Brewer v. Commissioner of Correction
162 Conn.App. 8
Conn. App. Ct.2015Background
- John Brewer was convicted in 2004 of murder and firearms possession and sentenced to 60 years; his convictions were affirmed on direct appeal.
- Brewer filed a first habeas petition (2006, amended 2009) alleging ineffective assistance of trial counsel; that petition was tried, denied, and an appeal from that denial was dismissed.
- Brewer filed a second habeas petition (2010, amended 2013) asserting 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.
- At the second habeas trial the court dismissed counts 1 and 4 as barred (res judicata / Practice Book §23-29), dismissed count 3 for procedural default, and held an evidentiary hearing on count 2 (then denied it).
- The habeas court denied certification to appeal; Brewer appealed that denial. The Commissioner concedes error only as to part of count 4 (ineffective assistance of prior habeas counsel regarding failure to raise certain trial-counsel claims).
Issues
| Issue | Brewer's Argument | Commissioner’s Argument | Held |
|---|---|---|---|
| Whether the habeas court abused discretion by denying certification to appeal the dismissal of the ineffective-trial-counsel claim | Brewer argued new facts/allegations showed trial counsel was ineffective and thus res judicata did not bar reconsideration | Commissioner argued claim was the same legal ground previously litigated and barred by res judicata/Practice Book §23-29 | Dismissal affirmed: res judicata properly applied; no abuse of discretion |
| Whether prosecutorial-impropriety claim could proceed despite not being raised at trial or on direct appeal | Brewer argued constitutional violation (withheld deals) merited review in habeas | Commissioner argued the claim was procedurally defaulted and Brewer failed to show cause and prejudice | Dismissal affirmed: procedural default; Brewer did not show cause and prejudice |
| Whether Brewer was entitled to an evidentiary hearing on ineffective assistance of prior habeas counsel for failing to raise additional trial-counsel claims | Brewer argued prior habeas counsel was ineffective for failing to raise those issues in the first habeas petition | Commissioner conceded part of this claim required a hearing but defended dismissal of other prior-counsel allegations tied to adjudicated issues | Reversed in part: court erred by dismissing claim that prior habeas counsel was ineffective for failing to raise certain trial-counsel claims; remanded for evidentiary hearing |
| Whether claims that were adjudicated on the merits in the second habeas (e.g., appellate counsel) could support a prior-counsel-ineffectiveness claim | Brewer argued prior counsel’s failure to raise these could still be ineffective assistance | Commissioner argued the underlying claims were litigated and denied on the merits, precluding a successful prior-counsel claim | Affirmed: where underlying claims were adjudicated and denied, the related prior-counsel claims were properly dismissed |
Key Cases Cited
- Simms v. Warden, 229 Conn. 178 (defines standard for abuse-of-discretion review of denial of certification to appeal in habeas context)
- Lozada v. Deeds, 498 U.S. 430 (sets factors for evaluating counsel-related procedural issues relevant to certification/appeal standards)
- Lozada v. Warden, 223 Conn. 834 (Connecticut precedent recognizing right to effective habeas counsel and entitlement to evidentiary hearing on such claims)
- Pierce v. Commissioner of Correction, 158 Conn. App. 288 (res judicata applies to previously raised constitutional claims in habeas proceedings)
- Anderson v. Commissioner of Correction, 114 Conn. App. 778 (standards for reviewing dismissal of habeas petitions and for successive petitions under Practice Book §23-29)
- Johnson v. Commissioner of Correction, 285 Conn. 556 (procedural default and cause-and-prejudice standard explained)