Simms v. Warden

• Decision Date: 09 August 1994
• Docket Number: No. 14924,14924
• Court: Connecticut Supreme Court
• Parties: Floyd SIMMS v. WARDEN, State Prison.

Page 126

646 A.2d 126

230 Conn. 608

Floyd SIMMS v. WARDEN, State Prison.

No. 14924.

Supreme Court of Connecticut.

Argued June 1, 1994.

Decided Aug. 9, 1994.

Meryl Anne Spat, Waterbury, with whom was Louis S. Avitabile, Sp. Public Defender, for appellant (petitioner).

Carolyn K. Longstreth, Asst. State's Atty., with whom were Jacqueline J. Footman, Asst. State's Atty., and, on the brief, Patricia A. Swords, State's Atty., for appellee (respondent).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and LAVERY, JJ.

PETERS, Chief Justice.

The dispositive issue in this appeal from the trial court's denial of a writ of habeas corpus is whether the habeas court abused its discretion by denying the petitioner's request for certification to appeal. Earlier this year, in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I ), we held that an appeal, rather than a writ of error, is the proper procedure for appellate review of the denial of a request for certification to appeal the denial of a writ of habeas corpus. Invoking our appellate jurisdiction under General Statutes § 52-265a, we thereafter permitted a belated appeal to allow the petitioner, Floyd Simms, to present his argument that the habeas court had improperly denied his request for certification. We affirm the judgment of the habeas court.

The procedural history of this case is recounted in Simms I, supra, 229 Conn. at 179, 640 A.2d 601. The petitioner filed an amended petition for a writ of habeas corpus to challenge the legality of his detention by the defendant, the warden of the Connecticut correctional institution at Somers (state). His detention results from his 1983 conviction of accessory to assault of a person sixty years of age or older in the first degree pursuant to General Statutes §§ 53a-59(a)(3), 53a-59a and 53a-8, and of robbery in the second degree pursuant to General Statutes § 53a-135(a)(1). ¹ We affirmed his conviction on direct appeal. State v. Simms, 211 Conn. 1, 557 A.2d 914, cert. denied, 493 U.S. 843, 110 S.Ct. 133, 107 L.Ed.2d 93 (1989).

In his petition for a writ of habeas corpus, the petitioner alleges that his conviction should be set aside, or that he should be resentenced, on one of three grounds: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) violation of his rights to due process under the federal and state constitutions. Each of the counts in the petition is premised on the petitioner's underlying contention that the trial judge, Corrigan, J., should have recused himself from presiding at the petitioner's jury trial. The petitioner contends that recusal was necessary largely because Judge Corrigan had presided over a previous jury trial that had resulted in the petitioner's conviction of the crime of felony murder and, at the sentencing for that crime, had commented on the petitioner's lack of credibility. Simms I, supra, 229 Conn. at 179 n. 3, 640 A.2d 601.

The habeas court resolved all three counts of the habeas petition against the petitioner. At the outset of the evidentiary hearing, the habeas court dismissed the third count, in which the petitioner claimed that the trial judge's failure to recuse himself from presiding over the petitioner's criminal trial had deprived the petitioner of his constitutional right to due process. The habeas court dismissed this count because it contained no allegations that might excuse the petitioner's failure to raise this issue in his direct appeal. After the conclusion of the evidentiary hearing and the filing of briefs, the habeas court denied, on their merits, the remaining counts alleging ineffective assistance of trial and appellate counsel. The habeas court also denied the petitioner's subsequent request pursuant to General Statutes § 52-470(b), ² for certification to appeal. The petitioner has appealed from the trial court's denial of certification and its adverse disposition on each of the counts of his petition.

In Simms I, in directing a habeas corpus petitioner to pursue an appeal rather than a writ of error in order to challenge an adverse judgment of the habeas court, we suggested that such an appeal requires the petitioner to make a two part showing. 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. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court's permission. State v. Bergin, 214 Conn. 657, 660-61, 574 A.2d 164 (1990); State v. S & R Sanitation Services, Inc., 202 Conn. 300, 311, 521 A.2d 1017 (1987); State v. Avcollie, 174 Conn. 100, 110-11, 384 A.2d 315 (1977). 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. Simms I, supra, 229 Conn. at 186-87, 640 A.2d 601. We adopt this two part test as our holding in this case and conclude that the habeas court did not abuse its discretion in denying the petitioner's request for certification to appeal.

I

Before we undertake a review of the petitioner's appeal to determine whether he has met his threshold burden of demonstrating an abuse of discretion in the denial of his certification to appeal, we must clarify two antecedent procedural issues. The first is a question of characterization: in a habeas corpus case, does a decision on the issue of abuse of discretion implicate the jurisdiction of the appellate tribunal? The second is a question of standards: in a habeas corpus case, is a decision on the issue of abuse of discretion governed by articulable criteria, and, if so, what should these criteria be?

A

The grant of a qualified right to appeal in § 52-470(b) is the source of the jurisdictional issue that we must decide. That subsection provides: "No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies." The question raised by § 52-470(b) is whether the language before "[n]o appeal ... may be taken" was intended by the legislature as a limitation on the jurisdiction of the appellate tribunal or as a limitation on the scope of the review by the appellate tribunal.

In Simms I, supra, 229 Conn. at 187-89, 640 A.2d 601, we assumed that § 52-470(b) imposed jurisdictional constraints upon an appellate tribunal because we have so held in cases interpreting General Statutes § 54-96, which authorizes the state, with the permission of the trial court, to appeal questions of law in criminal cases. In appeals arising under the latter statute, a denial of permission to the state to appeal, if that denial is not an abuse of discretion, deprives the appellate tribunal of subject matter jurisdiction. State v. Bergin, supra 214 Conn. at 660-63, 574 A.2d 164; State v. S & R Sanitation Services, Inc., supra, 202 Conn. at 313, 521 A.2d 1017; State v. Audet, 170 Conn. 337, 340, 365 A.2d 1082 (1976). Under § 54-96, we have held permission to appeal to be jurisdictional because, at common law, the state had no right to appeal in criminal cases. State v. Falzone, 171 Conn. 417, 417-18, 370 A.2d 988 (1976); State v. Audet, supra, 170 Conn. at 340-42, 365 A.2d 1082; State v. Brown, 16 Conn. 54, 58-59 (1843).

It is plausible to draw an analogy from § 54-96 to § 52-470(b) because, as we explained in Carpenter v. Meachum, 229 Conn. 193, 200, 640 A.2d 591 (1994), at common law, a petitioner had no right to appeal the denial of a writ of habeas corpus. Our decision in Carpenter would presumably permit the legislature to impose conditions on appellate review that, if not met, would deprive an appellate tribunal of jurisdiction.

On further reflection, however, we are persuaded that the question before us is not one of legislative power but of legislative intent. See Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). When the legislature enacted § 54-96, it coupled the grant of authority for the state to appeal with the necessity for the state to obtain permission to appeal. By contrast, when the legislature enacted § 52-470(b), it limited a statutory right to appeal that had existed, unconditionally, since 1882. Carpenter v. Meachum, supra, 229 Conn. at 202, 640 A.2d 591; Iovieno v. Commissioner of Correction, 222 Conn. 254, 259-60, 608 A.2d 1174 (1992). The issue in this case, therefore, is whether the legislature, in amending § 52-470, intended to impose a jurisdictional limitation on appellate jurisdiction or intended merely to limit the scope of appellate review. In light of the significant role of the writ of habeas corpus in our jurisprudence; Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984); and the strong presumption in favor of appellate jurisdiction; Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 854, 633 A.2d 305 (1993); Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. at 765, 628 A.2d 1303; we conclude that the legislature intended the certification requirement only to define the scope of our review and not to limit the jurisdiction of the appellate tribunal. ³

B

In Simms I, we proposed that, as a prerequisite to plenary appellate review of the merits of the dismissal of a habeas corpus petition, a petitioner who is denied a timely request for certification to appeal must demonstrate that the denial of certification was an abuse of...