Carpenter v. Meachum

Peters, C. J.

In this companion case to Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), the dis-positive issue is the constitutionality of General Statutes § 52-2731 insofar as that statute deprives this court of subject matter jurisdiction over a writ of error brought to review the denial of a petition of habeas corpus after the habeas court has denied certification to appeal. We conclude that the statute passes constitutional muster and that the writ of error must, therefore, be dismissed.

The plaintiff in error, Richard T. Carpenter (plaintiff), filed a revised petition for a writ of habeas corpus to challenge the legality of his detention by the defendant in error, Larry R. Meachum, commissioner of correction (state), pursuant to his 1990 conviction of the crime of manslaughter in the first degree.2 He alleged that he had been denied his constitutional right to effective assistance of trial counsel as guaranteed by the sixth and fourteenth amendments to the United States constitution.3 After an evidentiary hearing, the habeas court denied the petition, concluding that the plaintiff had failed to prove either that his trial counsel had rendered ineffective assistance, or that, even if the representation had been ineffective, it was probable that, but for that ineffectiveness, a different result would have been realized. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). The habeas court thereafter denied the plaintiffs petition for certification to appeal. Without attempting to challenge the validity of this denial, the plaintiff then filed a writ of error in this court.

Pursuant to his writ of error, the plaintiff contends that the judgment of the habeas court should be set aside because that court improperly excluded relevant evidence and improperly rejected his claim of ineffective assistance of counsel. While countering these contentions on their merits, the state also maintains that, for two reasons, both grounded in § 52-273, we lack subject matter jurisdiction over the writ of error in this case. First, the state contends that the plaintiff may not bring a writ of error because, under the second sentence of § 52-273, “[n]o writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal.” Second, the state contends that the writ of error must be dismissed as untimely because, contrary to the first sentence of § 52-273, the plaintiffs writ was not “allowed and signed within two weeks after the rendition of the judgment or decree complained of.” We agree with the state’s first jurisdictional claim and, therefore, need not reach the other issues.

In Simms v. Warden, supra, 229 Conn. 178, we have today concluded that, as a matter of statutory construction, § 52-273 deprives this court of subject matter jurisdiction to hear a writ of error challenging the propriety of a judgment denying a petition for a writ of habeas corpus regarding a criminal conviction, when the habeas court has denied the petitioner’s request for certification to appeal.4 In this case, besides reiterating the statutory argument that we rejected in Simms v. Warden, supra, the plaintiff further contends that it is unconstitutional for the legislature to limit this court’s authority to decide any writ of error filed in conformity with the rules of the Practice Book.

Before we consider the merits of the plaintiff’s constitutional argument, we must determine whether the plaintiff’s claims to relief fit within the terms of the writ of error that we have enacted pursuant to our rule-making authority. Practice Book § 4143 (b), on which the plaintiff relies for jurisdiction to proceed in this court, does not provide unlimited authority to bring to this court a writ of error in habeas corpus cases.

Section 4143 (b) allows a petitioner in a habeas corpus proceeding who has been denied certification to appeal to pursue a writ of error only with respect to issues that “do not present any federal question cognizable by the federal district court.” This limitation presents a difficulty to the plaintiff in this case because his substantive claim in the habeas court, and in this court, is that he was deprived of the assistance of effective counsel under the sixth and fourteenth amendments to the United States constitution. The plaintiff maintains, nonetheless, that his evidentiary claim entitles him to invoke § 4143. He argues that his evidentiary claim arises as a matter of state law and that this evidentiary claim is both independent of and antecedent to the federal question of ineffective assistance of counsel. We doubt that the drafters of § 4143 envisaged the administrative complexities that such a bifurcation of habeas appeals would entail. For the purposes of the present proceedings, however, we will assume that the plaintiff’s articulation of an evidentiary claim would suffice to permit him to have recourse to Practice Book § 4143 if that provision were not inconsistent with General Statutes § 52-273.

We turn, therefore, to the merits of the plaintiff’s constitutional claim that state constitutional principles rooted in the separation of powers established in the Connecticut constitution of 1818 deprive the legislature of authority to limit this court’s jurisdiction to determine when we will hear a writ of error.5 Two cases are central to the plaintiff’s argument. The first is Szarwak v. Warden, 167 Conn. 10, 355 A.2d 49 (1974), in which we restated and applied state constitutional limitations on the authority of the legislature to impair the jurisdiction of the constitutional courts. The second is State v. Assuntino, 173 Conn. 104, 376 A.2d 1091 (1977), in which we concluded that this court has the authority to adjudicate a common law writ of error even though the legislature has not affirmatively authorized such a writ of error to be brought. These cases do not sustain the plaintiff’s claim.

In Szarwak v. Warden, supra, 167 Conn. 10, we held that state constitutional principles of separation of powers prevent the legislature from conferring broad criminal jurisdiction on a nonconstitutional trial court in derogation of the constitutional jurisdiction of the Superior Court. We reiterated the position that we had taken in Walkinshaw v. O’Brien, 130 Conn. 122, 127, 32 A.2d 547 (1943), that the constitution of 1818 preserved “the essential characteristics” that this state’s constitutional courts then possessed. We quoted with approval the statement in Walkinshaw v. O’Brien, supra, 142, that “[i]t is entirely clear . . . that the legislature has not the competency to impair the essential nature or jurisdiction of any of the constitutional courts.” Szarwak v. Warden, supra, did not purport, however, to identify “the essential characteristics” of this constitutional court.

In State v. Assuntino, supra, 173 Conn. 104, we permitted the state to bring a writ of error to contest dismissal of criminal charges by the Court of Common Pleas, for which the legislature had provided no right of appeal. Recognizing inconsistencies in earlier Connecticut cases about whether a writ of error was purely statutory, we concluded that “the common-law writ of error was adopted by Connecticut as part of its own common law.” Id., 110. No statute expressly purported to limit the state’s authority to bring a writ of error; id.; and we concluded that the legislature had not impliedly intended to do so. Id., 106. Accordingly, we held that it was “unnecessary for this court to consider whether the jurisdiction to hear such a writ is an essential attribute of the constitutional role of this court . . . Id., 110. Assuntino, therefore, did not set constitutional limits on the legislature’s authority to determine this court’s jurisdiction over writs of error.

The constitutional question raised by this case is narrower than the question that remains unanswered by State v. Assuntino, supra, 173 Conn. 104. We need not decide to what extent the legislature may constitutionally encroach on the writ of error as it existed at common law. The only question before us is whether the legislature may constitutionally limit recourse to a writ of error to review a judgment in a habeas corpus proceeding concerning the validity of a criminal conviction. We are persuaded that, although a writ of habeas corpus existed at common law, the denial of such a writ was not reviewable either on appeal or by writ of error.

The plaintiff has cited no case, and our research has disclosed none, in which this court or its historical antecedents, at or near the time of the adoption of the Connecticut constitution of 1818, reviewed the merits of a trial court’s denial of a writ of habeas corpus. Perhaps the closest analogy may be found in a series of early nineteenth century cases concerning appeals sought to be taken from trial court rulings denying a petition for a new trial. These cases do not support the plaintiff. They uniformly held that, because a petition for a new trial calls upon the trial court to exercise its discretion, a writ of error does not lie on a judgment or decree refusing to grant such a petition. Magill v. Lyman, 6 Conn. 59, 60 (1825); White v. Trinity Church, 5 Conn. 187, 188 (1823); Lewis v. Hawley, 1 Conn. 49, 50 (1814); Granger v. Bissell, 2 Day (Conn.) 364, 368 (1806).

In the absence of dispositive state cases about Connecticut common law practices, State v. Assuntino, supra, 173 Conn. 107, enjoins us to “look back to the practice of England.” Professor Yackle states that, “[a]t common law, there was no right of appeal from judgments in habeas corpus. [Ex parte Savarkar, 2 K.B. 1056 (1910); R. Sharpe, The Law of Habeas Corpus (1976) p. 195; G. Longsdorf, ‘Habeas Corpus: A Protean Writ and Remedy,’ 8 F.R.D. 179, 189-90 (1948)]. . . . The reason for the lack of appellate process is difficult to ascertain, but it appears that the unavailability of the writ of error in habeas cases may have stemmed from an understanding that habeas was a summary proceeding, even interlocutory in nature. Accordingly, appeal was denied in order to avoid unnecessary delays in reaching final judgment in the case in chief—usually the criminal prosecution of the petitioner.” L. Yackle, Postconviction Remedies (1981) § 158, pp. 581-82.

Professor Yackle further notes that “[e]arly state court decisions in this country adopted the British understanding, viewing appellate review in habeas cases as wholly a creature of statute. [See note, J. Crim. L. Criminology and Police Sci. 277 (1936)]. Congress apparently took a similar position regarding the federal writ. Indeed, the Judiciary Act of 1789 neglected to provide for appellate review of habeas proceedings and, instead, restricted the writ of error or appeal to cases in which a sum of money was at stake. . . . [I]t is generally agreed that appellate review was first introduced by the Act of 1867, which also extended the reach of the writ to prisoners held in state custody.” Id., p. 582.

A series of late nineteenth century Connecticut cases confirm the accuracy of Professor Yackle’s observation with regard to the limitations of the common law of habeas corpus in Connecticut and the implementation of appropriate procedures by statute. The first discussion that we have found in our case law concerning a right to appeal from a judgment rendered pursuant to a writ of habeas corpus with respect to a criminal conviction is Yudkin v. Gates, 60 Conn. 426, 22 A. 776 (1891). That case held that appellate jurisdiction to hear such an appeal depended upon compliance with the requirements of General Statutes (1888 Rev.) § 1129. Id., 427. As we explained in State v. Caplan, 85 Conn. 618, 623-24, 84 A. 280 (1912), § 1129 had been enacted in 1882 to provide a general right of appeal for any questions of law thereafter arising in any trial court. There is, therefore, nothing in our case law to suggest that either a common law or statutory right to appellate review of a habeas judgment existed before the enactment of § 1129 in 1882.

Other late nineteenth century cases may help to explain the absence of an earlier appellate remedy for review of habeas corpus proceedings. These cases emphasize the limited scope of the common law writ of habeas corpus in Connecticut. In In re Bion, 59 Conn. 372, 390-92, 20 A. 662 (1890), this court observed that the scope of relief pursuant to a writ of habeas corpus precluded review of mere errors and irregularities of procedure, and focused instead on alleged claims concerning the jurisdiction of the court and its authority to impose the sentence at issue. Pursuing that theme further, in Scott v. Spiegel, 67 Conn. 349, 35 A. 262 (1896), we cited Swift’s Digest for the proposition that “in cases of habeas corpus, by the common law, the ‘truth of the return cannot be contested, and there is no remedy for the party aggrieved, but an action on the case for the false return, or by information, or indictment in the name of the public.’ . . . ‘As the remedy by the common law is very imperfect, it has been supplied in this State by statute.’ ” Id., 357; see 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) pp. 568-69. We specifically noted that, to correct these common law imperfections, “[i]n 1815, the legislature of this State had provided for pleadings and procedure in cases of habeas corpus, by an enactment, one section of which has been continued without change in every Revision to this time.” (Emphasis added.) Scott v. Spiegel, supra, 357-58; see also Whitten v. Spiegel, 67 Conn. 551, 553, 35 A. 508 (1896) (petitioner could not succeed in appeal from denial of writ of habeas corpus because parol evidence was inadmissible to challenge validity of indictment).

In light of these precedents, we are persuaded that, at common law in Connecticut in 1818, neither an appeal nor a writ of error would have been available to review the denial of a writ of habeas corpus in the circumstances of the present case. We have found nothing in the case law or in the secondary literature to demonstrate that Connecticut’s long history of recognizing the significance of a right to counsel; see State v. Stoddard, 206 Conn. 157, 164-66, 537 A.2d 446 (1988); was ever translated into a common law right to mount a collateral attack on a criminal conviction, through use of a writ of habeas corpus, for lack of effective assistance of counsel. Indeed, as a matter of federal law, that connection was not articulated until McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 663 (1970).

The plaintiffs attack on § 52-273 as unconstitutionally impairing this court’s authority to hear a writ of error in habeas corpus cases has, at best, not been affirmatively established. We do not declare statutes to be unconstitutional on such a basis. To the contrary, “[bjecause a statute carries with it a strong presumption of constitutionality, a challenger must establish its unconstitutionality beyond a reasonable doubt.” Calfee v. Usman, 224 Conn. 29, 33, 616 A.2d 250 (1992); Sassone v. Lepore, 226 Conn. 773, 778, 629 A.2d 357 (1993).

To summarize, we conclude that, since 1815, the General Assembly has enacted statutes to provide for pleadings and procedures in cases of habeas corpus challenging the validity of a criminal conviction. This history furnishes a constitutional basis for the General Assembly’s proper exercise, in 1882, of its legislative authority to enact § 1129 granting a right to appeal in habeas corpus proceedings. Having constitutionally granted a right to appeal in 1882, the General Assembly did not impair “the essential nature or jurisdiction of this court” when it qualified the right to appeal to this court by enacting § 52-470 (b) in 1957. In habeas corpus proceedings, therefore, it was equally constitutional for the General Assembly to limit the right to obtain appellate review through a writ of error, under § 52-273, by excluding cases “which might have been reviewed by process of appeal.”

The writ of error is dismissed.

In this opinion Borden and Norcott, Js., concurred.

1 General Statutes § 52-273 provides: “writ of error; limitations. No writ of error may be brought in any civil or criminal proceeding, unless allowed and signed within two weeks after the rendition of the judgment or decree complained of. No writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal.”

2 The plaintiff was convicted of the crime of murder in violation of General Statutes § 53a-54a in connection with the death of a young child as a result of head trauma and a skull fracture. On direct appeal, this court set aside the murder conviction because of a lack of sufficient evidence to establish the plaintiff’s intent to kill. We concluded that the plaintiff was guilty of the lesser included crime of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). State v. Carpenter, 214 Conn. 77, 570 A.2d 203 (1990). On a second direct appeal, this court upheld the trial court’s judgment resentencing the plaintiff to a term of imprisonment of twenty years. State v. Carpenter, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 181 (1992).

3 The plaintiff claimed that he had not received the minimal level of competent representation necessary to comply with federal constitutional law because his trial counsel had allegedly failed: (1) to conduct a proper pretrial investigation; (2) to seek by motion the disclosure of records in the possession of other state agencies that would have substantially aided his defense; and (3) to request jury instructions on lesser included offenses.

4 As in Simms v. Warden, supra, 229 Conn. 178, this issue is a matter of first impression. Since the particular issue raised in the two cases has never previously been addressed by this court specifically, there is no basis for concluding that legislative inaction ratified our construction of the statute. See id., n.12.

5 The plaintiff has not raised any claim that constitutional principles of due process require an unconditional right to appeal on questions, such as ineffective assistance of counsel, that cannot be raised on direct appeal.