98 Conn. App. 311 | Conn. App. Ct. | 2006
Opinion
The petitioner, Jeffrey Gibson, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his May 19, 2003 amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claims that his trial counsel rendered ineffective assistance. In addition, the petitioner asks us to vacate the judgment of the habeas court on equitable grounds and to order a new habeas trial. We dismiss the appeal.
The following facts, as set forth in the petitioner’s direct appeal, are relevant to the determination of the issues on appeal. “The jury reasonably could have found the following facts. On September 25, 1995, at approximately 9:20 p.m., John Goad, an officer with the New Haven police department, responded to gunshots he
“After the shooting, the [petitioner] went to his sister’s house, subsequently threw the gun into a river and took a bus to South Carolina, where he remained until November, 1995. On November 15, 1995, the police located the [petitioner] in West Haven and took him into custody. After waiving his Miranda
At his criminal trial, the petitioner was represented by attorney Donald Dakers, a special public defender. On May 19, 2003, the petitioner filed an amended petition for a writ of habeas corpus, claiming ineffective assistance of trial counsel. On March 8,2004, the habeas court conducted a hearing at which Dakers and the petitioner were the only two witnesses presented. That same day, the court dismissed the petition and, thereafter, denied the petition for certification to appeal. This appeal followed.
I
We first address whether the habeas court abused its discretion in denying the petition for certification to appeal with respect to the petitioner’s claim that he received ineffective assistance of trial counsel.
The standard of review of a habeas court’s denial of a petition for a writ of habeas corpus that is based on a claim of ineffective assistance of counsel is well settled. “We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. . . . In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts
At his habeas trial, the petitioner attempted to prove that Dakers’ performance was deficient, in part,
In this appeal, the petitioner has briefed his ineffective assistance of counsel claim only as it relates to Dakers’ nondiscovery of alleged payments made to Hutchings by the police. However, no evidence of these claimed payments was introduced at the habeas trial, nor was there any evidence, be it in the form of expert testimony or other forms of proof, from which the court could have concluded that Dakers’ investigative methods were inadequate or deficient.
Our review of the petitioner’s underlying claim of ineffective assistance of counsel leads us to conclude that he has not demonstrated that the issue is debatable among jurists of reason, that a court could resolve the issue differently or that the issue deserves encouragement to proceed further. The court, therefore, did not abuse its discretion in denying the petition for certification to appeal on the basis of the petitioner’s claim of ineffective assistance of trial counsel.
II
The petitioner next claims that the performance of habeas counsel was deficient because he, like Dakers, failed to conduct a proper investigation of Hutchings and failed to discover that she was a paid police informant. The petitioner requests that we invoke principles of equity and, on that basis, vacate the court’s judgment and order a new habeas trial. He argues that because information about Hutchings readily was available, and because the state knew that Hutchings was an informant and that she had received money from the police many times, as demonstrated in two later unrelated cases, this court should use its equitable powers to order a new habeas proceeding, challenging the performance of habeas counsel. The petitioner also argues that we should, in effect, consider this appeal as a direct appeal from a habeas proceeding. This, however, is not our rule of law.
The petitioner’s claim that his habeas counsel was ineffective cannot be addressed in this appeal, as it is not properly before us. Nor is this such an extreme case that it calls for equitable intervention from this court. Although the petitioner correctly asserts that he has a statutory right to adequate and effective habeas
The petitioner also claims, for the first time on appeal, that the state’s knowledge and lack of disclosure of information concerning Hutchings violates Brady v.
The appeal is dismissed.
In this opinion the other judges concurred.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In his amended petition, the petitioner claimed that his “due process rights to the effective assistance of trial counsel were denied by the actions and/or omissions of . . . Dakers before and during the jury trial in the following respects: [A]. [T]rial counsel [inadequately] advised the [petitioner concerning the plea agreement that was offered prior to trial. [B]. [T]rial counsel [inadequately] investigate [d] the factual basis of the [sjtate’s evidence case prior to the jury trial. [C], [T]rial counsel [inadequately] explained] to the [pjetitioner the range of sentence that would be available to the court in the event that the [pjetitioner was convicted as charged after trial. [D], [T]rial counsel failed to properly [cross-examine] available and
The petitioner has directed us to information that was not presented to the court. For purposes of this appeal, however, we are unable to consider this information.
The petitioner claims a separate right under our state constitution. In light of our conclusion that this is an improper forum to raise his claim of ineffective assistance of habeas counsel, we do not address this argument.
In Lapointe, Judge O’Connell, writing for the court, succinctly expressed our law in such cases: “The law presumes that counsel is competent until evidence has been introduced to the contrary. Strickland v. Washington, [supra, 466 U.S. 689]. It is elementary jurisprudence that the determination of whether counsel’s conduct was ineffective is a peculiarly factbound inquiry. Phillips v. Warden, 220 Conn. 112, 134, 595 A.2d 1356 (1991). No citation is needed for the fundamental principle that as an appellate tribunal, this court cannot find facts. Only a trial court could find that [counsel's] performance was constitutionally defective, and it could do so only after a claim of ineffective assistance of counsel was properly filed, pleaded and litigated. Our Supreme Court has consistently concluded that the preferred vehicle for an ineffective assistance of counsel claim is either a petition for a writ of habeas corpus or a petition for a new trial, not a direct appeal. . . . Absent the evidentiary hearing available in the collateral action, review in this court of the ineffective assistance claim is at best difficult and sometimes impossible. The evidentiary hearing provides the trial court with the evidence that is often necessary to evaluate the competency of the defense and the harmfulness of any incompetency. . . .
“The petitioner is not without remedy. There is no bar to his filing a petition for a second writ of habeas corpus challenging the effectiveness of his first habeas counsel. Lozada v. Warden, [supra, 223 Conn. 845]. We conclude, therefore, that the petitioner improperly raised this claim on direct appeal from the dismissal of his habeas petition.” (Citation omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, supra, 67 Conn. App. 679-80.