Hankerson v. Commissioner of Correction ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
RODNEY HANKERSON v. COMMISSIONER
OF CORRECTION
(AC 34752)
Sheldon, Keller and Harper, Js.
Argued January 21—officially released May 20, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Jennifer Vickery, assigned counsel, for the appel-
lant (petitioner).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Erika L. Brookman, assistant state’s
attorney, for the appellee (respondent).
Opinion
KELLER, J. The petitioner, Rodney Hankerson,
appeals from the judgment of the habeas court denying
his third amended petition for a writ of habeas corpus.
On appeal, the petitioner claims that the court abused
its discretion in denying his petition for certification to
appeal and argues that the court improperly rejected
his claim that his trial counsel had rendered ineffective
assistance by failing to request an affirmative defense
instruction in connection with a felony murder charge.
The petitioner also claims that his right to due process
of law was violated by an instructional error regarding
proximate cause that had been waived by his trial coun-
sel. We conclude that the court did not abuse its discre-
tion in denying the petition for certification to appeal,
and, accordingly, dismiss the petitioner’s appeal.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s claims.1 In 2007,
following a trial by jury, the petitioner was convicted of
felony murder in violation of General Statutes § 53a-
54c,2 robbery in the first degree in violation of General
Statutes § 53a-134 (a) (1), and robbery in the first degree
in violation of General Statutes § 53a-134 (a) (3). The
trial court imposed a total effective sentence of sixty
years incarceration. This court affirmed the judgment
of conviction on direct appeal. State v. Hankerson, 118
Conn. App. 380, 381, 983 A.2d 898 (2009), cert. denied,
298 Conn. 932, 10 A.3d 518 (2010).
In the petitioner’s direct appeal, the petitioner
claimed that there was an instructional error, in that
the court failed to explain the doctrine of proximate
cause adequately in its jury instruction on the crime of
felony murder. Id. Specifically, the petitioner argued
that it was reasonably possible that the court’s instruc-
tion ‘‘misled the jury with regard to the essential ele-
ment that the victim’s death was caused in the course
of and in furtherance of the crime of robbery or flight
therefrom. Essentially, the [petitioner] argue[d] that the
court did not adequately explain in what manner the
victim’s death must be causally connected to his crimi-
nal activity.’’ (Emphasis in original.) Id., 383. This court
disagreed and rejected the petitioner’s claim, brought
under the doctrine set forth in State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), because the
petitioner’s trial counsel had acquiesced in the sub-
stance of the instruction that he was challenging on
appeal. State v. Hankerson, supra, 118 Conn. App. 389.
Specifically, this court noted that the trial court held a
charge conference with the parties, on the record, in
which it discussed its proposed charge, without objec-
tion from the petitioner’s counsel. Id., 384, 388. Addi-
tionally, this court found that the petitioner’s trial
counsel had agreed to an identical supplemental
instruction on the elements of felony murder, which
was given in response to an inquiry by the jury. The
supplemental instruction was discussed with the parties
before it was delivered to the jury. Id., 385–86. ‘‘After
delivering this supplemental instruction, the court
asked the [petitioner’s] attorney if the defense took
exception to the instruction. The [petitioner’s] attorney
replied: ‘No, Your Honor.’ ’’ Id., 387. Accordingly, this
court found that the petitioner’s claim of instructional
error had been waived. Id., 389.
On December 7, 2011, the petitioner filed his third
amended petition for a writ of habeas corpus. Therein,
he alleged that his trial counsel, Attorney Jeffrey Kes-
tenband and Attorney William Paetzold, had rendered
ineffective assistance in a number of ways, including
by failing to request a jury instruction on the affirmative
defense to the felony murder charge3 and by failing
to ensure that the jury instructions were ‘‘complete,
accurate and appropriate.’’4 He claimed that but for his
trial counsel’s ineffective assistance, he would have
been acquitted of all charges.
On December 8, 2011, the habeas court, Cobb, J.,
heard testimony from the petitioner, Kestenband, and
the petitioner’s appellate counsel on his direct appeal,
Attorney Brendon P. Levesque.5 In a memorandum of
decision filed May 11, 2012, the court denied the
amended petition. The court found that trial counsel’s
decisions had been strategic, ‘‘reasonable under the
circumstances’’ and ‘‘consistent with the [petitioner’s]
theory of the case . . . .’’ It also found that the peti-
tioner had failed to present sufficient evidence from
which the court could conclude that the outcome of
the trial would have been different but for trial counsel’s
conduct. The court subsequently denied the petition for
certification to appeal. This appeal followed.
We begin by setting forth the applicable standard of
review and procedural hurdles that the petitioner must
surmount to obtain appellate review of the merits of a
habeas court’s denial of the habeas petition following
denial of certification to appeal. ‘‘In Simms v. Warden,
229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme
Court] concluded that . . . [General Statutes] § 52-470
(b) prevents a reviewing court from hearing the merits
of a habeas appeal following the denial of certification
to appeal unless the petitioner establishes that the
denial of certification constituted an abuse of discretion
by the habeas court. In Simms v. Warden, 230 Conn.
608, 615–16, 646 A.2d 126 (1994), [the Supreme Court]
incorporated the factors adopted by the United States
Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32,
111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appro-
priate standard for determining whether the habeas
court abused its discretion in denying certification to
appeal. This standard requires the petitioner to demon-
strate that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis omitted; internal quotation marks
omitted.) Tutson v. Commissioner of Correction, 144
Conn. App. 203, 214–15, 72 A.3d 1162, cert. denied, 310
Conn. 928, 78 A.3d 145 (2013).
‘‘Furthermore, it is axiomatic that a petitioner is
bound by his petition. . . . While the habeas court has
considerable discretion to frame a remedy that is com-
mensurate with the scope of the established constitu-
tional violations . . . it does not have the discretion to
look beyond the pleadings and trial evidence to decide
claims not raised. . . . Having not raised [an] issue
before the habeas court, [a] petitioner is barred from
raising it on appeal. This court is not bound to consider
claimed errors unless it appears on the record that the
question was distinctly raised . . . and was ruled upon
and decided by the court adversely to the [petitioner’s]
claim. . . . This court is not compelled to consider
issues neither alleged in the habeas petition nor consid-
ered at the habeas proceeding . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) Greene v.
Commissioner of Correction, 131 Conn. App. 820, 822,
29 A.3d 171 (2011), cert. denied, 303 Conn. 936, 36 A.3d
695 (2012).
‘‘We examine the petitioner’s underlying claim of inef-
fective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. Our standard
of review of a habeas court’s judgment on ineffective
assistance of counsel claims is well settled. In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Mejia v. Commissioner of Correction, 98 Conn. App.
180, 186, 908 A.2d 581 (2006), appeal dismissed after
remand, 112 Conn. App. 137, 962 A.2d 148, cert. denied,
291 Conn. 910, 969 A.2d 171 (2009).
The petitioner’s principal brief to this court did not
address the threshold issue of whether the habeas court
abused its discretion by denying his petition for certifi-
cation to appeal. Therefore, prior to oral argument
before this court, we ordered the petitioner to file a
supplemental brief addressing that issue. The petition-
er’s principal brief identified only two claims. The peti-
tioner first claimed that his trial counsel rendered
ineffective assistance by failing to request an affirmative
defense instruction to the felony murder charge, and
that their failure to make such a request was not a
strategic decision, but an inadvertent result of not
understanding the felony murder statute.
The petitioner’s second claim is less clear. In his
appellate brief, the petitioner frames his claim as fol-
lows: ‘‘Applying waiver to this case, involving juror
solicited supplemental instructions on the difficult con-
cept of proximate cause in felony murder, violates due
process.’’ In his supplemental brief, the petitioner
reframes the issue as follows: ‘‘This case squarely pre-
sents the issue of whether the trial court’s decisions
about jury instructions are forever beyond the correc-
tive reach of appellate review if [an ineffective] trial
counsel fails to object.’’ The petitioner essentially
claims that we should reconsider the claim raised in
his direct appeal—whether his trial counsel’s conduct
regarding the jury instructions constituted waiver—and
that even if it did constitute waiver, we should not apply
our established precedent regarding reviewability of
waived jury instruction claims, under the specific cir-
cumstances of this case, because it denied the petitioner
his right to due process of law. The petitioner’s claims
are without merit.
I
We first address the petitioner’s claim that his right
to due process of law was violated by an instructional
error regarding proximate cause that had been waived
by his trial counsel. The petitioner did not address this
issue in his third amended petition for a writ of habeas
corpus, during the habeas proceeding, or in his petition
for certification to appeal.6 It is well established that
‘‘[w]e do not entertain claims not raised before the
habeas court but raised for the first time on appeal.’’
Bertotti v. Commissioner of Correction, 136 Conn. App.
398, 404, 44 A.3d 892, cert. denied, 307 Conn. 901, 53
A.3d 217 (2012). ‘‘The purpose of the [petition] is to put
the [respondent, the Commissioner of Correction] on
notice of the claims made, to limit the issues to be
decided, and to prevent surprise.’’ (Internal quotation
marks omitted.) Holley v. Commissioner of Correction,
62 Conn. App. 170, 181, 774 A.2d 148 (2001). The peti-
tioner’s third amended petition solely presents the claim
of ineffective assistance of trial counsel. Nowhere in
the petition does he allege that his trial counsel’s con-
duct did not constitute a valid waiver, or that this court’s
finding that his counsel waived the instructional error
violated his right to due process. Further, at no point
during the habeas proceedings did the petitioner or the
respondent elicit testimony concerning whether trial
counsel had waived the challenged instructional error
or whether that waiver violated the petitioner’s right
to due process, and the habeas court made no such
ruling. To review the petitioner’s claims ‘‘now would
amount to an ambuscade of the [habeas] judge.’’ (Inter-
nal quotation marks omitted.) Lewis v. Commissioner
of Correction, 117 Conn. App. 120, 126, 977 A.2d 772,
cert. denied, 294 Conn. 904, 982 A.2d 647 (2009). More-
over, because the petitioner did not raise the issue
related to the waived instructional error claim before
the habeas court, either during the proceedings or in
his petition for certification to appeal, the habeas court
could not have, and did not, abuse its discretion in
denying his petition for certification to appeal as it
relates to this issue. Accordingly, that portion of the
appeal must be dismissed.
II
We now address the petitioner’s remaining claim that
his trial counsel rendered ineffective assistance by fail-
ing to request a jury charge on the affirmative defense
to felony murder. As noted, prior to oral argument
before this court, we ordered the petitioner to file a
supplemental brief addressing the threshold issue of
whether the habeas court had abused its discretion by
denying his petition for certification to appeal, with
which the petitioner timely complied. When given the
opportunity to address this threshold issue in his sup-
plemental brief, however, the petitioner focused exclu-
sively on his challenge to this court’s finding of waiver.
Simply put, the petitioner did not address how his claim
of ineffective assistance for failure to request a charge
on the affirmative defense to the felony murder
charge—the only claim before us that was raised before
the habeas court—satisfies the requirements of Simms
v. Warden, supra, 230 Conn. 612. More particularly, he
failed to argue why that claim presents a question that
is deserving of encouragement to proceed further and
is debatable among jurists of reason.
Because we have no basis for concluding that the
habeas court abused its discretion in denying the peti-
tioner’s petition for certification to appeal from its
denial of his claim of ineffective assistance based on
trial counsel’s failure to request a charge on the affirma-
tive defense to felony murder, that portion of his appeal
also must be dismissed.
The appeal is dismissed.
In this opinion the other judges concurred.
1
This court’s opinion in the petitioner’s direct appeal provides a full
exposition of the facts that the jury reasonably could have found at trial.
See State v. Hankerson, 118 Conn. App. 380, 983 A.2d 898 (2009), cert.
denied, 298 Conn. 932, 10 A.3d 518 (2010).
2
General Statutes § 53a-54c provides in relevant part: ‘‘A person is guilty
of murder when, acting either alone or with one or more persons, he commits
or attempts to commit robbery . . . and, in the course of and in furtherance
of such crime or of flight therefrom, he, or another participant, if any, causes
the death of a person other than one of the participants, except that in any
prosecution under this section, in which the defendant was not the only
participant in the underlying crime, it shall be an affirmative defense that
the defendant: (1) Did not commit the homicidal act or in any way solicit,
request, command, importune, cause or aid the commission thereof; and
(2) was not armed with a deadly weapon, or any dangerous instrument; and
(3) had no reasonable ground to believe that any other participant was
armed with such a weapon or instrument; and (4) had no reasonable ground
to believe that any other participant intended to engage in conduct likely
to result in death or serious physical injury.’’
3
See footnote 2 of this opinion.
4
The third amended petition contained a number of additional allegations
of ineffective assistance that the habeas court rejected. The petitioner’s
appeal, however, implicates only his claims regarding the affirmative defense
and the alleged instructional error.
5
The petitioner’s other trial counsel, Paetzold, did not testify before the
habeas court.
6
The petitioner framed the issues as ‘‘whether the court correctly decided
to deny the petitioner’s habeas petition’’ and ‘‘any other issues found on
appeal.’’