Allen v. Commissioner of Correction ( 2016 )

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ANTHONY ALLEN v. COMMISSIONER
OF CORRECTION
(AC 36362)
Beach, Sheldon and Mullins, Js.
Argued April 11—officially released August 30, 2016
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
James P. Sexton, assigned counsel, with whom was
Marina L. Green, assigned counsel, for the appellant
(petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Angela Macchiarulo, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
SHELDON, J. The petitioner, Anthony Allen, appeals
from the judgment denying his petition for certification
to appeal from the habeas court’s denial of his petition
for a writ of habeas corpus. The petitioner claims that
the court abused its discretion in denying his petition
for certification because the record before it clearly
established that counsel at his criminal trial rendered
ineffective assistance by failing to make a timely request
that his jury be polled to assure the unanimity of its
verdict. We disagree and thus dismiss the appeal.
The following procedural history is relevant to this
appeal. The petitioner was charged with and convicted,
after a jury trial, of capital felony in violation of General
Statutes §§ 53a-54b (8) and 53a-8 (a), murder in viola-
tion of General Statutes §§ 53a-54a and 53a-8 (a), con-
spiracy to commit murder in violation of General
Statutes §§ 53a-48 (a) and 53a-54a, attempt to commit
assault in the first degree in violation of General Stat-
utes §§ 53a-49 (a) (2) and 53a-59 (a) (5), and conspiracy
to commit assault in the first degree in violation of
§§ 53a-48 (a) and 53a-59 (a) (5).
Our Supreme Court affirmed the petitioner’s convic-
tions on direct appeal. State v. Allen, 289 Conn. 550,
958 A.2d 1214 (2008). In his direct appeal, the petitioner
claimed, inter alia, that the trial court had improperly
denied his request to poll the jury. The Supreme Court
rejected the petitioner’s claim on the ground that his
request to poll the jury had been untimely. Id., 580.
The petitioner thereafter filed this petition for a writ
of habeas corpus alleging that his criminal trial counsel
had been ineffective in failing to make a timely request
that his jury be polled. The habeas court held a hearing
on the petition, at which the court asked the petitioner’s
habeas counsel, Joseph Visone, how the petitioner had
been prejudiced by his trial counsel’s allegedly deficient
failure to timely request a jury poll. Visone cited State
v. Pare, 253 Conn. 611, 755 A.2d 180 (2000), for the
proposition that the denial of a timely request to poll
a jury is ‘‘per se reversible’’ error. Upon further inquiry
by the court, however, Visone conceded that the rule
enunciated in Pare applies only to timely requests to
poll and, because there had been no such request in
this case, he could not prove that the petitioner was
prejudiced by trial counsel’s failure to timely request a
jury poll. He explained, ‘‘I can prove the first prong of
Strickland, but, again, the second prong of Strickland
is difficult to prove because . . . [w]e don’t know what
[the jurors] would have said. Now it’s too late to ask
them because . . . you have to poll them before they’re
dismissed, so they’re not corrupted.’’ The court then
specifically asked Visone, ‘‘You’re not making an argu-
ment that there’s some per se violation?’’ Visone
responded, ‘‘Only if the polling is . . . timely . . . .’’
The habeas court thus denied the petition ‘‘for failure
to prove the prejudice [prong]’’ of ineffective assistance
of counsel. The petitioner thereafter petitioned for certi-
fication to appeal. Upon the denial of his petition, he
filed this appeal.
‘‘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. . . .
‘‘In order to establish an ineffective assistance of
counsel claim a petitioner must meet the two-pronged
test enunciated in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifi-
cally, the claim must be supported by evidence estab-
lishing that (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) counsel’s
deficient performance prejudiced the defense because
there was a reasonable probability that the outcome of
the proceedings would have been different had it not
been for the deficient performance. . . . Because both
prongs of Strickland must be demonstrated for the
petitioner to prevail, failure to prove either prong is
fatal to an ineffective assistance claim. . . . In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) Myers v. Commis-
sioner of Correction, 164 Conn. App. 1, 10–12, 134 A.3d
237 (2016).
The petitioner claims on appeal that the habeas court
erred in denying his petition on the merits based upon
his failure to prove that he had been prejudiced by
his trial counsel’s failure to timely request a jury poll
because the prejudice prong ‘‘is presumed . . . . satis-
fied where there is a basis for believing that the jury may
not have been unanimous and trial counsel’s motion to
poll the jury was not timely.’’1 In response, the respon-
dent, the Commissioner of Correction, argues, inter alia,
that the petitioner waived this claim before the habeas
court, as demonstrated by the previously quoted state-
ments by his habeas counsel. We agree with the
respondent.
‘‘[W]aiver is [t]he voluntary relinquishment or aban-
donment—express or implied—of a legal right or
notice. . . . In determining waiver, the conduct of the
parties is of great importance. . . . [W]aiver may be
effected by action of counsel. . . . When a party con-
sents to or expresses satisfaction with an issue at trial,
claims arising from that issue are deemed waived and
may not be reviewed on appeal. . . . Thus, [w]aiver
. . . involves the idea of assent, and assent is an act
of understanding.’’ (Internal quotation marks omitted.)
State v. Thompson, 146 Conn. App. 249, 259-60, 76 A.3d
273 (2013). ‘‘When a party affirmatively waives a claim
at trial, we generally do not afford review of that claim
on appeal . . . .’’ Id., 262.
Here, Visone conceded that he could not prove that
the petitioner had been prejudiced by trial counsel’s
failure to timely request a jury poll. Visone also explic-
itly acknowledged that prejudice is presumed only if a
request to poll is timely, and that there had been no such
timely request in this case. Because Visone affirmatively
waived the claim of presumed prejudice, or prejudice
on any other basis, we conclude that the habeas court
properly denied the petition for a writ of habeas corpus
and thus that the court did not abuse its discretion in
denying the petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Because the habeas court denied the petition on the basis of the petition-
er’s failure to prove prejudice, our review on appeal is confined to that
determination, and the issue of whether the petitioner satisfied the first
prong of Strickland is not before us.