Jones v. Comm'r of Corr.

212 Conn.App. 117

274 A.3d 237

Marquis JONES

v.COMMISSIONER OF CORRECTION

AC 43862

Appellate Court of Connecticut.

Argued January 26, 2022

Officially released April 26, 2022

Katharine S. Goodbody, assistant public defender, for the appellant (petitioner).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and Emily Trudeau, assistant state's attorney, for the appellee (respondent).

Alvord, Moll and Vertefeuille, Js.

ALVORD, J.

The petitioner, Marquis Jones, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal, (2) deprived him of his constitutional and statutory rights by failing to admit into evidence or consider the transcripts of the underlying criminal trial, (3) improperly concluded that his trial counsel did not provide ineffective assistance, and (4) improperly concluded that there were no violations of Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), at his underlying criminal trial. We conclude that the habeas court did not abuse its discretion in denying the petitioner's petition for certification to appeal and, therefore, dismiss the appeal.

This court set forth the following facts, which the jury reasonably could have found, in the petitioner's direct appeal from his conviction. "On the evening of December 26, 2002, the eighteen year old victim, accompanied by his cousin, Sam Moore, attended a party at a club in Bridgeport. The [petitioner] was at the club at the same time as the victim and Moore. After leaving the club, the victim and Moore went to a nearby restaurant. The [petitioner], who was armed with a gun, arrived at the same restaurant at approximately 1 a.m. While there, the [petitioner] learned that the victim and Moore were interested in purchasing marijuana. The [petitioner] told an acquaintance, Gary Browning, that the victim and Moore had money and that he wanted to rob them. Browning arranged to sell marijuana to the victim and led him to a nearby backyard to complete the sale. Thereafter, the [petitioner] approached the victim from behind and stated: ‘You know what time it is, run that shit.’ As Browning walked away from the victim, the [petitioner] shot the victim in the back of the head and took money and drugs from him. The gunshot caused the victim's death. The victim's body was found on the snow coated ground the next morning." (Footnote omitted.) State v. Jones , 135 Conn. App. 788, 791, 44 A.3d 848, cert. denied, 305 Conn. 925, 47 A.3d 885 (2012).

The petitioner was arrested on June 4, 2008. On May 28, 2010, following a jury trial, the petitioner was convicted of felony murder. He was sentenced to a total effective sentence of forty years of incarceration. Following a direct appeal, the judgment of conviction was affirmed by this court. Id., at 790, 44 A.3d 848.

The present habeas proceeding was commenced in May, 2013, and, on May 10, 2019, the petitioner filed a three count, third amended petition for a writ of habeas corpus. The first count included a number of claims of ineffective assistance of counsel, three of which are at issue in this appeal. The second and third counts each alleged that his rights to due process and a fair trial were violated by the prosecutor's failure to disclose material evidence that was favorable to the defense. A trial was held over the course of two days, on August 27, 2018, and June 4, 2019. On November 26, 2019, the habeas court, Newson, J. , issued a memorandum of decision in which it denied the petitioner's habeas petition.

The petitioner subsequently filed a petition for certification to appeal, which the court also denied. This appeal followed. Additional facts and procedure will be set forth as necessary.

I

The petitioner first claims that the habeas court abused its discretion in denying his petition for certification to appeal from the court's judgment denying his petition for a writ of habeas corpus. We disagree.

General Statutes § 52-470 (g) provides: "No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person's release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies."

"As our Supreme Court has explained, one of the goals our legislature intended by enacting this statute was to limit the number of appeals filed in criminal cases and hasten the final conclusion of the criminal justice process .... [T]he legislature intended to discourage frivolous habeas appeals. ... [Section] 52-470 [g] acts as a limitation on the scope of review, and not the jurisdiction, of the appellate tribunal. ...

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [disposition] of his [or her] 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, he [or she] must demonstrate that the denial of his [or her] petition for certification constituted an abuse of discretion. ... Second, if the petitioner can show an abuse of discretion, he [or she] must then prove that the decision of the habeas court should be reversed on its merits. ...

"To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying in 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. 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 ... adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Footnote omitted; internal quotation marks omitted.) Whistnant v. Commissioner of Correction , 199 Conn. App. 406, 414–15, 236 A.3d 276, cert. denied, 335 Conn. 969, 240 A.3d 286 (2020).

For the reasons set forth in parts II, III, and IV of this opinion, we conclude that the petitioner has failed to demonstrate that his claims are debatable among jurists of reason, a court could resolve the issues in a different manner, or the questions are adequate to deserve encouragement to proceed further. Thus, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

II

Turning to the merits of the petitioner's first substantive claim, the petitioner claims that the habeas court deprived him of "his constitutional and statutory rights to the opportunity to be heard" by failing to admit into evidence or consider the transcript of the underlying criminal trial. The respondent, the Commissioner of Correction, contends, inter alia, that this claim is not reviewable. We agree with the respondent.

The following additional procedural history is relevant to our resolution of this claim. On the first day of the habeas trial, August 27, 2018, the petitioner's habeas counsel offered the underlying criminal trial transcript as a full exhibit, and the respondent's attorney objected, noting that the transcript, which was saved on a flash drive, did not appear to be certified and the paper copy offered by the petitioner had notes on it. The respondent's attorney told the court that if there was a brief recess she would be able to review the flash drive to determine whether the transcript was certified. The court advised the parties that it planned a lunch recess to afford them review time. One of the attorneys, however, had to attend another hearing in the afternoon; therefore, the trial was adjourned without a resolution of the transcript issue. On June 4, 2019, the second, and last, day of the trial, the petitioner's habeas counsel "offer[ed] the expanded record pursuant to ... Prac- tice Book § 23-36,¹ including the transcripts of the criminal case"; (footnote added); and the court stated that it would accept the transcripts as part of the "underlying record."² In the court's memorandum of decision denying the petition for a writ of habeas corpus, the court noted that, "[s]trangely, although submitted as an ID exhibit ... the transcript from the underlying criminal trial was never offered as a full exhibit at the habeas trial" and further noted that the transcript "likely could have offered some clarification about exactly what happened."

On December 10, 2019, after the habeas court denied his petition for a writ of habeas corpus, the petitioner filed a petition for certification to appeal. Although the petitioner set forth numerous grounds on which he proposed to appeal, he did not in any way implicate the court's treatment of the criminal trial transcript. The court denied the petition for certification to appeal on December 11, 2019. On January 28, 2020, the petitioner appealed to this court. On March 4, 2020, the petitioner filed a motion for articulation and a motion for rectification of...