Fullenwiley v. Commissioner of Correction ( 2016 )

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CHARLES FULLENWILEY v. COMMISSIONER
OF CORRECTION
(AC 37491)
DiPentima, C. J., and Beach and Flynn, Js.
Argued January 14—officially released March 15, 2016
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Robert J. McKay, assigned counsel, for the appel-
lant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Maureen Platt, state’s attorney, and
Eva B. Lenczewski, supervisory assistant state’s attor-
ney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Charles Fullenwiley,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his revised amended petition for a writ of
habeas corpus. On appeal, the petitioner claims that
the court improperly denied (1) his petition for certifica-
tion to appeal and (2) his petition for a writ of habeas
corpus. Because the petitioner has not demonstrated
that the court abused its discretion in denying the peti-
tion for certification to appeal, we dismiss the appeal.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On June 3, 2008,
the petitioner pleaded guilty, under the Alford1 doctrine,
to possession of child pornography in the first degree.
He was sentenced to a term of twenty years incarcera-
tion, execution suspended after twelve years, and fif-
teen years of probation. The petitioner filed a revised
amended petition for a writ of habeas corpus, which
contained two claims—ineffective assistance of trial
counsel and actual innocence. The petitioner raises only
the former claim on appeal.
The habeas court denied the petitioner’s revised
amended petition for habeas corpus relief. The court
noted that ‘‘the state’s case against the petitioner was
overwhelming. . . . The petitioner had admitted to
possessing this material while knowing its nature. . . .
The petitioner’s own forensic expert reported to [the
petitioner’s trial counsel] that the depictions were genu-
ine photographic recordings and not computer gener-
ated simulations. . . . The petitioner’s criminal history
at the time of his prosecution for this charge was atro-
cious.’’ The court concluded that the petitioner’s allega-
tions of ineffective assistance of counsel failed because
the petitioner had not established that he was preju-
diced by the performance of his trial counsel.2
Thereafter, the petitioner sought certification to
appeal from the judgment denying his petition for a
writ of habeas corpus, which the court denied. This
appeal followed.
On appeal, the petitioner claims that the court abused
its discretion when it denied his petition for certification
to appeal and that the court improperly denied his peti-
tion for a writ of habeas corpus. The petitioner essen-
tially contends that his trial counsel performed
deficiently in his representation of the petitioner during
plea negotiations.
We first set forth our standard of review. ‘‘Faced with
the habeas court’s denial of certification to appeal, a
petitioner’s first burden is to demonstrate that the
habeas court’s ruling constituted an abuse of discretion.
Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126(1994). To prove an abuse of discretion, the petitioner
jurists of reason; that a court could resolve the issues
[in a different manner]; or that the questions are ade-
quate to deserve encouragement to proceed further.
. . . Id., 616, quoting Lozada v. Deeds, 498 U.S. 430,
432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). If the
petitioner succeeds in surmounting that hurdle, the peti-
tioner must then demonstrate that the judgment of the
habeas court should be reversed on its merits. Id., 612.’’
(Internal quotation marks omitted.) Elliston v. Com-
missioner of Correction, 131 Conn. App. 787, 788–89,
28 A.3d 1019 (2011).
A claim of ineffective assistance of counsel consists
of two components: a performance prong and a preju-
dice prong. ‘‘In Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United
States Supreme Court enunciated the two requirements
that must be met before a petitioner is entitled to rever-
sal of a conviction due to ineffective assistance of coun-
sel. First, the [petitioner] must show that counsel’s
performance was deficient. . . . Second, the [peti-
tioner] must show that the deficient performance preju-
diced the defense. . . . Unless a [petitioner] makes
both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversarial pro-
cess that renders the result unreliable. . . . A
reviewing court need not address both components of
the inquiry if the [petitioner] makes an insufficient
showing on one.’’ (Internal quotation marks omitted.)
McGee v. Commissioner of Correction, 157 Conn. App.
863, 868, 118 A.3d 140, cert. denied, 318 Conn. 903,
122 A.3d 633 (2015). ‘‘To satisfy the prejudice prong, a
[petitioner] must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’’
(Internal quotation marks omitted.) Atkinson v. Com-
missioner of Correction, 125 Conn. App. 632, 638, 9
A.3d 407 (2010), cert. denied, 300 Conn. 919, 14 A.3d
1006 (2011). ‘‘[I]n the context of a guilty plea . . . to
succeed on the prejudice prong the petitioner must
demonstrate that, but for counsel’s alleged ineffective
performance, the petitioner would not have pleaded
guilty and would have proceeded to trial.’’ (Internal
quotation marks omitted.) Carraway v. Commissioner
of Correction, 317 Conn. 594, 600 n.6, 119 A.3d 1153(2015).
After reviewing the record, briefs, and the habeas
court’s thoughtful memorandum of decision, we con-
clude that the petitioner has not contested the habeas
court’s finding of lack of prejudice. The habeas court
concluded that the petitioner failed to demonstrate prej-
udice as a result of the alleged ineffective assistance
of counsel, yet, in his appellate brief, the petitioner
argued only that counsel’s performance was deficient.
Without a showing that the petitioner would not have
pleaded guilty but for the deficient performance of his
trial counsel, the prejudice requirement has not been
met. See Atkinson v. Commissioner of Correction,
supra, 125 Conn. App. 637. Accordingly, the petitioner
has failed to sustain his burden of persuasion that the
habeas court abused its discretion by denying his peti-
tion for certification to appeal. See Simms v. Warden,
supra, 230 Conn. 612.
The appeal is dismissed.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
The habeas court listed the petitioner’s allegations of ineffective assis-
tance of counsel as follows: ‘‘[Trial counsel] failed adequately to explain to
the petitioner the plea canvass process, the nature of an Alford plea, and/
or the purpose of a presentence investigation report . . . he insufficiently
investigated the state’s case against the petitioner by failing to review and
make use of an internal affairs report in order to negotiate more favorable
terms for disposition . . . he failed to learn whether or not the petitioner
was arrested pursuant to an arrest warrant which charged the petitioner
with child pornography . . . he failed to apprise the petitioner of the possi-
bility of using the testimony of [a] Waterbury police officer . . . for the
defense case . . . he misinformed the petitioner that his daughter . . .
would be called as a defense witness . . . he failed to interview [a] [then
detective] of the Waterbury Police Department, [the petitioner’s daughter],
or [an additional witness] . . . he failed to inform the petitioner of the
elements of the crime of possession of child pornography [in the] first degree
. . . and . . . he forced the petitioner to plead guilty.’’