Harris v. Comm'r of Corr.

• Decision Date: 20 July 2021
• Docket Number: AC 42165
• Citation: 257 A.3d 343,205 Conn.App. 837
• Parties: Silas HARRIS v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

205 Conn.App. 837

257 A.3d 343

Silas HARRIS

v.COMMISSIONER OF CORRECTION

AC 42165

Appellate Court of Connecticut.

Argued January 13, 2021

Officially released July 20, 2021

Vishal K. Garg, West Hartford, for the appellant(petitioner).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Jo Anne Sulik, senior assistant state's attorney, for the appellee(respondent).

Bright, C.J., and Alvord and Bellis, Js.

ALVORD, J.

The petitioner, Silas Harris, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing in part and denying in part his amended petition for a writ of habeas corpus.On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly denied his amended petition for a writ of habeas corpus, in which he alleged ineffective assistance of (1) appellate counsel and (2) prior habeas counsel.We disagree and, accordingly, dismiss the petitioner's appeal.

Our Supreme Court on direct appeal summarized the underlying facts as reasonably found by the jury: "On April 19, 1990, at approximately 8:30 p.m., a fight broke out in the east mess hall of the Connecticut Correctional Institution at Somers, involving seventy-five to one hundred inmates who had gathered to share a meal in honor of the Islamic religious feast, Ramadan.Thirty-five correction officers responded in an attempt to restore order.During the incident, the [petitioner] injured [C]orrection [O]fficer Craig Jacobsen with a sharp instrument."State v. Harris , 227 Conn. 751, 754, 631 A.2d 309(1993).

"The [petitioner] was charged in a substitute information with two counts of assault in the first degree in violation of General Statutes(Rev. to 1989)§ 53a-59 (a)(1) and (3), and one count each of assault in the second degree in violation of General Statutes § 53a-60 (a)(5), rioting at a correctional institution in violation of General Statutes § 53a-179b, and possession of a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a. ...He was found guilty by a jury of assault in the second degree, rioting at a correctional institution, and possession of a weapon or dangerous instrument in a correctional institution.He was also convicted of being a persistent serious felony offender in violation of General Statutes § 53a-40 (b).He was sentenced as a persistent serious felony offender to a term of imprisonment of ten years on the assault count and twenty-five years on the rioting count to run consecutively, and to a term of twenty-five years on the possession of a weapon count to run concurrently, for a total effective sentence of thirty-five years [of] imprisonment [(Tolland conviction)].Thereafter, he appealed from the judgment of conviction to [our Supreme Court] pursuant to General Statutes § 51-199 (b)(3)."(Footnotes omitted.)Id., at 752–54, 631 A.2d 309.

On direct appeal to our Supreme Court, the petitioner was represented by Attorney Daniel S. Fabricant.The petitioner challenged the Tolland conviction on the following grounds: (1)"there was insufficient evidence to support his conviction because the record [did] not contain proof beyond a reasonable doubt of his identity as Jacobsen's assailant";id., at 757, 631 A.2d 309;(2)"the trial court improperly denied him access to Jacobsen's personnel file ... [and][w]ithout access to the file ... he was denied his constitutional right to impeachment information under Brady v. Maryland,373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215(1963), and his constitutional right to confront witnesses against him as guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution";State v. Harris , supra, 227 Conn. at 759–60, 631 A.2d 309; and (3)"the trial court abused its discretion by failing to read back to the jury certain portions of Jacobsen's testimony that counsel and the court earlier had agreed would be read."Id., at 769, 631 A.2d 309.Our Supreme Court rejected the petitioner's claims and affirmed the judgment of conviction.Id., at 772, 631 A.2d 309.

In 1997, the petitioner filed his first petition for a writ of habeas corpus challenging, inter alia, his Tolland conviction.After the appointment of Attorney David Rozwaski as habeas counsel, the habeas petition was amended to allege ineffective assistance by (1) Attorney John Donovan, his trial defense counsel in a New Haven criminal matter (New Haven conviction), for which the petitioner was incarcerated when he committed the offenses resulting in the Tolland conviction,¹(2) Attorney Joette Katz, his appellate counsel in the direct appeal from the New Haven conviction,²(3) Attorney John Watson, his habeas counsel in a habeas action challenging the New Haven conviction, and (4) Fabricant, his appellate counsel in the direct appeal from the Tolland conviction.³The habeas court, Fuger , J ., either denied these claims or found them abandoned, and the petitioner's appeal therefrom was dismissed by this court.Harris v. Commissioner of Correction , 92 Conn. App. 903, 884 A.2d 22, cert. denied, 276 Conn. 933, 890 A.2d 572(2005).

In 2011, the petitioner filed a second petition for a writ of habeas corpus challenging the Tolland conviction.Attorney Joseph Barbarie was appointed as habeas counsel.The petitioner's second habeas petition alleged that he had been illegally sentenced.On May 8, 2014, the habeas court, Cobb , J ., dismissed the habeas petition on the ground of procedural default.The petitioner appealed from the denial of his petition for certification to appeal but subsequently withdrew that appeal.

On March 2, 2015, the petitioner commenced the present habeas action.In a three count amended petition filed September 5, 2017, the petitioner claimed ineffective assistance by (1) Fabricant, his appellate counsel, (2) Rozwaski, his first habeas counsel, and (3) Barbarie, his second habeas counsel.

The matter was tried before the court, Hon. Edward J. Mullarkey , judge trial referee, on February 13 and 20, 2018.The petitioner testified and presented the testimony of his trial counsel, Attorney David Kritzman, his first habeas counsel, Rozwaski, and his appellate counsel, Fabricant.The petitioner entered into evidence transcripts, copies of court documents, pleadings, briefs, and court decisions.No expert testified.At the request of the court, both parties filed posttrial briefs.

In its July 19, 2018 memorandum of decision, the court rejected the petitioner's claims.With respect to count one, the court concluded that "the petitioner is barred ... from again litigating directly that Fabricant rendered ineffective assistance on appeal."The court reasoned that "[t]his claim was previously raised and litigated by the petitioner, notwithstanding the first habeas court deeming the claim abandoned at trial because the petitioner failed to present supporting evidence."Accordingly, the court dismissed the petitioner's claim in count one "pursuant to Practice Book§ 23-29 (3) because it asserts the same ground (i.e., ineffective assistance of appellate counsel Fabricant) previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition."

With respect to counts two and three, the court first determined that "[t]he petitioner's claims ... are premised on the allegations of ineffective assistance by ... Fabricant, as alleged in count one. ...Thus, to prove prior habeas counsel were ineffective as alleged, the petitioner must prove also that appellate counsel was ineffective."(Citation omitted.)Ultimately, the court determined that "the petitioner failed to prove that any counsel performed deficiently and clearly did not show that the outcome of the direct appeal or a prior habeas [action] would have been different."Thereafter, the court denied the petition for certification to appeal, and this appeal followed.Additional facts and procedural history will be set forth as necessary.

On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly denied his amended petition for a writ of habeas corpus based on claims of ineffective assistance of (1) his appellate counsel, Fabricant, and (2) his first habeas counsel, Rozwaski.

I

We first address the petitioner's claim that the court abused its discretion in denying his petition for certification to appeal.We disagree.

General Statutes § 52-470 (g) provides: "No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person's release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies."

"As our Supreme Court has explained, one of the goals our legislature intended by enacting this statute was to limit the number of appeals filed in criminal cases and [to] hasten the final conclusion of the criminal justice process ....[T]he legislature intended to discourage frivolous habeas appeals. ...[Section] 52-470 (b)⁴ acts as a limitation on the scope of review, and not the jurisdiction, of the appellate tribunal. ...

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [disposition] of his [or her] petition for [a writ of] habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601(199...