [petitioner was born] in 1983. C lived with her

mother, brother and two sisters. C and her brother have

the same father and visited him approximately every

other weekend, first in Bridgeport and later in Waterbury. When C was six or seven years old, herfatherlived

in Bridgeport with other family members, including the

[petitioner], who is the nephew of C’s stepmother. The

father and his family, including the [petitioner], later

moved to Waterbury. On one occasion in 2005, when

C was visiting her father in Waterbury, she took a

shower and the [petitioner] ‘busted in the shower’ and

turned her around ‘so he could see everything.’ When

visiting her father in Waterbury, C stayed in her sister’s

bedroom and shared a queen-size bed with her sister.

The [petitioner] slept on the bedroom floor. While C

was visiting herfatherin Waterbury at unspecified dates

in 2005, when C was twelve years old, the [petitioner]

twice had sexual intercourse with C and attempted on

a third occasion to do so.

‘‘The [petitioner] thereafter was arrested and charged

by way of substitute long form information with two

counts of sexual assault in the first degree, attempt to

commit sexual assault in the first degree, sexual assault

in the fourth degree and two counts of risk of injury

to a child.’’ (Footnote in original.) Id. 523–24.

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

on all counts and sentenced to a total effective term

of fourteen years incarceration and twenty-six years

special parole.’’ Id., 525. This court reversed the petitioner’s conviction of sexual assault in the fourth degree

and affirmed the judgment in all otherrespects. Id., 537.

On April 18, 2012, the petitioner filed his second
amended petition for a writ of habeas corpus, in which

he alleged ineffective assistance of trial counsel on the

bases of trial counsel’s failure to, inter alia: (1) call an

alibi witness, M, and (2) conduct a proper investigation

‘‘into any and all the defenses the petitioner had available to him at trial including but not limited to taking

a statement from [M] that would have supported the

claim that the petitioner was innocent of all charges.’’4

(Emphasis added.)

At the habeas trial, the petitioner presented five witnesses: (1) his trial counsel; (2) Mark Schachter, the

petitioner’s investigator who took photographs of the

house where the alleged sexual assaults occurred; (3)

C’s stepsister, A, who at the time of the trial had

informed the police, in the presence of her mother, M,

that five years prior to the incidents with C the petitioner had sexually assaulted her; (4) M; and (5) D, the

petitioner’s grandmother and the mother of M, who

stated that she knew that the petitioner did not assault

C because he was ‘‘not raised that way’’ and ‘‘was raised

better than that.’’ Thereafter, the court denied the petition for a writ of habeas corpus in a memorandum of

decision issued on October 18, 2012. The court determined that the petitioner failed to meet his burden of

proving that his trial counsel had rendered ineffective

assistance in any of the ways alleged. The court also

noted that ‘‘[i]n the posttrial brief, the petitioner contends that [trial counsel] was deficient in failing to have

any other witnesses interviewed to determine whether

[one of the witnesses], namely [D], might provide support for the defense theory that [C] made a false accusation against him. However, that specification of

ineffective assistance was never alleged in the amended

petition . . . and, therefore, cannot form the basis for

granting of the petition.’’

The petitioner then filed a petition for certification

to appeal,5 which alleged ‘‘ineffective assistance of

counsel (trial) for failing to call alibi witnesses and

failing to investigate all defenses petitioner had available at trial including failure to impeach [C] as to motive

to lie and fabricate allegations of sexual assault.’’

(Emphasis added.) The court denied the petition for

certification to appeal on November 7, 2012. This appeal

followed. Additional facts will be set forth as necessary.

On appeal, the petitioner claims that the court abused

its discretion in denying certification to appeal. We

disagree.

We begin by setting forth the applicable standard of

review and procedural hurdles that the petitioner must

surmount to obtain appellate review of the merits of a

habeas court’s denial of the habeas petition following

denial of certification to appeal. ‘‘In Simms v. Warden,

229 Conn. 178, 187, 640 A.2d 601 (1994), we 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 in denying the petitioner’s request for

certification, we necessarily must considerthe merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous.’’ (Emphasis in original;

internal quotation marks omitted.) Tutson v. Commissioner of Correction, 144 Conn. App. 203, 214–15, 72

A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d 145

(2013).

In order to consider the merits of the petitioner’s

underlying claims, we next set forth the standard of

review for claims of ineffective assistance of counsel.

‘‘In order to establish an ineffective assistance of counsel claim, a petitioner must meet the two-prong test

enunciated in Strickland v. Washington, 466 U.S. 668,

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

the claim must be supported by evidence establishing

that (1) counsel’s representation fell below an objective

standard of reasonableness, and (2) counsel’s deficient

performance prejudiced the defense because there was

a reasonable probability that the outcome of the proceedings would have been different had it not been for

the deficient performance. . . . Because both prongs

of Strickland must be demonstrated for the petitioner

to prevail, failure to prove either prong is fatal to an

ineffective assistance claim.’’ (Emphasis in original;

internal quotation marks omitted.) Jones v. Commissioner of Correction, 152 Conn. App. 110, 115, 96 A.3d

1271, cert. denied, 314 Conn. 931, 102 A.3d 83 (2014).

‘‘In a habeas appeal, this 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.) Hankerson v. Commissioner of Correction,

150 Conn. App. 362, 367, 90 A.3d 368, cert. denied, 314
Conn. 919, 100 A.3d 852 (2014).

On the basis of our review of the record, the briefs,

and the arguments of the parties, we conclude that

the court did not abuse its discretion in denying the

petitioner’s petition for certification to appeal. In reaching this conclusion, we first consider the petitioner’s

claim that the court improperly concluded that trial

counsel was ineffective by failing to call M as an alibi

witness. The respondent, the Commissioner of Correction, argues that in the petitioner’s second amended

petition, the only claim in relation to M was to her

status as an alibi witness, and that the court properly

concluded that the trial counsel was not ineffective for

failing to investigate and call M for such purpose.

In its memorandum of decision, the court specifically

summarized the testimony of the ‘‘alibi witness,’’ M,

called by the petitioner. At the habeas trial, M testified

that she was always at her small home when the petitioner was there, and that she never overheard or saw

any sexual activity between the petitioner and C. In

response to this testimony, the court indicated that:

‘‘This can hardly be characterized as ‘alibi’ evidence.

[M’s] testimony did not tend to prove that the petitioner

was elsewhere when the alleged assaults occurred, but

merely that she never personally witnessed any

improper behavior.’’6

‘‘The word ‘alibi’ is defined in Webster’s Third New

International Dictionary as ‘the plea of having been at

the time of the commission of an act elsewhere than at

the place of commission . . . .’ The American Heritage

Dictionary of the English Language defines ‘alibi’ as ‘[a]

form of defense whereby a defendant attempts to prove

that he or she was elsewhere when the crime in question

was committed.’ We therefore conclude that an ‘alibi,’

as used in Practice Book § 40-21, is a claim by the

defendant that he or she was in a place different from

the scene of the crime at the time of the alleged offense.’’

State v. Tutson, 278 Conn. 715, 732–33, 899 A.2d 598

(2006). Accordingly, the habeas court concluded that

M’s ‘‘testimony did not tend to prove that the petitioner

was elsewhere when the alleged assaults occurred, but

merely that she never witnessed any improper behavior.’’ Therefore, because the petitioner’s ‘‘alibi witness’’

could not provide an alibi for the petitioner, as

described by our Supreme Court, it cannot be said that

under Strickland, trial counsel’s representation fell

below an objective standard of reasonableness.7

Second, we consider the petitioner’s claim that the

court improperly concluded that trial counsel did not

provide ineffective assistance forfailing to investigate C

and A, and their motives for fabricating their allegations

against the petitioner. The petitioner argues that the

phrase ‘‘any and all defenses the petitioner had available

to him attrial including but notlimited to’’ was sufficient

to notify the court as well as the respondent that his
allegation in his petition for a writ of habeas corpus

encompassed trial counsel’s failure to interview M, A,

and D to impeach C on a motive to fabricate the allegations against the petitioner. The petitioner further

asserts that specifically, his mention of trial counsel’s

failure to investigate M in his second amended petition

for a writ of habeas corpus also implied trial counsel’s

failure to investigate D and A. In return, the respondent

argues that the petitioner’s second amended petition

failed to mention D and A with any specificity, and that

the court did not abuse its discretion in denying his

petition for certification when the failure to interview

A and D was not specifically alleged in his second

amended habeas petition. The respondent further

asserts that the petitioner did not alert the court in his

petition for certification to appeal that he also was

seeking appellate review related to this issue. We agree

with the respondent.

‘‘[I]t is axiomatic that a petitioner is bound by his

petition [for a writ of habeas corpus]. . . . While 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. . . . Having

not raised [an] issue before the habeas court, [a] petitioner is barred from raising it on appeal. This court is

not bound to consider claimed errors unless it appears

on the record that the question was distinctly raised

. . . and was ruled upon and decided by the court

adversely to the [petitioner’s] claim. . . . This court is

not compelled to consider issues neither alleged in the

habeas petition nor considered at the habeas proceeding . . . .’’ (Internal quotation marks omitted.) Hankerson v. Commissioner of Correction, supra, 150

Conn. App. 367.

Further, ‘‘[t]his court has determined that a petitioner

cannot demonstrate that the habeas court abused its

discretion in denying a petition for certification to

appeal if the issue that the petitioner later raises on

appeal was never presented to, or decided by, the

habeas court. . . . Under such circumstances, a

review of the petitioner’s claims would amount to an

ambuscade of the [habeas] judge.’’ (Internal quotation

marks omitted.) Tutson v. Commissioner of Correction, supra, 144 Conn. App. 217. ‘‘[W]e fail to see how

a court could abuse its discretion in failing to grant a

petitioner certification to appeal to challenge an issue

that was not first presented to the court and then ruled

upon by it.’’ (Internal quotation marks omitted.) Logan

v. Commissioner of Correction, 125 Conn. App. 744,

752, 9 A.3d, 776 (2010), cert. denied, 300 Conn. 918, 14

A.3d 333 (2011). Our Supreme Court recently stated in

Moye v. Commissioner of Correction, 316 Conn. 779,

788, 114 A.3d 925 (2015), that a habeas court is not

responsible for the petitioner’s failure to present an
ineffective assistance claim. Further, the court

explained that: ‘‘The petitioner’s unpreserved ineffective assistance claim does not challenge the actions of

the habeas court; the habeas court did not, and could

not, take any action with respect to that claim because

the petitioner never presented it to the habeas court.’’

(Emphasis in original.) Id.

In this case, the petition for certification to appeal

stated the grounds upon which the petitioner proposed

to appeal as follows: ‘‘Ineffective assistance of counsel

(trial) for failing to call alibi witnesses and failing to

investigate all defenses petitioner had available at trial

including failure to impeach [C] as to motive to lie and

fabricate allegations of sexual assault.’’ Except for the

inclusion of M as a potential alibi witness, as discussed

previously in this opinion, the remainder of the petitioner’s grounds for appeal were not reached by the court.

Therefore, guided by Moye v. Commissioner of Correction, supra, 316 Conn. 779, and Logan v. Commissioner

of Correction, supra, 125 Conn. App. 744, we fail to see

how the court could abuse its discretion in failing to

grant the petitioner’s petition for certification to appeal

when the basis of the appeal was never alleged in the

habeas petition.

Therefore, because the petitioner failed to plead the

claim before the habeas court that he now asserts in

the petition for certification to appeal, the claim fails.

See Hankerson v. Commissioner of Correction, supra,

150 Conn. App. 370; Stenner v. Commissioner of Correction, 144 Conn. App. 371, 375, 71 A.3d 693, cert.

denied, 310 Conn. 918, 76 A.3d 633 (2013); Tutson v.

Commissioner of Correction, supra, 144 Conn. App.

217; Campbell v. Commissioner of Correction, 132

Conn. App. 263, 267, 31 A.3d 1182 (2011).

Accordingly, we conclude thatthe court did not abuse

its discretion in denying the petition for certification

to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

1

In his petition for certification to appeal, the petitioner alleged, as a

ground on which he was basing his appeal, that his trial counsel provided

ineffective assistance by failing to call a certain alibi witness. Although the

petitioner’s appellate brief does not specifically refer to this witness as an

‘‘alibi’’ witness, because that claim was raised by the petitioner, addressed

in the brief of the respondent, the Commissioner of Correction, and decided

by the habeas court, we will address it here. See Lorthe v. Commissioner

of Correction, 103 Conn. App. 662, 703, 931 A.2d 348, cert. denied, 284 Conn.

939, 937 A.2d 696 (2007).

2 The petitioner uses the word ‘‘victims’’ to describe C, the victim whom

he was convicted of sexually assaulting in this case, and C’s stepsister, A,

whom the petitioner had allegedly sexually assaulted five years earlier.

3

‘‘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 victim or others through whom the victim’s identity may be

ascertained. See General Statutes § 54-86e.’’ State v. Atkins, supra, 118 Conn.

App. 523 n.3.

4 The petitioner also alleged in his second amended petition that trial

counsel was ineffective because he failed (1) to file a motion to suppress
the petitioner’s confession, as it was involuntary and violated his Miranda

rights, (2) to obtain medical records of the victim, and (3) to file appropriate

pretrial and trial motions including a motion to suppress the petitioner’s

confession based on involuntariness and a violation of his Miranda rights.

See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966). The habeas court found that the allegations of ineffective

assistance of trial counsel regarding the motion to suppress and failure to

obtain medical records were abandoned by the petitioner in his postttrial

brief, and they are not before us on appeal.

5 The petitioner filed his petition for certification to appeal as a selfrepresented party.

6 The court, when considering why trial counsel did not present M to

testify at the criminal trial, took into account the fact that M resided in

North Carolina at the time of the underlying criminal trial. The interstate

summons to compel her testimony was ‘‘rebuffed by a North Carolina court’’

and M ‘‘refused to return to Connecticut to testify voluntarily.’’

7 Additionally, the court noted that M’s testimony was both helpful and

harmful to the petitioner. In regards to this, the court stated: ‘‘First, [M]

would have corroborated the petitioner’s presence at her home when [C]

was there on occasion. But more significantly, [M’s] own daughter, who

was ten years old at the time, gave a statement to the police, in her mother’s

presence, that the petitioner had also sexually assaulted her at the residence.

The court cannot find fault with . . . [trial counsel’s] fears that there existed

a possibility that this evidence could come forth under some evidentiary

theory. Clearly, the petitioner has failed to prove ineffective assistance in

this regard.’’