Oliphant v. Comm'r of Corr.

• Decision Date: 29 October 2013
• Docket Number: No. 33736.,33736.
• Court: Connecticut Court of Appeals
• Parties: Anthony W. OLIPHANT v. COMMISSIONER OF CORRECTION.

146 Conn.App. 499

79 A.3d 77

Anthony W. OLIPHANT

v.COMMISSIONER OF CORRECTION.

No. 33736.

Appellate Court of Connecticut.

Argued May 21, 2013.

Decided Oct. 29, 2013.

Albert J. Oneto IV, assigned counsel, with whom, on the brief, was Albert J. Oneto III, assigned counsel, for the appellant (petitioner).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Brenda Hans, assistant state's attorney, for the appellee (respondent).

LAVINE, KELLER and HARPER, Js.

PER CURIAM.

The petitioner, Anthony W. Oliphant, returns to this court for a third time following his 1995 larceny conviction for simultaneously receiving welfare benefits from the cities of Hartford and Meriden.¹ By the petitioner's own reckoning, he has filed in a self-represented capacity at least thirteen petitions for a writ of habeas corpus in the trial court and four petitions for a writ of habeas corpus in the federal District Court. Four of the petitions filed in the trial court were consolidated there and are the subject of this appeal.

In this case, the petitioner appeals following the denial of certification to appeal from the judgment dismissing his second amended consolidated petition for a writ of habeas corpus (consolidated petition). On appeal, the petitioner claims that the habeas court, T. Santos, J., abused its discretion by denying his petition for certification to appeal, as (1) the motion to withdraw pursuant to an Anders² brief filed by appointed habeas counsel was granted improperly, (2) his constitutional rights were violated by the courts' failure to appoint substitute habeas counsel and to grant him access to a law library, and (3) there are triable issues concerning (a) newly discovered evidence and his actual innocence, (b) loss of statutory good time credit, and (c) denial of the presumption of innocence. We dismiss the appeal.

This appeal is the petitioner's most recent effort to challenge the legality of his detention filed subsequent to his conviction of one count of defrauding a public community in violation of General Statutes § 53a–122 (a)(4) (larceny conviction). See State v. Oliphant, 47 Conn.App. 271, 272, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998). In the larceny case, the jury reasonably could have found that the petitioner was collecting welfare benefits from the city of Meriden under the assumed name of Jerome Martin while simultaneously receiving welfare benefits under his own name from the city of Hartford. Id., at 272–73, 702 A.2d 1206. The court, Gaffney, J., sentenced the petitioner to a term of fifteen years imprisonment, execution suspended after seven years, followed by five years of probation. State v. Oliphant, 115 Conn.App. 542, 544, 973 A.2d 147, cert. denied, 293 Conn. 912, 978 A.2d 1113 (2009). The petitioner appealed from the larceny conviction, claiming that the trial court improperly (1) failed to adequately canvass him prior to accepting his waiver of the right to counsel,³ (2) denied him the effective assistance of standby counsel,⁴ and (3) concluded that the evidencepresented at trial was sufficient to prove his guilt beyond a reasonable doubt. ⁵State v. Oliphant, supra, 47 Conn.App. at 272, 702 A.2d 1206. This court affirmed the petitioner's conviction. Id., at 284, 702 A.2d 1206.

While he was imprisoned on his larceny conviction, the petitioner filed an amended petition for a writ of habeas corpus, “in part because he had been forced to wear restraints during jury selection. After an evidentiary hearing, the habeas court [ Pittman, J.] dismissed his petition on the ground that the petitioner has failed to prove any of the allegations in his petition for a writ of habeas corpus.” (Internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 80 Conn.App. 613, 614, 836 A.2d 471 (2003), cert. denied, 268 Conn. 907, 845 A.2d 412 (2004). On appeal to this court, the petitioner claimed that Judge Pittman improperly “concluded that he failed to meet his burden of proof on his claims that (1) it was an abuse of discretion for [Judge Gaffney] to require that he wear shackles during voir dire,⁶ (2) it was an abuse of discretion for [Judge Gaffney] to order him to appear at trial wearing a prison uniform and (3) it was a violation of his constitutional right of access to the court to deny him the use of the law library in the correctional facility in which he was housed during the preparation for his trial.” ⁷Id., at 613–14, 836 A.2d 471. This court affirmed the judgment of the habeas court dismissing the petitioner's amended petition for a writ of habeas corpus. Id., at 618, 836 A.2d 471.

The petitioner commenced the probationary portion of his larceny sentence on August 30, 2002. See State v. Oliphant, supra, 115 Conn.App. at 544, 973 A.2d 147. On October 6, 2006, the petitioner was arrested pursuant to a warrant for an assault he was alleged to have committed on Rhonda Dixon on September 25, 2006. Id., at 545, 973 A.2d 147. Four police officers were needed to arrest the petitioner, as he failed to comply with police directives and was violent toward them. Id., at 545–47, 973 A.2d 147. The court, Vitale, J., held a violation of probation hearing and found by a preponderance of the evidence that the petitioner had committed the crimes of assault, interfering with an officer, and threatening. Id., at 547, 973 A.2d 147. The court also found that the petitioner had “violated the standard condition of his probation that he not violate any criminal law of the United States, this state or any other state or territory,” and “determined that the beneficial aspects of probation were no longer being served.” Id. On October 26, 2007, Judge Vitale revoked the petitioner's probation and sentenced him to serve six and one-half years in the custody of the respondent, the Commissioner of Correction. Id.

The petitioner appealed to this court, claiming that Judge Vitale “improperly (1) restricted his cross-examination of [Dixon], ⁸,⁹ (2) refused to apply the exclusionaryrule, ¹⁰ (3) concluded that the evidence was sufficient to determine that he had violated his probation ¹¹ and (4) revokedhis probation.” ¹²Id., at 544, 973 A.2d 147. This court affirmed the judgment finding the petitioner in violation of his probation. Id., at 555, 973 A.2d 147.

Thereafter, the petitioner, representing himself, filed three petitions for a writ of habeas corpus on the following dates: February 27, 2007 (CV–07–4001597–S), December 14, 2007 (CV–08–4002149–S), and April 3, 2008 (CV–08–4002357–S). Attorney Rosemarie T. Weber was appointed to represent him in these matters. On May 28, 2008, the habeas court, Schuman, J., granted the motion to consolidate the petitions under docket number CV–08–4002357–S. Weber filed an amended petition for a writ of habeas corpus and the respondent filed a return. On July 17, 2008, Weber filed a reply to the return and a second amended petition for a writ of habeas corpus.¹³ On that date, Weber also filed a motion for permission to withdraw as counsel for health related reasons. The habeas court, A. Santos, J., granted Weber's motion to withdraw and noted that it would not act on the second amended consolidated petition, as the petitioner had informed the court that the allegations contained in the petition were incomplete.

On September 9, 2008, the self-represented petitioner filed yet another petition for a writ of habeas corpus, which was docketed as CV–08–4002616–S. On September 10, 2008, the habeas court, Nazzaro, J., issued a lengthy order. In the order, Judge Nazzaro recited the petitioner's larceny conviction and probation violation and related histories, and identified the allegations of the petition.¹⁴ The court noted the consolidated petition then pending in the court and noted also that the allegations in the September 9, 2008 petition were duplicative or that they arose out of the same set of facts and underlying conviction and probation violation. The court determined that judicial economy would be served by consolidating all of the petitions. The court also ordered the petitioner to refrain from filing additional petitions arising out of the subject larceny conviction or violation of probation.¹⁵

Thereafter, Attorney Robert J. McKay was appointed to represent the petitioner. On February 16, 2010, pursuant to Practice Book § 23–41, McKay filed a motion for permission to withdraw as counsel and, under seal, an Anders brief. See footnote 2 of this opinion. On February 19, 2010, ¹⁶ and March 19, 2010,¹⁷ the petitioner filed an objection to the motion to withdraw. The habeas court, Sferrazza, J., granted McKay's motion to withdraw. In a memorandum of decision dated February 15, 2011, Judge Sferrazza concluded that because “there are no nonfrivolous issues to be tried, the motion to withdraw is granted. Substitute counsel will not be appointed. The petitioner may represent himself at the habeas trial if he wishes to pursue this matter further.” ¹⁸Thereafter, pursuant to a scheduling order, the second consolidated petition was set down for trial on July 1, 2011.

In response to an objection filed by the petitioner in which he claimed that the respondent had never filed a return to the April 3, 2008 petition for a writ of habeas corpus (April, 2008 petition),¹⁹ the respondent filed an amended return to that petition.²⁰ On July 1, 2011, the parties appeared for a show cause hearing before the court, T. Santos, J. The purpose of the show cause hearing was to provide the petitioner an opportunity to demonstrate and explain why the issues that he raised in his consolidated petition were not wholly frivolous. At the conclusion of the show cause hearing, Judge Santos ruled that “[i]t seems appropriate for the court to dismiss this [petition] as either heard, res judicata or on these various other grounds that were stated not only in the return of the [respondent], but also in...