Mourning v. Comm'r of Corr.
Decision Date | 29 November 2016 |
Docket Number | AC 37601 |
Citation | 169 Conn.App. 444,150 A.3d 1166 |
Court | Connecticut Court of Appeals |
Parties | Marlik MOURNING v. COMMISSIONER OF CORRECTION |
Peter G. Billings, assigned counsel, with whom, on the brief, was Sean P. Barrett, assigned counsel, New Haven, for the appellant (petitioner).
Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (respondent).
Lavine, Mullins and Mihalakos, Js.
Following the habeas court's denial of his amended petition for a writ of habeas corpus, the petitioner, Marlik Mourning, appeals from the habeas court's denial of his petition for certification to appeal. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because the record established that his criminal trial counsel rendered ineffective assistance by failing to move to exclude the testimony of the state's ballistics expert. We conclude that the court did not abuse its discretion in denying the petition for certification to appeal. Accordingly, we dismiss the appeal.
As previously set forth by this court on direct appeal, the jury reasonably could have found the following facts. "In the late evening of July 8, 2003, Lamar Daniels, Deshon Thomas and the [petitioner] gathered in front of an establishment named Cobra's Place in what is known as the Sugar Bowl area of Waterbury, where the [petitioner] and Daniels often sold drugs. There they engaged in an argument with Desmond Williams and the victim, Trevor Salley, who recently had completed a sale in the area. After the argument ended, the individuals dispersed, and Daniels called his cousin, Sherita Norman, requesting that she pick him up. Several minutes later, Norman and her sister, Sharon Norman, arrived and drove Daniels and the [petitioner] away from the Sugar Bowl and back to Sherita Norman's apartment. Daniels entered the apartment and retrieved a silver .38 caliber revolver and an AK-47 assault rifle from a bedroom closet. At some point, Daniels handed the .38 caliber revolver to the [petitioner]. Sherita Norman then drove the [petitioner] and Daniels back to the Sugar Bowl and parked in a lot, enclosed by a fence, located behind Cobra's Place. As the [petitioner] and Daniels approached the fence, they saw the victim and Williams. Daniels called out to them and displayed the rifle, at which point the victim and Williams ran in the opposite direction. Daniels discharged the AK-47 assault rifle several times. The [petitioner] then fired the .38 caliber silver revolver. The gunshot that killed the victim came from the .38 caliber silver revolver fired at the scene.
State v. Mourning , 104 Conn.App. 262, 265–66, 934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d 594 (2007). The petitioner was sentenced to a total effective sentence of forty years incarceration, five years of which were mandatory. This court affirmed the petitioner's convictions on appeal. Id., at 288, 934 A.2d 263.
On September 19, 2012, the petitioner filed a petition for a writ of habeas corpus, which he amended on October 2, 2014. In his amended petition, the petitioner alleged that his trial counsel, David Channing, had rendered ineffective assistance in numerous ways. The only claim relevant to this appeal, however, is the petitioner's claim that his trial counsel had rendered ineffective assistance by failing to move to exclude the testimony of the state's ballistics expert.1 On December 17, 2014, the habeas court held an evidentiary hearing on the amended petition. In a memorandum of decision filed on January 2, 2015, the court denied the petitioner's amended petition. The petitioner then filed a petition for certification to appeal, which the habeas court denied. This appeal followed. Additional facts will be set forth as necessary.
On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because the record established that his trial counsel rendered ineffective assistance by failing to move to exclude the testimony of the state's ballistics expert. We are not persuaded.
We first set forth our standard of review. "Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion.... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason ... [the] court could resolve the issues [in a different manner] ... or ... the questions are adequate to deserve encouragement to proceed further.... The required determination may be made on the basis of the record before the habeas court and the applicable legal principles....
(Citation omitted; emphasis omitted; internal quotation marks omitted.) Roger B. v. Commissioner of Correction , 157 Conn.App. 265, 269–70, 116 A.3d 343 (2015).
(Internal quotation marks omitted.) Vazquez v. Commissioner of Correction , 128 Conn.App. 425, 430, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).
In determining whether the habeas court abused its discretion in denying the petition for certification to appeal, we must consider the merits of the petitioner's underlying claims. Accordingly, we now turn to the merits of the petitioner's claim.
The petitioner's sole claim on appeal is that trial counsel rendered ineffective assistance by failing to move to exclude the testimony of the state's ballistics expert. Specifically, the petitioner argues that trial counsel's performance was deficient because the conclusions of the ballistics expert "were not grounded in science at all and his expert testimony would not have withstood the admissibility requirements of [State v. Porter , 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998) ] had they been challenged." Moreover, the petitioner claims that trial counsel's failure to exclude that testimony prejudiced him because, if the testimony had been excluded, there is a reasonable probability that the outcome of the trial would have been different.
The respondent, the Commissioner of Correction, asserts that trial counsel did not render ineffective assistance.2 Specifically, the respondent argues that trial counsel's performance was not deficient, and, even if it were, the petitioner has failed to demonstrate that he suffered prejudice as a result of the alleged deficient performance. We agree with the respondent that even if we were to assume, without deciding, that trial cou...
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