Syms v. Commissioner of Correction

Full title: MARLON SYMS v. COMMISSIONER OF CORRECTION

Court: Appellate Court of Connecticut

Date published: Dec 28, 1999

56 Conn. App. 262 (Conn. App. Ct. 1999)

741 A.2d 991

Opinion

(AC 18394)

Argued October 18, 1999

Officially released December 28, 1999

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, Zarella, J.; judgment dismissing the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

James A. Shanley, special public defender, for the appellant (petitioner).

Nancy Chupak, deputy assistant state's attorney, with whom, on the brief, were James Thomas, state's attorney, and Edward R. Narus, senior assistant state's attorney, for the appellee (petitioner).

Opinion

PER CURIAM.

After a review of the record and briefs, and after hearing the parties at oral argument, we conclude that the petitioner, Marlon Syms, has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal from the dismissal of his petition for a writ of habeas corpus was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991).

The habeas court's dismissal of the petitioner's writ was predicated on a factual review of the petitioner's claim and a determination that the petitioner had failed to rebut the "strong presumption that counsel's conduct f[ell] within the wide range of reasonable professional assistance. . . ." Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992).¹

1 The habeas court also found as a fact that counsel had effectively attacked the only eyewitnesses who had identified the petitioner and that counsel's decision not to present any witnesses was reasonable trial court strategy in light of all the circumstances.

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner's petition for certification to appeal.