Kearney v. Commissioner of Correction

• Decision Date: 17 March 2009
• Docket Number: No. 29766.,29766.
• Citation: 965 A.2d 608,113 Conn.App. 223
• Parties: John KEARNEY v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

965 A.2d 608

113 Conn.App. 223

John KEARNEY v. COMMISSIONER OF CORRECTION.

No. 29766.

Appellate Court of Connecticut.

Argued September 18, 2008.

Decided March 17, 2009.

Todd A. Bussert, special public defender, for the appellant (petitioner).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, and Yamini Menon, former deputy assistant state's attorney, for the appellee (respondent).

FLYNN, C.J., and BISHOP and LAVERY, Js.

BISHOP, J.

The petitioner, John Kearney, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing counts one and two of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal and that the court (1) improperly denied the petitioner's right to present "new" allegations of ineffective assistance of trial counsel and (2) improperly dismissed the petitioner's claim of ineffective assistance of habeas counsel. We reverse the judgment of the habeas court in part.

The following factual and procedural background is relevant to our resolution of the petitioner's appeal. On December 19, 1995, the petitioner pleaded guilty under the Alford doctrine¹ to the murder of his wife in violation of General Statutes § 53a-54a (a).² On January 31, 1996 the court sentenced the petitioner to a term of forty-two years in the custody of the commissioner of correction, execution suspended after thirty years and five years probation. The petitioner did not file a direct appeal from the judgment of conviction.

On November 13, 1997, the petitioner filed a pro se petition for a writ of habeas corpus. Subsequently, on December 30, 1999, the petitioner's habeas counsel filed an amended petition for a writ of habeas corpus. In the amended petition, the petitioner alleged (1) ineffective assistance of trial counsel and (2) that the petitioner's plea was not knowing, intelligent and voluntary. By memorandum of decision dated April 20, 2000, the habeas court dismissed the petitioner's amended petition for a writ of habeas corpus.³ The court thereafter granted the petition for certification to appeal. On June 5, 2000, the petitioner appealed from the judgment of the habeas court, and, on December 4, 2001, this court affirmed the judgment. See Kearney v. Commissioner of Correction, 67 Conn.App. 232, 786 A.2d 1180 (2001).

On October 21, 2005, the petitioner filed this second petition for a writ of habeas corpus.⁴ In count one of the petition, the petitioner again alleged ineffective assistance of trial counsel, and, in count two, ineffective assistance of habeas counsel.⁵ On January 6, 2006, the respondent, the commissioner of correction, filed a motion to dismiss count one of the second petition pursuant to Practice Book § 23-29(3) as a successive petition and an abuse of the writ.⁶ The respondent also claimed that the petitioner was barred from relitigating the claims set forth in count one due to the doctrines of res judicata and collateral estoppel. On May 2, 2006, the habeas court held a hearing regarding the respondent's motion to dismiss count one of the petitioner's second petition. By memorandum of decision filed May 16 2006, the habeas court dismissed count one of the petition on the ground of res judicata. The court also, sua sponte, dismissed count two of the petition on the same ground.

Subsequently, on September 22, 2006, the petitioner filed a petition for certification to appeal, which the habeas court denied on September 26, 2006. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the petitioner challenges the denial of his petition for certification to appeal as well as the judgment dismissing his petition for a writ of habeas corpus. We conclude that the court did not abuse its discretion in denying certification to appeal from the judgment regarding count one, ineffective assistance of trial counsel, but that the court did abuse its discretion in denying certification to appeal from the dismissal of count two regarding the effectiveness of habeas counsel.

The standard of review and legal principles that guide our resolution of the petitioner's appeal are clear. "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for 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 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits....

"To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further....

"We examine the petitioner's underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary....

"In Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction.... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.... Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong.... Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim. (Citation omitted; internal quotation marks omitted.)

J.R. v. Commissioner of Correction, 105 Conn.App. 827, 830-32, 941 A.2d 348, cert. denied, 286 Conn. 915, 945 A.2d 976 (2008). Having set forth the applicable legal principles, we now address the petitioner's claims in turn.

I

The petitioner first claims that the court improperly dismissed his claim of ineffective assistance of trial counsel because his habeas petition raised new allegations not subject to the respondent's claim of res judicata. The habeas court found that the petition was barred by the doctrine of res judicata because judgment previously had been rendered on the same legal claim. Relying on Gagne v. Norton, 189 Conn. 29, 453 A.2d 1162 (1983), the habeas court further concluded that even if the court adopted the petitioner's argument that the two petitions contained different factual allegations, the former judgment served as an absolute bar to claims that might have been made. "[A] final judgment on the merits is conclusive on the parties in an action and their privies as to the cause of action involved. If the same cause of action is again sued on, the judgment is conclusive with respect to any claims relating to the cause of action which were actually made or might have been made." (Emphasis added; internal quotation marks omitted.) Id., at 32, 453 A.2d 1162. We conclude that the habeas court properly dismissed the claim alleging ineffective assistance by trial counsel because the claim was based on the same legal ground as was in the initial petition, and the petitioner has made no claim that the additional factual allegations contained in the present petition in support of his claim of ineffective assistance of trial counsel represent new facts not reasonably available to him at the time of his initial petition.

The following additional facts aid our discussion. The allegations underlying the petitioner's ineffective assistance of trial counsel claim in the petition at issue are substantially the same as those raised in his prior petition, which also alleged the ineffective assistance of his trial counsel.⁷ Paragraphs 17, 18, 19, 20, 23, 24 and 26 of count one of the second petition practically mirror paragraphs 12, 13, 14, 15, 17, 18, 19, and 20 of count one of the first petition. The new allegations in the present petition regarding the effectiveness of trial counsel are set forth in paragraphs 21, 22, 25, and 27 of count one of the petition.⁸ Nowhere in the petition does the petitioner aver that these newly alleged facts were not known by him, or not reasonably available to him, when he filed his first habeas petition.

Additionally, the relief that the petitioner requested in both petitions is substantially the same. In the first petition, the petitioner requested the withdrawal of his plea, restoration of the criminal case to the Superior Court docket for further proceedings and restoration of the right to sentence review. In the second petition, the petitioner requested the same relief and that he be released from custody.

The petitioner argues that the habeas court...