152 Conn.App. 212
Conn. App. Ct.2014Background
- In 1993 Ham participated in events where a stolen Buick was used in a drive‑by shooting; one victim died and another was wounded. Physical evidence included a fingerprint and blood in the Buick, shell casings (both .45 and 9mm), and a .45 bullet recovered from the victim.
- Ham was convicted of multiple charges, including murder, and sentenced to 50 years; his direct appeal was affirmed (State v. Ham).
- Ham filed a 2005 habeas petition alleging trial counsel's ineffectiveness; that petition was denied and the denial was affirmed by the Connecticut Supreme Court.
- In 2011 Ham filed a subsequent habeas petition alleging: (1) trial counsel was ineffective for not consulting a ballistics/firearms expert; (2) appellate counsel was ineffective for failing to challenge the trial court’s jury instruction on motive; and (3) prior habeas counsel was ineffective for not raising that appellate‑counsel claim.
- After Ham rested, the respondent moved to dismiss counts two and three under Practice Book § 15‑8 for failure to make a prima facie case; the court granted that motion and, after the respondent’s evidence, denied relief on count one. The court denied certification to appeal; this appeal followed.
Issues
| Issue | Ham's Argument | Commissioner’s Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for failing to consult a ballistics expert and thus conducting an inadequate cross‑examination of the state’s firearms expert | Consulting an expert would have exposed subjectivity and weaknesses in the firearms identification testimony and undermined the physical link to the scene | Dow’s cross‑examination and strategy were reasonable: he focused on fingerprint and blood evidence and aimed to distance Ham from the Buick; Stephenson had already conceded limits of identification on direct exam | Denied — counsel’s performance was within reasonable tactical choices; no deficient performance shown and no prejudice proven |
| Whether appellate counsel was ineffective for not challenging the trial court’s motive instruction as improper marshalling of evidence | The instruction improperly marshalled evidence for the state and appellate counsel should have raised it on direct appeal | The charge, read as a whole, fairly presented the law and evidence; the transcript does not reveal a meritorious claim to support ineffective assistance | Dismissed under Practice Book § 15‑8 — petitioner failed to make a prima facie showing because the claimed appellate error lacked merit |
| Whether prior habeas counsel was ineffective for failing to raise the alleged appellate‑counsel error | Prior habeas counsel should have raised the appellate claim in the earlier habeas proceeding | Because appellate counsel’s failure was not shown to be ineffective, a claim against prior habeas counsel also fails; Lozada requires showing ineffectiveness twice | Dismissed — without a prima facie ineffective‑appellate‑counsel claim, the ineffective‑habeas‑counsel claim fails |
| Whether the habeas court abused its discretion by denying certification to appeal | The issues are debatable among jurists of reason and deserve review | The claims were either meritless or properly dismissed for failure to make a prima facie case; no abuse of discretion shown | Denied — certification refusal upheld; appeal dismissed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong standard for ineffective assistance of counsel)
- Simms v. Warden, 230 Conn. 608 (standards for habeas certification and appellate review of certification denials)
- Lozada v. Warden, 223 Conn. 834 (requirement to satisfy Strickland twice when claiming ineffective prior habeas counsel based on appellate counsel error)
- State v. Campbell, 149 Conn. App. 405 (standards governing marshalings and jury charge review)
- State v. Ham, 55 Conn. App. 281 (direct appeal affirming Ham’s convictions)