231451 v. Warden (2013)

MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS

The petitioner initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on April 11, 2012, and amended on July 23, 2012.   The petitioner requested that counsel not be appointed and, therefore, he has continued to represent himself.   The amended petition challenges the petitioner's convictions for murder and raises claims in three counts:  1) ineffective assistance by trial defense counsel, Attorney Joseph S. Elder;  2) violation of the petitioner's right to due process as a result of the claims in count one;  and 3) violation of the petitioner's right to due process because neither the court, the clerk nor Attorney Elder informed him of his right to sentence review.   As relief the petitioner requests, inter alia, the restoration of both his right to a direct appeal and to sentence review.

On March 15, 2013, the respondent filed a return denying the claims of ineffective assistance in counts one through three, as well as asserting that the petitioner cannot obtain review of his claims in count three premised on errors by the trial court or the clerk because the petitioner has procedurally defaulted as to those alleged errors.   The petitioner filed a reply on March 25, 2013, and alleged ineffective assistance of counsel as the cause and prejudice for the procedural default.   The petitioner also filed on March 25, 2013, a certificate of closed pleadings.

The respondent subsequently filed a motion to dismiss, supported by a memorandum of law and copies of prior habeas court decisions involving the petitioner, asking the court to dismiss count one premised on abuse of the writ.   Additionally, the motion to dismiss asks the court to dismiss counts two and three because they are procedurally defaulted and the petitioner has failed to allege cause and prejudice sufficient to excuse the procedural default.   The petitioner filed an objection to the motion to dismiss supported by a memorandum of law.   The matter came before the court on October 8, 2013, for the parties' arguments on the motion to dismiss and objection thereto.

For the reasons articulated more fully below, the motion to dismiss is granted.

DISCUSSION

I. Motion to dismiss standard

“ ‘The standard of review of a motion to dismiss is ․ well established.   In ruling upon whether a complaint survives 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 ․ The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review ․ Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct ․ and whether they find support in the facts in the record ․

“ ‘It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action ․ The principle that a plaintiff may rely only upon what he has alleged is basic ․ It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.’   (Citation omitted;  internal quotation marks omitted.)  Abdullah v. Commissioner of Correction, [123 Conn.App. 197, 201–02, 1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010).”

“ ‘Our Supreme Court has stated that [i]n our case law, we have recognized only one situation in which a court is not legally required to hear a habeas petition.  Negron v. Warden, [180 Conn. 153, 158, 429 A.2d 841 (1980) ], we observed that, pursuant to Practice Book § [23–29], [i]f a previous application brought on the same grounds ¹ was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing.   We emphasized the narrowness of our construction of Practice Book § [23–29] by holding that dismissal of a second habeas petition without an evidentiary hearing is improper if the petitioner either raises new claims or offers new facts or evidence ․ Negron therefore strengthens the presumption that, absent an explicit exception, an evidentiary hearing is always required before a habeas petition may be dismissed ․ [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;  internal quotation marks omitted.)  Carter v. Commissioner of Correction, [109 Conn.App. 300, 305–06, 950 A.2d 619 (2008) ].

“ ‘Under federal and state constitutional law, a determination of whether a hearing on the merits is required on a successive habeas application is within the sound discretion of the court ․ On appeal, the petitioner bears the two tiered burden of demonstrating that the habeas court abused its broad discretion, and thereby created a miscarriage of justice beyond a mere error that might have entitled him to relief on direct appeal.’  (Citations omitted;  internal quotation marks omitted.)  Tirado v. Commissioner of Correction, 24 Conn App. 152, 155–56, 586 A.2d 625 (1991).  ‘An applicant must, in other words, show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground.  Williams v. United States, 731 F.2d 138, 141 (2d Cir.1984).’  Iasiello v. Manson, [12 Conn.App. 268, 272, 530 A.2d 1075 (prior and present petitions alleged petitioner's guilty pleas were involuntary;  only factual bases changed), cert. denied, 205 Conn. 811, 532 A.2d 586 (1987) ].”  (Footnote renumbered.)   Zollo v. Commissioner of Correction, 133 Conn.App. 266, 276–78, 35 A.3d 337, cert. granted on other grounds, 304 Conn. 910, 39 A.3d 1120 (2012).²

II. Count one—ineffective assistance of trial counsel

The petitioner alleges in count one that Attorney Elder rendered deficient performance in numerous ways.   Thus, the petitioner alleges that Attorney Elder:  did not adequately and effectively consult with or advise the petitioner concerning the merits of either entering a plea of guilty or proceeding to trial;  did not adequately and effectively consult with or advise the petitioner concerning the terms and consequences of a potential guilty plea to the charge of murder;  did not advise the petitioner that, pursuant to General Statutes § 54–125a(b)(1), he would ineligible for parole following a guilty plea to the charge of murder;  told the petitioner that he would become parole eligible following a guilty plea to the charge of murder;  advised the petitioner that should he strive to rehabilitate himself while incarcerated in order to obtain consideration from the Board of Parole;  told the petitioner that he would be parole eligible following his guilty plea;  and did not inform the petitioner that he could appeal from his guilty plea conviction.   The petitioner further alleges that but for these purported deficiencies that induced his guilty plea, he would have appealed his conviction.   The only issue identified by the petitioner as a non-frivolous issue to raise on appeal is that he was induced to plead guilty by counsel's indication that he would be parole eligible.

The petitioner acknowledges that he twice has previously sought habeas corpus relief.   First, in docket number CV98–0585938, judicial district of Hartford, where he challenged his guilty plea premised on ineffective assistance of counsel (first habeas).   Second, in docket number CV05–4000697, judicial district of Tolland, where he alleged ineffective assistance of counsel in the first habeas (second habeas).   Both petitions were denied and the appeals therefrom were unsuccessful.  Braham v. Commissioner of Correction, 72 Conn.App. 1, 804 A.2d 951, cert. denied, 262 Conn. 906, 810 A.2d 271 (2002);  Braham v. Commissioner of Correction, 132 Conn.App. 57, 31 A.3d 71 (2011) (per curiam), cert. denied, 303 Conn. 939, 37 A.3d 153 (2012).

After summarizing the underlying facts, which need not be restated,³ the Appellate Court noted that “[o]n July 2, 1996, the petitioner was charged with murder in violation of General Statutes § 53a–54a ․ The state filed a part B information on August 25, 1997, charging the petitioner with commission of a class A, B or C felony with a firearm in violation of General Statutes § 53–202k ․ Attorney Joseph S. Elder represented the petitioner on all charges.   He met with and telephoned the petitioner on numerous occasions during the course of his representation.

“On January 22, 1998, the petitioner entered a guilty plea under the Alford doctrine ⁴ to the charge of murder.   The trial court accepted the plea as knowingly and voluntarily made and sentenced the petitioner to a term of thirty-two years incarceration pursuant to a plea agreement.   On June 29, 2000, the petitioner filed an amended petition for a writ of habeas corpus.   The habeas court dismissed the petition and granted certification to appeal.”   (Footnotes omitted and renumbered.)  Braham v. Commissioner of Correction, supra, 72 Conn.App. 3–4.

On appeal from the first habeas court's decision the petitioner claimed “that the court improperly concluded that (1) he had effective assistance of counsel, and (2) his guilty plea was knowingly, intelligently and voluntarily made.”   Id., pg. 2. The Appellate Court affirmed the judgment of the first habeas court.  Id. Most importantly, the petitioner “argue[d on appeal] ․ that Elder's representation was deficient in that he allegedly informed the petitioner that he would be eligible for parole after serving 50 percent of his sentence when, in fact, there is no parole eligibility for murder.”  Id., pg. 5.

“During the habeas trial, the petitioner testified that Elder had informed him that he would be eligible for parole on the thirty-two year plea offer after serving 50 percent of the sentence and that he had relied on that representation in deciding to plead guilty.⁵  The petitioner also cite[d] to a portion of the January 22, 1998 sentencing transcript to support his claim.   He cite[d] Elder's statement to the trial court:  ‘And I've encouraged [the petitioner] to look at some other options, like pardon, board of parole board.   But I've explained to him that he's going to really do some hard work in terms of rehabilitating himself and changing his life around while incarcerated if he wants to get some consideration later down the road.’   Elder denied that he ever told petitioner that he would have to, serve only sixteen years of the agreed thirty-two year sentence.

“The conflicting testimony of the petitioner and Elder required the habeas court to determine the credibility of' each witness.   The court is the sole determiner of the credibility of witnesses and the weight to be given to the testimony of each witness.  Johnson v. Commissioner of Correction, 166 Conn.App. 850, 851, 785 A.2d 1225 (2001).  [The Appellate Court] conclude[d] that the court properly found that Elder's representation was not deficient when it credited his testimony that he did not improperly advise the petitioner concerning parole eligibility.  [The Appellate Court did] not find that the court's finding was clearly erroneous.   Therefore, the petitioner [could not] succeed in his argument that he was misinformed about his parole eligibility.”  (Footnote renumbered.)  Braham v. Commissioner of Correction, supra, 72 Conn.App. 10–11.

“Following the first unsuccessful habeas proceeding and appeal, the petitioner filed a second petition for a writ of habeas corpus.   In his second revised amended petition, filed on November 17, 2006, the petitioner alleged that he had received ineffective assistance of counsel from his prior habeas trial and appellate counsel, attorney Judith M. Wildfeur.   As stated by the second habeas court, ‘[t]he claim of ineffective assistance of counsel essentially complains that ․ Wildfeur was ineffective in her representation before the initial habeas court and on appeal by not pursuing a claim against the [criminal trial counsel, attorney Joseph S. Elder] that he unduly pressured the petitioner to accept a plea bargain and that he failed to properly advise the petitioner regarding his “intoxication defense” relative to his decision to plead guilty to murder.’

“In its memorandum of decision, the court concluded that the petitioner had ‘enjoyed the representation of a competent counsel and [that] the court has found that his plea of guilty [was] knowing, intelligent and voluntary.’   Accordingly, it denied the petition for a writ of habeas corpus.   On September 9, 2009, the court granted the petition for certification to appeal from the denial of the petition for writ of habeas corpus.”  Braham v. Commissioner of Correction, supra, 132 Conn.App. 60.

As to claims on appeal that the second habeas court improperly resolved the claims of ineffective assistance of prior habeas and appellate counsel, the Appellate Court indicated that “[t]he petitioner present[ed] several arguments regarding the alleged deficiencies in the memorandum of decision.  [The Appellate Court] thoroughly ha[d] reviewed this decision.  [The Appellate Court] conclude[d] that the habeas court carefully considered, addressed and resolved the issues set forth in the petition for a writ of habeas corpus.   The court properly denied the petition, and [the Appellate Court was] not persuaded by the petitioner's claims on appeal.”  Id., pg. 62.

To summarize the foregoing, the petitioner has previously raised a claim of ineffective assistance by trial counsel.   The claim was decided adversely to the petitioner and he both unsuccessfully appealed the first habeas court's decision and challenged in a second habeas the representation by the attorney in his first habeas.   The legal ground, ineffective assistance of trial counsel, is identical.   The petitioner's factual allegations are ones that could have been previously alleged and not based on new facts or newly discovered evidence not available at the time of the prior habeases.   The present claim is no more than a mere verbal reformulation of the same legal ground previously raised and decided adversely to the petitioner.

The court concludes, based upon the foregoing, that the claim in count one must be dismissed.   The claim of ineffective assistance of trial counsel is successive and not supported by allegations and facts not reasonably available to the petitioner at the time of prior habeas corpus petitions.  Carter v. Commissioner of Correction, supra, 109 Conn.App. 305–06.   Accordingly, count one is dismissed in accordance with Practice Book § 23–29(3).

III. Count two—due process premised on ineffective assistance of trial counsel

The petitioner's second count alleges a due process violation premised on the identical grounds asserted in count one.   For the reasons already articulated as to count one, count two is also dismissed in accordance with Practice Book § 23–29(3).

IV. Count three—failures to be informed of right to sentence review

The petitioner's third and final count alleges that the trial court, clerk and counsel failed to inform him of his right to sentence review.  General Statutes § 51–195 in relevant part states that:  “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court's acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division ․”

The petitioner was sentenced to a term of thirty-two years in accordance with the terms of a plea agreement.   Thus, the petitioner did not, and does not, have a statutory right to sentence review and neither the court, the clerk nor Attorney Elder had an obligation to inform the petitioner of his right to sentence review, as such statutory right was non-existent.   The court concludes that the petitioner's claim in count three fails to state a claim upon which habeas corpus relief can be granted as the petitioner had no statutory right to sentence review.   The claim in count three, therefore, is dismissed in accordance with Practice Book § 23–29(2) and (5).

CONCLUSION

The respondent's motion to dismiss is granted for the foregoing reasons.   Counts one, two and three are dismissed.   Judgment shall enter dismissing the petition for a writ of habeas corpus.

It is so ordered.

Kwak, J.

Judge of Superior Court

FOOTNOTES

FN1. “The United States Supreme Court has stated that ‘[b]y ground, we mean simply a sufficient legal basis for granting the relief sought by the applicant.   For example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief.   But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different ground than does one predicated on alleged physical coercion.   In other words, identical grounds may often be proved by different factual allegations.   So also, identical grounds may often be supported by different legal arguments ․ or be couched in different language ․ or vary in immaterial respects ․’ (Citations omitted;  internal quotation marks omitted.)   Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).”.  FN1. “The United States Supreme Court has stated that ‘[b]y ground, we mean simply a sufficient legal basis for granting the relief sought by the applicant.   For example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief.   But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different ground than does one predicated on alleged physical coercion.   In other words, identical grounds may often be proved by different factual allegations.   So also, identical grounds may often be supported by different legal arguments ․ or be couched in different language ․ or vary in immaterial respects ․’ (Citations omitted;  internal quotation marks omitted.)   Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).”

FN2. The Supreme Court granted certification limited to the following:  “Did the Appellate Court properly affirm the dismissal of the petitioner's second habeas petition as successive, where it is argued by the petitioner that a fact that was first discovered during the initial habeas proceeding constituted new evidence sufficient to support the second petition?”.  FN2. The Supreme Court granted certification limited to the following:  “Did the Appellate Court properly affirm the dismissal of the petitioner's second habeas petition as successive, where it is argued by the petitioner that a fact that was first discovered during the initial habeas proceeding constituted new evidence sufficient to support the second petition?”

FN3. These facts in support of the petitioner's guilty plea and conviction are summarized by the Appellate Court in Braham v. Commissioner of Correction, 72 Conn.App. 1, 2–4, 804 A.2d 951, cert. denied, 262 Conn. 906, 810 A.2d 271 (2002)..  FN3. These facts in support of the petitioner's guilty plea and conviction are summarized by the Appellate Court in Braham v. Commissioner of Correction, 72 Conn.App. 1, 2–4, 804 A.2d 951, cert. denied, 262 Conn. 906, 810 A.2d 271 (2002).

FN4. “See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).”.  FN4. “See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).”

FN5. “General Statutes § 54–125a(b)(1) provides that there is no eligibility for parole on a murder conviction.”.  FN5. “General Statutes § 54–125a(b)(1) provides that there is no eligibility for parole on a murder conviction.”

Kwak, Hunchu, J.