Howard v. Commissioner of Correction

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COREY HOWARD v. COMMISSIONER
OF CORRECTION
(AC 34789)
Beach, Bear and Schaller, Js.*
Argued April 8—officially released July 22, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Dennis P. McDonough, assigned counsel, for the
appellant (petitioner).
Rita M. Shair, senior assistant state’s attorney, with
whom, were Kevin D. Lawlor, state’s attorney, and, on
the brief, Erika L. Brookman, assistant state’s attorney,
for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Corey Howard, 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. We
dismiss the appeal.
The following facts, as recited by the habeas court,
and procedural history are relevant to this appeal. On
November 27, 2002, the petitioner was in the Olson
Drive area of Ansonia selling drugs when he was
accosted by the victim and another male, who appar-
ently were unhappy that the petitioner was selling drugs
in that neighborhood. Words were exchanged, and,
according to one witness, the victim punched the peti-
tioner in the face and the second male reached toward
his waistband, appearing as if he were reaching for a
weapon, and then grabbed the petitioner by the arm.
The petitioner broke free, pulled out a handgun and
shot the victim. After the shooting, the petitioner said,
‘‘[t]hat’s what . . . you get for rolling up on me!’’
Another witness provided a similar story of overhearing
a verbal dispute over a drug sale, but did not report
seeing any physical assault prior to seeing the petitioner
shoot the victim.
In September, 2003, the petitioner pleaded guilty pur-
suant to the Alford doctrine1 to manslaughter in the
first degree with a firearm in violation of General Stat-
utes § 53a-55a (a) and possession of a pistol without
a permit in violation of General Statutes § 29-35 (a).
Pursuant to the terms of a plea arrangement, the court
sentenced the petitioner to thirty-five years incarcera-
tion, execution suspended after twenty-four years, five
years of which were a mandatory minimum, and five
years probation.
The petitioner filed a petition for a writ of habeas
corpus alleging, inter alia, ineffective assistance of trial
counsel for failure to advise him properly about the
viability of a self-defense claim. The habeas court deter-
mined that the petitioner’s claim that his trial counsel
did not discuss a self-defense claim involved an assess-
ment of credibility. The court concluded that the peti-
tioner had not proven that counsel’s performance was
deficient. The court explained that the petitioner’s ver-
sion of events was ‘‘simply unbelievable and the peti-
tioner [lacked] even the slightest scent of credibility
. . . .’’ The court credited the testimony of the petition-
er’s trial counsel who testified that he had explained
to the petitioner that he had a good self-defense claim,
but that the petitioner ‘‘ ‘felt so horrible about the situa-
tion that that’s not the route he wanted to go.’ ’’ The
petitioner filed a petition for certification to appeal,
which was denied. This appeal followed.
On appeal, the petitioner claims that the court abused
its discretion in denying his petition for certification to
appeal and that the court erred in determining that he
had not received ineffective assistance of counsel. We
are not persuaded.
‘‘Faced with the habeas court’s denial of certification
to appeal, a petitioner’s first burden is to demonstrate
that the habeas court’s ruling constituted an abuse of
discretion. . . . If the petitioner succeeds in sur-
mounting that hurdle, the petitioner must then demon-
strate that the judgment of the habeas court should be
reversed on its merits. . . . To prove an abuse of dis-
cretion, the petitioner must demonstrate that the [reso-
lution 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 encouragement to
proceed further. . . . If this burden is not satisfied,
then the claim that the judgment of the habeas court
should be reversed does not qualify for consideration by
this court.’’ (Citation omitted; internal quotation marks
omitted.) Spyke v. Commissioner of Correction, 145
Conn. App. 419, 423, 75 A.3d 738, cert. denied, 310 Conn.
932, 78 A.3d 858 (2013).
‘‘A claim of ineffective assistance of counsel consists
of two components: a performance prong and a preju-
dice prong. . . . The claim will succeed only if both
prongs are satisfied.’’ (Internal quotation marks omit-
ted.) Bryant v. Commissioner of Correction, 290 Conn.
502, 510, 964 A.2d 1186, cert. denied sub nom. Murphy
v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d
242 (2009).
The habeas court did not credit the petitioner’s testi-
mony that trial counsel had not advised him of the
viability of a self-defense claim, and credited his trial
counsel’s testimony to the contrary. The habeas judge
is the ‘‘sole arbiter of the credibility of witnesses and
the weight to be given to their testimony.’’ (Internal
quotation marks omitted.) Davis v. Commissioner of
Correction, 140 Conn. App. 597, 602, 59 A.3d 403, cert.
denied, 308 Conn. 920, 62 A.3d 1133 (2013). Given the
facts, as found by the habeas court, that the petitioner’s
trial counsel advised him of the viability of a self-
defense claim and that it was the petitioner’s choice
not to pursue it, we conclude that the petitioner cannot
prevail on his claim that the habeas court abused its
discretion in denying certification to appeal. The peti-
tioner has not proven that the issue is debatable among
jurists of reason, that a court could resolve the issue
in a different manner, or that the questions are adequate
to deserve encouragement to proceed further.
The appeal is dismissed.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).