Moody v. Commissioner of Correction ( 2015 )

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DONALD MOODY v. COMMISSIONER
OF CORRECTION
(AC 36202)
Sheldon, Prescott and Flynn, Js.
Argued January 7—officially released March 31, 2015
(Appeal from Superior Court, judicial district of
Tolland, Kwak, J.)
Mary H. Trainer, assigned counsel, for the appel-
lant (petitioner).
Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Adrienne Maciulewski, deputy
assistant state’s attorney, for the appellee (respondent).
Opinion
FLYNN, J. A trial judge cannot be said to have abused
his discretion when he was never on notice that he
was being asked to exercise it. The petitioner, Donald
Moody, appeals following the denial of his petition for
certification to appeal from the judgment of the habeas
court denying his amended petition for a writ of habeas
corpus. On appeal, the petitioner claims that the court,
Kwak, J., abused its discretion in denying his petition
for certification to appeal. The petitioner also claims
that the court, Newson, J., improperly dismissed his
habeas claim that his counsel for his first habeas peti-
tion was ineffective for failing to raise the claim that
his trial attorney was ineffective for failing to request
jury instructions on lesser included offenses. The claim
of ineffective habeas counsel dismissed by Judge New-
son was not listed on the petition for certification as one
of the petitioner’s reasons for requesting certification to
appeal. None of the reasons for requesting certification
that were listed concerning Judge Kwak’s decision have
been briefed. We conclude that, because the petitioner’s
appeal centers on a claim that was not included in his
petition for certification, he has failed to demonstrate
that the court abused its discretion by improperly deny-
ing the petition. Accordingly, we dismiss the appeal.
The following facts and procedural history are rele-
vant to our review of the petitioner’s claims. The peti-
tioner was convicted, after a jury trial, of murder in
violation of General Statutes § 53a-54a (a) and assault
in the first degree in violation of General Statutes § 53a-
59 (a) (5). The petitioner appealed and this court
affirmed the judgment of conviction. State v. Moody,
77 Conn. App. 197, 199, 822 A.2d 990, cert. denied, 264
Conn. 918, 827 A.2d 707, cert. denied, 540 U.S. 1058,
124 S. Ct. 831, 157 L. Ed. 2d 714 (2003). The petitioner
then filed a petition for a writ of habeas corpus. The
habeas court, White, J., dismissed the petition and this
court dismissed the appeal. Moody v. Commissioner
of Correction, 108 Conn. App. 96, 98, 946 A.2d 1268,
cert. denied, 288 Conn. 906, 953 A.2d 649 (2008). There-
after, the petitioner filed a second petition for a writ
of habeas corpus. The habeas court, Fuger, J., denied
the petition and this court affirmed the judgment.
Moody v. Commissioner of Correction, 127 Conn. App.
293, 295, 14 A.3d 408, cert. denied, 300 Conn. 943, 17
A.3d 478 (2011).
On October 8, 2009, the petitioner filed a third petition
for a writ of habeas corpus, which is the subject of
this appeal. On January 6, 2012, the petitioner filed an
amended petition and raised various ineffective assis-
tance of counsel claims against David Moreshead, his
counsel for his first habeas petition. In paragraph 6a
of the amended petition, the petitioner alleged that
Moreshead was ineffective for failing to raise and liti-
gate the claim that the petitioner’s trial counsel was
ineffective for failing to request jury instructions on the
lesser included offenses of manslaughter in the second
degree and criminally negligent homicide.
On March 26, 2012, the respondent, the Commis-
sioner of Correction, filed a motion to dismiss the peti-
tioner’s amended petition. The habeas court, Newson,
J., held a hearing on the respondent’s motion on April
12, 2012. In a memorandum of decision dated Septem-
ber 6, 2012, the court granted the respondent’s motion
as to the petitioner’s paragraph 6a claim alleging ineffec-
tive assistance of habeas counsel on the ground that
the claim was barred by the doctrine of res judicata.
Judge Newson denied the motion as to the remainder
of the petition. Thereafter the petitioner filed a second
amended petition that did not include the paragraph
6a claim.
On June 5, 2013, the habeas court, Kwak, J., con-
ducted a trial on the merits of the petitioner’s second
amended petition. After the petitioner presented his
case, the respondent orally moved for a judgment of
dismissal, alleging that the petitioner had failed to make
out a prima facie case. The court heard argument from
both parties on the motion at that time. In a subsequent
memorandum of decision, dated September 19, 2013,
the court concluded that the petitioner had failed to
make out a prima facie case and granted the respon-
dent’s motion for a judgment of dismissal. The peti-
tioner then filed a petition for certification to appeal
from the judgment of dismissal. The court denied the
petition for certification. This appeal followed.
On appeal, the petitioner first claims that the habeas
court, Kwak, J., improperly denied his petition for certi-
fication to appeal. The petitioner’s argument, however,
addresses not what Judge Kwak decided but instead
centers on Judge Newson’s earlier dismissal of his para-
graph 6a claim against Moreshead. The petitioner
argues that Judge Kwak abused his discretion in deny-
ing the petition for certification because ‘‘a court could
resolve the issue of prejudice in a different manner or
jurists of reason could resolve the motion to dismiss
the third petition differently than Judge Newson did.’’
The respondent argues that Judge Kwak did not abuse
his discretion because ‘‘the petitioner did not ask [Judge
Kwak] to certify as an issue for appeal his [paragraph
6a] claim,’’ which was dismissed by Judge Newson, and
therefore Judge Kwak ‘‘was not given the opportunity
to exercise any discretion to consider whether the chal-
lenged ruling of [Judge Newson] was worthy of appeal.’’
We agree with the respondent.
We now turn to the applicable standard of review.
‘‘[A]n appeal following the denial of a petition for certifi-
cation to appeal from the judgment denying a petition
for a writ of habeas corpus is not the appellate equiva-
lent of a direct appeal from a criminal conviction. Our
limited task as a reviewing court is to determine
whether the habeas court abused its discretion in con-
cluding that the petitioner’s appeal is frivolous. Thus,
we review whether the issues for which certification
to appeal was sought are debatable among jurists of
reason, a court could resolve the issues differently or
the issues are adequate to deserve encouragement to
proceed further. . . . Because it is impossible to
review an exercise of discretion that did not occur, we
are confined to reviewing only those issues which were
brought to the habeas court’s attention in the petition
for certification to appeal.’’ (Citation omitted.) Tutson
v. Commissioner of Correction, 144 Conn. App. 203,
216, 72 A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d
145 (2013).
In the present case, we need look no further than
the petition for certification, which did not include the
petitioner’s paragraph 6a claim that his first habeas
counsel ineffectively failed to raise his claim that his
trial counsel ineffectively failed to request jury instruc-
tions on additional lesser included offenses. This court
has previously held that ‘‘a petitioner cannot demon-
strate that a habeas court abused its discretion in deny-
ing a petition for certification to appeal on the basis of
issues that were not actually raised in the petition for
certification to appeal.’’ Campbell v. Commissioner of
Correction, 132 Conn. App. 263, 267, 31 A.3d 1182
(2011); see also Tutson v. Commissioner of Correction,
supra, 144 Conn. App. 216–17 (‘‘[b]ecause the petitioner
did not raise the claim [that he now seeks to have us
review] when asking the court to rule on his petition
for certification to appeal, we cannot conclude that the
court abused its discretion on that ground’’); Melendez
v. Commissioner of Correction, 141 Conn. App. 836,
841, 62 A.3d 629 (‘‘[t]he court could not abuse its discre-
tion in denying the petition for certification about mat-
ters that the petitioner never raised’’), cert. denied, 310
Conn. 921, 77 A.3d 143 (2013). Accordingly, we conclude
that the petitioner has failed to demonstrate that Judge
Kwak abused his discretion in denying the petition for
certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.