November 14, 2017
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Sferrazza, J.; judgment denying the petition;
thereafter, the court denied the petition for certification
to appeal, and the petitioner appealed to this court.
T. Fetterman, assigned counsel, for the appellant
F. Currie-Zeffiro, assistant state's attorney, with whom,
on the brief, were John C. Smriga, state's attorney, and
Emily D. Trudeau, deputy assistant state's attorney, for
the appellee (respondent).
Alvord, Prescott and Pellegrino, Js.
petitioner, Frantz Cator, appeals following the denial of his
petition for certification to appeal from the judgment of the
habeas court denying his fourth 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 from the denial of his amended
petition, (2) improperly concluded that he failed to
establish that his appellate counsel in his direct criminal
appeal rendered deficient performance, and (3) improperly
concluded that his stand-alone due process claim was
procedurally defaulted. We conclude that the habeas court did
not abuse its discretion in denying the petition for
certification to appeal and, accordingly, dismiss the
following facts and procedural history are relevant to our
disposition of the petitioner's appeal. In connection
with the murder of the victim, Nathaniel Morris, the state
charged the petitioner with capital felony in violation of
General Statutes § 53a-54b (5); felony murder in
violation of General Statutes § 53a-54c; murder as an
accessory in violation of General Statutes §§
53a-54a (a) and 53a-8 (a); conspiracy to commit murder in
violation of General Statutes §§ 53a-48 and 53a-54a
(a); kidnapping in the second degree in violation of General
Statutes § 53a-94 (a); conspiracy to commit kidnapping
in the second degree in violation of §§ 53a-48 and
53a-94 (a); and commission of a Class A, B or C felony with a
firearm in violation of General Statutes § 53-202k.
day jury trial began on October 14, 1997. At the close of the
state's evidence, the petitioner's trial counsel,
Kevin Randolph, moved for a judgment of acquittal with
respect to the charges of capital felony murder, felony
murder, murder, conspiracy to commit murder and conspiracy to
commit kidnapping in the second degree on the basis of
insufficient evidence. The court granted the petitioner's
motion only as to the capital felony murder charge. The
petitioner was subsequently convicted on all remaining
charges and sentenced to a total effective term of fifty-five
years incarceration, execution suspended after fifty years,
followed by five years of probation. See State v.
Cator, 256 Conn. 785, 787-88, 781 A.2d 285 (2001).
petitioner appealed from the trial court's judgment to
this court, and our Supreme Court transferred the appeal to
itself pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1. Id., 788. Attorney
Suzanne Zitser, the petitioner's appellate counsel,
raised seven issues on his behalf, specifically claiming that
the trial court improperly ‘‘(1) failed to
determine whether there was a conflict in dual representation
at the probable cause hearing; (2) admitted evidence of the
[petitioner's] prior, uncharged drug dealing; (3) failed
to instruct the jury regarding the [petitioner's] prior
drug dealing; (4) modified the judgment of conviction after
the [petitioner] had begun serving his imposed prison term;
(5) charged the jury that § 53-202k is a separate
offense and encompasses accessory liability; (6) sentenced
him to concurrent terms for two conspiracies and thereby
violated the ban on double jeopardy; and (7) failed to
provide him with formal notice that he had violated his
probation stemming from a previous conviction.''
State v. Cator, supra, 256 Conn. 789. Our Supreme
Court subsequently reversed the trial court's judgment in
part and remanded the case with direction (1) to vacate the
petitioner's conviction under § 53-202k and to
conduct a new trial on the issue of whether the petitioner
‘‘used a proscribed firearm in the commission of
the underlying offense''; id., 812; and (2)
to merge the petitioner's convictions of the conspiracy
offenses and to impose one sentence for that conviction. See
id., 813. The judgment was affirmed in all other
aspects. See id. On April 22, 2003, the trial court
modified the petitioner's sentence to a total effective
sentence of forty-five years.
petitioner has brought five habeas petitions since he was
convicted. On December 4, 2013, the self-represented
petitioner filed his fourth petition for a writ of habeas
corpus. On June 7, 2016, the petitioner, represented by
appointed counsel, filed the amended three count operative
petition. The petitioner alleged: (1) the ineffective
assistance of his trial counsel; (2) the ineffective
assistance of his appellate counsel in his direct criminal
appeal, on the basis of her failure to raise claimsof
instructional error and insufficient evidence to sustain his
convictions of murder, conspiracy to commit murder, and
felony murder; and (3) a violation of his due process rights
at his underlying criminal trial on the basis of the
aforementioned instructional impropriety. On July 12, 2016,
the respondent, the Commissioner of Correction, moved to
dismiss the petitioner's amended petition in its
entirety. On July 21, 2016, the petitioner filed an objection
to the respondent's motion to dismiss.
habeas trial was held on July 25, 2016. The habeas court
granted the respondent's motion to dismiss with respect
to the petitioner's claim against his trial counsel. The
habeas court heard testimony from Randolph, Zitser, and
Assistant State's Attorney C. Robert Satti, Jr., the
prosecutor in the petitioner's criminal trial. The
petitioner also presented expert testimony from Attorney
Norman A. Pattis, an expert in criminal defense matters in
state court, and Attorney Michael Taylor, an expert in
appellate law, both of whom rendered opinions as to the
effectiveness of Zitser. On October 11, 2016, the habeas
court issued a written decision denying the petitioner's
amended petition. The habeas court concluded that the
petitioner failed to establish that Zitser had rendered
deficient performance and that the petitioner's due
process claim was procedurally defaulted. Thereafter, on
October 19, 2016, the habeas court denied the petition for
certification to appeal, and this appeal followed. Additional
facts and procedural history will be set forth as necessary.
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.
we set forth the standard of review that governs our
disposition of the petitioner's appeal.
‘‘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 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.'' (Internal quotation marks omitted.)
Salmon v. Commissioner of Correction, 178 Conn.App.
695, 700-701, 177 A.3d 566 (2017).
discussed subsequently in parts II and III of this opinion,
we conclude that the petitioner's underlying claims do
not involve issues that are debatable among jurists of
reason, could not have been resolved by a court in a
different manner or that the questions raised deserve
encouragement to proceed further. Accordingly, the habeas
court did not abuse its discretion in denying the petition
for certification to appeal from the denial of the amended
petition for a writ of habeas corpus.
turn to the petitioner's substantive claims that the
habeas court improperly concluded that the petitioner failed
to establish ineffective assistance of his appellate counsel.
The petitioner claims that his appellate counsel rendered
ineffective assistance by failing to raise the following
claims on direct appeal: (1) instructional error with respect
to intent, and (2) insufficient evidence adduced at trial to
sustain his convictions of murder as an accessory, conspiracy
to commit murder, and felony murder. We disagree.
begin by setting forth the applicable standard of review and
legal principles governing claims of ineffective assistance
of appellate counsel. ‘‘The habeas court is
afforded broad discretion in making its factual findings, and
those findings will not be disturbed unless they are clearly
erroneous. . . . Historical facts constitute a recital of
external events and the credibility of their narrators. . . .
Accordingly, the habeas judge, as the trier of facts, is the
sole arbiter of the credibility of witnesses and the weight
to be given to their testimony. . . . The application of the
habeas court's factual findings to the pertinent legal
standard, however, presents a mixed question of law and fact,
which is subject to plenary review.'' (Internal
quotation marks omitted.) Id., 703.
is well established that [a] criminal defendant is
constitutionally entitled to adequate and effective
assistance of counsel at all critical stages of criminal
proceedings. Strickland v. Washington, [466 U.S.
668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. This right
arises under the sixth and fourteenth amendments to the
United States constitution and article first, § 8, of
the Connecticut constitution.'' (Internal quotation
marks omitted.) Salmon v. Commissioner of
Correction, supra, 178 Conn.App. 702. ‘‘Our
Supreme Court has adopted [the] two part analysis [set forth
in Strickland v. Washington, supra, 687] in
reviewing claims of ineffective assistance of appellate
counsel. . . . To prevail on a claim of ineffective
assistance of counsel, a petitioner must show (1) that
counsel's performance was deficient and (2) that the
deficient performance prejudiced the defense. . . . Because
the petitioner must satisfy both prongs of the
Strickland test to prevail on a habeas corpus
petition, this court may dispose of the petitioner's
claim if he fails to meet either prong. . . .
the performance prong, [a] court must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance . . . .
[Although] an appellate advocate must provide effective
assistance, [she] is not under an obligation to raise every
conceivable issue. A brief that raises every colorable issue
runs the risk of burying good arguments . . . in a verbal
mound made up of strong and weak contentions. . . . [I]f the
issues not raised by his appellate counsel lack merit, [the
petitioner] cannot sustain even the first part of this dual
burden since the failure to pursue unmeritorious claims
cannot be considered conduct falling below the level of
reasonably competent representation.'' (Emphasis
in original; internal quotation marks omitted.) Toccaline
v. Commissioner of Correction, 177 Conn.App. 480, 496,
172 A.3d 821, cert. denied, 327 Conn. 986, 175 A.3d 45
that legal framework in mind, we first address the
petitioner's claim that the habeas court improperly
concluded that his appellate counsel did not render deficient
performance by failing to raise an instructional claim on
direct appeal. More specifically, the petitioner challenges
the habeas court's conclusion that appellate counsel made
a ‘‘strategic decision'' not to pursue
this claim on appeal given the ‘‘preexisting
judicial recognition of the instructional
impropriety.'' We disagree with the petitioner.
order to determine whether appellate counsel made a
reasonable strategic decision not to raise the claim of
instructional error in the petitioner's direct criminal
appeal, we must evaluate the merits of the claim itself.
Although the petitioner's instructional error claim was
not preserved before the criminal trial court, had the claim
been raised on direct appeal, review may have been available
at that time pursuant to State v. Golding, 213 Conn.
233, 239-40, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),
alternatively, the plain error doctrine.
Golding doctrine] permits a [petitioner] to prevail
on [an unpreserved] claim of constitutional error . . . only
if all of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional violation .
. . exists and . . . deprived the [petitioner] of a fair
trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. . . .
[T]he first two [prongs of Golding] involve a
determination of whether the claim is reviewable; the second
two . . . involve a determination of whether the [petitioner]
may prevail.'' (Citations omitted; internal quotation
marks omitted.) State v. Montanez, 277 Conn. 735,
743-44, 894 A.2d 928 (2006). The record in the present case
is adequate for our review because it contains the full
transcript of the underlying criminal proceedings. Moreover,
‘‘when intent is an element of a crime, a trial
court's failure to instruct the jury properly with
respect to intent implicates the due process rights of the
[petitioner].'' Id., 744. We therefore turn
to Golding's third prong, which is dispositive
of the petitioner's instructional claim. See, e.g.,
State v. Aviles, 107 Conn.App. 209, 230, 944 A.2d
994 (‘‘as to unpreserved claims of constitutional
error in jury instructions, we have stated that under the
third prong of Golding, [a] defendant may prevail .
. . only if . . . it is reasonably possible that the jury was
misled'' [internal quotation marks omitted]), cert.
denied, 287 Conn. 922, 951 A.2d 570 (2008).
issue in the present matter is whether the petitioner's
appellate counsel should have raised a claim that the trial
court improperly instructed the jury on intent when it read
the entire definitional language of General Statutes §
53a-3 (11). Section 53a-3 (11) provides that
‘‘[a] person acts ‘intentionally' with
respect to a result or to conduct described by a statute
defining an offense when his conscious objective is to cause
such result or to engage in such conduct . . . .''
petitioner argues that it was improper for the trial court to
instruct the jury regarding general intent, the intent to
engage in conduct, and specific intent, the intent to cause
such result, because the crimes he was charged with required
instructions only as to specific intent. The petitioner
further argues that ‘‘[a]s a result of this
instructional impropriety, the jury was misled as to the
state's burden of proof on the essential element of
intent, '' and the error allowed the jury to find him
guilty of specific intent crimes while employing the lower
standard of general intent. In response, the respondent
argues that, viewing the charge in its entirety, there is no
reasonable possibility that the jury was misled because the
‘‘trial court repeatedly instructed the jury
regarding the specific intent necessary to commit murder,
second degree kidnapping, and conspiracy to commit those
crimes.'' We agree with the respondent.
set forth the legal principles applicable to our analysis of
the petitioner's instructional claim.
‘‘[I]ndividual jury instructions should not be
judged in artificial isolation, but must be viewed in the
context of the overall charge. . . . The pertinent test is
whether the charge, read in its entirety, fairly presents the
case to the jury in such a way that injustice is not done to
either party under the established rules of law. . . . Thus,
[t]he whole charge must be considered from the standpoint of
its effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a microscopic
search for possible error. . . . Accordingly, [i]n reviewing
a constitutional challenge to the trial court's
instruction, we must consider the jury charge as a whole to
determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, we must
consider whether the instructions [in totality] are
sufficiently correct in law, adapted to the issues and ample
for the guidance of the jury.'' (Internal quotation
marks omitted.) Salters v. Commissioner of
Correction, 175 Conn.App. 807, 818-19, 170 A.3d 25,
cert. denied, 327 Conn. 969, 173 A.3d 954 (2017); see also
State v. Revels, 313 Conn. 762, 784, 99 A.3d 1130
(2014), cert. denied, U.S., 135 S.Ct. 1451, 191 L.Ed.2d 404
[our appellate courts] have stated that [i]t is improper for
the trial court to read an entire statute to a jury when the
pleadings or the evidence support a violation of only a
portion of the statute . . . that is not dispositive. We must
determine whether it is reasonably possible that the jury was
misled by the trial court's instructions.''
(Internal quotation marks omitted.) Salters v.
Commissioner of Correction, supra, 175 Conn.App. 819.
‘‘[I]n cases in which the entire definition of
intent was improperly read to the jury, the conviction of the
crime requiring specific intent almost always has been upheld
because a proper intent instruction was also given. [In those
cases] [t]he erroneous instruction, therefore, was not
harmful beyond a reasonable doubt.'' (Internal
quotation marks omitted.) State v. Rivet, 99
Conn.App. 230, 232-33, 912 A.2d 1103, cert. denied, 281 Conn.
923, 918 A.2d 274 (2007). Beginning with State v.
DeBarros, 58 Conn.App. 673, 755 A.2d 303, cert. denied,