MARCUS MOYE v. COMMISSIONER OF CORRECTION, SC 19271

Judicial District of Tolland

 

     Habeas; Golding Review; Whether Appellate Court Properly Declined to Review Unpreserved Double Jeopardy Claim on Ground that Golding Review is not Available in a Habeas Appeal.  On August 3, 2003, Joshua Brown was fatally shot on a New Haven street.  During the ensuing investigation, the police questioned Marvin Gore, who informed them that, within an hour prior to the shooting and four blocks from the murder scene, the petitioner had attempted to rob him at gunpoint.  The petitioner was convicted of murder and carrying a revolver without a permit in violation of General Statutes § 29-35 (a) in connection with Brown’s death.  He filed a petition for a writ of habeas corpus, which the habeas court denied.  On appeal, the petitioner claimed, for the first time, that he was denied effective assistance of counsel by the failure of his trial and appellate counsel to raise a double jeopardy claim.  Specifically, the petitioner claimed that, before he was charged in the Brown murder case, he had been charged with carrying a revolver without a permit in connection with the attempted robbery of Gore, and that that charge had been dismissed as part of a plea bargain.  He argued that he had been charged twice under § 29-35 (a) for the incidents occurring on August 3, 2003, in violation of the double jeopardy clause.  The petitioner sought review of his unpreserved double jeopardy claim under State v. Golding, 213 Conn. 233 (1989), which sets forth the criteria for appellate review of unpreserved claims of constitutional error.  The Appellate Court (147 Conn. App. 325) declined to review the claim, relying on Supreme Court precedent for the proposition that Golding review is not available for unpreserved claims of error raised for the first time in an appeal from a habeas judgment.  The court rejected the petitioner’s remaining claims and affirmed the judgment.  In this appeal, the Supreme Court will determine whether the Appellate Court properly declined to review the petitioner’s unpreserved double jeopardy claim under Golding on the ground that such review is not available in a habeas appeal.