Anderson v. Commissioner of Correction ( 2014 )

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FRED ANDERSON v. COMMISSIONER
OF CORRECTION
(AC 34959)
DiPentima, C. J., and Alvord and Flynn, Js.
Argued January 13—officially released March 11, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Kenneth Paul Fox, assigned counsel, for the appel-
lant (petitioner).
Lawrence J. Tytla, supervisory assistant state’s attor-
ney, with whom, on the brief, was Michael L. Regan,
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Fred Anderson,
appeals following a grant of certification to appeal by
the habeas court from the judgment of the habeas court
dismissing his third amended petition for a writ of
habeas corpus. On appeal, the petitioner asserts that
the court improperly dismissed count three1 of his third
amended petition on the grounds that it failed to state
a claim upon which relief can be granted and that it
was barred by the doctrine of res judicata. We disagree
and affirm the judgment of the habeas court.
The following facts and procedural history are rele-
vant to this appeal. The petitioner was convicted, after
a jury trial, of unlawful restraint in the first degree in
violation of General Statutes § 53a-95, assault in the first
degree with intent to disfigure another person seriously
and permanently in violation of General Statutes § 53a-
59 (a) (2), and interfering with an officer in violation
of General Statutes § 53a-167a. He was sentenced to a
total effective term of sixteen years imprisonment. The
petitioner appealed from his conviction, which we
affirmed in State v. Anderson, 74 Conn. App. 633, 813
A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837(2003). Our Supreme Court denied certification to
appeal. State v. Anderson, 263 Conn. 901, 819 A.2d
837 (2003).
After his direct appeal, the petitioner brought his first
petition for a writ of habeas corpus alleging prosecu-
torial impropriety and ineffective assistance of both
trial and appellate counsel. Following a trial, the habeas
court, Hon. Anthony V. DeMayo, judge trial referee,
(first habeas court), denied the petition on March 17,
2005. We affirmed the judgment of the first habeas court
and our Supreme Court denied certification to appeal.
Anderson v. Commissioner of Correction, 95 Conn.
App. 901, 895 A.2d 872, cert. denied, 278 Conn. 921, 901
A.2d 43 (2006). Thereafter, the petitioner filed a second
petition for a writ of habeas corpus alleging ineffective
assistance of habeas, trial, and appellate counsel. Fol-
lowing a trial, the habeas court, Nazarro, J. (second
habeas court), denied the petition in a written memo-
randum of decision on May 5, 2010. The attorney
appointed to appeal the second habeas court’s ruling
filed an appeal with this court. The matter was with-
drawn from the Appellate Court on March 7, 2011.
On February 9, 2010, the petitioner filed his third
amended petition for a writ of habeas corpus, which is
the subject of the present appeal, alleging prosecutorial
impropriety and ineffective assistance of his trial, appel-
late, and first and second habeas counsel. Prior to the
scheduled trial date of March 9, 2012, the respondent,
the Commissioner of Correction, filed a motion to dis-
miss the habeas petition along with a memorandum of
law in support thereof. The habeas court, Cobb, J. (third
habeas court), heard oral argument on the motion to
dismiss and subsequently granted the respondent’s
motion to dismiss in a written memorandum of decision
on June 5, 2012. The third habeas court also granted
the petitioner’s petition for certification to appeal and
his application for appointment of counsel on appeal
of the third amended petition. This appeal followed.
Prior to analyzing the petitioner’s claims, we first
set out our standard of review for a challenge to the
dismissal of a petition for a writ of habeas corpus.
‘‘The conclusions reached by the [habeas] court in its
decision to dismiss [a] habeas petition are matters of
law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . .’’ (Citation
omitted; internal quotation marks omitted.) Carter v.
Commissioner of Correction, 133 Conn. App. 387, 392,
35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d
217 (2012).
I
We first address the petitioner’s claim that the third
habeas court improperly determined that count three
of his petition failed to state a claim upon which relief
may be granted. In count three of his third amended
petition, the petitioner asserted that he was entitled to
relief based upon the ‘‘cumulative effect of all issues
of prosecutorial misconduct and judicial misconducts
. . . .’’ Now before us, the petitioner acknowledges that
cumulative error claims2 have been rejected consis-
tently in Connecticut by both our Supreme and Appel-
late Courts, but asserts that the treatment of this issue
by Connecticut courts ‘‘has been stubbornly mis-
guided.’’ He asks us on appeal ‘‘to determine whether
our . . . Supreme Court has properly barred Connecti-
cut petitioners from seeking relief based upon cumula-
tive error.’’ We decline that invitation, and affirm the
judgment of the third habeas court.
‘‘[I]t is axiomatic that this court, as an intermediate
body, is bound by Supreme Court precedent and [is]
unable to modify it . . . . [W]e are not at liberty to
overrule or discard the decisions of our Supreme Court
but are bound by them. . . . [I]t is not within our prov-
ince to reevaluate or replace those decisions.’’ (Internal
quotation marks omitted.) Cannizzaro v. Marinyak,
139 Conn. App. 722, 734, 57 A.3d 830 (2012), cert.
granted on other grounds, 308 Conn. 902, 60 A.3d 286(2013); see also Stuart v. Stuart, 297 Conn. 26, 45–46,
996 A.2d 259 (2010) (‘‘it is manifest to our hierarchical
judicial system that [the Supreme Court] has the final
say on matters of Connecticut law and that the Appel-
late Court . . . [is] bound by [its] precedent’’). When
faced with the assertion that the claims of error, none
of which individually constituted error, should be aggre-
gated to form a separate basis for a claim of a constitu-
tional violation of a right to a fair trial, our Supreme
Court has repeatedly ‘‘decline[d] to create a new consti-
tutional claim in which the totality of alleged constitu-
tional error is greater than the sum of its parts.’’ State
v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991),
cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed.
2d 876 (1992); see also State v. Colon, 272 Conn. 106,
218, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126
S. Ct. 102, 163 L. Ed. 2d 116 (2005); State v. Robinson,
227 Conn. 711, 747, 631 A.2d 288 (1993). Likewise, this
court consistently has rejected requests to adopt the
cumulative error approach. See, e.g., State v. Billie, 123
Conn. App. 690, 706, 2 A.3d 1034 (2010); Anderson v.
Commissioner of Correction, 114 Conn. App. 778, 795–
96, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d
488 (2009). Thus, we affirm the third habeas court’s
conclusion that there is no basis in our law to consider
the petitioner’s claim of cumulative error because such
claims have consistently been rejected by both this
court and our Supreme Court.
II
The petitioner also claims that the third habeas court
‘‘erred, as a matter of law, in holding that claim three
[was] barred by the doctrine of res judicata, as the
[first] habeas court . . . did not find that the petition-
er’s criminal trial was entirely free of prosecutorial
impropriety and judicial error, and a different ground
is asserted [in his third amended habeas petition] than
those litigated in the prior habeas case.’’ We are not per-
suaded.
‘‘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. . . . However, [u]nique policy considera-
tions must be taken into account in applying the doc-
trine of res judicata to a constitutional claim raised
by a habeas petitioner. . . . Specifically, in the habeas
context, in the interest of ensuring that no one is
deprived of liberty in violation of his or her constitu-
tional rights . . . the application of the doctrine of res
judicata . . . [is limited] to claims that actually have
been raised and litigated in an earlier proceeding. . . .
[A] second petition alleging the same ground as a pre-
viously 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.’’
(Citation omitted; internal quotation marks omitted.)
Campbell v. Commissioner of Correction, 121 Conn.
App. 576, 579, 997 A.2d 543 (2010).
As we already have established in part I of this opin-
ion, count three of the third amended petition fails to
state a claim upon which relief can be granted. Even
if we were to consider the claims of prosecutorial
impropriety stated in count three, the petitioner already
has made the same claims before the first habeas court.3
Our review of the record causes us to conclude that
the petitioner’s claims in his third amended habeas peti-
tion are simply an attempt to recast and reformulate
the same facts from his first habeas petition. Accord-
ingly, the third habeas court properly concluded that the
petitioner’s claims of prosecutorial impropriety, even
viewed individually instead of cumulatively, are barred
by res judicata.
The judgment is affirmed.
1
The petitioner has not appealed the third habeas court’s judgment as to
counts one, two, and four through seven of his third amended petition for
habeas relief.
2
Under the cumulative error approach followed by the United States
Court of Appeals for the Second Circuit, ‘‘[e]ven were each and every one
of the [alleged due process violations] to pass constitutional muster, their
cumulative effect may violate constitutional due process.’’ Gaines v. Kelly,
202 F.3d 598, 607 (2d Cir. 2000).
3
Although the first habeas court did state that it was ‘‘puzzled by [an]
unfortunate reference to Hannibal Lector,’’ the court ruled that the petitioner
‘‘ha[d] not shown that these remarks in the aggregate created actual preju-
dice nor that the petitioner’s trial was fundamentally unfair.’’