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Cator v. Commissioner of Correction

Court of Appeals of Connecticut

April 17, 2018

FRANTZ CATOR
v.
COMMISSIONEROF CORRECTION

          Argued November 14, 2017

         Procedural History

         Amended 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. Appeal dismissed.

          Naomi T. Fetterman, assigned counsel, for the appellant (petitioner).

          Linda 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.

          OPINION

          PELLEGRINO, J.

         The 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 petitioner's appeal.

         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.

         A five 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).

         The 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.

         The petitioner has brought five habeas petitions since he was convicted.[1] 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.

         The 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.

         I

         The 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 disagree.

         Preliminarily, 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. . . .

         ‘‘In 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).

         As 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.

         II

         We now 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.

         We 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.

         ‘‘[I]t 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. . . .

         ‘‘Under 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 (2017).

         A

         With 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.

         In 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), [2] or alternatively, the plain error doctrine.[3]

         ‘‘[The 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).

         The 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 . . . .''

         The 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.[4] 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.

         We next 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 (2015).

         ‘‘Although [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.''[5] (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, 254 ...


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