209 Conn. 75 | Conn. | 1988
Lead Opinion
The petitioner, Armando Valeriano, sought a writ of habeas corpus, claiming that he had been denied the effective assistance of appellate counsel in his appeal from his conviction of the crime of felony murder. The trial court, O’Neill, J., denied the petition and the Appellate Court affirmed that decision. Valeriano v. Bronson, 12 Conn. App. 385, 530 A.2d 1100 (1987). We affirm.
The petitioner was convicted of felony murder in violation of General Statutes (Rev. to 1977) § 53a-54c
Before we set out the appropriate procedure to resolve the issues raised by the petitioner, it is useful to review the analysis of the Appellate Court. It framed the issue on appeal as follows: “[WJhether the traditional ‘deliberate bypass’ standard should be applied to a habeas corpus petition when the failure to raise a particular issue on direct appeal resulted from a deliberate decision on the part of the petitioner’s appellate counsel.” Valeriano v. Bronson, supra, 386. The Appellate Court then stated this court’s general rule that although habeas corpus cannot be used as an alternative to a
The deliberate bypass standard,
The Appellate Court recognized that the United States Supreme Court has subsequently developed the more restrictive standard of “cause” and “prejudice” for access to federal habeas corpus relief by a state prisoner who has defaulted on a state procedural ground. See Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). In Sykes, the court held that a state prisoner could not bring federal constitutional claims to a federal habeas court without a showing of “cause” for his state procedural default and actual “prejudice.” Id., 87. The cause and prejudice test applies to defaults on appeals as well as to those at trial. Murray v. Carrier, 477 U.S. 478, 491, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). This restrictive rule is somewhat ameliorated by a general exception that “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of showing of cause for the procedural default.” Id., 496.
This court has acknowledged the existence of the cause and prejudice test announced in Wainwright v. Sykes, supra; see State v. Davis, 199 Conn. 88, 95 n.4, 506 A.2d 86 (1986); Paulsen v. Manson, supra, 338 n.5; D’Amico v. Manson, supra, 148; and it has also recognized that it is more restrictive than the “deliberate bypass” test that has been adopted by this court.
The Appellate Court in Valeriano v. Bronson, supra, 389, distinguished the use of the deliberate bypass standard as applying to only those cases where the defendant failed to bring an appeal at all; see, e.g., Paulsen v. Manson, supra; or appeared pro se. See, e.g., Galland v. Bronson, 204 Conn. 330, 527 A.2d 1192 (1987); but see Turcio v. Manson, supra (failure to raise claim of invalid jury instruction on appeal assessed by deliberate bypass test).
Recognizing that ineffective assistance of appellate counsel can be grounds for “cause” in the federal
The petitioner claims that the Appellate Court erred in: (1) applying the federal cause and prejudice standard to a state habeas corpus proceeding; (2) denying the writ of habeas corpus inasmuch as the year and a day rule was still in effect; and (3) preventing the petitioner from obtaining review of a nonfrivolous issue on appeal. We affirm the decision of the Appellate Court.
This court must decide the threshold issue of which standard is appropriate for a petitioner to obtain review of a claim of ineffective assistance of appellate counsel: deliberate bypass or cause and prejudice. We conclude that the cause and prejudice test is unnecessary when a habeas court is faced with a claim formulated within the narrow confines of ineffective assistance of appellate counsel.
Although the cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertance or ignorance, a claim of ineffective assistance of counsel, by definition, involves incompetence under sixth amendment standards. The United States Supreme Court, while endorsing the more restrictive cause and prejudice test, has concluded that, although ignorance or inadvertance is not cause, ineffective assistance of counsel is a legitimate ground for cause. Murray v. Carrier, supra, 488. That determination of ineffectiveness is made under the two part test for ineffective assistance of counsel under Strickland v. Washington, supra.
We conclude that when a petitioner raises a claim of ineffective assistance of appellate counsel because his attorney did not raise an issue on direct appeal, the deliberate bypass standard should be utilized. We also conclude that any claim invoking ineffective assistance of appellate counsel automatically satisfies the deliberate bypass requirement. In State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986), we decided to permit review of all claims of ineffective assistance of trial counsel in habeas corpus proceedings. In such instances, we assumed the deliberate bypass standard was automatically satisfied. Id. The same posture logically applies to ineffective assistance of appellate counsel claims. Thus, the petitioner has satisfied the deliberate bypass standard to the extent that his ineffective assistance of appellate counsel claim will be addressed.
II
A
We move to the issue of whether the petitioner’s appellate counsel rendered ineffective assistance of counsel under the standard of Strickland v. Washington, supra. In order to establish his claim for relief, the “petitioner must make a two-fold showing: (1) that his counsel’s performance fell below the required standard of reasonable competence or competence displayed by
We conclude that it is appropriate to decide this case by asking first whether the failure to raise the “year and a day” issue by appellate counsel fell below the standard of reasonable competence.
B
The “year and a day” rule was raised by trial counsel for the petitioner, assistant public defender Richard Shiffrin, in a pretrial motion to dismiss the indictment, which the trial court, Hadden, J., denied. Attorney John Williams entered an appearance in the case during jury selection, served as cocounsel during the trial, and then filed an appeal to this court for the petitioner. See State v. Valeriano, supra. It is his decision not to raise the “year and a day” rule on appeal that is at issue here. Our task here is to decide whether the decision not to appeal the “year and a day” ruling fell below the “ ‘ “ ‘reasonable] competence] or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.’ ” ’ ” Levine v. Manson, supra, 639. We conclude that the petitioner’s appellate counsel did not fall below the standard guaranteed by the sixth amendment to the United States constitution to defendants on appeal as of right. Evitts v. Lucey, 469 U.S. 387, 397, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985).
Counsel for the petitioner testified that he examined the trial court’s extensive memorandum of decision, which covered ten pages on the issue of a “year and a day” rule, reviewed cases from other jurisdictions, and analyzed the felony murder statute in light of the role that Connecticut’s enactment of the penal code played in abrogating the common law. An attorney with
In Jones, the United States Supreme Court also said that “[tjhere can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. ... A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions.” Jones v. Barnes, supra, 752-53. In doing so, the court rejected the Second Circuit Court of Appeal’s announcement of “a new per se rule that appellate counsel must raise every nonfrivolous issue requested by [a] client . . . .” Id., 750-51. The Jones court pointed out that the per se rule of the Second Circuit Court of Appeals was contrary to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. denied, 388 U.S. 924, 87 S. Ct. 2094,
Relying on his research and the trial court’s memorandum of decision, counsel came to the reasonable conclusion that the “year and a day” rule did not exist in Connecticut when the petitioner had committed the offense. We agree that a reasonably competent attorney could have come to this conclusion.
First of all, it is very doubtful if the rule ever existed in Connecticut. See State v. Jacowitz, 128 Conn. 40, 44, 20 A.2d 470 (1941) (“[mjurder, at common law, is the unlawful killing of one human being by another with malice aforethought”). The “year and a day” rule was referred to in State v. Bantley, 44 Conn. 537, 538 (1877),
The petitioner places great stress on State v. Assuntino, 173 Conn. 104, 376 A.2d 1091 (1977), where, despite the amendment of the statute authorizing writs of error from the Court of Common Pleas which deleted any reference to that court, we held, nevertheless, that authority still persisted because the writ existed under our common law. Assuntino is distinguishable from this case. In Assuntino, we recognized that “the common-law origin of the writ of error was recognized [soon after our 1818 constitution] both by statute and by court decision.” Id., 110. By contrast, we have been referred to no Connecticut decision that has adopted and applied the “year and a day” rule nor has our research disclosed any.
Initially, we note that the general comment by the Commission to Revise the Criminal Statutes (commission) at the beginning of chapter 951 of the General Statutes, which begins with § 53a-4, relates that all the
The savings clause does provide that “[t]he provisions of this chapter shall not be construed as precluding any court from recognizing other principles of criminal liability or other defenses not inconsistent with these provisions.” (Emphasis added.) General Statutes § 53a-4. As the petitioner points out, the commission comment on § 53a-4 includes the statement that “[t]he purpose of this saving clause is to make clear that the provi
Even accepting the commission comment on § 53a-4 that its purpose is to make clear that all the subsequent statutes, which define the principles of criminal liability and defenses, “are not necessarily exclusive,” that comment is still subject to the statutory direction in § 53a-4 that the lack of preclusion by a court of “recognizing . . . other defenses” must still be “not inconsistent” with the provision of chapter 951. An examination of all the provisions in that chapter after § 53a-4 demonstrates that a matter in bar such as the “year and a day” rule would be inconsistent with those provisions. First, given the sweeping overhaul of the criminal law wrought by the penal code in 1969, it is wholly illogical that such a defense in bar not be specifically included in the code or this chapter which is rife with “defenses.” Particularly is this so where the crime of homicide is involved. In addition, we have already referred to the original reason for the “year and a day” rule developed
It must also be remembered that it was the petitioner, not the respondent, who had the burden of proving that the rule was “saved” by § 53a-4. He has not sustained that burden. In our view, to say that it was “saved” by § 53a-4 would be inconsistent with the provisions of chapter 951 and the accomplishment of its statutory objectives. The petitioner’s appellate counsel, therefore, could have come to the reasonable conclusion that the saving clause of § 53a-4 would not avail the petitioner.
Lastly, although a majority of states retain the common law “year and a day” rule; State v. Minster, 302 Md. 240, 246-47, 486 A.2d 1197 (1985); annot., 60 A.L.R.3d 1323, 1325 (1974); it is in decline throughout the United States. See State v. Minster, supra, 246 (noting that sixteen states have abolished it since 1941); 1 P. Robinson, supra, § 105 (h) (“[a] narrow and decreasing majority of jurisdictions still recognizes the year and a day rule”). Numerous jurisdictions have abolished it. See, e.g., People v. Stevenson, 416 Mich. 383, 394, 331 N.W.2d 143 (1982); State v. Young, 148 N.J. Super. 405, 412-13, 372 A.2d 1117 (1977); People v. Legeri, 239 App. Div. 47, 49, 266 N.Y.S. 86 (1933); Commonwealth v. Ladd, 402 Pa. 164, 173, 166 A.2d 501 (1960). Many of these courts have recognized that the policy behind the rule is dubious in view of the advanced nature of medical technology in the twentieth century. See, e.g., People v. Stevenson, supra, 392; State v. Young, supra, 412; Commonwealth v. Ladd, supra.
The record demonstrates that the petitioner’s appellate counsel was aware of the “year and a day” issue and had the benefit of the trial court’s lengthy memorandum. All the research available to the petitioner’s counsel pointed to the fact that the rule had either never
There is no error.
In this opinion Peters, C. J., Callahan and Covello, Js., concurred.
General Statutes (Rev. to 1977) § 53a-54c provides: “felony murder. A person is guilty of murder when acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping,
The petitioner raised three claims of error in his direct appeal. The claims were that the trial court erred (1) in its instruction on the phrase, “in furtherance of such crime,” in the felony murder statute, (2) in refusing to submit to the jury an affirmative defense available under the felony murder statute, and (3) in denying the defendant’s motion to exclude a witness as incompetent, in permitting that witness to invoke the privilege against self-incrimination, and in refusing to strike his testimony. State v. Valeriano, 191 Conn. 659, 661, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984).
The “year and a day” rule can be traced to the Statute of Gloucester, 1278, 6 Edw. 1, c. 9 (repealed). “The reason assigned for that rule was that if the person alleged to have been murdered ‘die after that time, it cannot
This court granted certification on the following issues: “(1) Did the Appellate Court err in applying the federal ‘cause and prejudice’ standard in a state habeas corpus proceeding where the petitioner seeks to raise a non-frivolous issue that his attorney did not pursue on appeal although it had been raised in the trial court?
“(2) Where a petitioner has not deliberately bypassed the opportunity to raise a non-frivolous issue on appeal, may he be denied an opportunity to raise that issue in a post-conviction habeas corpus proceeding?”
The deliberate bypass rule is a “prudential limitation on the right to raise constitutional claims in collateral proceedings.” Payne v. Robinson, 207 Conn. 565, 569 n.1, 541 A.2d 504 (1988); see Vena v. Warden, 154 Conn. 363, 366-67, 225 A.2d 802 (1966); see also Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). This court had previously described the rule as jurisdictional. See, e.g., Galland v. Bronson, 204 Conn. 333, 336, 527 A.2d 1192 (1987); Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979).
The Appellate Court distinguished Turcio v. Manson, 186 Conn. 1., 439 A.2d 437 (1982), as a case that predated Murray v. Carrier, 477 U.S. 478, 491, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986), where the United States Supreme Court extended the “cause” and “prejudice” test to tactical decisions made on appeal. Valeriano v. Bronson, 12 Conn. App. 385, 392 n.3, 530 A.2d 1100 (1987).
We recognize that “[w]e are not compelled, of course, to conform our postconviction procedure to that of the federal jurisdiction.” Vena v. Warden, 154 Conn. 363, 366, 225 A.2d 802 (1966); see Paulsen v. Manson, 193 Conn. 333, 337, 476 A.2d 1057 (1984) (applying deliberate bypass standard rather than cause and prejudice test). We conclude only that the deliberate bypass test applies to ineffective assistance of appellate counsel claims even when the basis for the ineffectiveness is the omission of an issue on appeal. But cf. Murray v. Carrier, 477 U.S. 478, 492, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). We decline to address the conclusion of the Appellate Court that the cause and prejudice test applies to the strategic or tactical determination of whether to include a particular issue on appeal in circumstances other than ineffective assistance of appellate counsel claims.
The United States Supreme Court has also held that a claim of ineffective assistance of counsel should be presented to the state courts as an independent claim before it may be used to establish cause for a procedural
The Appellate Court also reached only the competency part of the test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), although it did so in the framework of the “cause” and “prejudice” test. Valeriano v. Bronson, 12 Conn App. 385, 393-95, 530 A.2d 1100 (1987).
Swift’s Digest refers to the common law “year and a day” rule. 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 291. Swift, however, makes no statement that the “year and a day” rule was determined to be part of Connecticut common law as opposed to a part of the English common law in general. It must be remembered that Swift’s Digest not only covered Connecticut law but encompassed the law “gen
The Model Penal Code, which is reflected in many of Connecticut’s penal code provisions, expressly abrogates the year and a day rule. See II A.L.I., Model Penal Code and Commentaries (1980) § 210.1, pp. 9-10.
General Statutes § 53a-4 provides: “saving clause. The provisions of this chapter shall not be construed as precluding any court from recognizing other principles of criminal liability or other defenses not inconsistent with such provisions.”
Concurrence Opinion
concurring. I agree with the result and also with the resolution of the substantive issue of the present viability of the common law “year and a day” rule in part II B of the opinion. I do not join in the remainder of the opinion because the elaborate discussion of the availability of relief in a habeas corpus proceeding where there has been a procedural default in failing to raise seasonably the grounds claimed to invalidate the conviction is quite unnecessary in this extraordinary case and overlooks its unique nature.
It is absolutely clear in this case that the victim of the fire died more than one year after the criminal act of the defendant that caused her death. See State v. Valeriano, 191 Conn. 659, 661, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984). Thus, if the year and a day rule were
In Murray v. Carrier, 477 U.S. 478, 495, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986), where the United States Supreme Court applied the “cause and prejudice” standard to a procedural default of appellate counsel, the court recognized, nevertheless, that “the principles of comity and finality that inform the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust incarceration.’ ” “Accordingly, we think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Id., 496. This court in exercising its habeas corpus jurisdiction should do no less. “The very nature of the writ demands that it be administered with the initiative and flexibility to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291, 89 S. Ct. 1082, 22 L. Ed. 2d 281, reh. denied, 394 U.S. 1025, 89 S. Ct. 1623, 23 L. Ed. 2d 50 (1969). When it is clear, as in this case, that a petitioner would be innocent of the crime for which he stands convicted if a nonfrivolous issue of substantive law is resolved in his favor, not even a deliberate bypass of the appeal process should preclude a determination of that issue on its merits. Courts ought not to “suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements.” Hensley v. Municipal Court, 411 U.S. 345, 350, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973).
Accordingly, I agree with the result.