Allen v. Commissioner of Correction, 167 Conn. App. 868

Anthony Allen was convicted after a jury trial of capital felony, murder, and related charges; the Connecticut Supreme Court affirmed his convictions on direct appeal.
On direct appeal Allen argued the trial court improperly denied his request to poll the jury; the Supreme Court held his request was untimely.
Allen filed a habeas petition alleging trial counsel was ineffective for failing to make a timely request to poll the jury.
At the habeas hearing Allen’s counsel (Visone) acknowledged he could prove deficient performance but conceded he could not prove prejudice because no timely poll request had been made and juror answers cannot now be obtained.
The habeas court denied relief for failure to prove prejudice under Strickland; the court also denied certification to appeal. Allen appealed that denial of certification.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether habeas court abused discretion in denying certification to appeal denial of ineffective-assistance claim	Allen: counsel was ineffective for not timely requesting jury poll; prejudice is presumed where a timely poll request was not made and unanimity is in doubt	Commissioner: Allen waived the prejudice argument at the habeas hearing; counsel conceded prejudice could not be proved	Dismissed — habeas counsel affirmatively waived the prejudice claim; denial of certification was not an abuse of discretion

State v. Allen, 289 Conn. 550 (2008) (direct appeal affirming convictions; held jury poll request untimely)
State v. Pare, 253 Conn. 611 (2000) (discusses effect of denying a timely jury poll request)
Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged ineffective assistance standard: deficiency and prejudice)
Simms v. Warden, 229 Conn. 178 (1994) (standard for appellate review of habeas denial of certification)
Myers v. Commissioner of Correction, 164 Conn. App. 1 (2016) (explains application of Strickland in habeas appeals)