Pierce v. Comm'r of Corr.

• Citation: 118 A.3d 640,158 Conn.App. 288
• Decision Date: 30 June 2015
• Docket Number: No. 36403.,36403.
• Court: Appellate Court of Connecticut
• Parties: Jeffrey PIERCE v. COMMISSIONER OF CORRECTION.

158 Conn.App. 288

118 A.3d 640

Jeffrey PIERCE

v.COMMISSIONER OF CORRECTION.

No. 36403.

Appellate Court of Connecticut.

Argued Jan. 12, 2015.

Decided June 30, 2015.

Cameron R. Dorman, assigned counsel, for the appellant (petitioner).

Rita M. Shair, senior assistant state's attorney, with whom were Brian Preleski, state's attorney, and, on the brief, Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

LAVINE, KELLER and FLYNN, Js.

Opinion

LAVINE, J.

“[A] petitioner may bring successive petitions [for a writ of habeas corpus] on the same legal grounds if the petitions seek different relief.... But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.” (Citation omitted.) McClendon v. Commissioner of Correction, 93 Conn.App. 228, 231, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006). The petition for a writ of habeas corpus at issue in the present appeal, the fourth filed by the petitioner, Jeffrey Pierce, is predicated on legal grounds and facts previously alleged, and seeks the same relief he sought in his third petition for a writ of habeas corpus. We, therefore, dismiss the appeal.

The petitioner appeals from the judgment of the habeas court, Young, J., dismissing his fourth petition for a writ of habeas corpus. He claims that the habeas court (1) abused its discretion by failing to grant certification to appeal from the judgment of dismissal, and (2) improperly dismissed his fourth petition by concluding that (a) count one is barred by procedural default and (b) count two is barred by the doctrine of res judicata. We disagree.¹

IUNDERLYING FACTS AND PROCEDURAL HISTORY

The present appeal is the most recent in a lengthy series of appeals in which the petitioner has attempted to reverse the judgment of the trial court, Gaffney, J., which requires him upon his release from confinement to register as a sex offender pursuant to General Statutes (Rev. to 1999) § 54–254(a).² The crimes of which the petitioner was convicted occurred on August 11, 1998. State v. Pierce, 269 Conn. 442, 445, 849 A.2d 375 (2004). The victim was in her minivan at a Newington supermarket when the petitioner compelled her at knifepoint to drive to a wooded area in East Hartford. Id. The petitioner ordered the victim to follow him into the woods, but she refused, telling him that she did not want to be harmed or raped. Id. The petitioner told the victim that he did not intend to harm her, but that he did not want her to see where he went so as to aid in his escape. Id. The victim offered to look away as the petitioner left, and he agreed. Id. When the petitioner was gone, the victim drove to the Newington police station and reported the incident. Id. A composite drawing of the suspect was made from the victim's description of the perpetrator. Id. Two police officers recognized the petitioner from the drawing and went to the motel where they knew he was living. Id., at 445–46, 849 A.2d 375. During the police interview, the petitioner confessed to facts similar to those reported by the victim. Id., at 446, 849 A.2d 375.

The petitioner was charged with various crimes. A jury found him guilty of kidnapping in the second degree in violation of General Statutes § 53a–94 and burglary in the first degree in violation of General Statutes § 53a–101. See State v. Pierce, 69 Conn.App. 516, 518, 794 A.2d 1123 (2002), rev'd in part, 269 Conn. 442, 849 A.2d 375 (2004) (reversed and remanded to Appellate Court with direction to reinstate sexual offender registry requirement imposed by trial court). Thereafter, the state “invoked § 54–254(a) and filed a motion asking the trial court to find that the [petitioner's] crimes had been committed for a sexual purpose.” State v. Pierce, supra, 269 Conn. at 446, 849 A.2d 375.

At sentencing, Judge Gaffney informed the parties that he had ordered a presentence investigation report 1999 report), which he had reviewed.³ State v. Pierce, 129 Conn.App. 516, 519, 21 A.3d 877, cert. denied, 302 Conn. 915, 27 A.3d 368 (2011). The court inquired whether the parties had reviewed the 1999 report. Id. The petitioner's trial counsel stated that “he had reviewed it and gone over it ‘briefly’ with the [petitioner]. The court then asked the [petitioner] if he needed more time to go over 1999 the report, and the [petitioner] nodded his head. The court then called a recess to give the [petitioner] and his attorney time to go over the 1999 report in more detail.... When the sentencing hearing resumed approximately fifty minutes later, defense counsel stated on the record that he and the [petitioner] ... were ready to proceed.” (Citation omitted.) Id., at 520, 21 A.3d 877.

The petitioner opposed the state's § 54–254(a) request, arguing “that the evidence presented during the trial was insufficient to support [the] requisite finding [that he committed the crime for a sexual purpose]. He conceded nevertheless that the trial court could only make such a finding based on the [petitioner's] history [of sex-related offenses] as ... detailed in the [1999 report].” (Internal quotation marks omitted.) State v. Pierce, supra, 269 Conn. at 446–47, 849 A.2d 375. The court “remarked upon the evidence presented during the trial as well as other information that had come before it during the sentencing hearing and found that the [petitioner] was a ‘sexual devia[nt]’ with a long and alarming history of ‘antisocial behavior.’ ” Id., at 447, 849 A.2d 375. On the basis of the evidence presented at trial, the court found that the petitioner had abducted the victim for sexual purposes and ordered him to register as a sex offender pursuant to § 54–254(a).⁴ Id. The court sentenced the petitioner to a total effective term of thirty years of incarceration, execution suspended after twenty-five years, with five years of probation. State v. Pierce, supra, 129 Conn.App. at 521, 21 A.3d 877.

The petitioner filed an appeal from the judgment of conviction. This court reversed the judgment insofar as it required the petitioner to register as a sex offender. Our Supreme Court, however, reinstated the judgment with respect to sex offender registration. See State v. Pierce, supra, 269 Conn. at 444, 849 A.2d 375. Before the petitioner's direct appeal was resolved by our Supreme Court, he had filed a petition for a writ of habeas corpus (first petition). In his amended first petition, the petitioner alleged that his trial counsel had rendered ineffective assistance by failing (1) to raise evidentiary issues with respect to his motion to suppress, (2) to subpoena police records, (3) to investigate adequately and (4) to seek timely sentence review.Pierce v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–02–0003666 (September 18, 2003) (White, J. ). The petitioner prayed that “a writ of habeas corpus be issued, such that justice may be done.” Id.

Prior to the commencement of evidence on the first petition, the petitioner sought to have his first habeas counsel removed for failing to allege that his psychiatric records were improperly included in the 1999 report. Id. The first habeas court, White, J., denied the petitioner's claim of ineffective trial counsel and dismissed the claim related to the petitioner's psychiatric records as outside the scope of the first petition. Id. Judge White, however, restored the petitioner's right to sentence review. The petitioner did not file an appeal from the judgment denying his first petition.

Pursuant to the relief granted by Judge White, the petitioner filed an application for sentence review; see General Statutes § 51–195 ; claiming that the sentence imposed by Judge Gaffney was excessive in light of the petitioner's age and the nature of the crimes of which he was convicted. State v. Pierce, Superior Court, judicial district of New Britain, Docket No. CR–98–177629, 2005 WL 2130221 (June 29, 2005) (Holden, Miano and Iannotti, Js. ). The sentence review panel stated that having reviewed “the record before us and having considered the arguments of counsel and comments by the petitioner, and given the gravity of the nature of the offenses and character and history and age of the petitioner, we find the sentence is neither inappropriate [n]or disproportionate.”⁵ (Emphasis added.) Id. The petitioner did not file an appeal from the judgment of the sentence review panel.

In October, 2003, the petitioner filed a second petition for a writ of habeas corpus (second petition) in which he alleged prosecutorial impropriety and the ineffective assistance of trial counsel, appellate counsel, and first habeas counsel. Pierce v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV–03–0004220 (April 11, 2005) (Fuger, J. ). The petitioner requested that “the case be restored to the trial docket within sixty days of decision.”

The second habeas court, Fuger, J., granted the motion filed by the respondent, the Commissioner of Correction, to dismiss the count alleging the ineffective assistance of trial counsel pursuant to the doctrine of res judicata. Id. Following a hearing on the merits of the remaining claims, Judge Fuger found that the petitioner was not denied the effective assistance of either appellate or first habeas counsel and that the claim of prosecutorial impropriety was procedurally defaulted. Id. Judge Fuger denied the second petition and denied certification to appeal. This court dismissed the petitioner's appeal from the judgment dismissing his second petition. See Pierce v. Commissioner of Correction, 100 Conn.App. 1, 13, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).

The petitioner filed a third petition for a writ of habeas corpus (third petition) in August, 2005. In his third petition, the petitioner...