Rodney Kyles v. Warden (2013)

MEMORANDUM OF DECISION:  NOTICE OF DISMISSAL BY COURT WITHOUT HEARING PURSUANT TO PRACTICE BOOK § 23–29(3)

I. Procedural History

The petitioner was the defendant in a matter pending in the Waterbury Judicial District where he was convicted by a jury on July 20, 1990 of the crimes of felony murder, in violation of General Statutes § 53a–54c, and robbery in the first degree, in violation of General Statutes § 53a–134(a)(2).   The trial court subsequently sentenced the petitioner to a total effective sentence of eighty years to serve.   Of significance to this opinion is that two of the petitioner's codefendants, Jamal Gregg and John Ferguson (a.k.a. John Hofler), testified against the petitioner during his trial and subsequently received substantially smaller prison sentences.   The petitioner appealed his convictions, which were affirmed in State v. Kyles, 221 Conn. 643, 607 A.2d 355 (1992).

The present case marks the petitioner's fourth habeas petition challenging these convictions.   The first petition for writ of habeas corpus by the petitioner was commenced in the New London Judicial District on September 19, 1999.   In that action, among other claims, the petitioner alleged that his criminal trial counsel, Attorney Louis Avitabile, was ineffective for failing to properly bring out to the jury during cross examination that co-defendant Jamal Gregg may have had an expectation of leniency from the state in exchange for his testimony.   Following a trial on the merits, however, the petition was denied and judgment rendered in favor of the respondent.   Kyles v. Warden, Superior Court Judicial District of New London at New London, Docket No. KNL–CV99–0552315 (Purtill, J., July 24, 1999).

The petitioner's second habeas corpus action challenging these convictions was commenced on September 16, 2002 in the Hartford Judicial District and was given Docket No. CV02–0019769.   A two-count amended petition was filed on April 7, 2003 making claims of ineffective assistance against the petitioner's criminal trial and appellate attorneys for failing to adequately raise issues related to the trial court's denial of a motion to suppress certain evidence prior to trial.   The court, Kaplan, J., subsequently granted an Anders ¹ motion and dismissed the petition on March 1, 2004.²

The petitioner commenced his third petition for writ of habeas corpus challenging the same convictions on January 18, 2007.   After the appointment of counsel, Attorney Justine Miller, a final five-count amended petition was filed on September 11, 2009, count one alleging ineffective assistance against Attorney Avitabile for his representation during the trial, including a failure to raise Brady and Giglio ³ violations based upon the State's failure to disclose exculpatory evidence, and count two alleging ineffective assistance against appellate counsel for, among others, his failure to raise the issue of this Brady /Giglio violation on appeal.   Count three of this third petition alleged ineffective assistance against Attorney DeSantis for his representation in the petitioner's first habeas matter, alleging again, among others, his failure to properly raise and litigate a claim that criminal trial counsel had failed to properly address the Brady /Giglio violations based on the State's failure to disclose information which could have impeached the credibility of “both petitioner's co-defendants who testified on behalf of the State,” and his alleged failure to bring a claim against Appellate Counsel for failing to raise a prosecutorial misconduct claim during the petitioner's direct appeal based on the State's failure to disclose this same Brady / Giglio evidence.   Count four asserted a claim of ineffective assistance against the attorney who represented the petitioner in his appeal from the denial of his first petition, Attorney Joseph Visone, a claim which is not relevant to the present decision, and count five asserted a claim of prosecutorial misconduct, again, based on an allegation that the State had failed to disclose this same Brady /Giglio information.   The court, Santos, J., by oral decision, granted the respondent's motion to dismiss counts one and two on grounds of res judicata.   Kyles v. Warden, Judicial District of Tolland at Somers, Docket No. TSR CV 07 4000518 (Santos, J., Dec. 9, 2009).   Following a trial on the merits, the court, Schuman, J., also by oral decision, denied the remainder of the claims and rendered judgment in favor of the respondent.   Kyles v. Warden, Judicial District of Tolland at Somers, Docket No. TSR CV 07 4000518 (Schuman, J, Dec. 10, 2010).

The petitioner commenced the present action, his fourth petition challenging the same convictions, by filing a petition for writ of habeas corpus on January 24, 2011.   Following the appointment of counsel, a three-count Second Amended Petition was filed on March 7, 2013, count one alleging ineffective assistance against Attorney Sebastian DeSantis, the petitioner's first habeas attorney, count two alleging ineffective assistance against Attorney Justine Miller, the essence of both counts being that each habeas counsel failed to adequately investigate or prove that there had been undisclosed written plea agreements between the State's Attorney and two co-defendants who testified against the petitioner during his criminal trial.   The third count alleges that the State's failure to turn over these alleged written plea agreements with the codefendants constituted violations of Brady and Giglio.

After reviewing all of the relevant petitions, decision and portions of the record in the above files, as well as applicable case law, the court dismisses all counts of the petition for the reasons set forth below.

II. Law and Discussion

“The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that:  ․ (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition ․” Practice Book § 23–29.  “A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the [non-moving party] cannot as a matter of law and fact state a cause of action that should be heard by the court ․” Naier v. Beckenstein, 131 Conn.App. 638, 643, 27 A.3d 104, cert. denied, 303 Conn. 910, 32 A.3d 963 (2011).   When adjudicating a motion to dismiss, “a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Citation omitted;  quotation marks omitted.)  Lawrence Brunoli, Inc. v. Town of Branford, 247 Conn. 407, 410–11, 722 A.2d 271 (1999).

“Our Supreme Court has stated that [i]n our case law, we have recognized only one situation in which a court is not legally required to hear a habeas petition.  Negron v. Warden, [180 Conn. 153, 158, 429 A.2d 841 (1980) ], we observed that, pursuant to Practice Book § [23–29], [i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing ․ [A] petitioner may bring successive petitions 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.”   (Alterations in original;  Footnote omitted.)  Zollo v. Commissioner of Correction, 133 Conn.App. 266, 277, 35 A.3d 337 (2012).

A. CLAIM ONE—INEFFECTIVE ASSISTANCE AS TO ATTORNEY DESANTIS

The petitioner previously brought a claim of ineffective assistance against Attorney DeSantis in his third petition for habeas corpus, and the grounds alleged to support the claim of ineffectiveness in that third petition, his alleged failure to properly raise and litigate the issue related to the supposed undisclosed plea agreements the State had with the petitioner's codefendants, is identical to the basis asserted for the present action.   Although the petitioner may have modified the language he used to make the present claim, that does not make it any less identical in substance and law, than the previous claim he previously litigated.  Carter v. Commissioner of Correction, 133 Conn.App. 387, 393–94, 35 A.3d 1088 (2012).   As such, claim one is classic res judicata, is barred from being relitigated, and is, therefore, dismissed.  Zollo v. Commissioner of Correction, 133 Conn.App. 266, 277, 35 A.3d 337 (2012).

B. CLAIM TWO—INEFFECTIVE ASSISTANCE AS TO ATTORNEY MILLER

Attorney Miller represented the petitioner in his third petition.   Generally, and although a petitioner would have to overcome the monumental evidentiary burden of proving both prongs of the Strickland ⁴ ineffective assistance test against not only Attorney Miller, but also against Attorney DeSantis and Attorney Avitabile in order to prevail, the law of res judicata would not prohibit the petitioner from having the right to have the merits of his claim against Attorney Miller heard, even though it would effectively require him to relitigate and prove claims he's previously made alleging ineffectiveness against Attorneys DeSantis and Avitabile.  Lozada v. Warden, 223 Conn. 834, 842–44, 613 A.2d 818 (1992).   However, where a prior court has rendered an adverse judgment on a petitioner's claim of ineffective assistance based on a finding that the petitioner suffered no prejudice as a result of the particular matter averred to support the claim of ineffectiveness, the doctrine of res judicata does apply to bar relitigation of the matter.  Smith v. Warden, 122 Conn.App. 637, 643, 999 A.2d 840 (2010), cert. denied, 300 Conn. 901, 12 A.3d 574 (2011).

In the context of cases where a petitioner files a habeas alleging ineffective assistance against habeas counsel, which would legally require the petitioner to litigate and establish that trial counsel, as well as habeas counsel, was ineffective in order to prevail, our Supreme Court has said as follows with regard to the application of the doctrine of res judicata:

[T]he subject of the writ—that is, whether the accused had reasonably competent habeas and trial counsel—are matters that ultimately challenge the underlying conviction ․

To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.   A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient ․ Second, the defendant must show that the deficient performance prejudiced the defense.   Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable ․ Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial.   This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel.   The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement.

The respondent raises the claim that res judicata prohibits a second habeas proceeding because the issue of ineffective assistance of trial counsel was already litigated in the first habeas proceeding ․ We disagree.

First, the United States Supreme Court has long held that the strict application of the doctrine of res judicata should not control successive petitions for habeas corpus.   In Salinger v. Loisel, [265 US. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924) ], we held that in the federal courts the doctrine of res judicata does not apply to a refusal to discharge a prisoner on habeas corpus;  but that in those courts, where the prisoner presents a second petition, the weight to be given to the prior refusal is to be determined according to a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the subject.  Wong Doo v. United States, 265 U.S. 239, 240, 44 S.Ct. 524, 68 L.Ed. 999 (1924).

We agree with the Appellate Court that the second habeas petition is not predicated on the same issues addressed in the first petition.   Although the petitioner must, by necessity, repeat his allegations of trial counsel's inadequacy, there may never have been a proper determination of that issue in the first habeas proceeding because of the allegedly incompetent habeas counsel.   The claim of ineffective assistance of habeas counsel, when added to the claim of ineffective assistance of trial counsel, results in a different issue.

(Alterations in original;  citations omitted;  internal quotation marks omitted.)  Lozada v. Warden, 223 Conn. 834, 842–44, 613 A.2d 818 (1992).

Where, however, there has been a factual finding by a prior habeas court that a petitioner suffered no prejudice as a result of criminal trial counsel's alleged ineffective conduct, a subsequent claim of ineffectiveness against habeas counsel is subject to being barred on res judicata grounds, because the issue of prejudice may not be relitigated.  Smith v. Warden, 122 Conn.App. 637, 643, 999 A.2d 840 (2010), cert. denied, 300 Conn. 901, 12 A.3d 574 (2011).   In Smith, one of the claims raised by the petitioner in his third petition for habeas corpus was that each of the attorneys who represented him in his first and second habeas had been ineffective for failing to raise certain claims of ineffectiveness against his criminal trial counsel.  Smith v. Warden, Superior Court, Judicial District of Tolland at Somers, Docket No. CV04–4000126 (Angelo dos Santos, J., August 6, 2008).   In affirming the ruling by the trial court that the petitioner's claim was barred by the doctrine of res judicata, the Appellate court, which cited Lozada, supra, in this portion of its discussion, stated:

For [second habeas counsel] to have been ineffective [criminal trial counsel] would have to have been found ineffective and thereby to have prejudiced the petitioner ․

The [third habeas court] decided that the petitioner could not prove prejudice resulting from [second habeas counsel's] performance because [the first habeas court] not only found no ineffectiveness, but significantly had found no prejudice on the same grounds.  [The first habeas court] found that [criminal trial counsel] adequately brought out at trial that the petitioner's false statement to the police was made because the petitioner was on parole and therefore fearful.

The petitioner has attempted to recast and reformulate the same facts from the earlier petition before [the first habeas court].   Then, he argued that this [criminal] trial counsel's questioning did not adequately explain his prior lies and that it did not go far enough.   Now, he reformulates the same factual basis underlying his ground of ineffectiveness of counsel.   Specifically, the petitioner argues that his [criminal] trial counsel had erred in bringing out any evidence at all from him concerning his prior lies to the police and that the fact that he was on parole for other crimes and that his [second] habeas counsel was ineffective in not raising this issue.   Our review of the record causes us to conclude that the issue of prejudice from alleged ineffectiveness of trial counsel was decided in a prior proceeding and that the court properly concluded that it was barred from relitigation by the principles of res judicata.

(Citations omitted;  emphasis added;  footnote omitted.)  Id., 643.

Read together, therefore, Lozada, supra, and Smith, supra, stand for the proposition that, while a petitioner generally may bring a habeas corpus action claiming ineffectiveness against habeas counsel, which allows, and necessarily requires, a re-litigation of whether the factual allegations of criminal trial counsel's ineffectiveness were properly litigated in the prior habeas action;  Lozada v. Warden, supra, 223 Conn. 842–44;  that subsequent action alleging ineffectiveness against habeas counsel will be barred on grounds of res judicata where a prior habeas court has made a finding that no prejudice resulted from the alleged ineffective conduct, because the court's finding on the issue of prejudice is not subject to re-litigation.  Smith v. Warden, supra, 122 Conn.App. 643.

In the oral decision he rendered on counts three through five of the petitioner's third habeas petition the court, Schuman, J., specifically found that, based on the evidence that was adduced about the petitioner's co-defendants during direct examination, cross examination and closing arguments during the criminal trial, the petitioner suffered no prejudice “from any failure to correct that testimony or any failure to make any additional disclosures.”   Kyles v. Warden, Judicial District of Tolland at Somers, Docket No. TSR CV 07 4000518 (Schuman, J., Dec. 10, 2010).   The court, Purtill, J., made a similar finding in the petitioner's first habeas, stating:  “Petitioner, however, suffered no prejudice as a result of [counsel's failure to extensively cross-examine Jamal Gregg about his expectation of preferential treatment].   The jury must have been aware of the possibility of such expectation on the part of the witness and the effect of which it might have on his credibility.”   Kyles v. Warden, Superior Court Judicial District of New London at New London, Docket No. KNL–CV99–0552315 (Purtill, J., July 24, 1999).   As such, and as all of the petitioner's present claims of ineffectiveness against Attorney Miller are based on her alleged failure to properly address the supposed undisclosed plea deals the State had with the petitioner's co-defendants, this claim, too, is barred by the doctrine of res judicata.  Smith v. Warden, supra, 122 Conn.App. 643.

B. CLAIM TWO—PROSECUTORIAL MISCONDUCT

Although the factual allegations supporting the claim were different, the petitioner made and litigated a claim of prosecutorial misconduct in his third habeas petition.   The substance of all of the other allegations in that third habeas petition make it clear, however, that the basis for the present claim of prosecutorial misconduct, the State's alleged failure to disclose plea agreements with the petitioner's co-defendants, was known to the petitioner at the time the prior petition was litigated.   In fact, as mentioned above, the first three counts of the third petition make claims of ineffective assistance of counsel against trial counsel, first habeas counsel and appellate counsel, all of which are at least partially based on their failure to properly raise or investigate the issue of these alleged secret plea agreements with the co-defendants who testified against the petitioner at his trial.   As also discussed above, the relief sought by the petitioner in his third petition and the present one is the same.  “[A] petitioner may bring successive petitions 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.”  Carter v. Commissioner of Correction, 133 Conn.App. 387, 393, 35 A.3d 1088 (2012).   As such, claim three is also barred by the doctrine of res judicata.  Id.

III. Conclusion

Based on the foregoing, claims one, two and three of the petition are DISMISSED pursuant to Practice Book § 23–29(3).

If the Petitioner wishes to appeal this ruling, then counsel shall prepare and submit a judgment file to the clerk within thirty (30) days.   All other necessary appellate forms shall be filed within the time-frames set forth in applicable Practice Book and/or statutory sections.

Hon. John M. Newson

FOOTNOTES

FN1. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) allows an attorney appointed to represent an indigent defendant on appeal who concludes that an appeal would be frivolous to request that the appellate court allow him to withdraw or that the court dispose of the case without the filing of merits briefs..  FN1. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) allows an attorney appointed to represent an indigent defendant on appeal who concludes that an appeal would be frivolous to request that the appellate court allow him to withdraw or that the court dispose of the case without the filing of merits briefs.

FN2. At the time this decision was rendered, Practice Book § 23–42(c), which has since been amended, allowed the court to dismiss the petition after granting a motion by counsel to withdraw based on Anders.   It should also be noted that this court has not reviewed the substance of the Anders motion or the court's memorandum of decision dismissing the petition, but only references this matter for purposes of detailing an accurate procedural history..  FN2. At the time this decision was rendered, Practice Book § 23–42(c), which has since been amended, allowed the court to dismiss the petition after granting a motion by counsel to withdraw based on Anders.   It should also be noted that this court has not reviewed the substance of the Anders motion or the court's memorandum of decision dismissing the petition, but only references this matter for purposes of detailing an accurate procedural history.

FN3. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (addressing the prosecution's obligation to turn over exculpatory evidence to the defendant);  Giglio v. United States, 405 U.S. 150, 153–54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (addressing the prosecution's duty to correct false and misleading testimony presented to the jury and to notify the defense of agreements for leniency offered to prosecution witnesses)..  FN3. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (addressing the prosecution's obligation to turn over exculpatory evidence to the defendant);  Giglio v. United States, 405 U.S. 150, 153–54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (addressing the prosecution's duty to correct false and misleading testimony presented to the jury and to notify the defense of agreements for leniency offered to prosecution witnesses).

FN4. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (establishing the standard that a habeas petitioner must prove both constitutionally deficient performance and a resulting prejudice in order to prevail on a claim of ineffective assistance of counsel)..  FN4. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (establishing the standard that a habeas petitioner must prove both constitutionally deficient performance and a resulting prejudice in order to prevail on a claim of ineffective assistance of counsel).

Newson, John M., J.