224797 v. Warden (2013)

MEMORANDUM OF DECISION ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

The petitioner initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on April 27, 2011, and amended by assigned counsel on April 9, 2013.   The amended petition challenges the petitioner's convictions for murder and conspiracy to commit murder and raises claims in four counts:  1) ineffective assistance by trial defense counsel;  2) ineffective assistance by prior habeas counsel;  3) trial court errors;  and 4) prosecutorial impropriety.   On May 2, 2013, the respondent filed a return denying the petitioner's claims and that he is entitled to habeas corpus relief.   The return also raises as affirmative defenses, as identified more specifically in the return, that the petitioner is procedurally defaulted and is barred from litigating certain claims as a result of abuse of the writ, res judicata and/or collateral estoppel.   The petitioner filed a reply to the return and denied the defenses raised by the respondent's return and alleged ineffective assistance of counsel as the cause and prejudice to rebut procedural default.

On June 25, 2013, the respondent in accordance with Practice Book § 23–37 filed a motion for summary judgment, supported by a memorandum of law with attached appendices A–H, as to counts one, three and four of the amended petition.   On July 8, 2013, the petitioner filed an objection to the motion for summary judgment.   Thereafter the parties appeared before the court on July 24 and 25, 2013, for a trial on the merits, at which time the court heard the parties' arguments on the motion for summary judgment and the objection thereto before proceeding with the trial on the merits.   For the reasons articulated more fully below, the motion for summary judgment is GRANTED.

DISCUSSION

I. Summary judgment standard

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  Rogers v. Commissioner of Correction, 143 Conn.App. 206, 210 (2013), citing and quoting Bridgeport v. White Eagle's Society of Brotherly Help, Inc., 140 Conn.App. 663, 667–68, 59 A.3d 859 (2013).

“Although decisional law suggests that a habeas petitioner is entitled to present evidence on new claims;  see Mitchell v. Commissioner of Correction, 93 Conn.App. 719, 725–26, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006)[,] ․ that general proposition cannot be interpreted reasonably as meaning that the court must afford a petitioner an evidentiary hearing when the record plainly shows no genuine issue of material fact and the application of the law requires no evidentiary exposition.   To conclude otherwise would be to eviscerate Practice Book § 23–37,¹ which, as noted, provides that the habeas court may grant summary judgment upon its determination that no genuine issue of material fact exists so as to entitle the petitioner to a trial ․” (Footnote omitted.)  Lawrence v. Commissioner of Correction, 125 Conn.App. 759, 762, 9 A.2d 772 (2010), cert. denied, 300 Conn. 936, 17 A.3d 474 (2011) (affirming granting of summary judgment where petitioner could not show prejudice in a claim of ineffective assistance of counsel).

“ ‘A material fact is a fact that will make a difference in the result of the case ․ The facts at issue are those alleged in the pleadings ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The test is whether a party would be entitled to a directed verdict on the same facts ․ A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.’  (Citations omitted;  internal quotation marks omitted.)  Lunn v. Cummings & Lockwood, 56 Conn.App. 363, 370, 743 A.2d 653 (2000).”   Washington v. Blackmore, 119 Conn.App. 218, 220–21 (2010).

II. Count one—ineffective assistance of trial counsel

The petitioner alleges in count one that Attorney John Williams rendered deficient performance in multiple ways as trial defense counsel.   The following paragraphs in count one allege failures and deficient performance:  24) effectively review transcripts of a co-defendant's trial;  26) consult with experts and present expert testimony;  27) present available witnesses and evidence in support of the defense;  28) adequately investigate the factual bases for impeaching prosecution witnesses;  29) present available witnesses and evidence to impeach prosecution witnesses;  30) adequately investigate the factual basis concerning the defense version of the underlying incident;  31) take adequate precautions to avoid the introduction of evidence prejudicial to the petitioner;  32) adequately investigate the law as it related to the petitioner's case;  33) negotiate an adequate offer and convey and advise the petitioner thereof;  34) file certain motions during the proceedings;  35) adequately present the petitioner's defense;  36) adequately advise the petitioner concerning his defense;  and 37) object to numerous improper comments made by the prosecutor during closing arguments.

The respondent seeks summary judgment as to the entirety of count one because the petitioner previously alleged ineffective assistance by Attorney Williams in a prior habeas corpus petition.   The respondent argues that the claim in count one is barred because the present petition is successive and an abuse of the writ.   The respondent cites to and relies on, among other cases, McClendon v. Commissioner of Correction, 93 Conn.App. 228, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006) (habeas court properly granted motion to dismiss successive claim of ineffective assistance of counsel claim that sought the same relief as a prior petition), as authority to dispose of the claim in count one.

“ ‘[T]he fact that both petitions [are] based on the legal ground that the petitioner was denied the effective assistance of counsel in his criminal trial alone is not fatal to the petitioner's second petition ․ But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.’  (Citation omitted.)  McClendon v. Commissioner of Correction, supra, 231.”  Maldonado v. Commissioner of Correction, 141 Conn.App. 455, 462, 62 A.3d 528, cert. denied, 308 Conn. 941 (2013).

“ ‘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.’   (Citations omitted.)  James L. v. Commissioner of Correction, 245 Conn. 132, 141, 712 A.2d 947 (1998).   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.’  (Internal quotation marks omitted.)   Myers v. Commissioner of Correction, 111 Conn.App. 405, 410, 959 A.2d 646 (2008).”  Carter v. Commissioner of Correction, 133 Conn.App. 387, 393–94, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012).

In Bova v. Warden, Superior Court, judicial district of New Haven, Docket No. CV–99–0423653–S (Sept. 1, 2004), the petitioner raised a single claim of ineffective assistance by Attorney Williams (first habeas).   The second amended petition allege[d] that Mr. Williams was ineffective because he “failed to adequately protect petitioner's right to an impartial jury,” and that he “failed to adequately protect petitioner's trial rights when it became apparent the jury was deliberating before the close of all evidence.” ²  After a trial at which neither the petitioner nor the respondent presented testimony but, instead, relied exclusively on documentary evidence, the habeas court denied the ineffective assistance of counsel claim for the reasons articulated in its memorandum of decision and dismissed the petition.   Following the granting of the petition for certification to appeal, the petitioner appealed from the judgment of the first habeas court.   In Bova v. Commissioner of Correction, 95 Conn.App. 129, cert. denied, 278 Conn. 920 (2006), the Appellate Court affirmed the judgment of the habeas court.

The petitioner has previously litigated a claim of ineffective assistance by Attorney Williams in his capacity as trial defense counsel.   The operative petition in the first habeas shows that the petitioner sought to have his conviction and sentence vacated and to have the criminal case remanded back to the trial court for further proceedings.   The petitioner again seeks precisely such relief in the present petition.   Furthermore, the present allegations and facts are ones that were reasonably available to the petitioner at the time of the original petition.  McClendon v. Commissioner of Correction, supra, 231.

Based upon the foregoing discussion, summary judgment is granted as to the claim in count one.   The claim alleging ineffective assistance of trial counsel is dismissed in accordance with Practice Book § 23–29(3).

III. Count three—trial court errors

The petitioner alleges in count three of the amended petition that the trial court committed certain errors.   Specifically, count three makes the following allegations:  56) the trial court erred in finding a sufficient basis for a conspiracy in the petitioner's case while finding in essence there was no sufficient basis for a conspiracy in the only other co-defendant's case;  and 59) the trial court erroneously charged the jury.   The respondent correctly notes that count one also alleged several trial court errors, though those allegations formed the factual predicate for then raising purported errors by defense counsel.   The court will restrict its discussion to the separately alleged trial court errors in count three.   The respondent seeks summary judgment as to count three because the petitioner has procedurally defaulted on these claims by not raising them on direct appeal from the criminal conviction, where claims of trial court error should be raised in the first instance.³

“ ‘Generally, [t]he appropriate standard for reviewability of habeas claims that were not properly raised at trial ․ or on direct appeal ․ because of a procedural default is the cause and prejudice standard.   Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ․ [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance ․ Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice ․ Because [c]ause and prejudice must be established conjunctively, [a court] may dispose of this claim if the petitioner fails to meet either prong.’   (Citations omitted;  internal quotation marks omitted.)  Zabian v. Commissioner of Correction, [115 Conn.App. 144, 152, 971 A.2d 822 (2009) ].”   Chaparro v. Commissioner of Correction, 120 Conn.App. 41, 48, 990 A.2d 1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010) (affirming habeas court's granting of summary judgment premised on respondent's assertion the petitioner had procedurally defaulted).

The proper forum for the petitioner to have raised claims of trial court error was his direct appeal.   The Supreme Court's decision in the petitioner's direct appeal shows that all five claims raised alleged trial court error.  State v. Bova, 240 Conn. 210, 213, 690 A.2d 1370 (1997).   The petitioner is procedurally defaulted from now alleging additional trial court errors in this, his second, habeas corpus petition.   See Chaparro v. Commissioner of Correction, supra, 120 Conn.App. 48.   Summary judgment is granted as to the claims in count three.   Count three is dismissed in accordance with Practice Book § 23–29(5).

IV. Count four—prosecutorial misconduct/impropriety

The petitioner raised several claims of prosecutorial misconduct/impropriety in count four, although the claims in paragraphs 60), which was incorporated by reference, and 66) were withdrawn by the petitioner on July 24, 2013.   The sole remaining allegation of prosecutorial misconduct/impropriety is in paragraph 65), which is that the prosecution made inappropriate comments during closing argument.   The respondent seeks summary judgment premised on procedural default and res judicata.⁴

The petitioner's fourth claim in his direct appeal was that the trial court erred by overruling defense counsel's objections to allegedly inflammatory comments made by the prosecutor during closing arguments.  State v. Bova, supra, 240 Conn. 213.   The Supreme Court addressed this claim and concluded that the petitioner was not “․ entitled to a new trial due to the state's alleged improper remarks during its closing arguments.”  Id., 241–45.   The petitioner has previously raised the same claim and is barred under res judicata from relitigating the same claim.   Therefore, summary judgment shall be granted as to count four.   Count four also is dismissed in accordance with Practice Book § 23–29(5).

CONCLUSION

The respondent's motion for summary judgment is granted for the foregoing reasons.   Counts one, three and four are dismissed, leaving only count two (ineffective assistance of prior habeas counsel).   In accordance with this court's July 25, 2013 order, the petitioner's post-trial brief is due no later than forty-five days from the date of this decision (i.e., Monday, October 28, 2013), and the respondent's post-trial brief is due no later than thirty days after the petitioner's brief is filed.

It is so ordered.

Kwak, J.

Superior Court Judge

FOOTNOTES

FN1. Practice Book § 23–37 provides that:  “At any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law.”.  FN1. Practice Book § 23–37 provides that:  “At any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law.”

FN2. A copy of the second amended petition from the first habeas is contained within petitioner's exhibit 10..  FN2. A copy of the second amended petition from the first habeas is contained within petitioner's exhibit 10.

FN3. The respondent also asserted procedural default as an affirmative defense in the return.   The petitioner's reply to the return asserts ineffective assistance of prior counsel as the cause and prejudice for the procedural default..  FN3. The respondent also asserted procedural default as an affirmative defense in the return.   The petitioner's reply to the return asserts ineffective assistance of prior counsel as the cause and prejudice for the procedural default.

FN4. These two bases are mostly diametrically opposed.   Procedural default may preclude a party from raising a claim because it was not previously raised when it should have been;  res judicata may preclude a party from raising a claim that was previously raised and decided, although it potentially can include claims that could have been raised but were not.   “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.”   (Internal quotation marks omitted.)  Diaz v. Commissioner of Correction, 125 Conn.App. 57, 63–64, 6 A.3d 213 (2010), cert. denied, 299 Conn 926, 11 A.3d 150 (2011)..  FN4. These two bases are mostly diametrically opposed.   Procedural default may preclude a party from raising a claim because it was not previously raised when it should have been;  res judicata may preclude a party from raising a claim that was previously raised and decided, although it potentially can include claims that could have been raised but were not.   “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.”   (Internal quotation marks omitted.)  Diaz v. Commissioner of Correction, 125 Conn.App. 57, 63–64, 6 A.3d 213 (2010), cert. denied, 299 Conn 926, 11 A.3d 150 (2011).

Kwak, Hunchu, J.