Francis v. Comm'r of Corr., AC 39445

• Decision Date: 22 February 2018
• Docket Number: AC 39445
• Citation: 190 A.3d 985,182 Conn.App. 647
• Court: Connecticut Court of Appeals
• Parties: Kermit FRANCIS v. COMMISSIONER OF CORRECTION

182 Conn.App. 647

190 A.3d 985

Kermit FRANCIS

v.COMMISSIONER OF CORRECTION

AC 39445

Appellate Court of Connecticut.

Submitted on briefs February 22, 2018

Officially released June 12, 2018

Donald F. Meehan and Walter C. Bansley IV, New Haven, filed a brief for the appellant (petitioner).

Nancy L. Chupak, senior assistant state's attorney, Gail P. Hardy, state's attorney, and Jo Anne Sulik, Rocky Hill, supervisory assistant state's attorney, filed a brief for the appellee (respondent).

DiPentima, C.J., and Lavine and Pellegrino, Js.

DiPENTIMA, C.J.

The petitioner, Kermit Francis, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The habeas court granted his petition for certification to appeal to this court; he claims on appeal that he was prejudiced as a result of the ineffective assistance of his erstwhile habeas counsel, Michael Day. Specifically, the petitioner argues that, at his habeas trial, Day failed (1) to question a witness properly and (2) to present evidence of that witness' availability to testify at the original criminal trial. We affirm the judgment of the habeas court.

The following facts, as summarized by our Supreme Court on the petitioner's direct appeal, are relevant. "On December 20, 1993, the [petitioner], along with Casey Wilcox, Andre Shirley and Corey Rosemond, were selling crack cocaine in the area of [Wilcox'] residence at 88 Atwood Street in Hartford. The victim, Moses Barber, Jr., a regular customer, purchased drugs from the [petitioner]. After making his purchase, he walked away. The victim later returned to [Wilcox'] porch and engaged in an argument with the [petitioner] concerning the drug sale. The victim and the [petitioner] left the porch and the [petitioner] proceeded up a dark driveway between two buildings directly across the street from [Wilcox'] residence. The victim remained near the street. As they continued to argue, the [petitioner] approached the victim and shot him. The victim died later that night as a result of a gunshot wound

to his abdomen.

"On December 21, 1993, Wilcox asked the [petitioner] for his guns for the purpose of threatening an individual who had accused Wilcox of shooting the victim. The [petitioner] went into the basement of a house on Atwood Street, and emerged with a handgun and rifle, which he gave to Wilcox. Wilcox, in turn, gave the weapons to Rosemond and instructed Rosemond to put the weapons in the trunk of a vehicle parked behind [Wilcox'] residence. The next morning, Hartford police officers, armed with a search warrant, seized the weapons from the trunk of the vehicle and, thereafter, learned that the [petitioner] did not have a permit to carry a pistol or revolver. Moreover, the police officers found that the serial number on the pistol had been ground off.

"Thereafter, Wilcox, Shirley and Rosemond gave statements implicating the [petitioner] in the murder, and a warrant was issued on December 23, 1993, for the [petitioner's] arrest. The [petitioner] was arrested in New York in June, 1995." (Footnotes omitted.) State v. Francis , 246 Conn. 339, 342–43, 717 A.2d 696 (1998).

Following a trial, a jury found the petitioner guilty of murder in violation of General Statutes (Rev. to 1993) § 53a–54a (a), carrying a pistol without a permit in violation of General Statutes (Rev. to 1993) § 29–35 and altering or removing an identification mark on a pistol in violation of General Statutes (Rev. to 1993) § 29–36. See State v. Francis , supra, 246 Conn. at 341–42, 717 A.2d 696. The trial court, Barry, J. , sentenced the petitioner to a total effective sentence of sixty years imprisonment.¹

The petitioner, representing himself, filed a petition for a writ of habeas corpus dated January 1, 2001, alleging that his criminal trial counsel, William B. Collins, had rendered ineffective assistance. Eventually, the petitioner was assigned counsel, Frank Cannatelli, who withdrew that first petition with prejudice. That withdrawal prompted a second habeas action, this time alleging, among other things, that Cannatelli was ineffective for withdrawing the original petition. After a trial (first habeas trial), the habeas court, Schuman, J. , partially granted the second petition and restored the original petition under a new docket number.

In his restored petition, the petitioner, represented by Day, alleged that Collins had rendered ineffective assistance. Specifically, the petitioner alleged that Collins failed to call Fredrica Knight, a potentially exculpatory witness, to testify in the original criminal trial. After a trial (second habeas trial), the habeas court, Bright, J. , denied the petition in a memorandum of decision, which this court summarily affirmed. See Francis v. Commissioner of Correction , 150 Conn. App. 906, 98 A.3d 121 (2014).

Thereafter, in a new petition, which was amended on January 4, 2016, the petitioner set forth another claim of ineffective assistance of counsel. Specifically, he alleged that Day had rendered ineffective assistance at the second habeas trial by failing (1) to question Knight properly and (2) to present evidence of Knight's availability to testify at the original criminal trial. That amended petition is the operative petition in this matter. On June 30, 2016, after a trial (third habeas trial), the habeas court, Sferrazza, J. , issued a memorandum of decision denying the operative petition. The habeas court then granted the petitioner's petition for certification to appeal to this court. This appeal ensued. Additional facts will be set forth as necessary.

"Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous .... The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review .... Therefore, 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 ....

"It is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings .... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution .... As enunciated in Strickland v. Washington , [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) ], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel .... A claim of ineffective assistance of counsel consists of two components: [A] performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law .... To satisfy the second prong of Strickland,that his counsel's deficient performance prejudiced his defense, the petitioner must establish that, as a result of his trial counsel's deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal .... The second prong is thus satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different .... An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland ] are satisfied .... The court, however, may decide against a petitioner on either prong, whichever is easier." (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 822–23, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).

"The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a habeas on a habeas, was approved by our Supreme Court in Lozada v. Warden , 223 Conn. 834, 613 A.2d 818 (1992). In Lozada , the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51–296(a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition .... In Lozada , the court explained that [t]o succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective .... As to each of those inquiries, the petitioner is required to satisfy the familiar two-pronged test set forth in [ Strickland ] .... In other words, a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice ...." (Citations omitted; internal quotation marks omitted.) Gerald W. v. Commissioner of Correction , 169 Conn. App. 456, 463–64, 150 A.3d 729 (2016), cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017).

The petitioner's sole claim on appeal is that the habeas court improperly determined that he failed to prove that Day had provided ineffective assistance. We conclude that the habeas court properly denied the amended petition for a writ of habeas...