Opinion
CV144006234S
11-18-2019
John KAMINSKI v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
OPINION
Bhatt, J.
The petitioner, John Kaminski, alleges in his amended petition that he is illegally confined as a result of a sequence of state actions. Essentially, the petitioner asserts that the police conducted an illegal search of his residence which led to other, subsequent charges for which he presently stands convicted. The petitioner avers that the first criminal case, which involved the alleged illegal search, was later illegally nolled to intentionally conceal the illegal search. This court does not agree and, therefore, the petition is denied in part and dismissed in part.
I. FACTUAL BACKGROUND
In docket number CR04-0214486-S (initial case), the police applied for and obtained a search warrant to search the petitioner’s residence. This search warrant was based on a charge of risk of injury to a minor. The police executed the search warrant, which encompassed the petitioner’s computer, and which ultimately led to the discovery of images and videos on that computer. The petitioner was then charged with numerous offenses in docket numbers CR04-0216594-T, CR04-0216595-T, and CR04-0216596-T (subsequent cases). Represented by Attorney Martin Rizzi, the petitioner sought to suppress the evidence obtained as a result of the search warrant in the initial case. The court, Shortall, J., denied the motion to suppress after a hearing. The petitioner then pleaded nolo contendere in the subsequent cases to six counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and the court, Clifford, J., sentenced him to a total effective sentence of fifty years’ incarceration, execution suspended after twenty-five years, of which twenty years is a mandatory minimum, followed by twenty-five years of probation. The petitioner appealed his convictions.
The petitioner filed the instant petition for writ of habeas corpus on or about May 20, 2014. Counsel was assigned initially but permitted to withdraw. The self-represented petitioner filed an amended petition containing various claims or arguments. The petitioner has structured the amended petition in a manner intended to clarify his claims. The opening statement summarizes the petitioner’s central claim: that illegal actions in the nolled initial case, including the nolle itself, rendered the subsequent cases illegal and void. The amended petition lists four "questions for review" for the habeas court: (1) that documents filed by appellate counsel and first habeas counsel must be expunged from the record under the "fruit of the poisonous tree" doctrine because they arise from a nolled initial case; (2) the petitioner’s convictions are void as a result of incompetent counsel (i.e., ineffective assistance of counsel); (3) that the nolle of the initial case is legally defective because the petitioner and his attorney were not present when the prosecutor entered the nolle into the record; and (4) that the prosecutor engaged in improprieties and/or abused his discretion. The amended petition also identifies ineffective assistance of several predecessor counsel as an allegation, as well as supporting arguments why his conviction and incarceration are illegal. The respondent’s return, relying on Practice Book § 23-29(2), asserts that the claims identified as questions one through three fail to state a claim upon which habeas relief can be granted. The return further alleges that question four fails to state a claim for which relief can be granted, as well as that the petitioner cannot obtain habeas corpus review of that claim. Additionally, the return asserts that the petitioner’s fourth question or claim is procedurally defaulted because he did not first raise it with the trial court or on direct appeal. The petitioner’s reply essentially asserts ineffective assistance of counsel as the basis for the procedural default.
"[T]he interpretation of pleadings is always a question of law for the court ... [T]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ... [T]he [petition] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Citations omitted; internal quotation marks omitted.) Lorthe v. Commissioner of Correction, 103 Conn.App. 662, 669, 931 A.2d 348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).
Section 23-29(2) provides that a habeas court may dismiss a petition "if it determines that: ... (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted."
The court heard testimony from the petitioner, the sole witness. The only exhibits were two documents entered into evidence by the respondent: (1) the May 1, 2006 transcript of the nolle in the initial case; and (2) the September 21, 2016 memorandum of decision, D’Addabbo, J., denying or dismissing the petitioner’s claims raised in a motion to correct a sentence imposed in an illegal manner in the subsequent cases. The parties presented closing arguments. Although the court did not issue any post-trial briefing orders, the petitioner submitted a post-trial brief.
II. FINDINGS OF FACT
According to our Appellate Court, the trial court found the following in ruling on the petitioner’s motion to suppress:
Six months after completing probation for his sexual assault of a fourteen-year-old girl in 1993, [the petitioner], a forty-nine-year-old man, brought another fourteen-year-old girl ... to his apartment and took photographs of her. The [petitioner] had agreed with the young girl’s mother that he would take photographs of the girl for her modeling career. The mother had signed a written agreement but had not yet had the signature appearing on that agreement notarized. Most importantly, the agreement contained a provision that the mother would be present at all of the photography sessions.
On February 24, 2004, the [petitioner] picked up the girl at an address different from her mother’s address and took her to his residence. The [petitioner] had informed the girl that they would be meeting to discuss her modeling career. After they arrived at his residence, however, he asked her to change into a man’s button-down shirt so he could take photographs of her. At the [petitioner’s] request, the girl went into the [petitioner’s] bedroom and selected a button-down shirt. Below her waist, the girl was wearing only thong underpants. The [petitioner] then proceeded to take thirty photographs of the girl in a variety of poses. In its memorandum of decision on the motion to suppress, the court stated: "The [petitioner] told the girl to pose any way she liked. In some of the thirty photographs taken, the girl wore only thong panties on the lower portion of her body; in one of those photographs, which was provided to the court, the girl is pictured sitting down with her knees drawn up to her chin and her crotch area exposed, covered only by the thong panties. In another photograph, the girl is pictured lying on her stomach wearing a man’s dress shirt and thong panties, the dress shirt has raised up on her back and a portion of her buttocks is exposed.
After taking the photographs, the [petitioner] sent them via his computer to an unidentified third person, advising that person [that] he would be taking more pictures on Friday, February 27, 2004, with a better camera and asking the recipient of these photographs to let him know if he wanted those photographs as well. The [petitioner] had asked the girl to meet him on that Friday to take more photographs. For this photography session, the [petitioner] "asked her to wear ‘little girl type’ panties on that date because, he said, ‘the company’ liked the models to wear such panties."
The [petitioner] then drove the girl back to the location from which he had retrieved her, the residence of the family friends where she had been staying. After the girl informed these family friends where she had been and showed them the photographs, they became concerned and alerted the police about the defendant’s involvement with the girl.
The victim informed the police that while at the [petitioner’s] apartment the [petitioner] showed her a web site named "LiL’Amber.com." The court stated: "This web site features young females (preteens and young teenagers) dressed in panties, bathing suits and half shirts." The police could not fully access the web site, which they classified as "child erotica," because it required a fee.
During their investigation, the police discovered that "[i]n 1999, apparently while still on probation for his sexual assault conviction, the [petitioner] had used a credit card to purchase access to a web site featuring child pornography. This web site had been the subject of a seizure carried out by the Dallas, Texas, police department in the course of a nationwide investigation of child pornography and the Internet, and the [petitioner’s] name was found on a listing of individuals who had purchased access to the web site."
Also, while on probation, the [petitioner] informed his probation officer that he was "self-employed in the janitorial and real estate maintenance business ..." Moreover, "he had never mentioned to his probation officer that he was intending to go into the child modeling or photography fields."
On the basis of the [petitioner’s] behavior with the fourteen-year-old girl and his other actions, the police submitted an affidavit to a Superior Court judge in support of an application for a search warrant to search the [petitioner’s] residence, which was based on risk of injury to a child. The court stated: "In addition, the affiants, two veteran New Britain detectives, relying on their ‘training and experience,’ informed the issuing judge that, although the images appearing on the ‘Lil’Amber’ web site did not appear to be child pornography, as defined in General Statutes § 53a-193(13), ‘persons who focus on children as sexual objects often collect these images [known as "child erotica"] as well as child pornography’ and often use them in their seduction of child victims. Further, the affiants averred that ‘persons involved in sending or receiving child erotica or pornography tend to retain it for long periods of time’ on their computers and in other formats, such as diskettes or CD-ROMS, that computer hardware, software and documentation are important to a criminal investigation both as storage media for information about crimes and as instrumentalities and/or evidence of the crimes, themselves, that ‘persons who focus on children as sexual objects often collect sexually explicit materials consisting of photographs, digital images, video files, audio tapes and files or other computer files, depicting children of a particular age group.’ Finally, the affiants state that to retrieve data from a computer system, it is necessary for the entire system to be seized and submitted to a computer specialist for examination and analysis in a laboratory setting."
On the basis of this affidavit, the court issued a search and seizure warrant. The search yielded a plethora of incriminating evidence against the [petitioner], including photographs of the [petitioner] engaged in sexual acts with unconscious minors, which led to the six sexual assault charges to which he later pleaded guilty. Subsequently, the [petitioner] moved to suppress the evidence obtained on three grounds: (1) lack of probable cause, (2) lack of particularity in the description of the items seized, and (3) material representations made by police in the affidavit that were either intentionally false or made with reckless disregard as to their truth or falsity.
On April 25, 2005, the court, Shortall, J., granted the motion to suppress in part concerning two items and denied the motion to suppress regarding the other items. In regard to the other items, the court concluded that the search warrant was valid and "described quite specifically computer and photographic equipment for which adequate probable cause is established in the affidavit supporting the application." The court also drew the same conclusions for the "collections of photographs depicting children in a particular age group in nude or seminude poses, or engaging in sexual activity," on the basis of the [petitioner’s] previous conviction and actions taken with the young girl during and after the photography session.
Subsequently, the [petitioner] filed a motion for articulation, and the court issued a supplemental memorandum of decision on May 12, 2005. On September 25, 2005, the [petitioner] moved to reargue the motion to suppress, averring that he had learned information that was not available at the time the motion was filed, heard and decided. According to the [petitioner], this new information consisted of statements in the search warrant affidavit that the mother had not signed the model release form, when she had in fact signed it, but had failed to have the signature notarized, and that the girl was living not with the mother but at the address where the [petitioner] met her on the day of the photography session.
On September 29, 2005, with the state in agreement, the court granted the [petitioner’s] motion to reargue. After granting the motion to reargue, the court heard argument in which the [petitioner] claimed that the police officers who sought the warrant to search his apartment intentionally or recklessly omitted facts from the affidavit, which were material to the finding of probable cause for risk of injury to a child. After analyzing the [petitioner’s] claims, the court concluded: "All of [the] facts allow for the reasonable inference that this was a subterfuge devised by the [petitioner] to lure this child into a situation harmful to her moral, mental and even physical welfare, and none of them is challenged by the motion to reargue. The claims relied on in the motion to reargue are either unsupported by the exhibits submitted in support of the motion or immaterial to the finding of probable cause." Thus, the court again denied the [petitioner’s] request for suppression of the remaining evidence and also denied his request for a Franks hearing.
On February 14, 2006, the [petitioner] pleaded guilty to six charges of sexual assault in the first degree in violation of § 53-70(a)(2). The matters were continued for sentencing, which occurred on April 11, 2006. The court, Clifford, J., sentenced the [petitioner] to a total effective term of fifty years imprisonment, execution suspended after twenty-five years, twenty years of which is the mandatory minimum time, followed by twenty-five years of probation.(Footnotes renumbered.) State v. Kaminski, 106 Conn.App. 114, 116-21, 940 A.2d 844, cert. denied, 287 Conn. 909, 950 A.2d 1286 (2008).
"It is unclear from the photographs whether the girl was wearing a sweater under the button-down shirt, which is asserted by the [petitioner]. Nevertheless, under the button-down shirt below her waist, the young girl was wearing only thong panties."
"This photograph was not supplied to the court; however, the girl described it to the police."
"The items were listed as items seven and twenty, which were described as one brown bag containing documents, catalogs, photographs, letters, papers and one bag of several documents, including an Internet receipt for Rohypnol tablets. The court concluded that the seizure of these items could only have been made pursuant to those portions of the warrant which the court holds were not described with sufficient particularity to satisfy the constitution and as to which probable cause was not established in the application ..."
On appeal, he claimed unsuccessfully "that the court improperly (1) determined that the warrant to search his apartment did not lack probable cause, (2) denied his motion to suppress all of the evidence seized under the search warrant, (3) made a determination that was beyond the scope allowed under the circumstances of the case, and (4) denied his request for a Franks hearing." (Footnote renumbered.) Id., 116.
"Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d (1978), provides authority permitting a defendant to challenge the truthfulness of an affidavit supporting a search warrant, provided the defendant has made a ‘substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit ...’ [Id., 155-56]"
The petitioner has previously challenged his convictions via a petition for writ of habeas corpus. Kaminski v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-11-4004011-S (July 8, 2014) (2014 WL 3906515). The petitioner also filed a motion to correct a sentence imposed in an illegal manner in the criminal court. The court, D’Addabbo, J., in part denied and in part dismissed the motion. Respondent’s Exhibit B. The Appellate Court affirmed the trial court. State v. Kaminski, 180 Conn.App. 902, 180 A.3d 39, cert. denied, 329 Conn. 905, 184 A.3d 1217 (2018).
The habeas court, Mullins, J., denied the habeas corpus claims of ineffective assistance by Attorney Rizzi. The petitioner appealed from the denial of the petition for certification to appeal. The appeal was assigned docket number AC 36892, but was withdrawn on August 6, 2014.
The petitioner, the only witness at the habeas trial, testified that there was no forensic testing of evidence done by an independent examiner. The petitioner testified that while he was at the courthouse for the initial case that was later nolled, he was taken to a room, stripped, searched, and photographed. The petitioner questioned whether there was a search warrant to authorize this search of his person, and indicated that the search warrant has since disappeared. However, the petitioner also acknowledged that he tore up his copy of the search warrant. The petitioner further testified that the initial case was nolled about twenty days after he entered his nolo contendere pleas to the subsequent cases. Additionally, neither the petitioner nor his attorney were present in court when the nolle was entered for the record May I, 2006.
Additional facts will be set forth as necessary.
III. LEGAL ANALYSIS
A. PROCEDURAL DEFAULT
"In essence, the procedural default doctrine holds that a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on direct appeal in the original proceeding and that if the state, in response, alleges that a claimant should be procedurally defaulted from now making the claim, the claimant bears the burden of demonstrating good cause for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure." Hinds v. Commissioner of Correction, 151 Conn.App. 837, 852, 97 A.3d 986 (2014), aff’d, 321 Conn. 56, 136 A.3d 596 (2016); Orcutt v. Commissioner of Correction, 284 Conn. 724, 737, 937 A.2d 656 (2007) ("As a general matter, a defendant who files a petition for a writ of habeas corpus will be deemed to have procedurally defaulted unless he exhausts at least one of those remedies"). Typical claims of ineffective assistance of counsel can only be adequately litigated in a collateral proceeding. Taylor v. Commissioner of Correction, 324 Conn. 631, 646, 153 A.3d 1264 (2017). "Typical claims of ineffective assistance of counsel require the court to determine whether counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Citation omitted; internal quotation marks omitted.) McCarthy v. Commissioner of Correction, 192 Conn.App. 797, 808 (2019). "Habeas, as a collateral form of relief, is generally available to litigate constitutional issues only if a more direct route to justice has been foreclosed through no fault of the petitioner." (Internal quotation marks omitted.) Gaskin v. Commissioner of Correction, 183 Conn.App. 496, 511, 193 A.3d 625 (2018).
When the respondent alleges that a claim is procedurally defaulted, the petitioner bears the burden of demonstrating good cause for failing to previously raise the claim and further, proving actual prejudice suffered as a result of this failure. McCarthy v. Commissioner of Correction, supra, 192 Conn.App. 809. "The cause and prejudice standard is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, [inadvertence] or ignorance ... [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule ... Cause and prejudice must be established conjunctively ... If the petitioner fails to demonstrate either one, a trial court will not review the merits of his habeas claim." (Citations omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 191, 982 A.2d 620 (2009).
"It is true that [a] successful ineffective assistance of counsel claim can satisfy the cause and prejudice standard so as to cure a procedurally defaulted claim. Indeed, [i]f a petitioner can prove that his attorney’s performance fell below acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for cause and will invariably have demonstrated prejudice." (Citations omitted; internal quotation marks omitted.) McCarthy v. Commissioner of Correction, supra, 192 Conn.App. 810.
B. INEFFECTIVE ASSISTANCE OF COUNSEL IN GUILTY PLEAS
It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Horn v. Commissioner of Correction, 321 Conn. 767, 775, 138 A.3d 908 (2016). Thus, because "[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair"; (internal quotation marks omitted), Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 686.
I. Two-Part Test
To determine whether a defendant is entitled to a new trial due to a breakdown in the adversarial process caused by counsel’s inadequate representation at trial, courts apply the familiar two-part test adopted by the United States Supreme Court in Strickland . Skakel v. Commissioner of Correction, 329 Conn. 1, 30, 188 A.3d 1 (2018). A petitioner’s claim that trial 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. This requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Citations omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 30. Without a showing as to both components, it cannot be said that the conviction resulted from a breakdown in the adversary process, rendering the result unreliable. Strickland v. Washington, supra, 466 U.S. 687. However, "a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland v. Washington, supra, 697; see also State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).
2. Performance Prong
The sixth amendment "does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied a fair trial." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 30-31, quoting Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). With respect to the first part of the Strickland test, "the proper standard for attorney performance is that of reasonably effective assistance." Strickland v. Washington, supra, 466 U.S. 687. "Consequently, to establish deficient performance, the petitioner must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms." Skakel v. Commissioner of Correction, supra, 31. "Moreover, strategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." Id.
3. Prejudice Prong
In order to obtain relief, petitioners must also show that they were prejudiced by counsel’s deficient performance. As noted above, to succeed on the prejudice prong, the petitioner must demonstrate that, but for counsel’s deficient performance, the petitioner would not have pleaded guilty and would have proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Washington v. Commissioner of Correction, 287 Conn. 792, 835, 950 A.2d 1220 (2008); Carraway v. Commissioner of Correction, 144 Conn.App. 461, 472, 72 A.3d 426 (2013), appeal dismissed, 317 Conn. 594, 119 A.3d 1153 (2015).
When deciding whether the petitioner had demonstrated that he would have insisted on a trial and evaluating the credibility of that assertion, it is appropriate for the court to consider whether "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). A petitioner’s assertion that he would have insisted on going to trial "suffers from obvious credibility problems and must be evaluated in light of the circumstances the defendant would have faced at the time of his decision." Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir.), cert. denied, 488 U.S. 843, 109 S.Ct. 117, 102 L.Ed.2d 91 (1988). The strength of the state’s case is often "the best evidence of whether a defendant in fact would have changed his plea and insisted on going to trial"; Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001), cert. denied, 534 U.S. 1140, 122 S.Ct. 1092, 151 L.Ed.2d 990 (2002); in the face of an allegation of a legal claim or defense strategy not pursued. Carraway v. Commissioner of Correction, supra, 144 Conn.App. 475.
"It is well established that ‘the burden of establishing grounds for relief in a habeas corpus proceeding rest[s] with the petitioner.’ Biggs v. Warden, 26 Conn.App. 52, 55, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). ‘The petitioner, as the plaintiff in a habeas corpus proceeding, bears a heavy burden of proof.’ Lubesky v. Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989)." Morales v. Commissioner of Correction, 99 Conn.App. 506, 509, 914 A.2d 602, cert. denied, 282 Conn. 906, 920 A.2d 308 (2007).
C. DISCUSSION
The petitioner here is not directly challenging his convictions. Instead, the petitioner alleges that the search warrant for the initial case was a ruse to illegally obtain the evidence that later formed the bases for his nolo contendere pleas in the subsequent cases. The petitioner extrapolates this illegality into the nolle of the initial case some three weeks after his sentencing for the subsequent cases. Thus, according to the petitioner, the nolle itself is illegal, presumably because it was a way to cover up the illegal search warrant for the initial case. The petitioner’s nolo contendere plea, which occurred after Judge Shortall in large part denied the motion to suppress, itself is not directly at issue.
The respondent’s return asserts that all of the petitioner’s claims in the amended petition fail to state a claim for which relief can be granted. The respondent references Practice Book § 23-29(2), which provides authority for the dismissal of habeas claims for which no relief can be granted. The return asks the habeas court to dismiss the petition. The return also raises the affirmative defense of procedural default as to the petitioner’s fourth claim.
The amended petition’s first claim is that the documents filed by his appellate counsel, as well as both first and second habeas counsel, must be expunged from the record. The petitioner further asserts that these counsel "exposed" a nolled docket, thereby violating General Statutes § 54-142a(3)(g). The petitioner invokes the exclusionary rule derived from the "fruit of the poisonous tree" doctrine to support his contention that these documents must be expunged because they arise from his nolled initial case. The first claim is not a cognizable habeas corpus claim because it does not challenge the legality of the petitioner’s confinement, nor can a habeas court expunge documents from prior court proceedings. The first claim fails to state a claim that is justiciable in a habeas court and, therefore, cannot result in habeas relief. Accordingly, the first claim is dismissed pursuant to Practice Book § 23-29(2).
The petitioner’s second claim is that his convictions are void as a result of incompetent counsel or ineffective assistance of counsel. The petitioner’s allegation in the amended petition is presented as follows: "Whether without competent, non-complicit legal representation, the conviction is void (Outrageous Conduct). Proceedings were a farce and a mockery of justice." While it is unclear what actions or inactions by counsel are purportedly deficient, the petitioner broadly assails all prior assigned counsel for their actions related to the nolled initial docket. The petitioner also asserts that all counsel collaborated with the prosecutor to accomplish what the petitioner claims is illegal government activity.
Although the second claim enunciates ineffective assistance of counsel, the petitioner does not identify any specific actions by counsel that are deficient. The evidence presented during the habeas trial is scant and completely devoid of support for the contention that counsel rendered deficient performance. The second claim, therefore, is denied because it is wholly unsubstantiated.
The third claim in the amended petition is that the nolle of the initial case is legally defective because the petitioner and his attorney were not present when the prosecutor entered the nolle into the record. It must be reiterated that this claim, similar to the petitioner’s first claim, neither challenges the nolo contendere plea nor the petitioner’s convictions. The third claim, therefore, fails to state a claim for which relief can be granted. Furthermore, as Judge D’Addabbo articulated in his memorandum of decision on the motion to correct a sentence imposed in an illegal manner, the nolle "had absolutely no relevance to the sentence or sentencing proceeding in this matter." Respondent’s Exhibit B, p. 8. Consequently, the third claim must be dismissed pursuant to Practice Book § 23-29(2).
The petitioner’s fourth and final claim is that the prosecutor engaged in improprieties and/or abused his discretion. As with the preceding claims, the petitioner’s focus in the fourth claim is the prosecutor’s act of entering a nolle in the initial case and the petitioner’s insistence that the nolle was illegal. This claim is procedurally defaulted unless the petitioner can show cause and prejudice. See, e.g., Saunders v. Commissioner of Correction, 137 Conn.App. 493, 498-500, 48 A.3d 728, cert. denied, 307 Conn. 920, 54 A.3d 182 (2012) (affirming habeas court’s conclusion that claimed prosecutorial impropriety was procedurally defaulted absent a showing of cause and prejudice). The petitioner’s evidence fails to establish any cause and prejudice for the failure to raise this claim with the trial court or on direct appeal. This claim also does not relate to the petitioner’s nolo contendere plea and his actual convictions. Thus, the fourth claim must be dismissed pursuant to Practice Book 23-29(2).
CONCLUSION
The petitioner has not met his burden of proof as to his claimed ineffective assistance of counsel. The petitioner’s three other claims fail to state a claim for which habeas corpus relief can be granted. The second claim in the amended petition is denied; claims one, three, and four are dismissed pursuant to Practice Book § 23-29(2). Judgment shall enter accordingly.