Carter v. Comm'r of Corr., 32722.

• Decision Date: 07 February 2012
• Docket Number: No. 32722.,32722.
• Citation: 35 A.3d 1088,133 Conn.App. 387
• Court: Connecticut Court of Appeals
• Parties: Anthony CARTER v. COMMISSIONER OF CORRECTION.

133 Conn.App. 387

35 A.3d 1088

Anthony CARTER

v.COMMISSIONER OF CORRECTION.

No. 32722.

Appellate Court of Connecticut.

Argued Oct. 27, 2011.Decided Feb. 7, 2012.

Anthony Carter, pro se, the appellant (petitioner).

Rocco A. Chiarenza, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, senior assistant state's attorney, for the appellee (respondent).

LAVINE, BEAR and BISHOP, Js.

BISHOP, J.

The petitioner, Anthony Carter, appeals from the judgment of the habeas court dismissing his fourth petition for a writ of habeas corpus. The petitioner claims that the court improperly concluded that, pursuant to Practice Book § 23–29,¹ his claims of ineffective assistance of counsel at sentencing and insufficiency of evidence are successive and barred by the doctrine of res judicata.² We reverse in part, and affirm in part, the judgment of the habeas court.

The following facts and procedural history are relevant to the petitioner's appeal. In 2002, after a jury trial, the petitioner was found guilty of assault in the first degree in violation of General Statutes § 53a–59 (a)(5), attempt to commit assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–59 (a)(5), risk of injury to a child in violation of General Statutes § 53–21(a)(1) and criminal possession of a firearm in violation of General Statutes § 53a–217 (a)(1). The trial court rendered judgment accordingly and sentenced the petitioner to a total effective term of twenty-seven years incarceration. A direct appeal to this court followed.

In affirming the judgment of conviction, this court concluded, inter alia, that the evidence adduced at trial was sufficient to support the conviction of assault in the first degree and risk of injury to a child. More specifically, this court stated that the evidence adduced at trial was sufficient to establish that the petitioner “shot the victim.” State v. Carter, 84 Conn.App. 263, 270, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S.Ct. 2529, 161 L.Ed.2d 1120 (2005).

In 2004, the petitioner filed his first petition for a writ of habeas corpus in which he raised fourteen claims.³ That petition was denied by the habeas court. The petitioner then appealed following the court's denial of his petition for certification to appeal, claiming that the court abused its discretion in denying his petition for certification and in denying his petition as unfounded. This court dismissed that appeal in Carter v. Commissioner of Correction, 106 Conn.App. 464, 942 A.2d 494, cert. denied, 288 Conn. 906, 953 A.2d 651 (2008).

The petitioner then filed a second petition for a writ of habeas corpus on March 6, 2007. In a supplemental memorandum attached to his petition, the petitioner raised four claims.⁴ The court summarily dismissed the petitioner's second petition on its own motion, without an evidentiary hearing and before the respondent, the commissioner of correction, had filed her reply. The court stated in its judgment of dismissal that “[a]fter having reviewed the above-captioned petition, the court finds the petition to be res judicata and dismisses the petition pursuant to Practice Book § 23–29(3).” (Internal quotation marks omitted.) Carter v. Commissioner of Correction, 109 Conn.App. 300, 304, 950 A.2d 619 (2008). The court subsequently denied the petition for certification to appeal. On appeal, this court concluded that the record was inadequate to review the petitioner's claim and, therefore, dismissed the appeal. Id., at 307, 950 A.2d 619.

In October, 2007, the petitioner initiated a third habeas action in which he alleged that the state had withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After a full hearing, the habeas court concluded that there was no Brady violation and denied the petition. See Carter v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–07–4002005, 2010 WL 628440 (January 22, 2010). The petitioner then appealed following the court's denial of his petition for certification to appeal, and this court subsequently dismissed that appeal in Carter v. Commissioner of Correction, 131 Conn.App. 905, 28 A.3d 360 (2011).

On November 21, 2007, the petitioner filed a motion to correct an illegal sentence. In his motion, he argued that the trial court, in rendering its sentence, improperly considered an argument the prosecutor had made to the jury during closing argument that certain evidence suggested that the petitioner had fired a nine millimeter firearm. See State v. Carter, 122 Conn.App. 527, 529–30, 998 A.2d 1217 (2010), cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011). The trial court denied that motion and, after reviewing the record, this court affirmed the judgment, concluding that there was nothing in the record to indicate that the court relied on any misstated or inaccurate information in sentencing the petitioner. Id., at 532, 998 A.2d 1217.

On January 29, 2010, the petitioner initiated the present habeas action. By an amended petition dated March 1, 2010, the petitioner alleged the following: (1) his trial counsel rendered ineffective assistance during sentencing by failing to preserve his right of sentence review, (2) insufficient evidence existed that he had caused the victim's injuries, (3) insufficient evidence existed that he had possessed a firearm and (4) insufficient evidence existed that he had performed an act likely to injure the victim. The habeas court dismissed the petition on the grounds that his claims constituted a successive petition and were barred by the doctrine of res judicata.⁵ The habeas court subsequently granted the petitioner certification to appeal, and this appeal followed.

The petitioner claims that the habeas court improperly dismissed each count of his petition. More specifically, the petitioner asserts that his claims were neither successive nor barred by res judicata because the present petition sought a different form of relief than his previous petitions. He further contends that his claims were not barred by the doctrine of res judicata because his claims were not actually litigated in his prior petitions.

We begin by setting forth our standard of review for a challenge to the dismissal of a petition for a writ of habeas corpus. “The conclusions reached by the trial 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.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 566, 941 A.2d 248 (2008). “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....” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 121 Conn.App. 295, 298, 995 A.2d 641, cert. denied, 297 Conn., 920, 996 A.2d 1192 (2010).

With that standard in mind, we turn to the court's conclusion that the petitioner's claims were barred by the doctrine of res judicata. We begin with an overview of pertinent legal principles. “The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made.... The doctrine ... applies to criminal as well as civil proceedings and to state habeas corpus proceedings.... However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner.... Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ... the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding.” (Internal quotation marks omitted.) Diaz v. Commissioner of Correction, 125 Conn.App. 57, 63–64, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).

“[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief.... But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.” (Citation omitted; internal quotation marks omitted.) McClendon v. Commissioner of Correction, 93 Conn.App. 228, 231, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).

“Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language.... They raise, however, the same generic legal basis for the same relief. Put differently, two grounds are not identical if they seek different relief.” (Citations omitted.) James L. v. Commissioner of Correction, 245 Conn. 132, 141, 712 A.2d 947 (1998). Simply put, an applicant must “show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground.” (Internal quotation marks omitted.) Myers v. Commissioner of Correction, 111 Conn.App. 405, 410, 959 A.2d 646 (2008).

With these precepts in mind, we first address the petitioner's claims that the court improperly dismissed counts two through four of his petition, which alleged insufficiency of evidence. The petitioner argues that the evidence produced against him was constitutionally insufficient to sustain the conviction, and he now seeks...