Opinion
No. CV04 4000239
November 7, 2006
MEMORANDUM OF DECISION
The petitioner, Michael Jarrett, alleges in his petition for a writ of habeas corpus, initially filed on December 6, 2004, and first amended on October 12, 2005, and again on February 6, 2006, that he was denied the effective assistance of counsel at the trial of a habeas corpus petition with docket number CV95-0371173 in violation of the sixth and fourteenth amendments of the United States Constitution. He asserts that with respect to the underlying criminal case, CR12-50247, the judgment should be vacated and the matter be remanded to the trial court for further proceedings.
The claim of ineffective assistance of habeas counsel essentially complains in count one that habeas counsel failed to conduct sufficient investigation, failed to have a mental health evaluation of petitioner done, failed to present any mental health expert at the habeas trial, failed to challenge the competency of petitioner at time of criminal trial, failed to challenge trial counsel's actions for not objecting to the introduction of testimony by the state's expert, failed to allege that trial counsel failed to request a competency evaluation of petitioner during trial, failed to allege that petitioner's due process rights were violated in that petitioner was incompetent during trial, and failed to allege that petitioner was not properly advised concerning whether or not to testify. The claim of ineffective assistance of counsel in count two complains that petitioner discussed an appeal with habeas counsel, counsel assured petitioner that he would file the appeal, yet counsel failed to file the appeal.
The matter came to trial before the court on May 11, 2006, and again on May 24, 2006. The court heard testimony from petitioner, trial defense counsel, Attorney Carl D. Eisenman, Attorney Walter Bansley, an expert witness in criminal defense, and Kenneth M. Selig, M.D., J.D., an expert in forensic psychiatry. Among the exhibits received by the court were the transcripts of the trial, transcripts of the previous habeas petition, the memorandum of decision in that matter, and a psychiatric evaluation of petitioner requested by his trial counsel. The court ordered the parties to file post-trial briefs. The petitioner's brief was filed on July 7, 2006, and the respondent's brief was filed July 14, 2006.
The court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a criminal case, docket number CR12-50247, in the Judicial District of Hartford-New Britain, in which he was charged with murder.
2. The petitioner was represented at the trial court level by Attorney Carl D. Eisenman.
3. As stated by the Supreme Court, the three-judge panel could reasonably have found the following facts to be true regarding the underlying offense. "The defendant and the victim became romantically involved after the victim began babysitting for the defendant's son. Because of a substantial age disparity between the defendant, who was in his thirties, and his teenage victim, the victim's mother filed a complaint that led to the defendant's conviction of risk of injury to a child, for which he received a suspended sentence conditioned on his not seeing the victim. Distressed by the efforts to enforce their separation, which the defendant and the victim knowingly tried to circumvent, they entered into a suicide pact. Each of them alluded to their plan of action in conversations with a mutual friend, shortly before the fatal day; the defendant told the friend that he intended to do something that he characterized as dangerous." State v. Jarrett, 218 Conn. 766, 767-68, 591 A.2d 1225 (1991).
4. "On September 6, 1983, in a park in Manchester, the defendant killed the victim by stabbing her twice with his knife, and stabbed her once more after her death. Although he thereafter also stabbed himself, his three self-inflicted lacerations proved not to be fatal. When police officers arrived at the scene, they found that the defendant's clothing was stained with blood from the victim as well as from his own wounds. The defendant told a paramedic, who was examining him to ascertain the extent of his wounds, that his girlfriend was in the woods nearby and that she was dead." Id., 768.
5. At trial, the petitioner put forth the defense that he was not guilty because of mental disease or defect.
6. After the petitioner was tried by a three-judge panel, he was found guilty of murder and, on January 31, 1986, was sentenced to a term of incarceration of fifty (50) years.
7. The petitioner appealed his conviction to the Supreme Court and was represented on that appeal by Attorney Eisenman. The petitioner claimed on appeal that ". . . his conviction should be set aside because: (1) he was entitled to an acquittal because the evidence at trial was insufficient to establish his guilt beyond a reasonable doubt or to establish that the state had satisfied its burden of disproving his defense of mental disease or defect beyond a reasonable doubt; and (2) he was entitled to a new trial because the trial court should not have relied on an inculpatory statement that he made to the state's psychiatric expert." State v. Jarrett, 218 Conn. 766, 770, 591 A.2d 1225 (1991). The Supreme Court affirmed the petitioner's conviction.
8. Petitioner thereafter filed a writ of habeas corpus under docket number CV95-0371173 in which he was represented by privately retained counsel, Attorney Ernest Diette.
9. In that first habeas corpus petition, the petitioner alleged ineffective assistance by trial defense counsel, Attorney Eisenman. That "petition allege[d] that the petitioner was unable to communicate effectively with his attorney." Petitioner's Exhibit 4 ( Jarrett v. Barbieri, Superior Court, judicial district of New Haven, Docket No. CV95-0371173 (June 25, 1996, W. Sullivan, J.)), at 1. In its memorandum of decision addressing why the petition was being denied, the habeas court indicated the following: "The petitioner was offered a plea agreement whereby he would plead guilty to Manslaughter and he would receive a sentence of twenty years incarceration, execution of the sentence to be suspended after fifteen years with the right to argue for less. The petitioner testified he was not going to plead guilty to something he was not guilty of. The petitioner testified that he believed that if you do something by mutual agreement, such as this suicide pact, then it is not murder. The petitioner testified that his attorney brought to him the same aforementioned plea agreement offer at various times . . . Attorney Eisenman testified he urged the petitioner to accept the plea agreement offer many times. Attorney Eisenman said the plea bargain was a good offer." Id., at 2.
10. "The petitioner next allege[d in that first petition] that he did not take the stand and testify during his trial on the advice of his attorney. Attorney Eisenman testified it was the petitioner's decision not to testify during his trial. Attorney Eisemnan stated he discussed the matter with the petitioner and the latter chose not to testify." Id.
11. "Attorney Eisenman [also] testified [during that first habeas proceeding] that he discussed the insanity defense many times with the petitioner. Attorney Eisenman also stated that the petitioner elected in writing to have a three judge panel decide the case and not a jury and that he (Attorney Eisenman) agreed with that election." Id., at 2-3.
12. The first habeas petition was denied and the court denied the petition for certification to appeal.
13. Petitioner testified in the instant matter that the petition for certification to appeal was denied, that he signed the appeal papers and sent them to Attorney Diette. He did not hear from him for some time and arranged to have someone go to Attorney Diette's sister's home to try to locate him. Petitioner contacted him by telephone in Florida and was told that he would take care of it when he returned from Florida. Petitioner later wrote to the court and was informed that no appeal had been filed.
14. In 1991, the petitioner initiated a second habeas corpus petition. That matter was assigned docket number CV01-0459316 in the Judicial District of New Haven. See Petitioner's Exhibit 1. On January 16, 2004, the court (Corradino, J.) granted respondent's motion to dismiss this second petition because the petition sought to relitigate the claim of ineffective assistance of trial counsel. The petitioner, who was represented in the second habeas corpus by Attorney McIntyre, the petitioner's attorney in the instant matter, assented to the dismissal because he thereby was not precluded from filing another petition alleging ineffective assistance of prior habeas counsel, Attorney Diette.
15. Petitioner then filed the instant petition alleging Attorney Diette's representation was ineffective in the first habeas petition as well as for his failure to file an appeal.
16. Petitioner testified before this court that prior to the commencement of the trial, Attorney Eisenman negotiated a plea bargain whereby petitioner could plead nolo contendere, or guilty under the Alford doctrine to manslaughter, either on the basis of extreme emotional disturbance or on the basis of intending to injure but not to kill. The sentence would be capped by statute at twenty years. The prosecutor would ask for fifteen years and petitioner would have the right to argue for less and would have the right to go before the sentence review board.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, L.Ed.2d 162 (1970). "Under North Carolina v. Alford . . . a criminal defendant is not required to admit his guilt but consents to being punished as if he were guilty to avoid the risk of proceeding to trial . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless . . ." State v. Wheatland, 93 Conn.App. 232, 234 n. 1, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006).
17. Attorney Eisenman brought the offer to the petitioner and the two discussed the offer a number of times. The petitioner understood that he was exposed to a sentence of sixty years or a commitment to Whiting Forensic Institute if he went to trial. Attorney Eisenman advised the petitioner that he should take the state's offer. Nevertheless, petitioner did not take the offer because he wanted to go to trial to be able to explain why he killed the victim and why he was going to kill himself, too.
18. Despite numerous discussions regarding the plea bargain, petitioner refused to accept it. He told Attorney Eisemnan that he did not want to take legal responsibility for the killing because it was his intention to complete the murder-suicide pact, despite the fact that Attorney Eisenman had explained to him the import of a nolo contendre plea and of a plea under the Alford doctrine.
19. The petitioner stated that he never testified at the criminal trial because he was advised not to do so by Attorney Eisenman and, by then, he just wanted to get the trial over with so he could commit suicide and finish what he had started. After sentencing he began reading about reincarnation and spoke with others in and out of prison, leading to him deciding that suicide was not the answer.
20. Attorney Eisenman testified that he was appointed as a public defender to represent petitioner and represented him from the inception of the case through the appeal of his conviction. He requested that a competency evaluation be done in accordance with Conn. Gen Stat. § 54-56d. This was performed by Dr. Walter Borden in November 1983. Petitioner was found competent to stand trial by Dr. Borden. However, Dr. Borden's report also indicated that the petitioner has a "self defeating attitude which might contribute to his sabotaging whatever legal defense he and his counsel pursue." (See Petitioner's Exhibit 5.) Dr. Borden also completed a full psychiatric evaluation in November 1983.
21. Attorney Eisenman also requested that psychological testing be done by Dr. John A. Cegalis, a clinical psychologist, which testing was done in June 1984. He further requested evaluations from Dr. Peter Zeman, a psychiatrist, and Dr. David Berry, a psychologist. Those evaluations were done in February 1985 and June 1985 respectively. All three, as well as Dr. Borden, found petitioner to be psychotic and diagnosed him as having schizophrenic disorder, paranoid type. All four opined that petitioner could not appreciate the wrongfulness of his conduct nor conform his conduct to the requirements of the law on the date of the incident, September 6, 1983.
22. The state had the petitioner evaluated by Dr. Donald Grayson on November 7, 1984, who found him psychotic but not incapable of conforming his conduct to the requirements of the law.
23. Kenneth M. Selig, M.D., J.D., testified at the habeas trial. Dr. Selig is board certified in psychiatry and is a member of the Connecticut Bar Association. He was retained in the instant habeas proceeding to determine whether or not there were any psychiatric issues relevant to this matter. Dr. Selig testified that, in forming an opinion, he reviewed the mental health evaluations of petitioner both before and after his arrest and before his trial and after his trial, and the transcripts of the trial and the previous habeas trial. He also interviewed petitioner in 2002 and about a week prior to the instant trial.
Petitioner's Exhibit 7 sets forth Dr. Selig's educational background and qualifications.
24. Dr. Selig further stated that, based on the materials reviewed, there was no question in his mind that petitioner was psychotic in the timeframe of 1983 to 1985, at a minimum. He further opined that there was a nexus between the psychosis and the issue of competency in this case, i.e., at the time petitioner was faced with the state's offer, he was not competent to appreciate it. He stated that petitioner was not able to pull himself out of the dominant psychotic thinking in order to form a truly rational evaluation of the costs and benefits of the offer versus taking the case to trial.
25. Attorney Walter Bansley testified as an expert witness in criminal defense for the petitioner. He reviewed the trial transcript, the prior habeas transcript, Dr. Borden's report and the other psychiatric/psychologist's reports used in the trial. He stated that the standard of care in a case where an attorney thought that his client could not participate in formulating a strategy for defense would be for the attorney to refer the client for a competency evaluation. Attorney Bansley further stated that the same standard applies to habeas counsel. He opined that when petitioner continued to refuse the favorable plea agreement, Attorney Eisenman should have referred him for another competency evaluation based on petitioner's inability to appreciate the offer.
Petitioner's Exhibit 6 sets forth Attorney Bansley's educational background and qualifications.
26. Additional facts will be discussed as necessary.
DISCUSION
"To 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. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); . . . Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial . . ." (Internal citations and quotation marks omitted.) Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).
"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness . . . In Strickland, the United States Supreme Court held that judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a petitioner to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court 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 . . . Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." Henderson v. Commissioner of Correction, 80 Conn.App. 499, 504-05, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).
"The Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim. The petitioner is also not guaranteed assistance of an attorney who will make no mistakes . . . What constitutes effective assistance of counsel is not and cannot be fixed with yard-stick precision, but varies according to the unique circumstances of each representation . . ." (Internal citations and quotation marks omitted.) Id., at 505.
In the present matter, the petitioner alleges in count one that Attorney Diette failed to: conduct sufficient investigation; have a mental health evaluation of petitioner done; present any mental health expert at the habeas trial; challenge the competency of petitioner at time of criminal trial; challenge trial counsel's actions for not objecting to the introduction of testimony by the state's expert; allege that trial counsel failed to request a competency evaluation of petitioner during trial; allege that petitioner's due process rights were violated in that petitioner was incompetent during trial; and allege that petitioner was not properly advised concerning whether or not to testify. Except for the claim that Attorney Eisenman did not properly advise the petitioner whether or not to testify, all other allegations in count one relate to, or arise out of, the claim that Attorney Eisenman failed to have the petitioner's competency evaluated because he did not accept the state's offer and instead proceeded to trial. Consequently, the court will address those claims together in that context and as they crystallized through the habeas corpus trial and post-trial briefs.
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution . . . Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. Plea bargaining leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned . . .
"Commentators have estimated that between 80 and 90 percent of criminal cases in Connecticut result in guilty pleas, the majority of which are the product of plea bargains . . . Thus, almost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial. Although this decision is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial. The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction . . ." (Internal citations and quotation marks omitted.) Copas v. Commissioner of Correction, 234 Conn. 139, 153-54, 662 A.2d 718 (1995).
Here, Attorney Eisenman thoroughly investigated the case and was quite prepared to put on evidence in support of the petitioner's assertion that he should be found not guilty by reason of mental disease or defect. But the matter did not have to proceed to trial. Though the state was charging the petitioner with murder, it offered to resolve the matter by letting the petitioner plead to the charge of manslaughter. The state also was willing to have the petitioner receive a sentence of twenty years, suspended after the service of fifteen years, and have the right to argue for less at sentencing. There is no dispute that Attorney Eisenman conveyed the offer and on numerous occasions emphatically advised the petitioner to accept the offer because it undeniably was a very good offer.
Though it is never explicitly stated, it is implicit in the petitioner's claim in count one that the reasonableness of not accepting the state's offer can be determined or measured by the difference between the pending charge (murder) and its possible maximum sentence versus the offered charge (manslaughter) and the offered sentence. Attorney Eisenman did not, of course, have the power to enter a plea that was inconsistent with the petitioner's wishes. The United States Supreme Court addressed this very same issue in Brookhart v. Janis, 384 U.S. 1, 7, 16 L.Ed.2d 314, 86 S.Ct 1245 (1966). The Brookhart court held that ". . . that the constitutional rights of a defendant cannot be waived by his counsel under such circumstances [where the defendant does not want to plead guilty] . . . [This] would shut off the defendant's constitutional right to confront and cross-examine the witnesses against him which he would have an opportunity to do under a plea of not guilty . . ." Id., at 7-8.
Under such a sliding scale analysis, offers that do not differ much from the pending charge and maximum sentence provide little incentive for defendants to resolve a matter via plea agreement. Significant variances between the offered charge and sentence, conversely, would mean that there potentially is much greater incentive to accept a plea offer. Nevertheless, a competent defendant has an absolute right to refuse the best of offers, proceed to trial, confront his or her accusers and hold the state to its burden of proof. Under the approach posited by the petitioner, however, insisting on a constitutionally protected right when confronted with apparent insurmountable odds calls into question such person's competency. Stated somewhat differently, the gap between an offer and its alternative provides some sort of measure or gauge of a defendant's competence. Such an approach starkly conflicts with the statute governing competency — § 54-56d — which provides that lack of competency is established if a defendant ". . . is unable to understand the proceedings against him or to assist in his own defense." C.G.S. § 54-56d(a) (Rev. to 1985). Petitioner's Exhibit 2. That definition has not been altered since the petitioner was convicted.
The petitioner in the instant matter testified that he did not want to enter a plea of guilty. That testimony is consistent with his testimony before Judge Sullivan in his first habeas corpus. See Petitioner's Exhibit 3 (Tr. June 14, 1996), at 14. Simply put, the petitioner wanted to tell his side of the story and convince the fact finder that he was not guilty of murder. The manner in which he attempted to accomplish this was by asserting the affirmative defense that he was not guilty by reason of mental disease or defect. A total of four psychiatrists and psychologists evaluated the petitioner and testified on his behalf in support of his raised defense. Even the state's expert, Dr. Grayson, in large part agreed with the petitioner's experts, though Dr. Grayson disagreed with the ultimate conclusion to be drawn from the diagnoses.
Attorney Eisenman testified that given the facts of this case and the affirmative defense that would be raised, he automatically had the petitioner evaluated by Dr. Borden to determine whether he was competent to stand trial. Dr. Borden reported his findings to Attorney Eisenman via a psychiatric evaluation dated November 19, 1983. See Petitioner's Exhibit 5. Dr. Borden concluded that the petitioner was ". . . competent to stand trial. He understands the nature of the charges against him, understands court proceedings, and can assist counsel in his own defense." Id., at 1.
Dr. Borden found that the petitioner, ". . . on examination, is a man of above average intelligence. He was able to give an account of understanding of the charges against him as well as a basic understanding of court procedures and roles of participants. He has an appreciation of possible penalties. He can provide counsel with a factual account of the issues involved in the case and he is able to work with counsel in his own defense." Id., at 1-2.
There was a concern that Dr. Borden had and that he noted to Attorney Eisenman. "The only area where there is a question related to [the petitioner's] competency is in the area of a self-defeating attitude, which appeared to be a major theme in his life and which might contribute to his sabotaging whatever legal defense he and his counsel pursue. However, at present this does not appear to be the case but would be considered if at any point during the legal proceedings he appears to be acting inappropriately." Id., at 2.
Attorney Eisenman testified before this court that he, as a result of Dr. Borden's warning, monitored the petitioner during his representation so that he would be aware of any efforts by the petitioner to undermine or sabotage his own defense. Attorney Eisenman testified that he never perceived any change in the petitioner's behavior indicative of such efforts. Consequently, Attorney Eisenman never concluded that the petitioner needed to again have his competency evaluated. Based on the evidence presented to this court, there is no evidence that shows that Attorney Eisenman's assessment and conclusion, which resulted in him not having the petitioner's competency evaluated because he did not accept the state's plea offer, was deficient performance.
In fact, the petitioner's conduct in preparing for the trial, which included numerous meetings with the mental health experts evaluating him, underscores that he was very able to work with counsel and was eminently capable of assisting his own defense. Attorney Eisenman testified before this court that the petitioner's mental state never changed from the time he met him to the time of judgment. The petitioner always had the same demeanor, attitude and line of reasoning and there was no change Attorney Eisenman discerned. The court finds that there is no evidence that the petitioner was unable to understand the proceedings or was unable to assist in his own defense.
The petitioner did present testimony from Dr. Kenneth Selig in support of his claim. Dr. Selig testified that he evaluated the petitioner in 2002, approximately seventeen years after he was convicted, and again shortly prior to the habeas trial. Dr. Selig also reviewed all evaluations performed by the various mental health experts and the transcripts of the underlying criminal proceedings. Dr. Selig opined that at the time the petitioner was evaluating the state's plea offer, he was not competent to appreciate it. The court is not convinced and, accordingly, will not assign much weight to Dr. Selig's testimony.
Here, the petitioner was evaluated nearly two decades after the state's offer. The petitioner has consistently testified that he did not want to enter of a guilty plea because he did not think he was guilty of murder. The petitioner very proactively participated in his own defense and met numerous times with the mental health experts to establish his affirmative defense of being not guilty by mental disease or defect. The petitioner did, contrary to Dr. Selig's opinion, fully appreciate the state's offer. The fact that the petitioner did not accept the plea offer and went to trial so he could present evidence in support of his defense is itself not an indication that he is incompetent. If anything, it is simply the exercise of a fundamental constitutional right and not, as Dr. Borden expressed his concern, acting inappropriately to sabotage his defense.
The petitioner also claims in count one that Attorney Eisenman did not properly advise the petitioner whether or not to testify. The petitioner wanted to testify so that he could tell his side of the story to convince the fact finder that he was not guilty of murder. At the habeas corpus trial the petitioner testified that he and Attorney Eisenman discussed whether the petitioner should testify. Attorney Eisenman advised him that he would likely come across as too intelligent. The multitude of mental health experts who were laying the foundation for the petitioner's defense could easily be derailed by the petitioner's testimony. This court cannot conclude that Attorney Eisenman's advice to the petitioner that he not testify, given these concerns, was deficient performance.
Based upon the foregoing, the court concludes that the claims in count one must fail. The petitioner has not shown that Attorney Eisenman rendered ineffective assistance of counsel. His derivative claims that Attorney Diette rendered ineffective assistance of counsel for failure to raise these claims against Attorney Eisenman in the first habeas corpus are without merit.
In count two the petitioner raises an additional claim of ineffective assistance of counsel by Attorney Diette in that he failed to perfect the petitioner's appeal from the first habeas corpus case. The petitioner credibly testified that the first habeas corpus was denied and that Judge Sullivan denied the petition for certification to appeal. The petitioner also testified that he and Attorney Diette discussed filing an appeal and that Diette assured him that he would file the appeal. Attorney Diette did not, however, file the appeal.
"There is no constitutional mandate that to provide reasonably competent assistance, defense counsel always must inform a criminal defendant of the right to appeal from the judgment rendered after the acceptance of a guilty plea. Ghant v. Commissioner of Correction, 255 Conn. 1, 9, 761 A.2d 740 (2000). Instead, counsel has a constitutional obligation to advise a defendant of appeal rights when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." (Internal quotation marks omitted.) King v. Commissioner of Correction, 73 Conn.App. 600, 604-05, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003).
Here, the petitioner reasonably demonstrated to Attorney Diette that he wanted to appeal from Judge Sullivan's decision. Attorney Diette indicated to the petitioner that he would file the appeal. Notwithstanding the actual merit of the appeal, reasonably competent counsel must file an appeal in those circumstances. Counsel need not actually represent someone on a wholly frivolous appeal. Retained counsel can terminate or withdraw from representation and appointed counsel can seek court permission to do the same. But the right to pursue the appeal is lost ab initio if counsel does not comply with a client's express wishes and fails to perfect the appeal. The court finds, therefore, that the petitioner has shown that Attorney Diette was deficient in failing to file the appeal and that the petitioner was prejudiced thereby because he lost his right to appeal. See, e.g., Lewis v. Commissioner of Correction, 89 Conn.App. 850, 852 n. 1, 856, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).
Accordingly, the claims in count one are denied. As to the claim in count two, however, the petition for a writ of habeas corpus is granted. The petitioner's right to appeal from the judgment in CV95-0371173 is restored. The petitioner has twenty (20) days from the date of this decision to file an appeal in that case. Lastly, counsel for petitioner shall prepare and file a judgment file in this matter within thirty (30) days of the date of judgment.