Harris v. Commissioner of Correction, No. 28382.

• Decision Date: 03 June 2008
• Docket Number: No. 28382.
• Citation: 947 A.2d 435,108 Conn.App. 201
• Parties: Leroy HARRIS v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

947 A.2d 435

108 Conn.App. 201

Leroy HARRIS v. COMMISSIONER OF CORRECTION.

No. 28382.

Appellate Court of Connecticut.

Argued February 13, 2008.

Decided June 3, 2008.

David J. Reich, for the appellant (petitioner).

John A. East III, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Linda N. Howe, senior assistant state's attorney, for the appellee (respondent).

HARPER, BEACH and BORDEN, Js.

BORDEN, J.

The petitioner, Leroy Harris, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly dismissed his habeas petition without holding an evidentiary hearing to determine whether his prior habeas counsel provided ineffective assistance. We agree with the petitioner and reverse the judgment of the habeas court.

The petitioner brought this petition for habeas corpus challenging his conviction of three counts of robbery in the first degree and one count of sexual assault in the first degree. The court dismissed the petition and denied the petition for certification to appeal. This appeal followed.

The following procedural history is undisputed. The petitioner was convicted, following a jury trial, of three counts of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) and 53a-8, and one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). The petitioner was sentenced to a total effective term of eighty years incarceration. State v. Harris, 22 Conn.App. 329, 330, 577 A.2d 1077 (1990).

In the petitioner's direct criminal appeal, he claimed that (1) the trial court improperly permitted the introduction into evidence of a certain statement under the Whelan doctrine¹ and (2) his conviction should be reversed because of prosecutorial impropriety. This court rejected those claims and affirmed his conviction. See id., at 337, 577 A.2d 1077.

In his first petition for a writ of habeas corpus, filed in 1993, in which he was represented by Paula Mangini Montonye, he claimed that Patricia Buck Wolf, who acted as both his criminal trial and appellate counsel, rendered ineffective assistance. With respect to the trial, the petitioner raised fifteen different claims of ineffectiveness. With respect to the appeal, the petitioner raised two different claims of ineffectiveness. The first habeas court, Hodgson, J., determined that with respect to both sets of claims, the petitioner had failed to establish prejudice. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This court affirmed the judgment. Harris v. Commissioner of Correction, 40 Conn.App. 250, 671 A.2d 359 (1996).

In his second petition, filed in 2003, in which he was represented by Salvatore Adamo, the petitioner raised three issues regarding his trial: (1) police misconduct (2) prosecutorial impropriety and (3) actual innocence. The second habeas court, Hon. William L. Hadden, Jr., judge trial referee, rejected these claims. This court dismissed the appeal. Harris v. Commissioner of Correction, 86 Conn.App. 903, 859 A.2d 979 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005).

In his third petition, filed in 2004, in which he was represented by his present counsel, the petitioner raised five claims of ineffective assistance of his criminal trial counsel. The respondent, the commissioner of correction, moved to dismiss the petition on the ground that it presented the same grounds as prior petitions. The third habeas court, Fuger, J., dismissed the petition on the ground that it was premised on the same legal grounds and sought the same relief as the first petition, and was supported by facts and allegations reasonably available at the time of the first petition. This court dismissed the appeal. Harris v. Commissioner of Correction, 97 Conn.App. 382, 904 A.2d 280, cert. denied, 280 Conn. 928, 909 A.2d 523 (2006).

Thereafter, the petitioner filed his fourth petition for a writ of habeas corpus, which is the subject of this appeal. In this petition, the petitioner challenged the effectiveness of the representation provided by his habeas counsel during his first and second petitions. In the first count of the petition, the petitioner alleged that his habeas counsel during his first habeas petition, Montonye, failed to investigate and to challenge adequately his trial counsel's presentation at trial of the argument that he was misidentified. In the second count, the petitioner alleged that his habeas counsel during his second habeas petition, Adamo, was ineffective for failing to challenge adequately his trial counsel's presentation of an argument of prosecutorial impropriety and also for failing to provide effective assistance regarding the petitioner's actual innocence claim. The petitioner also realleged that his trial counsel was ineffective for failing to present properly the misidentification issue and the prosecutorial impropriety issue. The respondent, in her return, claimed, inter alia, that the petitioner's various claims had been litigated and decided and were, therefore, barred by the doctrine of res judicata, and that "this is a successive petition and an abuse of the writ. It presents the same grounds as the previous petitions."

The habeas court, Fuger, J., began the hearing on the petition by asking: "[W]hy shouldn't I dismiss this on the grounds that it's a successive petition ... and an abuse of the writ?" Counsel answered that he was "alleging ... ineffective assistance of previous habeas counsel...." The respondent asserted that there appeared to be no newly discovered evidence raised in the fourth petition. After listening to argument by counsel, the court ruled on the petition orally, stating that it would dismiss this petition. The court further stated: "I'm going to find it to be successive. I'm going to find it to be an abuse of the writ. Everything I've heard goes back to this trial. This is a crime that's alleged to have occurred—that occurred, I should say, twenty-three years ago. The trial, the original trial was seventeen years ago. Since then, there have been two complete habeas trials, both appealed and denied. I've already dismissed it once as a successive petition." Thereafter, the court rendered a written judgment of dismissal "on grounds that the claims presented have already been litigated."

The petitioner requested certification to appeal from the judgment of dismissal, which the court denied. Pursuant to Simms v. Warden, 229 Conn. 178, 186-89, 640 A.2d 601 (1994), the petitioner challenges both the denial of certification to appeal and the judgment dismissing his petition for a writ of habeas corpus. We conclude that the court abused its discretion by denying the petition for certification to appeal. Therefore, we address the merits of the petitioner's appeal.

The petitioner claims that the court improperly dismissed his petition for habeas relief without affording him an evidentiary hearing. Specifically, he claims that the court improperly (1) dismissed his petition as a successive petition because it alleged ineffective assistance of habeas counsel and (2) applied the doctrine of res judicata in dismissing the petition. We agree with the petitioner that he is entitled to an evidentiary hearing on his claims that prior habeas counsel rendered ineffective assistance.

Both our Supreme Court and this court have addressed the issues of successive petitions and the doctrine of res judicata in the context of claims of ineffective assistance of prior habeas counsel. In Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), the petitioner sought to have his criminal conviction reversed and a new trial granted on the ground of ineffective assistance of prior habeas counsel. Id., at 835, 613 A.2d 818. The court, in agreeing that the petitioner could seek to do so by way of habeas corpus, stated: "In this case, the subject of the writ—that is, whether the accused had reasonably competent habeas and trial counsel—are matters that ultimately challenge the underlying conviction....

"To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable. ... Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement." (Citations omitted; internal quotation marks omitted.) Id., at 842-43, 613 A.2d 818. Thus, the court by clear implication rejected any claim that the habeas petition, based on a claim of ineffective assistance of prior habeas counsel, could be dismissed as successive.

With respect to the Lozada respondent's claim that "res judicata prohibits a second habeas proceeding because the issue of ineffective assistance of trial counsel was already litigated in the first habeas proceeding"; id., at 843, 613 A.2d 818; our Supreme Court stated: "First, the United States Supreme...