Grant v. Commissioner of Correction, 27253.

• Citation: 103 Conn.App. 366,928 A.2d 1245
• Decision Date: 21 August 2007
• Docket Number: No. 27253.,27253.
• Court: Appellate Court of Connecticut
• Parties: Robert GRANT v. COMMISSIONER OF CORRECTION.

928 A.2d 1245

103 Conn.App. 366

Robert GRANT v. COMMISSIONER OF CORRECTION.

No. 27253.

Appellate Court of Connecticut.

Submitted on briefs May 25, 2007.

Decided August 21, 2007.

Mark M. Rembish, special public defender, filed a brief for the appellant (petitioner).

James E. Thomas, state's attorney, and Proloy K. Das and Richard J. Rubino, assistant state's attorneys, filed a brief for the appellee (respondent).

BISHOP, HARPER and LAVINE, Js.

PER CURIAM.

The petitioner, Robert Grant, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion by failing to grant certification to appeal and (2) improperly concluded that his trial counsel did not render ineffective assistance. We dismiss the appeal.

The petitioner is incarcerated pursuant to his 1990 conviction for accessory to murder in violation of General Statutes §§ 53a-8 and 53a-54a. His conviction was upheld on appeal in State v. Grant, 219 Conn. 596, 594 A.2d 459 (1991). In 1994, the petitioner filed a writ of habeas corpus, alleging that (1) he was denied the effective assistance of (a) trial counsel and (b) appellate counsel and (2) denied due process as a result of prosecutorial misconduct. The habeas court, Fuger, J., denied the petition for a writ of habeas corpus. This court affirmed that judgment in Grant v. Commissioner of Correction, 86 Conn.App. 392, 861 A.2d 1191 (2004), cert. denied, 273 Conn. 903, 868 A.2d 744 (2005). The petitioner filed the subject petition for a writ of habeas corpus in December, 2003, in which he alleged that he (1) was denied the effective assistance of habeas counsel and (2) is actually innocent. The habeas court, Elgo, J., denied the petition for a writ of habeas corpus and denied the petition for certification to appeal.

"[A] disappointed habeas corpus litigant [may] invoke appellate jurisdiction for plenary review of the decision of the habeas court upon carrying the burden of persuasion that denial of certification to appeal was an abuse of discretion or that injustice appears to have been done. Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994). . . . The Supreme Court adopted this test in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994) . . . and stated that the petitioner must first show that the habeas court's decision was an abuse of discretion. To establish an abuse of discretion, the petitioner must demonstrate 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. . . . Rivera v. Commissioner of Correction, 254 Conn. 214, 227, 756 A.2d 1264 (2000); see also Simms v. Warden, supra, at [616-17, 646 A.2d 126]. If the appeal meets one of the criteria set forth in [Simms v. Warden, supra, at 608, 646 A.2d 126], the habeas court's failure to grant certification to appeal constitutes an abuse of discretion. After successfully demonstrating the existence of an abuse of discretion, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Simms v. Warden, supra, 230 Conn. at 612, 646 A.2d 126. . . .

"In deciding whether the petitioner has established a clear abuse of discretion in the court's denial of his request for certification, we must determine whether, in fact, a certifiable issue exists." (Citations omitted; internal quotation marks omitted.) Dunkley v. Commissioner of Correction, 73...