Oliphant v. Commissioner of Correction ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
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.)
Albert J. Oneto IV, assigned counsel, with whom, on
the brief, was David B. Rozwaski, assigned counsel,
for the appellant (petitioner).
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 certifi-
cation to appeal and (2) improperly dismissed his 2011
petition.2 We conclude that the petitioner’s claims
alleged 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 which ought to be reviewed by the court
having jurisdiction and the judge so certifies.’’
‘‘Our Supreme Court has explained that one of the
goals of [§ 52-470 (g)] is to limit the number of appeals
filed in criminal cases and to hasten the conclusion of
the criminal justice process. . . . Additionally, § 52-
470 [g] acts as a limitation on the scope of review, and
not the jurisdiction, of the appellate tribunal.’’ (Citation
omitted.) Logan v. Commissioner of Correction, 125
Conn. App. 744, 750, 9 A.3d 776 (2010), cert. denied,
300 Conn. 918, 14 A.3d 333 (2011). The petitioner has
tested the limits of § 52-470 (g).4
When a habeas court denies a petition for certifica-
tion 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 certifica-
tion 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 peti-
tioner 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 establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate 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 peti-
tioner’s underlying claims to determine whether the
habeas court reasonably determined that the petition-
er’s appeal was frivolous.’’ (Emphasis in original; inter-
nal 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 commu-
nity in violation of General Statutes § 53a-122 (a) (4)
(larceny case). This court affirmed the judgment of
conviction. See State v. Oliphant, 47 Conn. App. 271,
272, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904,
714 A.2d 3 (1998). As a consequence of that conviction,
the petitioner was sentenced to a term of fifteen years
in the custody of the respondent, the Commissioner of
Correction. The petitioner’s sentence was suspended,
and he began a period of probation on August 30, 2002.
He was arrested on October 6, 2006, and charged with
multiple crimes. State v. Oliphant, 115 Conn. App. 542,
544–45, 973 A.2d 147, cert. denied, 293 Conn. 912, 978
A.2d 1113 (2009). Following a violation of probation
hearing, the trial court, Vitale, J., found that the peti-
tioner had violated the terms of his probation, revoked
his probation, and sentenced him to a term of six and
one-half years in the custody of the respondent. Id., 547.
This court affirmed the violation of probation judgment.
Id., 555.
At both the larceny trial and violation of probation
hearing, the petitioner rejected the assistance of the
public defenders appointed to represent him. See id.,
548; State v. Oliphant, supra, 47 Conn. App. 273. At his
larceny trial, the petitioner requested that the trial court,
Gaffney, J., appoint substitute counsel. State v. Oli-
phant, supra, 47 Conn. App. 273. Judge Gaffney denied
the petitioner’s request, and the petitioner stated that
he wished to represent himself. Id. Attorney Michael
Moscowitz, the petitioner’s appointed counsel,
informed the court that he had discussed self-represen-
tation with the petitioner and that he was not certain
that the petitioner appreciated the amount of prison
time he was facing, if convicted. Id., 273 n.2. Moscowitz
asked the court to order a competency evaluation of
the petitioner; the court declined to do so. After can-
vassing the petitioner, the court granted his request to
represent himself and appointed Moscowitz as standby
counsel. Id. On appeal from the larceny conviction,
the petitioner claimed that the canvass Judge Gaffney
conducted was insufficient pursuant to Practice Book
§ 961, now § 44-3. Id., 276. This court determined, how-
ever, that the trial court’s canvass was adequate and
that the court properly accepted the petitioner’s waiver
of the right to counsel. Id., 280. At his probation revoca-
tion 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 volun-
tary.’’ 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 a 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-repre-
sented 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 proba-
tion 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 proba-
tion 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
petitioner ‘‘refrain from filing additional petitions aris-
ing 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 permis-
sion to withdraw as counsel along with an Anders brief5
under seal. Id.; see Practice Book § 23-41.6 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 without 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 with-
draw and stated in a memorandum of decision filed
February 15, 2011, that it had ‘‘reviewed counsel’s
motion and supporting memorandum and documenta-
tion, 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 Practice Book § 23-42. ‘‘The purpose of the show
cause hearing was to provide the petitioner an opportu-
nity to demonstrate and explain why the issues that
he raised in his consolidated petition were not wholly
frivolous. At the conclusion of the show cause hearing,
Judge [T.] Santos ruled that ‘[i]t seems appropriate for
the court to dismiss this [petition] as either heard, res
judicata or on these various other grounds that were
stated not only in the return of the [respondent], but
also in the pretrial brief.’ The petition therefore was
dismissed pursuant to Practice Book § 23-29 (5).’’ Oli-
phant v. Commissioner of Correction, supra, 146 Conn.
App. 512–13. Although Judge T. Santos denied the peti-
tion for certification to appeal, the petitioner appealed
to this court, claiming that Judge T. Santos had abused
her discretion in denying his petition for certification
to appeal.7 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 peti-
tioner 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 record, this court undertook an extensive review
of the claim as a matter of law. Id., 518. In doing so, this
court cited Judge Sferrazza’s memorandum of decision
and stated that ‘‘[a]lthough the petitioner claims that
McKay should have looked for evidence outside the
record that he was incompetent to represent himself
at the 1995 larceny trial and during the violation of
probation hearing, the petitioner has cited no law
requiring his counsel to look beyond the record.
Although he claims that both Anders and State v. Pas-
cucci, 161 Conn. 382, 288 A.2d 408 (1971), require coun-
sel seeking to withdraw to look beyond the record, he
has failed to cite any language from either of those
opinions to that effect. To the contrary, Anders requires
a conscientious review of the record. See Anders v.
California, [386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed.
2d 493 (1967)]; see also State v. Pascucci, [supra, 385];
Lorthe v. Commissioner of Correction, [103 Conn. App.
662, 674, 931 A.2d 348, cert. denied, 284 Conn. 939, 937
A.2d 696 (2007)]. Moreover, despite his claim that he
was not competent to represent himself, the petitioner,
on appeal here, has not identified any document or
record to support his claim that he was incompetent.’’8
(Emphasis in original; internal quotation marks omit-
ted.) 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 frivo-
lous’’; id., 525; because there were triable issues regard-
ing 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 petition-
er’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 consoli-
dated petition and that a habeas court is not required
to consider claims not alleged.9 Id., 528. This court,
therefore, concluded that Judge T. Santos properly dis-
missed the consolidated petition for a writ of habeas
corpus. Id.
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 consti-
tuted an abuse of authority and prosecutorial miscon-
duct in retaliation for his having commenced three
federal lawsuits against the city of Meriden. The peti-
tioner 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 proba-
tion, he filed an amended two count petition, which
Judge Fuger dismissed. Only the allegations of the sec-
ond 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 with-
draw and Anders brief. The petitioner claimed that had
McKay adequately investigated his mental incompe-
tence 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 merito-
rious claim that he unlawfully had been permitted to
appear before the jury in prison garb during his lar-
ceny trial.
The 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 Practice Book § 23-
29 (3) and (5). In his brief, the petitioner argued that
his claims were justiciable and should be heard by the
habeas court. The respondent argued that the habeas
court should exercise its discretion and dismiss the
petition as an abuse of the writ.
The parties appeared before Judge Fuger for oral
argument, after which the court issued an oral 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 Sfer-
razza [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.’’
Thereafter Judge Fuger articulated that ‘‘[t]his court
dismissed the petition on the ground of res judicata.
Although the court did not identify the specific subsec-
tion of Practice Book § 23-29 which provided the basis
for the dismissal, the court now articulates that the
applicable subsection was § 23-29 (3). Kearney v. Com-
missioner of Correction, 113 Conn. App. 223, 229–37,
965 A.2d 608 (2009).’’ Judge Fuger further articulated
that he ‘‘had reviewed the entire matter, said review
showing that the petitioner on more than one prior
occasion challenged his original convictions, which
resulted from a criminal trial in which the petitioner
represented himself with the benefit of standby counsel.
The petitioner has previously litigated a claim that
standby counsel was ineffective. Oliphant v. Commis-
sioner of Correction, [supra, 146 Conn. App. 499]; State
v. Oliphant, [supra, 47 Conn. App. 271].’’ Judge Fuger
also denied the petition for certification to appeal.
Nonetheless, the petitioner appealed.
The petitioner, represented by counsel on appeal,
claims that Judge Fuger abused his discretion by deny-
ing the petition for certification to appeal. We disagree.
Judge Fuger dismissed the 2011 petition pursuant to
Practice Book § 23-29 (3), which provides that the court
may dismiss the petition if it determines that ‘‘the peti-
tion presents the same ground as a prior petition pre-
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,
A.3d (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 origi-
nal; internal quotation marks omitted.) Pierce v. Com-
missioner of Correction, 158 Conn. App. 288, 306–307,
118 A.3d 640, cert. denied, 318 Conn. 907, A.3d
(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 actu-
ally 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 otherwise, submitted for determina-
tion, and in fact determined. . . . An issue is necessar-
ily determined if, in the absence of a determination of
the issue, the judgment could not have been validly
rendered.’’ (Citations omitted; emphasis omitted; inter-
nal quotation marks omitted.) Lafayette v. General
Dynamics Corp., 255 Conn. 762, 772–73, 770 A.2d 1
(2001).
‘‘The judicial doctrines of res judicata and collateral
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 con-
troversy 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 accompa-
nying Anders brief representing that the subject petition
alleged no nonfrivolous claims because McKay failed
to look outside the record. On appeal, the petitioner
claims that Judge Fuger abused his discretion by dis-
missing the subject petition as res judicata pursuant to
Practice Book § 23-29 (3). The flaw in the petitioner’s
claim is that in adjudicating McKay’s motion to with-
draw, Judge Sferrazza necessarily had to review the
entire record and determine whether McKay adequately
investigated the record to determine whether there
were no nonfrivolous claims. Moreover, following the
show cause hearing, Judge T. Santos stated that she,
too, had reviewed the record and determined that there
were no nonfrivolous claims. That, however, was not
the end of the matter. The petitioner appealed to this
court, which dismissed the appeal, stating: ‘‘[W]e have
undertaken a thorough review of Judge Sferrazza’s
memorandum of decision in granting McKay’s motion
to withdraw and the pleadings, transcripts in the record
before us as well as the three decision from this court
concerning the petitioner’s prior appeal. On the basis
of our review of the record and the briefs, we conclude
that Judge Sferrazza properly granted McKay’s motion
to withdraw . . . .’’ Oliphant v. Commissioner of Cor-
rection, supra, 146 Conn. App. 516 n.23. The issue of
whether McKay rendered adequate representation as
habeas counsel, therefore, was litigated pursuant to his
motion to withdraw.
The issue presented here is similar to the one this
court addressed in Coleman v. Commissioner of Cor-
rection, 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 judg-
ment 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 inef-
fective 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
Practice Book § 23-41.’’ Id.
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 the court in a prior
habeas proceeding abused its discretion in [1] denying
his petition for certification to appeal from the dismissal
of his petition for a writ of habeas corpus because he
was denied his constitutional right to counsel at the
habeas proceeding when Berry was allowed to with-
draw . . . [and 2] granting the motion to withdraw.’’
(Internal quotation marks omitted.) Coleman v. Com-
missioner of Correction, supra, 149 Conn. App. 722.
This court agreed with the habeas court in Coleman,
which stated in dismissing the habeas petition: ‘‘And
so there have 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.
1
See Oliphant v. Commissioner of Correction, 146 Conn. App. 499, 79
A.3d 77 (dismissing appeal related to consolidated petition), cert. denied,
310 Conn. 963, 83 A.3d 346 (2013); State v. Oliphant, 115 Conn. App. 542,
973 A.2d 147 (affirming judgment revoking probation), cert. denied, 293
Conn. 912, 978 A.2d 1113 (2009); Oliphant v. Commissioner of Correction,
80 Conn. App. 613, 836 A.2d 471 (2003) (affirming dismissal of petition for
writ of habeas corpus), cert. denied, 268 Conn. 907, 845 A.2d 412 (2004); State
v. Oliphant, 47 Conn. App. 271, 702 A.2d 1206 (1997) (affirming judgment of
conviction for larceny in first degree), cert. denied, 244 Conn. 904, 714
A.2d 3 (1998). The underlying facts and procedural histories of each of the
petitioner’s prior appeals are set forth in the opinions cited. In this opinion,
we recite only the facts and procedural history relevant to the resolution
of the present appeal.
2
In his brief, the petitioner argues that Judge Fuger improperly denied
his 2011 petition, as there are three justiciable issues that have not yet been
litigated. He also argues that Attorney Robert J. McKay, appointed habeas
counsel, failed to investigate evidence outside the record that the petitioner
was incompetent to represent himself at his 1995 larceny trial and 2007
violation of probation hearing and that the petitioner was permitted to
appear before the larceny trial jury in prison garb.
3
During the pendency of the present appeal, the petitioner finished serving
both the larceny conviction sentence and the violation of probation sentence.
In his brief, the petitioner states, in part, that he is pursuing the present
appeal ‘‘to cleanse himself of the stigma of [his] conviction.’’
4
The petitioner as a self-represented party has filed numerous state and
federal petitions for a writ of habeas corpus. See Oliphant v. Commissioner
of Correction, 146 Conn. App. 499, 501, 79 A.3d 77 (at that time, petitioner
had filed thirteen petitions in the trial court by his reckoning), cert. denied,
310 Conn. 963, 83 A.3d 346 (2013).
5
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967).
6
Practice Book § 23-41 provides in relevant part: ‘‘(a) When counsel has
been appointed pursuant to Section 23-26, and counsel, after conscientious
investigation and examination of the case, concludes that the case is wholly
frivolous, counsel shall so advise the judicial authority by filing a motion
for leave to withdraw from the case.
‘‘(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 memo-
randum 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 inter-
twined 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 Honor. 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 pre-
vents 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 previ-
ous hearing).