Wilson v. Commissioner of Correction ( 2014 )

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CRAIG WILSON v. COMMISSIONER
OF CORRECTION
(AC 34400)
DiPentima, C. J., and Beach and Bear, Js.
Submitted on briefs March 14—officially released May 6, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Kinga A. Kostaniak, assigned counsel, filed a brief
for the appellant (petitioner).
John C. Smriga, state’s attorney, and Nancy L. Chu-
pak and Nicholas J. Bove, Jr., senior assistant state’s
attorneys, filed a brief for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Craig Wilson, 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. The petitioner
claims that the habeas court (1) abused its discretion
in denying certification to appeal, (2) improperly deter-
mined that his trial counsel, Attorney Jeffrey LaPierre,
provided effective assistance, and (3) improperly deter-
mined that his appellate counsel, Attorney Norman A.
Pattis and Attorney Kimberly Coleman,1 provided effec-
tive assistance. Because we conclude that the court
properly denied certification to appeal, we dismiss
this appeal.
A jury found the petitioner guilty of six narcotics
related offenses. See State v. Wilson, 111 Conn. App.
614, 616, 960 A.2d 1056 (2008), cert. denied, 290 Conn.
917, 966 A.2d 234 (2009). This court affirmed the convic-
tion, and our Supreme Court denied certification to
appeal. Id. On September 29, 2011, the petitioner filed
a three count amended petition for a writ of habeas
corpus. In count one, he alleged that LaPierre provided
ineffective assistance of trial counsel in a variety of
ways. In count two, the petitioner claimed that Pattis
provided ineffective assistance of appellate counsel. In
count three, the petitioner set forth a claim of prosecu-
torial impropriety, namely, that the prosecutor had
failed to disclose evidence during the criminal trial. At
the one day habeas trial, Pattis, LaPierre, the petitioner,
Coleman, and Senior Assistant State’s Attorney Brian
Kennedy, the prosecutor in the underlying criminal
trial, testified.
On January 30, 2012, the court issued a memorandum
of decision denying the habeas petition. It determined
that the petitioner had raised three claims against LaPie-
rre: First, he failed to conduct an adequate investigation
into various aspects of the case, specifically, with
respect to potential witnesses and defenses; second, he
failed to advise the petitioner adequately regarding plea
negotiations, the evidence possessed by the state and
available defenses; and third, he failed to present excul-
patory evidence and witnesses. In rejecting these
claims, the court credited the testimony of LaPierre
that he had made significant investigatory efforts with
respect to the facts of the case and the petitioner’s
claim of actual innocence. It also found that LaPierre
had engaged in pretrial negotiations with the prosecu-
tor, but that the petitioner had rejected the state’s offer
of a sentence of five years imprisonment2 because he
claimed that he was innocent. The court also accepted
LaPierre’s explanation of the strategic decisions made
during the course of the petitioner’s criminal trial. It
concluded that LaPierre’s performance was not defi-
cient, and therefore it did not address the issue of preju-
dice. See Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Gregory v.
Commissioner of Correction, 111 Conn. App. 430, 434,
959 A.2d 633 (2008), cert. denied, 290 Conn. 906, 962
A.2d 794 (2009).
The court then summarized the petitioner’s allega-
tions in count two of the habeas petition as ‘‘generalized
claims that appellate counsel failed to raise all possible
issues, failed to adequately research all issues and failed
to adequately brief the claims and issues for appeal.’’
(Internal quotation marks omitted.) It credited the testi-
mony of Pattis and Coleman that they reviewed the
record, conducted legal research and appealed three
issues that they believed presented the best opportunity
to prevail. Ultimately, the court determined that the
petitioner’s claims regarding the performance of his
appellate counsel ‘‘lack[ed] any merit whatsoever.’’3
Finally, the court concluded that the petitioner’s
claim of prosecutorial impropriety was abandoned by
the petitioner. ‘‘The petitioner failed to present any evi-
dence . . . on the subject of the existence of any excul-
patory evidence or other reports that the state’s
attorney is supposed to have failed to turn over to his
trial counsel.’’ The court denied the petition for a writ
of habeas corpus, and, on February 14, 2014, it denied
the petition for certification to appeal. This appeal
followed.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his 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 must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . Sec-
ond, if the petitioner can show an abuse of discretion,
he must then prove that the decision of the habeas
court should be reversed on the merits. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling . . . [and]
[r]eversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done.’’ (Citations omitted; internal quotation marks
omitted.) Perry v. Commissioner of Correction, 131
Conn. App. 792, 795–96, 28 A.3d 1015, cert. denied, 303
Conn. 913, 32 A.3d 966 (2011).
After a careful review of the record and briefs, we
conclude that the petitioner has failed to sustain his
substantial burden of establishing that the habeas court
abused its discretion in denying certification to appeal.
See Sadler v. Commissioner of Correction, 132 Conn.
App. 335, 338, 31 A.3d 833 (2011), cert. denied, 304
Conn. 912, 40 A.3d 318 (2012). The arguments set forth
in the petitioner’s brief have not shown that the issues
raised on appeal are debatable among jurists of reason,
that they could be resolved in a different manner or
that they deserve encouragement to proceed further.
See Skelly v. Commissioner of Correction, 127 Conn.
App. 721, 723, 14 A.3d 1080 (2011).
The appeal is dismissed.
1
We note that Coleman is not mentioned in the operative petition for a
writ of habeas corpus. The habeas court’s memorandum of decision interpre-
ted the petition to include Coleman in the claims of ineffective assistance
of appellate counsel, as do the parties’ appellate briefs. We follow this path
in our opinion.
2
Following the jury’s verdict of guilty, the court sentenced the petitioner
to a total effective term of thirty years imprisonment, suspended after twenty-
six years, followed by five years probation.
3
The habeas court did not reach the issue of whether the petitioner
suffered any prejudice as a result of the performance of appellate counsel.