Mejia v. Commissioner of Correction

• Decision Date: 24 October 2006
• Docket Number: No. 25304.,25304.
• Citation: 908 A.2d 581,98 Conn.App. 180
• Parties: Percy MEJIA v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

908 A.2d 581

98 Conn.App. 180

Percy MEJIA v. COMMISSIONER OF CORRECTION.

No. 25304.

Appellate Court of Connecticut.

Argued January 12, 2006.

Decided October 24, 2006.

Mary Boehlert, special public defender, for the appellant (petitioner).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Christopher L. Morano, chief state's attorney, and James A. Killen and Angela R. Macchiarulo, senior assistant state's attorneys, for the appellee (respondent).

SCHALLER, FLYNN and WEST, Js.^*

SCHALLER, J.

The petitioner, Percy Mejia, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion by denying his petition for certification to appeal and (2) improperly dismissed his claims that his previous attorneys had provided him with ineffective assistance of counsel. We reverse in part the judgment of the habeas court.

The following facts and procedural history are relevant to our discussion of the petitioner's appeal. The petitioner was convicted 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-211.¹ The court sentenced the petitioner to a total effective term of forty-five years incarceration. During the petitioner's criminal trial, he was represented by attorney Susan Brown and at sentencing by attorney Kenneth Simon.²

Our Supreme Court affirmed the petitioner's conviction on direct appeal. See State v. Mejia, 233 Conn. 215, 658 A.2d 571 (1995). Attorney Neal Cone represented the petitioner in that appeal. The court declined to discuss the substantive merits of one of the claims raised on appeal due to inadequate briefing. Id., at 223 n. 13, 658 A.2d 571.

The petitioner filed his first habeas petition on September 11, 1996. In that petition, he alleged that Brown had provided ineffective assistance of counsel by failing to prepare and to present adequate evidence in support of his insulin shock defense and that Simon had provided ineffective assistance by failing to articulate mitigating circumstances at the time of sentencing. He further alleged that Brown failed to ensure that he understood completely the plea bargain offered by the state. According to the petition, but for these defects in representation, there was a reasonable probability that the outcome could have been different.

The habeas court denied the petition for a writ of habeas corpus. Mejia v. Barbieri, Superior Court, judicial district of New Haven, Docket No. 356313, 1996 WL 537888 (September 13, 1996), aff'd, 48 Conn.App. 230, 716 A.2d 894, cert. denied, 245 Conn. 902, 719 A.2d 1163 (1998). At the habeas trial, the petitioner, Brown and Simon testified. The court found that the petitioner failed to prove either prong of the Strickland test for ineffective assistance of counsel.³ Specifically, the court determined that the petitioner failed to prove that his counsel's representation was deficient or that he was prejudiced as a result of the representation. Furthermore, the habeas court specifically found that the petitioner had received the effective assistance of counsel at his sentencing hearing.

The petitioner appealed from the judgment of the habeas court. We affirmed the denial of the petition for a writ of habeas corpus. See Mejia v. Commissioner of Correction, 48 Conn.App. 230, 716 A.2d 894, cert. denied, 245 Conn. 902, 719 A.2d 1163 (1998). We concluded that the petitioner "failed to show that he suffered actual prejudice as a result of his counsel's performance." Id., at 233, 716 A.2d 894. During both the habeas trial and the habeas appeal, the petitioner was represented by attorney David B. Rozwaski.

On January 15, 1997, the petitioner filed a second habeas petition. At that time, attorney Patrice Cohan represented the petitioner. The respondent, the commissioner of correction, moved to dismiss the second habeas petition on the grounds that it was a successive petition and an abuse of the writ. On May 12, 1999, the petitioner withdrew his second petition.⁴ The court thoroughly canvassed the petitioner, who agreed that the claims in the second petition were "basically" the same as those set forth in the first petition. The court accepted the withdrawal of the second habeas petition with prejudice.

On November 29, 2001, the petitioner, this time acting pro se, filed a third habeas petition.⁵ On April 29, 2002, the respondent moved to dismiss the third petition on the basis of Practice Book § 23-29(3)⁶ and the doctrines of res judicata and collateral estoppel. Specifically, the respondent claimed that "the petitioner has abused the writ by raising, seriatim, claims of ineffective assistance of trial counsel, changing only the factual basis, when the instant claims could have been raised in the prior petition."

The third habeas petition, as amended on November 12, 2003, set forth claims against Brown, the petitioner's trial counsel; Simon, his sentencing counsel; unnamed appellate counsel; Rozwaski, his first habeas counsel; and Cohan, his second habeas counsel. The respondent answered the petitioner's amended petition and claimed that the second, third and fourth counts should be dismissed as a result of the withdrawal of the second habeas petition.

After hearing oral argument, the court issued a written memorandum of decision dismissing 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. On March 8, 2004, the court denied the petition for certification to appeal from the dismissal of the petition for a writ of habeas corpus. This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we identify the standard of review applicable to our discussion. "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 its 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 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." (Internal quotation marks omitted.) State v. Dixson, 93 Conn.App. 171, 183-84, 888 A.2d 1088, cert. denied, 277 Conn. 917, 895 A.2d 790 (2006); see also Tyson v. Commissioner of Correction, 261 Conn. 806, 816, 808 A.2d 653 (2002), cert. denied sub nom. Tyson v. Armstrong, 538 U.S. 1005, 123 S.Ct. 1914, 155 L.Ed.2d 836 (2003); Mason v. Commissioner of Correction, 80 Conn.App. 142, 145-46, 832 A.2d 1216 (2003), cert. denied, 267 Conn. 910, 840 A.2d 1172 (2004). We now turn to the specific claims of the petitioner.

I

The petitioner first claims that the court improperly dismissed his claim of ineffective assistance of counsel directed at his trial counsel, Brown, and his sentencing counsel, Simon. The habeas court 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. The court 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. We conclude that the habeas court properly dismissed the claims against Brown and Simon because these claims were based on the same legal ground as the initial petition.

The following additional facts are necessary to our discussion. In the first petition for a writ of habeas corpus, the petitioner alleged that he had a long history of substance abuse and a severe diabetic condition. According to the petitioner, he was suffering from insulin shock on the day that the victim had been shot. Furthermore, he claimed that, due to his medication, he had been unable to "appreciate and/or understand" the trial proceeding, including a plea bargain offer from the state. The petitioner alleged that Brown had been ineffective by failing to prepare adequately and to present evidence in support of his insulin shock...