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Shipman v. Commissioner of Correction

Court of Appeals of Connecticut

April 25, 2017


          Argued November 30, 2016

         Appeal from Superior Court, judicial district of Tolland, Oliver, J.

          Michael W. Brown, assigned counsel, for the appellant (petitioner).

          C. Robert Satti, Jr., supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Craig P. Nowak, senior assistant state's attorney, for the appellee (respondent).

          Alvord, Sheldon and Gruendel, Js.


          GRUENDEL, J.

         Following a grant of certification to appeal, the petitioner, Somen Shipman, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court erred by finding that his right to the effective assistance of counsel was not violated. Specifically, the petitioner claims that the court improperly found that his constitutional right to the effective assistance of counsel was not violated by his trial counsel's failure (1) to adequately raise a Bat-son[1] challenge, and (2) to present the testimony of two alibi witnesses. We disagree and, accordingly, affirm the judgment of the habeas court.

         The following facts and procedural history, as set forth by this court on direct appeal, are relevant to this appeal. ‘‘In October, 1996, Torrance McClain, Norman Gaines and the [petitioner] were entrenched in Bridgeport's drug trade. Sometime in mid-October, Ronald Marcellus, another drug dealer and an associate of McClain, Gaines and the [petitioner], engaged with Gary Louis-Jeune in an angry verbal exchange over their respective drug dealing enterprises. Following this exchange, Marcellus requested that the [petitioner] take care of [the situation] for him because Louis-Jeune was attempting to move in on the block. The [petitioner] and Gaines, on the evening of October 29, 1996, thereafter shot Louis-Jeune and his girlfriend, Marsha Larose, multiple times, killing both of them.

         ‘‘In December, 1996, McClain was arrested and pleaded guilty to drug charges. Before he was sentenced pursuant to his guilty plea, McClain provided the Bridgeport police with a written statement indicating that Gaines and the [petitioner] were responsible for the shooting of Louis-Jeune and Larose. The [petitioner] subsequently was arrested and charged with one count of capital felony, two counts of murder and one count of conspiracy to commit murder. After a trial, the jury returned a verdict of guilty on all charges, and the court, on April 28, 2000, rendered judgment in accordance with the verdict. Merging the two counts of murder with the capital felony charge, the court sentenced the [petitioner] to life imprisonment without the possibility of release, to run concurrently with twenty years imprisonment on the charge of conspiracy to commit murder, for a total effective sentence of life imprisonment without the possibility of release.

         ‘‘In June, 2000, the [petitioner] appealed his conviction directly to the Supreme Court, following which he moved for rectification of the trial court record to establish the races of the jury venirepersons. The trial court denied his motion and, thereafter, the [petitioner] moved for review by the Supreme Court. On March 16, 2004, the Supreme Court granted the motion and the relief requested therein. On November 17, 2011, the state moved for reconsideration of the Supreme Court's granting of the [petitioner's] motion for rectification of the record. The Supreme Court granted both the state's motion and the relief requested therein, stating: Upon careful review of the record, it is apparent that the [petitioner] failed to raise a disparate treatment claim in the trial court and, therefore, is not entitled to rectification of the record to augment [it] with evidence to support such a claim. See, e.g., State v. Hodge, 248 Conn. 207, 227 [726 A.2d 531] (when the defendant [fails] to raise a disparate treatment claim with respect to [specific] venirepersons, the record is inadequate for appellate review of his claims with respect to those venirepersons), cert. denied, 528 U.S. 969');">528 U.S. 969 [120 S.Ct. 409, 145 L.Ed.2d 319] (1999); State v. Haughley, 124 Conn.App. 58, 61 n.3 [3 A.3d 980] (same) [cert. denied, 299 Conn. 912, 10 A.3d 529 (2010)]. Thereafter, pursuant to Practice Book § 65-1, the Supreme Court transferred the [petitioner's] appeal to this court.'' (Footnote omitted; internal quotation marks omitted.) State v. Ship-man, 142 Conn.App. 161, 163-65, 64 A.3d 338, cert. denied, 309 Conn. 918, 70 A.3d 41 (2013). This court affirmed the petitioner's conviction. Id., 177.

         On May 27, 2014, the petitioner filed his amended petition for a writ of habeas corpus. The petitioner alleged, inter alia, that his federal and state constitutional rights to due process, conflict-free representation, and the effective assistance of counsel were violated. Specifically, the petitioner claimed that the state failed to disclose material evidence favorable to his defense, pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the state knowingly presented false testimony at his trial. Additionally, the petitioner claimed that his trial counsel was burdened by an actual conflict of interest that adversely affected counsel's performance, his trial counsel's performance was deficient during jury selection and the criminal trial, and that the petitioner was prejudiced thereby.

         On December 14, 2015, the habeas court denied the petitioner's habeas petition. On December 23, 2015, the court granted his petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

         We begin our analysis with the law governing the petitioner's claim as well as our standard of review. ‘‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . As enunciated in Strickland v. Washington, [466 U.S. 668');">466 U.S. 668, 686-87, 104 S.Ct. 2052, 80L.Ed.2d 674 (1984)], [our Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. . . . The claim will succeed only if both prongs are satisfied.'' (Internal quotation marks omitted.) Spearman v. Commissioner of Correction, 164 Conn.App. 530, 538, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.2d 284 (2016).

         ‘‘[According to] Strickland, [an ineffective assistance of counsel] 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.'' (Emphasis in original; internal quotation marks ...

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