Henderson v. Commissioner of Correction

• Decision Date: 27 November 2007
• Docket Number: No. 26954.,26954.
• Citation: 935 A.2d 162,104 Conn.App. 557
• Court: Connecticut Court of Appeals
• Parties: Mitchell HENDERSON v. COMMISSIONER OF CORRECTION.

935 A.2d 162

104 Conn.App. 557

Mitchell HENDERSON v. COMMISSIONER OF CORRECTION.

No. 26954.

Appellate Court of Connecticut.

Argued September 10, 2007.

Decided November 27, 2007.

Christopher M. Neary, special public defender, for the appellant (petitioner).

Toni M. Smith-Rosario, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, James E. Thomas, former state's attorney, and Victor Carlucci, Jr., former senior assistant state's attorney, for the appellee (respondent).

DiPENTIMA, McLACHLAN and HENNESSY, Js.

HENNESSY, J.

The petitioner, Mitchell Henderson, appeals from the denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that (1) the habeas court improperly denied his petition for certification to appeal, (2) the factual findings of the habeas court were erroneous, (3) the trial court's waiver of counsel canvass of the petitioner was defective and (4) prior habeas and appellate counsel were ineffective for their failure to raise the claim regarding the defective canvass. We affirm the judgment of the habeas court.

The following facts, set forth by this court in State v. Henderson, 37 Conn.App. 733, 736-39, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995), are relevant to the resolution of the issue before us. "On the afternoon of January 17, 1992, the victim, Victorene Hazel, and her companion, Codella Webley, crossed Baltimore Street in Hartford after leaving the Shawmut Bank. When the two women reached the corner of Baltimore Street and Homestead Avenue, they were approached by the [petitioner] who demanded that Hazel hand over her purse to him. The [petitioner] was standing in front of Hazel, at a distance of one and one-half to two feet. Her view of the [petitioner] was clear and unobstructed. After Hazel refused to turn over her purse, the [petitioner] pulled out a knife, grabbed her by the shirt and hit her. When he grabbed Hazel, who had a heart condition, she experienced pain in her chest. The [petitioner] threatened to kill her if she did not give him the purse. When he swung the knife, she freed herself from his grasp and ran in the direction of the Shawmut Bank with the [petitioner] chasing her. Hazel's purse fell off her shoulder as she was running and the [petitioner] picked it up. Hazel entered the bank screaming that she had been robbed and needed help. When Webley reached the bank, she noticed that Hazel was breathing heavily, holding her chest and saying, `My heart, my heart.'

"At approximately the same time, Howard Fraser and his cousin, Earl Forrest were driving on Homestead Avenue when they stopped to look up a telephone number. As Forrest was looking for the number, Fraser noticed from a distance of five to seven yards the victim struggling with her assailant. As he and Forrest were about to drive off, he saw the [petitioner] grab the purse from Hazel. When the victim began to scream, Fraser realized that she was being robbed. Fraser watched the [petitioner] run up Baltimore Street and enter onto private residential property. Fraser realized that the [petitioner] would have to exit on Kent Street, the street parallel to Baltimore Street. Fraser and Forrest drove to Kent Street in anticipation of seeing the [petitioner]. They saw him running down Kent Street toward Albany Avenue with a purse under one arm. Fraser opened the passenger door as they drove up next to the [petitioner]. Forrest told the [petitioner] that they were the police and ordered him not to move. Fraser then jumped out the passenger door and grabbed the [petitioner]. When the [petitioner] resisted, Forrest joined Fraser in an attempt to subdue the [petitioner]. Both Fraser and Forrest repeatedly called for help as they were struggling with the [petitioner]. The [petitioner] struck Fraser during the struggle, and Fraser suffered a wrist injury from striking the [petitioner].

"Officer Douglas Frederick of the Hartford police department arrived approximately five minutes after the struggle had begun and saw the [petitioner] holding the victim's purse. While the [petitioner] was struggling with Forrest and Fraser, the victim's purse fell and its contents scattered onto the street. Frederick's attempt to handcuff the [petitioner] was unsuccessful because he continued to resist fiercely. Frederick radioed for assistance and, finally, with the help of other police officers, managed to get the [petitioner] into the police cruiser. Frederick then informed the [petitioner] that he was under arrest. . . .

"After Hazel and Webley left the bank, a man in a truck informed them that the robber had been apprehended on Kent Street. The man drove both women to Kent Street. After getting out of the truck, Hazel and Webley saw the [petitioner] sitting in the police cruiser. Frederick had put the victim's purse on top of the cruiser for safekeeping while he was trying to restrain the [petitioner]. Frederick noticed two women running down Kent Street toward his cruiser and he heard Hazel yelling, `That's him, he robbed me.' Frederick asked both Hazel and Webley to make sure that the man in the cruiser was indeed the robber. Without any difficulty, both women positively identified the [petitioner] as the robber. The weather was clear and there was adequate sunlight to enable the women to make the identification. Although Frederick was able to recover the purse, his search of the [petitioner] did not produce a knife.

"After telling the [petitioner] that he was under arrest and placing him in the police cruiser, Frederick transported him from the scene. The [petitioner] yelled obscenities and threatened to kill the officer. As Frederick drove down Kent Street toward Albany Avenue, the [petitioner] became increasingly violent. The [petitioner] kicked out the rear window of the cruiser and attempted to climb out while the cruiser was in motion. The [petitioner] was able to get his upper torso out of the rear window. Frederick stopped the car and radioed for assistance and an ambulance. Frederick then pulled the [petitioner] out of the cruiser and sat on him until help arrived. When the ambulance arrived, the [petitioner] was put in a body bag and transported to St Francis Hospital. The [petitioner] was treated for several cuts he had sustained while attempting to climb out of the rear window of the cruiser.

"The [petitioner] was convicted by a jury of four counts including robbery in the first degree in violation of General Statutes § 53a-134(a)(3). After the verdict, the [petitioner] moved for a judgment of acquittal and a new trial, which the trial court denied." Id.

After the resolution of the petitioner's direct appeal,¹ he filed his first petition for a writ of habeas corpus on May 5, 1997, alleging ineffective assistance of counsel due to appointed trial counsel's alleged failure to properly prepare his case before trial. The habeas court, Hon. Thomas H. Corrigan, judge trial referee, denied the petition and denied the petition for certification to appeal in August, 1997.² The petitioner filed the present habeas petition on September 23, 1997. The last amendment to the petition was filed December 15, 1998.

On November 15, 1999, the petitioner filed a writ of error coram nobis, claiming that the waiver of counsel canvass was ineffective. On March 1, 2000, the trial court held a hearing and denied the writ, finding that it was filed untimely and that habeas corpus was an adequate remedy at law for resolution of his claims against counsel. In April, 2000, the petitioner appealed from the judgment of dismissal, which appeal was transferred to the Supreme Court docket, and the trial court's judgment was upheld in State v. Henderson, 259 Conn. 1, 787 A.2d 514 (2002).

In January, 2001, the habeas court denied the habeas petition at issue in this appeal after hearing three days of testimony. The petitioner filed an appeal through counsel on March 27, 2001. On December 10, 2001, this court dismissed the petitioner's appeal for failure to file a court reporter acknowledgement form regarding completion of the transcript. The petitioner filed a petition for certification to appeal from the dismissal of his case to the Supreme Court. The Supreme Court denied his petition for certification on March 14, 2002. See Henderson v. Commissioner of Correction, 260 Conn. 904, 793 A.2d 1089 (2002). On August 1, 2005, the petitioner and the respondent, the commissioner of correction, entered into a stipulated habeas judgment seeking the opening of AC 21756 in order to argue the merits of the appeal. This led to the restoration of the petitioner's right to appeal on August 19, 2005. We will address the petitioner's claims in turn.

I

The petitioner claims that the habeas court abused its discretion in denying certification to appeal on March 14, 2002. The respondent argues that this claim cannot be addressed because it is contrary to the record. A review of the record reveals that the denial of certification issued on March 14, 2002, was not a ruling of the habeas court; it in fact was a denial for certification to appeal to the Supreme Court from the dismissal of the Appellate Court case. Id. Because the habeas court did in fact grant certification to appeal, this issue need not be addressed.

II

The petitioner next claims that the habeas court made erroneous factual findings that warrant reversal and a finding that appellate counsel was ineffective. Specifically, he claims that there were inconsistencies in the factual findings regarding the canvass, that the habeas court should not have allowed a state's attorney to be qualified as an expert witness and that the habeas court improperly sustained objections to questions about State v. Wolff, 237 Conn. 633, 678 A.2d 1369 (1996),³ when the court in its memorandum of decision relied on that case to make legal conclusions.⁴ Further, he argues that the combined effect of these claimed errors violated his...