Harris v. Comm'r of Corr.

191 Conn.App. 238

214 A.3d 422

Troy HARRIS

v.COMMISSIONER OF CORRECTION

AC 41036

Appellate Court of Connecticut.

Argued April 17, 2019

Officially released July 16, 2019

Deren Manasevit, assigned counsel, for the appellant (petitioner).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (respondent).

Lavine, Elgo and Bishop, Js.

LAVINE, J.

The petitioner, Troy Harris, appeals from the habeas court's denial of his petition for certification to appeal from its judgment denying his third petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and improperly concluded that the petitioner's prior habeas and trial counsel were not ineffective for failing to obtain the psychiatric records of one of the state's witnesses, Tammy Jamison. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal and, accordingly, dismiss the petitioner's appeal.

This is the fourth time that the petitioner has been before this court. The following facts, as this court summarized on direct appeal, and procedural history, as articulated by this court on the petitioner's second habeas appeal, are relevant to our resolution of the issues in the present appeal. "On May 16, 2000, John Simpson drove Howard Dozier and Hector Quinones to Washington Street in Waterbury to pick up Ray Ramos. At that time, the [petitioner] was residing at 39 Washington Street with ... Jamison, the mother of his child. Simpson stopped the vehicle he was driving on Washington Street in a driveway between the [petitioner's] house and the house where they were picking up Ramos, and all three men exited the car. Dozier walked up the street and encountered the [petitioner] standing on his porch .... Dozier and the [petitioner] had a brief conversation. As Dozier turned his back to the [petitioner] in an attempt to return to the vehicle in which he had arrived, the [petitioner] began firing an Uzi machine gun at Dozier. Dozier ran back to the vehicle and he and Simpson drove off. The [petitioner] continued to fire at the vehicle, and Simpson, who was driving, was shot in his neck.

"The [petitioner] was tried to a jury, which found him guilty of attempting to murder Simpson and Dozier, as well as the first degree assault on Simpson. The [petitioner] received a total effective sentence of forty years imprisonment." (Footnotes omitted.) State v. Harris , 85 Conn. App. 637, 639–40, 858 A.2d 284, cert. denied, 272 Conn. 901, 863 A.2d 695 (2004).

Jamison, Simpson, and Dozier testified at the petitioner's underlying criminal trial. "Jamison testified that she and the [petitioner] lived together at the address where the shooting took place, and that, on the night of the shooting, she saw the [petitioner] leave their apartment with a machine gun that she had seen in his possession approximately one month earlier.... [S]he looked down from the second floor window and saw the tip of the gun, a person across the street and shots fire out of the gun.... [A]fter the shooting, the [petitioner] came back upstairs carrying the gun and ... [Jamison] and the [petitioner] wrapped it in a shirt and placed it inside a book bag.... [S]he then left the apartment with the gun and went to her aunt's house, where she hid the gun inside a grill.... [A]t the [petitioner's] request, she gave the gun to Dontae Stallings, a friend of the [petitioner] who lived in their building. Jamison also revealed that she was incarcerated after pleading guilty to charges of hindering prosecution for hiding the [gun]. [Moreover], Jamison testified that the [petitioner] told her that he fired the gun from the porch and that there was no question in her mind that ... [he] fired the gun from her porch." (Footnotes omitted.) Id., at 653–54, 858 A.2d 284.

"Dozier testified that he knew the [petitioner] from previous encounters .... [H]e and the [petitioner] previously had engaged in face-to-face disagreements.... [O]n the night of the shooting, he was having a conversation with the [petitioner] when the [petitioner] pulled out a gun from behind his leg.... [W]hen he saw the [petitioner] raise the gun, he turned and ran toward the vehicle Simpson was driving, and then shots were fired.... [H]e did not see anyone else with a gun besides the [petitioner]....

"Simpson testified that he had a conversation with the [petitioner] immediately before the shots were fired.... [H]e saw the [petitioner] on his porch, holding a gun, and was assured by the [petitioner] that he was ‘straight’ when he asked the [petitioner] if he was going to shoot him. Simpson further testified that he saw the [petitioner] fire the gun at Dozier as he ran down the street." Id., at 652–53, 858 A.2d 284.

On direct appeal, this court determined that "the state's case was overwhelmingly strong. This was not merely a credibility contest between one defendant and one victim—this was a credibility contest, supported by physical evidence, among the [petitioner] and Simpson, his assault victim and attempted murder victim; Dozier, an eyewitness to the assault and an attempted murder victim; and Jamison, the mother of his child, with whom he was residing at the time of the shooting. The evidence showed no connection between Jamison and the victims, and therefore no reason to suspect that she offered false testimony to corroborate the stories of Simpson and Dozier. The evidence also showed that Simpson and Dozier had no personal animus toward the [petitioner], and therefore no motivation to fabricate a story. The physical evidence showed conclusively that the gun from which the bullets were fired was the same gun that was recovered after Jamison told the police where she disposed of it after it was fired by the [petitioner]. The testimony of the witnesses in this case, who had very different connections and relationships with the [petitioner], and which was supported by the physical evidence, strongly supported the [petitioner's] conviction." Id., at 647, 858 A.2d 284.

After the petitioner's conviction was affirmed on direct appeal, he filed his first petition for a writ of habeas corpus. "In that petition, the petitioner challenged his underlying conviction on the ground of ineffective assistance of counsel ... [and alleged] that his trial counsel, [Robert] Berke, had been ineffective in failing properly to investigate all possible exculpatory and/or alibi witnesses who might have supported his defense at trial.... The habeas court [Schuman , J. ] rejected that claim ... conclud[ing] that Berke did not render ineffective assistance of counsel and that his failure to call several individuals as alibi witnesses at the criminal trial was a valid strategic decision. The [habeas] court credited Berke's testimony that he tried to discourage the petitioner from testifying at the criminal trial but that the petitioner wanted to testify regardless of whether the alibi witnesses did so. The petitioner's testimony differed from that which would have been offered by the putative alibi witnesses. The [habeas] court noted that as conflicting as the petitioner's own versions of his alibi were, the addition of alibi witnesses would likely have made matters worse for the petitioner. The [habeas] court thereafter denied his petition for certification." (Citation omitted; internal quotation marks omitted.) Harris v. Commissioner of Correction , 146 Conn. App. 877, 880–81, 81 A.3d 259 (2013), cert. denied, 322 Conn. 905, 139 A.3d 708 (2016). The petitioner appealed from the denial of his petition for certification and made three arguments to this court.

"First, he claimed that, when deciding his claim of ineffective assistance of counsel, the habeas court improperly had applied the presumption of attorney competence set forth in Strickland v. Washington , [466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ]. Second, he claimed that the habeas court improperly had defined the concept of exculpatory evidence, thereby, assertedly, making it futile for him to present evidence regarding the psychiatric history of Jamison, which Berke had failed to elicit during trial. Third, he claimed that the [habeas] court improperly avoided certain ethical issues when determining that Berke's decision not to present alibi witnesses at the trial had been a strategic decision.... This court was not persuaded by the petitioner's arguments, and thus ordered that his appeal from the denial of his first habeas petition be dismissed." (Citation omitted.) Harris v. Commissioner of Correction , supra, 146 Conn. App. at 881, 81 A.3d 259.

The petitioner filed a second petition for a writ of habeas corpus, and claimed that his first habeas counsel, Justine Miller, had been ineffective because: "(1) [she] failed to call ... Jamison who would recant her trial testimony and say that [the petitioner] did not shoot the victims; (2) [she] did not subpoena Jamison's medical records which document[ed] her mental disorder; and (3) [she] did not subpoena alibi witnesses to testify at the habeas trial.... [T]he court, T. Santos , J. ... dismissed the petition upon finding that the petitioner had failed to meet his burden of proving, under the first prong of Strickland , that Miller's performance was ineffective.... [T]he petitioner filed a petition for certification to appeal from the dismissal of his amended second petition for a writ of habeas corpus, which [the second habeas court] ... granted ...." (Internal quotation marks omitted.) Id., at 882, 81 A.3d 259. This court affirmed the judgment of the second habeas court, agreeing that the petitioner had failed to demonstrate that Miller's performance was deficient. Id., at 889, 81 A.3d 259.

In his third habeas petition, the petitioner alleged, in relevant part,...