Opinion
No. TSR CV 01 0812639 S
February 10, 2004
MEMORANDUM OF DECISION
The respondent in the above-captioned matter filed a written motion to dismiss pursuant to Practice Book Section 23-29(3) based on a claim that the amended petition is successive, an abuse of the writ and res judicata. The respondent also pleaded a defense of procedural default in his return. The petitioner objected to the motion to dismiss and the court held a hearing at which the parties offered evidence and made arguments in support of their respective positions. In addition, the petitioner was given an opportunity to make an offer of proof to determine whether he could meet the "cause and prejudice" standard for overcoming the respondent's claims of abuse of writ and procedural default. Based on the court's review of the pleadings, credible evidence, arguments and applicable law, the court grants the respondent's motion to dismiss regarding some of the petitioner's claims because they are successive, an abuse of the writ, res judicata and the petitioner is procedurally defaulted from raising them. Further, in light of the dismissed claims of ineffective assistance, the remaining allegations of ineffective assistance, even if true, fail to state a claim upon which relief can be granted.
"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 proffer new evidence not reasonably available at the time of the prior petition."
The hearing was spread over two days: January 23 and February 5, 2004. On the second day of the hearing, the court rendered an oral decision, but that same day decided to reduce its decision to writing.
Facts
The court finds the following facts based. The petitioner in this case is Percy Mejia. He was convicted by a jury of committing murder and was sentenced to forty-five years in prison. His conviction was affirmed on appeal. See State v. Mejia, 233 Conn. 215 (1995). Subsequently, the petitioner filed his first petition for a writ of habeas corpus which was dismissed after a trial on the merits. The dismissal of the petitioner's first petition was affirmed by the Appellate Court. See Mejia v. Commissioner of Correction, CT Page 3640 48 Conn. App. 230 (1998), cert denied, 245 Conn. 902 (1998). The petitioner was represented in his first habeas trial and on his habeas appeal by Attorney David Rozwaski. The petitioner alleged in his first habeas petition that his trial counsel, Susan Brown, failed to raise arguments during his trial and his sentencing about his use of diabetes medication and his resulting "insulin shock." The petitioner was represented at sentencing by Attorney Kenneth Simon who replaced Brown as the petitioner's lawyer. In his first habeas petition, the petitioner did not specifically make a claim of ineffective assistance against Simon. It should be noted, however, that the court, Sullivan, J., made a factual finding that Simon represented the petitioner at sentencing and that the petitioner was not deprived of effective assistance of counsel at sentencing. See Mejia, supra, Docket No. 3563313. Further, in addressing the petitioner's claim of ineffective assistance of counsel at sentencing, the Appellate Court "conclude[d] that the petitioner has failed to meet his burden of demonstrating prejudice." See Mejia, supra, 48 Conn. App., p. 234.
See General Statutes Section 53a-54a. In addition to murder, the petitioner was convicted of possession of a weapon in a motor vehicle, carrying a pistol without a permit and unlawful possession of a sawed-off shotgun.
Attorney Neal Cone represented the petitioner in his criminal appeal.
See Mejia v. Warden, Judicial District of New Haven, Docket No. CV94-0356313 (September 13, 1996).
The first habeas court, Sullivan, J., wrote that "The petitioner's claims that [counsel] was ineffective in that:
a) she did not adequately prepare and present evidence in support of the Petitioner's defense of insulin shock during the course of trial; and
b) she did not adequately prepare and present evidence in support of mitigation of the Petitioner's conviction at the time of sentencing; and
c) she did not make reasonable efforts to confirm and ensure that his client the Petitioner fully and completely understood and appreciated the plea bargain offer. See Mejia, supra, Docket No. 356313."
The petitioner filed a second petition concerning his murder conviction on January 15, 1997 in the Judicial District of Hartford under docket number 97-0568110. He was represented in that case by Attorney Patrice Cohan. In that habeas proceeding, the respondent filed a motion to dismiss alleging successive petition and abuse of writ. That motion was scheduled for a hearing on May 12, 1999 and on that date, the court, Corrigan, J.T.R., accepted the petitioner's withdrawal of the petition, with prejudice, after canvassing the petitioner and finding that the withdrawal was made knowingly, intelligently and voluntarily after consultation with counsel. At that hearing the court noted and the petitioner agreed that the claims made in the withdrawn petition were "basically" the same claims raised in the first habeas petition, i.e., the "insulin shock" defense claims. At the hearing, the petitioner did not give any indication that there were any new grounds for relief based on new evidence in the second petition.
The parties and the court agreed that the second petition which was withdrawn on May 12, 1999 was destroyed by the Judicial District of Hartford clerk's office due to the age of the file.
The petitioner's current petition, dated November 11, 2003 is his third petition relative to his murder conviction. This newest petition includes five counts, each claiming ineffective assistance by Brown and Simon as his trial counsel, Rozwaski as his first habeas counsel and habeas appellate counsel and Cohan as his second habeas counsel. The amended petition does not make any claim against the petitioner's criminal appellate counsel. The petitioner, through counsel, admitted at oral argument on the motion to dismiss that to some extent, the petitioner's claims of ineffective assistance against Brown and Simon relate to the "insulin shock" defense alleged in his first petition. Apart from the insulin shock related claims, the petitioner's amended petition asserts numerous failures by his various attorneys unrelated to the insulin shock defense.
In one of the counts, the petitioner makes a claim of ineffective assistance against an unnamed appellate counsel. It is unclear whether this count is directed at the criminal appellate counsel, Neal Cone, or the habeas appellate counsel, Rozwaski. The court will presume the count is directed at Rozwaski. In any event, the petition fails to claim ineffective assistance against at least one of the two appellate attorneys who represented the petitioner.
See footnote 8.
The petitioner's Amended Petition, dated November 11, 2003, as previously indicated, includes five counts. Paragraphs 16-82 of the petition include the specifications of ineffectiveness relative to the five counts.
Discussion
The respondent claims that the petition in this case is successive, an abuse of the writ and res judicata. He argues in support of this claim that the petitioner failed to prove in his first petition that his criminal trial attorneys were ineffective, that his current petition fails to raise claims that could not or should not have been raised in his prior petitions and that in any case, he permanently withdrew his right to pursue any further habeas claims related to his murder conviction. The petitioner claims that the current petition is premised, at least to some degree, on new grounds and new facts not available at the time of his previous petitions. The court agrees with the respondent insofar as he moves to dismiss the petitioner's claims that Brown and Simon failed to pursue issues related to his insulin shock defense.
"Decisions concerning abuse of the writ are addressed to the sound discretion of the trial court. Theirs is the major responsibility for the just and sound administration of . . . collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)." (Internal quotation marks omitted.) Iasiello v. Manson, 12 Conn. App. 268, 271, 530 A.2d 1075, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). In addition, "the doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim." Brown v. Commissioner of Correction, 44 Conn. App. 746, 749, 692 A.2d 1285 (1997). The petitioner had a full and fair opportunity in his first habeas petition to litigate the insulin shock claims on the merits and failed to prove that either Brown or Simon was ineffective. See Mejia v. Warden, supra, Judicial District of New Haven, Docket No. CV94-0356313 (September 13, 1996); Mejia v. Commissioner of Correction, supra. Moreover, on May 12, 1999 when the petitioner appeared before Judge Corrigan, he freely and voluntarily relinquished his right to pursue any further habeas claims, with prejudice, in connection with his insulin shock defense. Insofar as the petition in this case seeks to reassert the claims that Brown and Simon failed to present the insulin shock defense at trial and at sentencing, it is successive, an abuse of the writ and res judicata.
The petitioner also makes numerous claims of ineffective assistance against Brown and Simon which were not based on his insulin shock defenses. The respondent, who raised the defense of procedural default in his return, argues that the petitioner's failure to raise these additional claims in the trial court or on appeal require him to prove "cause and prejudice" in order to have those "non-insulin shock" claims heard on the merits. The respondent further argues that the petitioner has failed to make a satisfactory offer of proof as requested by this court, that he could prove cause and prejudice and thereby overcome any procedural default. The petitioner argues that his new claims are sufficiently serious to justify a hearing on the merits. The court finds that the petitioner has failed to make a satisfactory offer of proof that there is cause and prejudice for his failure to raise the non-insulin shock claims in his criminal trial or the criminal appeal. In addition, the court finds that the petitioner has failed to show that his non-insulin shock claims are based on new facts or evidence that was not reasonably available at the time he filed his first and second petitions.
For example, the petitioner claims that Brown failed to properly investigate the facts; that Simon failed to articulate mitigating factors in his sentencing argument; that Rozwaski failed to argue that Brown failed to challenge the jury array and raise Batson challenges and that Cohan failed to ensure that the petitioner's withdrawal of his second petition was voluntary. The petitioner also makes many other claims of ineffective assistance against his various lawyers.
"The appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure." (Citations and internal quotation marks omitted) Cobham v. Commissioner of Correction, 258 Conn. 30, 40 (2001) "[T]he cause standard requires the petitioner to show that some objective factor external to the defense impeded counsel's effort to raise the claim in state court . . . Objective factors that constitute cause include interference by officials that makes compliance with the state's procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel." McCleskey v. Zant, 499 U.S. 467, 493 (1991); prejudice means "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Dumas v. Commissioner of Correction, 80 Conn. App. 62, 64 (2003).
The petitioner in this case has failed to make a satisfactory offer of proof that some objective factor external to the defense prevented him from raising the non-insulin shock claims regarding Brown and Simon in the criminal trial court or in his direct criminal appeal. The petitioner has also failed to make a satisfactory offer of proof that the result of his trial would have been different if he were to succeed on the merits of the non-insulin shock claims.
Further, the petitioner failed to make a satisfactory offer of proof at oral argument or in his pleadings that his non-insulin shock claims are based on new evidence that was unavailable at the time he filed his first and second petitions. Because the petitioner has failed to show that he can overcome the cause and prejudice standard and that there is new evidence to support his non-insulin shock claims, those claims are both procedurally defaulted and successive.
In addition to his non-insulin shock claims against Brown and Simon, the petitioner also made claims of ineffective assistance against his first habeas trial and appellate counsel, Rozwaski, and his second habeas counsel, Cohan. The petitioner is, of course, entitled to competent habeas counsel and may bring a claim of ineffective assistance against habeas counsel. See Lozada v. Warden, 223 Conn. 834 (1992). In pursuing a claim of ineffective assistance against habeas counsel, however, the petitioner can only succeed if he also proves that his trial counsel was also incompetent. "To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective . . . A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable . . . Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial. This new 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." (Internal citations and quotation marks omitted.) See Lozada v. Warden, 223 Conn. 834, 842 (1992).
Practice Book Section 23-29(2) states that "[t]he 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: (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted . . ." In light of this court's finding that the petitioner's claims against his trial counsel, Brown and Simon, are successive, an abuse of the writ, res judicata or procedurally defaulted, he cannot succeed in proving that his habeas counsel and his trial counsel were ineffective. In short, even assuming that the petitioner's habeas attorneys were ineffective, his inability to prove deficient performance and prejudice against Brown and Simon foreclose his claims against Rozwaski and Cohan. Stated another way, the petitioner fails to state a claim against Rozwaski and Cohan for which relief can be granted because he simply is unable to ultimately prove that his trial counsel were ineffective.
Furthermore, the petition does not allege a claim of ineffective assistance against both of his appellate attorneys, only one of them. Therefore, even if the court were to assume that all of the lawyers named in his petition were ineffective, he still cannot succeed on his claim because he must show that all his attorneys were deficient and as a result, he suffered prejudice. Lozada, supra. Therefore, the counts in the petition alleging ineffective assistance against Rozwaski and Cohan are dismissed.
Conclusion
The court grants the respondent's motion to dismiss because all the petitioner's claims against his trial counsel are successive, an abuse of the writ, res judicata or procedurally defaulted.
Further, the non-insulin shock claims the petitioner made against habeas counsel are procedurally defaulted and the petitioner has failed to prove that such claims are based on new evidence that was unavailable when he filed his first and second petitions. In addition, the petitioner fails to state a claim against his habeas counsel for which relief can be granted because he is foreclosed from proving, as he must, that all his trial lawyers as well as his habeas lawyers were ineffective.
Finally, the petitioner fails to allege that both of his appellate counsel were ineffective and therefore, he fails to state a claim for which relief can be granted even if the court assumes that all the attorneys named in his petition were ineffective.
The Court
White, J.