When the habeas court denies certification to appeal, a petitioner faces a formidable challenge, as the Appellate Court will not consider the merits of a habeas appeal unless the petitioner establishes that the denial of certification to appeal amounts to an abuse of discretion. Following a jury trial, Hakim Jefferson, was convicted of murder. He failed timely to appeal. Jefferson filed a pro-se petition for a writ of habeas corpus, alleging trial-related issues and ineffective assistance of trial counsel. Due, in part, to miscommunication between first habeas counsel and Jefferson, the trial related claims were not adjudicated. A stipulated judgment entered restoring Jefferson's rights to a direct appeal and sentence review. Jefferson filed a direct appeal, claiming that the trial court improperly failed to instruct the jury on intentional manslaughter in the first degree with a firearm as a lesser included offense to murder. The Appellate Court denied the appeal finding no proper request for the instruction and, further, that the evidence did not support the instruction as intentional manslaughter requires the specific intent to seriously injure and Jefferson testified at trial that he was so intoxicated he "didn't know what he was doing." The petitioner filed a second petition for a writ of habeas corpus, alleging ineffective assistance of trial and first habeas counsel. The habeas court found that trial counsel was not deficient and no prejudice ensued from first habeas counsel's actions. Jefferson appealed, claiming that the habeas court abused its discretion in denying his petition for certification to appeal and his second petition for a writ of habeas corpus. The Appellate Court dismissed the appeal. The habeas court's conclusion that the lesser included offense instruction was unavailable under the 1980 Supreme Court case of State v. Whistnant was consistent with the Appellate Court's decision in Jefferson's direct appeal. The Appellate Court agreed with the habeas court that the evidence was insufficient to warrant the charge. As the charge was not supported as a matter of law, trial counsel could not have been deficient in failing to request it. Because trial counsel was not ineffective, the petitioner could not demonstrate prejudice from first habeas counsel's deficient performance.

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