Archive for March 24, 2005

Since it is late on a Thursday evening before a long weekend and the rest of the blawgosphere seems to be MIA, I’ll take this opportunity to report a Habeas case decided by the CT Appellate Court this week.

Here comes Vazquez v. Commissioner [pdf], released March 29, 2005. This is a highly technical decision regarding the filing of Anders motions when a Habeas petition is appealed.

In Vazquez,

The petitioner filed several habeas petitions in 1996, in which he alleged ineffective assistance of trial counsel on the basis of his acceptance of plea bargains on several separate files. The court, Bishop, J., consolidated the separate petitions into one action in 1997. On April 1, 2002, the respondent filed a motion to dismiss the consolidated habeas petition for lack of subject matter jurisdiction because the sentences underlying the consolidated petition were completed prior to the filing of the original petitions. The habeas court, Fuger, J., granted the respondent’s motion to dismiss, finding that the petitioner was not in state custody on October 26, 1996, when the petitions were filed.

Petitioner was then appointed a special public defender ("SPD"). The SPD then filed a motion for leave to withdraw appearance based on Anders v. California, arguing that there were no non-frivolous issues that she could raise on appeal. Having received her motion, the appellate clerk forwarded it to the Habeas judge.

On April 7, 2004, the habeas court, Fuger, J., issued an order. The court stated in its order that, in accordance with Franko v. Bronson, supra, 19 Conn. App. 692–93, Steele’s motion for leave to withdraw appearance was referred by the presiding judge to the court for a determination of whether it improvidently had
granted the petition for certification. The court further stated that, having reviewed the matter, it now found that the petition for certification was granted improvidently and vacated the order granting the petition for certification. The court did not act on Steele’s motion for leave to withdraw appearance.

The Habeas court’s action was based on Franko v. Bronson, 19 Conn. App. 686 (1989). However, because of the Supreme Court’s decisions in Simms v. Warden, 229 Conn. 178 (1994), and Simms v. Warden, 230 Conn. 608 (1994), some of the procedures established in Franko are no longer viable. The Habeas court did not rule on the SPD’s motion to withdraw based on the practice book, but rather relying on Franko reversed it’s own granting of certification to appeal.

We held in Franko that the habeas court is in the best position to make an Anders determination, and we set out a procedure whereby the motion for leave to withdraw appearance is sent to the presiding judge in the habeas court for a determination of whether there is a nonfrivolous issue. Pursuant to that procedure, if the presiding judge determines that there is a nonfrivolous issue, the court may allow counsel to withdraw and appoint new counsel or it may order counsel of record to proceed. If the presiding judge finds, however, that there is no nonfrivolous issue presented on appeal, then the matter is to be referred to the judge who granted the petition for certification to appeal for reconsideration of whether certification should have been granted. If that judge, on reconsideration, determines that certification was granted improvidently, then the court should vacate the prior order of  certification and notify the clerk of this court. Upon such notification, this court would then dismiss the appeal for lack of subject matter jurisdiction.

So basically under Franko, a reversal of the granting of certification would have been the appropriate procedure to follow, thereby invalidating the appeal. However, in Simms v. Warden, the Supreme Court stated that denial of certification to appeal didn’t dismiss the appeal, it merely required that the first issue to be raised on appeal was whether the denial was an abuse of discretion.

In the present case, the habeas court’s decision vacating its order granting certification to appeal resulted in a situation in which the motion for leave to withdraw appearance filed by counsel for the petitioner was not acted on. Counsel was left with an obligation to represent the petitioner with the added burden of briefing the threshold issue that the trial court had abused its discretion in denying certification to appeal when counsel already had determined that there were no nonfrivolous issues to raise on appeal.

The Court held that Franko was now overruled by Simms and the procedure to be followed was first to decide the Anders motion and if found valid, refuse appointment of new counsel.