Kondjoua v. Commissioner of Correction, 120820 CTCA, AC 43322

Docket Nº:AC 43322
Opinion Judge:DiPENTIMA, J.
Party Name:CHRYSOSTOME KONDJOUA v. COMMISSIONER OF CORRECTION
Attorney:Peter G. Billings, for the appellant (petitioner). Jennifer F. Miller, assistant state's attorney, with whom, on the brief, were Margaret E. Kelley and Matthew C. Gedansky, state's attorneys, and Angela Macchiarulo, senior assistant state's attorney, for the appellee (respondent).
Judge Panel:Moll, Alexander and DiPentima, Js.
Case Date:December 08, 2020
Court:Appellate Court of Connecticut

CHRYSOSTOME KONDJOUA

v.

COMMISSIONER OF CORRECTION

No. AC 43322

Court of Appeals of Connecticut

December 8, 2020

Argued October 7, 2020

Procedural History

Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Newson, J., rendered judgment dismissing the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

Peter G. Billings, for the appellant (petitioner).

Jennifer F. Miller, assistant state's attorney, with whom, on the brief, were Margaret E. Kelley and Matthew C. Gedansky, state's attorneys, and Angela Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

Moll, Alexander and DiPentima, Js.

OPINION

DiPENTIMA, J.

The petitioner, Chrysostome Kondjoua, 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 as an improper successive petition pursuant to Practice Book § 23-29 (3). On appeal, 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 as successive. We dismiss the appeal.

In the petitioner's appeal from the denial of his first habeas petition, we set forth the following facts and procedural history. ‘‘The petitioner is a Cameroonian citizen who has resided in the United States since 2010 as a long-term, permanent resident with a green card. He was arrested on November 29, 2013, and charged with the sexual assault in the first degree of an eighty-three year old woman, for whom he had been working. The petitioner entered a plea of not guilty and elected a jury trial.

‘‘On December 16, 2014, after the jury had been picked and evidence was set to begin, the petitioner accepted a plea agreement to the reduced charge of sexual assault in the third degree. Before accepting the petitioner's guilty plea, the trial court canvassed him. The trial court found that the plea was made knowingly, intelligently, and voluntarily, and ordered a presentence investigation. On March 4, 2015, the court sentenced the petitioner to the agreed disposition of five years of imprisonment, execution suspended after twenty months, with ten years of probation. The petitioner also was required to register as a sex offender for ten years. The petitioner did not file a direct appeal.

‘‘While the petitioner was serving his sentence, the United States Department of Homeland Security (department) initiated deportation proceedings against him. The department cited the petitioner's March, 2015 conviction for sexual assault in the third degree as the ground for removal and stated that the petitioner was subject to removal because he had been convicted of an aggravated felony and a crime of moral turpitude, in violation of § 237 (a) (2) (A) (iii) and § 237 (a) (2) (A) (i) of the Immigration and Nationality Act, respectively. A warrant for the petitioner's arrest was served on July 14, 2015, and the petitioner was taken into the department's custody.

‘‘On June 19, 2015, the petitioner, then self-represented, filed a petition for a writ of habeas corpus. Appointed counsel thereafter filed an amended petition. On October 17, 2017, counsel filed a second amended petition . . . . It alleged two claims: Ineffective assistance of trial counsel for the improper advice concerning the immigration consequences of a guilty plea and a due process challenge to his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made. On December 19, 2017, the respondent, the Commissioner of Correction, filed a return alleging that the petitioner's due process claim was in procedural default. The petitioner filed a reply denying the allegations in the respondent's return on December 28, 2017.

‘‘On May 16, 2018, the habeas court issued a memorandum of decision in which it denied the petition. The habeas court found that the petitioner failed to establish that trial counsel had rendered ineffective assistance. . . . Regarding the petitioner's second claim, the court found that the petitioner had not established cause and prejudice sufficient to overcome the procedural default.'' (Footnotes omitted.) Kondjoua v. Commissioner of Correction, 194 Conn.App. 793, 795-99, 222 A.3d 974 (2019), cert. denied, 334 Conn. 915, 221 A.3d 809 (2020). On appeal, this court rejected the petitioner's claims that the first habeas court erred in rejecting his ineffective assistance of counsel claim and in concluding that his second claim, that his plea was not made knowingly, intelligently, and voluntarily, was procedurally defaulted. Id., 799-807.

The self-represented petitioner filed a second habeas action on August 17, 2018. The petitioner alleged that his plea was not made knowingly, intelligently, and voluntarily because he had been under the influence of medication that caused him to become passive and to accept a guilty plea ‘‘unconsciously, '' he did not receive the benefit of an interpreter, and his counsel coerced him to plead guilty.1 On July 11, 2019, the court, without holding a hearing on the petition, dismissed the petition sua sponte and found the following: ‘‘Upon review of the complaint in the above titled matter, the court hereby gives notice pursuant to Practice Book § 23-29 that the matter has been dismissed for the following reasons: (1) The petition is successive, in that it presents the same grounds as the 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. More specifically, the prior petition made claims of ineffective assistance of counsel and a claim that the petitioner's guilty plea was not knowingly, voluntarily, and intelligently made, and a fair reading of the present complaint presents the same...

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