Whyte v. Comm'r of Correction

• Decision Date: 08 June 1999
• Parties: (Conn.App. 1999) DESMOND WHYTE v. COMMISSIONER OF CORRECTION 17497
• Court: Connecticut Court of Appeals

736 A.2d 145 (Conn.App. 1999)

DESMOND WHYTE v. COMMISSIONER OF CORRECTION

17497

Connecticut Court of Appeals

Argued February 22

June 08, 1999

David B. Rozwaski, special public defender, for the appellant (petitioner). Eileen McCarthy Geel, deputy assistant state's attorney, with whom, on the brief, were Walter Flanagan, state's attorney, and Jo Anne Sulik, assistant state's attorney, for the appellee (respondent).

Foti, Landau and Healey, Js.

Healey, J.

OPINION

The petitioner appeals from the judgment of the second habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the second habeas court improperly (1) denied his petition for certification to appeal and (2) denied his petition for a writ of habeas corpus. We affirm the judgment of the second habeas court.

The second habeas court's memorandum of decision and the record disclose the following facts and procedural history. The petitioner was arrested in a Bridgeport drug sweep with five other individuals on September 6, 1990, for possession of marijuana and cocaine in violation of General Statutes §§ 21a-277 (a). ¹ The petitioner, as well as two other individuals, David Rochester and Verly Gordon, also arrested in the sweep, hired Attorney William Browne to represent them. After the petitioner's trial began, the petitioner changed his plea to guilty when the state investigated his alibi defense and discovered that it was fabricated. On September 3, 1991, the petitioner was sentenced to twelve years in prison. ² The trial court denied Browne's petition for a new trial. In a direct appeal brought by Attorney Earl Williams, this court affirmed the petitioner's conviction. See State v. Whyte, 31 Conn App. 904, 623 A.2d 1074 (1993).

On November 30, 1994, the petitioner filed a revised amended petition (first petition) for a writ of habeas corpus claiming, inter alia, that his confinement was unlawful because Browne had rendered ineffective assistance at the petitioner's criminal trial. The first habeas court, Sferrazza, J., denied the first petition by way of a decision dated July 24, 1995. The petitioner then appealed from the decision of the first habeas court, and this court dismissed his appeal in a per curiam decision. Whyte v. Commissioner of Correction, 44 Conn. App. 815, 690 A.2d 1391 (1997).

On January 13, 1997, the petitioner filed a revised amended second petition (second petition) for a writ of habeas corpus that alleged that his confinement was illegal because he had been denied effective assistance of counsel ³ at his criminal trial because, inter alia, Browne had represented the petitioner and the two co-defendants, Gordon and Rochester, in the same criminal matter at the same time, and also because he had been denied effective assistance of counsel in his first habeas petition by Attorney Ronald K. Bellenot. ⁴ After a trial on the petitioner's claims was held on February 18 and 25, 1997, the second habeas court, Grogins, J., denied the petitioner's second petition by its July 7, 1997 memorandum of decision. The second habeas court found that the petitioner had failed to produce evidence of an actual conflict of interest as to his claim of ineffective assistance of trial counsel and also as to his claim of ineffective assistance of his first habeas counsel. On July 11, 1997, the court, Grogins, J., denied the petitioner's petition for certification to appeal, giving rise to this appeal.

The petitioner claims that the second habeas court improperly denied his petition for certification to appeal. Specifically, the petitioner claims that the second habeas court abused its discretion in denying certification because the petitioner presented issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner and that the issues warrant further consideration.

This claim lacks merit.

"`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. Id. 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. Id.'" Petaway v. Commissioner of Correction, 49 Conn. App. 75, 77, 712 A.2d 992 (1998).

"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. . . . [Simms v. Warden, supra, 230 Conn. 616], quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). . . . Tatem v. Commissioner of Correction, 39 Conn. App. 813, 816, 667 A.2d 1295 (1995), cert. denied, 236 Conn. 904, 670 A.2d 1305 (1996)." (Internal quotation marks omitted.) Reddick v. Commissioner of Correction, 51 Conn. App. 474, 477, 722 A.2d 286 (1999). In addition, we have stated that "[a]s our courts have applied Lozada v. Deeds, supra, 498 U.S. 430, ⁵ the mere allegation of a violation of a constitutional right is insufficient to meet the initial hurdle of proving an abuse of discretion when the habeas corpus court has denied certification to appeal." Petaway v. Commissioner of Correction, supra, 49 Conn. App. 77-78.

Initially, we observe that the second habeas court reviewed at some length what occurred in the first habeas trial before Judge Sferrazza. Judge Sferrazza held that the petitioner's guilty plea at trial waived any ineffective assistance claim as to Browne's representation during preparation for or during the petitioner's criminal trial ⁶ and this was agreed to by both counsel at the first habeas trial. The second habeas court, therefore, properly did not address those issues. It also pointed out that the first habeas court had analyzed the petitioner's claim that Browne had provided ineffective assistance with reference to the petitioner's decision to change his plea to guilty. In doing so, the first habeas court found that the petitioner had failed to prove the prejudice component of the two-pronged Strickland ⁷ test as interpreted by our Supreme Court. See Copas v. Commissioner of Correction, 234 Conn. 139, 151, 662 A.2d 718 (1995). The first habeas court also rejected the petitioner's ineffective assistance claim made against Browne with reference to his failure to object to the state's recommendation for the maximum prison sentence, specifically finding that the petitioner had not sustained his burden of proving that but for Browne's allegedly substandard performance there was a reasonable probability that he would have received a lighter sentence. ⁸ This court dismissed the petitioner's appeal. Whyte v. Commissioner of Correction, supra, 44 Conn. App. 815. ⁹

In the second habeas proceeding, the respondent, invoking Practice Book §§ 529H (3), now §§ 23-29 (3), argued that the court should dismiss the allegations of the petition made against Browne. Section 23-29 (3) provides in relevant part that the court may, either upon motion or sua sponte, "dismiss the petition, or any count thereof, if it determines that . . . (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition . . . ." The trial court not only acknowledged the necessity of deciding the applicability of this rule, but also cited a number of cases to underline its comment that "there may be some question as to whether conflict of interest is the same ground as ineffective assistance of counsel." ¹⁰ In this context, the trial court quoted Negron v. Warden, 180 Conn. 153, 165, 429 A.2d 841 (1980), where our Supreme Court followed the United States Supreme Court decision in Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). The Sanders court stated: "Should doubts arise in particular cases as to whether two grounds [of successive habeas corpus petitions] are different or the same, they should be resolved in favor of the applicant." ¹¹ Id., 16; see also Tirado v. Commissioner of Correction, 24 Conn. App. 152, 158, 586 A.2d 625 (1991). Furthermore, as the second habeas court recognized, a "second habeas petition [can be] inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement." Lozada v. Warden, 223 Conn. 834, 843, 613 A.2d 818 (1992).

The second habeas court addressed the respondent's motion to dismiss the first count of the petition directed to Browne's ineffective assistance, which was intermixed with his conflict of interest claim against Browne. We conclude that the second habeas court properly resolved the motion to dismiss against the petitioner.

"Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where, however, the defendant claims that his counsel was burdened by an actual conflict of interest . . . the defendant need not establish actual prejudice. . . . Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. . . . In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth...