Crawley v. Comm'r of Corr.

• Decision Date: 26 November 2019
• Docket Number: AC 41052
• Citation: 194 Conn.App. 574,221 A.3d 849
• Court: Connecticut Court of Appeals
• Parties: Scott CRAWLEY v. COMMISSIONER OF CORRECTION

194 Conn.App. 574

221 A.3d 849

Scott CRAWLEY

v.COMMISSIONER OF CORRECTION

AC 41052

Appellate Court of Connecticut.

Argued September 16, 2019

Officially released November 26, 2019

Cheryl A. Juniewic, New Haven, assigned counsel, for the appellant (petitioner).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

Keller, Elgo and Eveleigh, Js.

ELGO, J.

The petitioner, Scott Crawley, appeals from the judgment of the habeas court dismissing in part and denying in part his amended petition for a writ of habeas corpus. He contends that the court improperly rejected his claims of ineffective assistance on the part of both his criminal trial counsel and his first habeas counsel. We affirm the judgment of the habeas court.

This appeal concerns the petitioner's convictions on two counts of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b). The relevant facts underlying those convictions were set forth in this court's decision on the petitioner's direct appeal. "On September 5, 2002, Joseph Amato, a detective with the Manchester police department who was assigned to the federal Drug Enforcement Administration, informed Thomas Dillon, then a detective with the Wethersfield police department, that the [petitioner] possessed a ‘large quantity of cocaine.’ Amato informed Dillon of the [petitioner's] known address in Wethersfield and related information concerning [the petitioner's] automobile and license plate number. During his subsequent investigation, Dillon learned that the [petitioner's] operator's license was suspended.

"On September 6, 2002, Dillon conducted surveillance at the Wethersfield address given to him by Amato. Dillon observed the [petitioner] get into his automobile and drive away. At Dillon's request, Christopher Morris, a Wethersfield police officer, stopped the [petitioner's] automobile at a gasoline station and arrested the [petitioner] on a charge of driving with a suspended license. Morris searched the [petitioner] incident to the arrest and found a bag containing 120 smaller bags of cocaine, in a powder mixture, in one of the front pockets of the [petitioner's] pants. The cocaine powder weighed 87.32 grams and consisted of between 17 to 60 percent pure cocaine.

"Later that day, Robert Deroehn, a detective with the Wethersfield police department, arrived at the [petitioner's] known residence in Wethersfield, 7 Spring Street [residence]. There, Deroehn encountered Daniel Hardrick, who owned the residence. Hardrick told Deroehn that the [petitioner] did not live at the residence but that the [petitioner] ‘stayed there.’ Hardrick signed a consent form, thereby permitting the police to enter and search the home without a warrant. Amato searched the [petitioner's] room and discovered a postal mailing tube that contained two bags of cocaine, in a powder mixture, in the closet in the [petitioner's] room. One bag contained 26.73 grams of cocaine powder separated into thirty-eight smaller bags. Another bag contained 62.60 grams of cocaine powder and consisted of 72 percent pure cocaine. On the basis of evidence concerning, inter alia, the quantities of cocaine possessed by the [petitioner], as well as the quantities of cocaine typically possessed by persons who intend to sell cocaine, the jury reasonably found that the [petitioner] possessed both stashes of cocaine with the intent to sell them." State v. Crawley , 93 Conn. App. 548, 550–51, 889 A.2d 930, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006). The jury thus found the petitioner guilty on all counts, and the trial court rendered judgments accordingly, sentencing the petitioner to a total effective term of thirty years of incarceration. Id., at 550 n.1, 889 A.2d 930. From those judgments, the petitioner unsuccessfully appealed to this court.¹ Id., at 569, 889 A.2d 930.

The petitioner commenced his first habeas action in 2006, alleging that his criminal trial counsel, Attorney Donald Freeman, had rendered ineffective assistance by failing (1) to present evidence that the petitioner was a drug-dependent person and (2) to preserve his right to sentence review. The petitioner was represented by Attorney Hilary Carpenter at the habeas trial, at the conclusion of which the court agreed with the petitioner's latter contention and restored his right to sentence review.² At the same time, the court rejected his other claim of ineffective assistance of counsel. From that judgment, the petitioner unsuccessfully appealed to this court. See Crawley v. Commissioner of Correction , 141 Conn. App. 660, 62 A.3d 1138, cert. denied, 308 Conn. 946, 68 A.3d 656 (2013).

In subsequent years, the petitioner filed four successive petitions for a writ of habeas corpus. The habeas court dismissed each of those petitions.

The petitioner commenced the present habeas action in 2014. In his petition, the petitioner alleged ineffective assistance on the part of Freeman due to his failure (1) to move to suppress the cocaine found in the residence and (2) to provide a competent summation to the jury. The petitioner further alleged ineffective assistance on the part of Carpenter due to her failure to raise those two claims of ineffective assistance of trial counsel in his first habeas action. In answering that petition, the respondent, the Commissioner of Correction, alleged a successive petitions defense, claiming that the petitioner's claims were "premised upon the same legal grounds" that he asserted in his first habeas action. Following a trial, the habeas court, relying on the successive petition doctrine, dismissed the two counts alleging ineffective assistance of trial counsel and denied the petition in all other respects. The court subsequently granted certification to appeal from that judgment, and this appeal followed.

I

The petitioner first claims that Freeman rendered ineffective assistance by failing to file a motion to suppress the cocaine found in the residence. In rejecting that claim, the court concluded that it was barred by the successive petition doctrine. We agree.

As our Supreme Court has observed, the successive petition doctrine involves the "one situation in which a court is not ‘legally required’ to hear a habeas petition." Mercer v. Commissioner of Correction , 230 Conn. 88, 93, 644 A.2d 340 (1994). The doctrine is codified in Practice Book § 23-29, which provides in relevant part: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition ...." That rule comports with the teaching of Negron v. Warden , 180 Conn. 153, 158, 429 A.2d 841 (1980), in which the Supreme Court held that "trial courts may dismiss a second [habeas] application without a hearing only if that application asserts the same grounds and fails to state new facts or proffer new evidence not reasonably available to the petitioner at the hearing on his previous application."

In the present case, the habeas court dismissed the two counts of ineffective assistance on the part of the petitioner's trial counsel pursuant to Practice Book § 23-29(3), concluding that they were predicated on the same ground that was raised in the petitioner's first habeas action. On our plenary review of the record; see Gudino v. Commissioner of Correction , 191 Conn. App. 263, 271, 214 A.3d 383, cert. denied, 333 Conn. 924, 218 A.3d 67 (2019) ; we agree.

This court previously has held that "[a] claim of ineffective assistance of counsel during trial proceedings constitutes the ‘same ground’ for purposes of [Practice Book] § 23-29(3), despite changes in the precise underlying specifications of deficient performance, unless such new specifications are based on facts or evidence not reasonably available when the ground was raised in the earlier petition." Lebron v. Commissioner of Correction , 178 Conn. App. 299, 318, 175 A.3d 46 (2017), cert. denied, 328 Conn. 913, 179 A.3d 779 (2018) ; see also Alvarado v. Commissioner of Correction , 153 Conn. App. 645, 651, 103 A.3d 169 ("[w]e ... note that there is no claim that the third habeas petition contains newly discovered facts"), cert. denied, 315 Conn. 910, 105 A.3d 901 (2014). As in the petitioner's first habeas action, the first two counts of the operative petition here allege ineffective assistance on the part of Freeman. The petitioner has not alleged that those counts are based on newly discovered facts or evidence. Moreover, the petitioner seeks the very same relief that he requested in his first habeas action—namely, vacatur of his conviction. In such circumstances, the successive petition doctrine plainly applies. See Zollo v. Commissioner of Correction , 133 Conn. App. 266, 279, 35 A.3d 337 (applying successive petition doctrine when "the petitioner's second habeas petition was not founded on a new legal ground, nor does it seek different relief"), cert. granted, 304 Conn. 910, 39 A.3d 1120 (2012) (appeal dismissed May 1, 2013); McClendon v. Commissioner of Correction , 93 Conn. App. 228, 231, 888 A.2d 183 ("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"), cert. denied, 277 Conn. 917, 895 A.2d 789 (2006). In light of the foregoing, we conclude that the habeas court properly dismissed the counts alleging ineffective assistance on the part of Freeman.

II

The petitioner also challenges the court's...