Haughey v. Commissioner of Correction

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NORMAN HAUGHEY v. COMMISSIONER
OF CORRECTION
(AC 38214)
DiPentima, C. J., and Beach and Westbrook, Js.
Argued March 9—officially released June 6, 2017
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Erica A. Barber, assigned counsel, for the appel-
lant (petitioner).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
former state’s attorney, and Rebecca A. Barry, assistant
state’s attorney, for the appellee (respondent).
Opinion
WESTBROOK, J. Following the habeas court’s denial
of his amended petition for a writ of habeas corpus, the
petitioner, Norman Haughey, appeals from the habeas
court’s denial of his petition for certification to appeal.
On appeal, the petitioner claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal because his mandatory sentence of life
imprisonment without the possibility of release violated
the requirement of individualized, proportionate sen-
tencing under the eighth amendment to the United
States constitution as articulated in Miller v. Alabama,
567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).1
The petitioner also claims, for the first time on appeal,
that his mandatory sentence of life without the possibil-
ity of release violates the Connecticut constitution. We
conclude that the habeas court did not abuse its discre-
tion in denying the petition for certification to appeal,
and, accordingly, we dismiss the appeal.
The facts underlying the petitioner’s conviction were
set forth previously by this court. ‘‘Sometime in the late
evening of December 1, 2003, the [petitioner] visited
the home of the victims, Donna Sosa and Mary Tomasi,
located on Albert Street in Hamden. The [petitioner]
was personally familiar with the victims, as his grand-
mother, with whom he occasionally shared a residence,
lived on Green Hill Road, which abutted the victims’
property. Intent on acquiring money to support his
crack cocaine addiction, the [petitioner] gained access
to the victims’ home and shortly thereafter attacked
Sosa in the kitchen, stabbing her repeatedly in the face,
neck and right shoulder. The [petitioner] then pro-
ceeded upstairs armed with a ten pound dumbbell
retrieved from the living room floor, where he found
Tomasi sleeping in her bedroom. After striking Tomasi
in the face with the dumbbell, fracturing her skull, the
[petitioner] searched through her purse, stealing cash
and several blank checks, which he later forged in an
attempt to acquire additional funds. Sosa and Tomasi
died from these attacks.
‘‘The [petitioner] subsequently was arrested and
charged with two counts of murder in violation of [Gen-
eral Statutes] § 53a–54a (a), two counts of felony mur-
der (burglary) in violation of [General Statutes]
§ 53a–54c and one count of capital felony in violation
of [General Statutes] § 53a–54b (7). A jury trial followed
and the [petitioner] was convicted on all counts. At
sentencing, the court merged the conviction of the mur-
der and felony murder charges with the capital felony
conviction, imposing a term of life imprisonment with-
out the possibility of release.’’ State v. Haughey, 124
Conn. App. 58, 60–61, 3 A.3d 980, cert. denied, 299
Conn. 912, 10 A.3d 529 (2010). This court affirmed the
petitioner’s convictions on appeal. Id., 75.
On July 1, 2011, the petitioner filed an initial petition
for a writ of habeas corpus, which he amended on
January 6, 2015. In his amended petition, the petitioner
raised three claims, alleging that (1) his trial counsel
rendered ineffective assistance of counsel; (2) his appel-
late counsel rendered ineffective assistance of counsel;
and (3) his life sentence without the possibility of
release is cruel and unusual punishment. The only claim
subject to this appeal, however, is the petitioner’s claim
that his mandatory life sentence violates the eighth
amendment’s prohibition against cruel and unusual
punishment. A trial on the merits was held before the
habeas court on April 7, 8, and 9, 2015. On June 30, 2015,
the habeas court issued a memorandum of decision,
denying the petitioner’s amended petition.
Thereafter, the petitioner filed a petition for certifica-
tion to appeal. After the court denied the petition for
certification to appeal, this appeal followed. Additional
facts will be set forth as necessary.
We begin by setting forth the ‘‘procedural hurdles
that the petitioner must surmount to obtain appellate
review of the merits of a habeas court’s denial of the
habeas petition following denial of certification to
appeal. In Simms v. Warden, 229 Conn. 178, 187, 640
A.2d 601 (1994), [our Supreme Court] concluded that
. . . [General Statutes] § 52-470 (b) prevents a
reviewing court from hearing the merits of a habeas
appeal following the denial of certification to appeal
unless the petitioner establishes that the denial of certi-
fication constituted an abuse of discretion by the habeas
court. In Simms v. Warden, 230 Conn. 608, 615–16, 646
A.2d 126 (1994), [our Supreme Court] 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 certification to appeal. This stan-
dard 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 adequate to deserve encourage-
ment to proceed further. . . . A petitioner who estab-
lishes an abuse of discretion through one of the factors
listed above must then demonstrate 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 reasonably determined that the peti-
tioner’s appeal was frivolous.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Castonguay v. Commissioner of Correction, 300 Conn.
649, 657–58, 16 A.3d 676 (2011).
I
The petitioner first claims that the habeas court
improperly concluded that he was not entitled to an
individualized, proportionate sentencing hearing, as
articulated in Miller, because he was twenty-five years
old at the time of the subject offenses. We conclude
that the court did not abuse its discretion in rejecting
the petition for certification to appeal with regard to
this claim.
The following facts and procedural history are rele-
vant to our discussion of this claim. At the habeas trial,
the petitioner argued that his sentence was cruel and
unusual punishment because he was not afforded an
individualized sentencing hearing as described in the
United States Supreme Court decision in Miller and our
Supreme Court’s decision in State v. Riley, 315 Conn.
637, 110 A.3d 1205 (2015), cert. denied, U.S. ,
136 S. Ct. 1361, 194 L. Ed. 2d 376 (2016). Although the
petitioner acknowledged that Miller and Riley pertain
to juvenile offenders, i.e., individuals under the age
of eighteen, he nonetheless argued that his youthful
characteristics were akin to that of a juvenile offender.
In support of his claim, the petitioner testified and
described his childhood and drug use. He testified to
being the victim of physical abuse and neglect through-
out his childhood. He also stated that he abused drugs
and began using steroids between the ages of eighteen
and nineteen. According to the petitioner, he took to
substance abuse to compensate for underlying issues
relating to his childhood that he was struggling with.
The petitioner expressed that he continued abusing
drugs until his arrest for the subject offenses.
In addition to the petitioner’s testimony, Patrick Nick-
oletti, Jonathan Raub, and Frank DiCataldo were called
as expert witnesses to describe adolescent brain devel-
opment, how substance abuse impacts that develop-
ment, and the specific circumstances of the petitioner’s
development. Nickoletti, a professor of psychology, dis-
cussed brain development during young adulthood.
Specifically, he discussed neurological development
during adolescence, presented scientific evidence relat-
ing to relevant risk factors that can impact early devel-
opment, and provided his assessment of the petitioner.
Nickoletti further testified that the characteristics that
put young adults at risk—impulsivity, recklessness, and
poor judgment—are connected to psychological
changes in the brain during development. Raub’s testi-
mony described the psychiatric and behavioral effects
of steroid abuse. According to Raub, a psychiatrist,
steroid abuse negatively impacts an individual’s cogni-
tive faculties. Finally, DiCataldo, a forensic psycholo-
gist, outlined the steps that the petitioner has taken to
overcome his addictions and his efforts to rehabilitate
while imprisoned.
In rejecting the petitioner’s claim, the habeas court
stated in relevant part: ‘‘It is not the duty of a trial court
to make new law; it is the duty of the trial court to
apply existing law. No matter how persuasive or inter-
esting the neuroscience [presented] by [the] petitioner
may be, the law is clear. Juvenile means under age
eighteen. That eighteen year limit is of recent vintage
with a change in the law made by the General Assembly
a few years ago. The proper venue, if there is to be a
change such as proposed by the petitioner, is not in a
trial court, but before the Connecticut legislature. If
such a change is enacted into law, then this and other
courts will have authority to take the action requested
by the petitioner. Until then, there is no such authority.’’
The habeas court also relied on the Washington Court
of Appeals’ decision in State v. Hart, 188 Wash. App. 453,
353 P.3d 253 (2015), in its analysis. The defendant in
Hart was in his twenties at the time of the charged
offense, and suffered from antisocial personality disor-
der and substance abuse. Id., 456. He raised an argument
akin to the petitioner’s argument in the present appeal,
i.e., his youthful characteristics warranted an individu-
alized sentencing determination as set forth in Miller,
despite being more than eighteen years old. Id., 460. In
support of that argument, the defendant urged the court
to ‘‘consider and apply the emerging neuroscience dis-
cussed in Miller to youthful offenders aged [eighteen
to twenty-five].’’ Id., 465. The defendant in Hart did not
present any authority in which a court has determined
that an offender in his twenties is a juvenile, and the
court rejected his claim. The habeas court ultimately
concluded that the holding in Hart was ‘‘highly persua-
sive and adopt[ed] the same reasoning.’’
On appeal, the petitioner is, in essence, challenging
the constitutionality of the relevant sentencing statute
imposing his mandatory sentence of life imprisonment
without the possibility of release.2 The standard of
review is well settled. ‘‘A challenge to [t]he constitution-
ality of a statute presents a question of law over which
our review is plenary.’’ (Internal quotation marks omit-
ted.) State v. Taylor G., supra, 315 Conn. 741.
With respect to the merits of the petitioner’s claim,
our discussion is primarily guided by the United States
Supreme Court’s decisions in Roper v. Simmons, 543
U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), Graham
v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d
825 (2010), and Miller v. Alabama, supra, 567 U.S. 460,
which established a set of rules governing the sentenc-
ing of juvenile offenders.3 That precedent recently was
addressed by our Supreme Court in State v. Taylor
G., supra, 315 Conn. 734, which involved a mandatory
minimum sentence imposed on a juvenile that allegedly
violated the eighth amendment’s prohibition against
cruel and unusual punishment and provided an over-
view of the guiding authority.
In Taylor G., our Supreme Court explained that
Roper, Graham, and Miller ‘‘recognized that, because
the eighth amendment prohibition against cruel and
unusual punishment is based on the principle that pun-
ishment should be graduated and proportioned to the
offender and the offense, courts must consider mitigat-
ing evidence of youth and immaturity when sentencing
juvenile offenders. Thus, applying this principle, the
death penalty is a disproportionate sentence for juvenile
offenders, regardless of the crime; see Roper v. Sim-
mons, supra, 543 U.S. 573–75; life imprisonment without
the possibility of [release] is a disproportionate sen-
tence for juveniles convicted of a nonhomicide crime;
Graham v. Florida, supra, 560 U.S. 74; and mandatory
life imprisonment without the possibility of [release] is
a disproportionate sentence for juveniles convicted of
a homicide, although a sentence of life imprisonment
without the possibility of [release] may be deemed
appropriate following consideration of the child’s age-
related characteristics and the circumstances of the
crime. See Miller v. Alabama, supra, [567 U.S. 478].’’
(Emphasis omitted.) State v. Taylor G., supra, 315 Conn.
743–44. ‘‘Graham, Roper, and [the court’s] individual-
ized sentencing decisions make clear that a judge or
jury must have the opportunity to consider mitigating
circumstances before imposing the harshest possible
penalty for juveniles. By requiring that all children con-
victed of homicide receive lifetime incarceration with-
out [the] possibility of [release], regardless of their age
and age-related characteristics and the nature of their
crimes, the mandatory sentencing schemes [at issue]
violate this principle of proportionality . . . .’’ (Empha-
sis omitted; internal quotation marks omitted.) Id., 744,
quoting Miller v. Alabama, supra, 489.
In the wake of Miller, our Supreme Court in State v.
Riley, supra, 315 Conn. 637, was tasked with determin-
ing ‘‘the constitutional parameters of when a life sen-
tence without parole may be imposed in the exercise
of the sentencing authority’s discretion on a juvenile
homicide offender.’’ Id., 640. Prior to Riley, ‘‘nothing in
our [state’s] sentencing scheme specifically required
the trial court . . . to consider, let alone give mitigating
weight to, the defendant’s age at the time of the offense
or the hallmarks of youth.’’ Id., 659. In Riley, our
Supreme Court applied Miller and held that a homicide
offender under the age of eighteen sentenced to 100
years imprisonment was entitled to a sentencing pro-
ceeding ‘‘that conforms to the dictates of Miller.’’ Id.,
661.
Here, the petitioner claims that he is entitled to the
same individualized sentencing proceeding as articu-
lated in Miller. Specifically, he argues that he is constitu-
tionally entitled to the same individualized sentencing
as that afforded to offenders under the age of eighteen
because the risk factors associated with imposing
unconstitutionally harsh sentences on juveniles remain
present through the age of twenty-five, the age at which
the petitioner committed the subject offenses. His argu-
ment, however, hinges on whether being older than
eighteen at the time of the subject offense is dispositive
under this analysis. We conclude that it is.
Expanding the application of Miller to offenders eigh-
teen years of age or older simply does not comport with
existing eighth amendment jurisprudence pertaining to
juvenile sentencing. The United States Supreme Court
in Miller held ‘‘that mandatory life without parole for
those under the age of [eighteen] at the time of their
crimes violates the Eighth Amendment’s prohibition
on cruel and unusual punishments.’’ (Emphasis added;
internal quotation marks omitted.) Miller v. Alabama,
supra, 567 U.S. 465. Furthermore, when limiting the
death penalty to offenders eighteen years of age or
older, the United States Supreme Court in Roper recog-
nized that ‘‘[d]rawing the line at [eighteen] years of age
is subject, of course, to the objections always raised
against categorical rules. The qualities that distinguish
juveniles from adults do not disappear when an individ-
ual turns [eighteen]. By the same token, some under
[eighteen] have already attained a level of maturity
some adults will never reach. . . . The age of [eigh-
teen] is the point where society draws the line for many
purposes between childhood and adulthood. It is, we
conclude, the age at which the line for death eligibility
ought to rest.’’ Roper v. Simmons, supra, 543 U.S. 574.
Miller and Roper, alone, appear to be dispositive on
this issue as both decisions contemplated and decided
that eighteen is the age at which the line is to be drawn
for juvenile sentencing for purposes of eighth amend-
ment analysis. Nonetheless, the Connecticut Supreme
Court also has recognized eighteen as the appropriate
benchmark in applying Miller. Specifically, our
Supreme Court in Riley and Taylor G. recognized that
juveniles were offenders under the age of eighteen.
State v. Riley, supra, 315 Conn. 640 n.1 (‘‘[w]e use the
term juvenile offenders to refer to persons who commit-
ted a crime when they were younger than eighteen years
of age’’); State v. Taylor G., supra, 315 Conn. 741 n.7,
(in discussing Graham, Miller, and Roper, court stated
that ‘‘[t]he term ‘juvenile offenders’ refers in all three
cases to offenders who were under the age of eighteen
when they committed their crimes’’). Moreover, other
courts applying Miller to similar sentencing schemes
also have recognized that juvenile offenders are individ-
uals that are under the age of eighteen at the time of
the offense.4
We further note one case in particular, United States
v. Marshall, 736 F.3d 492 (6th Cir. 2013), which involved
a claim similar to the petitioner’s claim here. The defen-
dant in Marshall claimed that his mandatory sentence
for possession of child pornography was unconstitu-
tional under the Supreme Court’s reasoning in Miller
due to his growth hormone deficiency. Id., 498. The
sentencing court was presented with expert testimony
explaining that ‘‘the adolescence period does not end
at [eighteen] but actually extends into an individual’s
[mid-twenties]’’ and that ‘‘the only way that [the defen-
dant was] not still a juvenile [was] his chronological
age.’’ (Internal quotation marks omitted.) Id., 496.
In rejecting the defendant’s argument and affirming
his mandatory five year sentence, the United States
Court of Appeals for the Sixth Circuit recognized that
‘‘[c]hronological age sets the boundaries for determin-
ing whether an individual is eligible to drive, vote,
marry, buy and drink alcohol, be drafted, watch certain
movies, and hold certain political offices. None of these
age-based privileges and responsibilities ignore chrono-
logical age in favor of mental age.’’ Id., 499. The court
also considered that ‘‘an approach that ignores chrono-
logical age in favor of other aspects of maturity should
cut both ways. Individuals under 18 with the mental
maturity of adults would have to be classified as adults
for purposes of the Eighth Amendment. This approach
is unthinkable; the Supreme Court would never accept
such an end-run around the constitutional protections
for chronological juveniles.’’ Id. Ultimately, the court
concluded that the defendant ‘‘is at the very most an
immature adult’’ and ‘‘[b]ecause [the defendant] is not a
juvenile, he does not qualify for the Eighth Amendment
protections accorded to juveniles.’’ Id., 500.
Although the evidence presented by the petitioner
suggests that some youthful characteristics remain pre-
sent after an individual reaches the age of eighteen, the
law is clear. Simply put, an offender who has reached
the age of eighteen is not considered a juvenile for
sentencing procedures and eighth amendment protec-
tions articulated in Miller. The petitioner has not pre-
sented any authority suggesting otherwise, and, to this
court’s knowledge, no federal court or state court in
this state or any other state has determined that an
offender in his or her mid-twenties is considered a juve-
nile for purposes of Miller.
In sum, the petitioner has failed to demonstrate that
the issues raised on appeal are debatable among jurists
of reason, that a court could resolve the issues in a
different manner, or that the questions raised deserve
encouragement to proceed further. Eighth amendment
jurisprudence relating to the sentencing of juvenile
offenders unequivocally recognizes a juvenile offender
as an individual who has not attained the age of eigh-
teen. Although nothing prevents a defendant from
arguing that characteristics of youth or immaturity
should be considered at sentencing, there simply is no
constitutional obligation imposed on the trial court to
consider such factors once an offender reaches the age
of eighteen. Thus, we conclude that the habeas court
did not abuse its discretion in denying the petitioner’s
petition for certification to appeal.
II
The petitioner next claims that his mandatory sen-
tence of life imprisonment without the possibility of
release violates the prohibition of cruel and unusual
punishment under the due process provisions contained
in article first, §§ 8 and 9 of the Connecticut constitu-
tion. For the following reasons, we decline to review
this claim.
As our standard of review set forth previously in this
opinion 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 discre-
tion in concluding that the petitioner’s appeal is frivo-
lous. 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 differ-
ently or the issues are adequate to deserve encourage-
ment 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, 144 Conn. App.
203, 216, 72 A.3d 1162, cert. denied, 310 Conn. 928, 78
A.3d 145 (2013).
The record reveals that the petitioner did not raise
the present state constitutional claim before the habeas
court. More importantly, the petitioner did not raise
that claim in his petition for certification to appeal, or
his application for waiver of fees, costs, expenses, and
his appointment of counsel on appeal. We cannot con-
clude that the court abused its discretion, as it relates
to this claim, because the petitioner did not raise this
claim when he requested that the court rule on his
petition for certification to appeal. See Mercado v. Com-
missioner of Correction, 85 Conn. App. 869, 872, 860
A.2d 270 (2004), cert. denied, 273 Conn. 908, 870 A.2d
1079 (2005). ‘‘This court has determined that a peti-
tioner cannot demonstrate that the habeas court abused
its discretion in denying a petition for certification to
appeal if the issue that the petitioner later raises on
appeal was never presented to, or decided by, the
habeas court. . . . Under such circumstances, a
review of the petitioner’s claims would amount to an
ambuscade of the [habeas] judge. . . . Because the
petitioner failed to raise this claim in his petition for
certification to appeal or in his application for waiver
of fees, costs and expenses and appointment of counsel
on appeal, we decline to afford it review. . . . Perry
v. Commissioner of Correction, 131 Conn. App. 792,
796–97, 28 A.3d 1015 (petitioner’s claim that trial court
issued oral decision from bench in absence of counsel
not reviewable when claim not raised in petition for
certification to appeal), cert. denied, 303 Conn. 913, 32
A.3d 966 (2011); see also Melendez v. Commissioner
of Correction, 141 Conn. App. 836, 841, 62 A.3d 629
(2013) (improper to consider issues not raised distinctly
before habeas court in petition for certification to
appeal); Campbell v. Commissioner of Correction, 132
Conn. App. 263, 267, 31 A.3d 1182 (2011) (consideration
of issues not distinctly raised in petition for certification
to appeal would amount to ambuscade of habeas
judge).’’ (Emphasis in original; internal quotation marks
omitted.) Tutson v. Commissioner of Correction,
supra, 144 Conn. App. 217. In light of the foregoing, we
decline to review this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The United States Supreme Court’s decision in Miller v. Alabama, supra,
567 U.S. 460, is one of several decisions that determined that sentencing
schemes imposing harsh punishments on juveniles is cruel and unusual
punishment. Specifically, the court in Miller held that mandatory sentencing
schemes that impose a life sentence without the possibility of release on
juvenile homicide offenders without conducting an individualized sentencing
hearing at which the trial court may consider mitigating factors associated
with adolescence is cruel and unusual punishment. Id., 465.
2
The petitioner was sentenced pursuant to General Statutes § 53a-35a.
3
The term ‘‘juvenile offenders’’ refers in all three cases to offenders who
were under the age of eighteen when they committed their respective crimes.
4
Examples of these decisions are numerous and were noted in the brief
of the respondent, the Commissioner of Correction. See, e.g., United States
v. Schill, 740 F.3d 1347, 1349 (9th Cir. 2014) (mandatory sentence on forty-
five year old defendant did not require individualized sentence because
defendant ‘‘not a juvenile’’); United States v. Reingold, 731 F.3d 204, 215
(2d Cir. 2013) (developmentally immature nineteen year old nonetheless
considered adult for purposes of Miller); United States v. Heaton, 549 Fed.
Appx. 835, 836, 838 (11th Cir. 2013) (failing to consider sexual abuse and post-
traumatic stress disorder of thirty-eight year old defendant during sentencing
accords with Miller).