Abrams v. Commissioner of Correction

          Argued May 29, 2019

         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, Oliver, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Judie Marshall, with whom, on the brief, was Walter C. Bansley IV, for the appellant (petitioner).

          Sarah Hanna, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

          Keller, Bright and Devlin, Js.

          OPINION

          DEVLIN, J.

         The petitioner, David A. Abrams, ^[1] appeals, following the granting of his certification to appeal, from the judgment of the habeas court denying his fourth petition for a writ of habeas corpus. He claims that counsel who represented him in the appeal taken from the denial of his first petition for a writ of habeas corpus, John C. Drapp, rendered ineffective assistance by withdrawing the appeal pursuant to Practice Book § 63-9.^[2] On appeal, the petitioner asserts that the habeas court erred in concluding that Drapp did not render ineffective assistance by withdrawing the appeal at the petitioner's direction because his decision to withdraw the appeal was based on Drapp's poor advice.^[3] We disagree and, accordingly, affirm the judgment of the habeas court.

         The following procedural history and facts, as found by the habeas court, are relevant to this appeal. The petitioner was convicted, following a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and criminal possession of a firearm in violation of General Statutes § 53a-217. The petitioner's sentence was enhanced pursuant to General Statutes § 53-202k based on the finding that he committed a class B felony with a firearm. On December 7, 2011, the petitioner was sentenced to a total effective sentence of fifty-one years of incarceration, followed by nine years of special parole.^[4] The petitioner subsequently appealed to this court, which affirmed the judgment of the trial court and determined that the jury reasonably could have found the following facts:

‘‘The [petitioner] and the victim, Jacqueline Peton, were involved in a sometimes volatile, live-in relationship from December, 1994, until August, 2000, during which time they had a child. Prior to the relationship ending, the victim called the Danbury police in August, 2000, claiming that the [petitioner] had violated the restraining order that she had obtained against him living with her. At that time, to give the victim ‘a taste of her own medicine,' the [petitioner] called her employer and reported that she was stealing cleaning products at work and selling them.

         ‘‘On November 1, 2000, the [petitioner] went to the victim's apartment to see his son. When the victim did not allow him into her apartment, the [petitioner] threatened to kill her and stated that he was going to report her to the department of children and families for child abuse. During the early evening hours of November 3, 2000, the [petitioner] and the victim had an argument during a telephone conversation. After the victim hung up, the [petitioner] repeatedly called her telephone number. Despite the [petitioner]'s objections, she went out that night with Ricky Cordiero. At approximately 5 a.m. on November 4, 2000, the victim returned to her apartment complex and observed the [petitioner] sitting in his vehicle, a black Chrysler sedan with custom wheel rims. As the victim walked toward her building, the [petitioner] ran to her with a gun in his hand and grabbed her. When she escaped, the [petitioner] circled her and fired a series of shots at her, wounding her in the leg, elbow and buttocks. After the [petitioner]'s gun jammed, as he left the scene, he told the victim, ‘I'm going to get you. I'm going to have somebody f*cking kill you.' '' State v. Abrahams, 79 Conn.App. 767, 769- 70, 831 A.2d 299 (2003).

         The petitioner filed his first amended petition for a writ of habeas corpus on September 17, 2003, in which he asserted twenty-three claims of ineffective assistance of trial counsel, Joseph Romanello. The petition was denied by the habeas court in a memorandum of decision issued February 28, 2005.

         The petitioner filed an appeal from the denial of his first habeas petition on August 3, 2005, wherein he was represented by Drapp. Drapp submitted a brief to the Appellate Court on February 22, 2006, in which he raised the following issue: ‘‘Did the habeas trial court err in finding that the petitioner received effective assistance of counsel at the sentencing hearing on the underlying criminal charges?'' More specifically, the petitioner claimed that the habeas court erred in not finding that his trial counsel was ineffective for failing to take any action to stop the petitioner's verbal assault of the victim, the judge, the prosecutor and his own trial counsel during allocution at sentencing. Drapp also filed a reply brief for the case on August 9, 2006, and the case was ‘‘marked ready'' on the same date. On September 26, 2006, Drapp withdrew the appeal pursuant to Practice Book § 63-9, indicating on the required form that he was withdrawing ‘‘as a result of some activity before the case was assigned to the settlement program.'' (Emphasis omitted.)

         Prior to the withdrawal of the appeal from the denial of his first habeas petition, the petitioner had filed a second petition for a writ of habeas corpus, in which he was represented by Attorney Salvatore Adamo. This second habeas petition was denied in a memorandum of decision dated April 7, 2008; Abrams v.Warden, State Prison, Superior Court, judicial district of Tolland, Docket No. CV-04-4000112-S (April 7, 2008); and the appeal was dismissed by this court on February 16, 2010. Abrams v.Commissioner of Correction, 119 Conn.App. 414, 987 A.2d 370, cert. denied, 295 Conn. 920, 991 A.2d 564 (2010). The petitioner's third habeas petition, in which he was represented by Attorney Justine Miller, was also denied by the habeas court;Abrams v.Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV-10-4003316-S (November 13, 2012); and the appeal was subsequently dismissed by this court on April 8, 2014. Abrams v.Commissioner ...