It is well established that the federal constitution does not forbid, as stated in the 1973 U.S Supreme Court case of Chaffin v. Stynchcombe, "every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights." The state alleged that Judson Brown committed arson for profit and sought a judicial determination of Brown's eligibility for public defender services. The court granted Brown's public defenders' motion to withdraw their appearances. Brown appealed the ineligibility determination under C.G.S. §51-287(g). At the hearing, he withdrew the appeal. Brown represented himself at trial. He was convicted of first degree arson and conspiracy to commit arson. His conviction was affirmed on appeal. The denial of Brown's first petition for a writ of habeas corpus was affirmed on appeal. Brown filed this second habeas corpus petition claiming that his first habeas counsel, Justine Miller, rendered ineffective assistance by failing to claim that he was entitled to a new trial because he was deprived of his constitutional right to counsel at trial and to claim that his appellate counsel was ineffective in failing to raise the claim. The habeas court denied the petition finding a lack of prejudice due to procedural default. The court found that Brown, by failing to prosecute his ineligibility appeal, forfeited his right to challenge the ineligibility determination. Brown appealed claiming that he had good cause for discontinuing his statutory appeal because it required him to testify about his financial situation and the "bleak picture" of his finances would have been useful evidence of motive in his prosecution. He claimed he was improperly forced to choose between his Sixth Amendment right to counsel and his Fifth Amendment privilege against self-incrimination. The Appellate Court disagreed and affirmed the judgment. At the evidentiary hearing on his statutory appeal, Brown was not required to testify or otherwise to provide incriminating evidence. His eligibility was not conditioned upon the admission of inherently inculpatory facts. The choice of whether to prosecute the appeal created no unconstitutional tension between the assertion of conflicting rights as recognized in the 1968 U.S. Supreme Court case of Simmons v. U.S. The habeas court properly found that Brown failed to show cause and prejudice for discontinuing the appeal. Thus, Brown failed to demonstrate that Miller's assistance prejudiced him.

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