Simms v. Warden, State Prison

Peters, C. J.

The dispositive issue in this appeal from the trial court’s denial of a writ of habeas corpus is whether the habeas court abused its discretion by denying the petitioner’s request for certification to appeal. Earlier this year, in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I), we held that an appeal', rather than a writ of error, is the proper procedure for appellate review of the denial of a request for certification to appeal the denial of a writ of habeas corpus. Invoking our appellate jurisdiction under General Statutes § 52-265a, we thereafter permitted a belated appeal to allow the petitioner, Floyd Simms, to present his argument that the habeas court had improperly denied his request for certification. We affirm the judgment of the habeas court.

The procedural history of this case is recounted in Simms I, supra, 229 Conn. 179. The petitioner filed an *610 amended petition for a writ of habeas corpus to challenge the legality of his detention by the defendant, the warden of the Connecticut correctional institution at Somers (state). His detention results from his 1983 conviction of accessory to assault of a person sixty years of age or older in the first degree pursuant to General Statutes §§ 53a-59 (a) (3), 53a-59a and 53a-8, and of robbery in the second degree pursuant to General Statutes § 53a-135 (a) (1).1 We affirmed his conviction on direct appeal. State v. Simms, 211 Conn. 1, 557 A.2d 914, cert. denied, 493 U.S. 843, 110 S. Ct. 133, 107 L. Ed. 2d 93 (1989).

In his petition for a writ of habeas corpus, the petitioner alleges that his conviction should be set aside, or that he should be resentenced, on one of three *611 grounds: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) violation of his rights to due process under the federal and state constitutions. Each of the counts in the petition is premised on the petitioner’s underlying contention that the trial judge, Corrigan,should have recused himself from presiding at the petitioner’s jury trial. The petitioner contends that recusal was necessary largely because Judge Corrigan had presided over a previous jury trial that had resulted in the petitioner’s conviction of the crime of felony murder and, at the sentencing for that crime, had commented on the petitioner’s lack of credibility. Simms I, supra, 229 Conn. 179 n.3.

The habeas court resolved all three counts of the habeas petition against the petitioner. At the outset of the evidentiary hearing, the habeas court dismissed the third count, in which the petitioner claimed that the trial judge’s failure to recuse himself from presiding over the petitioner’s criminal trial had deprived the petitioner of his constitutional right to due process. The habeas court dismissed this count because it contained no allegations that might excuse the petitioner’s failure to raise this issue in his direct appeal. After the conclusion of the evidentiary hearing and the filing of briefs, the habeas court denied, on their merits, the remaining counts alleging ineffective assistance of trial and appellate counsel. The habeas court also denied the petitioner’s subsequent request, pursuant to General Statutes § 52-470 (b),2 for certification to appeal. The *612 petitioner has appealed from the trial court’s denial of certification and its adverse disposition on each of the counts of his petition.

In Simms I, in directing a habeas corpus petitioner to pursue an appeal rather than a writ of error in order to challenge an adverse judgment of the habeas court, we suggested that such an appeal requires the petitioner to make a two part showing. Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court’s permission. State v. Bergin, 214 Conn. 657, 660-61, 574 A.2d 164 (1990); State v. S & R Sanitation Services, Inc., 202 Conn. 300, 311, 521 A.2d 1017 (1987); State v. Avcollie, 174 Conn. 100, 110-11, 384 A.2d 315 (1977). If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Simms I, supra, 229 Conn. 186-87. We adopt this two part test as our holding in this case and conclude that the habeas court did not abuse its discretion in denying the petitioner’s request for certification to appeal.

I

Before we undertake a review of the petitioner’s appeal to determine whether he has met his threshold burden of demonstrating an abuse of discretion in the denial of his certification to appeal, we must clarify two *613 antecedent procedural issues. The first is a question of characterization: in a habeas corpus case, does a decision on the issue of abuse of discretion implicate the jurisdiction of the appellate tribunal? The second is a question of standards: in a habeas corpus case, is a decision on the issue of abuse of discretion governed by articulable criteria, and, if so, what should these criteria be?

A

The grant of a qualified right to appeal in § 52-470 (b) is the source of the jurisdictional issue that we must decide. That subsection provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.” The question raised by § 52-470 (b) is whether the language before “[n]o appeal . . . may be taken” was intended by the legislature as a limitation on the jurisdiction of the appellate tribunal or as a limitation on the scope of the review by the appellate tribunal.

In Simms I, supra, 229 Conn. 187-89, we assumed that § 52-470 (b) imposed jurisdictional constraints upon an appellate tribunal because we have so held in cases interpreting General Statutes § 54-96, which authorizes the state, with the permission of the trial court, to appeal questions of law in criminal cases. In appeals arising under the latter statute, a denial of permission to the state to appeal, if that denial is not an abuse of discretion, deprives the appellate tribunal of subject matter jurisdiction. State v. Bergin, supra, 214 Conn. *614 660-63; State v. S & R Sanitation Services, Inc., supra, 202 Conn. 313; State v. Audet, 170 Conn. 337, 340, 365 A.2d 1082 (1976). Under § 54-96, we have held permission to appeal to be jurisdictional because, at common law, the state had no right to appeal in criminal cases. State v. Falzone, 171 Conn. 417, 417-18, 370 A.2d 988 (1976); State v. Audet, supra, 340-42; State v. Brown, 16 Conn. 54, 58-59 (1843).

It is plausible to draw an analogy from § 54-96 to § 52-470 (b) because, as we explained in Carpenter v. Meachum, 229 Conn. 193, 200, 640 A.2d 591 (1994), at common law, a petitioner had no right to appeal the denial of a writ of habeas corpus. Our decision in Carpenter would presumably permit the legislature to impose conditions on appellate review that, if not met, would deprive an appellate tribunal of jurisdiction.

On further reflection, however, we are persuaded that the question before us is not one of legislative power but of legislative intent. See Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). When the legislature enacted § 54-96, it coupled the grant of authority for the state to appeal with the necessity for the state to obtain permission to appeal. By contrast, when the legislature enacted § 52-470 (b), it limited a statutory right to appeal that had existed, unconditionally, since 1882. Carpenter v. Meachum, supra, 229 Conn. 202; Iovieno v. Commissioner of Correction, 222 Conn. 254, 259-60, 608 A.2d 1174 (1992). The issue in this case, therefore, is whether the legislature, in amending § 52-470, intended to impose a jurisdictional limitation on appellate jurisdiction or intended merely to limit the scope of appellate review. In light of the significant role of the writ of habeas corpus in our jurisprudence; Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984); and the strong presumption in favor of appellate jurisdiction; Glastonbury Volunteer Ambulance Assn., Inc. *615 v. Freedom of Information Commission, 227 Conn. 848, 854, 633 A.2d 305 (1993); Ambroise v. William Raveis Real Estate, Inc., supra, 765; we conclude that the legislature intended the certification requirement only to define the scope of our review and not to limit the jurisdiction of the appellate tribunal.3

B

In Simms I, we proposed that, as a prerequisite to plenary appellate review of the merits of the dismissal of a habeas corpus petition, a petitioner who is denied a timely request for certification to appeal must demonstrate that the denial of certification was an abuse of discretion. Adhering to that construction of the substantive import of § 52-470 (b), we now consider the standards by which such a possible abuse of discretion should be measured.

In cases arising under § 54-96, we have inquired, on appeal, whether the record demonstrates that the denial of permission to the state to appeal constituted a clear and extreme abuse of discretion or resulted in an apparent injustice. State v. Bergin, supra, 214 Conn. 660-61; State v. S & R Sanitation Services, Inc., supra, 202 Conn. 311; State v. Avcollie, supra, 174 Conn. 110-11. That standard is correct but requires amplification in the context of habeas corpus appeals.

We may usefully incorporate, by analogy, the criteria adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), in its analysis of the certificate of probable cause to appeal that is part of the federal statute governing habeas corpus. See 28 U.S.C. § 2253; see *616 generally 2 J. Liebman, Federal Habeas Corpus Practice and Procedure (1989) § 30.4; L. Yackle, Postconviction Remedies (1981) § 160. The court held in Lozada that, in order to obtain a certificate of probable cause to appeal, a habeas petitioner must make a substantial showing that he has been denied a federal constitutional right. Lozada v. Deeds, supra, 431. A petitioner satisfies that burden by demonstrating: “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.” (Emphasis in original; internal quotation marks omitted.) Id., 432; Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983).

Accordingly, we hold that, in an appeal under § 52-470 (b), a petitioner will establish a clear abuse of discretion in the denial of a timely request for certification to appeal if he can demonstrate the existence of one of the Lozada criteria described above. In enacting § 52-470 (b), the legislature intended to discourage frivolous habeas appeals. Iovieno v. Commissioner of Correction, supra, 222 Conn. 259-61. A habeas appeal that satisfies one of the Lozada criteria is not frivolous.

II

We turn now to decide whether the petitioner has established a clear abuse of discretion in the habeas court’s denial of his request for certification. We must determine whether a certifiable issue exists, by Lozada criteria, either with respect to the habeas court’s dismissal of the third count of the habeas petition or with respect to the habeas court’s denial of the relief requested in the first and second counts of the petition. We conclude that the habeas court’s denial of certification was not an abuse of its discretion.

*617 No further appellate review was warranted with respect to the habeas court’s dismissal of the petitioner’s claim, in the third count of his petition, that the trial judge’s failure to recuse himself because of his prior judicial contacts with the petitioner violated the petitioner’s right to due process. Under well established case law, reasonable jurists could not differ that such a claim can be raised by habeas corpus only by alleging some excuse for the failure to have pursued it on direct appeal. Jackson v. Commissioner of Correction, 227 Conn. 124, 129-32, 629 A.2d 413 (1993); Morin v. Manson, 192 Conn. 576, 580, 472 A.2d 1278 (1984); Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979). The petition contains no such allegation. The petitioner’s testimony that he asked his counsel to pursue the issue may be relevant to his claim of ineffective assistance of counsel, but it does not address the issue of deliberate bypass of the process of direct appeal or of cause and prejudice for failure to present such an issue in the direct appeal. “[Ajttorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of appellate procedure.” Jackson v. Commissioner of Correction, supra, 135-36.

The habeas court likewise did not abuse its discretion in denying certification to appeal its decision that the petitioner had failed to prove ineffective assistance of trial or appellate counsel. The crux of the petitioner’s claim related to his counsels’ failure to pursue the petitioner’s interest in the disqualification of the trial judge, either for actual bias or for having created an appearance of bias, because the trial judge had presided over another criminal trial involving the petitioner and had commented critically while sentencing him in those proceedings. Considering the record before the habeas court and the applicable legal principles; see, e.g., Liteky v. United States, U.S. , 114 S. Ct. 1147, *618 1155, 127 L. Ed. 2d 474 (1994); Safford v. Warden, 223 Conn. 180, 190-91, 612 A.2d 1161 (1992); we are not persuaded that the issues, as presented by the petitioner, were debatable among jurists of reason, that they could reasonably have been resolved differently, or that they raised questions deserving further appellate scrutiny.

The judgment is affirmed.

In this opinion Borden and Lavery, Js., concurred.

General Statutes § 53a-59 provides in relevant part: “assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

General Statutes § 53a-59a provides in relevant part: “assault of a victim SIXTY OR OLDER IN THE FIRST DEGREE: CLASS B FELONY: FIVE YEARS not suspendable. (a) A person is guilty of assault of a victim sixty or older in the first degree, when he commits assault in the first degree under . . . section 53a-59 (a) (3) and the victim of such assault has attained at least sixty years of age ....

“(c) Assault of a victim sixty or older in the first degree is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

General Statutes § 53a-8 provides in relevant part: “criminal liability for ACTS OF another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

General Statutes § 53a-135 provides in relevant part: “robbery in the second degree: class c felony, (a) A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present ....

“(b) Robbery in the second degree is a class C felony.”

General Statutes § 52-470 provides: “summary disposal of the case, appeal by person convicted of crime, (a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.

“(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has *612 been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

The United States Supreme Court has similarly concluded that the certification requirement contained in 28 U.S.C. § 2253 is not jurisdictional. Davis v. Jacobs, 454 U.S. 911, 915, 102 S. Ct. 417, 70 L. Ed. 2d 226 (1981); I. Robbins, “The Habeas Corpus Certificate of Probable Cause,” 44 Ohio St. L.J. 307 (1983).