Walker v. Commissioner of Correction, 14339

• Decision Date: 11 August 1992
• Docket Number: No. 14339,14339
• Citation: 223 Conn. 411,611 A.2d 413
• Court: Connecticut Supreme Court
• Parties: Gregory WALKER v. COMMISSIONER OF CORRECTION.

Page 413

611 A.2d 413

223 Conn. 411

Gregory WALKER v. COMMISSIONER OF CORRECTION.

No. 14339.

Supreme Court of Connecticut.

Argued June 9, 1992.

Decided Aug. 11, 1992.

Berdon, J., dissented and filed an opinion.

James Moreno, for plaintiff in error.

Julia DiCocco Dewey, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and C. Robert Satti, Jr., Asst. State's Atty., for defendant in error.

Before PETERS, C.J., and CALLAHAN, COVELLO, BORDEN and BERDON, JJ.

BORDEN, Associate Justice.

The plaintiff in error (petitioner), Gregory Walker, brings a writ of error from the denial by the habeas court of a grant of certification to appeal ¹ its decision dismissing the petitioner's writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal. We affirm.

The habeas court's memorandum of decision establishes the following facts. After a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a(a). ² The petitioner appealed to this court and we affirmed his conviction. State v. Walker, 206 Conn. 300, 537 A.2d 1021 (1988).

The petitioner then filed this petition for a writ of habeas corpus, alleging that his incarceration was illegal because he had been denied his right to effective assistance of appellate counsel. Specifically, the petitioner claimed that his appellate counsel had been ineffective because he had failed to challenge on appeal the trial court's instruction on circumstantial evidence.

In its memorandum of decision, the habeas court dismissed the writ because the petitioner had failed to establish the two requirements of an ineffective assistance of counsel claim as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). The habeas court concluded that the petitioner had not met his burden of demonstrating that, by failing to challenge the instruction, his appellate counsel's performance fell below accepted standards of attorney competency, and that the appeal would have been successful if the issue had been raised. The petitioner timely filed a petition for certification to appeal the habeas court's decision. The habeas court denied the petition for certification. The petitioner then brought this writ of error. ³

We disagree with the petitioner's claim that the habeas court abused its discretion by denying certification to appeal. A habeas court's denial of certification to appeal is reversible only if the court's decision is so unreasonable as to constitute an abuse of discretion. See State v. Bergin, 214 Conn. 657, 660, 574 A.2d 164 (1990) (interpreting denial of permission to appeal under General Statutes § 54-96 to be reviewable only under an "abuse of discretion" standard); State v. Avcollie, 174 Conn. 100, 110, 384 A.2d 315 (1977) (same). "In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling ... [and] [r]eversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Citation omitted; internal quotation marks omitted.) State v. Holmquist, 173 Conn. 140, 152, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S.Ct. 306, 54 L.Ed.2d 193 (1977).

The petitioner claimed during the habeas corpus proceedings that he had been denied his right to effective assistance of appellate counsel. Specifically, he claimed that his appellate counsel's failure to appeal the issue of whether the trial court erroneously diluted the state's burden of proof by its instruction on circumstantial evidence deprived him of effective assistance of appellate counsel. ⁴ The habeas court, however, viewing the allegedly erroneous instruction in light of the entire charge, concluded that it was not likely that the jury was misled as to the state's ultimate burden to prove beyond a reasonable doubt each element of the charged offense. Thus, the petitioner claims in his writ of error that the habeas court abused its discretion by denying certification to appeal because it failed to evaluate the allegedly erroneous instruction in isolation from the remainder of the charge in order to determine whether the instruction, in fact, diluted the state's burden of proof.

After the parties had filed their briefs in the present case, but before oral argument, we decided Bunkley v. Commissioner of Correction, 222 Conn. 444, 610 A.2d 598 (1992). In Bunkley, we held that, when evaluating an ineffective assistance of appellate counsel claim in a habeas proceeding, the proper inquiry is to consider the allegedly improper instruction, not in isolation from the remainder of the charge, but with reference to the entire charge and the totality of the evidence before the jury. ⁵

In light of Bunkley, the habeas court's conclusion that the allegedly improper charge must be examined in the context of the entire charge was correct. Consequently, the petitioner's claim that the habeas court abused its discretion in denying certification to appeal is without merit.

The judgment is affirmed.

In this opinion PETERS, C.J., and CALLAHAN and COVELLO, JJ., concurred.

BERDON, Justice, dissenting.

I am concerned with the majority's footnote 3, which states that the petitioner's writ of error raises "significant questions as to the subject matter jurisdiction of this court." If the majority is really serious about our not having subject matter jurisdiction in this case, then we must address this issue first. A "court may raise the issue of its subject matter jurisdiction sua sponte and must dismiss the case if it finds subject matter jurisdiction to be lacking.... [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... and the court must fully resolve it before proceeding further with the case." (Citations omitted; internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147 (1992).

How, then, can the majority profess to be concerned about the "troubling" subject matter jurisdiction questions presented in this writ, and then quickly sweep them away in a footnote? "[W]henever a court discovers that it has no [subject matter] jurisdiction, it is bound to dismiss the case...." (Emphasis added; internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987); see also Practice Book § 145 ("[a]ny claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action"). Under the circumstances, if the majority believes that the issue of this court's jurisdiction raises "novel and difficult questions," then we should order rebriefing and reargument on that issue.

As for the merits, a principal issue in this case was the intent of the petitioner, as evidenced by the trial court's instruction to the jury that the "state asks you to infer that Mr. Walker intended to cause [the victim's] death from all the circumstances surrounding his death which it claims it proved." The petitioner claimed ineffective assistance of appellate counsel because that counsel failed to challenge in the appeal the following trial court instruction: "It is your right to draw inferences if you conclude that the facts that you find proven, reasonably establish other facts by reason and logic and are not a result of speculation, surmise or guesswork." In State v. Rodgers, 198 Conn. 53, 57, 502 A.2d 360 (1985), the trial court, while instructing the jury on circumstantial evidence, stated that an inference may be drawn if " 'it is more probable that the fact to be inferred is true.' " We reversed the defendant's conviction because that instruction, which is virtually identical to the one at issue in this writ of error, impermissibly diluted the state's burden of proof. In reversing the conviction in Rodgers, "we refused to follow the traditional route of reading the charge in its entirety to determine whether the jury was apt to have been misled by the instruction. We specifically held that '[t]here exists such a contradiction between the erroneous instruction and the admixture of correct doctrine that as a whole it cannot be said that the incorrect statement did not influence the jury.' Id., at 59, 502 A.2d 360. In State v. Whalen, 200 Conn. 743, 757, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), this court reasoned that '[w]here the principal factual issue is intent, which is characteristically proven by circumstantial evidence ... the court's instructions regarding the use of circumstantial evidence as proof of this essential element are subject to close scrutiny.' ... Because intent is routinely proven by circumstantial evidence, the need for the rule is evident; without it, there exists the likelihood that a jury could convict a defendant of the crime charged without the state proving each element beyond a reasonable doubt." Bunkley v. Commissioner, 222 Conn. 444, 468, 610 A.2d 598 (1992) (Berdon, J., dissenting).

Since I believe that the correct focus should be on whether the result of the appeal would be different when determining prejudice for ineffective assistance of appellate counsel; id. 222 Conn. at 466-67, 610 A.2d at 609-610; I would find that the habeas court abused its discretion in denying the petitioner's certificate to appeal and I would grant the writ of error. Accordingly, I dissent.

1 General Statutes § 52-470(b) provides: "No appeal from the judgment rendered in a habeas corpus proceeding brought in order to...