Moye v. Commissioner of Correction
Moye v. Commissioner of Correction
Opinion of the Court
Opinion
The petitioner, Marcus Moye, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. He claims that (1) the court erred in rejecting his claim that his trial counsel was ineffective because of his failure to investigate the case properly and to present an alibi defense, and (2) he was denied effective assistance of counsel when his trial and appellate counsel did not raise a double jeopardy claim. We affirm the judgment of the habeas court.
The police questioned a number of possible witnesses in connection with this incident, including Marvin Gore. Id., 607. Gore told police of another incident involving the petitioner: On August 3, 2003, between 7 and 8 p.m., four blocks from the scene of the murder, the petitioner pulled a gun from his pocket and ordered Gore to hand over everything in his pockets. Id. The petitioner struck Gore in the head when Gore responded that he had nothing. Id.
The petitioner ultimately was charged with murder in violation of General Statutes § 53a-54a and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. He was found guilty on both counts and sentenced to fifty years incarceration. The petitioner’s conviction was affirmed on direct appeal.
In March, 2011, the petitioner filed an amended petition for a writ of habeas corpus in which he claimed that his trial counsel had rendered ineffective assistance by failing to investigate the case properly and failing
“When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. ... To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment [to the United States constitution], ... To satisfy the prejudice prong, a claimant must demonstrate
I
The petitioner claims that the habeas court erred in concluding that his trial counsel did not render deficient performance. He argues that “[t]he fundamental question raised by this appeal is: If it is indeed true that [the petitioner] never told [his trial counsel] about his alibi defense, was [trial counsel’s] performance nonetheless deficient for failing to act on Reynolds’ police report?”
Because the habeas court’s conclusion regarding deficient performance must stand,
II
The petitioner also claims that he was denied effective assistance of counsel by the failure of his trial and appellate counsel to raise a double jeopardy claim. He argues that he previously had been charged with carrying a revolver without a permit in violation of § 29-35 (a) on August 3, 2003, in New Haven, in connection with the attempted robbery of Gore, and that the charge alleging a violation of § 29-35 (a) had been dismissed.
The petitioner did not raise the double jeopardy claim in the habeas court, nor did the court rule on it. Accordingly, we decline to review his claim under Golding. For similar reasons, we also decline to review the petitioner’s claim under the plain error doctrine.
The judgment is affirmed.
The petitioner also claimed in his habeas petition that his trial counsel rendered ineffective assistance by failing to explain properly the likely outcome of the case if it went to trial and failing to present certain witnesses at the time of sentencing. The court dismissed the claim regarding the sentencing and deemed abandoned the claim regarding trial counsel’s failure to explain the likely outcome after a trial. On appeal, the petitioner does not challenge these aspects of the court’s decision.
The petitioner claims on appeal that Reynolds’ report placed the petitioner a considerable distance from the scene of the homicide at a time reasonably close to that of the homicide.
The court’s conclusion that trial counsel did not render deficient performance was based on its findings that trial counsel’s testimony that the petitioner did not inform him of his alibi defense was credible and that the petitioner’s testimony to the contrary was not credible. The petitioner notes in his appellate brief that he does not challenge the court’s finding that he did not inform trial counsel of his alibi defense.
The specific charge apparently had been dismissed as part of a plea bargain.
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial 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 clearly exists and clearly deprived the defendant 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 areasonable doubt.” (Emphasis omitted; footnote omitted.) State v. Golding, supra, 213 Conn. 239-40.
“[T]he plain error doctrine ... is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that,
Reference
- Full Case Name
- MARCUS MOYE v. COMMISSIONER OF CORRECTION
- Cited By
- 6 cases
- Status
- Published