Dunkley v. Commissioner of Correction

810 A.2d 281, 73 Conn. App. 819, 2002 Conn. App. LEXIS 603
CourtConnecticut Appellate Court
DecidedDecember 3, 2002
DocketAC 21629
StatusPublished
Cited by15 cases

This text of 810 A.2d 281 (Dunkley v. Commissioner of Correction) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunkley v. Commissioner of Correction, 810 A.2d 281, 73 Conn. App. 819, 2002 Conn. App. LEXIS 603 (Colo. Ct. App. 2002).

Opinion

Opinion

FLYNN, J.

The petitioner, Errol Dunkley, appeals from the judgment of the habeas court denying his petition for certification to appeal, filed pursuant to General Statutes § 52-470 (b),1 and denying his amended petition for a writ of habeas corpus. We dismiss the petitioner’s appeal.

[821]*821In the underlying criminal proceedings, the petitioner was charged with attempt to commit kidnapping and burglary in the first degree for a March 10,1994 incident that occurred at 78 Asylum Street in New Haven. He was also charged with being a persistent felony offender. On July 17, 1995, following a jury trial, the petitioner was convicted on the burglary charge but acquitted on the remaining charges. Following his conviction, the petitioner filed a petition for a writ of habeas corpus, claiming that his attorney had rendered ineffective assistance by failing to investigate the case adequately. The petitioner also claimed that his attorney had a conflict of interest because he was representing the petitioner while simultaneously representing Easper2 Watts, a potential witness and alleged suspect in the petitioner’s case.3 The habeas court rejected the petitioner’s claims, denied his petition and denied certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying the petition for certification and (2) improperly denied the amended petition for writ of habeas corpus. Only if the petitioner is successful in carrying his burden of persuasion on the first issue will the court determine the merits of the second issue.

[822]*822“[A] disappointed habeas coipus litigant [may] invoke appellate jurisdiction for plenary review of the decision of the habeas court upon carrying the burden of persuasion that denial of certification to appeal was an abuse of discretion or that injustice appears to have been done. Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994) [Simms I], The Supreme Court adopted this test in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994) [Simms II], and stated that the petitioner must first show that the habeas court’s decision was an abuse of discretion. To establish an abuse of discretion, the petitioner must demonstrate that the issues 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. . . . Rivera v. Commissioner of Correction, 254 Conn. 214, 227, 756 A.2d 1264 (2000); see also Simms v. Warden, supra, 230 Conn. 616-17 [Simms II]. If the appeal meets one of the criteria set forth in [Simms II], the habeas court’s failure to grant certification to appeal constitutes an abuse of discretion. After successfully demonstrating the existence of an abuse of discretion, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Simms v. Warden, supra, 230 Conn. 612.” (Internal quotation marks omitted.) Robinson v. Commissioner of Correction, 62 Conn. App. 429, 433-34, 771 A.2d 952, cert. denied, 257 Conn. 902, 777 A.2d 194 (2001).

In deciding whether the petitioner has established a clear abuse of discretion in the court’s denial of his request for certification, we must determine whether, in fact, a certifiable issue exists. In reviewing the record before us, we conclude that the habeas court did not abuse its discretion in denying the petitioner certification to appeal because there was no issue worthy of certification. Contrary to the petitioner’s claim, the [823]*823issue of whether the petitioner was deprived of the effective assistance of counsel is not debatable among jurists of reason, nor could a court resolve the issues in a manner different from that in which they were resolved, nor are the questions adequate to deserve encouragement to proceed further. The issues raised by the petitioner simply do not warrant review.

The petitioner raised two claims concerning his trial counsel’s performance. First, the petitioner claimed that trial counsel provided ineffective assistance because he failed to investigate the petitioner’s case adequately and to call alibi witnesses in his defense. Specifically, the petitioner argued that counsel should have called the petitioner’s mother, sister and wife to testily as to his whereabouts and activities on the day in question. He also claimed that trial counsel should have called Watts to the stand to testify that the petitioner did not live at 104-1/2 Rosette Street in New Haven.4 The petitioner further claimed that counsel should have called Watts to testify because Watts may have been the actual perpetrator of the crimes for which the petitioner was charged and subsequently convicted. The petitioner’s conflict of interest claim, which also concerns Watts and the petitioner’s counsel, will be discussed separately.

We address each of these claims in turn.

A

In consideration of the petitioner’s claim concerning the adequacy of tiial counsel’s investigation and the calling of alibi witnesses, “[t]he petitioner seeks to have us use hindsight with [regard] to his counsel’s decision not to call the witnesses to testify. We will not do so. We have stated that the presentation of testimonial [824]*824evidence is a matter of trial strategy. . . . The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” (Internal quotation marks omitted.) Adorno v. Commissioner of Correction, 66 Conn. App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001).

In this case, the habeas court specifically found that the petitioner’s trial counsel “conducted an adequate investigation into the facts of the case prior to trial . . . [and that he] had all of the police reports and witness statements . . . [and] all of the evidence was fully discussed with the petitioner.” The court further found that the petitioner’s trial counsel “considered whether the petitioner’s wife, mother and sister would be appropriate witnesses at trial and concluded that they would not be good witnesses. This fact was borne out by what [the] court considered] and [found] to be the incredible and inconsistent testimony of the petitioner’s wife, mother and sister at the habeas trial. There was nothing in the habeas trial testimony of the said mother, wife and sister that would likely have been of any benefit to the petitioner . . . .”

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Bluebook (online)
810 A.2d 281, 73 Conn. App. 819, 2002 Conn. App. LEXIS 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunkley-v-commissioner-of-correction-connappct-2002.