Barlow v. Comm'r of Correction.

• Decision Date: 30 August 2011
• Docket Number: No. 31861.,31861.
• Court: Connecticut Court of Appeals
• Parties: Alison BARLOWv.COMMISSIONER OF CORRECTION.

131 Conn.App. 90

26 A.3d 123

Alison BARLOW

v.COMMISSIONER OF CORRECTION.

No. 31861.

Appellate Court of Connecticut.

Argued May 24, 2011.Decided Aug. 30, 2011.

Naomi Fetterman, with whom, on the brief, was Aaron J. Romano, Bloomfield, for the appellant (petitioner).John A. East III, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, former state's attorney, and John J. Davenport, senior assistant state's attorney, for the appellee (respondent).GRUENDEL, BEAR and SCHALLER, Js.SCHALLER, J.

The petitioner, Alison Barlow, appeals following the habeas court's denial of his petition for certification to appeal from the judgment denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his appellate counsel had provided ineffective assistance. More specifically, the petitioner argues that his appellate counsel's performance was deficient because she failed to raise claims that the trial court improperly instructed the jury (1) by giving an incorrect definition of intent and (2) by failing to include the necessary elements of the charged criminal offenses. We dismiss the appeal.

The following facts and procedural history are relevant to the resolution of the petitioner's appeal. On January 9, 1997, the petitioner and two acquaintances rented a Geo Tracker vehicle and drove to a grocery store on Willow Street in Waterbury, where the petitioner intended to retaliate against several unidentified persons who had attempted to kill him. Shortly thereafter, two people, Joel Mercado and Naomi Williams, were wounded and hospitalized as a result of gunshots fired from the Geo Tracker. During a search of the area, detectives found thirteen shell casings; ten were .22 caliber, and three were ten millimeter. The police investigation led them to the residence of Demetrice Chapman, the mother of the petitioner's daughter. While interviewing Chapman, two officers encountered the petitioner and arrested him on charges unrelated to the present appeal. After obtaining a search warrant, the police searched his Thunderbird and recovered a ten millimeter Colt pistol with its serial number obliterated. They subsequently determined that three ten millimeter shell casings found at the crime scene were from that pistol. The petitioner was charged with offenses related to the shooting.

In 1998, following a jury trial, the petitioner was convicted of attempt to commit murder in violation of General Statutes §§ 53a–49 (a)(2) and 53a–54a, conspiracy to commit murder in violation of General Statutes §§ 53a–48 (a) and 53a–54a, two counts of assault in the first degree in violation of General Statutes § 53a–59 (a)(1) and alteration of a firearm identification number in violation of General Statutes § 29–36. The court sentenced the petitioner to a prison term of thirty-five years. The petitioner, represented by attorney Lori Welch–Rubin, unsuccessfully appealed his conviction. See State v. Barlow, 70 Conn.App. 232, 797 A.2d 605, cert. denied, 261 Conn. 929, 806 A.2d 1067 (2002).

On September 14, 2009, the petitioner filed his second amended petition for a writ of habeas corpus, alleging the ineffective assistance of Welch–Rubin. After trial, the habeas court issued a memorandum of decision on December 7, 2009, denying the petition for a writ of habeas corpus. The habeas court concluded that the petitioner had failed to establish either deficient performance or prejudice with respect to his counsel's decision not to raise any claims with respect to the trial court's jury instructions. On December 18, 2009, the habeas court denied his petition for certification to appeal.

“We begin by setting forth the applicable standard of review. Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision 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 deserve encouragement to proceed further....

“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.) Earl G. v. Commissioner of Correction, 106 Conn.App. 758, 760–61, 943 A.2d 1118, cert. denied, 288 Conn. 901, 952 A.2d 809 (2008).

“In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense.” ¹ (Internal quotation marks omitted.) McClam v. Commissioner of Correction, 98 Conn.App. 432, 436, 909 A.2d 72 (2006), cert. denied, 281 Conn. 907, 916 A.2d 49 (2007). “A reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one.” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 89 Conn.App. 134, 139, 871 A.2d 1103, cert. denied, 275 Conn. 909, 882 A.2d 676 (2005).

With this standard in mind, we review the petitioner's first claim that Welch–Rubin's performance was deficient because she failed to raise, as an issue in his direct appeal, the trial court's improper jury instruction with respect to intent. The record reflects that the trial court initially charged the jury on both specific and general intent.² Because the charged offenses were all specific intent crimes, the petitioner claims that the court's reading of the entire statutory definition of intent, which included language applicable only to general intent crimes, was improper and confused the jury. He argues that he “likely [would] have received a reversal of his conviction or a new trial” if Welch–Rubin had raised this issue in his direct appeal.

After reciting applicable case law, the habeas court noted that it had reviewed all of the jury instructions. According to the habeas court, the trial court had read the improper instruction to the jury once as part of a general definition of intent and then referred back to the improper instruction once during the remainder of the charge. It also determined, however, that the trial court had given the proper instruction on specific intent numerous times when instructing the jury as to the elements of each charged offense. Furthermore, when the trial court referred back to the improper instruction, it had instructed the jury properly on the requisite specific intent for the assault charges immediately before and immediately after that reference. Given the foregoing, the habeas court determined: “[I]t is not reasonably possible that the jury disregarded the proper instructions given by the trial court on the specific intent required for the crimes charged because of its improper recitation of the intent to ‘engage in conduct’ language in its general definition of intent and its single reference thereto later in its charge.” Accordingly, the habeas court concluded that Welch–Rubin's performance was not deficient in failing to raise that claim and that the petitioner did not demonstrate prejudice because he had failed to show that he would have succeeded on his direct appeal if the jury instructions had been challenged.

Our review of the record supports the habeas court's determinations. The case was tried on the theory that the petitioner had the specific intent required for conviction of the crimes of attempted murder, conspiracy to commit murder and first degree assault. The information, which was read to the jury, alleged that he had the requisite specific intent in the commission of the charged offenses. The petitioner's defense was not that he fired the pistol inadvertently but that he had not been present at the time of the shooting. We agree with the habeas court's statement that “it is unlikely that the jury was misled” when the jury instructions are read in their entirety. ³ For the reasons articulated by the habeas court, we reject the petitioner's first claim.⁴

The petitioner's next claim...