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MARCUS MOYE v. COMMISSIONER OF CORRECTION
(SC 19271)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa,
Robinson and Vertefeuille, Js.
Argued January 6—officially released May 12, 2015
John L. Cordani, Jr., assigned counsel, for the appel-
lant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Michael Dearington, state’s attorney,
and David Clifton, assistant state’s attorney, for the
appellee (respondent).
Opinion
ZARELLA, J. The primary issue in this case is the
extent to which unpreserved constitutional claims may
be reviewed on appeal in habeas actions. The petitioner,
Marcus Moye, appeals from the judgment of the Appel-
late Court, which, in upholding the denial of his habeas
petition, declined to review an ineffective assistance of
counsel claim that he raised for the first time on appeal.
The petitioner concedes that his ineffective assistance
of counsel claim is unpreserved but argues that he nev-
ertheless is entitled to have his claim reviewed pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), which allows a party to raise an unpreserved
constitutional claim under certain circumstances. We
disagree and affirm the judgment of the Appellate Court.
The record reveals the following relevant facts and
procedural history. Joshua Brown was fatally shot in the
city of New Haven at approximately 8 p.m. on August 3,
2003. As the police approached the scene of the shoot-
ing, a police officer observed a heavyset, black male
wearing a white jersey riding away from the scene on a
bicycle. During the subsequent investigation, the police
learned that Brown had been a member of a local gang
that was feuding with another gang at the time of his
death. The police also spoke with a number of witnesses
who tied the petitioner to the shooting. One such wit-
ness was Marvin Gore, who claimed that, between 7
and 8 p.m. on the night of the shooting, the petitioner
had approached him on a bicycle, pulled a gun from
his pocket, and demanded that Gore give him everything
in his pockets. When Gore responded that he had noth-
ing in his pockets, the petitioner struck Gore on the
head with the gun. The attempted robbery occurred
four blocks from where Brown was shot.
Three years after Brown was shot and killed, the
police concluded their investigation, and the petitioner
was charged with murder in violation of General Stat-
utes § 53a-54a and carrying a pistol without a permit
in violation of General Statutes § 29-35. A jury found
the petitioner guilty on both charges, and the trial court
sentenced the petitioner to a forty-five year term of
incarceration on the murder charge and a consecutive
five year term of incarceration on the weapons charge,
for a total effective sentence of fifty years incarceration.
The Appellate Court affirmed the judgment of convic-
tion on direct appeal. State v. Moye, 112 Conn. App.
605, 614, 963 A.2d 690, cert. denied, 291 Conn. 906, 967
A.2d 1221 (2009).
After his conviction was affirmed, the petitioner col-
laterally attacked his conviction by filing a petition for
a writ of habeas corpus, which ultimately gave rise to
this appeal. In his petition, he claimed that his trial
attorney had rendered ineffective assistance by failing
(1) to investigate and assert an alibi defense, (2) to
subpoena certain witnesses who would have assisted
in the petitioner’s defense, (3) to properly explain to
the petitioner the likely outcomes of proceeding to trial
versus accepting a plea deal, and (4) to present certain
witnesses at his sentencing hearing who were prepared
to testify on his behalf. These omissions, according to
the petitioner, deprived him of his right to effective
assistance of counsel under the sixth and fourteenth
amendments to the United States constitution, and arti-
cle first, § 8, of the Connecticut constitution. The habeas
court rejected the petitioner’s claim that his attorney
had rendered ineffective assistance and rendered judg-
ment denying the habeas petition.
On appeal to the Appellate Court, the petitioner
raised for the first time a new theory as to why his
attorney had rendered ineffective assistance of counsel.
Moye v. Commissioner of Correction, 147 Conn. App.
325, 326, 81 A.3d 1222 (2013). Specifically, the petitioner
argued that his attorney had failed to raise a double
jeopardy claim that would have precluded his convic-
tion of carrying a pistol without a permit and the five
year term of incarceration imposed in connection with
that conviction. See id., 330. The petitioner claimed
that, prior to being convicted of murder and carrying
a pistol without a permit in connection with the shoot-
ing of Brown, he already had been charged with carrying
a pistol without a permit in connection with the
attempted robbery of Gore.1 Id. In light of this earlier
charge, the petitioner claimed that double jeopardy
principles barred his subsequent prosecution for car-
rying a pistol without a permit at his murder trial. See
id. The petitioner conceded that this claim was unpre-
served but sought review under Golding. Id.
The Appellate Court declined to review the petition-
er’s claim on the basis that ‘‘Golding review is not
available for unpreserved claims of error raised for the
first time in a habeas appeal . . . .’’ (Internal quotation
marks omitted.) Id., 331, quoting Hunnicutt v. Commis-
sioner of Correction, 83 Conn. App. 199, 202, 848 A.2d
1229, cert. denied, 270 Conn. 914, 853 A.2d 527 (2004).
We thereafter granted certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court properly
conclude that review under [Golding] is unavailable to
the petitioner because his unpreserved double jeopardy
claim was raised for the first time in his appeal to the
Appellate Court?’’ Moye v. Commissioner of Correc-
tion, 311 Conn. 911, 84 A.3d 880 (2014).
On appeal to this court, the petitioner claims that
Golding review is available in a habeas appeal for any
claim that would have been cognizable in the habeas
court. The petitioner argues that Golding review is
therefore available for his unpreserved ineffective assis-
tance claim because he could have properly raised that
claim in the habeas court. The petitioner also argues
that his ineffective assistance claim satisfies the require-
ments for Golding review and is meritorious. To remedy
this alleged violation of his constitutional rights, the
petitioner urges us to vacate his conviction for carrying
a pistol without a permit and to reduce his term of
incarceration by five years, the term to which he was
sentenced for that charge.
In opposition, the respondent, the Commissioner of
Correction, claims that, as a general matter, Golding
review is available only to address constitutional
defects that arose in the underlying habeas proceeding.
Thus, the respondent insists that Golding review is
unavailable for the petitioner’s new ineffective assis-
tance claim because that claim arose out of his criminal
trial and not the underlying habeas proceeding. We con-
clude that Golding review is not available for the peti-
tioner’s unpreserved ineffective assistance claim and
affirm the judgment of the Appellate Court. Accord-
ingly, we need not consider whether the petitioner has
satisfied the requirements for Golding review or
address the merits of the petitioner’s ineffective assis-
tance claim.
We begin our analysis by setting forth the standard
of review. The question of whether Golding review is
available for claims raised for the first time in a habeas
appeal is one of law. See, e.g., Crews v. Crews, 295
Conn. 153, 161, 989 A.2d 1060 (2010). Thus, our review
is plenary. See id.
To determine the extent to which Golding review is
available in habeas appeals, it is necessary to under-
stand the origins of Golding, as well as how our jurispru-
dence regarding Golding in the context of habeas pro-
ceedings has developed in recent years. ‘‘Golding is a
narrow exception to the general rule that an appellate
court will not entertain a claim that has not been raised
in the trial court. The reason for the rule is obvious: to
permit a party to raise a claim on appeal that has not
been raised at trial—after it is too late for the trial court
or the opposing party to address the claim—would
encourage trial by ambuscade, which is unfair to both
the trial court and the opposing party. . . . Neverthe-
less, because constitutional claims implicate fundamen-
tal rights, it also would be unfair automatically and
categorically to bar a defendant from raising a meritori-
ous constitutional claim that warrants a new trial solely
because the defendant failed to identify the violation
at trial. Golding strikes an appropriate balance between
these competing interests: the defendant may raise such
a constitutional claim on appeal, and the appellate tribu-
nal will review it, but only if the trial court record is
adequate for appellate review.’’ (Citation omitted.) State
v. Brunetti, 279 Conn. 39, 55, 901 A.2d 1 (2006), cert.
denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d
85 (2007).
In the context of habeas proceedings, our under-
standing of when Golding review is available has devel-
oped over time. Before addressing Golding in the
context of habeas appeals, this court addressed it in
the context of unpreserved constitutional claims raised
for the first time in a habeas petition. In Johnson v.
Commissioner of Correction, 218 Conn. 403, 589 A.2d
1214 (1991), this court decided that the standard in
State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), the
predecessor to Golding, did not apply to freestanding
constitutional claims first raised in habeas proceed-
ings.2 See Johnson v. Commissioner of Correction,
supra, 415–19. In other words, the court held that a
habeas petitioner cannot raise a constitutional claim in
the habeas court that he has failed to properly preserve
at his criminal trial. See id., 415–16. The court reasoned
that, unlike in direct appeals, Golding review is inappro-
priate for unpreserved claims first raised in habeas peti-
tions because of the ‘‘special problems that are likely
to arise relating to the feasibility of a second trial when
a conviction is set aside by a habeas court rather than
an appellate court,’’ namely, a greater delay between
the first and second trials. Id., 415. The court also rea-
soned that ‘‘[a]ppellate counsel would have less incen-
tive to raise on appeal all arguable constitutional claims
of the defendant if another opportunity to raise such
claims were available in the habeas court.’’ Id., 416. This
court subsequently interpreted Johnson as establishing
that ‘‘[Evans] and thus, by necessary implication, [Gold-
ing] . . . do not apply to habeas corpus actions.’’ Saf-
ford v. Warden, 223 Conn. 180, 190 n.12, 612 A.2d
1161 (1992).
Thereafter, the Appellate Court interpreted this prec-
edent as barring Golding review of constitutional claims
on appeal that were not raised before the habeas court.
E.g., Hunnicutt v. Commissioner of Correction, supra,
83 Conn. App. 201–203 (Golding review was not avail-
able for petitioner’s unpreserved claim that trial court
improperly had accepted plea that was not knowing
and voluntary because petitioner failed to raise claim
before habeas court), citing Safford v. Warden, supra,
223 Conn. 190 n.12; Copeland v. Warden, 26 Conn. App.
10, 13–14, 596 A.2d 477 (1991) (Golding review was not
available for petitioner’s claim that sentencing court
violated his due process and equal protection rights
because petitioner failed to raise those claims in habeas
court), aff’d, 225 Conn. 46, 621 A.2d 1311 (1993).
In 2009, this court clarified that Golding review is not
categorically unavailable in habeas appeals. In Mozell v.
Commissioner of Correction, 291 Conn. 62, 967 A.2d
41 (2009), we stated that Golding review is available
on appeal ‘‘[i]nasmuch as [a] petitioner challenges the
actions of the habeas court itself . . . .’’ Id., 67 n.2 For
instance, in Mozell, we concluded that Golding review
was available for the petitioner’s claim that the habeas
court deprived him of his right to due process by arbi-
trarily declaring a mistrial because it was the habeas
court’s decision to declare a mistrial that the petitioner
was challenging. See id., 67 and n.2.
Turning to the facts of the present case, we conclude
that Golding review is not available for the petitioner’s
unpreserved ineffective assistance of counsel claim
because that claim does not arise out of the actions or
omissions of the habeas court itself. The court in Mozell
made clear that Golding review is available in a habeas
appeal only for claims that challenge the actions of the
habeas court. Id., 67 n.2. The petitioner’s unpreserved
ineffective assistance claim challenges his trial attor-
ney’s allegedly unreasonable failure to raise a double
jeopardy defense at the petitioner’s criminal trial. Thus,
the basis for the petitioner’s ineffective assistance claim
arose during his criminal trial and should have been
presented to the habeas court as an additional basis
for granting the writ of habeas corpus. The petitioner’s
claim is simply unrelated to the actions or omissions
of the habeas court that denied his habeas petition and,
thus, is not the type of claim for which Golding review
is available on appeal.
We reject the petitioner’s argument that his unpre-
served ineffective assistance claim falls within the pur-
view of the principle announced in Mozell. The peti-
tioner asserts that his ineffective assistance claim is,
‘‘[u]nder Mozell . . . a challenge to the actions of the
habeas court itself’’; (emphasis in original); because
‘‘the habeas court erred, albeit in a way that is unpre-
served, by failing to grant [the petitioner] a writ of
habeas corpus on the ground that his trial attorney was
ineffective for failing to raise a double jeopardy claim.’’
The petitioner’s argument lacks merit. The petitioner’s
unpreserved ineffective assistance claim does not chal-
lenge the actions of the habeas court; the habeas court
did not, and could not, take any action with respect to
that claim because the petitioner never presented it to
the habeas court. The habeas court is not responsible
for the petitioner’s own failure to present his ineffective
assistance claim involving the double jeopardy defense.
To the extent that the petitioner claims that Golding
review is more widely available in habeas appeals than
just for claims that challenge the actions of the habeas
court itself, we also reject the petitioner’s claim. The
petitioner interprets Mozell as providing that ‘‘Golding
review is applicable in a habeas action to the extent
that the issue raises a claim that was cognizable in
the habeas court itself.’’ (Emphasis added.) Under the
petitioner’s theory, a habeas petitioner could seek Gold-
ing review of any constitutional claim on appeal that
he could have properly raised in the habeas court,
including claims that arose during the petitioner’s crimi-
nal trial. The petitioner distorts the principle announced
in Mozell. The language that we used in Mozell plainly
limited Golding review to claims regarding the ‘‘actions
of the habeas court itself’’; Mozell v. Commissioner
of Correction, supra, 291 Conn. 67 n.2; which is a far
narrower category of claims than all claims that would
have been cognizable in the habeas court.
Moreover, the petitioner’s theory contradicts the
logic implicit in Mozell. It makes sense to allow Golding
review in habeas appeals for claims that challenge the
actions or omissions of the habeas court because that
is the first instance in which the petitioner could seek
review of such a claim. From a procedural standpoint,
raising on appeal an unpreserved constitutional claim
that arose during a habeas trial is no different from
raising on direct appeal an unpreserved constitutional
claim that arose during a criminal trial. In both circum-
stances, the appellant is raising the unpreserved claim
in the first possible instance. The petitioner asks this
court to sanction Golding review under different cir-
cumstances. Specifically, the petitioner seeks Golding
review of a claim that he raised for the first time in his
habeas appeal but could have raised in his habeas
petition. If we were to allow Golding review under
such circumstances, a habeas petitioner would be free
to raise virtually any constitutional claim on appeal,
regardless of what claims he raised in his habeas peti-
tion or what occurred at his habeas trial. Such a rule
would also undermine the principle that a habeas peti-
tioner is limited to the allegations in his petition, which
are intended ‘‘to put the [respondent] on notice of the
claims made, to limit the issues to be decided, and to
prevent surprise.’’ (Internal quotation marks omitted.)
Lebron v. Commissioner of Correction, 274 Conn. 507,
519, 876 A.2d 1178 (2005), overruled in part on other
grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862
(2014). We therefore reject the petitioner’s suggestion
that Golding review is available for his ineffective assis-
tance claim that arose out of the his criminal trial.
Finally, we reject the petitioner’s assertion that John-
son v. Commissioner of Correction, 288 Conn. 53, 951
A.2d 520 (2008), overruled in part on other grounds by
State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014), sup-
ports his position that Golding review is available in
habeas appeals for unpreserved ineffective assistance
of counsel claims. In Johnson, the petitioner raised for
the first time in his habeas appeal a claim that the
respondent’s retroactive application of Harris v. Com-
missioner of Correction, 271 Conn. 808, 860 A.2d 715
(2004), in calculating his presentence confinement
credit constituted a violation of his rights under the
ex post facto clause of the United States constitution.
Johnson v. Commissioner of Correction, supra, 288
Conn. 58. After concluding that the petitioner’s ex post
facto claim was unpreserved, the court stated: ‘‘Never-
theless, a defendant may prevail on an unpreserved
[constitutional] claim under . . . [Golding] . . . .’’
(Internal quotation marks omitted.) Id., 60. Johnson,
however, does not resolve the present appeal because
the court in that case concluded that Golding review
was unavailable because the petitioner failed to request
it.3 Id. Thus, the court never squarely addressed the
issue of whether Golding review is available in habeas
appeals for unpreserved constitutional claims. For the
same reason, any suggestion in the concurring opinion
in Johnson that the court should have reached the mer-
its of the petitioner’s ex post facto claim; id., 68–69
(Palmer, J., concurring); also is not relevant to the
present appeal. Accordingly, the petitioner’s reliance
on Johnson is unavailing.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
According to the petitioner, he pleaded guilty to another charge in the
attempted robbery case, and the carrying a pistol without a permit charge
was dismissed pursuant to the plea deal. See Moye v. Commissioner of
Correction, supra, 147 Conn. App. 130 and n.4.
2
In reaching this conclusion, the court in Johnson rejected the following
dictum from Payne v. Robinson, 207 Conn. 565, 569, 541 A.2d 504, cert.
denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988): ‘‘On direct
appeal, we will review claims that were not properly preserved at trial when
they facially implicate fundamental constitutional rights and are adequately
supported by the record. State v. Evans, [supra, 165 Conn. 70]. We perceive
no reason why the same rule should not apply to constitutional claims raised
for the first time in a collateral proceeding so long as they are not barred
by the petitioner’s deliberate bypass of a direct appeal.’’ Payne v. Robinson,
supra, 569; see Johnson v. Commissioner of Correction, supra, 218 Conn.
415 and n.14.
3
Prior to this court’s decision in State v. Elson, supra, 311 Conn. 742,
appellants were required to affirmatively request review under Golding in
order to be entitled to such review.