Carter v. Comm'r of Corr.

203 Conn.App. 794

249 A.3d 749

Anthony CARTER

v.COMMISSIONER OF CORRECTION

AC 43372

Appellate Court of Connecticut.

Argued January 11, 2021

Officially released April 13, 2021

Justine F. Miller, assigned counsel, for the appellant (petitioner).

Jonathan M. Sousa, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, executive assistant state's attorney, and Jo Anne Sulik, senior assistant state's attorney, for the appellee (respondent).

Bright, C. J., and Cradle and Suarez, Js.

CRADLE, J.

The petitioner, Anthony Carter, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing in part his fifth petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying his petition for certification to appeal and erred in dismissing in part his habeas petition on the grounds that, pursuant to Practice Book § 23-29,¹ his claims of ineffective assistance of counsel and violation of his right to due process were successive and barred by the doctrines of res judicata or collateral estoppel. We dismiss the appeal.

"This case arises from the terrible consequences of a drug turf war. During a Fourth of July block party in the area of Enfield and Garden Streets in Hartford, a seven year old girl was struck by a stray bullet that caused serious injuries." State v. Carter , 84 Conn. App. 263, 265, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct. 2529, 161 L. Ed. 2d 1120 (2005). The following facts and procedural history, which were set forth by this court in the petitioner's appeal from the denial of his fourth habeas petition, are relevant to the petitioner's present appeal. "In 2002, after a jury trial, the petitioner was found guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), risk of injury to a child in violation of General Statutes [Rev. to 2001] § 53-21 (a) (1) and criminal possession of a firearm in violation of General Statutes [Rev. to 2001] § 53a-217 (a) (1). The trial court rendered judgment accordingly and sentenced the petitioner to a total effective term of twenty-seven years [of] incarceration. A direct appeal to this court followed.

"In affirming the judgment of conviction, this court concluded, inter alia, that the evidence adduced at trial was sufficient to support the conviction of assault in the first degree and risk of injury to a child.² More specifically, this court stated that the evidence adduced at trial was sufficient to establish that the petitioner shot the victim. [ Id., at 270, 853 A.2d 565 ].

"In 2004, the petitioner filed his first petition for a writ of habeas corpus in which he raised fourteen claims.³ That petition was denied by the habeas court. The petitioner then appealed following the court's denial of his petition for certification to appeal, claiming that the court abused its discretion in denying his petition for certification and in denying his petition as unfounded. This court dismissed that appeal in Carter v. Commissioner of Correction, 106 Conn. App. 464, 942 A.2d 494, cert. denied, 288 Conn. 906, 953 A.2d 651 (2008).

"The petitioner then filed a second petition for a writ of habeas corpus on March 6, 2007. In a supplemental memorandum attached to his petition, the petitioner raised four claims.⁴ The court summarily dismissed the petitioner's second petition on its own motion, without an evidentiary hearing and before the respondent, the [C]ommissioner of [C]orrection, had filed her reply. The court stated in its judgment of dismissal that [a]fter having reviewed the ... petition, the court finds the petition to be res judicata and dismisses the petition pursuant to Practice Book § 23-29 (3).... Carter v. Commissioner of Correction, 109 Conn. App. 300, 304, 950 A.2d 619 (2008). The court subsequently denied the petition for certification to appeal. On appeal, this court concluded that the record was inadequate to review the petitioner's claim and, therefore, dismissed the appeal. Id., at 307, 950 A.2d 619.

"In October, 2007, the petitioner initiated a third habeas action in which he alleged that the state had withheld exculpatory evidence [specifically, ballistics evidence pertaining to a nine page report prepared by the investigating officer in which he misidentifies an item of evidence marked E-9 as a .45 caliber shell casing] in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). After a full hearing, the habeas court concluded that there was no Brady violation and denied the petition. See Carter v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-07-4002005, 2010 WL 628440 (January 22, 2010). The petitioner then appealed following the court's denial of his petition for certification to appeal, and this court subsequently dismissed that appeal in Carter v. Commissioner of Correction, 131 Conn. App. 905, 28 A.3d 360 (2011).

"On November 21, 2007, the petitioner filed a motion to correct an illegal sentence. In his motion, he argued that the trial court, in rendering its sentence, improperly considered an argument the prosecutor had made to the jury during closing argument that certain evidence suggested that the petitioner had fired a nine millimeter firearm. See State v. Carter, 122 Conn. App. 527, 529–30, 998 A.2d 1217 (2010), cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011). The trial court denied that motion and, after reviewing the record, this court affirmed the judgment, concluding that there was nothing in the record to indicate that the court relied on any misstated or inaccurate information in sentencing the petitioner. Id., at 532, 998 A.2d 1217.

"On January 29, 2010, the petitioner initiated [his fourth] habeas action." (Footnote added; footnotes in original; internal quotation marks omitted.) Carter v. Commissioner of Correction , 133 Conn. App. 387, 388–91, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012). By an amended petition dated March 1, 2010, the petitioner alleged that his trial counsel rendered ineffective assistance during sentencing by failing to preserve his right of sentence review. Id., at 391, 35 A.3d 1088. He also asserted three arguments that the evidence was insufficient to sustain his conviction. Id. The habeas court dismissed the petition on the ground that his claims were successive and barred by res judicata. Id., at 391–92, 35 A.3d 1088. The petitioner appealed the dismissal of his habeas petition on the ground that his claims were neither successive nor barred by res judicata because the petition sought a different form of relief than his previous petitions. Id., at 392, 35 A.3d 1088. He further contended that his claims were not barred by the doctrine of res judicata because they were not actually litigated in his prior petitions. Id. This court agreed that the petitioner's sufficiency claims were barred by res judicata; id., at 395, 35 A.3d 1088 ; but that his ineffective assistance claim regarding his counsel's failure to preserve his right to sentence review was not barred by res judicata because the claim had not been previously litigated. Id., at 396–97, 35 A.3d 1088. Accordingly, this court reversed the judgment of the habeas court as to the petitioner's claim of ineffective assistance of counsel and remanded the case to the habeas court for further proceedings on that claim.⁵

Id., at 397, 35 A.3d 1088.

In his previous habeas actions, the petitioner appeared as a self-represented party. In this habeas action—the petitioner's fifth—he was represented by counsel and alleged, by way of his petition dated May 20, 2019, that his trial counsel was ineffective in failing to perfect a third-party culpability defense and failing to formulate an effective theory of defense in response to the state's ballistic evidence. The petitioner also alleged that his right to due process was violated when the state perpetrated "a fraud upon the court" by allegedly altering certain evidence, specifically, a diagram pertaining to the ballistics evidence that was admitted at trial.⁶ In response, the respondent alleged that the petition was successive pursuant to Practice Book § 23-29 (3) and that the claims raised therein were barred by res judicata or collateral estoppel because they presented the same legal grounds as the petitioner's previously litigated actions, and the petitioner had not shown that any of the claims were based on facts that were not reasonably available to him when the prior habeas actions were filed.

On May 22, 2019, the habeas court, sua sponte, ordered a hearing on whether the petition should be dismissed as successive and whether the petitioner's claims were barred by res judicata or collateral estoppel. Both parties filed memoranda of law in support of their respective positions, and the court held a hearing on June 18, 2019, during which the petitioner argued that, although he previously had litigated claims of ineffective assistance of his trial counsel, the factual bases of those claims were different. Furthermore, he claimed that he previously had been unable to discover the facts underlying his current claims because he represented himself in those actions. He also argued that his due process claim was premised on a legal ground that he had not asserted previously.

The court dismissed the petitioner's claims orally from the bench, expressly rejecting his contention that he should be absolved from the legal requirements prohibiting successive petitions on the ground that he represented himself. The court found that the petitioner had made "a conscious choice" to represent himself in his prior habeas actions and held that his status as a self-represented party did not allow him to engage in "piecemeal litigation" by asserting new...