150 Conn.App. 362
Conn. App. Ct.2014Background
- Rodney Hankerson was convicted in 2007 of felony murder and two counts of first‑degree robbery; sentenced to 60 years; direct appeal affirmed.
- On direct appeal Hankerson argued the trial court’s felony‑murder proximate‑cause instruction was inadequate; this court held the claim waived because defense counsel agreed to the instruction at charge conference and after a supplemental instruction.
- Hankerson filed a third amended habeas petition alleging, inter alia, trial counsel were ineffective for failing to request the statutory affirmative defense instruction to the felony‑murder charge and for failing to ensure complete/accurate jury instructions.
- At the habeas hearing the petitioner testified and one trial attorney and appellate counsel did; the habeas court found counsel’s decisions were strategic and reasonable and that petitioner failed to show prejudice, and denied relief.
- The habeas court denied certification to appeal; Hankerson appealed, raising (1) ineffective assistance for failing to request the affirmative‑defense instruction and (2) a due‑process challenge to application of waiver to the proximate‑cause instruction.
- The appellate court ordered supplemental briefing on whether denial of certification was an abuse of discretion and dismissed both appellate contentions for procedural and substantive reasons.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of certification to appeal was an abuse of discretion | Hankerson contended the issues (esp. affirmative‑defense failure) deserved encouragement to proceed | Respondent argued habeas court properly exercised discretion; Petitioner failed Simms/Lozada showings | Denial was not an abuse; appeal dismissed |
| Whether trial counsel was ineffective for failing to request affirmative‑defense instruction to felony murder | Counsel’s failure was inadvertent/non‑strategic and deprived him of defense under statute, causing prejudice | Habeas court found counsel’s choices strategic, reasonable, consistent with defense theory, and no prejudice shown | Claim reviewed and dismissed for failure to show ineffective assistance/prejudice; no basis to overturn certification denial |
| Whether waiver of instructional error (proximate cause) violated due process and is reviewable on habeas appeal | Hankerson argued waiver should not bar review because juror‑requested supplemental instruction on proximate cause implicated due process | Respondent noted petitioner did not raise this issue in the habeas petition or at the habeas hearing and thus cannot raise it on appeal | Issue not raised below; appellate review barred as ambuscade of habeas court; dismissed |
| Whether appellate court should reconsider its prior waiver finding from direct appeal | Hankerson urged reconsideration given due‑process concerns about jury understanding of proximate cause | Respondent relied on prior finding of waiver and procedural default | Court declined to revisit; procedural default and failure to raise below fatal |
Key Cases Cited
- Simms v. Warden, 229 Conn. 178 (standards for appealing habeas denial after denial of certification)
- Lozada v. Deeds, 498 U.S. 430 (Lozada factors incorporated into Connecticut standard for certification abuse)
- Tutson v. Commissioner of Correction, 144 Conn. App. 203 (discussing Simms/Lozada framework and certification review)
- State v. Hankerson, 118 Conn. App. 380 (direct‑appeal opinion addressing waiver of jury instruction challenge)