Opinion
CV144006076
10-10-2019
James MITCHELL #253732 v. WARDEN
UNPUBLISHED OPINION
Hon. John M. Newson Judge.
I. Procedural History
The petitioner was the defendant in a matter pending in the Judicial District of Hartford, State v. James Mitchell, CR03-573482, where he was convicted following a jury trial of Attempted Murder, Conspiracy to Commit Murder, Kidnapping First Degree, Conspiracy to Commit Kidnapping First Degree, Conspiracy to Commit Sexual Assault First Degree, Sexual Assault First Degree, Assault First Degree, and Criminal Possession of a Firearm. On November 1, 2005, he was sentenced to a total effective sentence of seventy-five (75) years. The petitioner appealed his convictions, which were affirmed in State v. Mitchell, 110 Conn.App. 305, 955 A.2d 84, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008). Since his sentencing, the petitioner has also brought several collateral attacks against his conviction, which, along with his direct appeal, provide the basis for this motion to dismiss.
The petitioner commenced the present habeas action March 26, 2014. The Second Amended petition alleges six different claims, however, only the following are pertinent to this motion to dismiss: a due process violation based on alleged prosecutorial misconduct (Claim II), ineffectiveness of trial counsel (Claim III), due process violation by allegedly submitting, or failing to correct, known false testimony from the victim that the petitioner was the shooter, but later eliciting testimony from her that his co-defendant was the shooter in the co-defendant’s trial, (Claim IV), and a Brady violation for the State allegedly failing to disclose an adverse opinion by Lindsay Hawk, a video expert who testified at the criminal trial, that the video in possession of the State did not corroborate the State’s theory of the case. Upon review of the current petition, this Court raised the issue pursuant to Practice Book § 23-29 of whether Claims II, III, IV and V should be dismissed on grounds of res judicata or collateral estoppel.
The original notice issues by the Court also included the issue of whether the petitioner could establish a prima facie case as to Claims II and IV under General Statutes § 52-470(b)(1), however, upon further review of the file, the Court realized that no hearing could be held under that section, because the pleadings were not closed.
II. Law and Discussion
When adjudicating a motion to dismiss, "a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citation omitted; quotation marks omitted.) Lawrence Brunoli, Inc. v. Town of Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "Because subject matter jurisdiction implicates the authority of the court, the issue, once raised, must be resolved before proceeding to the merits of the case ..." (Citation omitted.) State v. Fowler, 102 Conn.App. 154, 158, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007).
"The doctrine of res judicata provides that a former judgment [on the merits] 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 ..." (Emphasis added.) Johnson v. Commissioner of Correction, 168 Conn.App. 294, 305, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d 385 (2016). In the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ... the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding ." (Emphasis added.) Carter v. Commissioner of Correction, 133 Conn.App. 387, 393, 35 A.3d 1088 (2012). "[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief ... But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition." Id.
"In the context of a habeas action, a court must determine whether a petitioner actually has raised a new legal ground for relief or only has alleged different factual allegations in support of a previously litigated claim. 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 ... [T]he doctrine of res judicata in the habeas context must be read in conjunction with Practice Book § 23-29(3), which narrows its application ... Practice Book § 23-29 states 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 ...’ Thus, a subsequent petition alleging the same ground as a previously denied petition will elude dismissal if it alleges grounds not actually litigated in the earlier petition and if it alleges new facts or proffers new evidence not reasonably available at the time of the earlier petition." (Citations omitted, internal quotation marks omitted.) Johnson v. Commissioner of Correction, 168 Conn.App. 294, 305-06, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d 385 (2016).
"By ground, we mean simply a sufficient legal basis for granting the relief sought by the [petitioner]. For example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal [habeas] relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different ‘ground’ than does one predicated on alleged physical coercion ... Should doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant. The prior denial must have rested on an adjudication of the merits of the ground presented in the subsequent application ... This means that, if factual issues were raised in the prior application, and it was not denied on the basis that the files and records conclusively resolved these issues, an evidentiary hearing was held." (Citations omitted.) Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).
CLAIM II- VIOLATION OF DUE PROCESS
In Claim II, the petitioner alleges that the State violated his due process rights by asserting one factual scenario in the petitioner’s criminal trial (that the petitioner was the shooter) and then asserting "a factually contradictory theory" in the co-defendant’s trial (that the co-defendant was the shooter). The petitioner asserts that the State allegedly proceeding under a different legal theory against Travis Hampton in his subsequent criminal trial violated the petitioner’s due process rights, relying on cases such as Thompson v. Calderon, 120 F.3d 1045, 1058-59 (9th Cir. 1997) (en banc). Although the petitioner attempts to argue around the true nature of this claim with nuanced uses of the meaning and analysis of "due process," this is ultimately a claim that the petitioner’s rights to "due process" were violated by misconduct of the State’s Attorney. Id. at 1057-58 ("The question before us is whether this prosecutorial misconduct [of advancing a conflicting theory of guilt at the separate the trial of a co-defendant] violated [the defendant’s] right to due process and a fair trial"). What the petitioner does in the present case is to attempt to mask a claim of prosecutorial misconduct by framing it in language emphasizing his due process rights. Although he may call it a different name, it is still the same. Thompson v. Calderon, supra, 120 F.3d at 1058-59.
In addition, the claim that the State’s theories in these cases were so materially different as to violate due process appears, upon initial review, to border on frivolity and bad faith. First, both faced principal and conspirator charges regarding the shooting of the victim. Additionally, according to the Appellate Court summaries, the evidence introduced at both trials was that both the petitioner and his co-defendant, Travis Hampton, shot the victim at different times during the same incident. The facts that could reasonably have been found by the juries in both trials was that, after they kidnapped and sexually assaulted the victim, the petitioner offered her an opportunity to flee, then shot her as she attempted to escape. As she continued to flee, the defendant gave pursuit in a car and eventually blocked her path, at which time the co-defendant, now holding the weapon, approached and shot her a second time. See, State v. Mitchell, supra, 110 Conn.App. at 308-10 and State v. Hampton, 293 Conn. 435, 438-41, 988 A.2d 167 (2009). According to the Appellate Court summaries, the only thing that appears to be "materially" different in the Hampton case is that the victim provided additional testimony that she continued to flee after Hampton shot her and took cover in some nearby bushes, and that Hampton took several additional shots at her with the shotgun, some of which may have struck her.
The theory of prosecutorial misconduct claimed by the petitioner requires much more than the minor inconsistencies in, or additions to, evidence that is bound to occur during separate trials of co-defendants. Instead, the law requires a showing that the State’s Attorney actively adopted and advanced internally inconsistent theories of guilt for suspects allegedly involved in the same criminal act. "We are left with a picture of the prosecutor’s temporary abandonment during [the petitioner’s] trial of the theory he presented, and supported with evidence, at the preliminary hearing, in the pretrial motions, and again at and after [the co-defendant’s] trial. The prosecutor manipulated evidence and witnesses, argued inconsistent motives, and at [the co-defendant’s] trial essentially ridiculed the theory he had used to obtain a conviction and death sentence at [the petitioner’s] trial." Thompson v. Calderon, supra, 120 F.3d at 1057.
This petitioner previously raised six claims of prosecutorial misconduct in his petition for new trial, including failure to disclose certain cross examination evidence about a police witness and failing to disclose certain inducements allegedly offered to the victim to testify. Mitchell v. State, Superior Court judicial District of Hartford, Docket No. CV06-4021601 (Mullarkey, J., Aug. 22, 2016). That matter went to trial, and the court found that the petitioner had failed to present any evidence to support claims that there had been any "new" or material evidence which the State had failed to disclose, nor was there any proof that the State had provided inducements to anyone to testify. Since he has previously litigated a claim of prosecutorial misconduct, he is barred from litigating the same claim again. Carter v. Commissioner of Correction, supra, 133 Conn.App. 393. Claim II is dismissed. Id.
The petitioner also raised a claim of prosecutorial misconduct in his direct appeal. State v. Mitchell, 110 Conn.App. 305, 316, 955 A.2d 84 (2008). Again, he failed to specifically raise the present claims of prosecutorial misconduct at that time. A petitioner may not use habeas corpus as an additional opportunity to litigate issues that have previously been addressed on direct appeal. McGee v. Commissioner of Correction, 157 Conn.App. 863, 872-73, 118 A.3d 140 (2015), cert. denied, 318 Conn. 903, 122 A.3d 633 (2015). This would provide an additional grounds to dismiss the petitioner’s claim. Id.
"The defendant next claims that the prosecutor engaged in [misconduct] denying the defendant a right to a fair trial."
CLAIM III- INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
In Claim III, the petitioner alleges that his trial attorney provided ineffective assistance by, among other conduct, failing to object to certain evidence and statements offered by the State’s Attorney, failing to adequately cross examine witnesses, and failing to adequately advise the petitioner as to the different legal theories of responsibility under which he could be convicted at trial. Again, the petitioner previously raised a claim of ineffective assistance against his trial attorney in Mitchell v. Commissioner of Correction, Superior Court judicial district of Tolland, Docket No. CV10-4003523 (Cobb, J., Aug. 1, 2013), affirmed, 156 Conn.App. 402, 114 A.3d 168 (2015), which was decided against him. At oral argument, petitioner’s counsel also conceded that the present petition does not contain any allegations based on information that could not reasonably have been known at the time of the prior habeas. Therefore, Claim III is also barred by res judicata and is dismissed. Id.
CLAIM IV- Giglio /Napue CLAIM- PRESENTATION OF KNOWINGLY FALSE TESTIMONY
In Claim IV, the petitioner asserts that his due process rights were violated when the State knowingly elicited false testimony from the victim during their case in chief. Once again, the petitioner made an identical claim in his petition for new trial before Mullarkey, J. In his brief, the petitioner attempts to escape dismissal by citing to the portion of Judge Mullarkey’s decision on this issue where he indicated: "this is a completely undefined claim with no evidence and it is of no merit." The petitioner’s reliance is misguided, however. There is nothing in the law of res judicata that saves a litigant from dismissal because they previously asserted a claim, but failed to support it with evidence, or presented evidence that the finder of fact determined to be flimsy or confusing, or lacking in credibility. "An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ..." Sellers v. Work Force One, Inc., 92 Conn.App. 683, 686, 886 A.2d 850, 853 (2005) (addressing the scope of res judicata). The petitioner raised this claim in his petition for new trial, and it was "in fact determined" to be unsupported by any evidence, so he is barred from attempting to relitigate the matter now. Claim IV is also dismissed. Carter v. Commissioner of Correction, supra, 133 Conn.App. 393.
Once again, the petitioner repeats a claim of prosecutorial misconduct that appears to rest on unsteady ground where good faith and ethics are concerned. One of the claims (5a) is that the State offered testimony by the victim in the petitioner’s trial that he was the shooter, and in Mr. Hampton’s trial that he was the shooter. The insinuation from the allegations is that the State’s Attorney offered a theory of the case that there was a single, but different, shooter at each trial, which does not appear to be anywhere close to an accurate representation of the facts of either case. (See Footnotes 2 and 3.)
Specifically, the petitioner alleged in Count Two, paragraph 6(c) of his petition for new trial that, "the state’s attorney, Sandra Tullius, knowingly presented false testimony at the petitioner’s criminal trial, which she knew, or should have known, to be false, and failed to correct the false testimony, and the impression it had upon the jury."
CLAIM V- STATE’S FAILURE TO DISCLOSE "BRADY" MATERIAL
In Claim V, the petitioner asserts a due process violation allegedly resulting from the State’s failure to disclose an opinion of Lindsay Hawk, the video expert retained by the State during the criminal trial. By way of background, some of the incident was captured on surveillance cameras on nearby buildings, and still photographs were produced from some of that video footage, however, the poor resolution made it impossible to make out any of the parties. While Ms./Mrs. Hawk was retained by the State to examine this evidence in connection with the petitioner’s criminal trial, she was never called as a witness.
Once again, the petitioner attempts to skirt the doctrine of res judicata by restating the factual claims using different words, and by ignoring past occurrences. First, in his petition for new trial (CV06-4021601), the petitioner alleged that State’s Attorney Tullius had engaged in prosecutorial misconduct because she "failed to disclose certain video and photographic evidence which was exculpatory in nature." In his prior habeas before Judge Cobb (CV10-4003523) the petitioner also made a claim that his trial attorney was ineffective for failing to properly examine and present the surveillance camera evidence, again, claiming that there was exculpatory information in the video. In both matters, which were tried in the year 2013, the petitioner called Mrs. Hawk as his own expert and offered, or at least attempted to offer, evidence supporting a claim that there was exculpatory information to be gleaned from the video and photographs. Since the petitioner has previously raised and litigated the same claim, he is barred from litigating the matter again. Carter v. Commissioner of Correction, supra, 133 Conn.App. 393. Therefore, Claim V is also dismissed.
The petitioner’s claim before Judge Cobb was that there was a crucial point where the video depicts the person sitting in the passenger seat get out of the vehicle, before what appears to be a muzzle flash can be seen, which the petitioner claimed supported his insistence that he never left the vehicle. In other words, that his co-defendant was solely responsible. Evidence and an argument which Judge Cobb found had been presented to the jury during the criminal trial.
III. Conclusion
Based on the foregoing, CLAIMS II, III, IV and V of the Second Amended Petition are DISMISSED.