Lebron v. Commissioner of Correction ( 2017 )

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LUIS LEBRON v. COMMISSIONER
OF CORRECTION
(AC 39286)
Keller, Prescott and Kahn, Js.*
Syllabus
The petitioner, who previously had been convicted, on a guilty plea, of the
crimes of manslaughter in the first degree with a firearm and conspiracy
to tamper with a witness, and had filed two petitions for a writ of habeas
corpus, filed a third petition for a writ of habeas corpus, claiming, inter
alia, that he had received ineffective assistance from S and C, his trial
counsel, as well as D and K, his counsel in his first and second habeas
matters, respectively. Prior to the petitioner’s plea, S was granted permis-
sion to withdraw on the ground that he could be called as a witness at
trial. The petitioner indicated to the court that he waived any conflict,
and wanted to proceed to trial and was prepared to represent himself,
which the court did not allow. The petitioner thereafter was charged
with additional crimes in a separate docket, and C was appointed to
represent him on all of the charges, after which the petitioner entered
his plea. In the first habeas action, the petitioner alleged that S and C
had rendered ineffective assistance. The habeas court denied the peti-
tion, and D failed to file a timely petition for certification to appeal. In
the second habeas action, in which the petitioner alleged that S, C
and D had provided ineffective assistance, the habeas court rendered
judgment restoring the petitioner’s appellate rights with respect to the
issues raised in the first habeas petition. The petitioner thereafter
appealed from the denial of his first habeas petition, but did not raise
the merits of his claims in that first petition against S and C. This court
affirmed the judgment of the first habeas court. After the petitioner filed
his third habeas petition, which included six counts, the habeas court
issued notice to the parties that it would consider whether there was
good cause for trial on any of the counts that the petitioner had raised
in his petition. The court invited the parties to submit briefs and exhibits
as to whether the petitioner’s guilty plea operated as a waiver of his
right to pursue the first four counts of his habeas petition. The habeas
court concluded that there was no good cause for trial as to any count
of the petition and rendered judgment dismissing the petition, from
which the petitioner, on the granting of certification, appealed to this
court. He claimed, inter alia, that the habeas court improperly relied in
part on an affirmative defense that the respondent, the Commissioner
of Correction, had not pleaded in his return in concluding that the
petitioner had waived certain counts by entering a guilty plea in the
criminal proceedings. Held:
1. The habeas court properly dismissed the first three counts of the habeas
petition for lack of good cause to proceed to trial, that court having
determined that the claims raised in those counts were waived as a
result of the petitioner’s guilty plea: the claims in counts one and two
regarding the decisions of the criminal trial court to grant S’s motion
to withdraw as counsel and to prohibit the petitioner from representing
himself involved actions that occurred prior to when the petitioner
decided to enter the guilty plea at a time when he was represented by
C, the petitioner never sought to withdraw his plea, nor did he challenge
the voluntariness of the plea or any aspect of the criminal court’s subject
matter jurisdiction, and the petitioner did not direct this court to any
evidence submitted to the habeas court that, if presented at trial, would
overcome the respondent’s affirmative defense of waiver; furthermore,
the claims in count three of the petition, which focused on the alleged
ineffective assistance of S, also related to matters that occurred prior
to the petitioner’s decision to enter a guilty plea, the petitioner failed
to establish a sufficient interrelationship between the claims he directed
at S and his decision to plead guilty, and the assertion that the petitioner
would have proceeded to trial and would not have pleaded guilty if S had
been allowed to continue as counsel was nothing more than speculation.
2. The petitioner could not prevail on his claim that the habeas court improp-
erly dismissed the fourth count of the habeas petition on the basis of
the same waiver theory that it employed to dismiss counts one through
three when that theory had not been asserted by the respondent as a
special defense to count four; the habeas court, which never mentioned
that its decision was premised on waiver that resulted from the petition-
er’s having pleaded guilty, dismissed count four on the ground that it
was a successive petition, as the claim raised therein concerning the
ineffective assistance of C was based on the same ground raised in the
petitioner’s first habeas petition that was denied, and the petitioner
advanced no arguments as to why this court should overturn the habeas
court’s determination that count four amounted to an improper succes-
sive petition.
3. The habeas court improperly determined, in part, that there was no good
cause to allow the fifth and sixth counts to proceed to trial, as the
court’s conclusion that none of the petitioner’s claims had a direct
relationship to the validity of the plea itself was improper with respect
to certain allegations against C: although that court properly dismissed
those portions of counts five and six that were premised on the alleged
ineffective assistance of D and K with respect to the claims that were
asserted in counts one through three of the habeas petition, which had
been waived by the petitioner’s guilty plea, that analysis did not apply
to the ineffective assistance claim against C in count four, which related
in part to the voluntariness of the petitioner’s guilty plea, as the issues
of whether D was ineffective in handling the claims against C and
whether K provided ineffective assistance with respect to the allegations
in count five against D were never raised or litigated fully in a previous
action, the respondent failed to raise any defenses to those counts in
his return, and the habeas court’s rationale for dismissing counts five
and six in their entirety lacked support in the record, which supported
a conclusion that at least a portion of the petition had a sufficient basis
in both fact and law to proceed to a trial.
Argued September 8—officially released November 28, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Sferrazza, J., following a
preliminary hearing, dismissed the petition and ren-
dered judgment thereon, from which the petitioner, on
the granting of certification, appealed to this court.
Reversed in part; further proceedings.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Randall S. Bowers, former deputy assis-
tant state’s attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Luis Lebron, appeals
from the judgment of the habeas court dismissing his
third petition for a writ of habeas corpus pursuant to
General Statutes § 52-470 (b).1 The petitioner claims on
appeal that, in reaching its determination that no good
cause existed to proceed to trial, the habeas court
improperly concluded that he had waived many of his
claims by entering a guilty plea in the underlying crimi-
nal action and relied in part on an affirmative defense
that was not pleaded by the respondent, the Commis-
sioner of Correction, in his return. We conclude that
the habeas court properly dismissed counts one through
four of the petition, but improperly dismissed the
entirety of counts five and six. Accordingly, we affirm
in part and reverse in part the judgment of the
habeas court.
The relevant facts and procedural history underlying
this appeal are set forth in the habeas court’s memoran-
dum of decision as well as in this court’s decision resolv-
ing the petitioner’s previous habeas appeal. See Lebron
v. Commissioner of Correction, 108 Conn. App. 245,
947 A.2d 349, cert. denied, 289 Conn. 921, 958 A.2d 151
(2008). The petitioner initially was arrested in May,
1997, and charged with one count each of murder in
violation of General Statutes § 53a-54a (a) and criminal
use of a firearm in violation of General Statutes § 53a-
216.2 The petitioner was appointed a public defender,
Attorney Kenneth Simon. Simon represented the peti-
tioner through the start of jury selection, which began
in January, 1999. At about that time, Simon filed a
motion for permission to withdraw his appearance on
the ground that he could be called as a witness at trial
for the petitioner.3 The court granted the motion.
At that time, the court discussed with the petitioner
how the matter should proceed in light of defense coun-
sel’s withdrawal on the eve of trial. The petitioner indi-
cated to the court that he had not asked counsel to
withdraw and had waived any conflict, and that he
wanted to proceed with the trial. He also informed the
court that he was prepared to represent himself. The
trial court did not agree to allow the petitioner to pro-
ceed to trial as a self-represented party at that time.
Instead, the court declared a mistrial and continued the
matter so that new counsel could be appointed for the
petitioner. At that hearing, the prosecutor also indicated
to the court that the petitioner would soon be arrested
on additional charges.
Shortly thereafter, the petitioner was arrested under
a separate docket on charges of two counts of conspir-
acy to commit murder in violation of General Statutes
§§ 53a-48 and 53a-54a, and two counts of conspiracy
to commit witness tampering in violation of General
Statutes §§ 53a-48 and 53a-151. The court ordered that
the cases be heard together, and the two cases were
continued to February 26, 1999.
At the February 26, 1999 hearing, the petitioner was
appointed a new criminal defense attorney, Thomas M.
Conroy, to handle both of his files. Conroy was granted
a further continuance.
In May, 1999, the petitioner, pursuant to a plea
agreement that resolved all of the 1997 and 1999
charges, pleaded guilty under the Alford doctrine4 to
one count of manslaughter in the first degree with a
firearm in violation of General Statutes § 53a-55a, and
one count of conspiracy to tamper with a witness in
violation of §§ 53a-151 and 53a-48. The court canvassed
the petitioner and found that there was a factual basis
for the plea and that it was knowingly and voluntarily
made. The trial court later sentenced the petitioner,
consistent with the plea agreement, to a term of thirty
years of incarceration on the manslaughter charge and
to an unconditional discharge on the conspiracy charge.
The state entered a nolle prosequi as to all of the other
charges against the petitioner.
The petitioner filed his first action seeking a writ
of habeas corpus in June, 2000. The petitioner was
appointed habeas counsel, Attorney Sebastian
DeSantis, who later filed an amended habeas petition.
The amended petition alleged three claims of ineffective
assistance directed at Simon and Conroy. Specifically,
the ‘‘petitioner alleged that trial counsel failed (1) to
pursue discovery and to communicate with him con-
cerning it, (2) to challenge the petitioner’s arrest and
the search of the area in which he was arrested, as well
as the arrest warrant itself, and (3) to communicate
with him regarding legal standards and evidentiary stan-
dards so that the petitioner could make a knowing and
voluntary decision as to whether to proceed to trial or
plead guilty.’’ Id., 247. The habeas court issued a deci-
sion on February 20, 2003, denying the amended habeas
petition. Id. DeSantis failed to file a timely petition for
certification to appeal from that decision. Id.
On February 26, 2003, the petitioner filed a pro se
petition for certification to appeal, which the habeas
court denied. Id. The petitioner, however, did not file
an appeal from that denial within twenty days.
In June, 2003, the petitioner filed a letter with the
habeas court, which the court treated as a motion for
reconsideration of the habeas petition. Id., 247–48. Soon
thereafter, the petitioner also filed a pro se motion for
rehearing of his habeas petition. Id., 248. The court
denied both of the petitioner’s postjudgment motions
without a hearing. Id. The petitioner filed a motion with
this court on September 29, 2003, in which he sought
permission to file a late appeal. Id. This court denied
the motion on November 6, 2003. Id.
Nearly three years later, on July 18, 2006, the peti-
tioner filed a new petition for a writ of habeas corpus
alleging again the ineffective assistance of Simon and
Conroy, but adding an allegation regarding the ineffec-
tive assistance of his first habeas counsel, DeSantis. Id.
The petitioner was represented in this second habeas
action by Attorney Paul Kraus. The court resolved this
second petition by agreeing to render a stipulated judg-
ment that restored the petitioner’s appellate rights with
respect to the issues raised in the first habeas petition.5
Id. Thereafter, the petitioner filed a new petition for
certification to appeal from the judgment rendered in
the first habeas action. Id. The court granted this second
petition for certification to appeal, and the petitioner
filed an appeal on September 8, 2006. Id.
The only issue raised in that first appeal, however,
was whether the habeas court properly had denied with-
out a hearing the petitioner’s postjudgment motions for
reconsideration and reargument. Id., 249. The petitioner
did not raise the merits of the claims in the habeas
petition against Simon and Conroy. Following oral argu-
ment, this court ordered the parties to submit supple-
mental briefs addressing whether the issues the
petitioner had raised on appeal fell outside the scope
of the stipulated judgment restoring the petitioner’s
appellate rights, which was limited to issues raised in
the first habeas petition. Id., 248–49. Ultimately, this
court declined to review the claims raised by the peti-
tioner because they fell outside the scope of the stipu-
lated judgment to which the petitioner had agreed. Id.,
249. We affirmed the judgment of the habeas court
denying the first petition; id., 250; and our Supreme
Court denied a petition for certification to appeal from
our decision. Lebron v. Commissioner of Correction,
289 Conn. 921, 958 A.2d 151 (2008).
The petitioner commenced the present habeas action,
his third, in August, 2013. The operative amended peti-
tion for a writ of habeas corpus was filed by appointed
counsel on January 8, 2016. The petition contains six
counts. Counts one and two consist of freestanding
constitutional claims directly challenging his underlying
conviction. Specifically, count one claims that the crimi-
nal trial court, Gaffney, J., violated the petitioner’s right
to counsel of choice by permitting Simon to withdraw
prior to the start of trial despite the petitioner’s willing-
ness to waive any potential conflict of interest. See
State v. Peeler, 265 Conn. 460, 470–76, 828 A.2d 1216
(2003), cert. denied, 541 U.S. 1029, 124 S. Ct. 2094,
158 L. Ed. 2d 710 (2004). Count two claims that Judge
Gaffney violated the petitioner’s right to self-representa-
tion by refusing what the petitioner claims was a clear
and unequivocal request to represent himself at trial.
See State v. Flanagan, 293 Conn. 406, 421–25, 978 A.2d
64 (2009). The remaining counts allege the ineffective
assistance of trial and habeas counsel. In particular,
count three alleges ineffective assistance by Simon rela-
tive to his having withdrawn as trial counsel.6 Count
four alleges ineffective assistance by Conroy, raising
many of the same allegations of deficient performance
that were raised in the first habeas petition but effec-
tively abandoned in the previous appeal. Count five
claims ineffective assistance by the petitioner’s first
habeas counsel, DeSantis, for failing to ‘‘discover, inves-
tigate and raise’’ the claims set forth in counts one, two
and three, and failing to ‘‘adequately plead, prove and
argue’’ the claims raised in count four. Count six claims
ineffective assistance by the petitioner’s second habeas
counsel, Kraus, for failing to ‘‘discover, investigate and
raise’’ the claims set forth in counts one through four,
and failing to ‘‘adequately plead, prove and argue’’ the
claims raised in count five.
The respondent filed his return on February 29, 2016,
in which he raised affirmative defenses as to counts
one through four. With respect to counts one and two,
the respondent alleged procedural default and waiver
resulting from the petitioner’s having entered a guilty
plea. With respect to count three, the respondent raised
the defenses of improper successive petition; see Prac-
tice Book § 23-29 (3); and waiver on the basis of the
petitioner’s guilty plea. The respondent also alleged the
defense of improper successive petition with respect
to count four. No defenses were pleaded with respect
to counts five and six.
On March 7, 2016, the petitioner filed a reply to the
return denying the allegations raised in the respondent’s
affirmative defenses. A certificate of closed pleadings
was filed the same day.
The habeas court issued a notice and order on March
30, 2016, indicating that the court would consider
whether there was good cause for trial on any of the
counts raised in the petition, and inviting the parties
to submit briefs and exhibits pursuant to § 52-470 (b)
(2) by April 13, 2016. The court also issued the following
order: ‘‘In light of the entry of guilty pleas by the peti-
tioner, submitted exhibits must address whether the
petitioner’s guilty pleas operate as a waiver of the peti-
tioner’s right to pursue the claims in counts one through
four of the amended petition. . . . Should there be no
cause for trial as to counts one through four, then
counts five and six, which are derivative of and depend
on the first four counts, also cannot have good cause
for trial.’’ (Citations omitted.) Both parties filed sub-
missions.
On April 26, 2016, the habeas court issued a memoran-
dum of decision, concluding on the basis of the petition
and the parties’ submissions, that there was no good
cause for trial as to any count of the petition. The court
scheduled a hearing for May 4, 2016, to hear arguments
in accordance with § 52-470 (b) (3). Following argu-
ment, on May 5, 2016, the habeas court rendered a
judgment of dismissal of the entire petition, stating:
‘‘After consideration of the arguments and materials
submitted at a hearing conducted by the court pursuant
to General Statutes § 52-470 (b) (3), the court finds
there is no good cause for a habeas trial in this case.
Based on the reasoning the court elucidated in a memo-
randum of decision, dated April 26, 2016, the habeas
corpus claims of the amended petition are dismissed,
and that memorandum becomes the decision of this
court in full.’’
On May 13, 2016, the petitioner filed a petition for
certification to appeal, which the habeas court granted
on May 18, 2016.7 This appeal followed.
The petitioner claims on appeal that the habeas court
improperly dismissed the entirety of his petition pursu-
ant to § 52-470 (b). According to the petitioner, in dis-
missing his petition for lack of good cause to proceed
to trial, the court improperly relied in part on an affirma-
tive defense that was not pleaded by the respondent in
his return and concluded that the petitioner had waived
certain counts by entering a guilty plea in the underlying
criminal proceedings. The respondent argues that the
habeas court properly determined that (1) the petition-
er’s guilty plea operated as a waiver of counts one, two,
and three; (2) count four was barred as a successive
claim pursuant to Practice Book § 23-29; and (3) counts
five and six, which alleged ineffective assistance by the
petitioner’s prior habeas counsel in failing to ‘‘discover,
investigate and raise’’ the claims set forth in counts
one through four, were derivative of those counts and
subject to dismissal on the same grounds. We agree
with the respondent regarding the habeas court’s ruling
on the first four counts, but disagree that the habeas
court properly found a lack of good cause with respect
to the entirety of counts five and six.8
We begin our discussion by setting forth certain gov-
erning principles of law as well as our standard of
review. Subsection (b) of § 52-470, which was revised
in 2012 as part of comprehensive habeas reform, autho-
rizes the habeas court to render a summary dismissal
without a trial of all or part of a habeas petition if the
court determines, either on motion by a party or sua
sponte, that there is no ‘‘good cause’’ for trial. General
Statutes § 52-470 (b) (1). In amending § 52-470, the legis-
lature ‘‘intended to supplement that statute’s efficacy
in averting frivolous habeas petitions and appeals.’’
Kaddah v. Commissioner of Correction, 324 Conn. 548,
567, 153 A.3d 1233 (2017). The procedures that the court
and the parties must follow before a dismissal for lack
of good cause may be rendered are set forth in the
remaining subdivisions of the statute.
Subdivision (2) of subsection (b) provides: ‘‘With
respect to the determination of such good cause, each
party may submit exhibits including, but not limited to,
documentary evidence, affidavits and unsworn state-
ments. Upon the motion of any party and a finding by
the court that such party would be prejudiced by the
disclosure of the exhibits at that stage of the proceed-
ings, the court may consider some or all of the exhibits
in camera.’’ General Statutes § 52-470 (b) (2).
Subdivision (3) of subsection (b) provides: ‘‘In order
to establish such good cause, the petition and exhibits
must (A) allege the existence of specific facts which,
if proven, would entitle the petitioner to relief under
applicable law, and (B) provide a factual basis upon
which the court can conclude that evidence in support
of the alleged facts exists and will be presented at trial,
provided the court makes no finding that such evidence
is contradicted by judicially noticeable facts. If the peti-
tion and exhibits do not establish such good cause, the
court shall hold a preliminary hearing to determine
whether such good cause exists. If, after considering
any evidence or argument by the parties at such prelimi-
nary hearing, the court finds there is not good cause
for trial, the court shall dismiss all or part of the petition,
as applicable.’’ General Statutes § 52-470 (b) (3).
In effect, the statute places the burden on a habeas
petitioner who wants to avoid dismissal pursuant to
§ 52-470 (b) to (1) state some legally cognizable claim
in the petition for a writ of habeas corpus itself, includ-
ing the allegation of specific facts that, if proven, would
entitle the petitioner to relief on such claim; and (2) to
submit documentary exhibits sufficient to demonstrate
that some evidence in support of those alleged specific
facts actually exists and will be presented at trial. As
Judge Sferrazza indicated at the show cause hearing in
the present case, a habeas court may dismiss the peti-
tion in whole or in part if it determines on the basis of
the parties’ submissions that ‘‘there is no good cause
either in law or there’s no factual basis for any claim.’’
In Parker v. Commissioner of Correction, 169 Conn.
App. 300, 149 A.3d 174, cert. denied, 324 Conn. 903, 151
A.3d 1289 (2016), we set forth the following general
standard for reviewing a habeas court’s dismissal of a
portion of a petition pursuant to § 52-470 (b): ‘‘The
conclusions reached by the [habeas] court in its deci-
sion to dismiss [a] habeas petition are matters of law,
subject to plenary review. . . . [When] the legal con-
clusions 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 . . . . [A] finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Id., 312–13. We turn now to the
claims raised on appeal.
I
We first address the petitioner’s claim that the court
improperly dismissed counts one, two and three of the
operative petition on the ground that his guilty plea in
the underlying criminal action acted as a waiver of
the claims contained in those counts. According to the
petitioner, there was a sufficient factual nexus between
the claims in those counts and his guilty plea to over-
come such a waiver. We are not persuaded.
‘‘It is well established that an unconditional plea of
guilty, made intelligently and voluntarily, operates as a
waiver of all nonjurisdictional defects and bars the later
assertion of constitutional challenges to pretrial pro-
ceedings. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.
Ct. 1602, 36 L. Ed. 2d 235 (1973). In general, the only
allowable challenges after a plea are those relating
either to the voluntary and intelligent nature of the plea
or the exercise of the trial court’s jurisdiction.’’ State
v. Johnson, 253 Conn. 1, 80, 751 A.2d 298 (2000); see
also State v. Niblack, 220 Conn. 270, 276–77, 596 A.2d
407 (1991). Furthermore, a trial court has no duty to
canvass a defendant to determine whether he or she
understands every possible indirect or collateral conse-
quence of a guilty plea. State v. Gilnite, 202 Conn. 369,
383, 521 A.2d 547 (1987).
Here, counts one and two of the habeas petition raise
freestanding constitutional claims regarding the crimi-
nal trial court’s decisions to grant Simon’s motion to
withdraw as counsel and to prohibit the petitioner from
representing himself at trial. Both of those actions
occurred prior to the petitioner’s decision to enter a
guilty plea in accordance with a plea agreement with
the state at the time he was represented by Conroy.
The petitioner never sought to withdraw his plea, and
the claims themselves do not directly challenge the
voluntariness of his plea. Further, the petitioner’s
claims do not challenge any aspect of the criminal
court’s subject matter jurisdiction. Accordingly, the
constitutional challenges raised in counts one and two
were waived when the petitioner entered his guilty plea.
The petitioner has not directed our attention to any
evidence submitted to the habeas court that, if pre-
sented at trial, would overcome the respondent’s affir-
mative defense of waiver. Because the petitioner could
not prevail on his claims at a habeas trial as a result
of that waiver, the court properly dismissed counts one
and two of the petition for lack of good cause to proceed
to trial.
With respect to count three of the petition, the claims
in that count focus on the alleged ineffective assistance
provided by Simon. See footnote 6 of this opinion. Gen-
erally, the petitioner alleges that Simon provided inef-
fective assistance by failing fully to advise the petitioner
of various legal rights related to both Simon’s motion
to withdraw from representation and the petitioner’s
rights to proceed as a self-represented party. Like the
petitioner’s related freestanding constitutional claims,
however, the claims of ineffective representation by
Simon all relate to matters that occurred prior to the
petitioner’s independent decision to enter a guilty plea,
at which time he was represented by Conroy. The peti-
tioner has failed to establish a sufficient interrelation-
ship between his claims directed at Simon’s
representation and his decision to plead guilty. Rather,
the petitioner baldly asserts that he would have pro-
ceeded to trial and not pleaded guilty if Simon had
been allowed to continue as counsel. That assertion,
however, is really nothing more than pure speculation.
The guilty plea that he eventually entered resolved not
only the charges he faced at the time of Simon’s with-
drawal, but also the additional 1999 charges that he
was arrested on soon thereafter. There is no evidence
in this record to support the notion that Simon would
have continued to counsel the petitioner to proceed
with the trial in the face of the additional 1999 charges
or to suggest that the state would have offered, and the
petitioner accepted, the same plea agreement whether
he had been represented by Simon or was self-repre-
sented. Accordingly, we conclude that the court prop-
erly determined that the claims raised in count three,
like those in counts one and two, were waived by the
petitioner’s guilty plea as a matter of law and properly
dismissed for lack of ‘‘good cause.’’
II
We next consider the petitioner’s claim that the
habeas court improperly dismissed count four of the
petition on the basis of the same waiver theory it
employed to dismiss counts one through three, which
theory, according to the petitioner, was not asserted
by the respondent in his return as a special defense to
count four. More particularly, the petitioner argues that
even if the claims in counts one, two, and three were
waived by the entry of his guilty plea, he ‘‘should be
permitted to litigate the claim of whether [Conroy] was
ineffective for failing to properly advise [him] about the
strength of an appeal and the waiver that would occur
by pleading guilty, as described in [count] four of [his]
amended petition for a writ of habeas corpus.’’ The
respondent counters that the petitioner has miscon-
strued the basis for the habeas court’s decision regard-
ing count four. The respondent asserts that the habeas
court dismissed count four not because it was waived
by his guilty plea, but because it ‘‘was barred by the
principles of res judicata, embodied in Practice Book
§ 23-29 [(3)], which bars successive petitions.’’ The
respondent claims that this defense was expressly
pleaded in his return. We agree with the respondent.
The following facts are relevant to our discussion.
The amended habeas petition filed in the petitioner’s
first habeas action was submitted as an exhibit by the
petitioner in the present case. In that petition, the peti-
tioner asserted, albeit in a single count, that he had
received ineffective assistance from both Simon and
Conroy. The specifications of deficient performance
were directed at ‘‘the petitioner’s attorneys,’’ and allege
that they had failed (1) ‘‘to pursue discovery to obtain
and/or communicate with the petitioner regarding the
evidence against [him] such as police reports, witness
statements and warrants,’’ (2) ‘‘to challenge [his] arrest
and the search of the area in which he was arrested
and [his] arrest warrant,’’ (3) ‘‘to communicate with
[him] regarding legal standards and evidentiary stan-
dards so [he] could make a knowing and voluntary
decision of whether to proceed to trial or to plead
guilty,’’ and (4) ‘‘to ensure the petitioner’s plea was
knowing, intelligent, and voluntary.’’ Because Simon
did not represent the petitioner at the time of the plea
offer and the decision to plead guilty, it is clear that the
third and fourth specifications of deficient performance
related to Conroy.
The fourth count of the petitioner’s amended petition
in the present action again alleges that Conroy failed,
in a variety of ways, to provide the effective assistance
of counsel, which is protected under our state and fed-
eral constitutions. Specifically, the current petition
alleges that Conroy’s performance was deficient
because he failed adequately to investigate aspects of
the case and a potential claim of self-defense, to advise
the petitioner about the strength of the state’s case, to
advise him regarding the consequences of his guilty
plea, including the potential for waiver, and to advise
the petitioner of his right to seek review of the court’s
rulings granting Simon’s motion to withdraw and deny-
ing his request to represent himself. The petitioner
acknowledges that he previously raised the same claim
in his first habeas action, but alleges that he ‘‘did not
have a full and fair opportunity to present this claim’’
in that action.
In addition to generally denying the factual allega-
tions underlying count four, the respondent asserted
by way of affirmative defense that the claims raised
were improperly successive in nature and, therefore,
subject to dismissal pursuant to Practice Book § 23-29
(3). The respondent further asserted that the allegations
made in count four present the same ground raised in
a prior petition that was previously denied, the peti-
tioner has failed to state any new facts or proffer new
evidence not reasonably available at the time he filed
the prior petition, and the petitioner received a full
and fair opportunity to litigate his claim in the prior
habeas action.
‘‘Our courts have repeatedly applied the doctrine of
res judicata to claims duplicated in successive habeas
petitions filed by the same petitioner. . . . In fact, the
ability to dismiss a petition [if] it presents the same
ground as a prior petition previously denied and fails
to state new facts or to proffer new evidence not reason-
ably available at the time of the prior petition is memori-
alized in Practice Book § 23-29 (3).’’ (Citations omitted;
internal quotation marks omitted.) Diaz v. Commis-
sioner of Correction, 125 Conn. App. 57, 64–65, 6 A.3d
213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150
(2011). Practice Book § 23-29 provides 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 . . . .’’
In analyzing whether a petition is based on the ‘‘same
ground’’ and, thus, subject to dismissal pursuant to
Practice Book § 23-29 (3), our Supreme Court has
explained that a ‘‘ground is a sufficient legal basis for
granting the relief sought. . . . 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. Put differently, two
grounds are not identical if they seek different relief.’’
(Citations omitted; internal quotation marks omitted.)
James L. v. Commissioner of Correction, 245 Conn.
132, 141, 712 A.2d 947 (1998). A claim of ineffective
assistance of counsel during trial proceedings consti-
tutes the ‘‘same ground’’ for purposes of § 23-29 (3),
despite changes in the precise underlying specifications
of deficient performance, unless such new specifica-
tions are based on facts or evidence not reasonably
available when the ground was raised in the earlier
petition.
In its memorandum of decision in the present case,
the court clearly disposed of count four on the basis that
the ground raised therein—the ineffective assistance
of Conroy—is successive in nature because the same
ground was raised in the petitioner’s first habeas action.
Because the petitioner would be unable to demonstrate
that he would be entitled to habeas corpus relief, the
court concluded that no good cause existed for a trial
on that count. In disposing of count four on this basis,
the court never mentioned that its decision was prem-
ised on waiver resulting from the petitioner’s having
pleaded guilty, nor would that have been a proper basis
for dismissing count four because it challenged whether
counsel provided constitutionally adequate advice
regarding the decision to plead guilty. Furthermore, the
court rejected the petitioner’s assertion that he did not
have a full and fair opportunity to present his claim in
the first habeas matter because it lacked any degree of
specificity on which to evaluate it.
The petitioner advanced no arguments in his principal
brief on appeal to this court as to why we should over-
turn the habeas court’s determination that count four
amounted to an improper successive petition. Because
the court’s ruling is legally and logically correct and
supported by the record, we reject the petitioner’s claim
of error with respect to count four and conclude that the
habeas court properly dismissed that count for failure
to establish good cause to proceed to trial.
III
Finally, we turn to the petitioner’s claims that the
court improperly dismissed counts five and six of the
petition, which, respectively, alleged the ineffective
assistance of former habeas counsel DeSantis and
Kraus. For the reasons that follow, and on the basis of
the record before the habeas court, we conclude that
the court improperly determined, at least in part, that
there was no good cause to allow those counts to pro-
ceed to trial.
Our Supreme Court, in Lozada v. Warden, 223 Conn.
834, 843, 613 A.2d 818 (1992), established that habeas
corpus is an appropriate remedy for the ineffective
assistance of appointed habeas counsel, authorizing
‘‘what is commonly known as a ‘habeas on a habeas,’
namely, a second petition for a writ of habeas corpus
. . . challenging the performance of counsel in litigat-
ing an initial petition for a writ of habeas corpus . . .
[that] had claimed ineffective assistance of counsel at
the petitioner’s underlying criminal trial or on direct
appeal.’’ Kaddah v. Commissioner of Correction, supra,
324 Conn. 550; see id., 563–70 (extending Lozada’s hold-
ing to encompass third habeas petition challenging per-
formance of second habeas counsel). Nevertheless, the
court in Lozada also emphasized that a petitioner
asserting a habeas on a habeas faces the ‘‘herculean
task’’; Lozada v. Warden, supra, 843; of proving in accor-
dance with Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), both ‘‘(1) that
his appointed habeas counsel was ineffective, and (2)
that his trial counsel was ineffective.’’ Lozada v. War-
den, supra, 842. Any new habeas 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 mer-
its of the original judgment by challenging the very
fabric of the conviction that led to the confinement.’’
Id., 843.
Simply put, a petitioner cannot succeed as a matter
of law—and, thus, cannot show good cause to proceed
to trial—on a claim that his habeas counsel was ineffec-
tive by failing to raise a claim against trial counsel or
prior habeas counsel in a prior habeas action unless
the petitioner ultimately will be able to demonstrate
that the claim against trial or prior habeas counsel
would have had a reasonable probability of success if
raised. We agree with the habeas court that this princi-
ple is fatal to those portions of counts five and six
of the petition that allege that former habeas counsel
provided ineffective assistance by failing to raise or
pursue the claims he alleges in counts one through
three of the current petition. As we concluded in part
I of this opinion, the habeas court properly dismissed
counts one through three, correctly determining that
the freestanding constitutional claims and the claims
of ineffective assistance by Simon were waived as a
matter of law by the petitioner’s guilty plea. Thus, even
if either habeas counsel performed deficiently in raising
and prosecuting those underlying claims, any claim of
ineffective assistance necessarily would fail because
the petitioner would be unable to demonstrate that he
was entitled to relief on the underlying claims. The
court, therefore properly dismissed those portions of
counts five and six that were premised on habeas coun-
sels’ alleged ineffective assistance with respect to
claims asserted in counts one through three of the cur-
rent habeas petition.
That same analysis, however, does not apply equally
to the ineffective assistance of counsel claim directed
at Conroy in count four, which relates in part to the
voluntariness of the petitioner’s guilty plea. As dis-
cussed in part II of this opinion, those allegations were
not waived because the petitioner pleaded guilty, but
rather were barred by the habeas court as an improper
successive claim under Practice Book § 23-29 (3)
because the ground of ineffective assistance by Conroy
had been raised and litigated in the petitioner’s first
habeas petition. Nevertheless, as recognized by the
habeas court, the issue of whether DeSantis was ineffec-
tive in his handling of the claims against Conroy was
never fully litigated but resolved by a stipulated judg-
ment that restored the petitioner’s appellate rights with
respect to claims raised in the first habeas action. Simi-
larly, whether Kraus, in the second habeas action, pro-
vided ineffective assistance with respect to the
allegations in count five against DeSantis also has never
been raised or litigated fully in a previous action. Unlike
the situation as to counts one through three therefore,
we cannot conclude that all claims directed against
Conroy as set forth in count four necessarily fail as a
matter of law and, therefore, we are left to consider
whether the petitioner demonstrated good cause to pro-
ceed to trial on count five, limited to the claims that
prior habeas counsel failed to properly raise or ade-
quately litigate the alleged ineffective assistance of Con-
roy with respect to the voluntariness of the petitioner’s
guilty plea, and, with respect to count six against Kraus,
whether Kraus failed to raise the ineffective assistance
of DeSantis.9
In reaching its conclusion that the petitioner had not
satisfied his burden of proof by both alleging facts that,
if proven, would entitle him to relief and producing
evidence demonstrating that those alleged facts exist,
the habeas court focused primarily on the petitioner’s
affidavit, which he had attached as an exhibit to his
memorandum of law in support of a finding of good
cause. The court stated with respect to the claims
against Conroy: ‘‘The affidavit also attests to the peti-
tioner’s interactions with [Conroy] after he replaced
[Simon]. The petitioner’s focus as to [Conroy] is his not
investigating, challenging or appealing the issues the
petitioner has identified relating [Simon’s] withdrawal.
Had both [Simon] and [Conroy] done all that the peti-
tioner alleges they did not do, then he would not have
pleaded guilty.’’
After next setting forth its conclusion that the peti-
tioner failed to meet his burden of proof under § 52-
470 (b), the court expounded on that conclusion as
follows: ‘‘Most importantly, the petitioner’s attestations
in his affidavit do not establish the necessary interrela-
tionship between ineffective assistance of counsel and
the plea itself. . . . Stated somewhat differently, none
of the petitioner’s claims have a direct relationship to
the validity of the plea itself, and any relationship he
asserts is too indirect and tenuous.’’ We conclude that,
although this conclusion is apt with respect to the
claims pertaining to Simon’s performance; see part I
of this opinion; it is improper with respect to certain
allegations against Conroy, and that error undermines
the court’s determination that no good cause to proceed
to trial existed regarding those particular allegations.
Among the documentary evidence that may be sub-
mitted in support a finding of good cause to proceed
to trial are affidavits and unsworn statements. General
Statutes § 52-470 (b) (2). The assertions in the petition-
er’s affidavit regarding Conroy’s performance included
his averment that he would not have pleaded guilty if
Conroy had properly advised him that a guilty plea
would operate as a waiver of his right to challenge the
court’s decisions not to allow him to proceed to trial
with Simon as his counsel of choice or to represent
himself. Specifically, the petitioner averred that ‘‘[i]f
[Conroy] had told me that pleading guilty would cause
me to waive my right to appeal from Judge Gaffney’s
denial of my request to have [Simon] continue as my
attorney I would not have pleaded guilty.’’ From that
statement, a reasonable factual inference may be drawn
that Conroy never advised the petitioner about that
particular legal consequence of his plea. If such testi-
mony was credited at trial, the petitioner’s statement
and reasonable inference would constitute evidence
supporting his assertion in the petition that he received
ineffective assistance from Conroy and that Conroy’s
deficient performance directly related to the knowing
and voluntary nature of his plea. This stands in direct
conflict with the habeas court’s reasoning. There is
further evidence in the record that DeSantis failed to
appeal from the denial of the first petition, which led
to the need for a second action to restore the petitioner’s
appellate rights. Although it is possible on the basis of
the entire record in this case, including the second
habeas action, to theorize other potentially viable affir-
mative defenses that the respondent might have suc-
cessfully pleaded with respect to counts five and six,
the respondent failed to raise any defenses to those
counts in its return. Because we cannot countenance
the dismissal of a habeas petition on the basis of a
defense not pleaded in the return; see Day v. Commis-
sioner of Correction, 151 Conn. App. 754, 759–60, 96
A.3d 600, cert. denied, 314 Conn. 936, 102 A.3d 1113
(2014); it is unwise to engage in any further discussion
of such possibilities. The habeas court’s rationale for
dismissing counts five and six in their entirety simply
lacks support in the record before us, and our review
of the pleadings and evidentiary submissions leads us
to conclude that at least a portion of the petition has
a sufficient basis in both fact and law to proceed to
a trial.
To summarize, we reverse the judgment of dismissal
pursuant to § 52-470 (b) only with respect to those por-
tions of count five alleging that the petitioner’s first
habeas counsel failed adequately to plead, prove, and
argue those claims raised in count four of the amended
petition regarding Conroy’s alleged failure to advise the
petitioner of the consequences of his guilty plea. We
further reverse the judgment with respect to that por-
tion of count six, which claims that the petitioner’s
second habeas counsel failed to adequately plead,
prove, and argue the surviving portions of count five.
The matter is remanded for further proceedings on
those portions of the petition only. We otherwise affirm
the habeas court’s decision to dismiss the amended
petition.
The judgment is reversed in part and the case is
remanded for further proceedings in accordance with
the preceding paragraph; the judgment is affirmed in
all other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 52-470 (b) provides in relevant part: ‘‘(1) After the
close of all pleadings in a habeas corpus proceeding, the court, upon the
motion of any party or, on its own motion upon notice to the parties, shall
determine whether there is good cause for trial for all or part of the petition.
‘‘(2) With respect to the determination of such good cause, each party
may submit exhibits including, but not limited to, documentary evidence,
affidavits and unsworn statements. . . .
‘‘(3) . . . If the petition and exhibits do not establish such good cause,
the court shall hold a preliminary hearing to determine whether such good
cause exists. If, after considering any evidence or argument by the parties
at such preliminary hearing, the court finds there is not good cause for trial,
the court shall dismiss all or part of the petition, as applicable.’’
2
We note that although some of the substantive criminal statutes referred
to in our recitation of the facts have been amended by the legislature since
the events underlying the present appeal, such amendments lack any bearing
on the merits of this appeal. Accordingly, for simplicity, we refer to the
current revision of those statutes.
3
Simon claimed he likely would be needed as a witness to rebut certain
consciousness of guilt evidence that the state intended to present at trial.
4
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
5
Although neither party submitted to the habeas court in the present
action any portion of the pleadings or decision in the second habeas action,
we take judicial notice of the contents of that file. See State v. Lenihan,
151 Conn. 552, 554, 200 A.2d 476 (1964) (courts in this state have discretion
to take judicial notice of court files in same or other cases).
6
The petitioner alleged that Simon provided ineffective assistance by
failing (1) to have a special public defender appointed to advise the petitioner
of the risks involved in proceeding to trial with conflicted counsel; (2) to
inform the court that the petitioner wanted to waive his right to conflict-
free counsel; (3) to withdraw his motion to withdraw after the petitioner
waived his right to conflict-free counsel; (4) to advise him of his right to
seek review of the court’s granting of the motion to withdraw; and (5) to
advise him of his right to appeal from the denial of his request to repre-
sent himself.
7
In granting the petition, the habeas court noted: ‘‘The court questions
whether a petition for [certification] is necessary in order for the petitioner
to appeal from a dismissal under [§] 52-470 (b).’’ (Emphasis in original.)
That issue is not before us in the present case. Nevertheless, we note that
the statutory requirement that petitioners seek certification prior to the
filing of an appeal with this court is found in subsection (g) of § 52-470,
which provides that certification is required for appeals ‘‘from the judgment
rendered in a habeas corpus proceeding . . . .’’ A dismissal or summary
disposition of a petition for a writ of habeas corpus, whether made pursuant
to § 52-470 (b), Practice Book § 23-29, or Practice Book § 23-37, is a ‘‘judg-
ment rendered in a habeas corpus proceeding’’ and, as such, presumably
would necessitate that an aggrieved petitioner file a petition for certification
to appeal in accordance with § 52-470 (g) prior to initiating any appeal from
such a judgment. See, e.g., Parker v. Commissioner of Correction, 169 Conn.
App. 300, 308, 149 A.3d 174 (certification sought prior to appeal of § 52-470
[b] dismissal), cert. denied, 324 Conn. 903, 151 A.3d 1289 (2016); Day v.
Commissioner of Correction, 151 Conn. App. 754, 757, 96 A.3d 600 (dismissal
pursuant to Practice Book § 23-29), cert. denied, 314 Conn. 936, 102 A.3d
1113 (2014); Lawrence v. Commissioner of Correction, 125 Conn. App. 759,
762, 9 A.3d 772 (2010) (summary judgment pursuant to Practice Book § 23-
37), cert. denied, 300 Conn. 936, 17 A.3d 474 (2011).
8
For clarity and ease of analysis, we address the petitioner’s claims in a
different order than they are set forth in the petitioner’s brief.
9
We construe the habeas court’s decision as properly having followed a
similar analytical path to the one that we have employed.