Brewer v. Comm'r of Corr.

JOHN BREWER v. COMMISSIONER OF CORRECTION

AC 36746

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued October 22, 2015

December 22, 2015

Gruendel, Alvord and West, Js.

(Appeal from Superior Court, judicial district of Tolland, Kwak, J.)

Elio C. C. Morgan, assigned counsel, for the appellant (petitioner).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).

Opinion

ALVORD, J. The petitioner, John Brewer, appeals from the judgment of the habeas court dismissing three counts of his petition for a writ of habeas corpus and denying certification to appeal from that decision. On appeal, the petitioner claims that the habeas court (1) abused its discretion by denying his petition for certification to appeal and (2) violated his due process rights guaranteed under the Connecticut and United States constitutions by dismissing his claims without an evidentiary hearing.¹ We dismiss in part and reverse in part the judgment of the habeas court.

The petitioner's incarceration is a result of his 2004 convictions of murder in violation of General Statutes § 53a-54a (a) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). He received a total effective sentence of sixty years in prison. In 2007, the Connecticut Supreme Court affirmed his conviction. State v. Brewer, 283 Conn. 352, 353, 927 A.2d 825 (2007).

The petitioner filed his first petition for a writ of habeas corpus in 2006 and amended it in 2009. The petitioner argued that his trial counsel had been ineffective. Specifically, he claimed that counsel: had not presented an alibi defense; requested, without the petitioner's permission, that the court instruct the jury on a lesser included offense; and had not entered letters into evidence that allegedly showed a state's witness had agreed to testify favorably in exchange for consideration in his own criminal case. The habeas court, Fuger, J., denied the petition for a writ of habeas corpus and also denied certification for appeal. This court dismissed the petitioner's appeal of the habeas court's judgment. Brewer v. Commissioner of Correction, 133 Conn. App. 904, 34 A.3d 480, cert. denied, 304 Conn. 910, 39 A.3d 1121 (2012).

In 2010, the petitioner filed his second petition for a writ of habeas corpus, and later amended that petition in June, 2013. The amended petition raised four counts: (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, (3) prosecutorial impropriety, and (4) ineffective assistance of prior habeas counsel. On September 9, 2013, the habeas court, Kwak, J., conducted a habeas trial. The court dismissed counts one and four, ineffective assistance of trial counsel and ineffective assistance of prior habeas counsel, on two grounds: failure to state a claim upon which habeas relief could be granted in accordance with Practice Book § 23-29 (2) and res judicata in that the claim and underlying principles raised were litigated previously with adverse final judgments. Count three, prosecutorial impropriety, was also dismissed for a failure to comply with Practice Book § 23-29 (2) as well as procedural default per Practice Book § 23-31 (a). On the second count, ineffective assistance of appellate counsel, the habeas court held an evidentiary hearing and denied the petition. Following the hearing, the habeas court denied the petitioner's petition for certification to appeal. This appeal of the habeas court's judgment on the second habeas petition followed.

The petitioner claims that the habeas court abused its discretion by denying his petition for certification to appeal. The petitioner argues that the habeas court erred by dismissing his claims of ineffective assistance of trial counsel, prosecutorial impropriety, and ineffective assistance of first habeas counsel.² We conclude that the habeas court properly dismissed the claims of ineffective assistance of trial counsel and prosecutorial impropriety. The respondent, the Commissioner of Correction, concedes and we agree that the habeas court erred by denying the petitioner an evidentiary hearing on his claim that prior habeas counsel was ineffective for not raising the claim of ineffective assistance of trial counsel.

"We begin by setting forth the applicable standard of review and procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court's denial of the habeas petition following denial of certification to appeal. In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that . . . [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615-16, 646 A.2d 126 (1994), [our Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits. . . . In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous." (Emphasis in original; internal quotation marks omitted.) Atkins v. Commissioner of Correction, 158 Conn. App. 669, 674-75, 120 A.3d 513, cert. denied, 319 Conn. 932, A.3d (2015).

"The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . . To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . . [A] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 114 Conn. App. 778, 784, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).

I

First we address the petitioner's claim of ineffective assistance of trial counsel. The habeas court dismissed this claim under the doctrine of res judicata.³ To determine whether the habeas court's denial of certification to appeal was an abuse of discretion, we must review the petitioner's underlying claim of ineffective assistance of trial counsel. Kearney v. Commissioner of Correction, 113 Conn. App. 223, 228, 965 A.2d 608 (2009). "To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy two requirements. First, the [petitioner] must show that counsel's performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . . A reviewing court need not address both components of the inquiry if the [petitioner] makes an insufficient showing on one." (Internal quotation marks omitted.) Talton v. Commissioner of Correction, 155 Conn. App. 234, 240, 110 A.3d 434 (2015).

The doctrine of res judicata applies to habeas corpus proceedings that include constitutional claims as long as the claims have been previously raised and litigated. Pierce v. Commissioner of Correction, 158 Conn. App. 288, 307, 118 A.3d 640 (2015). "The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel . . . is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered." (Internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 161 Conn. App. 253, 266, A.3d (2015).

Practice Book § 23-29 adopts this concept by authorizing the habeas court to dismiss claims that have been previously litigated even though the claims are supported by a different set of facts.⁴ "[A] petitioner may bring successive petitions on the same legal grounds if the...