Haywood v. Commissioner of Correction

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
DAVID HAYWOOD v. COMMISSIONER OF
CORRECTION
(AC 41677)
Keller, Bright and Flynn, Js.
Syllabus
The petitioner, who had been convicted of, inter alia, felony murder and
robbery in the first degree as an accessory, filed a second petition for
a writ of habeas corpus, claiming that his prior habeas counsel, D, and
his original appellate counsel, F, had provided ineffective assistance.
The habeas court rendered judgment denying the habeas petition. There-
after, the court denied the petition for certification to appeal, and the
petitioner appealed to this court. On appeal, he claimed that the habeas
court improperly concluded that he was not denied the effective assis-
tance of counsel by D with respect to D’s efforts to establish that F was
ineffective. Although F, in a petition for certification to appeal to our
Supreme Court, claimed that it was improper for this court in the petition-
er’s direct appeal to order that the trial court modify the petitioner’s
conviction of robbery in the first degree as an accessory to a conviction
of accessory to attempt to commit robbery in the first degree, he failed
to include a citation to State v. Sanseverino (287 Conn. 608) (Sansever-
ino I), in which our Supreme Court, after reversing the defendant’s
kidnapping conviction, noted the possibility that the state could ask the
court to modify the defendant’s conviction to the lesser included offense
of unlawful restraint in the second degree. The petitioner also claimed
that F was ineffective in failing, while the petition was pending in our
Supreme Court, to file a motion for reconsideration in this court regard-
ing the modification issue after our Supreme Court officially released
its decision in Sanseverino I. He further claimed that D was deficient
in the petitioner’s first habeas trial because he failed to point out suffi-
ciently F’s errors, and because he failed to advance the legal analyses
set forth in the concurring opinion by Chief Justice Rogers in State v.
Sanseverino (291 Conn. 574) (Sanseverino II), which questioned the
wisdom of allowing the modification of a defendant’s conviction to a
lesser included offense, where a jury instruction on the lesser included
offense was not provided by the court, in future cases that do not share
the unique circumstances of that case. Finally, he claimed that F was
ineffective for failing to make the argument against modification of the
petitioner’s judgment based on his acquittal due to insufficient evidence
and the lack of a jury instruction on the lesser included offense, similar
to the way in which the appellate attorney had successfully raised a
similar claim in State v. LaFleur (307 Conn. 115), which concluded that
the facts and procedural history of that defendant’s case were sufficiently
different than those in Sanseverino II to preclude modification of the
defendant’s conviction of assault in the first degree to the lesser included
offense of assault in the second degree. Held that the habeas court did
not abuse its discretion in denying the petition for certification to appeal:
in the petitioner’s first habeas case, D did claim that F should have filed
a motion for reconsideration with this court in the petitioner’s direct
appeal, the possible relevance of the Sanseverino I, Sanseverino II, and
LaFleur cases was raised by D and considered by the habeas court, the
petitioner’s expert witness in the first habeas case testified concerning
Sanseverino II and why he believed that it was relevant to the petitioner’s
case, and on appeal from the habeas court’s decision in the first habeas
case, the petitioner, in support of his claim that F was ineffective by
not filing a motion for reconsideration with this court in the petitioner’s
direct appeal, fully addressed all three cases in his appellate brief to
this court, which rejected the claim, and, thus, the petitioner could not
establish prejudice with respect to that claim; moreover, the petitioner
could not establish prejudice with respect to his claim that D provided
ineffective assistance by failing to claim that F was ineffective on direct
appeal when he did not rely on Sanseverino I in his petition for certifica-
tion to appeal to our Supreme Court, as the petitioner could not establish
that there was a reasonable probability that, if F had cited to Sanseverino
I in his petition for certification to appeal to our Supreme Court, certifica-
tion would have been granted and the outcome of his appeal would
have been different, the petitioner having failed to establish that there
was a reasonable likelihood that our Supreme Court was unaware or
unmindful of its then very recent decision in Sanseverino I when it
denied the petition for certification to appeal.
Argued October 9—officially released December 10, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Vishal K. Garg, with whom, on the brief, were Steph-
anie L. Evans, assigned counsel, and David Haywood,
self-represented, for the appellant (petitioner).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Kevin T. Kane, chief state’s
attorney, and Jo Anne Sulik, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
BRIGHT, J. In this habeas on a habeas,1 the petitioner,
David Haywood, appeals following the denial of his
petition for certification to appeal from the judgment
of the habeas court denying his second petition for a
writ of habeas corpus. On appeal, the petitioner claims
that the habeas court abused its discretion in denying
his petition for certification to appeal and improperly
concluded that he was not denied the effective assis-
tance of previous habeas counsel, Attorney Mark Dia-
mond, with respect to Attorney Diamond’s efforts to
establish the ineffective assistance of original appellate
counsel, Attorney Glenn W. Falk.
The petitioner’s claim relates to his dissatisfaction
with how Attorney Falk challenged on appeal the peti-
tioner’s convictions for robbery in the first degree as
an accessory and felony murder. See State v. Haywood,
109 Conn. App. 460, 464–66, 952 A.2d 84, cert. denied,
289 Conn. 928, 958 A.2d 161 (2008). After his criminal
trial, the petitioner was convicted of participating in a
robbery that led to the murder of the victim. Id., 464.
In the direct appeal from the petitioner’s judgment of
conviction, Attorney Falk argued that the conviction
could not stand because there was insufficient evidence
of a completed robbery. Id. The state agreed that the
evidence supported only an attempted robbery, but it
argued that in finding the petitioner guilty of a com-
pleted robbery, the jury necessarily found the petitioner
guilty of attempt to commit robbery. See id., 465–66.
Because attempt to commit robbery is a felony that can
be the basis of a felony murder conviction, the state
asked that this court order the modification of the peti-
tioner’s conviction of robbery to attempt to commit
robbery and that the felony murder conviction be
affirmed. Id., 464–65. This court also addressed the
claim that the judgment should not be modified because
the jury in the petitioner’s trial was never charged on
the elements of attempt to commit robbery. Id., 466–67
n.3. This court agreed with the state and reversed only
the robbery conviction and remanded the case to the
trial court with direction to modify the judgment to
reflect a conviction of attempt to commit robbery. Id.,
464–66, 477.2
The petitioner argues in this appeal that Attorney Falk
performed deficiently in the petitioner’s direct appeal
because, when he addressed in the petition for certifica-
tion to appeal to our Supreme Court this court’s deci-
sion that the petitioner’s robbery conviction should be
modified, he failed to include a citation to State v.
Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008)
(Sanseverino I),3 and failed, while the petition for certi-
fication was pending in our Supreme Court, to file a
motion for reconsideration in this court regarding the
modification issue after our Supreme Court officially
released its decision in Sanseverino I. He further argues
that Attorney Diamond performed deficiently in the
petitioner’s first habeas trial because he failed to point
out sufficiently Attorney Falk’s errors.
In Sanseverino I, our Supreme Court, after reversing
the defendant’s kidnapping conviction, noted, but did
not address, the possibility that the state could ask the
court to modify the defendant’s conviction to the lesser
included offense of unlawful restraint in the second
degree. Id., 625–26 and n.16. According to the petitioner,
in the present case, had Attorney Falk discussed the
modification issue in light of the then recently decided
Sanseverino I, there was a reasonable probability that
this court would have reconsidered its decision order-
ing modification or that our Supreme Court would have
granted his petition for certification and would have
reversed the decision of this court.
The petitioner also argues in his main appellate brief:
‘‘[I]t is clearly debatable among jurists of reason
whether the petitioner’s prior habeas counsel was inef-
fective for failing to bring to the court’s attention . . .
the concurring opinion [by Chief Justice Rogers in State
v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009)
(Sanseverino II)], and his appellate counsel for failing
to make the argument against modification of [the peti-
tioner’s] judgment based on his acquittal due to insuffi-
cient evidence and the lack of a jury instruction on the
lesser included offense, similar to the way in which the
appellate attorney had successfully raised the claim in
State v. LaFleur, 307 Conn. 115, 51 A.3d 1048 (2012).’’4
In Sanseverino II, our Supreme Court explicitly sanc-
tioned the modification of the defendant’s conviction
to the lesser included offense of unlawful restraint in
the second degree, even in the absence of a jury instruc-
tion on that lesser offense, ‘‘[u]nder the unique circum-
stances of [the] case . . . .’’ Sanseverino II, supra, 291
Conn. 595. In a concurring opinion, Chief Justice Rogers
questioned the wisdom of allowing such modifications
in future cases that involve different circumstances. Id.,598–604 (Rogers, C. J., concurring).
In LaFleur, our Supreme Court concluded that the
facts and the procedural history of the defendant’s case
were sufficiently different than those in Sanseverino
II to preclude modification of the defendant’s convic-
tion of assault in the first degree to the lesser included
offense of assault in the second degree. State v. LaFleur,
supra, 307 Conn. 141–42, 151–54. Thus, the court
ordered on remand a judgment of acquittal. Id., 154.
The petitioner essentially claims on appeal that
although Attorney Falk argued in the petitioner’s direct
appeal that it was improper for this court to order that
the trial court modify the petitioner’s robbery convic-
tion, his argument was deficient because it failed to
point to the evolution of the issue which began in
Sanseverino I, and failed to advance the legal analyses
set forth in the concurring opinion by Chief Justice
Rogers in Sanseverino II and the majority in LaFleur.
He further argues that Attorney Diamond performed
deficiently in the petitioner’s first habeas case when he
did not argue that Attorney Falk should have relied
explicitly on the reasoning set forth in those cases. We
disagree with the petitioner and dismiss the 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,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion 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. . . .
‘‘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.’’ (Internal quotation
marks omitted.) Johnson v. Commissioner of Correc-
tion, 181 Conn. App. 572, 577–78, 187 A.3d 543, cert.
denied, 329 Conn. 909, 186 A.3d 13 (2018). For the peti-
tioner to prevail on his claim of ineffective assistance
of counsel, he must establish both that his counsel’s
performance was deficient and that he was prejudiced,
meaning, there is a reasonable probability that, but for
counsel’s mistakes, the result of the proceeding would
have been different. Strickland v. Washington, 466 U.S.
668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Our
standard of review as to whether Attorney Diamond’s
representation was inadequate is plenary, being a mixed
question of law and fact. See Taylor v. Commissioner
of Correction, 324 Conn. 631, 637, 153 A.3d 1264 (2017)
(‘‘[t]he application of historical facts to questions of
law that is necessary to determine whether the peti-
tioner has demonstrated prejudice . . . is a mixed
question of law and fact subject to . . . plenary
review’’ [citation omitted]).
We first consider the petitioner’s claim that Attorney
Diamond provided ineffective assistance of counsel in
the petitioner’s first habeas trial because he did not
argue that Attorney Falk should have filed a motion for
reconsideration in the petitioner’s direct appeal with
this court citing to Sanseverino I, and setting forth the
legal analysis that Chief Justice Rogers later employed
in her concurring opinion in Sanseverino II and that
the majority relied on in LaFleur. We conclude that
this claim has no merit.
In the petitioner’s first habeas case, Attorney Dia-
mond, in fact, did claim that Attorney Falk should have
filed a motion for reconsideration with this court in the
petitioner’s direct appeal. Furthermore, having
reviewed the record from the first habeas case, we
conclude that the possible relevance of Sanseverino I,
Sanseverino II, and LaFleur was raised by Attorney
Diamond and considered by the habeas court. In fact,
in a supplemental letter to the habeas court, sent after
he had filed a posttrial brief, Attorney Diamond alerted
the habeas court to the then newly released LaFleur
case and argued in relevant part: ‘‘Had appellate counsel
made the appropriate arguments on [the petitioner’s]
direct appeal, the Appellate Court would have not
replaced the conviction for robbery . . . that it dis-
missed with one for attempted robbery . . . .’’ Addi-
tionally, in the first habeas case, the petitioner’s expert
witness, Attorney Del Atwell, testified concerning
Sanseverino II and why he believed it was relevant to
the petitioner’s case.
Furthermore, on appeal from the habeas court’s deci-
sion in the first habeas case; see Haywood v. Commis-
sioner of Correction, 153 Conn. App. 651, 105 A.3d 238,
cert. denied, 315 Conn. 908, 105 A.3d 235 (2014); the
petitioner, in support of his claim that Attorney Falk
had provided ineffective assistance of counsel by not
filing a motion for reconsideration with this court in
the petitioner’s direct appeal, fully addressed Sansever-
ino I, Sanseverino II, and LaFleur in his appellate brief.
Both the habeas court in the first habeas case and this
court on appeal rejected the petitioner’s claim. See id.,
662, 665–67. Accordingly, the petitioner has not and
cannot demonstrate any prejudice in this case.
We now consider the petitioner’s claim that Attorney
Diamond provided ineffective assistance of counsel by
failing to argue that Attorney Falk provided ineffective
assistance on direct appeal when he did not rely on
Sanseverino I in his petition for certification to appeal
to our Supreme Court. We agree with the habeas court
and the respondent, the Commissioner of Correction,
that the petitioner has failed to establish prejudice.5
In determining whether Attorney Diamond provided
ineffective assistance of counsel, we necessarily must
consider whether it is reasonably likely that if Attorney
Falk had cited to Sanseverino I in his petition for certifi-
cation to appeal to our Supreme Court, the petition
would have been granted and the outcome, different.
See Strickland v. Washington, supra, 466 U.S. 694. We
conclude that the petitioner cannot establish that there
is a reasonable probability that certification would have
been granted and that the outcome of his appeal would
have been different because he cannot establish the
likelihood that our Supreme Court was unaware, or
unmindful, of its then very recent decision in Sansever-
ino I when it denied the petition for certification to
appeal. See Fiaschetti v. Nash Engineering Co., 47
Conn. App. 443, 450, 706 A.2d 476 (it is fair to presume
court was aware of previous case law), cert. denied,
244 Conn. 906, 714 A.2d 1 (1998).
On July 1, 2008, our Supreme Court officially released
its decision in Sanseverino I, supra, 287 Conn. 610. On
August 5, 2008, this court officially released its decision
in the petitioner’s direct appeal. State v. Haywood,
supra, 109 Conn. App. 461. Fourteen days later, on
August 19, 2008, our Supreme Court released its deci-
sion in State v. DeJesus, 288 Conn. 418, 437, 953 A.2d
45 (2008), specifically overruling in part Sanseverino
I.6 One week after our Supreme Court released its deci-
sion in DeJesus, Attorney Falk filed the petition for
certification to appeal to our Supreme Court from our
decision in the petitioner’s direct appeal. On September
25, 2008, approximately one month after overruling in
part Sanseverino I in DeJesus, our Supreme Court
denied the petitioner’s petition for certification to
appeal. State v. Haywood, 289 Conn. 928, 958 A.2d 161(2008). It strains credulity to believe that our Supreme
Court would have forgotten about Sanseverino I, espe-
cially in light of DeJesus, such that it would have needed
a specific reference to that case to appreciate fully a
claim regarding an allegedly improper modification by
the Appellate Court of a judgment of conviction.
Accordingly, we are not persuaded that a citation to
Sanseverino I likely would have resulted in the petition
being granted and in a different outcome of the petition-
er’s direct appeal.
After a careful review of the record and the briefs,
and after fully considering the oral arguments of the
parties, we conclude that the petitioner failed to demon-
strate that the habeas court abused its discretion in
denying his petition for certification to appeal. The peti-
tioner has 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.
The appeal is dismissed.
In this opinion the other judges concurred.
1
A habeas on a habeas occurs when a petitioner files a subsequent petition
for a writ of habeas corpus challenging the effectiveness of counsel in
litigating a previous petition for a writ of habeas corpus that had claimed
ineffective assistance of counsel at the petitioner’s underlying criminal trial
or on direct appeal. See Kaddah v. Commissioner of Correction, 324 Conn.
548, 550, 153 A.3d 1233 (2017).
2
Unrelated to any issue in this matter, this court in the petitioner’s direct
appeal also reversed the petitioner’s conviction of conspiracy to commit
robbery in the first degree and remanded the case for a new trial on that
charge. State v. Haywood, supra, 109 Conn. App. 477. It appears that the
state did not pursue further that charge on remand.
3
Sanseverino I was overruled in part by State v. DeJesus, 288 Conn.
418, 437, 953 A.2d 45 (2008) (holding that proper remedy when kidnapping
conviction is reversed is new trial and not judgment of acquittal), superseded
in part after reconsideration en banc by State v. Sanseverino, 291 Conn.
574, 579, 969 A.2d 710 (2009) (ordering modification of defendant’s convic-
tion from kidnapping to unlawful restraint), and overruled in part on other
grounds by State v. Payne, 303 Conn. 538, 548, 34 A.3d 370 (2012).
4
We note the following dates. Oral argument in the petitioner’s direct
appeal to this court was heard on April 14, 2008. Sanseverino I officially
was released by our Supreme Court on July 1, 2008. This court officially
released its decision in the petitioner’s direct appeal on August 5, 2008,
approximately one month after our Supreme Court released Sanseverino
I. See State v. Haywood, supra, 109 Conn. App. 461. On August 19, 2008,
our Supreme Court overruled in part Sanseverino I in State v. DeJesus, 288
Conn. 418, 437, 953 A.2d 45 (2008) (‘‘we are persuaded that our conclusion
that there should have been a judgment of acquittal [on the kidnapping
charge] in Sanseverino [I] was incorrect, and that the proper remedy in
that case should have been a new trial’’). Our Supreme Court denied the
petitioner’s petition for certification to appeal from our decision in his direct
appeal on September 25, 2008, approximately three months after the release
of its decision in Sanseverino I; see State v. Haywood, 289 Conn. 928, 958
A.2d 161 (2008); and approximately one month after it specifically overruled
Sanseverino I. See State v. DeJesus, supra, 437. We also note that Sansever-
ino II, supra, 291 Conn. 576, was officially released on May 19, 2009, and
State v. LaFleur, supra, 307 Conn. 117, was officially released on September
28, 2012.
In a notice of supplemental authority filed with this court after briefing
in the present appeal, the petitioner also directs us to the recent decision
of our Supreme Court in State v. Petion, 332 Conn. 472, 498–507, 211 A.3d
991 (2019).
5
Although the petitioner had raised as an issue on appeal in his first
habeas case the allegation that Attorney Falk had rendered ineffective assis-
tance when he inadequately raised the issue of the judgment modification
in his petition for certification to appeal to our Supreme Court, we declined
to review the claim because it had not been addressed by the habeas court.
See Haywood v. Commissioner of Correction, supra, 153 Conn. App.
653–54 n.1.
6
The petitioner does not cite to DeJesus in his main appellate or reply brief.