Opinion
No. CV 00-0439113 S
September 13, 2006
MEMORANDUM OF DECISION AFTER HEARING ON COUNTS TWO AND THREE
In this habeas corpus petition, the court heard the respondent's motion to dismiss the first count. The motion was granted after a hearing.
Subsequently, the court heard the parties after ordering a hearing to determine whether the remaining second and third counts should also be dismissed.
Count three deals with the performance of appellate counsel and the court concludes that count should proceed to trial.
The second count deals with habeas counsel and presents a somewhat novel proposition. This is the petitioner's second habeas corpus petition, the first having been denied. That denial was upheld on appeal.
In this petition, ineffective assistance of trial counsel and habeas counsel is alleged. The first count dealing with trial counsel was dismissed as noted above. In its decision, the court relied on Gagne v. Norton, 189 Conn. 29 (1983), citing this at page 32:
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 second count attempts to ascribe to habeas counsel all of the alleged misdeeds of trial counsel. These allegations were made in the first petition, and were addressed by the court.
In that proceeding, the trial court's decision was that the petitioner had not established that trial counsel was ineffective nor that but for his performance the outcome would have been more favorable. That decision was affirmed on appeal. ( Kearney v. Commissioner, 67 Conn.App. 232 (2001).
The second count is therefore dismissed.