Blake v. Commissioner of Correction ( 2014 )

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JEFF BLAKE v. COMMISSIONER OF CORRECTION
(AC 34724)
DiPentima, C. J., and Bear and Peters, Js.*
Argued March 10—officially released June 3, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Natalie Olmstead, assigned counsel, for the appel-
lant (petitioner).
Adam E. Mattei, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and C. Robert Satti, Jr., supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Jeff Blake, appeals fol-
lowing 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 abused its
discretion in denying his petition for certification to
appeal because the court improperly (1) precluded him
from questioning the victim about whether she heard
voices on or about the date of the sexual assault, and
(2) concluded that there was no merit to his claim of
ineffective assistance of trial counsel. We dismiss the
petitioner’s appeal.
The facts involving the petitioner’s crimes are set
forth in his direct appeal; State v. Blake, 106 Conn. App.
345, 942 A.2d 496, cert. denied, 287 Conn. 922, 951 A.2d
573 (2008). Following his conviction and his direct
appeal, the petitioner, on February 2, 2012, filed his
third amended petition for a writ of habeas corpus
claiming in relevant part that his trial attorney provided
ineffective assistance during the petitioner’s criminal
trial. After the habeas trial, the court denied the petition
for a writ of habeas corpus. Thereafter, the petitioner
filed a petition for certification to appeal pursuant to
General Statutes § 52-470, which the court denied.1 This
appeal followed.
‘‘We begin by setting forth the applicable standard
of review and procedural hurdles that the petitioner
must surmount to obtain appellate review of the merits
of a habeas court’s denial of the habeas petition follow-
ing denial of certification to appeal. In Simms v. War-
den, 229 Conn. 178, 187, 640 A.2d 601 (1994), we
concluded that . . . § 52-470 (b) prevents a reviewing
court from hearing the merits of a habeas appeal follow-
ing the denial of certification to appeal unless the peti-
tioner establishes that the denial of certification
constituted an abuse of discretion by the habeas court.
In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d
126 (1994), we incorporated the factors adopted by the
United States Supreme Court in Lozada v. Deeds, 498
U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991),
as the appropriate standard for determining whether
the habeas court abused its discretion in denying certifi-
cation to appeal. This standard requires the petitioner
to demonstrate 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 ade-
quate to deserve encouragement to proceed further.
. . . A petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis in original; internal quotation marks
omitted.) Tutson v. Commissioner of Correction, 144
Conn. App. 203, 214–15, 72 A.3d 1162, cert. denied, 310
Conn. 928, 78 A.3d 145 (2013). Having set forth the
appropriate standard of review, we next consider the
petitioner’s claims.
I
The petitioner asserts that his ‘‘primary issue’’ on
appeal is that the habeas court abused its discretion
when it precluded him from questioning the victim dur-
ing the habeas trial about whether she heard voices on
or about the date of the sexual assault. He argues that
this testimony was ‘‘necessary’’ and that it was ‘‘[t]he
only way to prove’’ his claim that trial counsel rendered
ineffective assistance by (1) deficiently arguing the peti-
tioner’s motion for an in-camera review of the victim’s
mental health records, and (2) deficiently cross-examin-
ing the victim regarding whether she heard voices on
or about the date of the sexual assault. We are unable
to conclude that the court abused its discretion in deny-
ing the petition for certification to appeal as to this
issue because the petitioner did not set forth this issue
in the petition for certification to appeal. See footnote
1 of this opinion. Because the petitioner also concedes
that the testimony of the victim at the habeas trial was
‘‘[t]he only way to prove’’ his first two claims of deficient
performance, we also conclude that his first two claims
of ineffective assistance of trial counsel merit no discus-
sion because they are conceded to be foreclosed by the
habeas court’s decision to preclude him from ques-
tioning the victim.
‘‘As our standard of review set forth previously makes
clear, an appeal following the denial of a petition for
certification to appeal from the judgment denying a
petition for a writ of habeas corpus is not the appellate
equivalent 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, supra, 144 Conn. App.
216; see Mercado v. Commissioner of Correction, 85
Conn. App. 869, 872, 860 A.2d 270 (2004) (habeas court
could not have abused discretion in denying petition
for certification to appeal because claim at issue was
not raised in petition for certification to appeal), cert.
denied, 273 Conn. 908, 870 A.2d 1079 (2005); see also
Melendez v. Commissioner of Correction, 141 Conn.
App. 836, 841, 62 A.3d 629 (improper to consider issues
not raised distinctly before habeas court in petition for
certification to appeal), cert. denied, 310 Conn. 921, 77
A.3d 143 (2013); Campbell v. Commissioner of Correc-
tion, 132 Conn. App. 263, 267, 31 A.3d 1182 (2011) (con-
sideration of issues not distinctly raised in petition for
certification to appeal would amount to ambuscade of
habeas judge). Accordingly, this claim is not reviewable.
II
The petitioner also claims that the court erred in
concluding that counsel did not render deficient perfor-
mance during closing argument by failing to argue that
the underwear alleged to be the victim’s, which con-
tained the petitioner’s DNA, actually belonged to the
victim’s mother, with whom the petitioner had had a
sexual relationship, or by failing to argue that the loca-
tion of semen on the underwear was inconsistent with
the sexual assault described by the victim. We disagree,
and we conclude that the habeas court properly denied
the petition for certification to appeal with regard to
this claim.
‘‘A habeas petitioner can prevail on a constitutional
claim of ineffective assistance of counsel [only if he
can] establish both (1) deficient performance, and (2)
actual prejudice. . . . For ineffectiveness claims
resulting from guilty verdicts, we apply the two-pronged
standard set forth in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) . . . .
To satisfy the performance prong, the petitioner must
show that counsel’s representation fell below an objec-
tive standard of reasonableness. . . . A reviewing
court must view counsel’s conduct with a strong pre-
sumption that it falls within the wide range of reason-
able professional assistance. . . . To satisfy the
prejudice prong for ineffective assistance claims
resulting from guilty verdicts, the petitioner must dem-
onstrate that there exists a reasonable probability that,
but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’’ (Citations
omitted; internal quotation marks omitted.) Greene v.
Commissioner of Correction, 123 Conn. App. 121, 127–
28, 2 A.3d 29, cert. denied, 298 Conn. 929, 5 A.3d 489
(2010), cert. denied sub nom. Greene v. Arnone,
U.S. , 131 S. Ct. 2925, 179 L. Ed. 2d 1248 (2011).
In this case, the habeas court specifically found that
trial counsel had argued to the jury that the petitioner’s
semen was located on the backside of the underwear,
and, thus, that the petitioner had failed to prove that
counsel was deficient for failing to argue this. Addition-
ally, the habeas court found that the petitioner had not
presented any evidence that would show that the failure
to argue that the underwear belonged to the victim’s
mother and not to the victim constituted deficient per-
formance or caused him to suffer prejudice.2 We con-
clude that the petitioner has not demonstrated that
counsel’s representation fell below an objective stan-
dard of reasonableness.
Accordingly, after a thorough review of the record,
we conclude that the habeas court properly concluded
that the petitioner failed to sustain his burden of demon-
strating that his trial counsel rendered ineffective assis-
tance. The petitioner failed to establish that the issues
he raised are debatable among jurists of reason, that a
court could resolve them in a different manner or that
the questions he raised are adequate to deserve encour-
agement to proceed further. See Tutson v. Commis-
sioner of Correction, supra, 144 Conn. App. 215. We
conclude therefore that the court did not abuse its dis-
cretion in denying the petition for certification to appeal
from the judgment denying his amended petition for a
writ of habeas corpus.
The appeal is dismissed.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In his petition for certification to appeal, the petitioner requested ‘‘certifi-
cation to appeal the following legal issue[s]: (1) Whether the petitioner’s
constitutional right to the effective assistance of trial counsel was violated;
and (2) Whether the petitioner’s constitutional right to the effective assis-
tance of appellate counsel was violated; and (3) Whether the petitioner’s
constitutional rights were violated when the state engaged in prosecutorial
misconduct.’’ We note that the petitioner has not briefed any claims related
to the last two legal issues. Therefore, they are deemed abandoned.
2
The petitioner does not allege that there actually was evidence presented
during the criminal trial that the underwear belonged to the victim’s mother.
Additionally, although the petitioner argues that the underwear was a ‘‘size
8’’ and that it was too large to belong to the victim, during the habeas trial,
he neither asked the victim’s mother, nor attempted to ask the victim, about
the ownership of the underwear.