Williams v. Comm'r of Corr.

• Citation: 133 Conn.App. 96,33 A.3d 883
• Decision Date: 17 January 2012
• Docket Number: No. 32965.,32965.
• Parties: Christopher WILLIAMS v. COMMISSIONER OF CORRECTION.
• Court: Appellate Court of Connecticut

133 Conn.App. 96

33 A.3d 883

Christopher WILLIAMS

v.COMMISSIONER OF CORRECTION.

No. 32965.

Appellate Court of Connecticut.

Argued Oct. 24, 2011.Decided Jan. 17, 2012.

Laljeebhai R. Patel, for the appellant (petitioner).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Sean P. McGuinness, deputy assistant state's attorney, for the appellee (respondent).

GRUENDEL, BEACH and ROBINSON, Js.

BEACH, J.

The petitioner, Christopher Williams, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. ¹ He claims that the court erred in rejecting the count of his petition in which he alleged ineffective assistance of prior habeas counsel. The judgment is affirmed.

In 1991, the petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a–54a, attempt to commit assault in the first degree in violation of General Statutes §§ 53a–49 and 53a–59 (a)(1) and criminal possession of a pistol in violation of General Statutes (Rev. to 1991) § 53a–217 (a). The trial court sentenced the defendant to a total term of fifty years imprisonment.

On direct appeal, the petitioner claimed, inter alia, that the trial court had improperly permitted an alternate juror to replace an excused juror after deliberations had begun, in violation of General Statutes (Rev. to 1993) § 54–82h (c).² State v. Williams, 231 Conn. 235, 242–45, 645 A.2d 999 (1994), overruled in part by State v. Murray, 254 Conn. 472, 487, 757 A.2d 578 (2000) (en banc). The petitioner argued that “ § 54–82h (c) implements the Connecticut constitution's guarantee that ‘[t]he right of trial by jury shall remain inviolate’; Conn. Const., art. I, § 19.... The state concede[d] that the trial court did not comply with § 54–82h (c) ... [but] argue[d], however, that the noncompliance was harmless.” State v. Williams, supra, at 242, 645 A.2d 999. In its decision, which was released in August, 1994, our Supreme Court concluded that in light of the state's concession, it assumed, but did not decide, that the substitution of an alternate juror after jury deliberations had begun violated § 54–82h (c). Id., at 242 n. 10, 645 A.2d 999. The court further concluded that the violation did not implicate the defendant's constitutional rights. Id., at 242–44, 645 A.2d 999. The court affirmed the judgment of the trial court after determining that, under the circumstances of the case, the violation constituted harmless error. Id., at 244–45, 645 A.2d 999.

Almost eight years after the court released its decision in the petitioner's direct appeal, the petitioner, in 2002, filed with our Supreme Court a motion for permission to file a late motion for reconsideration, a motion for reconsideration and a motion to recall and amend. The petitioner sought, in his motions, to have the court reconsider and/or recall and amend its decision in his direct appeal, State v. Williams, supra, 231 Conn. 235, 645 A.2d 999, in light of the decision in State v. Murray, supra, 254 Conn. 472, 757 A.2d 578, which, at the time of the filing of the motions, had been released approximately two years prior. The court granted the petitioner's motion to file a late motion for reconsideration, but, without further elaboration, denied the relief requested therein. The court denied the petitioner's motion to recall and amend.

An issue in Murray was whether the trial court violated § 54–82h (c) ³ by substituting an alternate juror for a regular juror after deliberations had begun and whether such violation was subject to harmless error analysis. Id., at 474, 757 A.2d 578. The court expressly decided that the statute “requires the dismissal of alternates upon submission of the case to the jury, and prohibits the mid-deliberation substitution of alternates.” Id., at 493, 757 A.2d 578. In support of the conclusion that § 54–82h (c), as previously enacted, had not permitted mid-deliberation substitution of jurors, the court referred to Public Acts 2000, No. 00–116, § 6, which became effective shortly after the decision in Murray was released. State v. Murray, supra, 254 Conn. at 493, 757 A.2d 578. That act amended § 54–82h (c) to permit the substitution of an alternate juror for a regular juror after deliberations had begun. Id., at 494, 757 A.2d 578.

The court in Murray also determined that the trial court's violation of § 54–82h (c) was not subject to harmless error analysis. Id., at 497, 757 A.2d 578. Contrasting its decision to that in Williams, the Murray court stated: “[W]e held in Williams, that a violation of § 54–82h (c) was subject to harmless error analysis, and that, because the improper substitution of an alternate juror did not implicate the defendant's constitutional right to a trial by jury, the defendant bore the burden of demonstrating the harmfulness of that substitution.... In Williams, we did not examine the contours of § 54–82h (c), but, rather, assumed, without deciding, that the mid-deliberation substitution of an alternate violated the statute. In the present case, we have resolved the question left open by Williams, concluding that ... § 54–82h (c) did not permit the mid-deliberation substitution of an alternate.... In light of the narrow question before us in Williams, we did not have occasion to address the legal status of a former alternate, and therefore, the conclusion that we drew therein did not take account of that factor. We are constrained to conclude that the inclusion of a nonjuror among the ultimate arbiters of innocence or guilt necessarily amounts to a [defect] in the structure of the trial mechanism that defies harmless error review.” (Citation omitted; internal quotation marks omitted.) Id., at 497–98, 757 A.2d 578. The court concluded that reversal was automatic and overruled State v. Williams, supra, 231 Conn. at 242, 645 A.2d 999, to the extent that the case held otherwise. Id., at 499, 757 A.2d 578.

In November, 2009, the petitioner filed the operative amended petition for a writ of habeas corpus. The petitioner alleged that his prior habeas counsel rendered ineffective assistance by failing to claim that his counsel on direct appeal was ineffective for failing to raise in that appeal arguments that various statutes and state and federal constitutional rights were violated because the petitioner “was convicted by a ‘jury’ composed of eleven jurors and one nonjuror.”

The habeas court stated that although the petitioner may have been entitled to relief had his direct appeal been pending when Murray was announced, the petitioner was not entitled to habeas corpus relief. The court noted that the error that occurred during the petitioner's criminal trial was not of constitutional magnitude, and because the Supreme Court declined to reconsider its decision in the petitioner's direct appeal, in light of Murray, when given the opportunity, the habeas court did not need to “go into an analysis and discussion of” whether Murray applied retroactively. The habeas court noted that it was bound by the Supreme Court's decisions and concluded that any relief it could grant would improperly override the Supreme Court's decision not to reconsider Williams in light of Murray.

The petitioner claims that the habeas court erred in rejecting his claim of ineffective assistance of prior habeas counsel in counsel's failure to raise in his previous petition a claim of ineffective assistance of appellate counsel on his direct appeal on the reasoning that it was bound by the Supreme Court's decision not to reconsider the petitioner's direct appeal in light of Murray. He states that appellate counsel provided ineffective assistance in that he “paid scant attention” to the structural construction of § 54–82h (c), as it then existed, and as a result, the court did not examine the “contours” of that statute, as it later did in Murray. He also argues that “in presenting the petitioner's motions for reconsideration, [appellate counsel] failed to articulate adequately that the holding of Murray applied retroactively to the Williams proceeding.” We affirm the court's decision on alternative grounds.

We first set forth our standard of review. “To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.... The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Tuck v. Commissioner of Correction, 123 Conn.App. 189, 194, 1 A.3d 1111 (2010). “As applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding. Thus ... the petitioner will have to prove that ... prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial....” Harris v. Commissioner of Correction, 108 Conn.App. 201, 209–10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008).

The petitioner cannot prevail on his claim that the court improperly rejected his claim that his habeas counsel was ineffective for failing to raise a claim regarding the ineffectiveness of appellate counsel. With respect to the direct appeal, the petitioner's argument essentially is that his appellate counsel failed to raise the substance of the issue concerning whether mid-deliberation substitution of a juror violated § 54–82h (c), which issue underlies the operative habeas petition and which issue later proved successful in M...