Haughey v. Comm'r of Corr.

173 Conn.App. 559

164 A.3d 849

Norman HAUGHEY

v.COMMISSIONER OF CORRECTION

AC 38214

Appellate Court of Connecticut.

Argued March 9, 2017

Officially released June 6, 2017

Erica A. Barber, assigned counsel, for the appellant (petitioner).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, former state's attorney, and Rebecca A. Barry, assistant state's attorney, for the appellee (respondent).

DiPentima, C.J., and Beach and Westbrook, Js.

WESTBROOK, J.

Following the habeas court's denial of his amended petition for a writ of habeas corpus, the petitioner, Norman Haughey, appeals from the habeas court's denial of his petition for certification to appeal. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because his mandatory sentence of life imprisonment without the possibility of release violated the requirement of individualized, proportionate sentencing under the eighth amendment to the United States constitution as articulated in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).¹ The petitioner also claims, for the first time on appeal, that his mandatory sentence of life without the possibility of release violates the Connecticut constitution. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal, and, accordingly, we dismiss the appeal.

The facts underlying the petitioner's conviction were set forth previously by this court. "Sometime in the late evening of December 1, 2003, the [petitioner] visited the home of the victims, Donna Sosa and Mary Tomasi, located on Albert Street in Hamden. The [petitioner] was personally familiar with the victims, as his grandmother, with whom he occasionally shared a residence, lived on Green Hill Road, which abutted the victims' property. Intent on acquiring money to support his crack cocaine addiction, the [petitioner] gained access to the victims' home and shortly thereafter attacked Sosa in the kitchen, stabbing her repeatedly in the face, neck and right shoulder. The [petitioner] then proceeded upstairs armed with a ten pound dumbbell retrieved from the living room floor, where he found Tomasi sleeping in her bedroom. After striking Tomasi in the face with the dumbbell, fracturing her skull, the [petitioner] searched through her purse, stealing cash and several blank checks, which he later forged in an attempt to acquire additional funds. Sosa and Tomasi died from these attacks.

"The [petitioner] subsequently was arrested and charged with two counts of murder in violation of [General Statutes] § 53a–54a (a), two counts of felony murder (burglary) in violation of [General Statutes] § 53a–54c and one count of capital felony in violation of [General Statutes] § 53a–54b (7). A jury trial followed and the [petitioner] was convicted on all counts. At sentencing, the court merged the conviction of the murder and felony murder charges with the capital felony conviction, imposing a term of life imprisonment without the possibility of release." State v. Haughey , 124 Conn.App. 58, 60–61, 3 A.3d 980, cert. denied, 299 Conn. 912, 10 A.3d 529 (2010). This court affirmed the petitioner's convictions on appeal. Id., at 75, 3 A.3d 980.

On July 1, 2011, the petitioner filed an initial petition for a writ of habeas corpus, which he amended on January 6, 2015. In his amended petition, the petitioner raised three claims, alleging that (1) his trial counsel rendered ineffective assistance of counsel; (2) his appellate counsel rendered ineffective assistance of counsel; and (3) his life sentence without the possibility of release is cruel and unusual punishment. The only claim subject to this appeal, however, is the petitioner's claim that his mandatory life sentence violates the eighth amendment's prohibition against cruel and unusual punishment. A trial on the merits was held before the habeas court on April 7, 8, and 9, 2015. On June 30, 2015, the habeas court issued a memorandum of decision, denying the petitioner's amended petition.

Thereafter, the petitioner filed a petition for certification to appeal. After the court denied the petition for certification to appeal, this appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the "procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court's denial of the habeas petition following denial of certification to appeal. In Simms v. Warden , 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that ... [General Statutes] § 52–470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden , 230 Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds , 498 U.S. 430, 431–32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits.... In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous." (Citations omitted; emphasis in original; internal quotation marks omitted.) Castonguay v. Commissioner of Correction , 300 Conn. 649, 657–58, 16 A.3d 676 (2011).

I

The petitioner first claims that the habeas court improperly concluded that he was not entitled to an individualized, proportionate sentencing hearing, as articulated in Miller , because he was twenty-five years old at the time of the subject offenses. We conclude that the court did not abuse its discretion in rejecting the petition for certification to appeal with regard to this claim.

The following facts and procedural history are relevant to our discussion of this claim. At the habeas trial, the petitioner argued that his sentence was cruel and unusual punishment because he was not afforded an individualized sentencing hearing as described in the United States Supreme Court decision in Miller and our Supreme Court's decision in State v. Riley , 315 Conn. 637, 110 A.3d 1205 (2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 1361, 194 L.Ed.2d 376 (2016). Although the petitioner acknowledged that Miller and Riley pertain to juvenile offenders, i.e., individuals under the age of eighteen, he nonetheless argued that his youthful characteristics were akin to that of a juvenile offender.

In support of his claim, the petitioner testified and described his childhood and drug use. He testified to being the victim of physical abuse and neglect through-out his childhood. He also stated that he abused drugs and began using steroids between the ages of eighteen and nineteen. According to the petitioner, he took to substance abuse to compensate for underlying issues relating to his childhood that he was struggling with. The petitioner expressed that he continued abusing drugs until his arrest for the subject offenses.

In addition to the petitioner's testimony, Patrick Nickoletti, Jonathan Raub, and Frank DiCataldo were called as expert witnesses to describe adolescent brain development, how substance abuse impacts that development, and the specific circumstances of the petitioner's development. Nickoletti, a professor of psychology, discussed brain development during young adulthood. Specifically, he discussed neurological development during adolescence, presented scientific evidence relating to relevant risk factors that can impact early development, and provided his assessment of the petitioner.

Nickoletti further testified that the characteristics that put young adults at risk—impulsivity, recklessness, and poor judgment—are connected to psychological changes in the brain during development. Raub's testimony described the psychiatric and behavioral effects of steroid abuse. According to Raub, a psychiatrist, steroid abuse negatively impacts an individual's cognitive faculties. Finally, DiCataldo, a forensic psychologist, outlined the steps that the petitioner has taken to overcome his addictions and his efforts to rehabilitate while imprisoned.

In rejecting the petitioner's claim, the habeas court stated in relevant part: "It is not the duty of a trial court to make new law; it is the duty of the trial court to apply existing law. No matter how persuasive or interesting the neuroscience [presented] by [the] petitioner may be, the law is clear. Juvenile means under age eighteen. That eighteen year limit is of recent vintage with a change in the law made by the General Assembly a few years ago. The proper venue, if there is to be a change such as proposed by the petitioner, is not in a trial court, but before the Connecticut legislature. If such a change is enacted into law, then this and other courts will have authority to take the action requested by the petitioner. Until then, there is no such authority."

The habeas court also relied on the Washington Court of Appeals' decision in State v. Hart , 188 Wash.App. 453, 353 P.3d 253 (2015), in its analysis. The defendant in Hart was in his twenties at the time of the charged offense, and...