Tutson v. Commissioner of Correction
It could not be concluded that the habeas court abused its discretion in denying the petition for certification to appeal when the petitioner failed to raise the claim on appeal in his petition for certification to appeal. Trendel Tutson was convicted, following a jury trial, of attempt to commit murder and assault in the first degree, concerning the nonfatal shooting of the driver of a vehicle pursued at high speed. Although initially reversed, on remand from the Supreme Court, the conviction was affirmed. Tutson's amended petition for a writ of habeas corpus alleging ineffective assistance of trial counsel was denied. Tutson appealed, claiming, first, that the habeas court abused its discretion in denying his petition for certification to appeal and improperly failed to read all of the exhibits introduced at trial. The Appellate Court dismissed the appeal, determining that the petitioner failed to demonstrate that the habeas court improperly denied the petition for certification to appeal. The record did not reflect that the petitioner raised his claim before the habeas court that the court failed to read all of the exhibits prior to rendering its decision. The petitioner did not raise the claim in his petition for certification to appeal. It is impossible to review an exercise of discretion that did not occur. The Appellate Court is confined to reviewing only those issues brought to the habeas court's attention in the petition for certification to appeal. The habeas court properly denied the petition for certification to appeal with regard to the petitioner's claim that the court improperly concluded that he was not prejudiced by his trial counsel's mishandling of his alibi defense. The petitioner argued that the court's finding that he did not suffer prejudice was based on an erroneous determination that certain testimony did not rise to the level of an alibi. Although the court stated that the testimony did not rise to the level of establishing an alibi, the statement was surrounded by several others evincing a determination that the testimony was, in fact, alibi testimony. Because the petitioner did not raise a claim in his petition for certification to appeal regarding the habeas court's determination that counsel's failure to present the alibi testimony was not prejudicial, that part of the claim was unreviewable.