Morris v. Comm'r of Correction.

• Decision Date: 25 October 2011
• Docket Number: No. 32085.,32085.
• Citation: 29 A.3d 914,131 Conn.App. 839
• Court: Connecticut Court of Appeals
• Parties: Monteral MORRISv.COMMISSIONER OF CORRECTION.

131 Conn.App. 839

29 A.3d 914

Monteral MORRIS

v.COMMISSIONER OF CORRECTION.

No. 32085.

Appellate Court of Connecticut.

Submitted on Briefs Sept. 9, 2011.Decided Oct. 25, 2011.

Justine F. Miller, special public defender, filed a brief for the appellant (petitioner).John A. Connelly, former state's attorney, Rocco A. Chiarenza, deputy assistant state's attorney, and Patrick Griffin, senior assistant state's attorney, filed a brief for the appellee (respondent).DiPENTIMA, C.J., and GRUENDEL and BEACH, Js.PER CURIAM.

The petitioner, Monteral Morris,¹ appeals following the habeas court's denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal. Specifically, he claims that the court (1) improperly rejected his claim that his trial counsel rendered ineffective assistance by failing to file certain motions and (2) improperly rejected his claim that trial counsel failed to investigate adequately the evidence against the petitioner. We dismiss the petitioner's appeal. ²

The following factual and procedural history is relevant to the resolution of the petitioner's appeal. The state charged the petitioner with the crimes of attempt to commit murder, criminal possession of a firearm, criminal use of a firearm, two counts of robbery in the first degree, two counts of larceny in the second degree, unlawful discharge of a firearm and reckless endangerment in the first degree. The petitioner pleaded guilty, pursuant to the Alford doctrine,³ to robbery in the first degree, assault in the first degree, and criminal possession of a firearm. The trial court sentenced the petitioner to fifteen years imprisonment pursuant to its previous indication at the plea hearing that it would impose a sentence of between thirteen and eighteen years imprisonment. The petitioner did not file a direct appeal.

On December 18, 2009, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of his trial counsel, Attorney Gary Mastronardi. Specifically, the petitioner claimed that Mastronardi had failed to file a motion to dismiss the charges against the petitioner or, in the alternative, a motion to suppress, after the state did not provide all of the photographic arrays that were shown to the victim, one of which led the victim to identify the petitioner. The petitioner also claimed that Mastronardi failed to investigate and to discover information that could have been used to impeach the state's evidence. Following a one day trial, the habeas court denied the petition for a writ of habeas corpus. The habeas court subsequently denied the petition for certification to appeal.

We begin by setting forth the applicable standard of review. “Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for 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 must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he 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....

“We examine the petitioner's underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. 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....

“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 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 [by establishing a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different].... 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.” (Citation omitted; internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn.App. 670, 674–75, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).

“For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified Strickland's prejudice prong.” (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 124 Conn.App. 740, 743–44, 6 A.3d 152 (2010). “Under ... Hill ... the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.... In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner's failure to prove either is fatal to a habeas petition.” (Internal quotation marks omitted.) Gudino v. Commissioner of Correction, 123 Conn.App. 719, 723–24, 3 A.3d 134, cert. denied, 299 Conn. 905, 10 A.3d 522 (2010). Finally, we note that “[i]n a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation ... but by demonstrable realities.” (Emphasis in original; internal quotation marks omitted.) Farnum v. Commissioner of Correction, supra, 118 Conn.App. at 675, 984 A.2d 1126.

We first address the petitioner's claim that Mastronardi was ineffective for failing to file a motion to dismiss the charges, or in the alternative, a motion to suppress the photographic arrays.⁴ The petitioner argues that his photograph may have been among the photographs the victim examined on August 15, 2005, from which the victim was unable to identify the second assailant. The police subsequently destroyed the array after the victim could not make an identification. The habeas court rejected this argument, crediting the testimony of John Healy, a police detective, who had shown photographic arrays to the victim on August 15, 2005. Healy testified that he was “100 percent certain that [the petitioner] was not in ... any of the destroyed arrays.” The habeas court found that Mastronardi's decision not to file a motion to dismiss or to pursue a motion to suppress the photographic arrays was a tactical decision. The habeas court credited the testimony of Mastronardi that plea offers by the prosecutors were, by custom, time...