194 Conn.App. 757
Conn. App. Ct.2019Background
- David Haywood was convicted of felony murder and first‑degree robbery as an accessory; on direct appeal the Appellate Court reversed the robbery conviction and ordered it modified to attempt to commit robbery, leaving the felony murder conviction intact.
- Appellate counsel Glenn Falk sought certification to the Connecticut Supreme Court but did not cite State v. Sanseverino, 287 Conn. 608 (2008) (Sanseverino I), nor move for reconsideration in the Appellate Court after Sanseverino I was released; Haywood claims these omissions were deficient.
- Subsequent Connecticut Supreme Court decisions (DeJesus and Sanseverino en banc) altered the legal landscape concerning modification to lesser included offenses; LaFleur later declined modification in a different factual posture.
- Haywood filed a first habeas petition alleging ineffective assistance by Falk; his habeas counsel in that case, Mark Diamond, litigated Falk’s effectiveness but Haywood later filed a second habeas claiming Diamond had been ineffective in doing so.
- The habeas court denied the second petition and refused certification to appeal; Haywood appealed, arguing Diamond was ineffective for not establishing Falk’s deficiencies (including failure to invoke Sanseverino I, Sanseverino II concurrence reasoning, and LaFleur).
- The Appellate Court affirmed the denial of certification, holding Haywood failed to show prejudice (reasonable probability of a different outcome) and that the legal authorities were already before or obvious to the Supreme Court when it denied certification.
Issues
| Issue | Plaintiff's Argument (Haywood) | Defendant's Argument (Commissioner) | Held |
|---|---|---|---|
| Whether Falk performed deficiently on direct appeal by not citing Sanseverino I or moving for reconsideration after Sanseverino I | Falk’s petition for certification and lack of motion for reconsideration omitted Sanseverino I and the evolving Sanseverino/LaFleur analyses, which could have led to non‑modification | Even if Falk omitted those arguments, the Supreme Court was aware of Sanseverino I (and its partial overruling in DeJesus) so omission did not create a reasonable probability of a different outcome | Held: No prejudice shown; counsel’s omissions would not likely have changed certification/outcome |
| Whether Diamond (first habeas counsel) was ineffective for failing to press Falk’s omissions as ineffective assistance | Diamond should have highlighted Falk’s failure to rely on Sanseverino I and later Sanseverino II/LaFleur reasoning to show appellate error | Diamond in fact raised these issues in the first habeas; the record shows Sanseverino and LaFleur were considered; appellate briefing also raised them; no reasonable probability of different result | Held: No deficient prejudice; issue was raised and rejected earlier; no certification abuse |
| Whether denial of certification to appeal the second habeas was an abuse of discretion | The issues are debatable among jurists of reason and deserve further review | The habeas court reasonably concluded the claims were not debatable and that Haywood failed Strickland prejudice prong | Held: No abuse of discretion; appeal dismissed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance standard: deficient performance and prejudice)
- State v. Sanseverino, 287 Conn. 608 (2008) (Sanseverino I) (Supreme Court noted possible modification to lesser included offense)
- State v. DeJesus, 288 Conn. 418 (2008) (partially overruled Sanseverino I regarding remedy for reversal)
- State v. Sanseverino, 291 Conn. 574 (2009) (Sanseverino II) (en banc; approved modification under unique circumstances; concurrence cautioned against broad application)
- State v. LaFleur, 307 Conn. 115 (2012) (declined modification on facts/procedure different from Sanseverino; ordered acquittal on remand)
- State v. Haywood, 109 Conn. App. 460 (2008) (Appellate Court decision modifying robbery to attempt on direct appeal)
- Simms v. Warden, 229 Conn. 178 (1994) (two‑prong test for appellate review of denial of certification to appeal)