RICHARD JANULAWICZ v. COMMISSIONER OF CORRECTION, SC 18790

Judicial District of Tolland

 

      Habeas; Ineffective Assistance; Whether Habeas Court Properly Restored Petitioner's Right to Seek Certification to Appeal to Supreme Court Following Unsuccessful Appeal of Convictions to Appellate Court.  The petitioner sought a writ of habeas corpus on the ground that his appellate counsel provided ineffective assistance by failing to seek certification to appeal to the Supreme Court following his unsuccessful appeal to the Appellate Court from several criminal convictions.  The habeas court found that although the petitioner had advised his appellate counsel that he wished to seek certification to appeal to the Supreme Court, his appellate counsel did not file a petition for certification despite having a continuing duty to preserve the petitioner's right to request certification.  The habeas court further found that there was no evidence that appellate counsel had reviewed the Appellate Court's opinion to determine whether there were any issues worthy of Supreme Court review.  As a result, the habeas court concluded that appellate counsel's failure to file a petition for certification constituted deficient performance and restored the petitioner's right to file the petition.  The commissioner appealed from the habeas court's decision to the Appellate Court (127 Conn. App. 576), which reversed.  Although the Appellate Court agreed with the habeas court that the petitioner's appellate counsel had a continuing duty to represent the petitioner in regard to the filing of a petition for certification to the Supreme Court, the Appellate Court stated that the failure to seek certification alone does not constitute deficient performance absent evidence that issues worthy of pursuit could have been raised in such a petition.  The Appellate Court concluded that although appellate counsel's representation of the petitioner was not necessarily ineffective based only on his failure to seek certification to the Supreme Court, he was deficient in failing to give timely review to the petitioner's claims to determine if a petition for certification should be filed.  Noting, however, that the petitioner did not offer any evidence that his criminal case presented any issues worthy of certification to the Supreme Court, the Appellate Court further concluded that the petitioner's ineffective assistance of counsel claim must fail because the petitioner did not prove prejudice by showing that it was reasonably probable that he would have prevailed in obtaining further review of his direct appeal had appellate counsel not been deficient.  In this certified appeal, the Supreme Court will consider whether the Appellate Court correctly determined that the habeas court improperly restored the petitioner's right to seek certification to appeal to the Supreme Court following an unsuccessful appeal to the Appellate Court from several criminal convictions.