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Gregory v. Commissioner of Correction

Court of Appeals of Connecticut

December 2, 2008

Marcus GREGORY
v.
COMMISSIONER OF CORRECTION.

Argued Oct. 10, 2008.

Page 634

Rosemarie T. Weber, special public defender, for the appellant (petitioner).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Jo Anne Sulik, senior assistant state's attorney, for the appellee (respondent).

DiPENTIMA, BEACH and ROBINSON, Js.

PER CURIAM.

[111 Conn.App. 431] The petitioner, Marcus Gregory, appeals following the denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion by denying his petition for certification to appeal, (2) improperly found that trial counsel was not ineffective with respect to his cross-examination of a state's witness, (3) improperly found that trial counsel was not ineffective for not using an expert witness and (4) improperly found that trial and appellate counsel were not ineffective for failing to address instances of prosecutorial impropriety.[1] We conclude that the court properly denied the petition for certification to appeal and, accordingly, dismiss the petitioner's appeal.

The jury found the petitioner guilty of various criminal offenses.[2] See

Page 635

[111 Conn.App. 432] State v. Gregory, 56 Conn.App. 47, 49, 741 A.2d 986 (1999), cert. denied, 252 Conn. 929, 746 A.2d 790 (2000). The petitioner received a total effective sentence of ninety years incarceration. The convictions were affirmed on direct appeal. See id.

In his amended petition for a writ of habeas corpus, the petitioner set forth four counts: ineffective assistance of trial counsel, attorney David Egan; ineffective assistance of appellate counsel, attorney Norman A. Pattis; actual innocence; and prosecutorial impropriety.[3] In January, 2007, the habeas court heard evidence and, on April 23, 2007, issued a memorandum of decision denying the petition. The court subsequently denied the petition for certification to appeal on May 10, 2007. The petitioner then filed the present appeal.

We now set forth the applicable standard of review. " In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.... 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 [111 Conn.App. 433] 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.... 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....

" 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.... For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different. White v. Commissioner of Correction, [58 Conn.App. 169, 170, 752 A.2d 1159 (2000)], citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)...." (Internal quotation marks omitted.) Faust v. Commissioner of Correction, 85 Conn.App. 719, 721-22, 858 A.2d 853,cert. denied, 272 Conn. 909, 863 A.2d 701 (2004).

On appeal, the petitioner claims that Egan provided ineffective assistance of counsel with respect to his cross-examination of a certain witness. Specifically, the petitioner argues that Egan should have questioned Edward ...


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