158 Conn.App. 669
Conn. App. Ct.2015Background
- Andre Atkins was convicted after a jury trial of multiple sexual offenses involving a minor; this court affirmed most convictions on direct appeal in State v. Atkins.
- Atkins filed a second amended habeas petition alleging trial counsel rendered ineffective assistance by (a) failing to call an alleged alibi witness (M) and (b) failing to investigate victims and their motives to fabricate (including witnesses A and D).
- At the habeas trial Atkins called five witnesses including M, A, D, trial counsel, and an investigator; the habeas court found counsel was not ineffective and denied the petition.
- Atkins then sought certification to appeal, framing his grounds as counsel failing to call alibi witnesses and failing to investigate defenses including motive to fabricate; the habeas court denied certification.
- On appeal Atkins argued the habeas court abused its discretion in denying certification and that counsel was ineffective for not calling M as an alibi witness and for not investigating A and D to impeach the victim.
- The appellate court concluded (1) M’s testimony at the habeas trial did not establish an alibi (she never said Atkins was elsewhere at the time) and (2) Atkins failed to raise the specific claim about failure to investigate A and D in his habeas petition, so the habeas court did not abuse its discretion in denying certification; the appeal was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether habeas court abused discretion denying certification to appeal | Atkins: denial was error because issues are debatable and deserve review | Commissioner: Atkins failed to present some claims to habeas court; no abuse | No abuse; appeal dismissed |
| Whether trial counsel was ineffective for failing to call M as an alibi witness | Atkins: M would have corroborated his presence away from the alleged assaults | Commissioner: M’s testimony did not establish an alibi and could be harmful | No ineffective assistance; M’s testimony did not prove he was elsewhere |
| Whether counsel was ineffective for failing to investigate victims’ motives to fabricate (A and D) | Atkins: broad pleading (“including but not limited to”) encompassed failure to investigate A and D | Commissioner: habeas petition did not specifically allege failure to investigate A and D; claim was unpresented | Claim not preserved; habeas court could not have abused discretion in denying certification |
| Whether appellate review may proceed when habeas court denied certification | Atkins: asked for review of merits | Commissioner: Simms/Lozada standard requires abuse of discretion to reach merits | Appellate review barred absent showing of abuse of discretion under Lozada factors; none shown |
Key Cases Cited
- State v. Atkins, 118 Conn. App. 520 (2009) (direct appeal recounting facts and partial affirmance of convictions)
- Simms v. Warden, 229 Conn. 178 (1994) (statutory and standard limits on appellate review after denial of certification)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Tutson v. Commissioner of Correction, 144 Conn. App. 203 (2013) (applicable standard for certification abuse review and relevance of preserved claims)
- Moye v. Commissioner of Correction, 316 Conn. 779 (2015) (habeas court not responsible for petitioner’s failure to present unpreserved ineffective assistance claim)