LUIS LEBRON v. COMMISSIONER OF CORRECTION
(AC 39286)
Appellate Court of Connecticut
Keller, Prescott and Kahn, Js.*
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Syllabus
The petitioner, who previously had been convicted, on a guilty plea, of the crimes of manslaughter in the first degree with a firearm and conspiracy to tamper with a witness, and had filed two petitions for a writ of habeas corpus, filed a third petition for a writ of habeas corpus, claiming, inter alia, that he had received ineffective assistance from S and C, his trial counsel, as well as D and K, his counsel in his first and second habeas matters, respectively. Prior to the petitioner‘s plea, S was granted permission to withdraw on the ground that he could be called as a witness at trial. The petitioner indicated to the court that he waived any conflict, and wanted to proceed to trial and was prepared to represent himself, which the court did not allow. The petitioner thereafter was charged with additional crimes in a separate docket, and C was appointed to represent him on all of the charges, after which the petitioner entered his plea. In the first habeas action, the petitioner alleged that S and C had rendered ineffective assistance. The habeas court denied the petition, and D failed to file a timely petition for certification to appeal. In the second habeas action, in which the petitioner alleged that S, C and D had provided ineffective assistance, the habeas court rendered judgment restoring the petitioner‘s appellate rights with respect to the issues raised in the first habeas petition. The petitioner thereafter appealed from the denial of his first habeas petition, but did not raise the merits of his claims in that first petition against S and C. This court affirmed the judgment of the first habeas court. After the petitioner filed his third habeas petition, which included six counts, the habeas court issued notice to the parties that it would consider whether there was good cause for trial on any of the counts that the petitioner had raised in his petition. The court invited the parties to submit briefs and exhibits as to whether the petitioner‘s guilty plea operated as a waiver of his right to pursue the first four counts of his habeas petition. The habeas court concluded that there was no good cause for trial as to any count of the petition and rendered judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed to this court. He claimed, inter alia, that the habeas court improperly relied in part on an affirmative defense that the respondent, the Commissioner of Correction, had not pleaded in his return in concluding that the petitioner had waived certain counts by entering a guilty plea in the criminal proceedings. Held:
- The habeas court properly dismissed the first three counts of the habeas petition for lack of good cause to proceed to trial, that court having determined that the claims raised in those counts were waived as a result of the petitioner‘s guilty plea: the claims in counts one and two regarding the decisions of the criminal trial court to grant S‘s motion to withdraw as counsel and to prohibit the petitioner from representing himself involved actions that occurred prior to when the petitioner decided to enter the guilty plea at a time when he was represented by C, the petitioner never sought to withdraw his plea, nor did he challenge the voluntariness of the plea or any aspect of the criminal court‘s subject matter jurisdiction, and the petitioner did not direct this court to any evidence submitted to the habeas court that, if presented at trial, would overcome the respondent‘s affirmative defense of waiver; furthermore, the claims in count three of the petition, which focused on the alleged ineffective assistance of S, also related to matters that occurred prior to the petitioner‘s decision to enter a guilty plea, the petitioner failed to establish a sufficient interrelationship between the claims he directed at S and his decision to plead guilty, and the assertion that the petitioner would have proceeded to trial and would not have pleaded guilty if S had been allowed to continue as counsel was nothing more than speculation.
- The petitioner could not prevail on his claim that the habeas court improperly dismissed the fourth count of the habeas petition on the basis of the same waiver theory that it employed to dismiss counts one through three when that theory had not been asserted by the respondent as a special defense to count four; the habeas court, which never mentioned that its decision was premised on waiver that resulted from the petitioner‘s having pleaded guilty, dismissed count four on the ground that it was a successive petition, as the claim raised therein concerning the ineffective assistance of C was based on the same ground raised in the petitioner‘s first habeas petition that was denied, and the petitioner advanced no arguments as to why this court should overturn the habeas court‘s determination that count four amounted to an improper successive petition.
- The habeas court improperly determined, in part, that there was no good cause to allow the fifth and sixth counts to proceed to trial, as the court‘s conclusion that none of the petitioner‘s claims had a direct relationship to the validity of the plea itself was improper with respect to certain allegations against C: although that court properly dismissed those portions of counts five and six that were premised on the alleged ineffective assistance of D and K with respect to the claims that were asserted in counts one through three of the habeas petition, which had been waived by the petitioner‘s guilty plea, that analysis did not apply to the ineffective assistance claim against C in count four, which related in part to the voluntariness of the petitioner‘s guilty plea, as the issues of whether D was ineffective in handling the claims against C and whether K provided ineffective assistance with respect to the allegations in count five against D were never raised or litigated fully in a previous action, the respondent failed to raise any defenses to those counts in his return, and the habeas court‘s rationale for dismissing counts five and six in their entirety lacked support in the record, which supported a conclusion that at least a portion of the petition had a sufficient basis in both fact and law to proceed to a trial.
Argued September 8—officially released November 28, 2017
Procedural History
Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Sferrazza, J., following a preliminary hearing, dismissed the petition and rendered judgment thereon, from which the petitioner, on the granting of certification, appealed to this court. Reversed in part; further proceedings.
Vishal K. Garg, assigned counsel, for the appellant (petitioner).
James A. Killen, senior assistant state‘s attorney, with whom, on the brief, were Brian Preleski, state‘s attorney, and Randall S. Bowers, former deputy assistant state‘s attorney, for the appellee (respondent).
Opinion
The relevant facts and procedural history underlying this appeal are set forth in the habeas court‘s memorandum of decision as well as in this court‘s decision resolving the petitioner‘s previous habeas appeal. See Lebron v. Commissioner of Correction, 108 Conn. App. 245, 947 A.2d 349, cert. denied, 289 Conn. 921, 958 A.2d 151 (2008). The petitioner initially was arrested in May, 1997, and charged with one count each of murder in violation of
At that time, the court discussed with the petitioner how the matter should proceed in light of defense counsel‘s withdrawal on the eve of trial. The petitioner indicated to the court that he had not asked counsel to withdraw and had waived any conflict, and that he wanted to proceed with the trial. He also informed the court that he was prepared to represent himself. The trial court did not agree to allow the petitioner to proceed to trial as a self-represented party at that time. Instead, the court declared a mistrial and continued the matter so that new counsel could be appointed for the petitioner. At that hearing, the prosecutor also indicated to the court that the petitioner would soon be arrested on additional charges.
Shortly thereafter, the petitioner was arrested under a separate docket on charges of two counts of conspiracy to commit murder in violation of
At the February 26, 1999 hearing, the petitioner was appointed a new criminal defense attorney, Thomas M. Conroy, to handle both of his files. Conroy was granted a further continuance.
In May, 1999, the petitioner, pursuant to a plea agreement that resolved all of the 1997 and 1999 charges, pleaded guilty under the Alford doctrine4 to one count of manslaughter in the first degree with a firearm in violation of
The petitioner filed his first action seeking a writ of habeas corpus in June, 2000. The petitioner was appointed habeas counsel, Attorney Sebastian DeSantis, who later filed an amended habeas petition. The amended petition alleged three claims of ineffective assistance directed at Simon and Conroy. Specifically, the “petitioner alleged that trial counsel failed (1) to pursue discovery and to communicate with him concerning it, (2) to challenge the petitioner‘s arrest and the search of the area in which he was arrested, as well as
On February 26, 2003, the petitioner filed a pro se petition for certification to appeal, which the habeas court denied. Id. The petitioner, however, did not file an appeal from that denial within twenty days.
In June, 2003, the petitioner filed a letter with the habeas court, which the court treated as a motion for reconsideration of the habeas petition. Id., 247-48. Soon thereafter, the petitioner also filed a pro se motion for rehearing of his habeas petition. Id., 248. The court denied both of the petitioner‘s postjudgment motions without a hearing. Id. The petitioner filed a motion with this court on September 29, 2003, in which he sought permission to file a late appeal. Id. This court denied the motion on November 6, 2003. Id.
Nearly three years later, on July 18, 2006, the petitioner filed a new petition for a writ of habeas corpus alleging again the ineffective assistance of Simon and Conroy, but adding an allegation regarding the ineffective assistance of his first habeas counsel, DeSantis. Id. The petitioner was represented in this second habeas action by Attorney Paul Kraus. The court resolved this second petition by agreeing to render a stipulated judgment that restored the petitioner‘s appellate rights with respect to the issues raised in the first habeas petition.5 Id. Thereafter, the petitioner filed a new petition for certification to appeal from the judgment rendered in the first habeas action. Id. The court granted this second petition for certification to appeal, and the petitioner filed an appeal on September 8, 2006. Id.
The only issue raised in that first appeal, however, was whether the habeas court properly had denied without a hearing the petitioner‘s postjudgment motions for reconsideration and reargument. Id., 249. The petitioner did not raise the merits of the claims in the habeas petition against Simon and Conroy. Following oral argument, this court ordered the parties to submit supplemental briefs addressing whether the issues the petitioner had raised on appeal fell outside the scope of the stipulated judgment restoring the petitioner‘s appellate rights, which was limited to issues raised in the first habeas petition. Id., 248-49. Ultimately, this court declined to review the claims raised by the petitioner because they fell outside the scope of the stipulated judgment to which the petitioner had agreed. Id., 249. We affirmed the judgment of the habeas court denying the first petition; id., 250; and our Supreme Court denied a petition for certification to appeal from our decision. Lebron v. Commissioner of Correction, 289 Conn. 921, 958 A.2d 151 (2008).
The petitioner commenced the present habeas action, his third, in August, 2013. The operative amended petition for a writ of habeas corpus was filed by appointed counsel on January 8, 2016. The petition
The respondent filed his return on February 29, 2016, in which he raised affirmative defenses as to counts one through four. With respect to counts one and two, the respondent alleged procedural default and waiver resulting from the petitioner‘s having entered a guilty plea. With respect to count three, the respondent raised the defenses of improper successive petition; see Practice Book § 23-29 (3); and waiver on the basis of the petitioner‘s guilty plea. The respondent also alleged the defense of improper successive petition with respect to count four. No defenses were pleaded with respect to counts five and six.
On March 7, 2016, the petitioner filed a reply to the return denying the allegations raised in the respondent‘s affirmative defenses. A certificate of closed pleadings was filed the same day.
The habeas court issued a notice and order on March 30, 2016, indicating that the court would consider whether there was good cause for trial on any of the counts raised in the petition, and inviting the parties to submit briefs and exhibits pursuant to
On April 26, 2016, the habeas court issued a memorandum of decision, concluding on the basis of the petition and the parties’ submissions, that there was no good cause for trial as to any count of the petition. The court scheduled a hearing for May 4, 2016, to hear arguments in accordance with
On May 13, 2016, the petitioner filed a petition for certification to appeal, which the habeas court granted on May 18, 2016.7 This appeal followed.
The petitioner claims on appeal that the habeas court improperly dismissed the entirety of his petition pursuant to
Subdivision (2) of subsection (b) provides: “With respect to the determination of such good cause, each party may submit exhibits including, but not limited to, documentary evidence, affidavits and unsworn statements. Upon the motion of any party and a finding by the court that such party would be prejudiced by the disclosure of the exhibits at that stage of the proceedings, the court may consider some or all of the exhibits in camera.”
Subdivision (3) of subsection (b) provides: “In order to establish such good cause, the petition and exhibits must (A) allege the existence of specific facts which, if proven, would entitle the petitioner to relief under applicable law, and (B) provide a factual basis upon which the court can conclude that evidence in support of the alleged facts exists and will be presented at trial, provided the court makes no finding that such evidence is contradicted by judicially noticeable facts. If the petition and exhibits do not establish such good cause, the court shall hold a preliminary hearing to determine whether such good cause exists. If, after considering any evidence or argument by the parties at such preliminary hearing, the court finds there is not good cause for trial, the court shall dismiss all or part of the petition, as applicable.”
In effect, the statute places the burden on a habeas petitioner who wants to avoid dismissal pursuant to
In Parker v. Commissioner of Correction, 169 Conn. App. 300, 149 A.3d 174, cert. denied, 324 Conn. 903, 151 A.3d 1289 (2016), we set forth the following general standard for reviewing a habeas court‘s dismissal of a portion of a petition pursuant to
I
We first address the petitioner‘s claim that the court improperly dismissed counts one, two and three of the operative petition on the ground that his guilty plea in the underlying criminal action acted as a waiver of the claims contained in those counts. According to the petitioner, there was a sufficient factual nexus between the claims in those counts and his guilty plea to overcome such a waiver. We are not persuaded.
“It is well established that an unconditional plea of guilty, made intelligently and voluntarily, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973). In general, the only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court‘s jurisdiction.” State v. Johnson, 253 Conn. 1, 80, 751 A.2d 298 (2000); see also State v. Niblack, 220 Conn. 270, 276–77, 596 A.2d 407 (1991). Furthermore, a trial court has no duty to canvass a defendant to determine whether he or she understands every possible indirect or collateral consequence of a guilty plea. State v. Gilnite, 202 Conn. 369, 383, 521 A.2d 547 (1987).
Here, counts one and two of the habeas petition raise freestanding constitutional claims regarding the criminal trial court‘s decisions to grant Simon‘s motion to withdraw as counsel and to prohibit the petitioner from representing himself at trial. Both of those actions occurred prior to the petitioner‘s decision to enter a guilty plea in accordance with a plea agreement with the state at the time he was represented by Conroy. The petitioner never sought to withdraw his plea, and the claims themselves do not directly challenge the voluntariness of his plea. Further, the petitioner‘s claims do not challenge any aspect of the criminal court‘s subject matter jurisdiction. Accordingly, the constitutional challenges raised in counts one and two were waived when the petitioner entered his guilty plea. The petitioner has not directed our attention to any evidence submitted to the habeas court that, if presented at trial, would overcome the respondent‘s affirmative defense of waiver. Because the petitioner could not prevail on his claims at a habeas trial as a result of that waiver, the court properly dismissed counts one and two of the petition for lack of good cause to proceed to trial.
With respect to count three of the petition, the claims in that count focus on the alleged ineffective assistance provided by Simon. See footnote 6 of this opinion. Generally, the petitioner alleges that Simon provided ineffective assistance by failing fully to advise the petitioner of various legal rights related to both Simon‘s motion to withdraw from representation and the petitioner‘s rights to proceed as a self-represented party. Like the petitioner‘s related freestanding constitutional claims, however, the claims of ineffective representation by Simon all relate to matters that occurred prior to the petitioner‘s independent decision to enter a guilty plea, at which time he was represented by Conroy.
II
We next consider the petitioner‘s claim that the habeas court improperly dismissed count four of the petition on the basis of the same waiver theory it employed to dismiss counts one through three, which theory, according to the petitioner, was not asserted by the respondent in his return as a special defense to count four. More particularly, the petitioner argues that even if the claims in counts one, two, and three were waived by the entry of his guilty plea, he “should be permitted to litigate the claim of whether [Conroy] was ineffective for failing to properly advise [him] about the strength of an appeal and the waiver that would occur by pleading guilty, as described in [count] four of [his] amended petition for a writ of habeas corpus.” The respondent counters that the petitioner has misconstrued the basis for the habeas court‘s decision regarding count four. The respondent asserts that the habeas court dismissed count four not because it was waived by his guilty plea, but because it “was barred by the principles of res judicata, embodied in Practice Book § 23-29 [(3)], which bars successive petitions.” The respondent claims that this defense was expressly pleaded in his return. We agree with the respondent.
The following facts are relevant to our discussion. The amended habeas petition filed in the petitioner‘s first habeas action was submitted as an exhibit by the petitioner in the present case. In that petition, the petitioner asserted, albeit in a single count, that he had received ineffective assistance from both Simon and Conroy. The specifications of deficient performance were directed at “the petitioner‘s attorneys,” and allege that they had failed (1) “to pursue discovery to obtain and/or communicate with the petitioner regarding the evidence against [him] such as police reports, witness statements and warrants,” (2) “to challenge [his] arrest and the search of the area in which he was arrested and [his] arrest warrant,” (3) “to communicate with [him] regarding legal standards and evidentiary standards so [he] could make a knowing and voluntary decision of whether to proceed to trial or to plead guilty,” and (4) “to ensure the petitioner‘s plea was knowing, intelligent, and voluntary.” Because Simon did not represent the petitioner at the time of the plea offer and the decision to plead guilty, it is clear that the third and fourth specifications of deficient performance related to Conroy.
The fourth count of the petitioner‘s amended petition in the present action
In addition to generally denying the factual allegations underlying count four, the respondent asserted by way of affirmative defense that the claims raised were improperly successive in nature and, therefore, subject to dismissal pursuant to Practice Book § 23-29 (3). The respondent further asserted that the allegations made in count four present the same ground raised in a prior petition that was previously denied, the petitioner has failed to state any new facts or proffer new evidence not reasonably available at the time he filed the prior petition, and the petitioner received a full and fair opportunity to litigate his claim in the prior habeas action.
“Our courts have repeatedly applied the doctrine of res judicata to claims duplicated in successive habeas petitions filed by the same petitioner. . . . In fact, the ability to dismiss a petition [if] it presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition is memorialized in Practice Book § 23-29 (3).” (Citations omitted; internal quotation marks omitted.) Diaz v. Commissioner of Correction, 125 Conn. App. 57, 64-65, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011). Practice Book § 23-29 provides in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . . (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .”
In analyzing whether a petition is based on the “same ground” and, thus, subject to dismissal pursuant to Practice Book § 23-29 (3), our Supreme Court has explained that a “ground is a sufficient legal basis for granting the relief sought. . . . Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language. . . . They raise, however, the same generic legal basis for the same relief. Put differently, two grounds are not identical if they seek different relief.” (Citations omitted; internal quotation marks omitted.) James L. v. Commissioner of Correction, 245 Conn. 132, 141, 712 A.2d 947 (1998). A claim of ineffective assistance of counsel during trial proceedings constitutes the “same ground” for purposes of § 23-29 (3), despite changes in the precise underlying specifications of deficient performance, unless such new specifications are based on facts or evidence not reasonably available when the ground was raised in the earlier petition.
In its memorandum of decision in the present case, the court clearly disposed of count four on the basis that the ground
The petitioner advanced no arguments in his principal brief on appeal to this court as to why we should overturn the habeas court‘s determination that count four amounted to an improper successive petition. Because the court‘s ruling is legally and logically correct and supported by the record, we reject the petitioner‘s claim of error with respect to count four and conclude that the habeas court properly dismissed that count for failure to establish good cause to proceed to trial.
III
Finally, we turn to the petitioner‘s claims that the court improperly dismissed counts five and six of the petition, which, respectively, alleged the ineffective assistance of former habeas counsel DeSantis and Kraus. For the reasons that follow, and on the basis of the record before the habeas court, we conclude that the court improperly determined, at least in part, that there was no good cause to allow those counts to proceed to trial.
Our Supreme Court, in Lozada v. Warden, 223 Conn. 834, 843, 613 A.2d 818 (1992), established that habeas corpus is an appropriate remedy for the ineffective assistance of appointed habeas counsel, authorizing “what is commonly known as a ‘habeas on a habeas,’ namely, a second petition for a writ of habeas corpus . . . challenging the performance of counsel in litigating an initial petition for a writ of habeas corpus . . . [that] had claimed ineffective assistance of counsel at the petitioner‘s underlying criminal trial or on direct appeal.” Kaddah v. Commissioner of Correction, supra, 324 Conn. 550; see id., 563–70 (extending Lozada‘s holding to encompass third habeas petition challenging performance of second habeas counsel). Nevertheless, the court in Lozada also emphasized that a petitioner asserting a habeas on a habeas faces the “herculean task“; Lozada v. Warden, supra, 843; of proving in accordance with Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), both “(1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.” Lozada v. Warden, supra, 842. Any new habeas trial “would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement.” Id., 843.
Simply put, a petitioner cannot succeed as a matter of law—and, thus, cannot show good cause to proceed to trial—on a claim that his habeas counsel was ineffective by failing to raise a claim
That same analysis, however, does not apply equally to the ineffective assistance of counsel claim directed at Conroy in count four, which relates in part to the voluntariness of the petitioner‘s guilty plea. As discussed in part II of this opinion, those allegations were not waived because the petitioner pleaded guilty, but rather were barred by the habeas court as an improper successive claim under Practice Book § 23-29 (3) because the ground of ineffective assistance by Conroy had been raised and litigated in the petitioner‘s first habeas petition. Nevertheless, as recognized by the habeas court, the issue of whether DeSantis was ineffective in his handling of the claims against Conroy was never fully litigated but resolved by a stipulated judgment that restored the petitioner‘s appellate rights with respect to claims raised in the first habeas action. Similarly, whether Kraus, in the second habeas action, provided ineffective assistance with respect to the allegations in count five against DeSantis also has never been raised or litigated fully in a previous action. Unlike the situation as to counts one through three therefore, we cannot conclude that all claims directed against Conroy as set forth in count four necessarily fail as a matter of law and, therefore, we are left to consider whether the petitioner demonstrated good cause to proceed to trial on count five, limited to the claims that prior habeas counsel failed to properly raise or adequately litigate the alleged ineffective assistance of Conroy with respect to the voluntariness of the petitioner‘s guilty plea, and, with respect to count six against Kraus, whether Kraus failed to raise the ineffective assistance of DeSantis.9
In reaching its conclusion that the petitioner had not satisfied his burden of proof by both alleging facts that, if proven, would entitle him to relief and producing evidence demonstrating that those alleged facts exist, the habeas court focused primarily on the petitioner‘s affidavit, which he had attached as an exhibit to his memorandum of law in support of a finding of good cause. The court stated with respect to the claims against Conroy: “The affidavit also attests to the petitioner‘s interactions
After next setting forth its conclusion that the petitioner failed to meet his burden of proof under
Among the documentary evidence that may be submitted in support a finding of good cause to proceed to trial are affidavits and unsworn statements.
To summarize, we reverse the judgment of dismissal pursuant to
The judgment is reversed in part and the case is remanded for further proceedings in accordance with the preceding paragraph; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of the date of oral argument.