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Francis v. Commissioner of Correction

Court of Appeals of Connecticut

June 12, 2018

KERMIT FRANCIS
v.
COMMISSIONER OF CORRECTION

          Submitted on briefs February 22, 2018.

         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, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Donald F. Meehan and Walter C. Bansley IV filed a brief for the appellant (petitioner).

          Nancy L. Chupak, senior assistant state's attorney, Gail P. Hardy, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, filed a brief for the appellee (respondent).

          DiPentima, C. J., and Lavine and Pellegrino, Js.

          OPINION

          DiPENTIMA, C. J.

         The petitioner, Kermit Francis, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The habeas court granted his petition for certification to appeal to this court; he claims on appeal that he was prejudiced as a result of the ineffective assistance of his erstwhile habeas counsel, Michael Day. Specifically, the petitioner argues that, at his habeas trial, Day failed (1) to question a witness properly and (2) to present evidence of that witness' availability to testify at the original criminal trial. We affirm the judgment of the habeas court.

         The following facts, as summarized by our Supreme Court on the petitioner's direct appeal, are relevant. ‘‘On December 20, 1993, the [petitioner], along with Casey Wilcox, Andre Shirley and Corey Rosemond, were selling crack cocaine in the area of [Wilcox'] residence at 88 Atwood Street in Hartford. The victim, Moses Barber, Jr., a regular customer, purchased drugs from the [petitioner]. After making his purchase, he walked away. The victim later returned to [Wilcox'] porch and engaged in an argument with the [petitioner] concerning the drug sale. The victim and the [petitioner] left the porch and the [petitioner] proceeded up a dark driveway between two buildings directly across the street from [Wilcox'] residence. The victim remained near the street. As they continued to argue, the [petitioner] approached the victim and shot him. The victim died later that night as a result of a gunshot wound to his abdomen.

         ‘‘On December 21, 1993, Wilcox asked the [petitioner] for his guns for the purpose of threatening an individual who had accused Wilcox of shooting the victim. The [petitioner] went into the basement of a house on Atwood Street, and emerged with a handgun and rifle, which he gave to Wilcox. Wilcox, in turn, gave the weapons to Rosemond and instructed Rosemond to put the weapons in the trunk of a vehicle parked behind [Wilcox'] residence. The next morning, Hartford police officers, armed with a search warrant, seized the weapons from the trunk of the vehicle and, thereafter, learned that the [petitioner] did not have a permit to carry a pistol or revolver. Moreover, the police officers found that the serial number on the pistol had been ground off.

         ‘‘Thereafter, Wilcox, Shirley and Rosemond gave statements implicating the [petitioner] in the murder, and a warrant was issued on December 23, 1993, for the [petitioner's] arrest. The [petitioner] was arrested in New York in June, 1995.'' (Footnotes omitted.) State v. Francis, 246 Conn. 339, 342-43, 717 A.2d 696 (1998).

         Following a trial, a jury found the petitioner guilty of murder in violation of General Statutes (Rev. to 1993) § 53a-54a (a), carrying a pistol without a permit in violation of General Statutes (Rev. to 1993) § 29-35 and altering or removing an identification mark on a pistol in violation of General Statutes (Rev. to 1993) § 29-36. See State v. Francis, supra, 246 Conn. 341-42. The trial court, Barry, J., sentenced the petitioner to a total effective sentence of sixty years imprisonment.[1]

         The petitioner, representing himself, filed a petition for a writ of habeas corpus dated January 1, 2001, alleging that his criminal trial counsel, William B. Collins, had rendered ineffective assistance. Eventually, the petitioner was assigned counsel, Frank Cannatelli, who withdrew that first petition with prejudice. That withdrawal prompted a second habeas action, this time alleging, among other things, that Cannatelli was ineffective for withdrawing the original petition. After a trial (first habeas trial), the habeas court, Schuman, J., partially granted the second petition and restored the original petition under a new docket number.

         In his restored petition, the petitioner, represented by Day, alleged that Collins had rendered ineffective assistance. Specifically, the petitioner alleged that Collins failed to call Fredrica Knight, a potentially exculpatory witness, to testify in the original criminal trial. After a trial (second habeas trial), the habeas court, Bright, J., denied the petition in a memorandum of decision, which ...


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