Artiaco v. Commissioner of Correction , 180 Conn. App. 243 ( 2018 )

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WILLIAM ALBERT ARTIACO v. COMMISSIONER
OF CORRECTION
(AC 39862)
Lavine, Sheldon and Bishop, Js.
Syllabus
The petitioner, who had been convicted of the crimes of sexual assault in
the first degree and risk of injury to a child, sought a writ of habeas
corpus, claiming that his trial counsel had provided ineffective assis-
tance. The habeas court rendered judgment denying the habeas petition
and, thereafter, denied the petition for certification to appeal, and the
petitioner appealed to this court. Held that the petitioner’s claims that
the habeas court erred in concluding that he was not denied the effective
assistance of trial counsel and denying his petition for certification to
appeal were not reviewable, the petitioner having failed to brief those
claims adequately; the petitioner cited to no specific claim of error by
the habeas court either in any heading or in the text of his brief, and
he failed to identify which of the habeas court’s determinations he was
challenging and to present any legal or factual analysis in support of
his broad claims that the habeas court erred in rejecting his ineffective
assistance of trial counsel claim and denying his petition for certification
to appeal.
Argued January 10—officially released March 13, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland, where the court, Sferrazza, J., rendered
judgment denying the petition; thereafter, the court
denied the petition for certification to appeal, and the
petitioner appealed to this court. Appeal dismissed.
Robert J. McKay, assigned counsel, for the appel-
lant (petitioner).
Michael J. Proto, assistant state’s attorney, with
whom, on the brief, was Anne F. Mahoney, state’s attor-
ney, for the appellee (respondent).
Opinion
SHELDON, J. The petitioner, William Albert Artiaco,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his petition for a writ of habeas corpus. The
petitioner claims that the habeas court erred in conclud-
ing that he was not denied the effective assistance of
trial counsel and denying his petition for certification to
appeal.1 Because the petitioner has failed to adequately
brief his claims of error, we decline to review them,
and thus dismiss the petitioner’s appeal.
The habeas court set forth the following relevant
procedural history. ‘‘The petitioner . . . seeks habeas
corpus relief from a total, effective sentence of impris-
onment for twenty years and ten years special parole,
imposed following a jury trial at which the petitioner
was convicted of sexual assault first degree and risk
of injury to a minor in a file denoted as CR-09-0151382-
0; and sexual assault first degree and risk of injury to
a [child] in a second file denoted CR-09-0138933-T. The
latter case had been transferred to the Windham Judi-
cial District from the Hartford Judicial District for com-
panionized adjudication. On June 21, 2013, the
Appellate Court dismissed the appeal from the judg-
ments of conviction because no appellate brief was
filed in accordance with that court’s orders, State v.
Artiaco, AC 34962.
‘‘The amended petition sets forth . . . a claim of
ineffective assistance of trial counsel2 . . . .
‘‘At his criminal trial, Attorney Christopher Grotz rep-
resented the petitioner, and the petitioner specifies
twenty ways in which trial counsel was ineffective,
to wit:
‘‘a. Trial counsel failed to sufficiently prepare for the
petitioner’s jury trial;
‘‘b. Trial counsel agreed to represent the petitioner
knowing that he lacked experience in litigating sexual
assault cases;
‘‘c. Trial counsel failed to secure, subpoena or other-
wise arrange to have witnesses known to the trial coun-
sel available for trial to provide exculpatory testimony
on behalf of the petitioner who would have undermined
the credibility of the state’s witnesses and who would
have provided testimony which would have been help-
ful in supporting and/or corroborating the petitioner’s
defense;
‘‘d. Trial counsel failed to file motions to prevent or
object to the transfer of docket number CR-09-0151382-
0 from the Superior Court at the Hartford Judicial Dis-
trict to the Superior Court at Danielson G.A. # 11;
‘‘e. Trial counsel failed to file a Motion to [Sever] at
the Superior Court at Danielson G.A. # 11 to request
separate trial on docket numbers CR-09-0151382-0 and
CR-09-0138933-T;
‘‘f. Trial counsel failed to file a motion in limine to
challenge the state’s introduction of prior misconduct
to ensure that the court and state adhere to the guide-
lines set forth in State v. Troupe, 237 Conn. 284, [677
A.2d 917] (1996), during the jury trial;
‘‘g. Trial counsel failed to file and/or argue a motion
in limine to ensure that the testimony of the state’s
medical expert witness Dr. Nina Livingston would be
limited to the general behavioral characteristics of sex-
ual abuse victims and not cross the line into impermissi-
ble vouching and ultimate issue testimony, pursuant to
the holding within State v. Favoccia, 119 Conn. App.
1, [986 A.2d 1081] (2010), [aff’d, 306 Conn. 770, 51 A.3d
1002 (2012)];
[‘‘h. Trial counsel failed to file and/or argue a motion
in limine to ensure that the testimony of the state’s
[medical] expert witness Diane Edell would be limited
to the general behavioral characteristics of sexual abuse
victims and not cross the line into impermissible vouch-
ing and ultimate issue testimony, pursuant to the hold-
ing within State v. Favoccia, (supra,) 119 Conn. App. 1;]
‘‘i. Trial counsel failed to secure, subpoena or other-
wise arrange to have [Department of Children and Fami-
lies] records introduced as exhibits and/or available for
trial for impeachment of witnesses;
‘‘j. Trial counsel failed to identify, pursue, investigate
and present any defense prior to and during the petition-
er’s jury trial;
‘‘k. Trial counsel did not sufficiently cross-examine
and make further inquiry of the state’s witnesses to
impeach their credibility;
‘‘l. Trial counsel failed to subpoena or otherwise
arrange to have witnesses available to testify at trial
that would have testified favorably for the petitioner;
‘‘m. Trial counsel did not adequately investigate the
evidence and/or the state witnesses prior to trial;
‘‘n. Trial counsel failed to properly retain an appro-
priate expert in regarding interviewing child victims of
sexual abuse to counter the state’s evidence and/or
testimony of the state’s witnesses at trial;
‘‘o. Trial counsel failed to adequately prepare defense
witnesses for direct and/or cross-examination during
the jury trial;
‘‘p. Trial counsel failed to conduct any investigation
of the state’s witnesses and/or its evidence in the prepa-
ration of the petitioner’s jury trial;
‘‘q. Trial counsel failed to adequately prepare the testi-
mony of the petitioner’s expert witness Dr. James J.
Connolly prior and/or during the jury trial;
‘‘r. Trial counsel failed to sufficiently research and
prepare an argument to the court in anticipation of
offering the testimony of the petitioner’s expert witness
Dr. James J. Connolly during the jury trial;
‘‘s. Trial counsel made inappropriate comments in his
closing that the complainant had been actually sexually
assaulted, thus bolstering her credibility and undermin-
ing the petitioner’s denial of guilt;
‘‘t. Trial counsel improperly argued third-party cul-
pabililty during his closing argument, knowing that
there was no permissible inference based on the state’s
evidence for such argument, resulting in the appearance
of impropriety before the jury through the trial court’s
admonition that there was no evidence that anyone
other than the petitioner committed the alleged crimes.’’
(Footnote added.)
The habeas court summarily rejected ten of the peti-
tioner’s specifications of ineffective assistance on the
ground that the petitioner provided no credible evi-
dence to support those allegations, specifically, grounds
a, b, c, i, j, k, l, m, o, and p. The habeas court addressed
the petitioner’s remaining allegations of ineffective
assistance, explaining the factual and legal bases for
each of them. The court found that the petitioner failed
to prove deficient performance as to his allegations
that: Grotz failed to prevent his two criminal cases
from being tried together (d and e); Grotz failed to file
motions in limine to prohibit Livingston and Edell from
testifying about the victim’s credibility and the ultimate
question of whether she was sexually abused (g and
h); that better preparation by Grotz would have altered
the trial court’s ruling to preclude his expert’s testimony
(q and r); and Grotz’s belated presentation of a third-
party culpability defense during final argument
amounted to a concession that the victim had been
sexually abused and prompted the trial court to state,
in the jury’s presence, that such a defense was baseless
and improper (s and t). The habeas court found that
Grotz’s performance was deficient in failing to file
motions in limine to restrict constancy of accusation
testimony (f), but that the petitioner had failed to prove
that he was prejudiced by said deficiency. The court
also found that the petitioner had failed to prove that
he was prejudiced by Grotz’s failure to retain an appro-
priate expert regarding the conduct of the interviews
of the victim (n). The court thus denied the petition
for a writ of habeas corpus based upon the alleged
ineffective assistance of trial counsel. The habeas court
thereafter denied certification to appeal, and this
appeal followed.3
On appeal, the petitioner frames the substantive issue
for our review as ‘‘whether the habeas court erred in
denying the habeas petition where trial counsel was
ineffective and prejudice resulted.’’ He cites to no spe-
cific claim of error by the habeas court, either in any
heading or in the text of his brief. ‘‘Ordinarily, [c]laims
are inadequately briefed when they are merely men-
tioned and not briefed beyond a bare assertion. . . .
Claims are also inadequately briefed when they . . .
consist of conclusory assertions . . . with no mention
of relevant authority and minimal or no citations from
the record . . . . As a general matter, the dispositive
question in determining whether a claim is adequately
briefed is whether the claim is reasonably discernible
[from] the record . . . .’’ (Citation omitted; internal
quotation marks omitted.) In re Elijah C., 326 Conn.
480, 495, 165 A.3d 1149 (2017). ‘‘We are not required to
review issues that have been improperly presented to
this court through an inadequate brief. . . . Analysis,
rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the issue
properly.’’ (Internal quotation marks omitted.) State v.
Fowler, 178 Conn. App. 332, 345, 175 A.3d 76 (2017),
cert. denied, 327 Conn. 999, 176 A.3d 556 (2018).
Although the petitioner set forth the standards of
review pertaining to his claims that the court erred
in rejecting his claim of ineffective assistance of trial
counsel and denying his petition for certification to
appeal, he fails to present any legal or factual analysis
in support of those broad claims. In fact, in his brief
to this court, the petitioner fails to identify which of
the habeas court’s determinations he is challenging,
either by way of putting headings on his arguments or
addressing them in the text of his purported analysis.
In his thirty-five page brief, the petitioner begins his
‘‘argument’’ on page thirty, commencing with a para-
graph that exceeds two full pages in length and can
only be described as a stream of consciousness condem-
nation of Grotz’s representation of the petitioner at his
criminal trial. The petitioner refers broadly and vaguely
to various allegations of errors and omissions by Grotz
at the petitioner’s criminal trial. The pages that follow
fare no better. The petitioner’s ‘‘argument’’ consists only
of allegations of deficient performance—both vague
and conclusory—with no reference whatsoever to the
habeas court’s resolution of those allegations. His brief
is devoid of any claim of error by the habeas court. In
the absence of specific challenges to the habeas court’s
rulings, it goes without saying that his brief is bereft
of any legal analysis challenging those rulings.
The petitioner’s reply brief is a scant improvement
over his initial brief. There, the petitioner focuses pri-
marily on alleged inadequacies in the respondent’s brief.
Although he does make passing mention of certain
alleged errors by the habeas court, he again fails to set
forth, in any coherent fashion, legal or factual analyses
in support of his claim that the habeas court erred in
denying any aspect of his claim of ineffective assistance
of counsel. Like his initial brief, the petitioner’s reply
brief is riddled with incomplete and incomprehensible
sentences. His briefs are a model of abstract and conclu-
sory assertions, rendering his claims indiscernible and,
thus, unreviewable.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner also claimed that he was denied the effective assistance
of appellate counsel. The habeas court agreed, and thus restored the petition-
er’s appellate case, State v. Artiaco, AC 34962, to the docket for scheduling
of briefs in accordance with the rules and protocols of this court. That
appeal remains pending.
2
See footnote 1 of this opinion.
3
In his petition for certification to appeal, the petitioner did not specify
which of the habeas court’s findings or conclusions he sought to challenge
on appeal. Instead, he broadly asserted that the habeas court erred in denying
his claim of ineffective assistance because he had proven the claim by a
preponderance of the evidence.