Johnson v. Commissioner of Correction

rеspon appellant’s It is the (2006). A.2d 300 672, 685, 911 or rectification an articulation sibility “to move for has failed to state the trial court the record where basis of a clarify legal ... a decision basis of on an over to rule judge ... or to ask the trial ruling (Internal looked matter.” Works, 698, 704 Dept. Public

Bingham an articula In the absence of n.5, trial the basis for the unable to determine tion, we are simply over whether the trial court decision, or court’s We therefore attorney’s fees. looked the award claim. to review this decline is affirmed. judgment justices concurred. opiniоn the other In this v. COMMISSIONER OF VANCE JOHNSON CORRECTION (SC 17997) Zarella, Norcott, Katz, Palmer, Js. Vertefeuille and January officially July 22, Argued released for the Joseph Jaumann, A. special public defender, appellant (petitioner). A. attorney, state’s Riggione,

Lisa senior assistant Melchionne, A. whom were Madeline assistant brief, Richard Blumen- attorney and, on the general, Alexandre, assistant and Henri thal, attorney general, attorney appellee (respondent). for the general,

Opinion Johnson, VERTEFEUILLE, petitioner, J. The Vance habeas court appeals1 judgment denying from the of the In this petition corpus. for a writ of habeas his second the habeas cоurt appeal, petitioner the claims the retroactive improperly rejected (1) his claims that: of cor application by respondent, the commissioner in Harris v. Commis rection, of this court’s decision sioner 808, 860 (2004), 271 A.2d 175 Conn. confinement petitioner’s presentence change of the ex facto clause credit constituted a violation constitution; and at both of the United States trial, trial and his first petitioner’s criminal attorneys rendered ineffective assistance of counsel.2 habeas court. We affirm the of the judgment 1 Superior appеaled petitioner judgment to the from the Court The appeal pursuant Appellate Court, to this court and we transferred (c) 65-1. § § 51-199 and Practice Book General Statutes 2 presentence recalculation of his also claims that the state’s response was a corut’s decision in Harris confinement credits in to this claim, legal impossibility this . . . .” We decline to review “factual and inadequately briefed, petitioner’s argument however, on as the because it is any analysis. See generally is devoid of relies on Harris and this issue n.30, (2001) (“[cjlaims Clark, Conn. 281 764 State v. appeal inadequately are deemed abandoned” [internal that are briefed on omitted]). quotation marks

The record reveals the following undisputed relevant procedural history. facts and The petitioner was arrested and with murder in charged violation of Gen- eral Statutes 53a-54a and possession criminal of a § firearm in violation of General Statutes 53a-217. The § in pretrial custody was held on these charges for total of 819 until days, 9, 1996, December when pleaded he guilty possession criminal of a firearm. January 17, years He was sentenced on 1997, to five incarceration on that charge. After sentencing, respondent days credited the pre- sentence confinement against year credit the five sentence.

Thereafter, following jury, trial to a was convicted of murder, and on March was 14, 1997, sixty years sentenced to incarceration, to run concur rently with the weapons sentence on the That charge. subsequently conviction was Appellate affirmed See State Court. v. Johnson, App. 476, 477, denied, 733 A.2d cert. Conn.

(1999). Following conviction, murder respondent petitioner’s presentence moved the con finement credit from the weapons sentence for the where the charge, respondent originally applied it, had posted and petitioner’s credit to the sentence longer for murder. In May, 2005, after we had decided Harris Correction, supra, v. 820, 271 Conn. inteipreted appli wherein we our statutes regarding presentence cation of confinement credit and ‍‌‌‌‌​​​‌‌​​‌‌‌​‌​​‌​‌‌​‌​‌‌‌​‌​​‌​‌​​‌‌‌​‌​​‌‌‌‌‍deter alia, mined, applied inter that once a credit is to one sentence, applied subsequent it cannot be sentence, to respondent reapplied the рetitioner’s credit to the weapons As a charge. result, maximum July release date from incarceration was from changed 5, 2052, 12, to December 2054.

In a writ 2001, petition filed his first for corpus, trial counsel had alleging habeas peti of counsel at the rendered ineffective assistance respects. trial, in After murder trial several tioner’s for a writ of petition denied the first habeas court subsequent petition for certi coipus habeas as well as Court dismissed the appeal. Appellate fication to The from the court’s denial petitioner’s subsequеnt appeal appeal, and this court denied certifica of certification decision. appeal Appellate tion to from the Court’s Johnson Commissioner of App. 76 Conn. denied, 904, A.2d cert. 823 A.2d 901, 940, 1221 (2003).

Thereafter, in filed his second petition corpus, for a writ of habeas claiming again that his trial counsel at the murder trial had rendered counsel, claiming ineffective assistance of but this time perform adequately that he had failed to different respects petition. than he had claimed the first petitioner further in this second alleged petition habeas that counsel at his first proceeding also had rendered ineffective assistance on his behalf by, inter alia, failing testimony to secure certain witness at the first habeas certain relevant evi- proceeding, dence that proceeding, prepare adequately at and to argument on the behalf. The also respondent’s asserted that the method of recalculating presentence credit vio- confinement process due rights lated his constitutional equal protection. respect trial,

After the habeas court concluded in the first habeas to his claim of ineffective assistance meet his burden trial that the had failed to Washington, to Strickland proof pursuant L. 2d 674 because (1984), 104 S. Ct. 80 Ed. performance and, deficient he had not demonstrated particular counsel’s failure to call a further, because his did not testify proceeding witness to in his first habeas respect petitioner’s to the prejudice petitioner. the With claim that his trial counsel had rendered ineffective trial, assistance at the murder the second habeas court found that this claim was barred the doctrine оf judicata res because had the litigated performance effectiveness of his trial counsel’s his Finally, first habeas the court in the second proceeding. rejected petitioner’s proceeding argument respondent’s that recalculating pre- method of petition- sentence confinement credit had violated the process equal protection. er’s to due right second habeas court rendered judgment dismissing petition corpus for habeas and thereafter certi- granted appeal.3 appeal fication to This fоllowed.

I The petitioner respondent’s first claims that the retro- of this court’s decision in Harris application active Correction, supra, Commissioner 271 Conn. post violated the ex facto clause of the United States retroactively deprived constitution because it him of days presentence the benefit of credit for 819 confine- entitled, ment to which he was with the result that his approximately maximum release date was extended post months. Because the ex facto eighteen properly peti- claim was not raised and decidеd in the however, tioner’s second habeas we proceeding, it.4 decline review 3The of the second habeas trial reveals that the second habeas transcript willing sign”

court indicated it “would be for certifica orally petition tion to to the narrow issue of whether appeal respect respon dent could accrued confinement properly apply presentence granted credit to an sentence. When the habeas court certification expired it did not limitation on appeal, however, impose any scope to the retroactive supra, application is not Tennessee, We note further that the facto clause is limited to actions properly of appeal. one that the ex judicial application 451, 456, to his sentence. Because he decision and not an act of the 121 S. Ct. Harris v. of post facto clause has been violated. The ex did not frame 149 L. Ed. 2d 697 legislative challenges properly legislature, branch. the retroactive challenge Rogers his claim We

59 appellate to matters in the Our review is limited by record, аnd “we will not address issues not decided . . . v. Cadillac, the trial court. Crest Pontiac Inc. Hadley, n.10, 239 444 Conn. by

(claims neither addressed nor decided court below properly appellate tribunal) .... It are not before is appellant’s provide adequate burden to record responsibility ... is, therefore, for review. It appellant for an to move articulation or rectification of the where the trial record court has failed to state the (Citations basis of a decision . . . .” omitted; internal Springs Willow Condomin- Development Corp., Assn., ium Inc. v. Seventh BRT (1998). 1, 52-53, 717A.2d 77 that, The record case reveals in his petition, petitioner second amended habeas claimed respondent’s reapplication presentence following confinement credit this court’s ‍‌‌‌‌​​​‌‌​​‌‌‌​‌​​‌​‌‌​‌​‌‌‌​‌​​‌​‌​​‌‌‌​‌​​‌‌‌‌‍process equal decision in Harris violated the due protection clauses of the federal constitution. After a hearing, rejected the habeas court these claims. On appeal court, this now claims that the reapplication post violated the ex facto clause of the allege federal constitution. The did not this specific constitutional violation in his amended habeas petition, however, and the habeas court therefore never post although decided the ex Moreover, facto claim. he had raised this claim in a brief filed in the habeas court, failed to move for an articulation however, acknowledge, Columbia, 347, 353-54, v. that in Bouie (1964), Supreme S. Ct. 12 L. Ed. 2d 894 the United States Court judicial operates concluded that a construction of a criminal statute that post may process. recently rejected, like an ex facto law violate due We however, Washington a сlaim similar to that raised here in We Conn. respondent’s application concluded in that case that the retroactive of Har- ris, cases, process Id., did a due violation. and two related not constitute 803-804. claim. Under post to the ex facto regard

trial court petition- we decline to review the circumstances, these properly it is not before er’s ex facto claim because Assn., Condominium this court. See Celentano Oaks that n.9, (noting 830 A.2d 164 579, (2003) 265 Conn. 589 record, in the our review is limited to matters “because by the trial court” we will not address issues not decided marks quotation omitted]). [internal “Nevertheless, may prevail unpre a defendant on pursuant claim under to served [review [constitutional] Golding, State 233, 239-40, v. 213 Conn. See Practice Book plain or the error doctrine.

(1989)]5 Kelly, State n.18, 770 A.2d 60-5; 256 Conn. § affirm party however, .... A is obligated, 908 (2001) these doctrines. State atively request review under Waz, n.11, 692 A.2d 1217 (1997) 240 Conn. unpreserved who seek consideration (defendants appeal] . . . bear the burden constitutional claims [on such review under their entitlement estabhshing Golding)." (Citation enumerated in omit guidelines v. Ramos, State marks ted; quotation internal In 171, 801 A.2d 788 261 Conn. undertakе request failed to that we case, review. We thus decline to review such v. facto claim. See Ghant ex 1, 17, 761 (2000) (observ in a level of appropriate engage is ing that not “[i]t requested” is not review [internal omitted]). prevail 239-40, [party] Golding, supra, 213 Conn. “a can Under State v. preserved at trial if all of the of constitutional error not on a claim adequate alleged (1) following to review the conditions are met: the record is error; magnitude alleging (2) the claim is of constitutional claim of alleged right; (3) violation constitutional violation of a fundamental triаl; clearly clearly deprived a fair if the defendant of exists and analysis, subject state has failed to demonstrate to harmless error beyond alleged a reasonable constitutional violation harmlessness of the conditions, any the defendant’s claim one of these doubt. In the absence of will fail.”

II next claims that the second habeas The improperly rejected court his claim that various attor- prior in different neys represented legal who had him assistance of had rendered ineffective proceedings counsel. We consider first the habeas court’s with ruling to the claim that counsel in his first regard had rendered ineffective assistance. proceeding Thereafter, ruling we consider the habeas court’s claim that counsel at his mur- to the regard der trial rendered ineffective assistance.

A first contends that the second habeas rejected court in improperly his claim that counsel proceeding first habeas had rendered ineffective assis- by tance of failing allege petitioner’s counsel to counsel at his murder trial rendered ineffective assis- by expert tance of counsel to secure an witness failing in testify bаllistics to on the behalf. The testimony respondent asserts that such would not have impacted materially, the case and that the ineffective assistance fail claim thus must under the prejudice of the Strickland test. We prong agree respondent. the was convicted of murder for shooting friend, Christopher

a on Homestead Avenue in Gills, Hartford. At the admitted that he had trial, Gills, shot but contended that he had been acting Johnson, supra, App. self-defense. State v. 479. Witnesses at the murder trial testified that a few peti- after Homestead Avenue shooting, hours ‍‌‌‌‌​​​‌‌​​‌‌‌​‌​​‌​‌‌​‌​‌‌‌​‌​​‌​‌​​‌‌‌​‌​​‌‌‌‌‍up property tioner drove located at 328 Cornwall Hartford, and, Street in after a and taunt- displaying gun property, gathered of individuals on the ing group group. Id., fired a number of shots as he drove 477-79. The denied committed the having second shooting.

During trial, Rethis, the second habeas Achilles police department officer with the Hartford who had arrived at the scene of the Cornwall Street shooting, spent testified that no shell were recovered at casings Spent recovered, however, the scene. shell were casings from the Avenue shooting. scene of the Homestеad rejected

The second habeas court claim that counsel in his first had proceeding by failing rendered ineffective assistance of counsel that trial counsel the murder trial failed allege during expert testify. Specifically, to obtain ballistics second petition- habeas court ruled that counsel performed er’s first habeas had not defi- proceeding ciently, attorney’s and that his trial failure to call a testify prejudiced peti- ballistics witness to had not tioner. appropriate

We first set forth the standard of review. court, “When the deсision of a habeas reviewing may facts found the habeas court not be disturbed clearly unless the were erroneous. . . . The findings issue, however, representation [w]hether [that] constitutionally a defendant received at trial was inade- quate question is a mixed of law and fact. Strickland Washington, [supra, such, ques- As that 698]. requires plenary by tion review this court unfettered by clearly omitted; erroneous standard.” (Citation quotation internal marks Ghant v. Commis- omitted.) Correction, supra, sioner 255 Conn. 6. of part test for ineffec- We next set forth the familiar two tive assistance of counsеl enunciated the United Washington, in Strickland v. Supreme States Court Strickland, applies “In which supra, 466 U.S. 668. pro- assistance criminal during claims of ineffective Supreme the United States Court ceedings generally, by evi- supported claim must be determined that the fell representation counsel’s establishing (1) dence reasonableness, and objective below an standard defense performance prejudiced deficient counsel’s probability there was a reasonable because have been different would proceedings outcome performance. [Id.], 688, had it not been for the deficient that counsel requires showing 694. The first prong functioning was not made errors so serious that counsel defendant guaranteed as the counsel [s]ixth quotation internal original; (Emphasis [a]mendment.” Johnson Correc- marks omitted.) A.2d tion, 556, 575-76, any claim, an ineffectiveness presenting “In case assis- performance inquiry must be whether counsel's all the circum- considering tance was reasonable Id., stances.” 577. (Internal Additionally, “[j]udiciai scrutiny perfor- of counsel's tempting mance must be deferential. It is all too highly for a defendant counsеl’s assistance second-guess sentence, after conviction or adverse and it is all too easy for a counsel’s defense after it court, examining proved unsuccessful, particular has to conclude that . . . act or omission of counsel was unreasonable. ineffectiveness [Moreover], a court actual deciding of counsel’s chal- claim must the reasonableness judge case, particular conduct on the facts of the lenged conduct. A convicted viewed as of the time of counsel's assistance must defendant a claim of ineffective making alleged that are identify the acts or omissions of counsel professional result of reasonable not to have been the whether, determine The court must then judgment. acts or circumstances, the identified of all the light professionally the wide range omissions were outside omit- quotation marks competent (Internal assistance.” Id., 577-78. ted.) present case,

In the claims that the improperly rejected second habeas court his claim that his first habeas counsel had rendered ineffective assis- petitioner’s tance of counsel failing allege trial counsel was ineffective for to retain a ballis- failing expert testify. tics Specifically, con- expert tends that a ballistics could have tested the shell casings that were recovered6 and “could have criticized reports that more 100 shots were fired on Corn- [than] wall Street based on the fact casings that no shell were petitioner asserts, found on Cornwall Street.” The in turn, that his first habeas counsel rendered ineffective assistance to raise this issue as to the ineffec- failing tiveness of the trial counsel. in

We note that the context of a сlaim for ineffective counsel, assistance of failure of defense counsel “[t]he potential to call a defense witness does not constitute ineffective assistance unless there is some showing testimony would helpful establishing have been Talton, the asserted defense.” State present case, In the we agree testimony with the second habeas court that the of a expert ballistics would not have aided the case at trial because the shell that had been casings recovered were those from the site of the Homestead Avenue which the shooting, admitted com mitting, although he that he had acted in self- alleged expert helpful defense. A ballistics would not have been claim of self-defense. In establishing addition, expert a ballistics have testi although might apparent reports fied between regarding incongruity that more than 100 had been fired on Cornwall gunshots casings Street and the fact that no shell had been recov- court, specify In Ms brief before this does not to wMch making note, however, casings shell he refers in tMs claim. We that shell casmgs shootmg, were recovered from the site of thе Homestead Avenue shootmg. and not from the site of the Cornwall Street there, testimony ered at the second habeas proceeding revealed that the lack of shell was not unusual casings in these circumstances. Specifically, Rethis, who testi- fied at the second trial, provided a number of why reasons report of investigation following shots been fired having might have recovered no shell casings.7 We therefore with the second habeas agree testimony expert ‍‌‌‌‌​​​‌‌​​‌‌‌​‌​​‌​‌‌​‌​‌‌‌​‌​​‌​‌​​‌‌‌​‌​​‌‌‌‌‍court that the of a ballistics would not have altered the outcome of murder trial or petitioner assisted the in establishing self-defense. Accordingly, we conclude that the second habeas court properly concluded that the petitioner’s first habeas counsel did not render ineffective assistance failing to raise the issue of trial counsel’s failure to the testimony of a expert.8 ballistics

B We next consider claim that the sec- ond habeas court improperly concluded that his claim that his trial counsel in his murder trial provided had ineffective assistance of counsel was barred the doc- judicata. trine of res petitioner asserted in the habeas court that his trial counsel had rendered ineffec- tive assistance of counsel because he failed to secure testimony of the following peti- individuals at the tioner’s murder trial: expert; ballistics and (2) Officer testimony Rethis to contradict the a particular implicated witness who had in the mur- der. Although the the issue of litigated trial counsel’s proceed- effectiveness his first habeas gunshots Rethis testified that the could have been fired from inside a vehicle, gun eject any shooting casings. or that the used in did not shell Because we сonclude that the did not establish that counsel’s performance prejudiced petitioner, analyze we need not performance prong claim under the Strickland. See Strickland Wash ington, supra, (requiring petitioner satisfy performance 466 U.S. 687 both prejudice prevail prongs counsel). on claim of ineffective assistance of claim of this same specifications raised different he

ing,9 See John habeas court. ineffectiveness the second Dan judicial district of Warden, Superior Court, son v. 15, 2002). (January bury, Docket No. CV-99-0336854-S previously a claim that аsserted Because fully merits, we adjudicated agree on its had been by barred that this claim was second habeas court the judicata. of res the doctrine that a former judicata provides of res “The doctrine subsequent bar to a serves as an absolute judgment to such cause of any relating claims involving action have actually might made or which action which were Dun quotation omitted.) marks (Internal been made.” A.2d 384, 391-92, 604 347 Dunham, v. 221 Conn. ham 550, DeMatteo, 206 Conn. Orselet v. see (1992); a lawsuit purpose that of (noting A.2d 95 (1988) “[t]he proceeding, a four count revised the filed In his first habeаs petition alleged that his trial counsel had rendered in which he amended by respects. the first in several As set forth ineffective assistance of counsel complaint petitioner alleged court, in were the habeas the four counts allega inadequately (1) investigated factual the state’s as follows: counsel tape preserve evidence a 911 related to misconduct tions and “failed to trial”; (2) was ‘distracted’ the criminal “counsel was admitted at [that] lawyer jury during participation . . . the selection defense the of second juror permitted particular process”; improperly be dis (3) to “counsel contrary”; spite petitioner’s “counsel to the and in of the wishes missed grievances though the filed withdraw from the case even failed to him, against on the behalf relevant evidence failed required erroneously was to take the that he and advised jury get presiding judge to instruct the on witness stand order Warden, Superior Court, judicial district Johnson v. issue of self-defense.” 15, 2002). Danbury, (January The habeas Docket No. CV-99-0336854-S of corpus petition in a memorandum of judge for a writ of habeas denied the methodically rеjected each of the four counts of decision peti count, complaint. habeas court inferred that the As to the fourth rejected implicitly alleged of interest. The court had a claim of conflict tioner petition we portion on that basis alone. As this of Appellate petitioner appealed previously, matter to the this have noted Court, appeal; v. Correc see Johnson Commissioner which dismissed the 901; subsequently tion, supra, App. denied certifica this court 76 Conn. Correction, supra, appeal. v. Johnson tion to See 904. Conn. justice is not to do substantial but to bring end controversy” marks omitted]). [internal . . . applies “The doctrine to criminal as well as civil proceedings corpus and to state habeas proceedings.” Miranda, State v. 727, 773, 274 Conn.

(2005); McCarthy Warden, see 289, 294-98, 567 A.2d 1187 (1989), denied, cert. 110 S. Ct. L. However, “[u]nique 110 Ed. 2d 667 (1990). policy considerations must be taken into account applying judicata doctrine of res to a constitutional ” claim petitioner. raised a habeas (Internal quotation Miranda, State supra, Specifi 773. cally, context, in the habeas in the interest of ensuring deprived liberty “that no one is in violation of his or her constitutional . . . rights application judicata doctrine of res ... to claims that [is limited] actually have been raised and in an litigated earlier proceeding.” (Internal Id. to the Turning case, we conclude that the second habeas court properly concluded that the judg- by ment rendered the first habeas court constituted a judgment on the merits on the issue of ineffective assistance of counsel at the murder trial. We conclude, further, that the second habeas court properly found that the opportunity had an fully litigate effectivenеss of his trial counsel in See Brown v. his first habeas Commis- proceeding. sioner App. 44 746, 751-52, Conn. 692 A.2d 1285 (1997) petitioner’s claim of (rejecting ineffec- tive assistance counsel as barred under doctrine of judicata res where petitioner, fully after having litigated effectiveness petition trial, of counsel in for new made additional ineffective assistance claim as to same attor- ney before habeas court but cited different factual State, see also Asherman grounds support thereof); 429, 443, 202 Conn. 521 A.2d 578 (1987) (concluding juror that defendant’s claim of misconduct was barred “virtuаlly was identical judicata because claim res previously decided); claim raised in substance” to Aillon, 416, 423, (noting State that every not as to matter that is final judgment also as to actually claim, to sustain but presented was been that could have any other admissible matter denied, purpose), for that cert. offered Thus, we conclude 124, 78 (1983). Ct. L. Ed. 2d 104 S. properly declined to the second habeas court that because it was barred review the claim judicata. the doctrine of res is affirmed. judgment ZARELLA, Js., con- opinion In this NORCOTT and curred. joins,

PALMER, J., KATZ,J., concurring. with whom majority reachеs. I dis- I with the result that the agree not to majority’s with the decision however, agree, unpreserved post ex facto claim resolve the expressly did not on the that ground 233, 239-40, Conn. Golding, invoke State v. majority opinion. I part See have acknowledged should Although and that he unpreserved claim was his ex facto the state never Golding, review under seeking was had failed objected ground on the peti- addressed the Golding-, indeed, the state to invoke There is no claim on its merits. post tioner’s ex facto fully claim satis- dispute, moreover, that the Furthermore, review. rеquirements Golding for fies analysis raised and arguments precisely are his ex facto claim support in have raised analysis that he would same and arguments majority as the Golding. Finally, if he had invoked majority ‍‌‌‌‌​​​‌‌​​‌‌‌​‌​​‌​‌‌​‌​‌‌‌​‌​​‌​‌​​‌‌‌​‌​​‌‌‌‌‍opinion; see footnote acknowledges; are foreclosed claim the merits of the Washington v. Commissioner opinion our recent Under why we therefore, I see no reason circumstances, the merits of the ex should not consider reject I and them for the post facto claim. would do so I therefore concur in Washington. reasons set forth the result. LUMBER,

CHAPMAN INC. v. CLIFFORD L. TAGER

(SC 18021) (SC 18023) (SC 18026) (SC 18022) Katz, Schaller, Rogers, J., Norcott, C. Zarella and Js.

Case Details

Case Name: Johnson v. Commissioner of Correction

Court Name: Supreme Court of Connecticut

Date Published: Jul 22, 2008

Citation: 951 A.2d 520

Docket Number: SC 17997

Court Abbreviation: Conn.