April 11, 2016
from Superior Court, judicial district of Tolland, Cobb, J.
P. Sexton, assigned counsel, with whom was Marina L. Green,
assigned counsel, for the appellant (petitioner).
B. Smoker, senior assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s
attorney, and Angela Macchiarulo, senior assistant
state’s attorney, for the appellee (respondent).
Sheldon and Mullins, Js.
petitioner, Anthony Allen, appeals from the judgment denying
his petition for certification to appeal from the habeas
court’s denial of his petition for a writ of habeas
corpus. The petitioner claims that the court abused its
discretion in denying his petition for certification because
the record before it clearly established that counsel at his
criminal trial rendered ineffective assistance by failing to
make a timely request that his jury be polled to assure the
unanimity of its verdict. We disagree and thus dismiss the
following procedural history is relevant to this appeal. The
petitioner was charged with and convicted, after a jury
trial, of capital felony in violation of General Statutes
§§ 53a-54b (8) and 53a-8 (a), murder in violation
of General Statutes §§ 53a-54a and 53a-8 (a),
conspiracy to commit murder in violation of General Statutes
§§ 53a-48 (a) and 53a-54a, attempt to commit
assault in the first degree in violation of General Statutes
§§ 53a-49 (a) (2) and 53a-59 (a) (5), and
conspiracy to commit assault in the first degree in violation
of §§ 53a-48 (a) and 53a-59 (a) (5).
Supreme Court affirmed the petitioner’s convictions on
direct appeal. State v. Allen, 289 Conn.
550, 958 A.2d 1214 (2008). In his direct appeal, the
petitioner claimed, inter alia, that the trial court had
improperly denied his request to poll the jury. The Supreme
Court rejected the petitioner’s claim on the ground
that his request to poll the jury had been untimely.
petitioner thereafter filed this petition for a writ of
habeas corpus alleging that his criminal trial counsel had
been ineffective in failing to make a timely request that his
jury be polled. The habeas court held a hearing on the
petition, at which the court asked the petitioner’s
habeas counsel, Joseph Visone, how the petitioner had been
prejudiced by his trial counsel’s allegedly deficient
failure to timely request a jury poll. Visone cited State
v. Pare, 253 Conn. 611, 755 A.2d 180 (2000),
for the proposition that the denial of a timely request to
poll a jury is ‘‘per se reversible’’
error. Upon further inquiry by the court, however, Visone
conceded that the rule enunciated in Pare applies
only to timely requests to poll and, because there had been
no such request in this case, he could not prove that the
petitioner was prejudiced by trial counsel’s failure to
timely request a jury poll. He explained, ‘‘I can
prove the first prong of Strickland, but, again, the
second prong of Strickland is difficult to prove
because . . . [w]e don’t know what [the jurors] would
have said. Now it’s too late to ask them because . . .
you have to poll them before they’re dismissed, so
they’re not corrupted.’’ The court then
specifically asked Visone, ‘‘You’re not
making an argument that there’s some per se
violation?’’ Visone responded, ‘‘Only
if the polling is . . . timely . . . .’’ The
habeas court thus denied the petition ‘‘for
failure to prove the prejudice [prong]’’ of
ineffective assistance of counsel. The petitioner thereafter
petitioned for certification to appeal. Upon the denial of
his petition, he filed this appeal.
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. . . . 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. . . .
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 the merits. . . . In determining whether there
has been an abuse of discretion, every reasonable presumption
should be given in favor of the correctness of the
court’s ruling . . . [and] [r]eversal is required only
where an abuse of discretion is manifest or where injustice
appears to have been done. . . .
order to establish an ineffective assistance of counsel claim
a petitioner must meet the two-pronged test enunciated in
Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the claim
must be supported by evidence establishing that (1)
counsel’s representation fell below an objective
standard of reasonableness, and (2) counsel’s
deficient performance prejudiced the defense because there
was a reasonable probability that the outcome of the
proceedings would have been different had it not been for the
deficient performance. . . . Because both prongs of
Strickland must be demonstrated for the petitioner
to prevail, failure to prove either prong is fatal to an
ineffective assistance claim. . . . In a habeas appeal, this
court cannot disturb the underlying facts found by the habeas
court unless they are clearly erroneous, but 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.’’
(Citation omitted; emphasis in original; internal quotation
marks omitted.) Myers v. Commissioner of
Correction, 164 Conn.App. 1, 10-12, 134 A.3d 237 (2016).
petitioner claims on appeal that the habeas court erred in
denying his petition on the merits based upon his failure to
prove that he had been prejudiced by his trial
counsel’s failure to timely request a jury poll because
the prejudice prong ‘‘is presumed . . . .
satisfied where there is a basis for believing that the jury
may not have been unanimous and trial counsel’s motion
to poll the jury was not timely.’’ In response, the
respondent, the Commissioner of Correction, argues, inter
alia, that the petitioner waived this claim before the habeas
court, as demonstrated by the previously quoted statements by
his habeas counsel. We agree with the respondent.
is [t]he voluntary relinquishment or abandonment-express or
implied-of a legal right or notice. . . . In determining
waiver, the conduct of the parties is of great importance. .
. . [W]aiver may be effected by action of counsel. . . . When
a party consents to or expresses satisfaction with an issue
at trial, claims arising from that issue are deemed waived
and may not be reviewed on appeal. . . . Thus, [w]aiver . . .
involves the idea of assent, and assent is an act of
understanding.’’ (Internal quotation marks
omitted.) State v.Thompson, 146 Conn.App.
249, 259-60, 76 A.3d 273 ...