David Taylor v. Warden (2013)

MEMORANDUM OF DECISION RE RESPONDENT'S MOTION TO DISMISS # 119.00

I. Procedural History

The petitioner was the defendant in a matter pending in the New Haven Judicial District under Docket No. CR99–127929 wherein, following an Alford ¹ plea, he was convicted of the crime of murder and sentenced to a term of twenty-five years incarceration.   The facts and circumstances of the underlying conviction are not pertinent to the court's decision on this motion, so they will not be recited.   Since his conviction, the petitioner has filed numerous petitions seeking issuance of a writ of habeas, all of which have been denied.   Although the complete history of the petitioner's litigation will not be reiterated here, those matters relevant to the resolution of this motion will be discussed within the body of the opinion.

The petitioner commenced the present action on August 15, 2011.²  Following the appointment of counsel, an amended petition was filed on February 1, 2013.   The respondent filed the present motion to dismiss and supporting legal memorandum on February 25, 2013, and the petitioner filed his objection and supporting memorandum on March 15, 2013.   The court heard oral argument from the parties on May 6, 2013.

II. Law and Discussion

The respondent moves to dismiss all eleven counts of the petition, citing Practice Book §§ 23–29(2), (3), (4) and (5).³  “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).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts ․ the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).  “Because subject matter jurisdiction implicates the authority of the court, the issue, once raised, must be resolved before proceeding to the merits of the case ․” (Citation omitted.)  State v. Fowler, 102 Conn.App. 154, 158, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007).

The respondent asserts that Counts One, Two, Four, Five, Six, and Seven of the petition should be dismissed on grounds of res judicata.   These counts of the petition allege ineffective assistance against the petitioner's trial attorneys, Beth Merkin and Mary Hazelkamp, for things such as their failure to properly advise him of his options and rights before pleading guilty, to go over the relevant evidence with him, to properly advise him of the possible deportation consequences of his guilty plea, to advise him of the possibility of being convicted of a lesser offense if he elected to proceed to trial, to recognize that the petitioner was suffering from cognitive deficiencies induced by medications and or mental health issues which rendered him unable to knowingly, intelligently and voluntarily enter his plea, and by failing to advise him that he could have moved to withdraw his guilty plea prior to sentencing.   The petitioner concedes that he has brought a prior petition alleging ineffective assistance against his trial counsel, however, he claims that the present claims are different because they relate to pretrial performance, whereas his claim in that prior petition related only to their actual performance at and during the petitioner's plea.   Even if the petitioner's distinction were accurate, which is dubious, these claims would still be subject to dismissal on grounds 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 criminal as well as civil proceedings and to state habeas corpus proceedings ․ However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner ․ Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ․ the application of the doctrine of res judicata ․ [is limited] to claims that actually have been raised and litigated in an earlier proceeding.”  Carter v. Commissioner of Correction, 133 Conn.App. 387, 393, 35 A.3d 1088 (2012).

“[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.”  Id. “Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language ․ They raise, however, the same generic legal basis for the same relief.   Put differently, two grounds are not identical if they seek different relief ․ Simply put, an applicant must show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground.”  Id., 393–94.

Resolution of Counts One, Two, Four, Five, Six and Seven do not require extensive discussion.   In his first petition for writ of habeas corpus (CV03–0004061), which was denied after a trial on the merits, the petitioner also made claims of ineffective assistance against Attorneys Hazelkamp and Merkin that, with only slight differences in language, were based on factual claims nearly identical to those alleged in the present action.   Taylor v. Warden, Judicial District of Tolland at Rockville, Docket No. CV03–0004061 (October 18, 2004, Fuger, J.), rev'd and remanded in part, 94 Conn.App. 772, 895 A.2d 246 (2006), appellate court rev'd and appeal dismissed, 284 Conn. 433, 936 A.2d 611 (2007).   The relief sought in the present petition, the ability to withdraw his guilty plea and such other relief as law and equity may require, is also the same relief requested as was requested in the prior petition.   And, finally, the allegations of ineffective assistance against Attorneys Merkin and Hazelkamp in the present petition fail to proffer any new facts or evidence that was not reasonably available to the petitioner at the time he litigated the claims in CV03–0004061.   Therefore, Counts One, Two and.   Four, Five, Six and Seven are dismissed on grounds of res judicata.  Carter v. Commissioner of Correction, supra, 133 Conn.App. 393.

The respondent also seeks dismissal of Count Three, which alleges that the trial court failed to adequately advise the petitioner that he could ask questions or to inquire if he was aware that he was giving up his right to remain silent during the plea colloquy, preventing him from entering a knowing, intelligent and voluntary plea within the meaning of the due process clause of the Constitution.   As with the claims of ineffective assistance above, however, the petitioner also asserted a claim that his plea was not knowingly, intelligently and voluntarily entered in the petition brought under CV03–0004061, only the basis at that time was the effect of certain mental health issues from which he was suffering and or medications he was taking.   The petitioner also seeks the same relief now as he did in that prior petition, the ability to withdraw his guilty plea.   And, again, the petitioner has offered no new evidence or facts in support of his present claim that would not have been reasonably available to him at the time he litigated CV03–0004061.  Id. As such, Count Three is dismissed on grounds of res judicata.  Id.

The next count to be addressed is Count Eight, which alleges ineffective assistance of counsel against Attorney Michael Donofrio, who represented the petitioner at the habeas trial of CV03–0004061.   The respondent asserts that the claim of ineffective assistance against Attorney Donofrio is subject to dismissal on grounds of res judicata as well, because in a habeas action brought by the petitioner subsequent to CV03–0004061 under Docket No. CV08–4002555, which contained claims of ineffective assistance against Attorney Donofrio, the petitioner's counsel was allowed to withdraw after filing an Anders ⁴ motion and the court, Solomon, J., subsequently dismissed the matter pursuant Practice Book (Rev.2009) § 23–42(a).⁵  The petitioner's counsel in that matter was Attorney Laljeehbai Patel.   The respondent's assertion is that the granting of the Anders motion and subsequent dismissal represents a judicial determination that there were no meritorious claims to be presented in that action.   In other words, the respondent is asserting that this court should accept the decision to grant the Anders motion to withdraw and to dismiss CV08–4002555, at least with respect to any claims of ineffectiveness against Attorney Donofrio, as if it were a finding on the merits that Attorney Donofrio had in fact provided the petitioner with constitutionally sufficient representation.   The respondent further argues that, since the petitioner was provided an opportunity to object to the Anders motion and to the dismissal of his complaint, the doctrine of res judicata should prohibit him from re-litigating those issues again here.⁶  Said another way, the respondent's position is that the dismissal of the petition in CV08–400255 constituted a judicial determination that there was no reasonable basis to believe that any claim that could be pursued on behalf of the petitioner would result in habeas relief if heard on its merits, so res judicata should prohibit the petitioner from reasserting them here.   The respondent's arguments, however, are misguided.

First, this court has previously decided in Lorthe v. Commissioner of Correction, Judicial District of Tolland, Docket No. CV 10–4003658 (April 10, 2013, Newson, J.), that the granting of an Anders motion to withdraw, in and of itself, does not constitute res judicata as to the merits of the claims contained in the operative petition.   It was aptly said by Judge Fuger in a similar case that “[w]hile the judgment of dismissal in the former petition [following the granting of an Anders motion to withdraw] may have been a judgment rendered because there was no merit to the claims, it was a judgment as to the merits but not on the merits.   Thus, the court concludes res judicata is inapplicable.”  (Emphasis in original.)   Gaffney v. Warden, Superior Court, Judicial District of Tolland, Docket No. CV 05 4000811 (Nov. 5, 2007, Fuger, J.).   Decisions from some other jurisdictions appear to be in line with this reasoning.  State v. Lyles, 381 S.C. 442, 444–45, 673 S.E.2d 811, 813 (2009) (“[A] decision of the Court of Appeals dismissing an appeal after conducting a review pursuant to Anders is not a decision on the merits of the appeal, but simply reflects that the appellate court was unable to ascertain a non-frivolous issue which would require counsel to file a merits brief”);  U.S. ex rel. Frye v. Jungwirth, 05 C 2279, 2006 WL 2437963 (N.D.Ill. Aug. 21, 2006) (upholding the decision of lower appellate court which included a finding that it was improper for the trial court to dismiss a petition on res judicata grounds based on the prior granting of an Anders motion);  People v. Jones, 364 Ill.App.3d 1, 5, 846 N.E.2d 947 (2005) (“We also find that res judicata does not preclude defendant's postconviction allegations because his direct appeal was decided on appellate counsel's Anders motion.   Accordingly, our decision did not address any specific issue”).   Therefore,-this court finds that the mere granting of Attorney Patel's Anders motion to withdraw in CV08–4002555 did not constitute res judicata as to the allegations contained in the operative petition.  Lorthe v. Commissioner of Correction, supra, Judicial District of Tolland;  Gaffney v. Warden, supra, Superior Court, Judicial District of Tolland.

The respondent also argues, however, that, even if allowing Attorney Patel to withdraw from CV08–4002555 did not constitute res judicata as to the claims in the petition, the court's dismissal of the action pursuant to Practice Book (Rev.2009) § 23–42(a) should.   Based on similar reasoning as discussed above, however, this court finds that the dismissal of CV08–4002555 pursuant to Practice Book 23–42(a) did not constitute a determination of the claims “on the merits” within the meaning of the doctrine of res judicata in the habeas context.  Lorthe v. Commissioner of Correction, supra, Judicial District of Tolland.

A hearing on an Anders motion in the habeas context does not, in fact, address the substance of the evidence or witnesses that might support or defeat the claims in the petition, as tested through the presentation of sworn testimony in an adversarial setting, but really only addresses the substantially one-sided assertions of counsel as to the non-existence of evidence and witnesses to support those claims, or, if evidence or witnesses do exist, that there is no good faith basis to require them to be presented at a trial.  United States v. Whitley, 503 F.3d 74, 77 (2d Cir.2007).   Although a petitioner must be given an opportunity to object to the Anders motion and to file his own brief;  Id.;   the petitioner in the present case being incarcerated, as most petitioners are, and without access to his own investigator, the advice of counsel as to law and strategy to defeat the Anders motion, or the ability to compel the attendance of witnesses and the production of evidence that might contradict the assertions made by counsel in the Anders motion, this limited opportunity does not compare at all to the full and fair opportunity to litigate those issues contemplated by the doctrine of res judicata as applied in the habeas context. “[l]n the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ․ the application of the doctrine of res judicata ․ [is limited] to claims that actually have been raised and litigated in an earlier proceeding.”  Carter v. Commissioner of Correction, 133 Conn.App. 387, 393, 35 A.2d 1088 (2012).   The petitioner in the present case has not had a prior opportunity to litigate the claim of ineffective assistance he now asserts against Attorney Donofrio, because CV08–4002555 was dismissed pursuant to a pretrial motion.  Id. Therefore, the doctrine of res judicata is inapplicable to those claims.  Id.

The respondent is correct in his argument that the habeas court was required to find that it was “satisfied that counsel ha[d] diligently searched the record for any arguably meritorious issue in support of his client's [habeas petition]” before granting the Anders motion and dismissing the petition;  United States v. Whitley, supra, 503 F.3d 77;  and that the court could not simply accept the representations of Attorney Patel, but had to have engaged in its own diligent review of the record.  Lorthe v. Commissioner of Correction, 103 Conn.App. 662, 675, 931 A.2d 348 (2007) (“The mere acceptance of the report falls short of compliance with the federal requirement as mandated in the Anders case ․ which specifies that the court—not counsel ․ after a full examination of all the proceedings ․ decide[s] whether the case is wholly frivolous”).   This court finds that the process of the habeas court reviewing the Anders brief, existing record, and any supporting affidavits submitted by counsel, however, did not provide the petitioner with the kind of full and fair opportunity to have the credibility of the actual witnesses and the weight of the actual evidence that might be presented in support of his claims determined as contemplated by the application of the doctrine of res judicata in the habeas context, because it did not provide him with an actual opportunity to litigate his claims.   Carter v. Commissioner of Correction, supra, 133 Conn.App. 393.

Decisions in other contexts here in Connecticut support the conclusion that the pretrial dismissal of an action does not constitute res judicata as to the merits of the claims therein.   In Southport Manor Convalescent Ctr., Inc. v. Foley, 216 Conn. 11, 16–17, 578 A.2d 646 (1990), our Supreme Court stated, “[i]n determining whether [to grant a motion to dismiss], the inquiry usually does not extend to the merits of the case ․ The decision [granting a motion to dismiss] is rendered in the form of a final judgment dismissing the action ․ [H]owever, only the present action has been terminated and no decision on the merits has been made.”  (Italics in original.)   In another matter, it was said that “[t]he appropriate inquiry ․ is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding ․ If not, res judicata is inappropriate ․ [A] pretrial dismissal ․ is not the logical or practical equivalent of a full and fair opportunity to litigate.”  (Citations omitted;  emphasis in original.)   Cayer Enterprises, Inc. v. DiMasi, 84 Conn.App. 190, 194, 852 A.2d 758, 761 (2004).   Given the narrowed application of the doctrine of res judicata in the habeas context, it would only seem logical that this line of reasoning would apply with even greater strength here.⁷

In deciding the Anders motion and subsequent dismissal in CV08–4002555, the habeas court made a determination as to the sufficiency of the probable evidence and witnesses, or lack thereof, that may have existed to support of the petitioner's case, as represented by Attorney Patel through arguments, briefs and affidavits, and examined all of that in the context of the existing trial record.  United States v. Whitley, supra, 503 F.3d 76.   The habeas court did not, however, with its own eyes and ears, have an opportunity to make any determination as to the sufficiency, accuracy, weight or credibility of the actual exhibits, witnesses or other evidence at a hearing where the exhibits, witnesses and other evidence was subjected to the challenge of cross examination, objections and other things typical of a true hearing on the merits.  Cayer Enterprises, Inc. v. DiMasi, supra, 84 Conn.App. 194.   As such, the claim of ineffective assistance against Attorney Donofrio in the present petition is not a claim “that [has] actually been raised and litigated in an earlier proceeding.”  Carter v. Commissioner of Correction, supra, 133 Conn.App. 393.   The doctrine of res judicata, therefore, is inapplicable, and the motion to dismiss Count Eight is denied.  Lozada v. Warden, supra, 223 Conn 843.

The next count to be addressed is Count Nine, which asserts a claim of ineffective assistance of counsel against Attorney Patel for his representation in CV08–4002555.   As discussed above, Attorney Patel was allowed to withdraw from representing the petitioner after filing an Anders motion.   The petitioner has appealed that dismissal, which remains pending as of the time of this decision.  Taylor v. Commissioner of Correction, 305 Conn. 910, 45 A.3d 99 (2012) (certification granted on the sole issue of whether it was appropriate for the trial court to dismiss the petition without an evidentiary hearing).   The respondent asserts that the claim of ineffectiveness against Attorney Patel is barred by the doctrine of res judicata.   The respondent's argument is similar to the arguments presented above, which is that a necessary finding before the habeas court granted Attorney Patel's motion to withdraw pursuant to Anders would have been that Attorney Patel had conducted a thorough and conscientious investigation of all possible meritorious issues that might have been presented in support of the petitioner's claims.   Lorthe v. Commissioner of Correction, supra, 103 Conn.App. 675.   That necessary finding, argues the respondent, was, in effect, a determination by the court that Attorney Patel had provided the petitioner with constitutionally sufficient representation, which the petitioner should be prohibited from having a second opportunity to litigate.

The respondent's arguments fail here for much the same reasons as they failed above, which is that the particular issue of Attorney Patel's performance has never been the subject of a hearing where an “adequate opportunity to litigate the matter” has been afforded to the petitioner.  Cayer Enterprises, Inc. v. DiMasi, supra, 84 Conn.App. 194.   In other words, a claim challenging the sufficiency of Attorney Patel's representation has not actually been raised and litigated before by the petitioner, which is required before the doctrine of res judicata will become applicable in the habeas context.  Lozada v. Warden, supra, 223 Conn 843.   In its simplest terms, the claim of ineffective assistance alleges that the petitioner can prove that, but for Attorney Patel's deficient representation, there is a reasonable possibility that the decision of the habeas court to grant the Anders motion and to dismiss the complaint would have been different;  Strickland v. Washington, supra, 466 U.S. 668;  which is an issue the petitioner should be entitled to affirmatively raise and litigate at least once.  Lozada v. Warden, supra, 223 Conn. 843.   Based on the foregoing, therefore, the respondent's motion to dismiss Count Nine is denied.  Carter v. Commissioner of Correction, supra, 133 Conn.App. 393.

The next count to be addressed is Count Ten, which alleges ineffective assistance against Attorney Christopher Duby for his representation in the appeal from the dismissal of CV08–4002555.⁸  The respondent argues that the claims against Attorney Duby should be dismissed as premature, because the appeal is still pending and it is not possible to determine the effectiveness of his representation, or any alleged prejudice resulting therefrom, until the appeal has been resolved.   The petitioner argues that he should not have to wait until the appeal has been concluded to litigate claims against Attorney Duby that the claims are already “ripe” for adjudication, such as Attorney Duby's failure to raise certain issues in the appeal that were requested by the petitioner.

The respondent is correct that there does not appear to be any case that has specifically defined the term “premature” in Practice Book § 23–29(4).   A claim that an action is premature, however, is simply another way of saying that it is not ripe for adjudication, and the concept of ripeness has been thoroughly addressed by our courts.  “A court will not resolve a claimed controversy on the merits unless it is satisfied that the controversy is justiciable ․ Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ․ (2) that the interests of the parties be adverse ․ (3) that the matter in controversy be capable of being adjudicated by judicial power ․ and (4) that the determination of the controversy will result in practical relief to the complainant ․ Justiciability consists of standing, ripeness and mootness ․ An issue is not ripe if it presents a hypothetical injury or a claim that is contingent on the happening of some event that has not, and indeed, may not, transpire.”   (Citations omitted, quotation marks omitted.)  Mejia v. Commissioner of Correction, 112 Conn.App. 137, 146, 962 A.2d 148 (2009).

The petitioner's claims against Attorney Duby are not yet ripe for adjudication.  Id. First, the petitioner will not, as he argues, be irreparably harmed by requiring the appeal to be resolved itself before he can pursue a claim of ineffective assistance against Attorney Duby, because resolving the appeal on its merits will not automatically prohibit the petitioner from later asserting claims he says Attorney Duby has failed to pursue on appeal.  Valeriano v. Bronson, 209 Conn. 75, 83–84, 546 A.2d 1380 (1988) (a claim of ineffective assistance against appellate counsel alleges sufficient “cause and prejudice” overcome a special defense of procedural default so that the claim can be determined on its merits).   Additionally, until the appeal has been concluded, and a determination made as to whether Attorney Duby has been successful or not, the full extent of the prejudice, if any, claimed by the petitioner is speculative.  Mejia v. Commissioner of Correction, 112 Conn.App. 137, 146, 962 A.2d 148 (2009).   That is because the decision of the Supreme Court could range from simply affirming the decision made below, to remanding with specific orders wholly or partially modifying the disposition, to a remand to the trial court for a full evidentiary hearing on the issues, each of which would presumably have a different effect on potential claims of prejudice that might be asserted by the petitioner, and the remedies that might be available from the habeas court.  State v. Phidd, 42 Conn.App. 17, 28, 681 A.2d 310 (1996) (“The statutory language [in General Statutes § 52–470(a) ] ‘dispose of the case as law and justice require’ gives the habeas court the power to conform a remedy to the particular facts”).   As such, there does not exist a present justiciable controversy.   Anderson v. Warden, Superior Court, Judicial District of Tolland, Docket No. CV06–4001028 (Jan. 2, 2007, Fuger, J.) (petition alleging ineffective assistance against habeas counsel dismissed as premature where, although habeas counsel had been allowed to withdraw, the underlying habeas action was still pending with petitioner acting as a self-represented party);  Kish v. Cohn, Superior Court, Judicial District of Stamford–Norwalk, Docket No. CV07–0161623 (April 2, 1998, Lewis, J.), aff'd, 59 Conn.App. 236, 756 A.2d 313 (2000) (dismissing appeal to the Superior Court where plaintiff had not obtained final decisions on available administrative remedies against DEP).   Based on the foregoing, therefore, the motion to dismiss Count Ten as premature is granted.  Mejia v. Commissioner of Correction, supra, 112 Conn.App. 146.

The final claim presented by the petitioner is Count Eleven, which is a claim against the Division of Public Defender Services for ineffective assistance of counsel and for violating his rights to due process for failing to properly investigate claims he has made against assigned counsel, for failing to appoint competent counsel and for failing to properly communicate with the petitioner about his complaints and concerns.   The respondent moves to dismiss this count for failure to state a claim upon which relief can be granted, because the Division of Public Defender Services, as an entity, has never represented the petitioner.   The court agrees with the petitioner.

The Division of Public Defender Services, as an entity, has never represented the petitioner and, therefore, no claim for ineffective assistance of counsel can lie against it.  “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  (Emphasis added.)  Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   The plain reading of Strickland, and all the cases that have followed, contemplates the assistance and involvement of counsel in the actual trial process, not the individuals or agencies that supervise or employ trial counsel without taking any active role in the trial process itself, and the petitioner has presented no case precedent or statutory authority to the contrary.  Id. Therefore, Count Eleven is dismissed for failure to state a claim upon which relief can be granted.  Id.

III. Conclusion

Based on the foregoing, the respondent's motion to dismiss is GRANTED as to Counts One, Two, Three, Four, Five, Six and Seven, Ten and Eleven.   The respondent's motion to dismiss is DENIED as to Counts Eight and Nine.

Hon. John M. Newson

FOOTNOTES

FN1. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime”)..  FN1. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime”).

FN2. Consolidated under this docket number are also four other petitions filed on April 9, 2010, December 15, 2010, August 10, 2011 and August 18, 2011, all dealing with this same conviction..  FN2. Consolidated under this docket number are also four other petitions filed on April 9, 2010, December 15, 2010, August 10, 2011 and August 18, 2011, all dealing with this same conviction.

FN3. Practice Book § 23–29.—DismissalThe 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:(1) the court lacks jurisdiction;(2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted;(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;(4) the claims asserted in the petition are moot or premature;(5) any other legally sufficient ground for dismissal of the petition exists..  FN3. Practice Book § 23–29.—DismissalThe 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:(1) the court lacks jurisdiction;(2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted;(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;(4) the claims asserted in the petition are moot or premature;(5) any other legally sufficient ground for dismissal of the petition exists.

FN4. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which 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..  FN4. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which 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.

FN5. Prior to the amendment which took effect on January 1, 2010, Practice Book (Rev.2009) § 23–42 provided in pertinent part:  (a) If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed, with the petitioner pro se.   If the petition is not dismissed, the judge ruling on the motion to withdraw as counsel shall not preside at any subsequent hearing on the merits of the case.  (Emphasis added.).  FN5. Prior to the amendment which took effect on January 1, 2010, Practice Book (Rev.2009) § 23–42 provided in pertinent part:  (a) If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed, with the petitioner pro se.   If the petition is not dismissed, the judge ruling on the motion to withdraw as counsel shall not preside at any subsequent hearing on the merits of the case.  (Emphasis added.)

FN6. The court has not reviewed the contents of the Anders motion, nor has the court reviewed the transcripts of the proceeding.   See Practice Book § 23–41(c).  However, it should be noted that the sole issue granted certification in the petitioner's pending appeal from the dismissal of CV08–4002555 is whether it was appropriate for the habeas court to dismiss the petition without providing the petitioner with the opportunity to have an evidentiary hearing.  Taylor v. Comm'r of Correction, 305 Conn. 910, 45 A.3d 99 (2012)..  FN6. The court has not reviewed the contents of the Anders motion, nor has the court reviewed the transcripts of the proceeding.   See Practice Book § 23–41(c).  However, it should be noted that the sole issue granted certification in the petitioner's pending appeal from the dismissal of CV08–4002555 is whether it was appropriate for the habeas court to dismiss the petition without providing the petitioner with the opportunity to have an evidentiary hearing.  Taylor v. Comm'r of Correction, 305 Conn. 910, 45 A.3d 99 (2012).

FN7. “Res judicata prevents a litigant from reasserting a claim that has already been decided on the merits ․ Under claim preclusion analysis, a claim—that is, a cause of action—includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose ․ Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made.  [T]he essential concept of the modern rule of claim preclusion is that a judgment against [the] plaintiff is preclusive not simply when it is on the merits but when the procedure in the first action afforded [the] plaintiff a fair opportunity to get to the merits.   Stated another way, res judicata is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ․ [W]here a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 459–60 (2010).   Said another way, “the doctrine of res judicata provides that [a] judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose ․” (Emphasis original.)  Id., 463.   “However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner ․ Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ․ the application of the doctrine of res judicata ․ [is limited] to claims that actually have been raised and litigated in an earlier proceeding.   Thus, a habeas petition may be vulnerable to dismissal by reason of claim preclusion only if it is premised on the same ground actually litigated in a previously dismissed habeas petition.  [T]he application of the doctrine of claim preclusion to a habeas petition is narrower than in a general civil context because of the nature of the Great Writ.” Kearney v. Commissioner of Correction, 113 Conn.App. 223, 233–34, 965 A.2d 608 (2009)..  FN7. “Res judicata prevents a litigant from reasserting a claim that has already been decided on the merits ․ Under claim preclusion analysis, a claim—that is, a cause of action—includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose ․ Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made.  [T]he essential concept of the modern rule of claim preclusion is that a judgment against [the] plaintiff is preclusive not simply when it is on the merits but when the procedure in the first action afforded [the] plaintiff a fair opportunity to get to the merits.   Stated another way, res judicata is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ․ [W]here a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 459–60 (2010).   Said another way, “the doctrine of res judicata provides that [a] judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose ․” (Emphasis original.)  Id., 463.   “However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner ․ Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ․ the application of the doctrine of res judicata ․ [is limited] to claims that actually have been raised and litigated in an earlier proceeding.   Thus, a habeas petition may be vulnerable to dismissal by reason of claim preclusion only if it is premised on the same ground actually litigated in a previously dismissed habeas petition.  [T]he application of the doctrine of claim preclusion to a habeas petition is narrower than in a general civil context because of the nature of the Great Writ.” Kearney v. Commissioner of Correction, 113 Conn.App. 223, 233–34, 965 A.2d 608 (2009).

FN8. This appeal was consolidated with appeals filed in CV09–4003295 (declined on intake on 12/18/09 pursuant to Practice Book § 23–24, Solomon, J.) and CV10–4003323 (declined on intake on 12/22/09 pursuant to Practice Book § 23–24, T. Santos, J.), which are all currently pending under AC31835..  FN8. This appeal was consolidated with appeals filed in CV09–4003295 (declined on intake on 12/18/09 pursuant to Practice Book § 23–24, Solomon, J.) and CV10–4003323 (declined on intake on 12/22/09 pursuant to Practice Book § 23–24, T. Santos, J.), which are all currently pending under AC31835.

Newson, John M., J.