Barlow v. Commissioner of Correction
131 Conn. App. 90
Conn. App. Ct.2011Background
- Barlow convicted in 1998 of attempt to murder, conspiracy to murder, two counts of first-degree assault, and alteration of a firearm identification number; sentenced to 35 years.
- Trial theory was that Barlow had the specific intent required for the charged crimes; an initial jury instruction included general-intent language.
- Evidence included a drive-by shooting on Willow Street, wounded victims Williams and Mercado, shell casings, and a pistol later linked to the crime scene.
- In 2009, Barlow filed a second amended habeas petition alleging ineffective assistance of appellate counsel for not raising jury-instruction issues on appeal.
- Habeas court denied the petition and later denied certification to appeal; the appellate court dismissed the subsequent appeal for lack of debatable issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not raising improper general-intent instruction | Barlow’s counsel failed to challenge the erroneous general-intent language | Welch-Rubin’s strategy was reasonable; instruction did not mislead jurors | No deficient performance or prejudice established |
| Whether appellate counsel was ineffective for not raising failure to name victims in attempts/conspiracy charges | Omission of named victims misled the jury | Charges targeted general intended conduct; naming victims unnecessary | No deficient performance or prejudice established |
| Whether denial of certification to appeal was an abuse of discretion | Simms standard satisfied; issues were debatable | No reasonable jurist would disagree; claims not debatable | No abuse of discretion; certification denied |
Key Cases Cited
- Simms v. Warden, 229 Conn. 178 (1994) (two-pronged test for habeas review; abuse of discretion and merits)
- Simms v. Warden, 230 Conn. 608 (1994) (same standard; applicability to discretionary appeal decisions)
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes deficient performance and prejudice prongs)
- McClam v. Commissioner of Correction, 98 Conn.App. 432 (2006) (appellate review of ineffective assistance; deference to habeas findings)
- State v. Brown, 97 Conn.App. 837 (2006) (instructional error framework; improper general-intent references)
- State v. DeBarros, 58 Conn.App. 673 (2000) (distinguishes improper reference to general intent when not substantive element)
- State v. DeJesus, 92 Conn.App. 92 (2005) (victim-name requirement not required for certain general offenses)
- State v. Weaving, 125 Conn.App. 41 (2010) (standard for evaluating challenged jury instructions in context)