Davis v. Comm'r of Corr.

• Decision Date: 31 December 2013
• Docket Number: AC 34360
• Court: Connecticut Court of Appeals
• Parties: DOUGLAS DAVIS v. COMMISSIONER OF CORRECTION

DOUGLAS DAVIS v. COMMISSIONER OF CORRECTION

AC 34360

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued September 11, 2013

Officially released December 31, 2013

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(Appeal from Superior Court, judicial district of

Tolland, Newson, J.)

Aaron J. Romano, assigned counsel, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Adrienne Maciulewski, special deputy assistant state's attorney, for the appellee (respondent).

Opinion

SULLIVAN, J. The petitioner, Douglas Davis, appeals following the denial of his petition for certification to appeal the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying certification to appeal, and that it improperly rejected his claims that his trial counsel provided ineffective assistance by failing to (1) investigate the petitioner's case, (2) adequately advise the petitioner at the pretrial and postplea stages, (3) present mitigating evidence in pretrial negotiations, and (4) present mitigating evidence at sentencing. The appeal is dismissed as to the first three claims and the judgment is affirmed as to the fourth claim.

The following facts, as found by the habeas court, and procedural history are relevant to this appeal. On October 1, 2004, the petitioner and others were shooting dice and gambling in New Haven. Prior to and during the course of these events, the petitioner consumed a significant amount of alcohol. Due to a dispute over a roll of the dice, a verbal argument erupted between the petitioner and the victim. The two began to approach each other as if to engage in a physical altercation, and the petitioner pulled a handgun out of his waistline area. According to witnesses, as the victim continued to advance toward the petitioner, the petitioner shot the victim in the abdomen area, a wound from which he later died. The petitioner consistently has maintained that the gun went off accidentally and that he did not intend to shoot the victim. The petitioner initially was charged with murder in violation of General Statutes § 53a-54a¹ and carrying a pistol without a permit in violation of General Statutes § 29-35.²

Shortly after the petitioner's arraignment on the above charges, Attorney Lawrence Hopkins was appointed to represent the petitioner as a special public defender. After pretrial negotiations, on June 8, 2005, the petitioner pleaded guilty to a substitute information charging him with manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a,³and possession of a pistol without a permit in violation of § 29-35. The substance of the plea agreement was that the petitioner would receive a total effective sentence of not less than twenty years incarceration and not more than twenty-five, with the prosecution and defense counsel having a right to present argument to the trial court as to the appropriate sentence within that range. A presentence investigation was ordered and completed.

A sentencing hearing was held on August 3, 2005. Following the hearing, the trial court, Damiani, J., imposed a sentence of twenty years to serve, five being minimum mandatory incarceration, on the manslaughter in the first degree with a firearm charge, and aconsecutive sentence of five years to serve, one year being minimum mandatory, on the possession of a pistol without a permit charge, for a total effective sentence of twenty-five years, with six years being minimum mandatory incarceration.

The petitioner filed a petition for a writ of habeas corpus challenging the legality of his detention on February 27, 2008. Following the appointment of habeas counsel, the petitioner filed an amended petition claiming ineffective assistance of trial counsel on July 5, 2011. Specifically, the petitioner made fourteen separate claims and sub-claims of ineffectiveness against trial counsel. The habeas court summarized the petitioner's claims accordingly: first, in paragraphs 6a and 6b of the petitioner's amended petition, that trial counsel failed to conduct a proper investigation into the facts of the case and into possible defense witnesses; second, in paragraphs 6c-i, and 6l, that trial counsel failed to properly advise the petitioner as to various aspects of his case and plea agreement; and, as his final two claims, in paragraphs 6j and 6k, that trial counsel failed to present mitigating evidence on the petitioner's behalf during pretrial negotiations and on the petitioner's behalf at sentencing.

The matter was tried to the habeas court on November 7, 2011. The petitioner and his trial counsel were the only witnesses to testify. The only evidence presented by the petitioner was his own testimony. On January 17,2012, in a written memorandum of decision, the habeas court, Newsom, J., denied the petition, finding that the petitioner failed to prove that he was denied effective assistance of trial counsel under the two-pronged test set forward in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner filed a petition for certification to appeal, which the habeas court denied. This appeal followed. Additional facts relevant to the petitioner's appeal will be set forth as necessary.

We begin by setting forth the standard of review and legal principles that guide our resolution of the petitioner's appeal. ''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.'' (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). A petitioner may establish that the denial of a timely request for certification constitutes an abuse of discretion by demonstrating ''that the issues 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.'' (Emphasis in original; internal quota-tion marks omitted.) Id., 616.

''We examine the petitioner's underlying claim[s] 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. . . .

''In Strickland v. Washington, [supra, 466 U.S. 687] the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show . . . (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different]. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Furthermore, [i]n a habeas corpus proceeding, the petitioner's burden of proving that fundamental unfairness has been done is not met by speculation . . . but by demonstrable realities." (Citation omitted; emphasis in original; internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn. App. 670, 674-75, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).

''In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner's failure to prove either is fatal to a habeas petition. (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn. App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011). The performance prong of Strickland ''requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness. . . . A fair assessment of attorney performance requires that every effort be made to eliminate...