September 7, 2017
T. Fetterman, for the appellant (petitioner).
A. Riggione, senior assistant state's attorney, with
whom, on the brief, were Gail P. Hardy, state's attorney,
and Angela R. Macchiarulo, senior assistant state's
attorney, for the appellee (respondent).
DiPentima, C. J., and Prescott and Mihalakos, Js.
petitioner, Marvin Salmon, appeals following the denial of
his petition for certification to appeal from the judgment of
the habeas court denying his amended petition for a writ of
habeas corpus. On appeal, the petitioner claims that the
habeas court (1) abused its discretion in denying his
petition for certification to appeal and (2) improperly
concluded that he failed to establish the ineffectiveness of
his pretrial counsel. For the reasons set forth herein, we
agree with the petitioner, and conclude that the habeas court
abused its discretion in denying the petition for
certification to appeal. We further conclude that the habeas
court made a clearly erroneous factual finding that underlies
its determination that pretrial counsel did not render
deficient performance. We also determine that the habeas
court did not make a determination regarding whether any
assumed deficient performance prejudiced the petitioner.
Accordingly, we reverse the judgment of the habeas court and
remand the case for a new trial.
record discloses the following facts and procedural history.
Our prior decision on the petitioner's direct appeal in
State v. Salmon, 66 Conn.App. 131, 133-34,
783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d
997 (2002), set forth the following facts:
‘‘During the afternoon of October 22, 1994, the
victim, Claven Hunt, stood at the end of the driveway at 90
Irving Street [in Hartford] talking to another resident of
the building. A red Subaru drove up to the victim, and a
black man with his hair in dreadlocks exited from the
vehicle. The man fired a .38 caliber handgun at the victim.
The victim then ran and his assailant pursued him. The
assailant fired several more bullets; two bullets hit the
victim in the back and three bullets hit a drain spout and
the doors to a garage. Soon thereafter, the police found the
unconscious victim, who was later pronounced dead at Saint
Francis Hospital and Medical Center in Hartford.
red Subaru left the area of the shooting, and an off-duty
Hartford police officer, Matt Rivera, noticed it moving
quickly through traffic on Blue Hills Avenue. Rivera heard a
dispatch that a vehicle matching the description of the red
Subaru had been involved in a shooting. Although Rivera did
not pursue the vehicle because he was off duty and driving
his own car, he informed the dispatcher that while he was
driving on Blue Hills Avenue he had noticed a vehicle
matching the description of the red Subaru. In addition,
Rivera provided the license plate number of the vehicle. The
police determined that the vehicle belonged to the
[petitioner's] mother and found it parked at the
[petitioner's] mother's address.
Hartford police picked up the vehicle and brought it to the
evidence garage. The police dusted the car for latent
fingerprints and found a fingerprint that matched that of the
[petitioner]. In addition, the police determined that there
were traces of gunshot residue from a .38 caliber bullet in
Detective Keith Knight handled the investigation of the
shooting. During the course of the investigation, the
[victim's] family provided Knight with two witnesses to
interview, Theodore Owens and Duane Holmes. On the basis of
[a photographic identification made by Owens on May 2, 1996],
Knight was able to obtain an arrest warrant for the
a pretrial conference on November 20, 1998, the petitioner
was extended two plea offers. On December 11, 1998, the
petitioner formally rejected both plea offers. In February,
2000, following a jury trial, the petitioner was convicted of
murder in violation of General Statutes § 53a-54a (a),
as enhanced pursuant to General Statutes § 53-202k for
using a firearm. Thereafter, the court sentenced the
petitioner to a total effective term of forty-five years of
incarceration. This court affirmed the petitioner's
conviction on direct appeal. See id., 131.
years later, on July 17, 2013, the self-represented
petitioner filed a petition for writ of habeas corpus. On
November 2, 2015, the petitioner, represented by appointed
counsel, filed the amended petition operative in this appeal.
In the sole count of the amended petition, the petitioner
alleged that his constitutional right to the effective
assistance of counsel was violated because his pretrial
counsel, Attorney Donald Cardwell, failed to inform him of
Holmes, the second eyewitness, during plea
negotiations. Specifically, the petitioner alleged that
Attorney Donald Cardwell's performance was deficient, in
that he: ‘‘ failed to meaningfully explain a
plea offer to the petitioner;  failed and neglected to
properly and adequately advise the petitioner of the
desirability of a plea offer;  failed to adequately inform
and advise the petitioner with regards to the relative
strength of the state's case and the possibility of
success at trial; and  affirmatively misadvised the
petitioner regarding the desirability of proceeding to
trial.'' The petitioner further claimed that
‘‘but for [his] counsel's deficient
performance, the result of [his] criminal proceedings would
have been different and more favorable to [him].''
habeas trial was held on March 3, 2016. Following the trial,
the habeas court, Fuger, J., denied the habeas
petition in an oral decision in which it concluded that the
petitioner failed to establish that Attorney Donald Cardwell
had provided ineffective assistance of counsel. Thereafter, the
petitioner, pursuant to General Statutes § 52-470,
petitioned the habeas court for certification to appeal the
following issue: ‘‘Whether the petitioner's
constitutional right to the effective assistance of counsel
was violated.'' The habeas court denied the petition
for certification to appeal, and this appeal followed.
Additional facts and procedural history will be set forth as
petitioner claims that the habeas court abused its discretion
in denying his petition for certification to appeal from the
denial of his amended petition for a writ of habeas corpus
with respect to his claim of ineffective assistance of
counsel. We agree with the petitioner.
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, [the petitioner] 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 the merits. . . . To prove
that the denial of his petition for certification to appeal
constituted 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. . . .
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 [our Supreme Court] for determining the propriety
of the habeas court's denial of the petition for
certification.'' (Citations omitted; internal
quotation marks omitted.) Sanders v.
Commissioner of Correction, 169 Conn.App. 813,
821-22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156
A.3d 536 (2017).
discussed subsequently in part II A of this opinion, we
conclude that the habeas court made a clearly erroneous
factual finding relating to the issue of whether Attorney
Donald Cardwell rendered deficient performance by failing to
advise the petitioner of Holmes' existence during
pretrial plea negotiations. Because the resolution of the
petitioner's underlying claim involves issues that are
debatable among jurists of reason and could have been
resolved by a court in a different manner, we conclude that
the habeas ...