Johnson v. Commissioner of Correction

• Decision Date: 23 April 1991
• Docket Number: Nos. 13946-13960,13972-13982 and 13984-13988,s. 13946-13960
• Citation: 589 A.2d 1214,218 Conn. 403
• Court: Connecticut Supreme Court
• Parties: Alphonso JOHNSON v. COMMISSIONER OF CORRECTION. Rodney HENDERSON v. COMMISSIONER OF CORRECTION. Alan CANADY v. COMMISSIONER OF CORRECTION. Keith FREEMAN v. COMMISSIONER OF CORRECTION. Dennis JACKSON v. COMMISSIONER OF CORRECTION. Lindsay JOHNSON v. COMMISSIONER OF CORRECTION. Christopher LEECAN v. COMMISSIONER OF CORRECTION. John MANLEY, Jr. v. COMMISSIONER OF CORRECTION. William MASON v. COMMISSIONER OF CORRECTION. Sherman MILES v. COMMISSIONER OF CORRECTION. Daryl RUTH v. COMMISSIONER OF CORRECTION. Davis TYSON v. COMMISSIONER OF CORRECTION. Eddy WOOLCOCK v. COMMISSIONER OF CORRECTION. Richard AUSTIN v. COMMISSIONER OF CORRECTION. Napier TALTON v. COMMISSIONER OF CORRECTION. Jonathan WATLEY v. COMMISSIONER OF CORRECTION. James BRANTLEY v. COMMISSIONER OF CORRECTION. Wilbert HINTON v. COMMISSIONER OF CORRECTION. Luther FLEMING v. COMMISSIONER OF CORRECTION. Armando VALERIANO v. COMMISSIONER OF CORRECTION. Jose CASUL v. COMMISSIONER OF CORRECTION. Bruce ROGERS v. COMMISSIONER OF CORRECTION. Leamond SUGGS v. COMMISSIONER OF CORRECTION. Nathaniel CARTER v. COMMISSIONER OF CORRECTION. William PARKER v. COMMISSIONER OF CORRECTION. Reginald JONES v. COMMISSIONER OF CORRECTION. Antonio FELICIANO v. COMMISSIONER OF CORRECTION. William DUPREE v. COMMISSIONER OF CORRECTION. Roger HARRELL v. COMMISSIONER OF CORRECTION. Cecilio DELEON v. COMMISSIONER OF CORRECTION. Floyd SIMMS v. COMMISSIONER OF CORRECTION.

Page 1214

589 A.2d 1214

218 Conn. 403

Alphonso JOHNSON v. COMMISSIONER OF CORRECTION.

Rodney HENDERSON v. COMMISSIONER OF CORRECTION.

Alan CANADY v. COMMISSIONER OF CORRECTION.

Keith FREEMAN v. COMMISSIONER OF CORRECTION.

Dennis JACKSON v. COMMISSIONER OF CORRECTION.

Lindsay JOHNSON v. COMMISSIONER OF CORRECTION.

Christopher LEECAN v. COMMISSIONER OF CORRECTION.

John MANLEY, Jr. v. COMMISSIONER OF CORRECTION.

William MASON v. COMMISSIONER OF CORRECTION.

Sherman MILES v. COMMISSIONER OF CORRECTION.

Daryl RUTH v. COMMISSIONER OF CORRECTION.

Davis TYSON v. COMMISSIONER OF CORRECTION.

Eddy WOOLCOCK v. COMMISSIONER OF CORRECTION.

Richard AUSTIN v. COMMISSIONER OF CORRECTION.

Napier TALTON v. COMMISSIONER OF CORRECTION.

Jonathan WATLEY v. COMMISSIONER OF CORRECTION.

James BRANTLEY v. COMMISSIONER OF CORRECTION.

Wilbert HINTON v. COMMISSIONER OF CORRECTION.

Luther FLEMING v. COMMISSIONER OF CORRECTION.

Armando VALERIANO v. COMMISSIONER OF CORRECTION.

Jose CASUL v. COMMISSIONER OF CORRECTION.

Bruce ROGERS v. COMMISSIONER OF CORRECTION.

Leamond SUGGS v. COMMISSIONER OF CORRECTION.

Nathaniel CARTER v. COMMISSIONER OF CORRECTION.

William PARKER v. COMMISSIONER OF CORRECTION.

Reginald JONES v. COMMISSIONER OF CORRECTION.

Antonio FELICIANO v. COMMISSIONER OF CORRECTION.

William DUPREE v. COMMISSIONER OF CORRECTION.

Roger HARRELL v. COMMISSIONER OF CORRECTION.

Cecilio DELEON v. COMMISSIONER OF CORRECTION.

Floyd SIMMS v. COMMISSIONER OF CORRECTION.

Nos. 13946-13960, 13972-13982 and 13984-13988.

Supreme Court of Connecticut.

Argued Dec. 7, 1990.

Decided April 23, 1991.

Elizabeth M. Inkster, Assistant Public Defender, with whom was G. Douglas Nash, Public Defender, for appellants (petitioners in Docket Nos. 13946 through 13960).

Charlotte G. Koskoff, with whom was Stephen Frazzini, for appellants (petitioners in Docket Nos. 13972 through 13988).

James A. Killen, Asst. State's Atty., with whom, on the brief, was John J. Kelley, Chief State's Atty., for appellee (respondent).

Before SHEA, COVELLO, HULL, BORDEN and SANTANIELLO, JJ.

SHEA, Associate Justice.

In each of these thirty-one habeas corpus actions, the petitioner claims that his conviction is constitutionally flawed because the pool of veniremen available for selection of a petit jury for his trial and, in some instances, for selection of the grand jury that indicted him, ¹ was tainted by a disproportionate paucity of members of his minority group in violation of his right to equal protection of the laws, as guaranteed by the fourteenth amendment to our federal constitution. ² All the petitioners rely upon the decision of the United States Court of Appeals for the Second Circuit in Alston v. Manson, 791 F.2d 255 (2d Cir.1986), holding that the town quota system for selecting veniremen established by General Statutes (Rev. to 1975) § 51-220 had resulted in underrepresentation of black people in the pool of prospective jurors and grand jurors serving New Haven County in 1975, when the trial of the petitioners in that case took place, and that this disparity violated the principle of equal protection. ³ A similar claim presented to this court on appeal as a violation of the right to a jury composed of a fair cross section of the community under the sixth amendment to our federal constitution, together with many other jury composition claims, had been rejected in State v. Haskins, 188 Conn. 432, 436-41, 469, 450 A.2d 828, cert. denied, 479 U.S. 1084, 107 S.Ct. 1285, 94 L.Ed.2d 143 (1982).

Unlike the situation in Alston, however, none of these petitioners presented any effective challenge to the array of grand or petit jurors before trial, as required by Practice Book § 811, ⁴ and, accordingly, they would ordinarily be deemed to have waived the infirmities now relied upon to set aside their convictions, as Practice Book § 810 ⁵ provides. The habeas court ruled, nevertheless, that there had been no such waiver because the evidence did not indicate that the petitioners had deliberately bypassed their right to challenge the array of prospective jurors or grand jurors. The court also rejected an alternative claim of the petitioners that the failure of their attorneys to raise and pursue challenges to the array constituted ineffective assistance of counsel in violation of the sixth amendment to our federal constitution. ⁶ Proceeding to the merits of the claim of disproportionate representation in the jury pools, the court concluded that the petitioners had not established any underrepresentation of black or Hispanic people for the years involved, 1976 through 1983, because no evidence as to the actual composition of those pools based upon observation or records of their membership had been presented. Accordingly, judgments were rendered dismissing each petition.

On appeal, the petitioners contest the conclusion of the habeas court that they have failed to prove any underrepresentation of the minority groups to which they belonged in the jury arrays available for the selection of jurors and grand jurors at the time of their convictions. They also maintain that the judgments should be reversed because of the refusal of the court to grant their petitions on the alternative ground of ineffective assistance of counsel based upon the failure of their attorneys to present timely challenges to the array. The state claims, as an alternative ground for affirming the judgments, that the applicable standard for reviewability of these belated challenges to the array is the "cause and prejudice" standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and not "deliberate bypass," as proclaimed in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

We conclude, contrary to the habeas court's view, that the appropriate standard for reviewability in a habeas corpus proceeding of constitutional claims not adequately preserved at trial because of a procedural default, such as failure to challenge the array, is the Wainwright standard of "cause and prejudice," as the state contends. We also decide that the petitioners have not satisfied that standard. We affirm the conclusion of the habeas court, however, that the petitioners have not demonstrated ineffective assistance of counsel, although on grounds different from those relied on by the court. Because we conclude that habeas review is precluded by the failure to file challenges to the array before trial, as required by § 811, we do not address the merits of the equal protection claims of the petitioners.

The pertinent facts are not disputed. All the petitioners are black or Hispanic and were convicted during the period that § 51-220 ⁷ remained in effect. This statute, which originated in colonial times, specified the number of jurors to be chosen yearly from each town of this state according to a classification based on the population of the town. The number of jurors from a town, however, was not uniformly proportional to its population but was skewed to provide for larger proportions of jurors from smaller towns. During the period when the petitioners were convicted, the statute, at its extremes, provided for thirty jurors in towns with populations of 750 through 1500, or 2 percent of their populations, while towns with populations of more than 100,000 were allowed 1012 jurors, or 1 percent of their populations. No provision was made for additional jurors from towns with populations substantially greater than 100,000, such as New Haven, where most of the black and Hispanic people in the county reside.

Only four of the petitioners ⁸ filed challenges to the array and these were never pursued. In the habeas court the petitioners attempted to estimate retrospectively the impact of § 51-220 on the proportion of black and Hispanic people in the jury arrays for the years 1976 through 1983 by applying statistical theory to census data. According to the statistical method used, ⁹ the statute resulted in shortfalls projected on the basis of population varying from 3 percent to 7 percent of the number of black or Hispanic jurors for all the petitioners, except two of the three Hispanic petitioners, whose shortfalls were 18 percent and 16 percent. In Alston v. Manson, supra, at 258, the court concluded on the basis of a shortfall of 1.58 percent for black jurors in New Haven county not only that § 51-220 had a disparate impact but also that a "presumption of discriminatory intent" arose from its existence, which the state had failed to rebut.

I

In Fay v. Noia, supra, 372 U.S. at 438-39, 83 S.Ct. at 848-49, the United States Supreme Court held that federal habeas corpus jurisdiction was not affected by the procedural default, specifically a failure to appeal, of a petitioner during state court proceedings resulting in his conviction. The court recognized, however, a limited discretion in the federal habeas judge to "deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." Id., at 438, 83 S.Ct. at 848. This deliberate bypass standard for waiver required " 'an intentional relinquishment or abandonment of a known right or privilege' " by the petitioner personally and depended on his "considered choice." Id., at 439, 83 S.Ct. at 849. "A choice made by counsel not participated in by the petitioner does not automatically bar relief." Id. Under this standard, the habeas court's conclusion in these cases, that there had been no deliberate bypass of the right to challenge the jury array because the petitioners were unaware of their right to do so, is unassailable. The state does not contend otherwise.

The deliberate bypass standard of Fay was implicitly abandoned in two subsequent cases involving post-conviction challenges to grand juries that, like the petitions before us, were based on the exclusion of minorities. In those cases the court enforced explicit waiver provisions of state and federal...