Haywood v. Comm'r of Corr.

194 Conn.App. 757

222 A.3d 545

David HAYWOOD

v.COMMISSIONER OF CORRECTION

AC 41677

Appellate Court of Connecticut.

Argued October 9, 2019

Officially released December 10, 2019

Vishal K. Garg, West Hartford, with whom, on the brief, were Stephanie L. Evans, assigned counsel, and David Haywood, self-represented, for the appellant (petitioner).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

Keller, Bright and Flynn, Js.

BRIGHT, J.

In this habeas on a habeas,¹ the petitioner, David Haywood, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and improperly concluded that he was not denied the effective assistance of previous habeas counsel, Attorney Mark Diamond, with respect to Attorney Diamond's efforts to establish the ineffective assistance of original appellate counsel, Attorney Glenn W. Falk.

The petitioner's claim relates to his dissatisfaction with how Attorney Falk challenged on appeal the petitioner's convictions for robbery in the first degree as an accessory and felony murder. See State v. Haywood , 109 Conn. App. 460, 464–66, 952 A.2d 84, cert. denied, 289 Conn. 928, 958 A.2d 161 (2008). After his criminal trial, the petitioner was convicted of participating in a robbery that led to the murder of the victim. Id., at 464, 952 A.2d 84. In the direct appeal from the petitioner's judgment of conviction, Attorney Falk argued that the conviction could not stand because there was insufficient evidence of a completed robbery. Id. The state agreed that the evidence supported only an attempted robbery, but it argued that in finding the petitioner guilty of a completed robbery, the jury necessarily found the petitioner guilty of attempt to commit robbery. See id., at 465–66, 952 A.2d 84. Because attempt to commit robbery is a felony that can be the basis of a felony murder conviction, the state asked that this court order the modification of the petitioner's conviction of robbery to attempt to commit robbery and that the felony murder conviction be affirmed. Id., at 464–65, 952 A.2d 84. This court also addressed the claim that the judgment should not be modified because the jury in the petitioner's trial was never charged on the elements of attempt to commit robbery. Id., at 466–67, 952 A.2d 84 n.3. This court agreed with the state and reversed only the robbery conviction and remanded the case to the trial court with direction to modify the judgment to reflect a conviction of attempt to commit robbery. Id., at 464–66, 477, 952 A.2d 84.²

The petitioner argues in this appeal that Attorney Falk performed deficiently in the petitioner's direct appeal because, when he addressed in the petition for certification to appeal to our Supreme Court this court's decision that the petitioner's robbery conviction should be modified, he failed to include a citation to State v. Sanseverino , 287 Conn. 608, 949 A.2d 1156 (2008) ( Sanseverino I ),³ and failed, while the petition for certification was pending in our Supreme Court, to file a motion for reconsideration in this court regarding the modification issue after our Supreme Court officially released its decision in Sanseverino I . He further argues that Attorney Diamond performed deficiently in the petitioner's first habeas trial because he failed to point out sufficiently Attorney Falk's errors.

In Sanseverino I , our Supreme Court, after reversing the defendant's kidnapping conviction, noted, but did not address, the possibility that the state could ask the court to modify the defendant's conviction to the lesser included offense of unlawful restraint in the second degree. Id., at 625–26, 949 A.2d 1156 and n.16. According to the petitioner, in the present case, had Attorney Falk discussed the modification issue in light of the then recently decided Sanseverino I , there was a reasonable probability that this court would have reconsidered its decision ordering modification or that our Supreme Court would have granted his petition for certification and would have reversed the decision of this court.

The petitioner also argues in his main appellate brief: "[I]t is clearly debatable among jurists of reason whether the petitioner's prior habeas counsel was ineffective for failing to bring to the court's attention ... the concurring opinion [by Chief Justice Rogers in State v. Sanseverino , 291 Conn. 574, 969 A.2d 710 (2009) ( Sanseverino II ) ], and his appellate counsel for failing to make the argument against modification of [the petitioner's] judgment based on his acquittal due to insufficient evidence and the lack of a jury instruction on the lesser included offense, similar to the way in which the appellate attorney had successfully raised the claim in State v. LaFleur , 307 Conn. 115, 51 A.3d 1048 (2012)."⁴

In Sanseverino II , our Supreme Court explicitly sanctioned the modification of the defendant's conviction to the lesser included offense of unlawful restraint in the second degree, even in the absence of a jury instruction on that lesser offense, "[u]nder the unique circumstances of [the] case ...." Sanseverino II , supra, 291 Conn. at 595, 969 A.2d 710. In a concurring opinion, Chief Justice Rogers questioned the wisdom of allowing such modifications in future cases that involve different circumstances. Id., at 598–604, 969 A.2d 710 (Rogers, C. J. , concurring).

In LaFleur , our Supreme Court concluded that the facts and the procedural history of the defendant's case were sufficiently different than those in Sanseverino II to preclude modification of the defendant's conviction of assault in the first degree to the lesser included offense of assault in the second degree. State v. LaFleur , supra, 307 Conn. at 141–42, 151–54, 51 A.3d 1048. Thus, the court ordered on remand a judgment of acquittal. Id., at 154, 51 A.3d 1048.

The petitioner essentially claims on appeal that although Attorney Falk argued in the petitioner's direct appeal that it was improper for this court to order that the trial court modify the petitioner's robbery conviction, his argument was deficient because it failed to point to the evolution of the issue which began in Sanseverino I , and failed to advance the legal analyses set forth in the concurring opinion by Chief Justice Rogers in Sanseverino II and the majority in LaFleur . He further argues that Attorney Diamond performed deficiently in the petitioner's first habeas case when he did not argue that Attorney Falk should have relied explicitly on the reasoning set forth in those cases. We disagree with the petitioner and dismiss the appeal.

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits.... To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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....

"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." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction , 181 Conn. App. 572, 577–78, 187 A.3d 543, cert. denied, 329 Conn. 909, 186 A.3d 13 (2018). For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that he was prejudiced, meaning, there is a reasonable probability that, but for counsel's mistakes, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Our standard of review as to whether Attorney Diamond's representation was inadequate is plenary, being a mixed question of law and fact. See Taylor v. Commissioner of Correction , 324 Conn. 631, 637, 153 A.3d 1264 (2017) ("[t]he application of historical facts to questions of law that is necessary to determine whether the petitioner has demonstrated prejudice ... is a mixed question of law and fact subject to ... plenary review" [citation omitted] ).

We first consider the petitioner's claim that Attorney Diamond provided ineffective assistance of counsel in the petitioner's first habeas trial because he did not argue that Attorney Falk should have filed a motion for reconsideration in the petitioner's direct appeal with this court citing to Sanseverino I , and setting forth the legal analysis that Chief Justice Rogers later employed in her concurring opinion in Sanseverino II and that the majority relied on in LaFleur . We conclude that this claim has no merit.

In the petitioner's first habeas case, Attorney Diamond, in fact, did claim that Attorney Falk should have filed a motion for reconsideration with this court in the petitioner's...