Valeriano v. Bronson, 5457

• Decision Date: 21 October 1987
• Docket Number: No. 5457,5457
• Citation: 12 Conn.App. 385,530 A.2d 1100
• Court: Connecticut Court of Appeals
• Parties: Armando VALERIANO v. George D. BRONSON, Warden.

Page 1100

530 A.2d 1100

12 Conn.App. 385

Armando VALERIANO

v. George D. BRONSON, Warden.

No. 5457.

Appellate Court of Connecticut.

Argued June 5, 1987.

Decided Sept. 15, 1987.

Certification Granted Oct. 21, 1987.

Patrice S. Noah, Bridgeport, for appellant (petitioner).

Steven M. Sellers, Asst. State's Atty., for appellee (respondent).

Before DUPONT, C.J., and HULL and BORDEN, JJ.

HULL, Judge.

After a trial to a jury, the petitioner was convicted of felony murder in violation of General Statutes § 53a-54c. The crime involved a fire started by the petitioner on January 14, 1977, as a result of which the victim died on April 27, 1978. The petitioner filed a direct appeal in our Supreme Court, which affirmed the conviction. State v. Valeriano, 191 Conn. 659, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S.Ct. 2351, 80 L.Ed.2d 824 (1984).

The petitioner thereafter filed the present habeas corpus petition. He claimed that he did not receive the effective assistance of appellate counsel because his appellate counsel did not raise in his direct appeal the common law "year and a day" rule, which bars conviction for a homicide if the victim does not die within a year and a day of the defendant's conduct which caused the death. ¹ After an evidentiary hearing, the habeas court denied the petition. ² Upon a grant of certification by the habeas court, this appeal followed.

The principal issue presented in this appeal is whether the traditional "deliberate bypass" standard should be applied to a habeas corpus petition when the failure to raise a particular issue on direct appeal resulted from a deliberate decision on the part of the petitioner's appellate counsel. In the present case, the petitioner's trial counsel, who was also his appellate counsel, raised the "year and a day" rule in the trial court, where it was rejected. The petitioner was not advised by his appellate counsel of the tactical decision to omit the issue regarding the applicability of the "year and a day" rule from his direct appeal. The decision to omit this issue was reached solely by his appellate counsel. The state argues, therefore, that the "deliberate bypass" rule is inapplicable to the facts of the present case. Although this precise issue has not been determined by this or any other Connecticut court, we are guided in our analysis by well settled precedent regarding the writ of habeas corpus as established by both Connecticut and federal courts.

The general proposition that a habeas corpus action cannot be used as an alternative to a direct appeal is well established in Connecticut law. See Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979); Blue v. Robinson, 173 Conn. 360, 369, 377 A.2d 1108 (1977); Vena v. Warden, 154 Conn. 363, 365, 225 A.2d 802 (1966). In Wojculewicz v. Cummings, 143 Conn. 624, 628, 124 A.2d 886 (1956), our Supreme Court held that an exception to this common law limitation should be made when the conviction which gave rise to the challenged detention was obtained in violation of the petitioner's rights under the federal constitution. The court further modified this exception in Vena v. Warden, supra, by adopting the rationale of the United States Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and holding that "a petitioner may collaterally raise federal constitutional claims in a habeas corpus proceeding even though he has failed to appeal his federal constitutional claims directly to [the court] if he alleges and proves, by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal." (Emphasis added.) Vena v. Warden, supra, 154 Conn. at 366-67, 225 A.2d 802.

For over a decade, the "deliberate bypass" rule stemming from Fay v. Noia, supra, has been consistently applied by our courts without exception. The rationale of the "deliberate bypass" standard has been summarized by our Supreme Court as serving two important functions: (1) it prevents piecemeal litigation; and (2) it prevents a prisoner from deliberately deferring his claims until a time when a new trial, if required, would be impossible. See Paulsen v. Manson, 193 Conn. 333, 476 A.2d 1057 (1984); D'Amico v. Manson, 193 Conn. 144, 146-47, 476 A.2d 543 (1984). In applying this standard, a court must find that the record " 'affirmatively disclose[s] that the plaintiff's decision to waive his right to appeal was voluntarily, knowingly and intelligently made' " before it can conclude that there has been a deliberate relinquishment of the right to appeal. D'Amico v. Manson, supra, 148, 476 A.2d 543. It is clear, therefore, that the deliberate bypass rule focuses on whether the habeas corpus petitioner personally made, as a criminal defendant, a decision to bypass an appeal.

Subsequent to the holding in Fay v. Noia, supra, however, the United States Supreme Court developed a more restrictive standard, that of "cause" and "prejudice," for access to federal habeas corpus relief by a state prisoner. In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the United States Supreme Court held that a state prisoner could not bring his claims to a federal habeas court absent a showing of "cause" for his state procedural default, and actual "prejudice" resulting therefrom. Although the court chose not to define the precise contours of the "cause" and "prejudice" standard, it noted that the standard was narrower than the broad standard set forth in Fay v. Noia, supra. Wainwright v. Sykes, supra, at 87, 97 S.Ct. at 2506. The court recently made clear that the "cause" and "prejudice" standard applies to procedural defaults on appeal as well as to those at trial. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

In the aftermath of Wainwright v. Sykes, supra, various courts have noted that it is unclear as to which cases are to be evaluated by the Fay v. Noia "deliberate bypass" standard, and which are to be evaluated by the Wainright v. Sykes "cause" and "prejudice" standard. See, e.g., Frazier v. Czarnetsky, 439 F.Supp. 735, 737 (S.D.N.Y.1977). Our Supreme Court, while consistently adhering to the "deliberate bypass" standard, has nevertheless acknowledged the emergence of the narrower "cause" and "prejudice" standard, and noted that such standard accomplishes the same important functions as those served by the "deliberate bypass" rule. See Paulsen v. Manson, supra, 193 Conn. at 338 n. 5, 476 A.2d 1057; D'Amico v. Manson, supra, 193 Conn. at 148, 476 A.2d 543. In McClain v. Manson, 183 Conn. 418, 428-29 n. 15, 439 A.2d 430 (1981), the court noted the issue as follows: "It appears that the Supreme Court 'is more apt to find a habeas petitioner bound by a bypass with respect to a strategic or tactical decision of the kind normally committed to counsel, than with respect to decisions of the sort entrusted to the defendant himself.' ... Included in this latter category would be decisions whether to plead guilty, to forego the assistance of counsel, or to refrain from an appeal." The court implied, therefore, that the "deliberate bypass" standard is properly applicable only in those situations where the defendant himself had the ultimate responsibility for a tactical decision resulting in a procedural default.

In each of the cases which has been considered by our courts, the petitioner either failed to bring an appeal at all; see, e.g., Paulsen v. Manson, supra; D'Amico v. Manson, supra; or appeared on appeal pro se and therefore made all the tactical decisions regarding the presentation of the appellate issues himself. See, e.g., Galland v. Bronson, 204 Conn. 330, 527 A.2d 1192 (1987). In these situations, the defendant shouldered the ultimate responsibility for the tactical decisions of his case, and therefore was properly subject to a "deliberate bypass" inquiry. The court in McClain v. Manson, supra, left unresolved, however, the question of whether the "cause" and "prejudice" standard should be applied in those situations in which counsel did not raise an issue on appeal. In the present case, we are squarely confronted with this situation and must therefore resolve the question left open in McClain v. Manson, supra.

Where, as in this case, the petitioner had no part in the tactical decision which ultimately resulted in the procedural default, and where such a decision is normally and of necessity entrusted to counsel, the "deliberate bypass" standard requiring a showing of a "knowing and intelligent waiver" is inapplicable. See Wainwright v. Sykes, supra, 433 U.S. at 94, 97 S.Ct. at 2510 (Burger, C.J., concurring). The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client. Jones v. Barnes, 463 U.S. 745, 749, 103 S.Ct. 3308, 3311, 77 L.Ed.2d 987 (1983). By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively presents his client's appeal. Id., at 751-52, 103 S.Ct. at 3312-13. Therefore, it simply does not make sense to ask whether a habeas corpus petitioner personally and deliberately bypassed the appellate process as to a tactical decision which was never his to begin with.

Indeed, it would be inconsistent with one of the principal purposes of the deliberate bypass rule to apply it in a case such as this. That rule seeks in part to prevent a prisoner from deliberately deferring his claim until it is too late to retry him effectively. Paulsen v. Manson, supra. It focuses on the interest of the state in prosecuting crimes while the evidence is still available. In a case such as this, however, the focus is on a tactical decision which belongs solely to counsel. A habeas corpus petitioner would always be able to establish...