September 7, 2016
from Superior Court, judicial district of Tolland, Fuger, J.
G. Billings, assigned counsel, with whom, on the brief, was
Sean P. Barrett, assigned counsel, for the appellant
Jennifer F. Miller, deputy assistant state's attorney,
with whom, on the brief, were Maureen Platt, state's
attorney, and Marc G. Ramia, senior assistant state's
attorney, for the appellee (respondent).
Lavine, Mullins and Mihalakos, Js.
the habeas court's denial of his amended petition for a
writ of habeas corpus, the petitioner, Marlik Mourning,
appeals from the habeas court's denial of his petition
for certification to appeal. On appeal, the petitioner claims
that the habeas court abused its discretion in denying his
petition for certification to appeal because the record
established that his criminal trial counsel rendered
ineffective assistance by failing to move to exclude the
testimony of the state's ballistics expert. We conclude
that the court did not abuse its discretion in denying the
petition for certification to appeal. Accordingly, we dismiss
previously set forth by this court on direct appeal, the jury
reasonably could have found the following facts.
‘‘In the late evening of July 8, 2003, Lamar
Daniels, Deshon Thomas and the [petitioner] gathered in front
of an establishment named Cobra's Place in what is known
as the Sugar Bowl area of Waterbury, where the [petitioner]
and Daniels often sold drugs. There they engaged in an
argument with Desmond Williams and the victim, Trevor Salley,
who recently had completed a sale in the area. After the
argument ended, the individuals dispersed, and Daniels called
his cousin, Sherita Norman, requesting that she pick him up.
Several minutes later, Norman and her sister, Sharon Norman,
arrived and drove Daniels and the [petitioner] away from the
Sugar Bowl and back to Sherita Norman's apartment.
Daniels entered the apartment and retrieved a silver .38
caliber revolver and an AK-47 assault rifle from a bedroom
closet. At some point, Daniels handed the .38 caliber
revolver to the [petitioner]. Sherita Norman then drove the
[petitioner] and Daniels back to the Sugar Bowl and parked in
a lot, enclosed by a fence, located behind Cobra's Place.
As the [petitioner] and Daniels approached the fence, they
saw the victim and Williams. Daniels called out to them and
displayed the rifle, at which point the victim and Williams
ran in the opposite direction. Daniels discharged the AK-47
assault rifle several times. The [petitioner] then fired the
.38 caliber silver revolver. The gunshot that killed the
victim came from the .38 caliber silver revolver fired at the
[petitioner] subsequently was charged by information with
murder, conspiracy to commit murder and criminal possession
of a pistol or revolver. After a jury trial, the [petitioner]
was found guilty of manslaughter in the first degree with a
firearm, conspiracy to commit murder and criminal possession
of a pistol or revolver.'' State v.
Mourning, 104 Conn.App. 262, 265-66, 934 A.2d 263,
cert. denied, 285 Conn. 903, 938 A.2d 594 (2007). The
petitioner was sentenced to a total effective sentence of
forty years incarceration, five years of which were
mandatory. This court affirmed the petitioner's
convictions on appeal. Id., 288.
September 19, 2012, the petitioner filed a petition for a
writ of habeas corpus, which he amended on October 2, 2014.
In his amended petition, the petitioner alleged that his
trial counsel, David Channing, had rendered ineffective
assistance in numerous ways. The only claim relevant to this
appeal, however, is the petitioner's claim that his trial
counsel had rendered ineffective assistance by failing to
move to exclude the testimony of the state's ballistics
expert. On December 17, 2014, the habeas court
held an evidentiary hearing on the amended petition. In a
memorandum of decision filed on January 2, 2015, the court
denied the petitioner's amended petition. The petitioner
then filed a petition for certification to appeal, which the
habeas court denied. This appeal followed. Additional facts
will be set forth as necessary.
appeal, the petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal because the record established that his trial counsel
rendered ineffective assistance by failing to move to exclude
the testimony of the state's ballistics expert. We are
first set forth our standard of review. ‘‘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. . . . A petitioner may establish an abuse of
discretion by demonstrating that the issues are debatable
among jurists of reason . . . [the] court could resolve the
issues [in a different manner] . . . or . . . the questions
are adequate to deserve encouragement to proceed further. . .
. The required determination may be made on the basis of the
record before the habeas court and the applicable legal
principles. . . .
determining whether the habeas court abused its discretion in
denying the petitioner's request for certification, we
necessarily must consider the merits of the petitioner's
underlying claims to determine whether the habeas court
reasonably determined that the petitioner's appeal was
frivolous. In other words, we review the petitioner's
substantive claims for the purpose of ascertaining whether
those claims satisfy one or more of the three criteria . . .
adopted by this court for determining the propriety of the
habeas court's denial of the petition for certification.
Absent such a showing by the petitioner, the judgment of the
habeas court must be affirmed. . . .
it relates to the petitioner's substantive claims] [o]ur
standard of review of a habeas court's judgment on
ineffective assistance of counsel claims is well settled. 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; ...