Cator v. Comm'r of Corr.

Citation185 A.3d 601,181 Conn.App. 167
Decision Date17 April 2018
Docket NumberAC 39795
CourtAppellate Court of Connecticut
Parties Frantz CATOR v. COMMISSIONER OF CORRECTION

Naomi T. Fetterman, assigned counsel, for the appellant (petitioner).

Linda F. Currie–Zeffiro, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Emily D. Trudeau, deputy assistant state's attorney, for the appellee (respondent).

Alvord, Prescott and Pellegrino, Js.

PELLEGRINO, J.

The petitioner, Frantz Cator, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his fourth petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal from the denial of his amended petition, (2) improperly concluded that he failed to establish that his appellate counsel in his direct criminal appeal rendered deficient performance, and (3) improperly concluded that his stand-alone due process claim was procedurally defaulted. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal and, accordingly, dismiss the petitioner's appeal.

The following facts and procedural history are relevant to our disposition of the petitioner's appeal. In connection with the murder of the victim, Nathaniel Morris, the state charged the petitioner with capital felony in violation of General Statutes § 53a–54b (5) ; felony murder in violation of General Statutes § 53a–54c ; murder as an accessory in violation of General Statutes §§ 53a–54a (a) and 53a–8 (a) ; conspiracy to commit murder in violation of General Statutes §§ 53a–48 and 53a–54a (a) ; kidnapping in the second degree in violation of General Statutes § 53a–94 (a) ; conspiracy to commit kidnapping in the second degree in violation of §§ 53a–48 and 53a–94 (a) ; and commission of a Class A, B or C felony with a firearm in violation of General Statutes § 53–202k.

A five day jury trial began on October 14, 1997. At the close of the state's evidence, the petitioner's trial counsel, Kevin Randolph, moved for a judgment of acquittal with respect to the charges of capital felony murder, felony murder, murder, conspiracy to commit murder and conspiracy to commit kidnapping in the second degree on the basis of insufficient evidence. The court granted the petitioner's motion only as to the capital felony murder charge. The petitioner was subsequently convicted on all remaining charges and sentenced to a total effective term of fifty-five years incarceration, execution suspended after fifty years, followed by five years of probation. See State v. Cator , 256 Conn. 785, 787–88, 781 A.2d 285 (2001).

The petitioner appealed from the trial court's judgment to this court, and our Supreme Court transferred the appeal to itself pursuant to General Statutes § 51–199 (c) and Practice Book § 65–1. Id., at 788, 781 A.2d 285. Attorney Suzanne Zitser, the petitioner's appellate counsel, raised seven issues on his behalf, specifically claiming that the trial court improperly "(1) failed to determine whether there was a conflict in dual representation at the probable cause hearing; (2) admitted evidence of the [petitioner's] prior, uncharged drug dealing; (3) failed to instruct the jury regarding the [petitioner's] prior drug dealing; (4) modified the judgment of conviction after the [petitioner] had begun serving his imposed prison term; (5) charged the jury that § 53–202k is a separate offense and encompasses accessory liability; (6) sentenced him to concurrent terms for two conspiracies and thereby violated the ban on double jeopardy; and (7) failed to provide him with formal notice that he had violated his probation stemming from a previous conviction." State v. Cator , supra, 256 Conn. at 789, 781 A.2d 285. Our Supreme Court subsequently reversed the trial court's judgment in part and remanded the case with direction (1) to vacate the petitioner's conviction under § 53–202k and to conduct a new trial on the issue of whether the petitioner "used a proscribed firearm in the commission of the underlying offense"; id., at 812, 781 A.2d 285 ; and (2) to merge the petitioner's convictions of the conspiracy offenses and to impose one sentence for that conviction. See id., at 813, 781 A.2d 285. The judgment was affirmed in all other aspects. See id. On April 22, 2003, the trial court modified the petitioner's sentence to a total effective sentence of forty-five years.

The petitioner has brought five habeas petitions since he was convicted.1 On December 4, 2013, the self-represented petitioner filed his fourth petition for a writ of habeas corpus. On June 7, 2016, the petitioner, represented by appointed counsel, filed the amended three count operative petition. The petitioner alleged: (1) the ineffective assistance of his trial counsel; (2) the ineffective assistance of his appellate counsel in his direct criminal appeal, on the basis of her failure to raise claims of instructional error and insufficient evidence to sustain his convictions of murder, conspiracy to commit murder, and felony murder; and (3) a violation of his due process rights at his underlying criminal trial on the basis of the aforementioned instructional impropriety. On July 12, 2016, the respondent, the Commissioner of Correction, moved to dismiss the petitioner's amended petition in its entirety. On July 21, 2016, the petitioner filed an objection to the respondent's motion to dismiss.

The habeas trial was held on July 25, 2016. The habeas court granted the respondent's motion to dismiss with respect to the petitioner's claim against his trial counsel. The habeas court heard testimony from Randolph, Zitser, and Assistant State's Attorney C. Robert Satti, Jr., the prosecutor in the petitioner's criminal trial. The petitioner also presented expert testimony from Attorney Norman A. Pattis, an expert in criminal defense matters in state court, and Attorney Michael Taylor, an expert in appellate law, both of whom rendered opinions as to the effectiveness of Zitser. On October 11, 2016, the habeas court issued a written decision denying the petitioner's amended petition. The habeas court concluded that the petitioner failed to establish that Zitser had rendered deficient performance and that the petitioner's due process claim was procedurally defaulted. Thereafter, on October 19, 2016, the habeas court denied the petition for certification to appeal, and this appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal from the denial of his amended petition for a writ of habeas corpus. We disagree.

Preliminarily, we set forth the standard of review that governs our disposition of the petitioner's appeal. "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, [the petitioner] 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 the merits.... To prove that the denial of his petition for certification to appeal constituted 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....

"In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Internal quotation marks omitted.) Salmon v. Commissioner of Correction , 178 Conn. App. 695, 700–701, 177 A.3d 566 (2017).

As discussed subsequently in parts II and III of this opinion, we conclude that the petitioner's underlying claims do not involve issues that are debatable among jurists of reason, could not have been resolved by a court in a different manner or that the questions raised deserve encouragement to proceed further. Accordingly, the habeas court did not abuse its discretion in denying the petition for certification to appeal from the denial of the amended petition for a writ of habeas corpus.

II

We now turn to the petitioner's substantive claims that the habeas court improperly concluded that the petitioner failed to establish ineffective assistance of his appellate counsel. The petitioner claims that his appellate counsel rendered ineffective assistance by failing to raise the following claims on direct appeal: (1) instructional error with respect to intent, and (2) insufficient evidence adduced at trial to sustain his convictions of murder as an accessory, conspiracy to commit murder, and felony murder. We disagree.

We begin by setting forth the applicable standard of review and legal principles governing claims of ineffective assistance of appellate counsel. "The habeas court is afforded broad discretion in making its factual findings, and those findings will...

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  • Collins v. Comm'r of Corr.
    • United States
    • Appellate Court of Connecticut
    • February 23, 2021
    ...that his default by failure to do so should be excused." (Internal quotation marks omitted.) Cator v. Commissioner of Correction , 181 Conn. App. 167, 199, 185 A.3d 601, cert. denied, 329 Conn. 902, 184 A.3d 1214 (2018). Ordinarily, if the state "alleges that a [petitioner] should be proced......
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    ...he can prove that his default by failure to do so should be excused." (Internal quotation marks omitted.) Cator v. Commissioner of Correction , 181 Conn. App. 167, 199, 185 A.3d 601, cert. denied, 329 Conn. 902, 184 A.3d 1214 (2018). "Prior to 1991, [our Supreme Court] employed the delibera......
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    ...that his default by failure to do so should be excused." (Internal quotation marks omitted.) Cator v. Commissioner of Correction , 181 Conn. App. 167, 199, 185 A.3d 601, cert. denied, 329 Conn. 902, 184 A.3d 1214 (2018). Ordinarily, if the respondent "alleges that a [petitioner] should be p......
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