ANTHONY OLIPHANT v. COMMISSIONER OF CORRECTION
AC 37028
Appellate Court of Connecticut
Officially released November 10, 2015
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ANTHONY OLIPHANT v. COMMISSIONER OF CORRECTION
(AC 37028)
Gruendel, Lavine and Mullins, Js.
Argued September 17—officially released November 10, 2015
(Appeal from Superior Court, judicial district of Tolland, Fuger, J.)
Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Adrienne Maciulewski, deputy assistant state’s attorney, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Anthony Oliphant, appeals to this court for the fifth time since he was convicted of larceny in 1995.1 The present appeal follows the habeas court’s denial of the petition for certification to appeal from the judgment dismissing his amended petition for a writ of habeas corpus (2011 petition). On appeal, the petitioner claims that the habeas court, Fuger, J., (1) abused its discretion by denying his petition for certification to appeal and (2) improperly dismissed his 2011 petition.2 We conclude that the petitioner’s claims allеged in the 2011 petition are barred by the doctrine of res judicata and, therefore, that the habeas court did not abuse its discretion by denying certification to appeal. The appeal is dismissed.3
General Statutes § 52-470 (g) provides in relevant part: ‘‘No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person’s release may be taken unless the appellant . . . petitions the judge before whom the case was tried . . . to certify that a question is involved in the decision whiсh ought to be reviewed by
‘‘Our Supreme Court has explained that one of the goals of [
When a habeas court denies a petition for certification to appeal, ‘‘a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.’’ (Internal quotation marks omitted.) Logan v. Commissioner of Correction, supra, 125 Conn. App. 750–51.
To prevail on a denial of certification claim, the petitioner must ‘‘demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . A petitioner who еstablishes an abuse of discretion
through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits. . . . In determining whether the habeas court abused its discretion [a reviewing court] necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.’’ (Emphasis in original; internal quotation marks omitted.) Wright v. Commissioner of Correction, 143 Conn. App. 274, 285, 68 A.3d 1184, cert. denied, 310 Conn. 903, 75 A.3d 30 (2013).
The present appeal stems from the petitioner’s 1995 conviction of one count of defrauding a public community in violation of
of the right to counsel. Id., 280. At his probation revocation hearing, the petitioner again was dissatisfied with the public defender appointed to represent him and asked to be permitted to represent himself. ‘‘The court [Vitale, J.] found, after an extensive canvass of the [petitioner], that he was competent to waive counsel and that his waiver was knowing, intelligent and voluntary.’’ State v. Oliphant, supra, 115 Conn. App. 548.
Meanwhile, after his larceny conviction was affirmed, the petitioner, as a self-represented party, filed seriatim three petitions for а writ of habeas corpus, which were consolidated. Oliphant v. Commissioner of Correction, 146 Conn. App. 499, 508–509, 79 A.3d 77, cert. denied, 310 Conn. 963, 83 A.3d 346 (2013). Attorney Rosemarie T. Weber, appointed counsel, filed a second amended consolidated petition and, for health reasons, a motion to withdraw. Id., 509. The habeas court, A. Santos, J., granted Weber’s motion to withdraw but declined to act on the second amended consolidated petition because the petitioner claimed that the allegations were incomplete. Id. On September 9, 2008, the self-represented petitioner filed yet another petition for a writ of habeas corpus. Id. In response to the 2008 petition, the court, Nazzaro, J., issued an order in which it ‘‘recited the petitioner’s larceny conviction and probation violation and related histories and identified the allegations of the petition. [Judge Nazzaro] noted the consolidated petition then pending in the court and noted also that the allegations in the September 9, 2008 petition were duplicative or that they arose out of the same set of facts and underlying conviction and probation violation.’’ Id., 509–10. The court ordered the 2008 petition consolidated with the previously consolidated petitions for a writ of habeas corpus and also that the pеtitioner ‘‘refrain from filing additional petitions arising out of the subject larceny conviction or violation of probation.’’ Id., 510.
Following Weber’s withdrawal, Attorney Robert J. McKay was appointed to represent the petitioner. Id. On February 16, 2010, McKay filed a motion for permission to withdraw as counsel along with an Anders brief5 under seal. Id.; see
In his Anders brief, McKay stated that he had conducted a thorough review of voluminous documents and transcripts related to the petitioner’s convictions and found that each and every issue proposed by the petitioner within the pending consolidated petition either previously had been litigated and/or was withоut merit and wholly frivolous. Oliphant v. Commissioner of Correction, supra, 146 Conn. App. 518–19. The petitioner objected to McKay’s motion to withdraw. Id., 510–11. The habeas court, Sferrazza, J., granted McKay’s motion to withdraw and stated in a memorandum of decision filed February 15, 2011, that it had ‘‘reviewed counsel’s motion and supporting memorandum and documentation, including the transcripts of the petitioner’s crimi-
nal trial and violation of probation hearing, as well as the documentation submitted by the petitioner, and concludes that there are no nonfrivolous issues to be tried.’’ Oliphant v. Warden, 53 Conn. Supp. 194, 197, 80 A.3d 597 (2011), aff’d, 146 Conn. App. 499, 79 A.3d 77, cert. denied, 310 Conn. 963, 83 A.3d 346 (2013).
On July 1, 2011, the parties appeared before the habeas court, T. Santos, J., for a hearing to show cause. See
Id., 501.
With respect to his claim that Judge T. Santos abused her discretion by denying his petition for certification to appeal, the petitioner argued that McKay failed to ‘‘[look] for evidence outside the record that the petitioner was incompetent to waive his right to counsel during the larceny trial and to represent himself at the violation of probation hearing.’’ (Emphasis added.) Id., 515. Although the record on appeal was inadequate to determine McKay’s rationale for failing to look outside the reсord, this court undertook an extensive review of the
record to support his claim that he was incompetent.’’8 (Emphasis in original; internal quotation marks omitted.) Oliphant v. Commissioner of Correction, supra, 146 Conn. App. 521.
The petitioner also claimed that Judge T. Santos ‘‘erroneously found at the conclusion of the show cause hearing that all of the claims he had raised were frivolous’’; id., 525; because there were triable issues regarding the denial of the presumption of innocence at his larceny trial. Id., 526. More specifically, ‘‘he was denied the presumption of innocence at his larceny trial because he was required to wear shackles during jury selection and to appear one day in court wearing prison garb.’’ Id., 527. Judge Gaffney’s order that ‘‘the petitioner be shackled during jury selection was addressed and rejected by this court in Oliphant v. Commissioner of Correction, [80 Conn. App. 613, 614–18, 836 A.2d 471 (2003), cert. denied, 268 Conn. 907, 845 A.2d 412 (2004)].’’ Oliphant v. Commissioner of Correction, supra, 146 Conn. App. 527. That portion of the petitioner’s triable issues claim, therefore, was barred by the doctrine of res judicata. Id. As to his claim that one day during his larceny trial he was required to wear prison garb before the jury, this court found that the petitioner had failed to raise that claim in his consolidated petition and that a habeas court is not required to consider claims not alleged.9 Id., 528. This
With this lengthy background in mind, we turn to the procedural history regarding the present appeal. On October 28, 2011, while the appeal of the consolidated petitions was pending in this court, the petitioner, again self-represented, filed a petition for a writ of habeas corpus alleging that his 1995 larceny conviction was illegal in that the criminal charges against him constituted an abuse of authority and prosecutorial misconduct in retaliation for his having commenced three federal lawsuits against the city of Meriden. The petitioner asserted that the claim had never been raised in a prior state habeas petition. On December 29, 2013, after the petitioner had completed serving his sentences for both the larceny conviction and violation of probation, he filed an amended two count petition, which Judge Fuger dismissed. Only the allegations of the second count are at issue in the present appeal.
In the second count of the 2011 petition, the petitioner alleged that McKay had failed to investigate adequately the petitioner’s claims before filing his motion to withdraw and Anders brief. The рetitioner claimed that had McKay adequately investigated his mental incompetence and presented the results of his investigation to Judge Sferrazza or Judge T. Santos, those judges would not have permitted McKay to withdraw his appearance
and the petitioner’s larceny conviction and violation of probation would have been voided. He also alleged that if McKay had adequately investigated the record, McKay would have discovered that the petitioner had a meritorious claim that he unlawfully had been permitted to appear before the jury in prison garb during his larceny trial.
Thе habeas court, Hon. George Levine, judge trial referee, held a pretrial conference on January 19, 2014, and sua sponte dismissed the 2011 petition. Judge Levine subsequently vacated the dismissal and ordered the parties to file briefs as to why the 2011 petition should not be dismissed pursuant to
The parties appeared before Judge Fuger for oral argument, after which the court issued an orаl ruling dismissing the 2011 petition. The court stated: ‘‘This matter has been litigated. It is res judicata. I am satisfied that this issue was adequately presented to Judge Sferrazza [and] Judge [T.] Santos, [and] was affirmed by the Appellate Court in Oliphant v. Commissioner of Correction, [supra, 146 Conn. App. 499]. This matter has been litigated fully. There are no further issues remaining. As a result, the petition is dismissed.’’
The petitioner, represented by counsel on appeal, claims that Judge Fuger abused his discretion by denying the petition for certification to appeal. We disagree.
Judge Fuger dismissed the 2011 petition pursuant to
viously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .’’
‘‘The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made. . . . The doctrine . . . applies to criminal as well as civil proceedings and to state habeas corpus proceedings.’’ (Internal quotation marks omitted.) McGee v. Commissioner of Correction, 157 Conn. App. 863, 873, 118 A.3d 140, cert. denied, 318 Conn. 903, 118 A.3d 140 (2015). ‘‘The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made. . . . A cause of action is that single group of facts that is claimed to have brought about an unlawful injury to the plaintiff and that entitles the plaintiff to relief.’’ (Citation omitted; emphasis in original; internal quotation marks omitted.) Pierce v. Commissioner of Correction, 158 Conn. App. 288, 306–307, 118 A.3d 640, cert. denied, 318 Conn. 907, 118 A.3d 640 (2015).
‘‘The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel . . . is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . .
‘‘An issue is actually litigated if it is properly raised in the pleadings or
‘‘The judicial doctrines of res judicata and collaterаl estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judg-
ments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.’’ (Internal quotation marks omitted.) Isaac v. Truck Service, Inc., 253 Conn. 416, 422–23, 752 A.2d 509 (2000).
In the 2011 petition, the petitioner alleged that McKay rendered ineffective assistance of habeas counsel by filing a motion to withdraw as counsel and an accompanying Anders brief representing that the subject petition alleged no nonfrivolous claims because McKay fаiled to look outside the record. On appeal, the petitioner claims that Judge Fuger abused his discretion by dismissing the subject petition as res judicata pursuant to
The issue presented here is similar to the one this court addressed in Coleman v. Commissioner of Correction, 149 Conn. App. 719, 87 A.3d 1208, cert. denied, 312 Conn. 905, 93 A.3d 156 (2014). In Coleman, the petitioner, Charles Coleman, challenged the dismissal of ‘‘his petition for certification to appeal from the judgment of the habeas court dismissing count seven of his amended petition for a writ of habeas corpus.’’ Id., 720–21. Coleman alleged in count seven that his court-appointed counsel, Kathleen Berry, had rendered ineffective assistance in two prior habeas cases. Id., 721. Berry had been permitted ‘‘to withdraw from both cases under Anders v. California, [supra, 386 U.S. 738] and
In rendering its decision in Coleman, this court stated: ‘‘Of direct relevance to our conclusion that the habeas court did not abuse its discretion in denying the petition for certification to appeal on the ground that [Coleman’s] claims in count seven are subject to the
doctrine of res judicata is Coleman v. Commissioner of Correction, [274 Conn. 422, 876 A.2d 533 (2005)] in which [Coleman] claimed that
This court agreed with the habeas court in Coleman, which stated in dismissing the habeas petition: ‘‘And so there havе been two judicial findings that Attorney Berry raised all potential claims and found no merit in any of them. This inquiry is more thorough than whether an attorney has rendered effective assistance of counsel because counsel is not obligated ordinarily to raise every conceivable claim as Attorney Berry was under the Anders standard. So, essentially, this is res judicata because the effectiveness and performance of Attorney Berry has already been approved by the trial court and the Appellate Court.’’ Id., 723–24.
In this case as well, Judge Sferrazza, Judge T. Santos, and this court previously determined that McKay did not render ineffective assistance of habeas counsel in filing a motion to withdraw. The claim is res judicata, and therefore, Judge Fuger did not abuse his discretion by denying certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
493 (1967).
6
‘‘(b) At the time such motion is filed, counsel for the petitioner shall also file all relevant portions of the record of the criminal case, direct appeal and any postconviction proceedings not already filed together with a memorandum of law . . . .’’
7 The petitioner claimed specifically that Judge T. Santos abused her discretion by denying his petition for certification to appeal as ‘‘(1) the motion to withdraw pursuant to an Anders brief filed by [McKay] was granted improperly, (2) his constitutional rights were violated by the courts’ failure to appoint substitute habeas counsel and to grant him access to a law library, and (3) there are triable issues concerning (a) newly discovered evidence and his actual innocence, (b) loss of statutory good time credit, and (c) denial of the presumption of innocence.’’ (Footnote omitted.) Oliphant v. Commissioner of Correction, supra, 146 Conn. App. 501–502.
8 The petitioner alleged, without documentation, that he was diagnosed with post-traumatic stress disorder, but he provided no legal or medical authority that such a diagnosis rendered him incompetent to stand trial or to represent himself. Oliphant v. Commissioner of Correction, supra, 146 Conn. App. 521 n.25.
9 The petitioner’s claims regarding shackles and prison garb are intertwined and fall within a claim regarding the presumption of innocence. The following colloquy transpired during jury selection in the larceny case:
‘‘The Court: Are we ready to proceed with jury selection?
‘‘[The Petitioner]: No, Your Honоr. I would like to address the court, Your Honor.
‘‘The Court: All right.
‘‘[The Petitioner]: Your Honor, regarding the shackles, is one issue. And another issue was my clothing. At the present time I would like to ask for a continuance due to the fact that I wasn’t allowed to get my, wear something other than this here. It’s going to prejudice my case. This is a bad look with the shackles on, sir. Then, with this uniform.
‘‘The Court: Mr. Oliphant, the information brought to my attention is that you caused a big problem at the jail, delayed your departure here by some forty-five minutes. And were generally obstreperous. You will wear what you have on now and the shackles will remain. I should indicate that I conferred with Captain Leonard. And he is recommending that they remain.’’
‘‘A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.’’ (Internal quotation marks omitted.) Bridges v. Commissioner of Correction, 97 Conn. App. 119, 122, 905 A.2d 103, cert. denied, 280 Conn. 921, 908 A.2d 543 (2006); but see Kearney v. Commissioner of Correction, 113 Conn. App. 223, 234, 965 A.2d 608 (2009) (if previous application brought on same grounds was denied, pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at previous hearing).