Iovieno v. Commissioner of Correction

• Decision Date: 26 August 1997
• Docket Number: No. 15411,15411
• Citation: 242 Conn. 689,699 A.2d 1003
• Court: Connecticut Supreme Court
• Parties: Michael IOVIENO v. COMMISSIONER OF CORRECTION.

Page 1003

699 A.2d 1003

242 Conn. 689

Michael IOVIENO v. COMMISSIONER OF CORRECTION.

No. 15411.

Supreme Court of Connecticut.

Argued Feb. 21, 1997.

Decided Aug. 26, 1997.

[242 Conn. 690] Christopher C. Sheehan, Assistant Public Defender, Hartford, for appellant (petitioner).

Mary H. Lesser, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Christopher Alexy, Assistant State's Attorney, for appellee (respondent).

Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT, KATZ, PALMER and McDONALD, JJ. ¹

BERDON, Associate Justice.

The dispositive issues in this certified appeal are: (1) whether the ten day limitation period applicable to petitions for certification to appeal from judgments in habeas corpus proceedings, set forth in General Statutes § 52-470(b), ² implicates a habeas court's subject

matter jurisdiction so as to deprive it of authority to grant an untimely filed petition; and (2) whether the failure to file a timely appeal under § 52-470(b), as a result of ineffective assistance of counsel, [242 Conn. 691] constitutes per se prejudice to the petitioner and therefore satisfies the prejudice requirement for an ineffective assistance of counsel claim under the analysis outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

The petitioner's claim arises out of his second petition for a writ of habeas corpus. Following the dismissal of his first habeas petition on its merits, the petitioner filed for certification to appeal from the judgment. The petition for certification to appeal was filed after the expiration of the ten day statutory limitation period provided for by § 52-470(b), and the first habeas court dismissed it as untimely, holding that the court lacked subject matter jurisdiction to consider a petition not timely filed. The petitioner then sought a second writ of habeas corpus based upon the ineffective assistance of appellate counsel in pursuing the appeal of the first habeas court's judgment, and requested a reinstatement of the limitation period to enable him to petition again for certification to appeal the first habeas court's judgment. Although the second habeas court concluded that the limitation period within which certifications must be requested was not jurisdictional, it dismissed the petition, finding that the petitioner failed to establish, under the second prong of the analysis outlined in Strickland, that he was prejudiced by counsel's ineffectiveness. The Appellate Court affirmed the dismissal by the second habeas court without reaching the merits, holding that once the ten day period in which to file a petition under § 52-470(b) expired, the court lacked subject matter jurisdiction. We granted the petitioner's request for certification to appeal from the decision of the Appellate Court. ³ We reverse the decision of the Appellate Court.

[242 Conn. 692] The Appellate Court opinion sets forth the relevant facts and procedural history. "The petitioner, Michael Iovieno, was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70, unlawful restraint in the first degree in violation of General Statutes § 53a-95, and three counts of burglary in the second degree in violation of General Statutes § 53a-102. On appeal, [the Appellate Court] vacated one of the burglary convictions and remanded the case with direction to render a judgment of acquittal as to that count. [The Appellate Court] affirmed the remaining convictions. State v. Iovieno, 14 Conn.App. 710, 543 A.2d 766, cert. denied, 209 Conn. 805, 548 A.2d 440 (1988) [Iovieno I ].

"Thereafter, the petitioner filed a petition for a writ of habeas corpus claiming that his trial counsel was ineffective by failing to move to suppress evidence wrongfully seized. The habeas court dismissed the habeas petition, finding that trial counsel's incompetence did not prejudice the petitioner in the manner defined by Strickland v. Washington, [supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674]. The habeas court's memorandum of decision dismissing the petition was dated February 15, 1991, and was filed on February 22, 1991.

"On March 8, 1991, the petitioner's habeas counsel filed a petition for certification to appeal. This petition was filed four days beyond the time limitation set forth in General Statutes § 52-470(b). The habeas court concluded that it did not have the discretion to consider a petition that was not timely filed [and denied the petition for certification to appeal]. [On appeal, this court], ruling on

a writ of error brought by the petitioner, affirmed the habeas court's decision. Iovieno v. [242 Conn. 693] Commissioner of Correction, 222 Conn. 254, 608 A.2d 1174 (1992) [Iovieno II ]

"The petitioner filed a second habeas petition claiming that he was denied his right to effective assistance of counsel in his appeal of the dismissal of his first habeas petition. In the second petition, he requested (1) that a writ of habeas corpus be issued to bring him before [the Appellate Court] in order that justice may be done, (2) that the conviction and sentence be vacated and the matter returned to the trial court docket for further proceedings, (3) that his right to appeal from the original habeas court decision be restored provided that a petition for certification be filed within ten days from the date of this decision, and (4) such other relief as deemed equitable and just.

"The [second] habeas court, in addressing the merits of the petition, first found that a statutory right to effective assistance of counsel exists in appeals from adverse habeas corpus decisions. The court then found that the conduct of the petitioner's counsel in failing to file the petition for certification in a timely manner fell below an objective standard of reasonable representation. The court concluded, however, that the petitioner had not proven that such deficient representation had prejudiced him and, therefore, dismissed the petition.

"The petitioner claim[ed] that his [appellate] counsel's conduct constituted per se prejudice, and, therefore, he was not required to prove prejudice. In rejecting this claim, the [second] habeas court stated that the petitioner failed to prove that 'there exists a reasonable probability that, but for the lack of timely filing, his petition for certification would have been granted.' The [second] habeas court granted a timely filed petition for certification to appeal its decision.

"[On appeal, the petitioner asserted] that the [second] habeas court had the authority to remedy his counsel's [242 Conn. 694] failure to file a petition for certification to appeal in a timely manner by 'starting the time limit anew for the filing of the petition for certification from the first habeas decision.' [The Appellate Court concluded] that because the time limitation contained in § 52-470(b) implicates subject matter jurisdiction, a habeas court does not have the authority to set a new ten day period for filing a petition for certification to appeal....

"The [second] habeas court, in addressing the petitioner's second habeas petition, conducted a thorough analysis regarding the petitioner's ineffective assistance of counsel claim. The court applied the two-prong test enunciated in Strickland v. Washington, supra, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]. The court found that the petitioner had satisfied the first prong of Strickland by proving that his habeas counsel's performance fell below an objective standard of reasonableness. In examining the second prong of Strickland, often termed the prejudice prong, the court applied the criteria established in Lozada v. Deeds, 498 U.S. 430, 432, 111 S.Ct. 860, 861-61, 112 L.Ed.2d 956 (1991), to determine whether the petitioner had proven, by a preponderance of the evidence, that there existed a reasonable probability that the petition for certification for appeal would have been granted. The court concluded that the petitioner did not satisfy this second prong and, thus, dismissed the habeas petition." Iovieno v. Commissioner of Correction, 40 Conn.App. 553, 554-57, 672 A.2d 530 (1996) [Iovieno III ].

I

The petitioner's first claim is that § 52-470(b), in specifying a ten day limitation period in which a petition for certification to appeal from a judgment of a habeas court must be filed, does not limit the subject matter jurisdiction of a habeas court, but merely defines the scope of review on appeal. The Appellate Court concluded that "because the time limitation contained in [242 Conn. 695] § 52-470(b) implicates subject matter jurisdiction, a habeas court does not have the authority to set a new ten day period for filing a petition for certification to appeal." Id., at 556, 672 A.2d 530. We disagree with the Appellate Court.

In order to determine whether § 52-470(b), in specifying a ten day limitation period for appealing a judgment of a habeas court, creates a jurisdictional bar preventing the court from entertaining an untimely

petition for certification to appeal, we must discern what result the legislature intended when it enacted § 52-470(b). "There is no more elementary rule of statutory construction than that the intention which the legislature has expressed must govern." State ex rel. Rourke v. Barbieri, 139 Conn. 203, 207, 91 A.2d 773 (1952). The question of whether a statutory time limitation is subject matter jurisdictional is a question of statutory interpretation. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). In interpreting statutory provisions, we have held that legislative intent is to be determined by reference to the language of the statute, its legislative history and surrounding circumstances, the policy the limitation was intended to implement, and the statute's "relationship to existing legislation and common law principles governing the same general subject matter." Id. We...