Marra v. Comm'r of Corr.

174 Conn.App. 440

166 A.3d 678

Thomas MARRA

v.COMMISSIONER OF CORRECTION

AC 38033

Appellate Court of Connecticut.

Argued January 17, 2017

Officially released July 4, 2017

Cheryl A. Juniewic, assigned counsel, for the appellant (petitioner).

Emily D. Trudeau, assistant state's attorney, with whom, on the brief, was John C. Smriga, state's attorney, for the appellee (respondent).

Keller, Prescott and Harper, Js.

PRESCOTT, J.

The petitioner, Thomas Marra, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus.¹ On appeal, the petitioner claims that the habeas court improperly dismissed his eighteen count petition, which alleged claims of ineffective assistance of counsel against his prior habeas attorneys, because the court improperly (1) relied on a decision of the prior habeas court deeming his withdrawal of that action as being "with prejudice" and (2) concluded that the deliberate bypass doctrine barred his action. We conclude that only the form of the habeas court's judgment is improper and, accordingly, reverse the judgment on that limited ground.

The record reveals the following relevant facts and procedural history of this habeas appeal, which derives from two separate criminal cases and their subsequent posttrial proceedings. With regard to the first case (Noel case), the petitioner was found guilty, following a jury trial, of one count of conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a–48 and 53a–92(a)(2)(A), two counts of attempted kidnapping in the first degree in violation of General Statutes §§ 53a–49 and 53a–92, one count of arson in the second degree in violation of General Statutes § 53a–112(a)(1)(B), two counts of larceny in the second degree in violation of General Statutes § 53a–123(a)(1), and one count of accessory to kidnapping in the first degree in violation of General Statutes §§ 53a–8 and 53a–92(a)(2)(A). State v. Marra , 215 Conn. 716, 718–19, 579 A.2d 9 (1990). He was subsequently sentenced to sixty-five years of incarceration. Id., at 719, 579 A.2d 9.

The relevant facts underlying the Noel case are discussed at length in our Supreme Court's opinion affirming that judgment. They may be summarized as follows.

Sometime during 1981, the petitioner began operating a criminal enterprise that involved selling stolen automobiles to J. W. Ownby, who lived in Kansas City, Missouri. Id., at 720, 579 A.2d 9. In 1982, the petitioner hired Richard Noel, the victim, to drive the stolen automobiles to Ownby, and Ownby and Noel developed a friendly relationship. Id. In 1983, Ownby terminated almost all of his dealings with the petitioner and began dealing primarily with Noel. Id. The petitioner became "aggravated" with the situation, and his relationships with both men deteriorated. Id.

In November, 1983, during the course of a police investigation into auto theft in the Bridgeport area, Noel implicated the petitioner in statements to the police, and the petitioner later became aware of Noel's conversations with the police. Id., at 721, 579 A.2d 9. On January 23, 1984, a neighbor of Noel "awoke at approximately 2 a.m. to the sound of a male voice, coming from outside, screaming: ‘No, no!’ "; observed two men quickly carrying the limp body of another man, presumably Noel, by his arms and legs down the sidewalk toward a parked van in which they tossed him; and, later that morning, "observed a large puddle of blood near the door of the building, a clump of dark brown hair near the puddle, blood splattered from the puddle over to the place where the van had been parked, and a set of keys." Id., at 722–23, 579 A.2d 9. The petitioner later burned the van, and he and his associates dumped a barrel, presumably containing Noel's body, into the harbor in Stratford. See id., at 723–24, 579 A.2d 9.

Subsequently, the petitioner enlisted some of his associates to participate in a scheme to steal money from Noel's bank account, which continued until the bank closed the account in March, 1984. See id., at 724–25, 579 A.2d 9. In addition, the petitioner filed a lawsuit to collect on a promissory note in the amount of $18,000 on which Noel appeared as the maker and the petitioner as the payee; that suit resulted in a judgment in favor of the petitioner. Id., at 725, 579 A.2d 9.

As previously indicated, the petitioner appealed from his judgment of conviction, and our Supreme Court affirmed the judgment of the trial court. See id., at 739, 579 A.2d 9. Thereafter, the petitioner filed a petition for a writ of habeas corpus, alleging ineffective assistance of trial and appellate counsel in the Noel case, and the habeas court, Bishop, J. , dismissed the petition and denied the petition for certification to appeal. Marra v. Commissioner of Correction , 51 Conn.App. 305, 305, 721 A.2d 1237 (1998), cert. denied, 247 Conn. 961, 723 A.2d 816 (1999). The petitioner subsequently appealed the habeas court's decision to this court, and this court dismissed the appeal. See id., at 310, 721 A.2d 1237.

With regard to the second case (Palmieri case), the petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a–54a(a) and sentenced to sixty years of incarceration.

State v. Marra , 222 Conn. 506, 508, 610 A.2d 1113 (1992). The relevant facts underlying the Palmieri case were set forth in our Supreme Court's opinion affirming that judgment as well.

"On February 6, 1984, the [petitioner] asked [Nicholas] Byers to drive the fifteen year old victim, another associate of the [petitioner], to the [petitioner's] house later that day. At the same time, the [petitioner] asked [Frank] Spetrino [an associate of his] if he would help him put the victim in a barrel. That evening, Byers drove the victim [Alex Palmieri], Spetrino and Tamara Thiel, the victim's girlfriend, to the [petitioner's] house. The [petitioner], the victim, Byers and Spetrino entered the [petitioner's] garage, while Thiel remained in the car.

"In the garage, the [petitioner] and the victim argued about the [petitioner's] desire that the victim leave Connecticut and reside for a time in Italy, and the victim's refusal to do so. When the matter was not resolved to the [petitioner's] satisfaction, he handed Spetrino an aluminum baseball bat and told Spetrino not to let the victim leave the garage. Thereafter, as the group began to exit the garage, Spetrino struck the victim in the head with the bat. After Spetrino had hit the victim from one to three times, the [petitioner] said, ‘Let's get him in the refrigerator.’ Spetrino then began to drag the victim toward a refrigerator that was located inside the [petitioner]' s garage. As he was being dragged, the victim began to speak incoherently, and the [petitioner] said, ‘Shut up Alex. You didn't go to Italy.’ When the victim failed to quiet down, the [petitioner] struck him on the head with the bat numerous times. The additional blows made the victim bleed heavily and caused some of his brain tissue to protrude from his skull. The [petitioner], Byers and Spetrino then placed the victim into a large refrigerator, and the [petitioner] closed and padlocked the door. The men then loaded the refrigerator into the back of a rented van, and the [petitioner] and Spetrino drove the van to a parking area near the Pequonnock River, where the river empties into the harbor in downtown Bridgeport. After making several holes in the refrigerator with an axe so that it would sink, the [petitioner] and Spetrino slid the refrigerator into the water and it floated away. Although a police dive team searched the harbor for the victim's body and the refrigerator for a period of five months, the divers could locate neither. The victim has not been seen or heard from by his family or friends since February 6, 1984." Id., at 508–10, 610 A.2d 1113.

The petitioner appealed from the judgment of conviction, and our Supreme Court affirmed the judgment of the trial court. See id., at 539, 610 A.2d 1113. Thereafter, on November 25, 1993, the petitioner filed a petition for a writ of habeas corpus, alleging ineffective assistance of trial and appellate counsel in the Palmieri case, and the habeas court, Zarella, J. , dismissed the petition. On appeal, this court affirmed the habeas court's dismissal.²

Marra v. Commissioner , 56 Conn.App. 907, 743 A.2d 1165, cert. denied, 252 Conn. 949, 747 A.2d 525 (2000).

Subsequently, the petitioner filed two additional habeas actions alleging ineffective assistance of his prior habeas counsel in both the Noel and Palmieri cases. Those two actions eventually were consolidated under docket number CV–05–4000275 (CV–05). As discussed in the habeas court's memorandum of decision in the present case, the petitioner's habeas trial in the CV–05 action "was first scheduled to begin in February 2010. At the request of the petitioner, trial was postponed to ... August, 2010. For unknown reasons, the trial was again rescheduled to ... October 4, 2011. The petitioner again requested a postponement and the case was reassigned a ‘hard’ and firm trial start date of October 23, 2012, [with] Judge Pavia presiding.

"However, the day before trial was to begin, the petitioner executed a withdrawal of the habeas action on October 22, 2012. The petitioner signed the withdrawal form as [did] counsel. Despite the withdrawal filing, Judge Pavia required the petitioner and counsel to appear before her on October 23, 2012. Judge Pavia and [the] respondent's counsel both expressed their readiness to proceed with the habeas trial, but [the] petitioner's counsel reiterated the petitioner's desire to withdraw the case.

"Judge Pavia canvassed the petitioner on the record regarding his decision to withdraw the case and relinquish his opportunity to prove his allegations against previous habeas counsel. The judge recounted the lengthy procedural history and the fact that the trial had been postponed multiple times. Judge Pavia warned the petitioner that...