Mejia v. Commissioner of Correction

• Decision Date: 13 January 2009
• Docket Number: No. 29234.,29234.
• Citation: 112 Conn.App. 137,962 A.2d 148
• Parties: Percy MEJIA v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

962 A.2d 148

112 Conn.App. 137

Percy MEJIA v. COMMISSIONER OF CORRECTION.

No. 29234.

Appellate Court of Connecticut.

Argued November 21, 2008.

Decided January 13, 2009.

Sarah F. Summons, special public defender, for the appellant (petitioner).

Robin S. Schwartz, assistant state's attorney, with whom, on the brief, was Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

LAVINE, BEACH and STOUGHTON, Js.

LAVINE, J.

The petitioner, Percy Mejia, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court, Fuger, J., (1) abused its discretion by denying his petition for certification to appeal and (2) improperly found that future petitions for a writ of habeas corpus challenging the quality of representation the petitioner received would constitute an abuse of the writ and be subject to summary dismissal. We dismiss the appeal.

On March 12, 1991, the petitioner shot Fermon Roy Smith in the back. State v. Mejia, 233 Conn. 215, 219, 221, 658 A.2d 571(1995). The petitioner "was convicted after a jury trial of murder in violation of General Statutes § 53a-54a, unlawful possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, carrying a pistol without a permit in violation of General Statutes § 29-35, and unlawful possession of a sawed-off shotgun in violation of General Statutes § 53a-211. The trial court imposed a total effective sentence of forty-five years incarceration."¹ State v. Mejia, supra, at 216-18, 658 A.2d 571. In his direct appeal, in which he was represented by attorney Neal Cone, the petitioner claimed, among other things, that "his conviction for murder was based on insufficient evidence, or was against the weight of the evidence...." Id., at 219, 658 A.2d 571. Our Supreme Court affirmed the conviction. Id., at 243, 658 A.2d 571.

In 1996, the petitioner filed a petition for a writ of habeas corpus, alleging that his trial counsel, assistant public defender Susan Brown, had rendered ineffective assistance. Attorney David B. Rozwaski represented the petitioner in that proceeding. The petitioner alleged that he told Brown that "the shooting was an accident. He also told her that he suffered from diabetes and that this condition may have contributed to his actions. After having the petitioner examined by an endocrinologist, Brown determined that the petitioner's medical condition would not provide the basis for a defense. When Brown informed the petitioner that his diabetes would not constitute a defense, he sought to have her dismissed as his attorney. When his motion was denied, he stopped cooperating with her in the defense of his case. Brown then filed a motion to have the petitioner examined for competency, which was granted. The petitioner was found to be incompetent and was institutionalized for approximately three months. Following a second hearing to determine the petitioner's competency, the petitioner was found to be competent to understand the nature of the charges and to aid in his defense." Mejia v. Commissioner of Correction, 48 Conn.App. 230, 232, 716 A.2d 894, cert. denied, 245 Conn. 902, 719 A.2d 1163 (1998). The habeas court, W. Sullivan, J., found that the petitioner had failed to demonstrate that Brown's representation was deficient or prejudicial to the petitioner and therefore dismissed the petition for a writ of habeas corpus.² Id., at 231-32, 716 A.2d 894.

In affirming the judgment of the first habeas court, this court stated that "[a]t no time during the habeas hearing did the petitioner show that there was anything [Brown] could have done to obtain a different result. The petitioner failed even to suggest what evidence could or should have been offered in support of a defense of insulin shock. Moreover, the petitioner presented no evidence during the habeas hearing to show that his diabetes or his medications were in any way a factor in the murder." Id., at 233, 716 A.2d 894.³

The petitioner, represented by attorney Patrice A. Cohan, filed a second petition for a writ of habeas corpus in 1997. Mejia v. Commissioner of Correction, Superior Court, judicial district of Hartford, Docket No. CV-97-0568110-S (May 12, 1999). The respondent, the commissioner of correction, filed a motion to dismiss the second petition, alleging that the second petition was a successive petition and constituted an abuse of the writ. Prior to the hearing on the motion to dismiss, the petitioner withdrew the petition.

On November 29, 2001, the petitioner, acting pro se, filed a third petition for a writ of habeas corpus. Mejia v. Commissioner of Correction, 98 Conn.App. 180, 184, 908 A.2d 581 (2006). Attorney Shawn L. Council, who was appointed to represent the petitioner, filed an amended petition on behalf of the petitioner. In the amended petition, the petitioner alleged that he received ineffective assistance from Brown, from Kenneth Simon, who had been substituted as trial counsel, and from Cone, Rozwaski and Cohan. The respondent responded to the third petition claiming that the second, third and fourth counts should be dismissed due to the petitioner's having withdrawn his second petition for a writ of habeas corpus. Id., at 185, 908 A.2d 581. After hearing the arguments of the parties, the court, White, J., dismissed "all of the petitioner's claims. With respect to the claims against Brown and Simon, the court concluded that these either were, or could have been, raised in his prior petitions, and therefore constituted an abuse of the writ. Regarding the claims made against the other attorneys who had represented the petitioner at various proceedings, the court determined that the failure to establish that Brown and Simon were ineffective foreclosed the claims against subsequent counsel." Id. The petitioner filed an appeal following the court's denial of his petition for certification to appeal. Id.

On appeal, this court concluded that Judge White properly "concluded that the petitioner's claims relating to the insulin shock defense had been litigated previously and constituted an abuse of the writ and were res judicata. [Judge White] further determined that with respect to the noninsulin shock claims of ineffective assistance against Brown and Simon, the petitioner failed to meet the cause and prejudice test as a threshold to review of these claims."⁴ Id., at 187, 908 A.2d 581. This court also concluded that the claim as to Cohan was properly dismissed. Id., at 198, 908 A.2d 581. With regard to the claims against Cone and Rozwaski, this court concluded that those claims were newly alleged and that the petitioner was entitled to a hearing with respect to them. Id., at 191, 193, 908 A.2d 581. The claims pertaining to Cone and Rozwaski were remanded for further proceedings. Id., at 198, 908 A.2d 581.

On remand, following a hearing, Judge Fuger rendered an oral decision. With respect to the allegations that Rozwaski's representation of the petitioner in the first petition for a writ of habeas corpus was deficient for failing to inform the sentencing court, Freed, J., that the petitioner was taking the medication Tegretol, Judge Fuger concluded that "assuming that the failure to adequately advise and specifically advise Judge Freed that the petitioner was taking Tegretol is some sort of deficient performance, there was no evidence before this court as to what effect, if any, the ingestion of this medication might produce. It is the petitioner's burden to demonstrate that there is a reasonable probability that the result would have been different...."⁵ The petitioner therefore could not prevail on his claims against Rozwaski under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The allegations of ineffective assistance of counsel against Cone were premised on a footnote in the petitioner's direct appeal. On direct appeal, the petitioner claimed, in part, that "there was insufficient evidence to support his conviction of murder or, in the alternative, that the conviction of murder was against the weight of the evidence." (Emphasis added.) State v. Mejia, supra, 233 Conn. at 222-23, 658 A.2d 571. Our Supreme Court noted: "We do not address the [petitioner's] claim that the conviction was against the weight of the evidence because this claim is not briefed adequately for appellate review." Id., at 223 n. 13, 658 A.2d 571. Judge Fuger found that assuming that the footnote "is evidence of deficient performance, there is no evidence before this court that can possibly lead to a finding of prejudice. Indeed, all the available evidence in this habeas case clearly and conclusively points to guilt on the part of the petitioner. Therefore, far from being a conviction against the weight of the evidence, it would appear that the conviction is solidly and totally supported by the evidence, leading to the conclusion that even had the issue been adequately briefed, it would have been to no avail; hence, no prejudice to the petitioner."⁶

The habeas court denied the petition for certification to appeal, and the petitioner appealed to this court.

I

The petitioner's first claim is that the habeas court abused its discretion by denying his petition for certification to appeal from the denial of his third petition for a writ of habeas corpus. We disagree.

"Faced with the habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [denial] 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 prove that the decision of...