************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports, the latest
version is to be considered authoritative.
The syllabus and procedural history accompanying
an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or
Connecticut Appellate Reports are copyrighted by the
Secretary of the State, State of Connecticut, and may
not be reproduced or distributed without the express
written permission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
************************************************
Page 0 CONNECTICUT LAW JOURNAL 0, 0
2 ,0 0 Conn. App. 1
Pagan v. Smith
RICARDO PAGAN v. HAL SMITH ET AL.
(AC 47290)
Clark, Seeley and Bishop, Js.
Syllabus
The petitioner, who previously had been found not guilty by reason of mental
disease or defect of various charges in connection with the sexual assault
of a minor and committed to the jurisdiction of the Psychiatric Security
Review Board, appealed, on the granting of certification, from the habeas
court’s judgment denying in part his second habeas petition. He claimed,
inter alia, that the court erred in concluding that his counsel from a prior
habeas action, M, did not provide ineffective assistance because she failed
to raise certain claims concerning the alleged failure of his trial counsel,
H, to advise him of the consequences of pursuing a defense of not guilty
by reason of mental disease or defect. Held:
This court, as a reviewing court, could not conclude that the petitioner had
met his burden to establish that M had rendered ineffective assistance, as
the subordinate facts underlying the petitioner’s claim were in dispute and
had not been resolved by the habeas court.
The habeas court incorrectly determined that the successive petition doctrine barred the petitioner’s claim of ineffective assistance of prior habeas
counsel, as the petitioner’s claim that M had provided ineffective assistance
by failing to raise the claims identified in count one of the habeas petition,
which related to the alleged ineffective assistance provided by H in connection with the underlying criminal proceedings, was premised on a different
legal ground than the claims the petitioner raised in the prior habeas action.
This court could not affirm the habeas court’s judgment on the basis that
its failure to address the petitioner’s claim was harmless, as this court
could not assume, from the habeas court’s general conclusions, that it had
concluded that the petitioner failed to meet his burden of demonstrating
that M’s assistance was ineffective, and the habeas court’s factual findings
did not implicitly resolve the petitioner’s claim.
Because the judge who heard the habeas action was no longer a judge of
the Superior Court, a remand for an articulation was not possible and,
consequently, this court remanded the case for a new trial only with respect
to the petitioner’s claim that M provided ineffective assistance by failing to
pursue the claim that H was ineffective for the reasons set forth in count
one of the petition.
Argued June 3—officially released November 4, 2025
0, 0 CONNECTICUT LAW JOURNAL Page 1
0 Conn. App. 1 ,0 3
Pagan v. Smith
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Middlesex and tried to the court, Oliver, J.; judgment
dismissing in part and denying in part the petition, from
which the petitioner, on the granting of certification,
appealed to this court. Reversed in part; new trial.
Michael W. Brown, assigned counsel, for the appellant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Michael Gailor, state’s
attorney, and Jo Anne Sulik, senior assistant state’s
attorney, for the appellee (respondent Commissioner
of Mental Health and Addiction Services).
Opinion
CLARK, J. In the criminal matter underlying this
habeas corpus action, the petitioner, Ricardo Pagan,
was found not guilty by reason of mental disease or
defect after an uncontested trial at which the state
agreed not to oppose the petitioner’s claim that he
lacked substantial capacity to control his conduct
within the requirements of the law. See General Statutes
§ 53a-13 (a).1 In his amended petition for a writ of
habeas corpus (amended petition), the petitioner
alleged that his counsel from a prior habeas action (first
habeas action), Justine Miller, rendered ineffective
assistance by, inter alia, failing to raise certain claims
1
General Statutes § 53a-13 (a) provides: ‘‘In any prosecution for an offense,
it shall be an affirmative defense that the defendant, at the time the defendant
committed the proscribed act or acts, lacked substantial capacity, as a result
of mental disease or defect, either to appreciate the wrongfulness of his
conduct or to control his conduct within the requirements of the law.’’
We note that, although § 53a-13 has been amended since the time of the
petitioner’s criminal trial; see, e.g., Public Acts 2019, No. 19-27, § 1; those
amendments are not pertinent to the present case. In the interest of simplicity, we refer to the current revision of the statute.
Page 2 CONNECTICUT LAW JOURNAL 0, 0
4 ,0 0 Conn. App. 1
Pagan v. Smith
concerning the alleged failure of his criminal trial counsel, Mary Haselkamp, to advise him of the consequences
of pursuing a defense of not guilty by reason of mental
disease or defect. Following the granting of his petition
for certification to appeal, the petitioner appeals from
the judgment of the second habeas court denying in
part his amended petition. On appeal, the petitioner
claims that the court erred by (1) concluding that Miller
did not render ineffective assistance, and (2) declining
to address certain aspects of his claim that Miller provided ineffective assistance.2 We reverse in part the
judgment of the habeas court.
The following facts and procedural history are relevant to this appeal. On January 31, 2000, a witness
observed the petitioner engaging in sexual activity with
a two year old child in the petitioner’s home in New
Haven. On February 1, 2000, the petitioner surrendered
to the police and provided a statement in which he
admitted touching the victim’s vagina during the incident in question and engaging in similar conduct with
the same victim on two previous occasions. The petitioner was charged in a ten count information with
sexual assault and related offenses.
The petitioner also claims that the habeas court erred by failing to
2
consider certain expert testimony that he presented before it. As we explain
in footnote 15 of this opinion, because we conclude that the petitioner is
entitled to a new trial on the claim for which he contends the expert testimony was relevant, we need not address his contention that the court erred
in failing to consider that testimony.
Additionally, in the statement of issues in his principal appellate brief,
the petitioner identifies as an additional issue, ‘‘[w]hether the petitioner’s
trial counsel was ineffective?’’ In his reply brief, however, the petitioner
concedes that he is not raising Haselkamp’s ineffectiveness as a separate
claim of error but, rather, addresses her alleged ineffectiveness only in
support of his claim that the habeas court erred in concluding that Miller
did not provide ineffective assistance. In accordance with the petitioner’s
concession, although we discuss the petitioner’s allegation that Haselkamp
was ineffective in connection with our analysis of the petitioner’s claim that
Miller provided ineffective assistance, we need not address Haselkamp’s
alleged ineffectiveness as a separate claim.
0, 0 CONNECTICUT LAW JOURNAL Page 3
0 Conn. App. 1 ,0 5
Pagan v. Smith
In the underlying criminal proceedings, the petitioner
was represented by Haselkamp, who was then an assistant public defender in New Haven. Early during her
representation of the petitioner, Haselkamp asked Katie
Farrell, a social worker with the New Haven public
defender’s office, to evaluate the petitioner and gather
records about the petitioner’s background. Haselkamp
also retained Julia Ramos Grenier, a psychologist, to
conduct a psychological evaluation of the petitioner,
and Maria Tupper, a licensed clinical social worker, to
conduct a sex offender psychosocial evaluation. Grenier concluded that the petitioner suffered from various
mental health and behavioral disorders, including pedophilia, post-traumatic stress disorder, and borderline
personality disorder, and that he ‘‘was unable to control
his behavior at the time of the [underlying] offense, and
thus could not conform his behavior to the law, due
to a mental disorder.’’ Tupper recommended that the
petitioner be placed at Whiting Forensic Hospital (Whiting) for long-term sex offender treatment, mental health
treatment, and substance abuse treatment. On the basis
of those evaluations, Haselkamp considered pursuing
a defense of not guilty by reason of mental disease or
defect. At some point, the state made a plea offer to
the petitioner that would have required the petitioner
to serve twenty-five years of incarceration, execution
suspended after twenty years, followed by lifetime probation. The petitioner rejected that offer. Following
discussions between Haselkamp and the prosecutor,
the state agreed not to oppose the petitioner’s affirmative defense of not guilty by reason of mental disease
or defect, and the petitioner agreed not to oppose the
evidence presented by the state in its case-in-chief.
On February 6, 2001, the petitioner waived his right
to a trial by jury, and, following an uncontested trial,
the court, Fasano, J., found that the state had proven
all elements of the charges beyond a reasonable doubt.
The court further found that the petitioner had proven
Page 4 CONNECTICUT LAW JOURNAL 0, 0
6 ,0 0 Conn. App. 1
Pagan v. Smith
by a preponderance of the evidence that, ‘‘as a result
of mental disease or defect on the dates and times in
question, [the petitioner] lack[ed] a substantial capacity
to control his conduct within the requirements of the
law . . . .’’ See General Statutes § 53a-13 (a). On May
18, 2001, following the submission of a report prepared
by the respondent Commissioner of Mental Health and
Addiction Services,3 the court ordered the petitioner
committed to the custody of the Psychiatric Security
Review Board (board) for a period not to exceed forty
years. See General Statutes § 17a-582.4 The petitioner
3
The petitioner commenced this action against both Hal Smith, in his
capacity as the chief executive officer of Connecticut Valley Hospital, and
the Commissioner of Mental Health and Addiction Services. In this opinion
we refer to the Commissioner of Mental Health and Addiction Services as
the respondent and to Smith by name.
4
General Statutes § 17a-582 provides in relevant part: ‘‘(a) When any
person charged with an offense is found not guilty by reason of mental
disease or defect pursuant to section 53a-13, the court shall order such
acquittee committed to the custody of the Commissioner of Mental Health
and Addiction Services who shall cause such acquittee to be confined,
pending an order of the court pursuant to subsection (e) of this section, in
any of the state hospitals for psychiatric disabilities or to the custody of
the Commissioner of Developmental Services, for an examination to determine his mental condition.
‘‘(b) Not later than sixty days after the order of commitment pursuant to
subsection (a) of this section, the superintendent of such hospital or the
Commissioner of Developmental Services shall cause the acquittee to be
examined and file a report of the examination with the court, and shall send
a copy thereof to the state’s attorney and counsel for the acquittee, setting
forth the superintendent’s or said commissioner’s findings and conclusions
as to whether the acquittee is a person who should be discharged. . . .
‘‘(c) Not later than ten days after receipt of such superintendent’s or said
commissioner’s report, either the state’s attorney or counsel for the acquittee
may file notice of intent to perform a separate examination of the acquittee.
An examination conducted on behalf of the acquittee may be performed by
a psychiatrist or psychologist chosen by the acquittee and shall be performed
at the acquittee’s expense unless the acquittee is indigent. If the acquittee
is indigent, the court shall provide the acquittee with the services of a
psychiatrist or psychologist to perform the examination at the expense of
the state. The superintendent or said commissioner who conducted the
initial examination shall, not later than five days after a request of any party
conducting a separate examination pursuant to this subsection, release to
such party all records and reports compiled in the initial examination of
the acquittee. Any separate examination report shall be filed with the court
not later than thirty days after the filing with the court of the initial examination report by the superintendent or said commissioner.
0, 0 CONNECTICUT LAW JOURNAL Page 5
0 Conn. App. 1 ,0 7
Pagan v. Smith
was placed at Whiting, a maximum security facility,
where he remained for nineteen years, after which he
was transferred to Dutcher Hall (Dutcher), a less
restrictive facility.
The petitioner filed his first habeas petition on April
15, 2009. In the operative petition in that proceeding
(first habeas petition), the petitioner, then represented
by Miller, alleged that Haselkamp had provided ineffective assistance by, inter alia, failing to ‘‘explain all of
the consequences of entering . . . a plea [of not guilty
by reason of mental disease or defect],’’ failing to
‘‘inform the petitioner that he would be subject to periodic review by the [board],’’5 and ‘‘fail[ing] to spend an
adequate amount of time meeting with the petitioner
to ensure that the petitioner fully understood all aspects
of the state’s case and the petitioner’s defense . . .
‘‘(d) The court shall commence a hearing not later than fifteen days after
its receipt of any separate examination report or if no notice of intent to
perform a separate examination has been filed under subsection (c) of
this section, not later than twenty-five days after the filing of such initial
examination report.
‘‘(e) At the hearing, the court shall make a finding as to the mental
condition of the acquittee and, considering that its primary concerns are
the protection of society and the safety and well-being of the acquittee,
make one of the following orders:
‘‘(1) If the court finds that the acquittee is a person who should be confined
or conditionally released, the court shall order the acquittee committed to
the jurisdiction of the board and either confined in a hospital for psychiatric
disabilities or placed with the Commissioner of Developmental Services,
for custody, care and treatment pending a hearing before the board pursuant
to section 17a-583; provided (A) the court shall fix a maximum term of
commitment, not to exceed the maximum sentence that could have been
imposed if the acquittee had been convicted of the offense, and (B) if there
is reason to believe that the acquittee is a person who should be conditionally
released, the court shall include in the order a recommendation to the
board that the acquittee be considered for conditional release pursuant to
subdivision (2) of section 17a-584 . . . .’’
Although § 17a-582 has been amended since the petitioner was committed
to the custody of the board; see, e.g., Public Acts 2006, No. 06-91, § 2; those
amendments have no bearing on the merits of this appeal. In the interest
of simplicity, we refer to the current revision of the statute.
5
General Statutes § 17a-585 provides in relevant part: ‘‘The board shall
conduct a hearing and review the status of the acquittee not less than once
every two years. . . .’’
Page 6 CONNECTICUT LAW JOURNAL 0, 0
8 ,0 0 Conn. App. 1
Pagan v. Smith
[and] to ensure that the petitioner understood his
options regarding entering into a plea agreement or
proceeding to trial on either a straight plea of not guilty
or a plea of not guilty by reason of mental disease or
defect.’’6 A trial on the first habeas petition was held
on December 4, 2013, before the court, Gold, J., at
which the petitioner and Haselkamp testified.
On June 6, 2014, the court issued a memorandum of
decision denying the first habeas petition. See Pagan
v. Kirk, Superior Court, judicial district of Middlesex,
Docket No. CV-XX-XXXXXXX (June 6, 2014), aff’d sub nom.
Pagan v. Commissioner of Mental Health & Addiction
Services, 160 Conn. App. 901,
122 A.3d 776 (2015), cert.
denied, 319 Conn. 959,
125 A.3d 1013 (2015). The court
rejected the petitioner’s claim that Haselkamp did not
adequately advise the petitioner of his options and of
the consequences of pursuing a defense of not guilty
by reason of mental disease or defect. Id. The court
found that the petitioner knew that he had the right
to go to trial or to accept the state’s plea offer, that
‘‘Haselkamp repeatedly explained a great deal about
the [not guilty by reason of mental disease or defect]
plea process and its consequences, including the possibility of a commitment term of zero to forty years’’ and
that he ‘‘would have to appear periodically before the
[board] . . . .’’ (Internal quotation marks omitted.) Id.
After the court denied the petitioner’s petition for certification to appeal, the petitioner appealed that denial
to this court, which affirmed the judgment in a per
curiam opinion. Pagan v. Commissioner of Mental
Health & Addiction Services, 160 Conn. App. 901,
122
A.3d 776, cert. denied,
319 Conn. 959,
125 A.3d 1013
(2015).
6
The petitioner also alleged that his right to due process was violated
because his plea of not guilty by reason of mental disease or defect was
not knowing, intelligent, and voluntary.
0, 0 CONNECTICUT LAW JOURNAL Page 7
0 Conn. App. 1 ,0 9
Pagan v. Smith
The petitioner commenced the present action by filing, in a self-represented capacity, a petition for a writ
of habeas corpus on May 21, 2019.7 On July 20, 2021,
after counsel was appointed for the petitioner, the petitioner’s counsel filed the operative amended petition,
which contains two counts. In count one, the petitioner
alleged that Haselkamp provided ineffective assistance
in connection with her pretrial investigation and advice
to the petitioner regarding whether to pursue a defense
of not guilty by reason of mental disease or defect.
Although count one of the amended petition contains
twenty-one separate paragraphs alleging various ways
in which Haselkamp was ineffective, the crux of the
petitioner’s claim was that Haselkamp (1) failed to
advise him that, due to his diagnosis of pedophilia and
his underlying crimes involving child sexual abuse, it
was unlikely that he would be released from the custody
of the board in a shorter time than he would serve in
prison if he pleaded guilty or was convicted after trial,
(2) failed to investigate and advise the petitioner about
the likelihood that he would be able to comply with
the treatment necessary for him to be released to the
community, and (3) failed to investigate and advise the
petitioner about possible defenses if he went to trial
or potential mitigation evidence that could be presented
at sentencing if he chose not to pursue a mental disease
or defect defense. In count two, the petitioner alleged
that Miller was ineffective for (1) failing to pursue the
allegations of ineffective assistance identified in count
one, (2) failing to consult with mental health and legal
experts regarding ‘‘the significance of the petitioner’s
mental health profile to the adequacy of [Haselkamp’s]
performance,’’ and (3) failing to adequately pursue the
claims that she raised in the first habeas action.
7
Before filing the present action, on March 10, 2016, the petitioner filed
a petition for a writ of habeas corpus in the United States District Court
for the District of Connecticut. On March 21, 2019, the court, Chatigny, J.,
dismissed that petition as untimely.
Page 8 CONNECTICUT LAW JOURNAL 0, 0
10 ,0 0 Conn. App. 1
Pagan v. Smith
On November 2, 2021, the respondent and Smith filed
a return that raised the successive petition doctrine as
an affirmative defense to count one, asserting that the
petitioner’s claim that Haselkamp was ineffective
should be dismissed pursuant to Practice Book § 23-29
(3)8 because it was premised on the same legal ground
as his first habeas action and did not allege new facts
or identify new evidence that was not reasonably available at the time of that action.9 The respondent and
Smith did not raise any affirmative defense with respect
to count two.
On March 9, June 2 and October 11, 2022, the habeas
court, Oliver, J., held a trial on the amended petition.
The petitioner testified on his own behalf and presented
the testimony of multiple witnesses, including the following: Haselkamp; Farrell; Miller; Rafael Gallegos, a
clinical and forensic psychologist; Monte Radler, a public defender who was in charge of the psychiatric
defense unit of the public defender’s office at the time
of the underlying criminal trial; and Michael Perlin, a
former law professor at New York Law School who
specializes in issues related to criminal defendants with
mental disabilities. The petitioner also introduced
numerous exhibits. The respondent presented no witnesses and introduced no exhibits. Following the trial,
8
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion or upon motion of the respondent,
dismiss the petition, or any count thereof, if it determines that . . . (3) the
petition presents the same ground as a prior petition previously denied and
fails to state new facts or to proffer new evidence not reasonably available
at the time of the prior petition . . . .’’
9
In his reply to the return, the petitioner claimed that his claims set forth
in count one of the amended petition were not barred by the successive
petition doctrine, asserting that (1) he did not receive a full and fair hearing
in his first habeas action due to the ineffective assistance of Miller, (2) the
specific allegations of ineffective assistance in count one were not raised
in the first habeas action, and (3) he sought different relief in this action
in that he requested to be resentenced in accordance with the terms of the
state’s pretrial plea offer. Because the petitioner does not challenge on
appeal the habeas court’s determination that count one was barred by the
successive petition doctrine, we need not address the allegations in the
petitioner’s reply to the return.
0, 0 CONNECTICUT LAW JOURNAL Page 9
0 Conn. App. 1 ,0 11
Pagan v. Smith
both parties filed posttrial briefs setting forth their positions on the petitioner’s claims.
On August 24, 2023, the habeas court issued a memorandum of decision in which it dismissed count one and
denied count two of the amended petition. In dismissing
count one, the court explained that ‘‘the petitioner
asserts ineffective assistance of underlying trial counsel, Haselkamp, as stated in the amended petition.
These claims are not supported by any allegations or
facts not reasonably available to the petitioner at the
time of the first habeas matter. Additionally, upon a
review of the entire record, including the first habeas
court’s ruling and the testimony and exhibits adduced
at the instant trial . . . there is no basis upon which
this court can reasonably find that the petitioner did
not receive a full and fair hearing in his first habeas
trial. [Count] one in the [amended] petition is the same
legal ground as [count] one in the first habeas . . .
petition seeking, ultimately, the same relief.’’ The court
therefore dismissed count one under Practice Book
§ 23-29 (3). See footnote 8 of this opinion.
Turning to count two of the amended petition, the
habeas court first concluded that it did not need to
address the aspect of that count alleging that Miller
was ineffective for failing to pursue the allegations of
ineffective assistance identified in count one, determining that ‘‘[i]t shall suffice that the court dismissed
[count] one as successive and will not, therefore,
address those same claims as incorporated in [count]
two.’’ The court then concluded that, ‘‘[a]s to the
remaining assertions in [count] two . . . the petitioner
has failed to carry his burden of proof.’’ The court therefore denied count two of the amended petition. The
petitioner subsequently filed a petition for certification
to appeal, which the court granted on September 15,
2023. This appeal followed. Additional facts and procedural history will be set forth as necessary.
Page 10 CONNECTICUT LAW JOURNAL 0, 0
12 ,0 0 Conn. App. 1
Pagan v. Smith
I
We first address the petitioner’s claim that the habeas
court erred by failing to conclude that Miller provided
ineffective assistance.10 We disagree.
The following legal principles and standard of review
are relevant to the petitioner’s claim. ‘‘To succeed on
a claim of ineffective assistance of counsel, a habeas
petitioner must satisfy the two-pronged test articulated
in Strickland v. Washington, [466 U.S. 668, 687,
104 S.
Ct. 2052,
80 L. Ed. 2d 674 (1984)]. Strickland requires
that a petitioner satisfy both a performance prong and
a prejudice prong. To satisfy the performance prong, a
claimant must demonstrate that counsel made errors so
serious that counsel was not functioning as the counsel
guaranteed . . . by the [s]ixth [a]mendment. . . . To
satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. . . . Because
both prongs . . . must be established for a habeas petitioner to prevail, a court may [deny] a petitioner’s claim
if he fails to meet either prong.’’ (Internal quotation
marks omitted.) Dearing v. Commissioner of Correction, 230 Conn. App. 145, 154–55,
329 A.3d 988, cert.
denied, 351 Conn. 910,
331 A.3d 158 (2025).
The petitioner’s claim implicates Haselkamp’s advice
regarding the decision to plead not guilty by reason
of mental disease or defect. ‘‘For claims of ineffective
assistance of counsel arising out of the plea process, the
United States Supreme Court has modified the second
10
Although we conclude in part II of this opinion that the petitioner is
entitled to a new trial on the aspect of his claim in count two of the amended
petition, alleging that Miller was ineffective for failing to raise the claims
identified in count one, we first address the petitioner’s claim that the habeas
court erred by failing to conclude that Miller rendered ineffective assistance
because, if the petitioner were to prevail on that claim, it would obviate
any need for a new habeas trial, thereby rendering his second claim moot.
0, 0 CONNECTICUT LAW JOURNAL Page 11
0 Conn. App. 1 ,0 13
Pagan v. Smith
prong of the Strickland test to require that the petitioner
produce evidence that there is a reasonable probability
that, but for counsel’s errors, [the petitioner] would not
have pleaded guilty and would have insisted on going
to trial.’’ (Internal quotation marks omitted.) Dyous v.
Commissioner of Mental Health & Addiction Services,
324 Conn. 163, 186,
151 A.3d 1247 (2016).
‘‘Our Supreme Court, in Lozada v. Warden, [223
Conn. 834, 843,
613 A.2d 818 (1992)], established that
habeas corpus is an appropriate remedy for the ineffective assistance of appointed habeas counsel, authorizing . . . a second petition for a writ of habeas corpus
. . . challenging the performance of counsel in litigating an initial petition for a writ of habeas corpus . . .
[that] had claimed ineffective assistance of counsel at
the petitioner’s underlying criminal trial or on direct
appeal. . . . Nevertheless, the court in Lozada also
emphasized that a petitioner asserting a habeas on a
habeas faces the herculean task . . . of proving in
accordance with [Strickland] both (1) that his
appointed habeas counsel was ineffective, and (2) that
his trial [or appellate] counsel was ineffective. . . .
‘‘Simply put, a petitioner cannot succeed . . . on a
claim that his habeas counsel was ineffective by failing
to raise a claim against trial counsel or prior habeas
counsel in a prior habeas action unless the petitioner
ultimately will be able to demonstrate that the claim
against trial or prior habeas counsel would have had a
reasonable probability of success if raised. . . .
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed [on appeal] unless they are clearly erroneous. . . . Thus, the [habeas] court’s factual findings
are entitled to great weight. . . . [A] finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
Page 12 CONNECTICUT LAW JOURNAL 0, 0
14 ,0 0 Conn. App. 1
Pagan v. Smith
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that
a mistake has been committed. . . . The application
of the habeas court’s factual findings to the pertinent
legal standard, however, presents a mixed question of
law and fact, which is subject to plenary review.’’ (Internal quotation marks omitted.) Dearing v. Commissioner of Correction, supra, 230 Conn. App. 156.
Although the petitioner argues, in the claim we
address in part II of this opinion, that the habeas court
erred by failing to address his claim that Miller was
ineffective for failing to raise the claims identified in
count one of the amended petition, he also contends
that, notwithstanding that the court did not address the
issue in the first instance, this court should conclude
on appeal that he met his burden to establish that Miller
provided ineffective assistance. In making that argument, however, the petitioner does not identify any
factual findings by the habeas court that would support
the conclusion that the performance of either Miller or
Haselkamp was deficient or identify any basis on which
this court could conclude that the petitioner carried his
burden of proof in the absence of such findings. Instead,
the petitioner argues that ‘‘[t]he sixth amendment claim
presented by the petitioner in the habeas proceeding
below was supported by the evidence’’ and then simply
recounts the evidence he presented in support of his
claim.
As a general matter, ‘‘[i]t is not our role as an appellate
court to make factual findings to determine whether
the plaintiff has carried this burden.’’ New England
Savings Bank v. Bedford Realty Corp., 246 Conn. 594,
609,
717 A.2d 713 (1998). Our role on appeal is not to
retry the case, but to review the findings and conclusions of the habeas court for specific claims of legal
error. See, e.g., Corbett v. Commissioner of Correction,
133 Conn. App. 310, 317,
34 A.3d 1046 (2012) (‘‘[t]his
0, 0 CONNECTICUT LAW JOURNAL Page 13
0 Conn. App. 1 ,0 15
Pagan v. Smith
court does not retry the case or evaluate the credibility
of witnesses’’ (internal quotation marks omitted));
Gosselin v. Gosselin, 110 Conn. App. 142, 145,
955 A.2d
60 (2008) (‘‘This court, of course, may not retry a case.
. . . The factfinding function is vested in the trial court
with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its
observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the
cold, printed record which is available to us. Appellate
review of a factual finding, therefore, is limited both
as a practical matter and as a matter of the fundamental
difference between the role of the trial court and an
appellate court.’’ (Internal quotation marks omitted.)).
Although there are limited circumstances in which ‘‘the
undisputed facts or uncontroverted evidence and testimony in the record make a factual conclusion inevitable
so that a remand to the trial court for a determination
would be unnecessary’’; (internal quotation marks omitted) Karantonis v. East Hartford, 71 Conn. App. 859,
863,
804 A.2d 861, cert. denied,
261 Conn. 944,
808 A.2d
1137 (2002); in the present case, the subordinate facts
that would be necessary for the petitioner to prevail
on his claim are disputed. As explained in part II of
this opinion, the habeas court made no factual findings
regarding, inter alia, (1) whether, as the petitioner
claims, a person with his diagnosis and underlying
crimes is likely to face a lengthier period of confinement
if found not guilty by reason of mental disease or defect
than if convicted after trial, (2) whether Haselkamp
should have been aware, based on the petitioner’s background, that he would have a difficult time successfully
engaging in treatment, and (3) whether reasonably competent counsel at the time had a duty to advise a client
concerning the prospects for successfully engaging in
treatment. The court also made no findings regarding
whether Miller was or should have been aware of the
Page 14 CONNECTICUT LAW JOURNAL 0, 0
16 ,0 0 Conn. App. 1
Pagan v. Smith
underlying facts necessary to support the claim that
Haselkamp was ineffective for the reasons that the petitioner claims, or whether, even if she had been aware
of those facts, it would have been a reasonable strategic
decision not to pursue those claims. Because the subordinate facts underlying the petitioner’s claims are in
dispute and were not resolved by the habeas court, we
reject the petitioner’s claim that we may conclude on
appeal that Miller rendered ineffective assistance.
II
We next address the petitioner’s claim that the habeas
court erred by failing to address the aspect of his claim
in count two of the amended petition alleging that Miller
provided ineffective assistance by failing to raise the
claim that Haselkamp was ineffective for the reasons
identified in count one. He argues that, pursuant to our
Supreme Court’s decision in Lozada v. Warden, supra,223 Conn. 834, his claim that Miller was ineffective
for failing to pursue the claims identified in count one
constitutes a different legal ground that could not have
been raised in his first habeas action, that the court
erred by declining to address that claim, and that he is
entitled to a new trial on that claim. The respondent
concedes that the dismissal of count one did not justify
the court’s decision not to address the aspect of count
two alleging that Miller was ineffective for failing to
pursue the claims identified in count one but argues
that the court’s failure expressly to address that claim
was harmless because its findings and conclusions necessarily resolved the substance of the claim. We agree
with the petitioner.
The following additional facts and procedural history
are relevant to the petitioner’s claim. In support of his
claim that Haselkamp was ineffective and that Miller
0, 0 CONNECTICUT LAW JOURNAL Page 15
0 Conn. App. 1 ,0 17
Pagan v. Smith
was ineffective for failing to pursue the allegations identified in count one of the amended petition, the petitioner presented the following evidence. Radler testified that he had established the psychiatric defense unit
of the public defender’s office in 1998 and served as
its supervisor at the time of the criminal proceedings
in the petitioner’s case. He testified that Haselkamp had
consulted with him when she represented the petitioner. He further testified that he ‘‘discussed with her
the inherent difficulties that an acquittee would have
being under . . . board jurisdiction . . . if the underlying crime [involved] pedophilia. Because, at that point
in time, we were very well aware that it is very difficult
to get out of a criminal commitment system with . . .
[a] diagnosis [of pedophilia].’’ He testified that, although
he did not recall the details of his discussion, he did
explain to Haselkamp that ‘‘the length of a commitment
could be very, very long if . . . [a defense of not guilty
by reason of mental disease or defect] based on [pedophilia] was successful.’’ On cross-examination, Radler
acknowledged that he had been representing the petitioner before the board since 2014 and that he drafted
the habeas petition that the petitioner had filed in a
self-represented capacity to initiate the present action.
Gallegos testified that the reports prepared by Grenier and Tupper at the time of the criminal proceedings
indicated that the petitioner had a history of emotional
and behavioral problems and was intellectually disabled, which means that he was ‘‘functioning in the
lowest second percentile of . . . the population.’’ He
also testified, on the basis of his own evaluation of the
petitioner and his review of the reports prepared at the
time of the criminal proceedings, that the petitioner
would have had ‘‘significant difficulties appreciating
. . . the implications associated with entering [a not
guilty by reason of mental disease or defect] plea,’’ but
that it would have been possible for the petitioner to
Page 16 CONNECTICUT LAW JOURNAL 0, 0
18 ,0 0 Conn. App. 1
Pagan v. Smith
understand the information if it was properly presented
to him. Gallegos further testified that the reports of
Tupper and Grenier had indicated that it was likely to
be ‘‘a very long time’’ for the petitioner to transfer from
Whiting to a less secure setting and that ‘‘his prognosis
was . . . quite poor.’’11 Finally, he testified that, with
the kind of risk assessment used by the board, commission of a sex offense is considered a ‘‘static factor,’’
meaning that it is ‘‘immutable and . . . can’t really
change.’’ He testified that, even if a person is determined
to be at a low risk of reoffending, an underlying sex
offense ‘‘might make it very difficult for [a person] to
move beyond the confines of the [board].’’
Perlin testified that a person found not guilty by reason of mental disease or defect spends, on average,
twice as long in a maximum security facility than a
person who is convicted of the same offenses and that
reasonably competent counsel at the time of the petitioner’s underlying trial would have advised the client of
that fact. He further testified that reasonably competent
counsel would have investigated and advised the client
about the type of treatment the client would receive if
found not guilty by reason of mental disease or defect
and the likely length of confinement given the charges
and diagnoses. He also testified that a person considering whether to pursue a defense of not guilty by reason
of mental disease or defect should be advised of what
that person would have to do to be transferred from a
maximum security facility to a less restrictive setting
and that reasonably competent counsel would not
advise a client that his length of commitment would
11
Tupper’s report, which she prepared at the request of Haselkamp, stated
that ‘‘it is very unlikely that [the petitioner] will be safe for many years to
come in even the most highly monitored of the community-based . . . sex
offender treatment programs’’ and that ‘‘[i]t is likely that if [the petitioner]
is able to benefit from any of the treatments recommended it will be a very
long and slow process. In any circumstance, [the petitioner’s] . . . prognosis is highly guarded.’’
0, 0 CONNECTICUT LAW JOURNAL Page 17
0 Conn. App. 1 ,0 19
Pagan v. Smith
depend on the client’s cooperation with treatment. Perlin testified that ‘‘[t]here’s no basis’’ to advise such a
client ‘‘that whether or not he gets to the least restrictive
alternative facility . . . would depend on him’’ and that
‘‘[i]t depends on a lot of other things besides [the client].’’ On cross-examination, Perlin acknowledged that
he was not admitted to practice law in Connecticut,
had never represented a client in state or federal court
in this state, and had never represented anyone housed
at Whiting. He further testified that he did not ‘‘know
very much about the Whiting facility’’ or ‘‘what Whiting
was like in the year 2000 . . . .’’
In her testimony, Haselkamp testified that, given the
amount of time that had passed, she could not recall
all of the details of her discussions with the petitioner.
She acknowledged, however, that she had consulted
with Radler about the possibility of pursuing a defense
of not guilty by reason of mental disease or defect. She
testified that Radler had told her that the petitioner’s
pedophilia diagnosis ‘‘would delay how quickly he may
get out into the community but [would] not necessarily
delay . . . how [quickly] he would get out into a less
restrictive setting.’’ A contemporaneous note from her
file regarding a telephone call with Radler reads, in
part, ‘‘Pedophile . . . dif. to come out of [the board].’’
She testified that she did not advise the petitioner that
his diagnoses and underlying criminal charges likely
would make it difficult for him to progress to a less
restrictive setting or to be released from the custody
of the board, but advised the petitioner that ‘‘how
quickly he moved forward into less restrictive settings
would depend on him and how well he did with treatment . . . .’’ Haselkamp also testified that she did not
advise the petitioner regarding whether he would have
difficulty with treatment because ‘‘[h]e had never been
in treatment before . . . I’m not a doctor, I’m not a
psychologist, I knew he had not been in treatment
Page 18 CONNECTICUT LAW JOURNAL 0, 0
20 ,0 0 Conn. App. 1
Pagan v. Smith
before, so . . . I can’t advise him . . . as to [whether]
he’s going to have problems with it . . . . I assumed
he would get the appropriate treatment at Whiting
because . . . that’s what they supposedly do is provide
people with treatment. . . . [T]hat would not have
been a discussion I would have had with him in terms
of . . . you’re going to be here longer because you
have all these diagnoses. . . . I would not have done
that.’’ She further testified that she ‘‘would have made
it very basic to him and very concrete that he will
progress if he engages in treatment.’’
With respect to her advice regarding the petitioner’s
options, Haselkamp testified that the petitioner had
expressed a desire for treatment and that she ‘‘advised
him that, if he wanted treatment, the route to go would
be [Whiting] . . . but . . . it was his choice and we
left that to him. And I know that he made the choice
of wanting to go to the hospital.’’ Regarding her advice
about possible defenses and the likely outcome after
trial, Haselkamp testified that, although she did not
recall her specific discussions with the petitioner, her
general practice was to discuss the strengths and weaknesses of the state’s case and the possible outcomes
and that she was ‘‘sure we went over the evidence in
the case.’’ When asked whether she had discussed with
the petitioner ‘‘what would happen at a trial or in a
sentencing proceeding,’’ Haselkamp testified that she
‘‘[did not] have any recollection of that, no. And . . .
because we weren’t heading toward trial I don’t know
how much we would have gone into detail about those
things.’’ When asked if ‘‘there [was] ever a discussion
of what a defense at trial would look like if he decided
to go to trial,’’ Haselkamp responded: ‘‘[W]hen we were
talking trial we were talking the [not guilty by reason
of mental disease or defect] route, we weren’t talking
a trial where we were not raising that defense. . . .
[T]here were probably some discussions on what could
0, 0 CONNECTICUT LAW JOURNAL Page 19
0 Conn. App. 1 ,0 21
Pagan v. Smith
happen, but . . . again, the exact discussion I don’t
have any recollection of.’’ When asked if it was ‘‘fair to
say there was no discussion of’’ a defense other than not
guilty by reason of mental disease or defect, Haselkamp
testified that, although she could not ‘‘say we never did
[have that discussion] from the beginning of the case,’’
she did not ‘‘have any recollection of that.’’12
Miller testified that she did not recall speaking with
Radler and did not recall seeing any notes from Haselkamp’s file concerning her discussion with Radler about
the impact of the petitioner’s pedophilia diagnosis on
his prognosis for success in the custody of the board.
She acknowledged that, if she had known that Haselkamp had information that the petitioner’s diagnosis
would make it difficult for him to progress out of Whiting and, ultimately, to be released to the community,
that would have been relevant to the petitioner’s claims.
She also testified, however, that she ‘‘might not have’’
raised a claim that Haselkamp was ineffective for failing
to advise the petitioner about that issue because ‘‘it
was hard to get [the petitioner] to understand certain
things’’ and he ‘‘may not have been able to actually
understand’’ the advice. Miller also testified that,
although she did not recall considering a claim that
Haselkamp was ineffective for failing to advise the petitioner that his diagnoses would make it difficult for
12
Farrell testified that she worked closely with Haselkamp on the petitioner’s case and generally corroborated Haselkamp’s testimony in many
respects. She testified that she discussed with the petitioner that pursuing
a mental disease or defect defense would provide an opportunity for him
to receive treatment that could help him be more successful in the community and reduce the likelihood of recidivism. Like Haselkamp, she testified
that they were not in a position to assess how the petitioner would fare in
treatment because he had never previously engaged in treatment. She further
testified that, in assessing the petitioner’s options, ‘‘the option of the hospital
seemed more hopeful for his future functioning,’’ but that their analysis did
not include a discussion of the potential length of the petitioner’s confinement. She ‘‘[did not] have concerns that [the petitioner would not] be able
to comprehend what was being asked of him or to participate in treatment’’
and did not recall any discussions about whether the petitioner’s behavioral
issues would be a roadblock for him to return to the community.
Page 20 CONNECTICUT LAW JOURNAL 0, 0
22 ,0 0 Conn. App. 1
Pagan v. Smith
him to comply with treatment and follow the rules at
Whiting, as a matter of strategy she would not have
raised such a claim because ‘‘[the petitioner] did not
believe that he was mentally [ill],’’ so she ‘‘[did not] think
[that claim] would have really gone anywhere . . . .’’
The petitioner testified that he repeatedly told Haselkamp that he wanted to go to trial but that she never
discussed trial strategy with him and did not advise
him about potential defense strategies. He testified that
he ‘‘was afraid [of] . . . being locked up in a mental
hospital . . . [where] you don’t get out of there’’ and
of being forcibly medicated. He further testified that
he told Haselkamp about these fears, but she told him
that ‘‘she believed that [he] would do better in [Whiting]
than . . . in prison.’’
The petitioner gave conflicting testimony concerning
Haselkamp’s advice about how long he could expect
to be in the custody of the board. Initially, he testified
that Haselkamp told him that, to get out of Whiting, he
had to ‘‘listen to the . . . people [that are] going to be
working with you,’’ and, ‘‘[i]n two years . . . you will
go to Dutcher, and, before you know it, you will be
out in the community.’’ Consistent with Haselkamp’s
testimony, the petitioner also testified that Haselkamp
did not tell him that his diagnosis and underlying crimes
would make it difficult for him to progress out of Whiting. He further testified that, if he had been so advised,
he would not have pursued the defense of not guilty
by reason of mental disease or defect and would have
insisted on going to trial. Subsequently, however, he
testified that Haselkamp did not tell him that how
quickly he progressed through the system would
depend on how well he cooperated with his treatment
and that ‘‘the only thing she told me clearly [was] that
I would go to Whiting for two years and, before I know
it, I’d be in Dutcher and I’d be out in the community.’’
0, 0 CONNECTICUT LAW JOURNAL Page 21
0 Conn. App. 1 ,0 23
Pagan v. Smith
As discussed previously in this opinion, the habeas
court dismissed count one of the amended petition on
the basis that it was successive to the claims raised in
the petitioner’s first habeas action and, thereafter,
stated that its conclusion obviated the need to address
the aspect of count two alleging that Miller was ineffective for failing to raise the claims alleged in count one.
The court then set forth its conclusion that the petitioner had failed to meet his burden of proof with
respect to the remaining claims in count two. After
setting forth the legal principles governing the petitioner’s ineffective assistance of habeas counsel claim, the
court proceeded to make findings and conclusions in
support of its ultimate conclusion that the petitioner
failed to meet his burden of proof.
First, the habeas court found that the petitioner was
not ‘‘a reliable or credible historian,’’ and that both
Haselkamp and Miller had testified credibly. Second,
in eleven numbered paragraphs, the court made general
conclusions concerning whether the petitioner had
proven certain allegations. Although the court previously had indicated that it would not address the
claim in count two of the amended petition, alleging
that Miller was ineffective for failing to raise the claims
identified in count one, some of the eleven conclusions
appear to relate to aspects of that claim. Specifically,
the court concluded that ‘‘[t]he petitioner has failed to
demonstrate that [Miller] was deficient for failing to
establish that the petitioner was not properly informed
by . . . Haselkamp about the criminal trial evidence,
the plea offer, the [mental disease or defect] defense
and its consequences, including the structure, transition
and progression through the criminal acquittee commitment process. The competent testimony and other evidence in the record demonstrates the opposite. Therefore, based on the lack of competent evidence related
thereto . . . Miller was not ineffective . . . .’’ The
Page 22 CONNECTICUT LAW JOURNAL 0, 0
24 ,0 0 Conn. App. 1
Pagan v. Smith
court also concluded: ‘‘The petitioner has failed to
establish, based on the loose, equivocal and unclear
evidence presented on the issue, that [Miller] was ineffective in failing to establish that . . . Haselkamp did
not provide the petitioner [with] accurate, sufficient and
commitment consequences surrounding his diagnoses,’’
‘‘[t]he competent evidence adduced demonstrated that
[Haselkamp] properly informed the petitioner of his
options during the criminal litigation,’’ and ‘‘[t]he petitioner was unable to establish a lack of ability to understand his legal situation, likely trial evidence, consequences of the [not guilty by reason of mental disease
or defect] defense and the commitment process, including his responsibilities in this regard, after thorough
and repeated efforts by underlying counsel . . . .’’
The following standard of review and legal principles
govern our review of the petitioner’s claim. The habeas
court’s conclusion that a petition is successive is a
matter of law subject to plenary review. See Zollo v.
Commissioner of Correction, 133 Conn. App. 266, 276,
35 A.3d 337, cert. granted,
304 Conn. 910,
39 A.3d 1120
(2012) (appeal dismissed May 1, 2013). ‘‘As our Supreme
Court has observed, the successive petition doctrine
involves the one situation in which a court is not legally
required to hear a habeas petition. . . . The doctrine
is codified in Practice Book § 23-29, which provides in
relevant part: The judicial authority may, at any time,
upon its own motion or upon motion of the respondent,
dismiss the petition, or any count thereof, if it determines that . . . (3) the petition presents the same
ground as a prior petition previously denied and fails
to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .’’
(Citation omitted; internal quotation marks omitted.)
Crawley v. Commissioner of Correction, 194 Conn.
App. 574, 579,
221 A.3d 849 (2019), cert. denied,
334
Conn. 916,
222 A.3d 104 (2020). When a petitioner who
0, 0 CONNECTICUT LAW JOURNAL Page 23
0 Conn. App. 1 ,0 25
Pagan v. Smith
previously raised and litigated a claim of ineffective
assistance of trial counsel in a prior habeas petition
brings a subsequent petition, ‘‘[a] claim of ineffective
assistance of counsel during trial proceedings constitutes the ‘same ground’ for purposes of [Practice Book]
§ 23-29 (3), despite changes in the precise underlying
specifications of deficient performance, unless such
new specifications are based on facts or evidence not
reasonably available when the ground was raised in the
earlier petition.’’ Lebron v. Commissioner of Correction, 178 Conn. App. 299, 318,
175 A.3d 46 (2017), cert.
denied, 328 Conn. 913,
179 A.3d 779 (2018).
The successive petition doctrine, however, does not
bar a claim of ineffective assistance of prior habeas
counsel, even if that claim rests on an allegation that
prior habeas counsel was ineffective for failing to challenge the effectiveness of trial counsel. As our Supreme
Court explained in Lozada v. Warden, supra,223 Conn.
834, when a petitioner raises such a claim, ‘‘the second
habeas petition is not predicated on the same issues
addressed in the first petition. Although the petitioner
must, by necessity, repeat his allegations of trial counsel’s inadequacy, there may never have been a proper
determination of that issue in the first habeas proceeding because of the allegedly incompetent habeas counsel. The claim of ineffective assistance of habeas counsel, when added to the claim of ineffective assistance
of trial counsel, results in a different issue.’’ Id., 844;
see also Harris v. Commissioner of Correction, 108
Conn. App. 201, 209,
947 A.2d 435 (‘‘[b]ecause [the petitioner] challenges the effectiveness of his prior habeas
counsel, which also challenges the validity of his underlying conviction, the ground he asserts is different from
the previous grounds asserted in his prior habeas petitions, the petition is not barred as successive’’), cert.
denied, 288 Conn. 911,
953 A.2d 652 (2008).
Page 24 CONNECTICUT LAW JOURNAL 0, 0
26 ,0 0 Conn. App. 1
Pagan v. Smith
In the present case, the petitioner’s claim that Miller
was ineffective for failing to pursue the claims identified
in count one of the amended petition was not barred
as successive because it was premised on a different
legal ground than the claims raised in the first habeas
action. Specifically, the petitioner’s claim that Miller
was ineffective for failing to pursue the allegations of
ineffectiveness identified in count one is predicated on
the ground that Miller, as habeas counsel, provided
ineffective assistance, whereas the petitioner’s first
habeas action was predicated on the ground that Haselkamp, as criminal trial counsel, was ineffective. Thus,
as in Lozada, the petitioner was entitled to pursue his
claim that his prior habeas counsel was ineffective; see
Lozada v. Warden, supra, 223 Conn. 844–45; and the
court was incorrect in its determination that it was not
required to address that claim.
The respondent nevertheless argues that we should
affirm the habeas court’s judgment on the basis that its
failure to address the petitioner’s claim was harmless.
Specifically, the respondent argues that, ‘‘notwithstanding the court’s initial suggestion that it may have chosen
not to address certain claims for an incorrect reason,
the petitioner fails to specify any particular issue that
he pursued below that the habeas court’s findings and
conclusions did not ultimately encompass.’’ The respondent further contends that ‘‘the court’s credibility determinations, factual findings and legal conclusions clearly
and specifically addressed, and rejected, the petitioner’s
claims that [Miller] was ineffective for not successfully
challenging [Haselkamp’s] allegedly inadequate advice
relative to deciding whether to pursue the [mental disease or defect] disposition.’’ For the following reasons,
we are not persuaded by the respondent’s arguments.
First, contrary to the respondent’s contention, the
memorandum of decision did not ‘‘clearly and specifically’’ address the petitioner’s claim that Miller was
0, 0 CONNECTICUT LAW JOURNAL Page 25
0 Conn. App. 1 ,0 27
Pagan v. Smith
ineffective for failing to pursue the claims in count one
of the amended petition. Although the habeas court
concluded that the petitioner did not establish that
Miller was ineffective for failing to establish either that
Haselkamp did not properly advise him about the consequences of pursuing a mental disease or defect defense,
‘‘including the structure, transition and progression
through the criminal acquittee commitment process,’’
or that Haselkamp did not properly inform the petitioner of his pretrial options, the memorandum of decision does not address the specific allegations of ineffectiveness identified in count one of the amended petition.
For example, the court did not specifically address
whether Haselkamp was ineffective for advising the
petitioner that whether he progressed from Whiting to
a less restrictive setting would depend on whether he
cooperated with his treatment, for failing to advise the
petitioner that his diagnoses and underlying crimes
likely would result in him remaining in the custody of
the board for longer than he would be incarcerated if
he were convicted after a trial, or for failing to advise
the petitioner of his likelihood of successfully engaging
in treatment. Given the court’s express statement that
it would not consider the petitioner’s claim that Miller
was ineffective for failing to raise the claims identified
in count one, we cannot assume from the court’s general
conclusions that it in fact concluded that the petitioner
failed to meet his burden with respect to that claim.
Moreover, we disagree with the respondent that the
habeas court’s factual findings implicitly resolved the
petitioner’s claim. To the contrary, the memorandum
of decision does not contain any factual findings from
which we can conclude that the court implicitly rejected
the petitioner’s claim. Practice Book § 6-1 (a) requires
the court, when rendering judgment in a civil matter,
to provide an oral or written decision that ‘‘shall encompass its conclusion as to each claim of law raised by
Page 26 CONNECTICUT LAW JOURNAL 0, 0
28 ,0 0 Conn. App. 1
Pagan v. Smith
the parties and the factual basis therefor.’’ ‘‘The ultimate
test as to the adequacy of [the] findings is whether
they are sufficiently comprehensive and pertinent to
the issues to provide a basis for the decision and
whether they are supported by evidence. . . . [I]t is
incumbent on the trial courts to provide a decision,
whether written or oral, that includes all of the necessary factual findings for the benefit of the parties, as
well as for proper appellate review.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
In re Halle T., 96 Conn. App. 815, 826,
902 A.2d 670,
cert. denied, 280 Conn. 924,
908 A.2d 1087 (2006). ‘‘Without such a rule, a trial court could inoculate important
rulings from appellate scrutiny simply by electing not
to set forth the factual basis for its rulings.’’ Zaniewski
v. Zaniewski, 190 Conn. App. 386, 395,
210 A.3d 620
(2019).
Here, the habeas court did not make any findings
of fact about what advice Haselkamp provided to the
petitioner, or about what advice reasonably competent
counsel was required to provide under the circumstances. The memorandum of decision does not contain
any findings concerning Radler’s alleged statements to
Haselkamp indicating that it would be difficult for a
person with the petitioner’s diagnosis and underlying
crimes to obtain his release to the community, or Perlin’s testimony that a person in the petitioner’s position
could expect to be housed in a maximum security facility longer than a person who was convicted of similar
crimes. Relatedly, the court did not make any specific
findings that would allow us to review the conclusion
that Miller was not ineffective for failing to raise the
claims identified in count one of the amended petition.
As discussed previously, Miller’s testimony was equivocal regarding whether she had access to Haselkamp’s
notes concerning her conversations with Radler. Miller
0, 0 CONNECTICUT LAW JOURNAL Page 27
0 Conn. App. 1 ,0 29
Pagan v. Smith
also testified that, even if she was aware of those conversations, as a matter of strategy she would not have
pursued the claim that Haselkamp should have advised
the petitioner that he likely would have difficulty cooperating with treatment and progressing out of Whiting.
Without any findings concerning the aforementioned
factual issues, we cannot conclude that the habeas
court implicitly determined that the petitioner failed to
meet his burden of proof with respect to his claim that
Miller was ineffective for failing to raise the claims
delineated in count one of the amended petition. Such
a conclusion could have been based on a number of
subsidiary factual determinations, including that the
petitioner failed to present sufficiently persuasive evidence that his diagnoses and underlying crimes in fact
would negatively affect the length of his confinement,
that the petitioner failed to establish with sufficient
clarity what advice he received from Haselkamp,13 that
13
Noting that Haselkamp did not specifically recall the details of her
conversations with Radler or her advice to the petitioner regarding the
impact of the petitioner’s diagnosis and underlying crimes on his length of
confinement, the respondent argues that ‘‘[t]he fact that an attorney did not
specifically recall doing something does not constitute evidence that she
did not, in fact, do it,’’ and, therefore, that the petitioner did not meet his
burden of proof because he ‘‘failed to present affirmative and credible
evidence that Haselkamp did not relay such information . . . .’’ We reject
this argument because it is not supported by the record.
When asked directly whether she had advised the petitioner that his
diagnosis and underlying crimes would impact his length of confinement,
Haselkamp testified that ‘‘all [she] could tell him was it would depend on
how well he did in treatment.’’ When asked whether she told the petitioner,
‘‘based on what [she] knew about him, [that she] believed he would have
a hard time with treatment,’’ Haselkamp testified that she ‘‘probably did not
say that to him because . . . it didn’t appear that he had ever been in formal
treatment, so I couldn’t assess that . . . . All I could say was [that it was]
dependent on him.’’ She further testified that she ‘‘never did [a mental disease
or defect case] before, so I . . . was assuming that he would be receiving
the appropriate treatment at Whiting and that, based on that treatment, he
would proceed. . . . And, again . . . I couldn’t make that determination.
I could just say, this is what I know about the hospital and . . . they should
be able to treat you.’’ Although it will be incumbent on the habeas court
on remand to make the appropriate factual findings concerning what advice
Haselkamp provided to the petitioner and whether that advice was consistent
with the duty of reasonably competent counsel at the time of the petitioner’s
criminal proceedings, we disagree with the respondent that the aforemen-
Page 28 CONNECTICUT LAW JOURNAL 0, 0
30 ,0 0 Conn. App. 1
Pagan v. Smith
reasonably competent counsel was not required to provide the kind of advice to which the petitioner claims
he was entitled, or that it would have been a reasonable
strategic decision for Miller not to pursue that claim.
Without resorting to speculation, we cannot conclude,
as the respondent contends, that the court’s factual
findings implicitly rejected the petitioner’s claim that
Miller was ineffective for failing to raise the claims of
ineffectiveness identified in count one of the amended
petition. Cf. Claude v. Claude, 143 Conn. App. 307, 311,
68 A.3d 1204 (2013) (‘‘Our role is not to guess at possibilities . . . but to review claims based on a complete
factual record developed by a trial court. . . . Without
the necessary factual and legal conclusions furnished
by the trial court . . . any decision made by us respecting [the appellant’s claims] would be entirely speculative.’’ (Internal quotation marks omitted.)).
We also are not persuaded by the respondent’s contention that the habeas court’s credibility findings necessarily established that the petitioner failed to prove
the prejudice prong of his claim. The court found generally that the petitioner was ‘‘far from a reliable or credible historian,’’ noting that the petitioner’s ‘‘first habeas
trial testimony was sharply at odds from his testimony
in the instant matter in many important respects,’’ that
‘‘[h]is memory of the underlying criminal trial is poor,’’
and that he was ‘‘under the influence of ‘strong, powerful drugs [that] stayed in [his] system’ since his 2000
arrest and continued to distort his ‘brain’ and memory
tioned testimony could not, as a matter of law, support a finding that Haselkamp did not advise the petitioner that his diagnosis and underlying crimes
could negatively impact his length of confinement. See, e.g., Lopez v. Commissioner of Correction, 230 Conn. App. 437, 446–47 and n.6,
330 A.3d 933
(2025) (trial counsel’s testimony that he did not have specific recollection
of attempting to contact witness but had reason to believe, on basis of
his general practice, that he would not have attempted to do so under
circumstances was sufficient to support habeas court’s finding that counsel
did not investigate that witness).
0, 0 CONNECTICUT LAW JOURNAL Page 29
0 Conn. App. 1 ,0 31
Pagan v. Smith
at the underlying criminal trial . . . .’’ Notably, however, the court did not identify any specific portion of
the petitioner’s testimony that it found not credible,
which portions of the petitioner’s testimony were at
odds with his testimony from his prior habeas trial, or
what the petitioner did not recall about the underlying
proceedings. More importantly, the court did not make
any specific findings as to whether the petitioner would
have elected not to pursue a mental disease or defect
defense if he had been advised that his diagnoses and
underlying crimes would negatively impact his length
of confinement, or if he had been advised of potential
defense strategies available if he proceeded to trial or
mitigation that could be presented at sentencing. As
discussed previously, the petitioner expressly testified
that, if Haselkamp had provided such advice, he would
not have elected to plead not guilty and to proceed to
trial. In light of the court’s express statement that it
would not address this aspect of the petitioner’s claim,
we cannot assume from the court’s general credibility
assessment that it necessarily found this portion of the
petitioner’s testimony not to be credible.14
For the foregoing reasons, we conclude that the
habeas court erred by failing to address the petitioner’s
claim that Miller provided ineffective assistance by failing to raise the claims identified in count one of the
amended petition. Ordinarily, our conclusion in this
14
The respondent also argues that the petitioner failed to establish prejudice as a matter of law because, at one point in his testimony, he denied
that Haselkamp advised him that ‘‘how quickly [he] moved through the
system would depend on how well [he] cooperated’’ with treatment. As
discussed previously, the petitioner also testified that Haselkamp had
advised him that, to get out of Whiting, he had to ‘‘listen to the . . . people
that’s going to be working with you’’ and, ‘‘[i]n two years . . . you will go
to Dutcher, and, before you know it, you will be out in the community.’’
He further testified that Haselkamp did not tell him that his diagnosis and
underlying crimes would make it difficult to get out of Whiting. Because
the habeas court did not make any factual findings to resolve this apparent
discrepancy in the petitioner’s testimony, we cannot conclude as a matter
of law that the petitioner failed to establish prejudice.
Page 30 CONNECTICUT LAW JOURNAL 0, 0
32 ,0 0 Conn. App. 1
Pagan v. Smith
regard may have warranted a remand for the court to
articulate whether it considered the petitioner’s claim
that prior habeas counsel’s representation was ineffective for failing to present the claims identified in count
one and, if so, to articulate the findings on which its
conclusions were based. See, e.g., Barlow v. Commissioner of Correction, 328 Conn. 610, 614–15 and n.5,
182 A.3d 78 (2018) (appellate courts may remand matter
for further factual findings without disturbing judgment
while retaining jurisdiction over appeal). In the present
case, however, the judge who heard the current habeas
action is no longer a judge of the Superior Court and,
accordingly, a remand for articulation is not possible.
The appropriate remedy, therefore, is to reverse the
judgment of the habeas court in part and remand the
matter for a new trial only with respect to the petitioner’s claim that Miller was ineffective for failing to pursue
the claim that Haselkamp was ineffective for the reasons identified in count one of the amended petition.
See, e.g., Claude v. Claude, supra, 143 Conn. App.
311–12 (remanding for new hearing where there were
multiple possible grounds on which court could have
based its decision and court failed to file memorandum
of decision prior to retirement, thereby precluding
order requiring court to articulate basis of decision).15
15
The petitioner also raises as a separate claim that the habeas court
erred by failing to consider the expert testimony of Gallegos and Perlin. As
indicated previously, in count two of the amended petition, the petitioner
alleged that Miller was ineffective in three ways: by failing to raise the claims
identified in count one; by failing to consult with mental health and legal
experts ‘‘about the significance of the petitioner’s mental health profile to
the adequacy of [Haselkamp’s] performance’’; and by failing to adequately
plead, prove, and argue the claims that she raised in the first habeas action.
From our review of the section of the petitioner’s brief addressing his claim
that the habeas court erred by failing to consider the testimony of his
experts, it appears that the petitioner argues only that the alleged failure
to consider such testimony impacted the habeas court’s decision with
respect to his claim that Miller was ineffective for failing to raise the claims
identified in count one. Because we conclude that the petitioner is entitled
to a new trial on that claim, we need not address his claim that the habeas
court failed to consider the testimony of his experts.
0, 0 CONNECTICUT LAW JOURNAL Page 31
0 Conn. App. 1 ,0 33
Pagan v. Smith
The judgment is reversed in part and the case is
remanded for a new trial only on the petitioner’s claim
in count two of the amended petition that Attorney
Justine Miller was ineffective for failing to raise the
claims identified in count one; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
