80 Conn. App. 142 | Conn. App. Ct. | 2003
Opinion
The petitioner, Mark A. Mason, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus and his petition for certification to appeal to this court. On appeal, the petitioner argues that the court (1) abused its discretion when it denied his petition for certification to appeal and (2) improperly denied his second amended petition for a writ of habeas corpus because the court incorrectly determined that he was not denied the effective assistance of counsel. We dismiss the appeal.
The following facts, as found by the court, are relevant to our disposition of the petitioner’s appeal. After being arrested and charged with a multitude of offenses, the petitioner entered a plea of guilty to several of those
On February 22, 1991, the petitioner was released from the Norfolk County House of Correction in Massachusetts to the custody of the state of Rhode Island. On June 6, 2001, he was extradited from Rhode Island to Connecticut. The court appointed Ramon Canning as the petitioner’s public defender on the still pending charges. In addition to the charges previously discussed, the state added a charge of failure to appear stemming from the petitioner’s absence from the November 26, 1990 sentencing hearing, and the plea agreement was also withdrawn. The potential maximum exposure that the petitioner faced on all counts was approximately 200 years. Canning, however, was able to negotiate another plea agreement with the state, which required that the petitioner plead guilty to one count of burglary in the third degree in violation of General Statutes § 53a-103 and one count of failure to appear in the first degree in violation of General Statutes
On April 5, 2001, the petitioner filed a second amended petition for a writ of habeas corpus, claiming that Canning was ineffective because he allowed the petitioner to plead guilty to a charge of failure to appear when the petitioner had not committed that crime.
Specifically, the court found, on the basis of the credible testimony of Canning,
“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, 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. . . . Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. . . .
“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to
“For the petitioner to prevail on his [underlying] claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” White v. Commissioner of Correction, 58 Conn. App. 169, 170, 752 A.2d 1159 (2000), citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
After reviewing the record and the briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. See Bewry v. Commissioner of Correction, supra, 73 Conn. App. 549-50; see Daniels v. Commissioner of Correction, 75 Conn. App. 196, 198, 815 A.2d 715 (2003). He also has failed to sustain his burden of persuasion that the court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. See Bewry v. Commissioner of Correction, supra, 550; see also Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).
The appeal is dismissed.
In 1994, the petitioner filed his first habeas petition, challenging the failure to appear conviction. A special public defender, David A. Dee, was appointed for that matter. That petition, however, was withdrawn on September 16,1994, signed by both Dee and the petitioner. Dee then filed a motion to withdraw with prejudice, indicating that such withdrawal was necessary for the records of the public defender’s office. The court granted that motion on November 7, 1994. Dee, however, had not discussed the filing of the motion to withdraw with prejudice with the petitioner. In his second amended petition, the petitioner also argued that Dee had rendered ineffective assistance of counsel by filing a motion to withdraw with prejudice. The court held, however, that “prior habeas counsel could not have rendered ineffective assistance of counsel in a matter in which [the petitioner] has failed to show that the claim in the prior habeas had any merit.” That finding is not challenged on appeal.
At the habeas trial, Canning testified that he had read a statement in the prosecutor’s file in which a witness overheard the defendant remark that he “was due in court on the eighteenth [of October] for sentencing, and he wanted to go to Canada to avoid that sentence.” He further testified that the petitioner had indicated to Canning that he did make that statement.