RODNEY HANKERSON v. COMMISSIONER OF CORRECTION
(AC 34752)
Connecticut Appellate Court
May 20, 2014
Sheldon, Keller and Harper, Js.
Argued January 21
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(Appeal from Superior Court, judicial district
Jennifer Vickery, assigned counsel, for the appellant (petitioner).
Melissa L. Streeto, senior assistant state‘s attorney, with whom, on the brief, were Brian Preleski, state‘s attorney, and Erika L. Brookman, assistant state‘s attorney, for the appellee (respondent).
Opinion
KELLER, J. The petitioner, Rodney Hankerson, appeals from the judgmеnt of the habeas court denying his third amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and argues that the court improperly rejected his claim that his trial counsel had rendered ineffective assistance by failing to request an affirmative defense instruction in connection with
The following facts and procedural history are relevant to our resolution of the petitioner‘s claims.1 In 2007, following a trial by jury, the petitioner was convicted of felony murder in violation of
In the petitioner‘s direct appeal, the petitioner claimed that there was an instructional error, in that the court failed to explain the doctrine of proximate cause adequately in its jury instruction on the crime of felony murder. Id. Specifically, the petitioner argued that it was reasonably possible that the court‘s instruction “misled the jury with regard to the essential element that the victim‘s death was caused in the course of and in furtherance of the crime оf robbery or flight therefrom. Essentially, the [petitioner] argue[d] that the court did not adequately explain in what manner the victim‘s death must be causally connected to his criminal activity.” (Emphasis in original.) Id., 383. This court disagreed and rejected the petitioner‘s claim, brought under the doctrine set forth in State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), because the petitioner‘s trial counsel had acquiesced in the substance of the instruction that he was challenging on appeal. State v. Hankerson, supra, 118 Conn. App. 389. Specifically, this court noted that the trial court held a charge conference with the parties, on the record, in which it discussed its proposed charge, without objection from the petitioner‘s counsel. Id., 384, 388. Additionally, this court found that the petitioner‘s trial counsel had agreed to an identical supplemental instruction on the elements of felony murder, which was given in response to an inquiry by the jury. The supplemental instruction was discussed with the parties before it was delivered to the jury. Id., 385–86. “After delivering this supplemental
On December 7, 2011, the petitioner filed his third amended petition for a writ of habeas corpus. Therein, he alleged that his trial counsel, Attorney Jeffrey Kestenband and Attorney William Paetzold, had rendered ineffective assistance in a number of ways, including by failing to request a jury instruction on the affirmative defense to the felony murder charge3 and by failing to ensure that the jury instructions were “complete, accurate and appropriate.”4 He сlaimed that but for his trial counsel‘s ineffective assistance, he would have been acquitted of all charges.
On December 8, 2011, the habeas court, Cobb, J., heard testimony from the petitioner, Kestenband, and the petitioner‘s appellate counsel on his direct appeal, Attorney Brendon P. Levesque.5 In a memorаndum of decision filed May 11, 2012, the court denied the amended petition. The court found that trial counsel‘s decisions had been strategic, “reasonable under the circumstances” and “consistent with the [petitioner‘s] theory of the case . . . .” It also found that the petitioner had failed to present sufficient evidence from whiсh the court could conclude that the outcome of the trial would have been different but for trial counsel‘s conduct. The court subsequently denied the petition for certification to appeal. This appeal followed.
We begin by setting forth the applicable standard of review and procedural hurdles thаt the petitioner must surmount to obtain appellate review of the merits of a habeas court‘s denial of the habeas petition following denial of certification to appeal. “In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that . . . [
“Furthermore, it is axiomatic that a petitioner is bound by his petition. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised. . . . Having not raised [an] issue before the habeas court, [a] petitioner is barred from rаising it on appeal. This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the [petitioner‘s] claim. . . . This court is not compelled to consider issues neither alleged in the habeas petition nor considered at the habeas proceeding . . . .” (Citation omitted; internal quotation marks omitted.) Greene v. Commissioner of Correction, 131 Conn. App. 820, 822, 29 A.3d 171 (2011), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
“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. Our standard of review of a habeas court‘s judgment on ineffective assistance of counsel claims is well settled. 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 as found by the habeas court constituted a violation of the petitioner‘s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Mejia v. Commissioner of Correction, 98 Conn. App. 180, 186, 908 A.2d 581 (2006), appeal dismissed after remand, 112 Conn. App. 137, 962 A.2d 148, cert. denied, 291 Conn. 910, 969 A.2d 171 (2009).
The petitioner‘s principal brief to this court did not address the threshold issue of whether the habeas court abused its discretion by denying his petition for certification to appeal. Therefоre, prior to oral argument before this court, we ordered the petitioner to file a supplemental brief addressing that issue. The petition-er‘s principal brief identified only two claims. The petitioner first claimed that his trial counsel rendered ineffective assistance by failing to request an affirmative defense instructiоn to the felony murder charge, and that their failure to make such a request was not a strategic decision, but an inadvertent result of not understanding the felony murder statute.
The petitioner‘s second claim is less clear. In his appellate brief, the petitioner frames his claim as follows: “Applying waiver to this case, involving juror sоlicited supplemental instructions on the difficult concept of proximate cause in felony murder, violates due process.” In his supplemental brief, the petitioner reframes the issue as follows: “This case squarely presents the issue of whether the trial court‘s decisions about jury instructions are forever beyond the сorrective reach of appellate review if [an ineffective] trial counsel fails to object.” The petitioner essentially claims that we should reconsider the claim raised in his direct appeal—whether his trial counsel‘s conduct regarding the jury instructions constituted waiver—and that even if it did constitute waiver, wе should not apply our established precedent regarding reviewability of waived jury instruction claims, under the specific circumstances of this case, because it denied the petitioner his right to due
I
We first address the petitioner‘s claim that his right to due process of law was violated by an instructional error regarding proximаte cause that had been waived by his trial counsel. The petitioner did not address this issue in his third amended petition for a writ of habeas corpus, during the habeas proceeding, or in his petition for certification to appeal.6 It is well established that “[w]e do not entertain claims not raised before the habeas court but raised for the first time on appeal.” Bertotti v. Commissioner of Correction, 136 Conn. App. 398, 404, 44 A.3d 892, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012). “The purpose of the [petition] is to put the [respondent, the Commissioner of Correction] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.” (Internal quotation marks omitted.) Holley v. Commissioner of Correction, 62 Conn. App. 170, 181, 774 A.2d 148 (2001). The petitioner‘s third amended petition solely presents the claim of ineffective assistance of trial counsel. Nowhere in the petition does he allege that his trial counsel‘s conduct did not constitute a valid waiver, or that this court‘s finding that his counsel waived the instructional error violated his right to due process. Further, at no point during the habeas proceedings did the petitioner or the respondent elicit testimony concerning whether trial counsel had waived the challenged instructional error or whether that waiver violated the petitioner‘s right to due process, and the habeas court made no such ruling. To review the petitioner‘s claims “now would amount to an ambuscade of the [habeas] judge.” (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn. App. 120, 126, 977 A.2d 772, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009). Moreover, because the petitioner did not raise the issue related to the waived instructional error claim before the habeas court, either during the proceedings or in his petition for certification to appeal, the habeas court could not have, and did not, abuse its discretion in denying his petition for certification to appeal as it relates to this issue. Accordingly, that portion of the appeal must be dismissed.
II
We now address the petitioner‘s remaining claim that his trial counsel rendered ineffective assistance by failing to request a jury charge on the affirmative defensе to felony murder. As noted, prior to oral argument before this court, we ordered the petitioner to file a supplemental brief addressing the threshold issue of whether the habeas court had abused its discretion by denying his petition for certification to appeal, with which the petitioner timely complied. When given the opportunity to address this threshold issue in his supplemental brief, however, the petitioner focused exclusively on his challenge to this court‘s finding of waiver. Simply put, the petitioner did not address how his claim of ineffective assistance for failure to request a charge on the affirmative defense to the felony murder chargе—the only claim before us that was raised before the habeas court—satisfies the requirements of Simms v. Warden, supra, 230 Conn. 612. More particularly, he failed to argue why that claim presents a question that is deserving of
Because we have no basis for cоncluding that the habeas court abused its discretion in denying the petitioner‘s petition for certification to appeal from its denial of his claim of ineffective assistance based on trial counsel‘s failure to request a charge on the affirmative defense to felony murder, that portion of his appeal аlso must be dismissed.
The appeal is dismissed.
In this opinion the other judges concurred.