Dunkley v. Commissioner of Correction

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****************************************************** 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 Connecticut 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 Connecticut 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 reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** ERROL DUNKLEY v. COMMISSIONER OF CORRECTION (AC 26876) (AC 27177) DiPentima, Harper and Foti, Js. Argued November 14, 2006 officially released January 9, 2007 (Appeal from Superior Court, judicial district of New Haven, Pittman, J.) Anthony E. Parent, special public defender, for the appellant (petitioner). Rita M. Shair, senior assistant state s attorney, with whom were Michael Dearington, state s attorney, and, on the brief, Linda N. Howe, senior assistant state s attorney, for the appellee (respondent). Opinion PER CURIAM. The petitioner, Errol Dunkley, appeals following the habeas court s denial of his three petitions for certification to appeal from the judgments dismissing his three petitions for a writ of habeas corpus. We dismiss the appeals. The petitioner was convicted, following a jury trial, of burglary in the first degree as an accessory in violation of General Statutes ยงยง 53a-8 and 53a-101 (a). The petitioner received a total effective sentence of eighteen years incarceration, execution suspended after fifteen years, followed by five years probation. He then filed a direct appeal, and this court affirmed the judgment of conviction in a memorandum decision. See State v. Dunkley, 47 Conn. App. 914, 702 A.2d 672 (1997). In 1998, the petitioner filed a petition for a writ of habeas corpus in which he claimed that his trial counsel had provided ineffective assistance. That petition was unsuccessful, and the petitioner failed to obtain certification to appeal. He appealed to this court, and we dismissed the appeal. See Dunkley v. Commissioner of Correction, 73 Conn. App. 819, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003). The petitioner subsequently filed three additional petitions for a writ of habeas corpus. In the first petition, the petitioner claimed ineffective assistance of trial counsel, actual innocence and prosecutorial misconduct. In the second petition, he claimed that his appellate counsel, Robert M. Casale, had provided ineffective assistance. In the third petition, the petitioner again claimed ineffective assistance of trial counsel and prosecutorial misconduct. The habeas court rejected all of the petitioner s claims and then denied his three petitions for certification to appeal. Although the petitioner has appealed from the denial of all three petitions for certification to appeal, he limits his brief to the issue of whether Casale provided ineffective assistance in the petitioner s direct appeal. We therefore deem all of the petitioner s other claims abandoned. As to Casale s allegedly ineffective assistance, the petitioner claims that Casale should have sought certification to appeal to our Supreme Court after we issued a memorandum decision affirming the judgment of conviction. The petitioner argues that Casale s failure to seek certification to appeal deprived the petitioner of further review regarding a witness prior inconsistent statement that had been admitted into evidence at the petitioner s trial pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).1 The habeas court ruled that even if Casale s failure to seek certification to appeal constituted deficient performance, the petitioner had failed to demonstrate prejudice because it was unlikely that our Supreme Court would have granted certification to appeal and reversed the judgment of conviction. The petitioner must demonstrate that the habeas court abused its discretion in denying his petitions for certification to appeal. It is noteworthy that the petitioner did not raise his claim of ineffective assistance of appellate counsel in his 1998 habeas petition, even though he could have done so. See Dunkley v. Commissioner of Correction, supra, 73 Conn. App. 819. After a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issue he has raised is debatable among jurists of reason, that a court could resolve the issue in a different manner or that the question raised deserves encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431 32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). Accordingly, the court did not abuse its discretion in denying the petitions for certification to appeal. The appeals are dismissed. 1 Our Supreme Court has adopted a rule allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination. State v. Whelan, supra, 200 Conn. 753. A Whelan claim is evidentiary in nature and, accordingly, the defendant bears the burden of establishing that the trial court s erroneous ruling was harmful to him in that it probably affected the outcome of the trial. . . . The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the wide discretion of the trial court. . . . On appeal, the exercise of that discretion will not be dis- turbed except on a showing that it has been abused. (Internal quotation marks omitted.) State v. Holbrook, 97 Conn. App. 490, 499 500, 906 A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006).

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