Millan v. Commissioner of Correction

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CRISTOBAL MILLAN v. COMMISSIONER OF
CORRECTION
(AC 35497)
Alvord, Mullins and Bear, Js.
Argued November 13, 2014—officially released January 13, 2015
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
James P. Sexton, assigned counsel, for the appel-
lant (petitioner).
Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Cristobal Millan,
appeals following the habeas court’s denial of his peti-
tion for certification to appeal from the judgment deny-
ing his second amended petition for a writ of habeas
corpus. The petitioner claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal and improperly determined that he failed
to demonstrate that his trial counsel had provided inef-
fective assistance of counsel. We dismiss the petition-
er’s appeal.
The following facts and procedural history are rele-
vant to this appeal. On the evening of March 21, 2005,
Darren Madison and Lamarr Sands, Madison’s former
friend with whom he had had a falling out, were, by
coincidence, staying in adjoining rooms at the Super 8
Motel in Waterbury (motel). State v. Millan, 290 Conn.
816, 819, 966 A.2d 699 (2009). Madison and Sands
encountered each other at the motel, and a heated argu-
ment ensued. Id. Madison then left the motel after mak-
ing a remark that he was going to come back after
getting his ‘‘ ‘boys.’ ’’ Id. Madison’s comment was over-
heard by the victim, Jeffrey Smith, who was visiting
Sands at the motel. Id. The victim decided to stay at
the motel because he was concerned that Sands would
be outnumbered in a potential fight upon Madison’s
return. Id.
After leaving the motel, Madison picked up the peti-
tioner in his car. Id. The petitioner accompanied Madi-
son back to the motel, where three other people with
whom the petitioner was associated joined them. Id.,
819–20. The group stood outside Sands’ room; at least
one member of the group banged on Sands’ door and
taunted him to come out. Id., 820. In response, Sands
exited his room and proceeded into the hallway. Id.
At that point, Madison and Sands began to fight. Id.
During the fight between Madison and Sands, the victim
attempted to stop the group from intervening. Id. In
response, the petitioner swung his fist at the victim, and
the two began a physical struggle. Id. At the inception of
the fight, the victim grabbed the petitioner and held
him in a ‘‘ ‘reverse headlock’ ’’ while he punched the
petitioner with uppercut blows, bloodying the petition-
er’s nose. Id. As the fight progressed, the two men fell
to the floor, which caused a pause in the fighting. Id.
The petitioner then got onto his feet, looked in a mirror,
saw his bloodied nose, and pulled out a box cutter from
his pocket. Id. The fight resumed, and subsequently
ended with the victim on the ground and the petitioner
repeatedly slashing the victim with the box cutter. Id.,
820–21. The petitioner later testified that he had acted
in self-defense when he slashed the victim. Id., 822.
During the petitioner’s criminal trial, over his objec-
tion, the state introduced prior misconduct evidence,
through the testimony of Sands and his girlfriend, of a
previous incident involving the petitioner and Madison.
Id., 821–22. This incident occurred in early 2005 when
Sands and his girlfriend were sitting in a car and another
car, driven by Madison, pulled alongside them. Id., 822.
The petitioner and another male got out of Madison’s
car and pulled Sands from his car onto the ground. Id.
The petitioner and the other male proceeded to assault
Sands, and took his gold bracelet and money. Id. During
the incident, Madison laughed while watching from his
car. Id.
Following a jury trial, the petitioner was convicted
of assault in the first degree in violation of General
Statutes § 53a-59 (a) (1) and conspiracy to commit
assault in the first degree in violation of General Stat-
utes §§ 53a-48 and 53a-59 (a) (1). Id., 818. Our Supreme
Court affirmed the petitioner’s conviction on direct
appeal. Id.
Thereafter, the petitioner filed a second amended
petition for a writ of habeas corpus in which the peti-
tioner alleged that his trial counsel provided inadequate
assistance. Specifically, the petitioner alleged in his
amended petition, inter alia, that his trial counsel ‘‘failed
to object to prior misconduct [evidence].’’
At the habeas trial on the second amended petition,
the petitioner’s trial counsel testified that he, in fact,
had objected to the admission of uncharged prior mis-
conduct evidence during the petitioner’s criminal trial,
but that those objections were overruled. The petitioner
testified at the habeas trial that his attorney indeed had
objected to the admission of prior misconduct evidence
at the criminal trial, and that the evidence was admit-
ted nonetheless.
After the presentation of evidence concluded, the
court addressed the petitioner’s habeas counsel specifi-
cally and stated: ‘‘[T]here doesn’t seem to be any dispute
that trial counsel objected to the bad act evidence com-
ing in. It came in because the trial court overruled
that objection. Right?’’ The petitioner’s habeas counsel
responded, ‘‘Correct.’’ The court additionally asked the
petitioner’s habeas counsel: ‘‘You have a claim here
that trial counsel failed to object to the misconduct
evidence. Is that a claim you’re still making? [Trial coun-
sel] did say he did object and the court overruled it.’’
The petitioner’s habeas counsel conceded, ‘‘He did.’’
The court, accordingly, stated that it was rejecting the
petitioner’s claim that his attorney failed to object to
prior misconduct evidence.
Ultimately, the habeas court concluded that the peti-
tioner had failed to demonstrate that counsel’s perfor-
mance was deficient or that the petitioner suffered
prejudice and, accordingly, denied the petition for a
writ of habeas corpus. See Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Then, the petitioner filed a petition for certification to
appeal. The court denied that petition. This appeal
followed.
‘‘The standard of review for a habeas court’s denial
of a petition for certification to appeal requires the
petitioner to prove that the denial of the petition for
certification was 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 different manner];
or that the questions are adequate to deserve encourage-
ment to proceed further. . . . In a habeas appeal, this
court cannot disturb the underlying facts found by the
habeas court unless they are clearly erroneous, but our
review of whether the facts as found by the habeas court
constituted a violation of the petitioner’s constitutional
right to effective assistance of counsel is plenary.’’ (Cita-
tion omitted; internal quotation marks omitted.) Norton
v. Commissioner of Correction, 132 Conn. App. 850,
853–54, 33 A.3d 819, cert. denied, 303 Conn. 936, 36
A.3d 695 (2012).
In the present case, the only claim advanced by the
petitioner in his second amended petition with respect
to the prior misconduct evidence is that his trial counsel
failed to object to that evidence. That is the claim on
which the habeas court ruled. On appeal, however, the
petitioner does not allege that the habeas court abused
its discretion in denying certification to appeal on the
ground that the resolution of his claim—that his trial
counsel failed to object to the prior misconduct evi-
dence—is debatable among jurists of reason or could
be resolved differently by another court.
Instead, the petitioner raises different claims from
the one presented to the habeas court. He now claims
that his trial counsel provided ineffective assistance in
handling the state’s introduction of the prior miscon-
duct evidence because he ‘‘failed to object competently’’
to that evidence and that the objection raised was ‘‘on
overly narrow grounds.’’ Specifically, the petitioner
asserts that his attorney failed: to argue adequately that
the testimony linking the petitioner with prior miscon-
duct was inadmissible hearsay; to make a sufficiently
broad objection on prejudice grounds; to request that
the state’s witnesses be subjected to voir dire before
testifying about the prior misconduct; and to draft a
written objection to the state’s intended use of the mis-
conduct evidence. In sum, although the petition alleged
that trial counsel failed to object at all, on appeal the
petitioner now argues that trial counsel did object, but
the objection itself was lacking.
The petitioner’s appeal founders because he is raising
claims that he never raised before the habeas court.
Indeed, this court has held that ‘‘a court [cannot] abuse
its discretion in failing to grant a petitioner certification
to appeal to challenge an issue that was not first pre-
sented to the [habeas] court and then ruled on by it.’’
Mitchell v. Commissioner of Correction, 68 Conn. App.
1, 7, 790 A.2d 463, cert. denied, 260 Conn. 903, 793
A.2d 1089 (2002); see also Foote v. Commissioner of
Correction, 151 Conn. App. 559, 571, 96 A.3d 587 (Keller,
J., concurring) (‘‘a petitioner is unable to demonstrate
that a habeas court abused its discretion in denying
a petition for certification to appeal on the basis of
questions that were not raised distinctly before the
habeas court at the time that it considered the petition
for certification to appeal’’), cert. denied, 314 Conn.
929, A.3d (2014). Accordingly, because the habeas
court never was presented with and, consequently,
never ruled on the claims that the petitioner now raises
on appeal, we are unable to conclude that the habeas
court abused its discretion in denying the petition for
certification.
The appeal is dismissed.