Anderson v. Comm'r of Corr., 34959.

• Decision Date: 11 March 2014
• Docket Number: No. 34959.,34959.
• Citation: 148 Conn.App. 641,85 A.3d 1240
• Court: Connecticut Court of Appeals
• Parties: Fred ANDERSON v. COMMISSIONER OF CORRECTION.

148 Conn.App. 641

85 A.3d 1240

Fred ANDERSON

v.COMMISSIONER OF CORRECTION.

No. 34959.

Appellate Court of Connecticut.

Argued Jan. 13, 2014.

Decided March 11, 2014.

Kenneth Paul Fox, assigned counsel, for the appellant (petitioner).

Lawrence J. Tytla, supervisory assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and ALVORD and FLYNN, Js.

PER CURIAM.

The petitioner, Fred Anderson, appeals following a grant of certification to appeal by the habeas court from the judgment of the habeas court dismissing his third amended petition for a writ of habeas corpus. On appeal, the petitioner asserts that the court improperly dismissed count three ¹ of his third amended petition on the grounds that it failed to state a claim upon which relief can be granted and that it was barred by the doctrine of res judicata. We disagree and affirm the judgment of the habeas court.

The following facts and procedural history are relevant to this appeal. The petitioner was convicted, after a jury trial, of unlawful restraint in the first degree in violation of General Statutes § 53a–95, assault in the first degree with intent to disfigure another person seriously and permanently in violation of General Statutes § 53a–59 (a)(2), and interfering with an officer in violation of General Statutes § 53a–167a. He was sentenced to a total effective term of sixteen years imprisonment. The petitioner appealed from his conviction, which we affirmed in State v. Anderson, 74 Conn.App. 633, 813 A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003). Our Supreme Court denied certification to appeal. State v. Anderson, 263 Conn. 901, 819 A.2d 837 (2003).

After his direct appeal, the petitioner brought his first petition for a writ of habeas corpus alleging prosecutorial impropriety and ineffective assistance of both trial and appellate counsel. Following a trial, the habeas court, Hon. Anthony V. DeMayo, judge trial referee, (first habeas court), denied the petition on March 17, 2005. We affirmed the judgment of the first habeas court and our Supreme Court denied certification to appeal. Anderson v. Commissioner of Correction, 95 Conn.App. 901, 895 A.2d 872, cert. denied, 278 Conn. 921, 901 A.2d 43 (2006). Thereafter, the petitioner filed a second petition for a writ of habeas corpus alleging ineffective assistance of habeas, trial, and appellate counsel. Following a trial, the habeas court, Nazarro, J. (second habeas court), denied the petition in a written memorandum of decision on May 5, 2010. The attorney appointed to appeal the second habeas court's ruling filed an appeal with this court. The matter was withdrawn from the Appellate Court on March 7, 2011.

On February 9, 2010, the petitioner filed his third amended petition for a writ of habeas corpus, which is the subject of the present appeal, alleging prosecutorial impropriety and ineffective assistance of his trial, appellate, and first and second habeas counsel. Prior to the scheduled trial date of March 9, 2012, the respondent, the Commissioner of Correction, filed a motion to dismiss the habeas petition along with a memorandum of law in support thereof. The habeas court, Cobb, J. (third habeas court), heard oral argument on the motion to dismiss and subsequently granted the respondent's motion to dismiss in a written memorandum of decision on June 5, 2012. The third habeas court also granted the petitioner's petition for certification to appeal and his application for appointment of counsel on appeal of the third amended petition. This appeal followed.

Prior to analyzing the petitioner's claims, we first set out our standard of review for a challenge to the dismissal of a petition for a writ of habeas corpus. “The conclusions reached by the [habeas] court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review.... [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous....” (Citation omitted; internal quotation marks omitted.) Carter v. Commissioner of Correction, 133 Conn.App. 387, 392, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012).

I

We first address the petitioner's claim that the third habeas court improperly determined that count three of his petition failed to state a claim upon which relief may be granted. In count three of his third amended petition, the petitioner asserted that he was entitled to relief based upon the “cumulative effect of all issues of prosecutorial misconduct and judicial misconducts....” Now before us, the petitioner acknowledges that cumulative error claims ² have been rejected consistentlyin Connecticut by both our Supreme and Appellate Courts, but asserts that the treatment of this issue by Connecticut courts “has been stubbornly misguided.” He asks us on appeal “to determine whether our ... Supreme Court has properly barred Connecticut petitioners from seeking relief based upon cumulative error.” We decline that invitation, and affirm the judgment of the third habeas court.

“[I]t is axiomatic that this court, as an intermediate body, is bound by Supreme Court precedent and [is] unable to modify it.... [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them.... [I]t is not within our province to reevaluate or replace those decisions.” (Internal quotation marks omitted.) Cannizzaro v. Marinyak, 139 Conn.App. 722, 734, 57 A.3d 830 (2012), cert. granted on other grounds, 308 Conn. 902, 60 A.3d 286 (2013); see also Stuart v. Stuart, 297 Conn. 26, 45–46, 996 A.2d 259 (2010) (“it is manifest to our hierarchical judicial system that [the Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court ... [is] bound by [its] precedent”). When faced with the assertion that the claims of error, none of which individually constituted error, should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial, our Supreme Court has repeatedly “decline[d] to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.” State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S.Ct. 3000, 120 L.Ed.2d 876 (1992); see also State v. Colon, 272 Conn. 106, 218, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005); State v. Robinson, 227 Conn. 711, 747, 631 A.2d 288 (1993). Likewise, this court consistently has rejected requests to adopt the cumulative error approach. See, e.g., State v. Billie, 123...