Keith Barile v. Warden (2013)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner was the defendant in a matter pending in the Tolland Judicial District.   On March 30, 1999, he entered guilty pleas in Docket No. CR98–006692 to one count of first degree robbery with a firearm, in violation of General Statutes § 53a–134(a)(4),¹ one count of second degree assault, in violation of General Statutes § 53a–60(a)(2),² and six counts of first degree kidnapping with a firearm, in violation of General Statutes § 53a–92a(a).³  The petitioner also admitted to six violation of probation charges and a motor vehicle offense under separate dockets that are not relevant to the claims in this petition.   During the plea, and at all times relevant to the claims in this petition, the petitioner was represented by Attorney Leslie Cunningham, a full-time attorney with the Tolland Office of the Public Defender.   On May 28, 1999, the court, Kaplan, J., sentenced the petitioner to a total effective sentence of twenty-five years incarceration, execution suspended after eighteen years, with five years probation.

The Sentence Review Division of the Superior Court summarized the facts underlying the petitioner's conviction as follows:

On October 20, 1998 at approximately 1:45 a.m., Vernon Police responded to a report at Damon's Restaurant.   Upon speaking with the victims at Damon's Restaurant, it was learned that the petitioner had entered the restaurant wearing a camouflaged hunter's mask, a dark coat and blue jeans.   He had immediately grabbed a female employee and ordered her and four other employees into the walk-in cooler.   The petitioner then grabbed the manager, spun him around and stuck a hard object into his back.   He stated, “I have a gun and I will shoot!   Everyone get into the walk-in.”   The five employees, minus the manager, then went into the walk-in refrigerator.   At this point, the manager realized that the assistant manager was not present, and later learned that he had run and called the police.   The petitioner then told the manager to lock the refrigerator door.   He explained to the petitioner that the door could not be locked, so the petitioner slammed the door shut with the employees inside.   He then pulled the manager into the office, pushed him onto the floor and told him to open the safe.   The victim was unable to see the numbers on the combination lock because he did not have his glasses.   He told petitioner that he needed his glasses to see.   The petitioner told him that if he did not stop stalling that he was going to shoot him.   The victim then went to the desk to get his glasses.   When he could not find them, petitioner hit him on the back of his head with a hard object.   The victim sustained a cut to the back of his head from this blow.   The offender pushed the victim back onto the floor and told him that if he did not open the safe he was going to kill him.   The victim told petitioner that he was going to have to kill him.   The victim pushed the offender into the copier, and the offender grabbed the victim by his arm and pushed him into the desk.   The offender then ran out the side door and fled the scene in his vehicle.   The manager let the employees out of the walk-in refrigerator.   After petitioner was apprehended, a victim identified him as the robber as well as a former employee of Damon's.   While the offender was being processed, police found a money bag and a cord on his person.   Petitioner told one of the officers that he was going to use the cord to tie up a victim if he needed to, in order to escape.   He had brought the bag to carry the money after the robbery.

On September 18, 2000, the petitioner brought a prior habeas corpus action alleging ineffective assistance of counsel against Attorney Cunningham.   The petitioner was represented in the trial of that matter by Attorney Kenneth Fox. The court, Rittenband, J.T.R., dismissed the petition by written memorandum of decision issued on August 19, 2002.   The petitioner appealed the court's decision, which was affirmed in Barile v. Commissioner of Correction, 80 Conn.App. 787, 837 A.2d 827, cert. denied, 268 Conn. 915, 847 A.2d 310 (2004).

The petitioner commenced the present action by filing a petition for writ of habeas corpus on September 28, 2010.   Following the appointment of counsel, the petitioner filed a final amended three-count petition on December 10, 2012.   The respondent filed an amended return on the same day generally denying the claims in the petition.   In their return, the respondent also raised the special defenses of res judicata and that the petition was successive as to count one,⁴ procedural default as to count two, and waiver and procedural default as to count three.   The matter was tried before the court on November 28, 2012 and January 25, 2013, and both parties also submitted post-trial briefs for the court to consider.

II. Law and Discussion

The petitioner alleges in count one that Attorney Cunningham was ineffective for failing to adequately advise him concerning his plea and about the relevant sentencing consequences.   The respondent has raised the special defense of res judicata.   Upon review, the court agrees with the respondent that count one is barred by the doctrine of res judicata.  Mejia v. Commissioner of Correction, 98 Conn.App. 180, 189, 908 A.2d 581, 588 (2006).

Although formulated with slightly different language, the petitioner previously raised an identical claim of ineffectiveness in the prior petition he litigated under CV00–0801815, which was denied after a trial on the merits.   Barile v. Warden, Superior Court, Judicial District of Hartford at Hartford, CV00–0801815 (Aug. 19, 2002, Rittenband, J.).⁵  “[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.”   (Emphasis added.)  Mejia v. Commissioner of Correction, supra.   The petitioner seeks the same relief here as he did in his previous habeas action, to have his convictions vacated, but fails to present any new facts or evidence not reasonably available to him at the time the previous matter was litigated.  Id. As such, count one is barred by the doctrine of res judicta.  Id.

In count two, the petitioner claims that his convictions were obtained in violation of his right to due process, because he was convicted of the crime of kidnapping based on conduct which our Supreme Court later determined in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), did not constitute a crime.   The petitioner alleges in count three that his guilty plea was not knowing, intelligent and voluntary as a result of the substantive narrowing of the definition of kidnapping by the Salamon case.   The respondent has raised the special defenses of procedural default to both counts, and the special defense of waiver to count three.

Prior to the Salamon case, the firmly established rule in Connecticut was that a defendant could be convicted of a kidnapping when committed in conjunction with another crime even if the movement or restraint of the victim was only incidental to that other crime.   E.g., State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d. 263 (1977).   In Salamon, however, our Supreme Court conceded that the definition long adhered to by our courts likely exceeded legislative intent and narrowed and modified the definition of what the state must prove to convict a person of kidnapping when committed in conjunction with another crime, stating that the jury must be instructed that “to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.”  Id., 542.   Shortly thereafter, our Supreme Court also decided that inmates convicted under the prior, more expansive, definition kidnapping committed in conjunction with another crime will presumptively be entitled to the benefit of the Salamon interpretation on habeas attack.  Luurtsema v. Commissioner of Correction, 299 Conn. 740, 760, 12 A.3d 817 (2011).

A claim for habeas relief by a petitioner who asserts that he was wrongly convicted by a jury that was not given a proper Salamon kidnapping instruction is subject to harmless error analysis.  Luurtsema v. Commissioner of Correction, supra, 299 Conn. 769–70.   In defining harmless error, the court has said:  “[i]t is well settled that an instructional impropriety that is constitutional in nature is harmful beyond a reasonable doubt, and, thus a reversible impropriety, when it is shown that it is reasonably possible ․ that the jury [was] misled ․ In other words, the test for determining whether a constitutional [impropriety] is harmless ․ is whether it appears beyond a reasonable doubt that the [impropriety] complained of did not contribute to the verdict obtained.”  (Citations omitted, internal quotation marks omitted.)  State v. Hampton, supra, 293 Conn. 463–64.

The respondent first raises the special defense of procedural default to the claims in counts two and three, asserting that the petitioner's failure to raise these claims prior to sentencing or on appeal prevents him from now raising these issues for the first time in a habeas proceeding.   See Saunders v. Commissioner of Correction, 137 Conn.App. 493, 498–99, 48 A.3d 728 (2012) (setting forth generally the special defense of procedural default).  “[A] habeas court generally should decide the threshold issue of [procedural default] when it is raised as a defense because, in the ordinary case, failing to do so undermines the prudential considerations that the [procedural default] rule was designed to promote.”  Taylor v. Commissioner of Correction, 284 Conn. 433, 447 n.18, 936 A.2d 611 (2007).

There is no dispute in the present case that the petitioner failed to raise these claims at the trial level or on direct appeal, and due process claims are clearly claims of a constitutional magnitude that would be expected to be raised in either of those places before being raised for the first time in a habeas proceeding.   E.g., Barile v. Commissioner of Correction, supra, 80 Conn.App. 788.   Despite that, this court is of the opinion that claims for habeas relief based on the Salamon decision are not subject to being procedurally defaulted.   See Smith v. Warden, Superior Court, Judicial District of Tolland, Docket No. CV 08 4002747 (Sept. 13, 2011, Sferrazza, J.) [52 Conn. L. Rptr. 599] (finding procedural default inapplicable to Salamon claim where the petitioner had failed to raise any claim regarding the court's given jury instruction at the trial level or on direct appeal based);  see also, Epps v. Warden, Superior Court Judicial District of Tolland, Docket No. CV06–4001167 (Nov. 7, 2012, Newson, J.) (citing Smith v. Warden, supra, for the finding that claims under Salamon are not subject to procedural default)

In Smith, wherein the petitioner brought a Salamon claim and the respondent raised the defense of procedural default, the court, in a thoroughly researched decision, aptly stated:

The court's research discloses that at least seven appellate cases which preceded the petitioner's criminal trial [in 1989] and in which the appellant argued that the Chetcuti ruling ought to be discarded and replaced by the more modern view of kidnapping [requiring the jury to find that the restraint of the victim had independent significance from some other crime with which the defendant was charged in order for the jury to find him guilty of kidnapping] ․ While this series of cases shows that the merger doctrine was known to the defense bar in Connecticut well before 1989, it also demonstrates that our Supreme Court was steadfast in its adherence to the Chetcuti decision [which rejected the claim that a kidnapping could not be based on restraint that was merely incidental to the commission of another crime].   In the legal climate prevailing in 1989, asking the Supreme Court to abandon Chetcuti must have appeared futile.

Id. At the time the petitioner in the present case pleaded guilty in 1999, the legal landscape in the state of Connecticut was still standing as firmly against any challenges to the rule in Chetcuti.   See State v. Dejesus, 91 Conn.App. 47, 87–88, 880 A.2d 910 (2005), rev'd in part, 288 Conn. 418, 953 A.2d 45 (2008) (reversing Appellate Court's decision finding that General Statutes § 53a–92(a)(2)(A) void for vagueness and ordering defendant's conviction vacated;  other challenged convictions affirmed on unrelated grounds).   Based on the foregoing, it is this court's opinion that the decisions rendered in Connecticut courts on this issue prior to the Salamon decision support a finding that the petitioner had “good cause” for not raising this claim at the trial level, because it would have been futile for him to have done so.  Smith v. Warden, supra, 52 Conn. L. Rptr. 599.   The fact that this case was a guilty plea instead of a trial is of no significance to the court's reasoning, what is of importance is that our caselaw made it perfectly clear that any challenge to the definition of what conduct was sufficient to constitute a kidnapping when committed in conjunction with another crime was a futile effort at the time of the petitioner's guilty plea.  Id.

The respondent also raises the special defense of waiver to count three.   The respondent argues that the petitioner's claim that his plea was not knowingly, voluntarily and intelligently made because the Salamon decision substantially narrowed the definition of the conduct that could legally have supported a kidnapping conviction at the time he entered his guilty plea is essentially a challenge to the sufficiency of the State's evidence, which is a right the petitioner waived when he entered his guilty plea.   See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed. 235 (1973).⁶  The petitioner, in turn, asserts that his claim is not a challenge to the sufficiency of the evidence, but a claim of actual innocence, to which waiver does not apply.   Whether a petitioner who entered a guilty plea to a kidnapping charge has waived the right to pursue habeas claim based on the Salamon decision constitutes an issue of first impression in this state.   After considering the matter, however, it is the conclusion of this court that the specific question of whether the petitioner's guilty plea constituted a waiver of a habeas claim based on the Salamon decision need not be addressed, because the petitioner's claim would fail even if the court assumed for purpose of argument that waiver was inapplicable.

Since the petitioner pleaded guilty here, the Salamon harmless error analysis is inapplicable, because he cannot claim that he was convicted of a crime he did not commit by an improperly instructed jury.  Luurtsema v. Commissioner of Correction, 299 Conn. 740, 769–79.   Instead, the court agrees with the petitioner that this claim amounts to one of actual innocence, and, as such, the court finds that the actual innocence standard set forth in U.S. v. Scruggs, 916 F.Sup.2d 670 (N.D. Mississippi 2012), is the applicable standard by which to review a claim under the Salamon decision by a petitioner who entered guilty pleas to the kidnapping charge.

In Scruggs, a case very similar procedurally to the present one, the petitioner filed a habeas petition to vacate and set aside his guilty pleas and convictions on three counts of aiding and abetting in “honest services” mail fraud, in violation of 18 U.S.C. §§ 2, 1341 and 1346, after a subsequent decision by the United States Supreme Court in Skilling v. United States, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), substantively narrowed the scope of the honest services mail fraud statute, § 1346, under which he had been convicted.⁷  The United States District Court applied the actual innocence standard to determine whether the petitioner demonstrated that he was actually innocent of the crime to which he pleaded guilty and, therefore, entitled to habeas relief.  United States v. Scruggs, supra, 916 F.Sup.2d 675–77.   The court stated the rule as follows:

“The actual innocence standard does not merely require a showing that a reasonable doubt exists in light of the new evidence, but rather that no reasonable juror would have found the defendant guilty ․ The standard is not satisfied where at least one juror, acting reasonably and properly instructed, would vote to convict the petitioner.

[A]ctual innocence means factual innocence, not mere legal insufficiency.   In other words, the Government is not limited to the existing record to rebut any showing that petitioner might make.   Rather ․ the Government should be permitted to present any admissible evidence of petitioner's guilt even if that evidence was not presented during petitioner's plea colloquy and would not normally have been offered ․ In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges.

(Citations omitted;  internal quotation marks omitted.)  Id., 676.  “A [court], in making its assessment of a petitioner's showing, is not bound by the rules of evidence that govern a trial[.]  The court makes its determination based on the total record, that is, all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under the rules of admissibility that would govern a trial.”   (Citations omitted;  internal quotation marks omitted.)  Id. “Based on the record, the court must make a probabilistic determination about what reasonable, properly instructed jurors would do.   The court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the new evidence on reasonable jurors ․ It must be presumed that a reasonable juror would consider fairly all of the evidence presented.   It must also be presumed that such juror would conscientiously obey the instructions of the trial court requiring proof beyond a reasonable doubt.   At the same time, though, the ․ standard does not require absolute certainty about the petitioner's guilt or innocence.   A petitioner does not meet the threshold requirement unless he persuades the [court] that, in light of all of the new evidence, no juror acting reasonably would have voted to find him guilty beyond a reasonable doubt.”  (Citations omitted;  internal quotation marks omitted.)  Id., 676–77.8

After reviewing the record in the present case, it is the conclusion of this court that the petitioner has failed to establish that he was “actually innocent” of the charge of kidnapping, as defined in Salamon, under the Scruggs test.   As discussed above, Salamon ruled that “to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than which is necessary to commit the other crime.”  State v. Salamon, supra, 287 Conn. 542.   Such intent is demonstrated by showing that “at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that had independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime ․” (Internal quotation marks omitted.)  State v. Hampton, supra, 293 Conn. 460.   Therefore, in order to prevail in the present case, the petitioner would need to establish the probability that not a single reasonable juror, properly instructed as to the elements of kidnapping under Salamon, would have voted to find him guilty of that charge had the case gone to trial.  U.S. v. Scruggs, supra, 960 F.Sup.2d 676.

In the present case, the petitioner entered a restaurant, grabbed the manager, spun the manager around, stuck a hard object into the manager's back, and stated that he had a gun and would shoot.   The defendant then ordered four other employees into the walk-in cooler and slammed the door shut.   The petitioner ordered the manager to lock the door.   When the door could not be locked, the petitioner slammed the door shut with the employees inside, and forced the manager into the office where he attempted to rob the restaurant's safe, leaving the four other employees shut up in the cooler.   These other employees remained closed up in that cooler until the manager returned to let them out, and estimated that they were held in the cooler for between three and ten minutes.   In State v. Jordan, 129 Conn.App. 215, 19 A.3d 241, cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011), our Appellate Court held that the trial court's failure to provide a Salamon jury instruction was harmless because the state offered sufficient evidence such that no reasonable jury could have concluded that the defendant's restraint of the victims was merely incidental to the other crimes of assault and sexual assault.   The court found that the evidence showed that that the defendant restricted his victims' movement to a greater degree than necessary to commit an assault because “as he targeted one victim, the other was not free to leave”;  id., 222;  and when he was not assaulting the victims, “he controlled their movement and prevented them from leaving.”  Id., 223.

Similarly, in the present case, the petitioner restricted the movement of the employees, restrained or incapacitated them, so to speak, he ordered into the walk-in cooler, while he committed crimes against the manager.   Importantly, none of these other employees was individually robbed, nor does the record reveal that they were otherwise the target of any criminal conduct requiring any element of force against them or restriction of their liberty.   While the petitioner walked the manager around the restaurant, these employees remained locked-up in that cooler area, unable to leave, until a fellow employee freed them.   Since the record does not reveal evidence of any independent criminal act being committed against the employees who were locked inside the cooler, all of the restraint or movement imposed upon them by the petitioner had independent significance separate and apart from the robbery and assault charges for which he was convicted.  Id. Thus, this court finds that there is a probability that at least one juror, properly instructed under Salamon and acting reasonably and conscientiously, would have voted to convict the petitioner of the kidnapping charges in the present case had it gone to trial.  U.S. v. Scruggs, supra, 960 F.Sup.2d 676.

Moreover, the petitioner was charged with first degree robbery in this case, a property crime that does not require proof that he physically restrained any of the victims.   See General Statutes § 53a–134.   This is another basis, therefore, to support the court's finding that all of the restraint against the employees who were locked in the cooler had independent significance apart from the robbery and assault charges.   See State v. Golder, supra, 127 Conn.App. 190–91, 14 A.3d 399, cert. denied, 301 Conn. 912, 19 A.3d 180 (2011);  Epps v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 06 4001167 (November 7, 2012, Newson, J.).   Furthermore, since a “kidnapping does not require a minimum time period of confinement;” State v. Jordan, supra, 129 Conn.App. 222;  the fact that the entire incident lasted for a maximum of approximately ten minutes is not dispositive here.

Again, based on all of the evidence available in the present case, the court finds that there is a probability that at least one reasonable juror, properly instructed under Salamon, could have concluded that the petitioner's restraint of the victims was not merely incidental to the robbery and voted to convict him at a trial.  U.S. v. Scruggs, supra, 960 F.Sup.2d 676.   As such, the petitioner's claim fails, because has failed to prove that he is “actually innocent” of the crime of kidnapping.  Id.

III. Conclusion

Based on the foregoing, the petition for writ of habeas corpus is DENIED.

If the either party wishes to appeal this ruling, then counsel shall prepare and submit a judgment file to the clerk within thirty (30) days.   Notwithstanding, 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. The statute provides the following in relevant part:General Statutes § 53a–134.   Robbery in the first degree:  Class B Felony.(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a–133 or of immediate flight therefrom, he or another participant in the crime ․ (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm..  FN1. The statute provides the following in relevant part:General Statutes § 53a–134.   Robbery in the first degree:  Class B Felony.(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a–133 or of immediate flight therefrom, he or another participant in the crime ․ (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

FN2. The statute provides the following in relevant part:General Statutes § 53a–60.   Assault in the second degree:  Class D Felony.(a) A person is guilty of assault in the second degree when ․ (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm ․.  FN2. The statute provides the following in relevant part:General Statutes § 53a–60.   Assault in the second degree:  Class D Felony.(a) A person is guilty of assault in the second degree when ․ (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm ․

FN3. The statute provides the following in relevant part:General Statutes § 53a–60.   Kidnapping in the first degree with a firearm:  Class A felony:  One year not suspendable.  [Effective until October 1, 2013](a) A person is guilty of kidnapping in the first degree with a firearm when he commits kidnapping in the first degree as provided in section 53a–92, and in the commission of said crime he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm.   No person shall be convicted of kidnapping in the first degree and kidnapping in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information..  FN3. The statute provides the following in relevant part:General Statutes § 53a–60.   Kidnapping in the first degree with a firearm:  Class A felony:  One year not suspendable.  [Effective until October 1, 2013](a) A person is guilty of kidnapping in the first degree with a firearm when he commits kidnapping in the first degree as provided in section 53a–92, and in the commission of said crime he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm.   No person shall be convicted of kidnapping in the first degree and kidnapping in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.

FN4. The special defenses that the petition is “successive” and that it is barred by the doctrine of res judicata are actually not separate special defenses.  Kearney v. Comm'r of Correction, 113 Conn.App. 223, 233–34, 965 A.2d 608, 615 (2009).   Instead, they are actually applications of the legal concept of issue preclusion.  Id. “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.   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. [This] narrowing of the application of the doctrine of res judicata to habeas proceedings is encapsulated in Practice Book § 23–29, which states:  ‘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 ․” Id. “[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 ․ Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated indifferent language ․ Simply put, [a]n applicant must ․ show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground (Citations omitted;  emphasis in original;  quotation marks omitted.)  Mejia v Commissioner of Correction, 98 Conn.App. 180, 189–90, 908 A.2d 581, 588 (2006).   Thus, use of the term “successive” is simply another way of describing the narrowed doctrine of res judicata as applied to habeas corpus proceedings.   Kearney v Commissioner of Correction, supra, 113 Conn.App. 233–34..  FN4. The special defenses that the petition is “successive” and that it is barred by the doctrine of res judicata are actually not separate special defenses.  Kearney v. Comm'r of Correction, 113 Conn.App. 223, 233–34, 965 A.2d 608, 615 (2009).   Instead, they are actually applications of the legal concept of issue preclusion.  Id. “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.   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. [This] narrowing of the application of the doctrine of res judicata to habeas proceedings is encapsulated in Practice Book § 23–29, which states:  ‘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 ․” Id. “[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 ․ Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated indifferent language ․ Simply put, [a]n applicant must ․ show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground (Citations omitted;  emphasis in original;  quotation marks omitted.)  Mejia v Commissioner of Correction, 98 Conn.App. 180, 189–90, 908 A.2d 581, 588 (2006).   Thus, use of the term “successive” is simply another way of describing the narrowed doctrine of res judicata as applied to habeas corpus proceedings.   Kearney v Commissioner of Correction, supra, 113 Conn.App. 233–34.

FN5. In this prior action, the relevant claim of ineffective assistance was that trial counsel “failed to assure Petitioner's guilty pleas were intelligently, knowingly and voluntarily made,” among other claims.   Barile v. Warden, supra, Judicial District of Hartford at Hartford..  FN5. In this prior action, the relevant claim of ineffective assistance was that trial counsel “failed to assure Petitioner's guilty pleas were intelligently, knowingly and voluntarily made,” among other claims.   Barile v. Warden, supra, Judicial District of Hartford at Hartford.

FN6. The rule has been stated as follows by our Supreme Court:  “A plea of guilty, when entered knowingly, voluntarily and on the advice of counsel, constitutes a waiver of all nonjurisdictional defenses ․ A guilty plea is not, however, a waiver of constitutional claims if it was involuntarily given as a result of a violation of an accused's fundamental constitutional rights ․ A plea of guilty cannot stand if it was rendered involuntary by a coerced confession ․ by a denial of the right to counsel ․ or by a fear that illegally seized evidence would be introduced at the trial ․The mere occurrence of a constitutional violation is not, however, sufficient to render a plea of guilty involuntary and thus susceptible to nullification in habeas corpus proceedings ․ So long as the guilty plea was voluntarily made, it will withstand a collateral attack despite the fact that some of the accused's constitutional rights were infringed ․ All of the circumstances surrounding the entry of the guilty plea in court should be considered in determining the voluntariness of the plea ․ The presence of counsel at the time when the plea of guilty was entered militates strongly against a conclusion that the plea was involuntary ․ The plea of guilty will ordinarily not be invalidated if, at the time of the plea, the prosecuting authorities had admissible evidence which was highly damaging to the accused.”  (Citations omitted.)  Williams v. Reincke, 157 Conn. 143, 147–49, 249 A.2d 252, 255–56 (1968)..  FN6. The rule has been stated as follows by our Supreme Court:  “A plea of guilty, when entered knowingly, voluntarily and on the advice of counsel, constitutes a waiver of all nonjurisdictional defenses ․ A guilty plea is not, however, a waiver of constitutional claims if it was involuntarily given as a result of a violation of an accused's fundamental constitutional rights ․ A plea of guilty cannot stand if it was rendered involuntary by a coerced confession ․ by a denial of the right to counsel ․ or by a fear that illegally seized evidence would be introduced at the trial ․The mere occurrence of a constitutional violation is not, however, sufficient to render a plea of guilty involuntary and thus susceptible to nullification in habeas corpus proceedings ․ So long as the guilty plea was voluntarily made, it will withstand a collateral attack despite the fact that some of the accused's constitutional rights were infringed ․ All of the circumstances surrounding the entry of the guilty plea in court should be considered in determining the voluntariness of the plea ․ The presence of counsel at the time when the plea of guilty was entered militates strongly against a conclusion that the plea was involuntary ․ The plea of guilty will ordinarily not be invalidated if, at the time of the plea, the prosecuting authorities had admissible evidence which was highly damaging to the accused.”  (Citations omitted.)  Williams v. Reincke, 157 Conn. 143, 147–49, 249 A.2d 252, 255–56 (1968).

FN7. Similar to our Salamon case, after a long discussion about the history of litigation on the meaning of § 1346 and the broad scope of conduct that had been determined to fall within its prohibitions, the Skilling court held:  “In view of this history, there is no doubt that Congress intended § 1346 to reach at least bribes and kickbacks.   Reading the statute to proscribe a wider range of offensive conduct, we acknowledge, would raise the due process concerns underlying the vagueness doctrine.   To preserve the statute without transgressing constitutional limitations, we now hold that § 1346 criminalizes only the bribe-and-kickback core of the pre-McNally case law.”  (Emphasis original.)   Skilling v. United States, 130 S.Ct. 2896, 2931, 177 L.Ed.2d 619 (2010)..  FN7. Similar to our Salamon case, after a long discussion about the history of litigation on the meaning of § 1346 and the broad scope of conduct that had been determined to fall within its prohibitions, the Skilling court held:  “In view of this history, there is no doubt that Congress intended § 1346 to reach at least bribes and kickbacks.   Reading the statute to proscribe a wider range of offensive conduct, we acknowledge, would raise the due process concerns underlying the vagueness doctrine.   To preserve the statute without transgressing constitutional limitations, we now hold that § 1346 criminalizes only the bribe-and-kickback core of the pre-McNally case law.”  (Emphasis original.)   Skilling v. United States, 130 S.Ct. 2896, 2931, 177 L.Ed.2d 619 (2010).

FN8. The Scruggs actual innocence standard applied to guilty plea cases is similar, but arguably distinctly different from the standard applied when a petitioner brings an actual innocence claim following a conviction after trial, which requires “newly discovered evidence” and “affirmative proof of innocence.”   Our Supreme Court has set forth the standard for a claim for habeas relief based on actual innocence as follows:  “First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted.   Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom ․ no reasonable fact finder would find the petitioner guilty.”  Miller v. Commissioner of Correction, 242 Conn. 745, 791–92, 700 A.2d 1108 (1997);  Id., 800.“[T]he clear and convincing evidence standard should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory ․ [T]he clear and convincing burden [is an] extraordinarily high and truly persuasive [demonstration] of actual innocence ․ one in which the petitioner must unquestionably establish [his] innocence ․ [T]ruly persuasive demonstrations of actual innocence after conviction in a fair trial have been, and are likely to remain, extremely rare ․ Actual innocence, also referred to as factual innocence ․ is different than legal innocence.   Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt.”   (Citations omitted, internal quotation marks omitted.)  Gould v Commissioner of Correction, 301 Conn. 544, 560–61, 22 A.3d 1196 (2011).   “Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime.”  Id., 561.  “Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third-party committed the crime or that no crime actually occurred.  (Italics in original.)  Id., 563.  “Clear and convincing proof of actual innocence does not, however, require the petitioner to establish that his or her guilt is a factual impossibility.”  Id., 564.  “Recantations of inculpatory criminal trial testimony undoubtedly are relevant to a determination of actual innocence.   But evidence of that nature must be accompanied by affirmative evidence of innocence to meet Miller 's standard of clear and convincing evidence of actual innocence.”  (Italics in original.)  Id., 564.“[O]ur Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence ․ [Our Appellate Court], nevertheless, has held that a claim of actual innocence must be based on newly discovered evidence ․ [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered ․ This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence.”  Corbett v. Commissioner of Correction, 133 Conn.App. 310, 315, 34 A.3d 1046 (2012)..  FN8. The Scruggs actual innocence standard applied to guilty plea cases is similar, but arguably distinctly different from the standard applied when a petitioner brings an actual innocence claim following a conviction after trial, which requires “newly discovered evidence” and “affirmative proof of innocence.”   Our Supreme Court has set forth the standard for a claim for habeas relief based on actual innocence as follows:  “First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted.   Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom ․ no reasonable fact finder would find the petitioner guilty.”  Miller v. Commissioner of Correction, 242 Conn. 745, 791–92, 700 A.2d 1108 (1997);  Id., 800.“[T]he clear and convincing evidence standard should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory ․ [T]he clear and convincing burden [is an] extraordinarily high and truly persuasive [demonstration] of actual innocence ․ one in which the petitioner must unquestionably establish [his] innocence ․ [T]ruly persuasive demonstrations of actual innocence after conviction in a fair trial have been, and are likely to remain, extremely rare ․ Actual innocence, also referred to as factual innocence ․ is different than legal innocence.   Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt.”   (Citations omitted, internal quotation marks omitted.)  Gould v Commissioner of Correction, 301 Conn. 544, 560–61, 22 A.3d 1196 (2011).   “Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime.”  Id., 561.  “Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third-party committed the crime or that no crime actually occurred.  (Italics in original.)  Id., 563.  “Clear and convincing proof of actual innocence does not, however, require the petitioner to establish that his or her guilt is a factual impossibility.”  Id., 564.  “Recantations of inculpatory criminal trial testimony undoubtedly are relevant to a determination of actual innocence.   But evidence of that nature must be accompanied by affirmative evidence of innocence to meet Miller 's standard of clear and convincing evidence of actual innocence.”  (Italics in original.)  Id., 564.“[O]ur Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence ․ [Our Appellate Court], nevertheless, has held that a claim of actual innocence must be based on newly discovered evidence ․ [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered ․ This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence.”  Corbett v. Commissioner of Correction, 133 Conn.App. 310, 315, 34 A.3d 1046 (2012).

Newson, John M., J.