Leach v. Comm'r of Corr.

• Decision Date: 12 April 2022
• Docket Number: AC 44228
• Citation: 211 Conn.App. 663,273 A.3d 739
• Parties: Kareem LEACH v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

211 Conn.App. 663

273 A.3d 739

Kareem LEACH

v.COMMISSIONER OF CORRECTION

AC 44228

Appellate Court of Connecticut.

Argued February 8, 2022

Officially released April 12, 2022

Peter G. Billings, New Haven, assigned counsel, with whom, on the brief, was Stephanie K. Toronto, for the appellant (petitioner).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Paul J. Ferencek, state's attorney, and Juliana Waltersdorff, assistant state's attorney, for the appellee (respondent).

Bright, C. J., and Alexander and Suarez, Js.

ALEXANDER, J.

The petitioner, Kareem Leach, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion by denying his petition for certification to appeal and (2) improperly concluded that his trial counsel had not provided ineffective assistance. We disagree that the court abused its discretion in denying the petition for certification to appeal and, accordingly, dismiss the appeal.

The following facts and procedural history are relevant to this appeal. The petitioner was involved in an incident that occurred on January 13, 2013, and, after a jury trial, he was convicted of robbery in the first degree with a deadly weapon in violation of General Statutes § 53a-134 (a) (2), and assault in the first degree by means of the discharge of a firearm in violation of General Statutes § 53-59 (a) (5). State v. Leach , 165 Conn. App. 28, 29, 31, 138 A.3d 445, cert. denied, 323 Conn. 948, 169 A.3d 792 (2016). He was sentenced to a total effective term of fourteen years of imprisonment and six years of special parole. Id., at 31, 138 A.3d 445.

The petitioner initiated this habeas action and, on January 16, 2019, filed an amended petition which contained one count alleging ineffective assistance of his criminal trial counsel, Attorney Neal Rogan. Relevant to this appeal, the petitioner claimed that Rogan failed to (1) meaningfully explain the state's plea offer to him and (2) review and explain certain surveillance video evidence prior to trial.

A trial on the habeas petition was held on January 31, 2020. On July 2, 2020, the court issued a memorandum of decision in which it denied the habeas petition, finding that the petitioner had failed to demonstrate that Rogan had rendered deficient performance. On July 17, 2020, the petitioner filed a petition for certification to appeal, which the court denied. This appeal followed.

I

We first address the petitioner's claim that the court abused its discretion in denying his petition for certification to appeal. We disagree.

General Statutes § 52-470 (g) provides: "No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person's release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies."

"As our Supreme Court has explained, one of the goals our legislature intended by enacting this statute was to limit the number of appeals filed in criminal cases and [to] hasten the final conclusion of the criminal justice process .... [T]he legislature intended to discourage frivolous habeas appeals. ... [Section] 52-470 [g] acts as a limitation on the scope of review, and not the jurisdiction, of the appellate tribunal. ...

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [disposition] of his [or her] petition for [a writ of] habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he [or she] must demonstrate that the denial of his [or her] petition for certification constituted an abuse of discretion. ... Second, if the petitioner can show an abuse of discretion, he [or she] must then prove that the decision of the habeas court should be reversed on its merits. ...

"To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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. ...

"In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Footnote omitted; internal quotation marks omitted.) Harris v. Commissioner of Correction , 205 Conn. App. 837, 843–44, 257 A.3d 343, cert. denied, 339 Conn. 905, 260 A.3d 484 (2021).

The petitioner requested certification to appeal the following issues, inter alia: "Whether the habeas court erred in finding that [the petitioner] did not prove ineffective assistance of counsel as to [Rogan] in that ... Rogan failed to meaningfully explain the state's plea offer ... [and] Rogan failed to review surveillance evidence to prepare for trial ...."¹

For the reasons set forth in part II of this opinion, we conclude that the petitioner has failed to demonstrate that (1) his claims involve issues that are debatable among jurists of reason, (2) a court could resolve the issues in a different manner, or (3) the questions are adequate to deserve encouragement to proceed further. See Harris v. Commissioner of Correction , supra, 205 Conn. App. at 844, 257 A.3d 343. Accordingly, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

II

Turning to his substantive claims on appeal, the petitioner asserts that the court improperly concluded that Rogan had not provided ineffective assistance of counsel.

Specifically, the petitioner alleged ineffective assistance as a result of Rogan's failure to (1) meaningfully explain the state's plea offer to him, and (2) review and explain certain surveillance video evidence prior to plea negotiations and trial.

We begin by setting forth our standard of review and the legal principles governing ineffective assistance of counsel claims. "Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but 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." (Internal quotation marks omitted.) Humble v. Commissioner of Correction , 180 Conn. App. 697, 703, 704, 184 A.3d 804, cert. denied, 330 Conn. 939, 195 A.3d 692 (2018).

"In Strickland v. Washington , [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he [or she] must show that counsel's assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. ... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable. ... Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he [or she] fails to meet either prong. ...

"To satisfy the performance prong [of the Strickland test] 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. ... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...." (Internal quotation marks omitted.) Anderson v. Commissioner of Correction , 201 Conn. App. 1, 12, 242 A.3d 107, cert. denied, 335 Conn. 983, 242 A.3d 105 (2020).

A

The petitioner first argues that the habeas court improperly denied his habeas petition because Rogan rendered deficient performance when he failed to meaningfully explain the state's plea offer to him prior to the petitioner rejecting the offer and proceeding to trial. We disagree.

The following additional facts, as found by the habeas court, are relevant to our resolution of this claim. During pretrial plea negotiations, the state extended an offer of twelve years of incarceration, execution suspended after six years, followed by five years of probation.

The petitioner rejected the state's offer and elected to proceed to trial.

"At [the habeas] trial, the petitioner testified that he briefly discussed the state's offer with [Rogan]. He testified that, as a result of that discussion, he understood the state's offer to require him to serve twelve years [of] incarceration. He testified that he did not understand that it meant that he would agree to serve six years [of] incarceration. He testified that, had he understood the offer correctly, he would have accepted the state's...