White v. Commissioner of Correction

• Decision Date: 07 December 2021
• Docket Number: AC 43988
• Citation: 267 A.3d 289,209 Conn.App. 144
• Parties: Solomon WHITE v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

209 Conn.App. 144

267 A.3d 289

Solomon WHITE

v.COMMISSIONER OF CORRECTION

AC 43988

Appellate Court of Connecticut.

Argued September 7, 2021

Officially released December 7, 2021

Naomi T. Fetterman, assigned counsel, for the appellant (petitioner).

Melissa E. Patterson, senior assistant state's attorney, with whom, on the brief, were Sharmese L. Walcott, state's attorney, and Kelly A. Masi, senior assistant state's attorney, for the appellee (respondent).

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

SULLIVAN, J.

The petitioner, Solomon White, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly denied his petition for a writ of habeas corpus, in which he claimed that his first habeas counsel rendered ineffective assistance. Because the petitioner has not demonstrated that the habeas court abused its discretion in denying the petition for certification, we dismiss the appeal.

The petitioner was charged with murder in violation of General Statutes § 53a-54a, criminal use of a firearm in violation of General Statutes § 53a-216 (a), tampering with a witness in violation of General Statutes § 53a-151 (a), conspiracy to commit tampering with a witness in violation of General Statutes §§ 53a-48 and 53a-151 (a), bribery of a witness in violation of General Statutes § 53a-149 (a), and conspiracy to commit bribery of a witness in violation of §§ 53a-48 and 53a-149 (a).

The following facts were set forth by this court in the petitioner's direct appeal from his conviction. "On Saturday, August 27, 2005, a local church sponsored a ‘Stop the Violence’ block party on Vine Street in Hartford. Both the [petitioner] and Keith Carter, the victim, attended the block party, where they argued. After the block party, several people went to an apartment building located at 46-48 Vine Street. The [petitioner] lived in an apartment on the first floor of 46-48 Vine Street with his girlfriend, Latasha Drummond.

"Shortly after 9:15 p.m. that evening, several people were gathered in the common hallway on the first floor of 46-48 Vine Street. Drummond was in the apartment she shared with the [petitioner]. Drummond heard someone tell the victim to ‘get out of [the petitioner's] face.’ A neighbor, Dela Tindal, was in her apartment located across the hall from the apartment shared by the [petitioner] and Drummond. Tindal heard the [petitioner] and the victim arguing in the hallway. Tindal then heard the [petitioner] say, ‘are you still talkin’ shit? Don't make me go get my pistol,’ and then Tindal heard the [petitioner's] apartment door open and close. Shortly thereafter, Tindal heard the [petitioner] say: ‘You still talking shit.’ Tindal then looked out of her apartment and saw the two men arguing, standing face-to-face. Tindal then saw the [petitioner] extend his hand and shoot the victim. Tindal could see sparks coming from the barrel of the gun, and the sound was ‘like a ... loud firecracker.’ Upon hearing the gunshot, Drummond looked out into the hallway where she saw the victim fall to the floor and the [petitioner] with a gun in his hand. The [petitioner] then ran out of the building. Drummond went back inside her apartment to get her keys and then ran out of the building.

"Outside of the building, Drummond encountered her neighbor, Courtney Croome. Drummond was crying and shaking and told Croome, ‘He killed him. He killed him.’

"Following the incident, Drummond visited the [petitioner] at an abandoned apartment where he was hiding from the police. Drummond saw the [petitioner] wrap the gun he had used to shoot the victim in a diaper and throw it in the trash, claiming that the police could not charge him if they did not have the murder weapon. Drummond described the weapon as a ‘black, old, rusty gun.’

"The [petitioner] was located and arrested approximately one month following the incident. While in prison, the [petitioner] wrote three letters to Tindal, asking that she not appear at his probable cause hearing, that she lie to the police and that she ask others to lie for him." (Footnote omitted.) State v. White , 127 Conn. App. 846, 847–49, 17 A.3d 72, cert. denied, 302 Conn. 911, 27 A.3d 371 (2011).

Attorney William O'Connor of the Office of the Public Defender represented the petitioner during the criminal trial. Following a jury trial, the petitioner was convicted of all charges and sentenced to a total effective term of sixty years of imprisonment. This court affirmed the judgment of conviction on appeal. Id., at 858, 17 A.3d 72.

The petitioner then filed his first petition for a writ of habeas corpus seeking to collaterally attack his conviction. In his first habeas petition, the petitioner alleged that O'Connor provided ineffective assistance during the petitioner's criminal trial. The petitioner was represented by Attorney Joseph Visone, assigned counsel by the Office of the Public Defender, throughout the proceedings associated with the first habeas petition.

The first habeas petition was denied following a trial on the merits, and this court dismissed the petitioner's appeal therefrom. White v. Commissioner of Correction , 168 Conn. App. 903, 149 A.3d 503 (2016), cert. denied, 325 Conn. 924, 160 A.3d 1067 (2017).

On July 12, 2018, the petitioner filed his second petition for a writ of habeas corpus, which is the subject of this appeal. In his amended petition for a writ of habeas corpus, the petitioner claimed that his first habeas counsel, Visone, provided ineffective assistance.¹ Specifically, the petitioner alleged that Visone rendered ineffective assistance by failing to procure the appearance and testimony of (1) Drummond to support the petitioner's claim that her testimony at the petitioner's criminal trial was perjured and (2) David Sims, the victim's nephew, to support the petitioner's claim, raised in his first habeas petition, that his trial counsel was ineffective for failing to call Sims as a witness during the petitioner's criminal trial to prove that the petitioner and the victim had been together and friendly with each other the entire day, including immediately before the victim was shot.

Following a trial on the merits, the habeas court concluded that the petitioner failed to prove his claims of ineffective assistance of prior habeas counsel and, accordingly, rendered judgment denying the petition for a writ of habeas corpus. Thereafter, the petitioner filed a petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus, wherein he claimed that the habeas court erred in failing to find that the petitioner proved ineffective assistance by trial and habeas counsel. The habeas court denied the petition for certification to appeal. This appeal followed. Additional facts and procedural history 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 from the denial of his petition for a writ of habeas corpus. We first set forth our standard of review and the law applicable to the claims on appeal. "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. ... 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. ... 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 the merits. ... 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. ...

"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 this court for determining the propriety of the habeas court's denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed." (Citation omitted; internal quotation marks omitted.) Wright v. Commissioner of Correction , 201 Conn. App. 339, 344–45, 242 A.3d 756 (2020), cert. denied, 336 Conn. 905, 242 A.3d 1009 (2021).

The petitioner's underlying claim in the present appeal is that the habeas court improperly concluded that Visone did not provide ineffective assistance. "A claim of ineffective assistance of counsel as enunciated in Strickland v. Washington , [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ], consists of two components: a performance prong and a prejudice prong." (Internal quotation marks omitted.) Figueroa v. Commissioner of Correction , 202 Conn. App. 54, 63, 244 A.3d 149, cert. denied, 336 Conn. 926, 246 A.3d 986 (2021). "To satisfy...