Henderson v. Comm'r of Correction.

129 Conn.App. 188

19 A.3d 705

Bill Roy HENDERSON

v.COMMISSIONER OF CORRECTION.

No. 32039.

Appellate Court of Connecticut.

Argued March 11, 2011.Decided May 31, 2011.

Wayne A. Francis, special public defender, for the appellant (petitioner).Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Tamara A. Grosso, special deputy assistant state's attorney, for the appellee (respondent).BISHOP, ALVORD and BEAR, Js.BEAR, J.

The petitioner, Bill Roy Henderson, appeals from the judgment of the habeas court following the denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly concluded that (1) trial counsel was not ineffective in failing to call certain witnesses to testify at the petitioner's criminal trial, (2) trial counsel was not ineffective for failing to offer a specific recommendation that the petitioner accept the state's plea offer and (3) the doctrine of res judicata barred the petitioner's claim that there had been a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), during his criminal trial. We dismiss the appeal.

The following facts and procedural history are relevant to the petitioner's appeal. On November 5, 2001, the petitioner was found guilty, after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a–54a and 53a–48, murder in violation of General Statutes §§ 53a–54a and 53a–8, and tampering with a witness in violation of General Statutes §§ 53a–151 and 53a–8. The court sentenced the petitioner to a total effective term of sixty years incarceration. Following his conviction, the petitioner filed a motion for a new trial on the ground that the state had failed to disclose that Michael Wright, the principal witness for the state, had received a benefit from the state in exchange for his testimony against the petitioner. After a hearing, the trial court denied the motion, finding that there was no credible evidence that Wright had received a benefit in exchange for his testimony, and the petitioner, thereafter, filed a direct appeal. The petitioner's conviction was upheld by this court in State v. Henderson, 83 Conn.App. 739, 749, 853 A.2d 115, cert. denied, 271 Conn. 913, 859 A.2d 572 (2004).

On January 16, 2009, the petitioner filed an amended petition for a writ of habeas corpus, claiming that his trial counsel had rendered ineffective assistance, his appellate counsel had rendered ineffective assistance and the prosecutor had committed prosecutorial impropriety by committing a Brady violation.¹ The habeas court rejected each of the petitioner's claims and denied his habeas petition. Thereafter, the habeas court denied the petition for certification to appeal, and this appeal followed.

We begin by setting forth our well settled standard of review. “[W]e have previously determined that if either the petitioner or the respondent is denied a timely request for certification to appeal from a habeas court's judgment, such review may subsequently be obtained only if the appellant can demonstrate that the denial constituted an abuse of discretion.... We recognize that [i]n enacting [General Statutes] § 52–470(b), the legislature intended to discourage frivolous habeas appeals.... A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), is not, however, frivolous and warrants appellate review if the appellant can show: 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.... [I]f an appeal is not frivolous, the habeas court's failure to grant certification to appeal is an abuse of discretion....

“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. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria identified in Lozada and adopted by this court for determining the propriety of the habeas court's denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” (Citation omitted; internal quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 448–49, 936 A.2d 611 (2007).

I

The petitioner claims that the habeas court erred when it concluded that his trial counsel was not ineffective in failing to call certain witnesses, including the petitioner, to testify at trial and in failing to recommend that the petitioner accept the state's plea offer. We are not persuaded.

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.... 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.... Mozell v. Commissioner of Correction, 291 Conn. 62, 76–77, 967 A.2d 41 (2009).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995).... It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006) ... 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.... The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 123 Conn.App. 424, 435–36, 1 A.3d 1242 (2010).

A

The petitioner claims that the court erred when it concluded that his trial counsel was not ineffective in failing to call certain witnesses, including the petitioner, to testify at trial. The petitioner argues that counsel should have called his witnesses, namely, Donald Gaynor and Nigel Gaynor, to testify on his behalf. He further argues that he was willing to testify at trial and that “he could have provided testimonial evidence to controvert the testimony of the state's key witness.” The respondent, the commissioner of correction, argues that the habeas court properly rejected these claims because the petitioner failed to present any evidence at the habeas trial as to what the Gaynors would have said had they been called to testify, and the petitioner failed to explain what testimony he would have offered had he elected to testify. Accordingly, the respondent argues, the habeas court properly rejected these claims. We agree with the respondent.

“In consideration of [a] petitioner's claim concerning the adequacy of trial counsel's investigation and the calling of alibi witnesses ... [w]e have stated that the presentation of testimonial evidence is a matter of trial strategy.... The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” (Internal quotation marks omitted.) Dunkley v. Commissioner of Correction, 73 Conn.App. 819, 823–24, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003).

Although the petitioner argues that counsel should have called the Gaynors to testify on the petitioner's behalf, he failed to present them as witnesses at the habeas trial. Without their testimony, the habeas court could not evaluate them as witnesses, nor could it assess the import of their testimony. Accordingly, the court properly found that the petitioner could not establish prejudice. See Townsend v. Commissioner of Correction, 116 Conn.App. 663, 668, 975 A.2d 1282 (insufficient showing of prejudice where petitioner offered sole testimony regarding exculpatory witness because court had no opportunity to evaluate testimony or credibility of claimed witness), cert. denied, 293 Conn. 930, 980 A.2d 916 (2009); Andrews v. Commissioner of Correction, 45 Conn.App. 242, 247–48, 695 A.2d 20, cert. denied, 242 Conn. 910, 697 A.2d 364 (1997) (prejudice cannot be demonstrated with regard to trial counsel's alleged failure to interview potential witnesses where petitioner fails to call those witnesses to testify at habeas trial or offer any other proof that their testimony would have been favorable to him at criminal trial); see also Taft v. Commissioner of Correction, 47 Conn.App. 499, 504–505, 703 A.2d 1184 (1998). In this case, the habeas court specifically found that the representation...