Oliphant v. Warden

• Citation: 80 A.3d 597,53 Conn.Supp. 194
• Decision Date: 15 February 2011
• Docket Number: No. CV–08–4002357–S.,CV–08–4002357–S.
• Court: Superior Court of Connecticut
• Parties: Anthony OLIPHANT v. WARDEN, STATE PRISON.

53 Conn.Supp. 194

80 A.3d 597

Anthony OLIPHANT

v.WARDEN, STATE PRISON.^*

No. CV–08–4002357–S.

Superior Court of Connecticut, Judicial District of Tolland.

Feb. 15, 2011.

SFERRAZZA, J.

Court-appointed habeas counsel moves to withdraw based on the absence of any nonfrivolous issues.

The petitioner, Anthony Oliphant, filed petitions for a writ of habeas corpus on February 27, 2007, under docket number CV–07–4001597, on December 14, 2007, under docket number CV–08–4002149, on April 3, 2008, under docket number CV–08–4002357 and on September 9, 2008, under docket number CV–08–4002616, challenging the legality of his detention. The petitions were consolidated under docket number CV–08–4002357. The petitioner was charged with larceny in the first degree by defrauding a public community. After a jury trial, at which he represented himself with Attorney Michael Moscowitz as standby counsel, he was found guilty and sentenced to fifteen years of incarceration, suspended after seven years, followed by five years of probation. His conviction was affirmed on appeal. See State v. Oliphant, 47 Conn.App. 271, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998).

On August 30, 2002, the petitioner commenced his probationary period. On October 6, 2006, he was arrested for allegedly assaulting his girlfriend, Rhonda Dixon, on September 25, 2006, and resisting arrest. The petitioner was subsequently charged with violating his probation based on conduct constituting assault in the third degree, breach of the peace, interfering with a police officer, assault in the second degree, and threatening. On October 26, 2007, after a violation of probation hearing at which the petitioner primarily represented himself with Attorney Omar Williams as standby counsel, the petitioner's probation was revoked, and he was sentenced to six and one-half years of incarceration. The Appellate Court affirmed the revocation of his probation. See State v. Oliphant, 115 Conn.App. 542, 973 A.2d 147, cert. denied, 293 Conn. 912, 978 A.2d 1113 (2009).

The petitioner has filed at least six other habeas corpus petitions; three in federal court and three in state court. The petitioner filed petitions for a writ of habeas corpus in federal court on July, 17, 1997, September 12, 2001, and March 19, 2004. All of the petitions were dismissed for failure to exhaust state remedies. The petitioner filed petitions for a writ of habeas corpus in state court on July 8, 1998, July 15, 2002, and November 28, 2003. In his first state petition the petitioner claimed that he received ineffective assistance from his standby counsel, Attorney Moscowitz, and that he did not receive a fair trial because he had to wear shackles during jury selection. After a hearing on the merits, at which the petitioner and Attorney Moscowitz testified, the habeas court dismissed the petition. See Oliphant v. Warden, Superior Court, judicial district of New Haven, Docket No. CV–98–0414837, 2001 WL 283457 (March 9, 2001) ( Pittman, J.). The petitioner was represented by Attorney Norman Pattis and Attorney Angelica Papastavros in that habeas matter. The dismissal of the petition was affirmed on appeal. See Oliphant v. Commissioner of Correction, 80 Conn.App. 613, 836 A.2d 471 (2003), cert. denied, 268 Conn. 907, 845 A.2d 412 (2004). The petitioner's second, state petition was dismissed for failure to assert a claim for habeas relief. Attorney John Imhoff, Jr., represented the petitioner in that habeas matter. The petitioner's third petition filed in state court, in which he was representedby Attorney Thomas P. Mullaney, was dismissed for failure to prosecute.

Attorney Rosemarie Weber was appointed to represent the petitioner in the present habeas matter. On August 13, 2008, Attorney Weber was allowed to withdraw as the petitioner's counsel. Attorney Robert McKay was appointed as substitute counsel. After investigating the petitioner's claims, Attorney McKay has concluded that there are no nonfrivolous issues for trial. On February 16, 2010, he filed the motion for permission to withdraw as counsel, pursuant to Practice Book § 23–41, which is presently before this court. The petitioner was notified of counsel's motion and filed an objection requesting that counsel's motion be denied.

This court has reviewed counsel's motion and supporting memorandum and documentation, including the transcripts of the petitioner's criminal trial and violation of probation hearing, as well as the documentation submitted by the petitioner, and concludes that there are no nonfrivolous issues to be tried. The motion to withdraw is, therefore, granted.

IDISCUSSION

“[A]lthough there is no constitutional right to counsel in habeas proceedings, General Statutes § 51–296 ... creates a statutory right to counsel ... for an indigent defendant ... in any habeas corpus proceeding arising from a criminal matter ....” (Emphasis in original; internal quotation marks omitted.) Morgan v. Commissioner of Correction, 87 Conn.App. 126, 132, 866 A.2d 649 (2005). The right to appointed counsel is limited, however, and is only available to petitioners who have nonfrivolous claims. “[I]f counsel finds [the petitioner's] case to be wholly frivolous ... he should so advise the court and request permission to withdraw.” Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Pascucci, 161 Conn. 382, 385, 288 A.2d 408 (1971); Practice Book § 23–41(a). “When counsel has been appointed ... and counsel, after conscientious investigation and examination of the case, concludes that the case is wholly frivolous, counsel shall so advise the judicial authority by filing a motion for leave to withdraw from the case.” Practice Book § 23–41(a). Such a motion “must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Anders v. California, supra, at 744, 87 S.Ct. 1396;State v. Pascucci, supra, at 385, 288 A.2d 408;Practice Book § 23–41(b). A copy of such brief must be provided to the client and a reasonable time given for the client to respond. State v. Pascucci, supra, at 385, 288 A.2d 408;Practice Book § 23–41(c). The court “then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.” Anders v. California, supra, at 744, 87 S.Ct. 1396;State v. Pascucci, supra, at 385, 288 A.2d 408. If the court finds any legal points arguable on the merits, the case cannot be deemed frivolous, and the court must afford the indigent client the assistance of counsel. Anders v. California, supra, at 744, 87 S.Ct. 1396. If the court finds the case to be frivolous, however, it shall grant the motion to withdraw and permit the petitioner to proceed pro se. Practice Book § 23–42(a).

ALarceny Conviction

In his pro se petitions, the petitioner claims that his conviction of larceny in the first degree is illegal because (1) the charge was fabricated in retaliation for civil lawsuits that he filed in December, 1994, (2) the conviction violates the double jeopardy clause of the fifth amendment to the United States constitution, as he was made to pay $30 per month prior to being formally charged, (3) he was denied access to the court, (4) he was shackled and handcuffed in front of the jury, (5) he was not given a mental examination before representing himself, (6) standby counsel rendered ineffective assistance, and (7) the prosecutor, judge, and standby counsel all conspired against him.

As noted by Attorney McKay, the majority of the petitioner's claims regarding his larceny conviction have already been litigated either on direct appeal or at a prior habeas trial, which adjudications would bar the petitioner from raising them in the present habeas matter under the doctrine of res judicata. “The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made.... The doctrine ... applies ... to state habeas corpus proceedings.” (Internal quotation marks omitted.) Kearney v. Commissioner of Correction, 113 Conn.App. 223, 234, 965 A.2d 608 (2009).

On direct appeal, the Appellate Court held that the trial court “properly found that the [petitioner's] waiver of counsel was knowingly and intelligently made.” State v. Oliphant, supra, 47 Conn.App. at 280, 702 A.2d 1206. It further held that “[t]here [was] no merit to the [petitioner's] claim that standby counsel was ineffective....” Id., at 282, 702 A.2d 1206. The court explained that “after deciding to proceed pro se, [the petitioner] had no constitutional right to the effective assistance of counsel in any capacity.” Id., at 281, 702 A.2d 1206. It further found that “there [was] no evidence that standby counsel unduly interfered with the [petitioner's] ability to conduct his trial.” Id. It would be wholly frivolous to pursue these claims or similar claims in the present habeas matter, as the Appellate Court has already resolved them on appeal.

Similarly, it would be wholly frivolous to pursue the claims brought in the petitioner's earlier habeas petition adjudicated on the merits absent a showing of newly discovered evidence or facts. See Kearney v. Commissioner of Correction, supra, 113 Conn.App. at 235, 965 A.2d 608 (“a second petition alleging the same ground as a previously denied petition will elude dismissal if it alleges grounds not actually litigated in the earlier petition and if it alleges new facts or proffers new evidence not reasonably available at the time of the earlier petition”). In an earlier habeas case, the court found no merit to the petitioner's claim that Attorney Moscowitz rendered ineffective assistance during the pretrial phase of his case, as “[t]here [was] no evidence other than that [Attorney] Moscowitz rendered entirely effective assistance to the petitioner.” Oliphant v. Warden, supra...