Carter v. Commissioner of Correction ( 2021 )

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ANTHONY CARTER v. COMMISSIONER
OF CORRECTION
(AC 43372)
Bright, C. J., and Cradle and Suarez, Js.
Syllabus
The petitioner, who previously had been convicted of the crimes of assault
in the first degree, attempt to commit assault in the first degree, risk
of injury to a child and criminal possession of a firearm, sought a fifth
writ of habeas corpus, claiming that his trial counsel had provided
ineffective assistance and that his right to due process had been violated.
The habeas court rendered judgment dismissing the petition in part on
the grounds that, pursuant to the applicable rule of practice (§ 23-29
(3)), the petitioner’s claims were successive and barred by the doctrines
of res judicata or collateral estoppel. Thereafter, the habeas court denied
the petition for certification to appeal, and the petitioner appealed to
this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal, the petitioner having failed to demonstrate that
his claims involved issues that were debatable among jurists of reason,
that a court could resolve the issues in a different manner, or that the
questions raised were adequate to deserve encouragement to proceed
further.
2. The petitioner could not prevail on his claim that the habeas court erred
in concluding that his ineffective assistance of counsel claims were
barred by the doctrine of res judicata, which was based on his contention
that, as a self-represented litigant in his previous habeas actions, he
lacked the skill and expertise to ascertain the facts underlying his present
claims, and, therefore, they were not reasonably available to him;
because the petitioner chose to represent himself through all of his
postconviction proceedings rather than exercising his statutory right
to counsel, to countenance his contention would be contrary to our
jurisprudence and fundamentally unfair to the respondent Commis-
sioner of Correction and to others who have an interest in the finality
of the petitioner’s conviction.
3. The petitioner’s claim that the habeas court erred in concluding that his
due process claim was barred by the doctrine of collateral estoppel was
unavailing; although the petitioner reworded the nature of his claim and
the theory on which it was based, it was clear that he had previously
litigated the relevant issue of whether a diagram pertaining to the state’s
ballistics evidence that was admitted into evidence at his criminal trial
was the product of fraud, as the integrity of the ballistics evidence had
been the subject of extensive postconviction litigation by the petitioner.
Argued January 11—officially released April 13, 2021
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Newson, J., rendered judg-
ment dismissing the petition in part; thereafter, the peti-
tioner withdrew the remaining count of the petition;
subsequently, the court denied the petition for certifica-
tion to appeal, and the petitioner appealed to this court.
Appeal dismissed.
Justine F. Miller, assigned counsel, for the appellant
(petitioner).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, executive
assistant state’s attorney, and Jo Anne Sulik, senior
assistant state’s attorney, for the appellee (respondent).
Opinion
CRADLE, J. The petitioner, Anthony Carter, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court dismiss-
ing in part his fifth petition for a writ of habeas corpus.
The petitioner claims that the court abused its discre-
tion in denying his petition for certification to appeal
and erred in dismissing in part his habeas petition on
the grounds that, pursuant to Practice Book § 23-29,1
his claims of ineffective assistance of counsel and viola-
tion of his right to due process were successive and
barred by the doctrines of res judicata or collateral
estoppel. We dismiss the appeal.
‘‘This case arises from the terrible consequences of
a drug turf war. During a Fourth of July block party in
the area of Enfield and Garden Streets in Hartford, a
seven year old girl was struck by a stray bullet that
caused serious injuries.’’ State v. Carter, 84 Conn. App.
263, 265, 853 A.2d 565, cert. denied, 271 Conn. 932, 859
A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct.
2529, 161 L. Ed. 2d 1120 (2005). The following facts and
procedural history, which were set forth by this court
in the petitioner’s appeal from the denial of his fourth
habeas petition, are relevant to the petitioner’s present
appeal. ‘‘In 2002, after a jury trial, the petitioner was
found guilty of assault in the first degree in violation
of General Statutes § 53a-59 (a) (5), attempt to commit
assault in the first degree in violation of General Stat-
utes §§ 53a-49 (a) (2) and 53a-59 (a) (5), risk of injury
to a child in violation of General Statutes [Rev. to 2001]
§ 53-21 (a) (1) and criminal possession of a firearm in
violation of General Statutes [Rev. to 2001] § 53a-217
(a) (1). The trial court rendered judgment accordingly
and sentenced the petitioner to a total effective term
of twenty-seven years [of] incarceration. A direct appeal
to this court followed.
‘‘In affirming the judgment of conviction, this court
concluded, inter alia, that the evidence adduced at trial
was sufficient to support the conviction of assault in
the first degree and risk of injury to a child.2 More
specifically, this court stated that the evidence adduced
at trial was sufficient to establish that the petitioner
shot the victim. [Id., 270].
‘‘In 2004, the petitioner filed his first petition for a
writ of habeas corpus in which he raised fourteen
claims.3 That petition was denied by the habeas court.
The petitioner then appealed following the court’s
denial of his petition for certification to appeal, claiming
that the court abused its discretion in denying his peti-
tion for certification and in denying his petition as
unfounded. This court dismissed that appeal in Carter
v. Commissioner of Correction, 106 Conn. App. 464,
942 A.2d 494, cert. denied, 288 Conn. 906, 953 A.2d
651 (2008).
‘‘The petitioner then filed a second petition for a writ
of habeas corpus on March 6, 2007. In a supplemental
memorandum attached to his petition, the petitioner
raised four claims.4 The court summarily dismissed the
petitioner’s second petition on its own motion, without
an evidentiary hearing and before the respondent, the
[C]ommissioner of [C]orrection, had filed her reply. The
court stated in its judgment of dismissal that [a]fter
having reviewed the . . . petition, the court finds the
petition to be res judicata and dismisses the petition
pursuant to Practice Book § 23-29 (3). . . . Carter v.
Commissioner of Correction, 109 Conn. App. 300, 304,
950 A.2d 619 (2008). The court subsequently denied the
petition for certification to appeal. On appeal, this court
concluded that the record was inadequate to review
the petitioner’s claim and, therefore, dismissed the
appeal. Id., 307.
‘‘In October, 2007, the petitioner initiated a third
habeas action in which he alleged that the state had
withheld exculpatory evidence [specifically, ballistics
evidence pertaining to a nine page report prepared by
the investigating officer in which he misidentifies an
item of evidence marked E-9 as a .45 caliber shell casing]
in violation of Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963). After a full hearing,
the habeas court concluded that there was no Brady
violation and denied the petition. See Carter v. Warden,
Superior Court, judicial district of Tolland, Docket No.
CV-XX-XXXXXXX (January 22, 2010). The petitioner then
appealed following the court’s denial of his petition
for certification to appeal, and this court subsequently
dismissed that appeal in Carter v. Commissioner of
Correction, 131 Conn. App. 905, 28 A.3d 360 (2011).
‘‘On November 21, 2007, the petitioner filed a motion
to correct an illegal sentence. In his motion, he argued
that the trial court, in rendering its sentence, improperly
considered an argument the prosecutor had made to
the jury during closing argument that certain evidence
suggested that the petitioner had fired a nine millimeter
firearm. See State v. Carter, 122 Conn. App. 527, 529–30,
998 A.2d 1217 (2010), cert. denied, 300 Conn. 915, 13
A.3d 1104 (2011). The trial court denied that motion
and, after reviewing the record, this court affirmed the
judgment, concluding that there was nothing in the
record to indicate that the court relied on any misstated
or inaccurate information in sentencing the petitioner.
Id., 532.
‘‘On January 29, 2010, the petitioner initiated [his
fourth] habeas action.’’ (Footnote added; footnotes in
original; internal quotation marks omitted.) Carter v.
Commissioner of Correction, 133 Conn. App. 387, 388–
91, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d
217 (2012). By an amended petition dated March 1, 2010,
the petitioner alleged that his trial counsel rendered
ineffective assistance during sentencing by failing to
preserve his right of sentence review. Id., 391. He also
asserted three arguments that the evidence was insuffi-
cient to sustain his conviction. Id. The habeas court
dismissed the petition on the ground that his claims
were successive and barred by res judicata. Id., 391–92.
The petitioner appealed the dismissal of his habeas
petition on the ground that his claims were neither
successive nor barred by res judicata because the peti-
tion sought a different form of relief than his previous
petitions. Id., 392. He further contended that his claims
were not barred by the doctrine of res judicata because
they were not actually litigated in his prior petitions.
Id. This court agreed that the petitioner’s sufficiency
claims were barred by res judicata; id., 395; but that
his ineffective assistance claim regarding his counsel’s
failure to preserve his right to sentence review was not
barred by res judicata because the claim had not been
previously litigated. Id., 396–97. Accordingly, this court
reversed the judgment of the habeas court as to the
petitioner’s claim of ineffective assistance of counsel
and remanded the case to the habeas court for further
proceedings on that claim.5 Id., 397.
In his previous habeas actions, the petitioner
appeared as a self-represented party. In this habeas
action—the petitioner’s fifth—he was represented by
counsel and alleged, by way of his petition dated May
20, 2019, that his trial counsel was ineffective in failing
to perfect a third-party culpability defense and failing
to formulate an effective theory of defense in response
to the state’s ballistic evidence. The petitioner also
alleged that his right to due process was violated when
the state perpetrated ‘‘a fraud upon the court’’ by alleg-
edly altering certain evidence, specifically, a diagram
pertaining to the ballistics evidence that was admitted
at trial.6 In response, the respondent alleged that the
petition was successive pursuant to Practice Book § 23-
29 (3) and that the claims raised therein were barred
by res judicata or collateral estoppel because they pre-
sented the same legal grounds as the petitioner’s pre-
viously litigated actions, and the petitioner had not
shown that any of the claims were based on facts that
were not reasonably available to him when the prior
habeas actions were filed.
On May 22, 2019, the habeas court, sua sponte,
ordered a hearing on whether the petition should be
dismissed as successive and whether the petitioner’s
claims were barred by res judicata or collateral estop-
pel. Both parties filed memoranda of law in support of
their respective positions, and the court held a hearing
on June 18, 2019, during which the petitioner argued
that, although he previously had litigated claims of inef-
fective assistance of his trial counsel, the factual bases
of those claims were different. Furthermore, he claimed
that he previously had been unable to discover the facts
underlying his current claims because he represented
himself in those actions. He also argued that his due
process claim was premised on a legal ground that he
had not asserted previously.
The court dismissed the petitioner’s claims orally
from the bench, expressly rejecting his contention that
he should be absolved from the legal requirements pro-
hibiting successive petitions on the ground that he rep-
resented himself. The court found that the petitioner
had made ‘‘a conscious choice’’ to represent himself in
his prior habeas actions and held that his status as a
self-represented party did not allow him to engage in
‘‘piecemeal litigation’’ by asserting new factual bases
for his ineffective assistance of counsel claims. The
court concluded that, because the facts underlying the
petitioner’s current claims of ineffective assistance of
counsel could have been discovered through reasonable
diligence in the petitioner’s prior habeas actions, those
claims were barred by res judicata. The court also found
that the petitioner’s claim that his right to due process
was violated because a diagram admitted into evidence
was fraudulently altered previously had been litigated
and was, therefore, barred by res judicata and/or collat-
eral estoppel. Accordingly, the court dismissed in part
the petition for writ of habeas corpus and thereafter
denied certification to appeal from that judgment. This
appeal followed.
‘‘Faced with a habeas court’s denial of a petition for
certification 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,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] 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. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous.’’ (Internal quotation
marks omitted.) Haywood v. Commissioner of Correc-
tion, 194 Conn. App. 757, 763–64, 222 A.3d 545 (2019),
cert. denied, 335 Conn. 914, 229 A.3d 729 (2020).
‘‘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.’’ (Internal quotation
marks omitted.) Johnson v. Commissioner of Correc-
tion, 285 Conn. 556, 566, 941 A.2d 248 (2008). ‘‘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 . . . .’’ (Inter-
nal quotation marks omitted.) Grant v. Commissioner
of Correction, 121 Conn. App. 295, 298, 995 A.2d 641,
cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010). With
these principles in mind, we address the petitioner’s
claims in turn.
I
The petitioner first claims that the habeas court erred
in concluding that his ineffective assistance of counsel
claims were barred by the doctrine of res judicata. He
argues that they are not barred by res judicata because
they are based on facts pertaining to a third-party culpa-
bility claim that he could not have discovered previously
because he was not represented by counsel in his prior
habeas actions.7 We are not persuaded.
‘‘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). . . .
‘‘Pursuant to Practice Book § 23-29 (3), [i]f a previous
[petition] brought on the same grounds was denied, the
pending [petition] may be dismissed without hearing,
unless it states new facts or proffers new evidence not
reasonably available at the previous hearing. . . . [A]
petitioner may bring successive petitions on the same
legal grounds if the petitions seek different relief. . . .
But where successive petitions are premised on the
same legal grounds and seek the same relief, the second
petition will not survive a motion to dismiss unless
the petition is supported by allegations and facts not
reasonably available to the petitioner at the time of the
original petition.’’ (Citations omitted; internal quotation
marks omitted.) Gudino v. Commissioner of Correc-
tion, 191 Conn. App. 263, 270–71, 214 A.3d 383, cert.
denied, 333 Conn. 924, 218 A.3d 67 (2019).
This court has held that, ‘‘in the absence of allegations
and facts not reasonably available to the petitioner at
the time of the original petition or a claim for different
relief, a subsequent claim of ineffective assistance
directed against the same counsel is subject to dismissal
as improperly successive. . . . Identical grounds may
be proven by different factual allegations, supported
by different legal arguments or articulated in different
language. . . . However they are proved, the grounds
that the petitioner asserted are identical in that each
alleges ineffective assistance of counsel, and, therefore,
the habeas petition was properly dismissed.’’ (Citation
omitted; internal quotation marks omitted.) Id., 272.
Here, the petitioner concedes that his claims of inef-
fective assistance of counsel have been litigated. He
nevertheless contends that they are not barred by res
judicata because, as a self-represented litigant, he
lacked the skill and expertise to ascertain the facts
underlying his present claims of ineffective assistance.
In other words, he now claims that the facts underlying
his present claims were based on facts or evidence not
reasonably available to him during prior proceedings
because, at the time of those proceedings, he was a
self-represented party, and now, with counsel, he is
aware of the facts or evidence and wishes to raise them
despite having litigated these claims previously.
In support of his argument, the petitioner relies on
the following language in Gaskin v. Commissioner of
Correction, 183 Conn. App. 496, 520, 193 A.3d 625(2018): ‘‘[W]e cannot expect an incarcerated individual
such as the petitioner, after appellate counsel has been
permitted to withdraw by the Superior Court, to then
be able to develop new claims from the confines of
prison. Such expectations defy reason.’’ That reasoning
was applied, however, in the procedural context pre-
sented in Gaskin where the court permitted the peti-
tioner’s counsel to withdraw from his case, leaving the
petitioner with no choice but to represent himself. This
case is distinguishable from Gaskin because the peti-
tioner here chose to represent himself, repeatedly and
consistently, over the course of almost two decades,
and in numerous proceedings, since the date of his
conviction.
This court has explained: ‘‘Although we allow [self-
represented] litigants some latitude, the right of self-
representation provides no attendant license not to
comply with relevant rules of procedural and substan-
tive law. . . . There, however, comes a point at which
granting too much latitude to self-represented parties
can simply be unfair to their adversaries.’’ (Citation
omitted; internal quotation marks omitted.) Woods v.
Commissioner of Correction, 197 Conn. App. 597, 608–
609, 232 A.3d 63, cert. granted, 335 Conn. 938, A.3d
(2020).
It is clear from the extensive history of this case, that
the petitioner has been afforded several opportunities
to fully and fairly challenge his conviction and that he
has been given significant latitude to do so as a self-
represented litigant. In particular, he freely admits that
he has previously litigated his ineffective assistance of
counsel claims. He also all but concedes that, if he were
represented by counsel when he previously pursued
those claims, his present claims would be barred by
res judicata. He claims, however, that we essentially
should fashion a new rule that would allow a petitioner
who represented himself in one or more habeas cases
to reassert claims in a later habeas case in which he
is represented by counsel, because he was not able
effectively to litigate the claims in the earlier cases
because he is not a trained lawyer. Such a rule would
permit a petitioner to manipulate the habeas corpus
process and would turn the statutory right to counsel
in habeas proceedings on its head. The petitioner chose
to represent himself through all of his prior postconvic-
tion proceedings. He chose not to exercise his statutory
right to counsel. To countenance his argument that he
has been unable to ascertain the facts underlying his
present claims because he chose to represent himself
would be contrary to our jurisprudence and fundamen-
tally unfair to the respondent and others who have an
interest in the finality of the petitioner’s conviction. We
therefore reject the petitioner’s argument and conclude
that the habeas court properly dismissed the petition-
er’s ineffective assistance of counsel claims as succes-
sive.
II
The defendant also claims that the habeas court erred
in concluding that his due process claim was barred by
the doctrine of collateral estoppel.8 We disagree.
The same policy considerations that we have relied
on to circumscribe the application of the doctrine of
res judicata to habeas proceedings guide us in applying
the doctrine of collateral estoppel in this context. ‘‘The
common-law doctrine of collateral estoppel, or issue
preclusion, embodies a judicial policy in favor of judi-
cial economy, the stability of former judgments and
finality. . . . Collateral estoppel . . . is that aspect of
res judicata [that] 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. . . . [C]ollateral estoppel [is] 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 judgments grants to parties
and others the certainty in the management of their
affairs which results when a controversy is finally laid
to rest.’’ (Citation omitted; internal quotation marks
omitted.) Johnson v. Commissioner of Correction, 168
Conn. App. 294, 310–11, 145 A.3d 416, cert. denied, 323
Conn. 937, 151 A.3d 385 (2016).
The petitioner claims that his right to due process
was violated because, at trial, a diagram portraying the
state’s preliminary theory regarding certain ballistics
evidence was admitted into evidence without a label
identifying it as having been prepared by the Hartford
Police Department. The petitioner argues that the label
was removed by the state prior to the diagram’s admis-
sion into evidence, constituting a fraud on the court
and a violation of his constitutional right to due pro-
cess.9 The integrity of the state’s ballistics evidence has
been the subject of extensive postconviction litigation
by the petitioner.
Most recently, the petitioner filed a motion to set
aside his conviction, claiming ‘‘ ‘after-discovered fraud
on the court,’ ’’ involving the same ballistics report at
issue in this case. State v. Carter, Superior Court, judi-
cial district of Hartford, Docket No. HHD-CR-01-553550
(October 30, 2017). The trial court, Schuman, J., con-
cluded, inter alia, that the petitioner’s claim was barred
by collateral estoppel and dismissed his motion because
the petitioner had previously raised the same issue in
a previously filed motion to open and set aside his
judgment of conviction. Id. Although the petitioner filed
an appeal from Judge Schuman’s decision, he did so on
other grounds and did not challenge Judge Schuman’s
collateral estoppel determination on appeal. In
affirming that judgment, this court recounted: ‘‘On June
20, 2017, the [petitioner] filed a motion to set aside
the judgment. Therein, the [petitioner] claimed ‘after-
discovered fraud on the court.’ . . . In his memoran-
dum of law in support of the operative motion, the
[petitioner] expounded ‘that the prosecution altered,
concealed and/or removed from the trial proceedings
documents prepared by the Hartford Police Department
with purpose to impair its verity and availability, and
that the prosecution passed the altered document off to
the defense, representing it to be ‘‘[simply] a distance’’
measurement, knowing it to be false.’ On August 3,
2017, the state moved to dismiss the operative motion,
arguing that the trial court lacked subject matter juris-
diction. The trial court . . . granted the state’s motion
on October 30, 2017. . . .
‘‘In the court’s ruling, it detailed part of the [petition-
er’s] ‘voluminous history’ of postconviction litigation,
including a motion to open and set aside the judgment
of conviction filed in 2010. The [petitioner] based his
2010 motion on ‘fraud concerning ballistics evidence
and reports prepared by the Hartford Police Depart-
ment about that evidence.’ . . . That motion was
denied by the court, Gold, J., on two grounds: (1) ‘the
motion was filed well beyond the four month period
after the entry of the criminal conviction and judgment’;
and (2) ‘the motion was barred by collateral estoppel
in that Judge Nazzaro had rejected the same claim in
the [petitioner’s] third habeas petition.’ Applying this
history to the operative motion, Judge Schuman con-
cluded that the [petitioner’s] claim bore ‘only semantic
differences from the [petitioner’s] claim . . . raised in
[the 2010] motion to open.’ As that claim had already
been considered and rejected multiple times before,
most recently by Judge Gold and this court, the trial
court concluded that it ‘necessarily must grant the
state’s motion to dismiss . . . .’ ’’ (Footnotes omitted.)
State v. Carter, 194 Conn. App. 202, 204–205, 220 A.3d
882 (2019).10
In the present case, the petitioner claims that the
absence of the label indicating that the diagram had
been created by the Hartford Police Department caused
the diagram to ‘‘[lose] its effectiveness’’ because it failed
to depict the initial theory that the victim was injured
by a bullet from a gun that did not belong to the peti-
tioner. He claims that the state perpetrated a fraud on
the trial court because it removed the label prior to
giving it to his counsel. Although the petitioner has
reworded the nature of his claim and the legal theory
on which it is based, he cannot escape the fact that he
previously has litigated the issue of whether the diagram
was the product of fraud. Because the petitioner liti-
gated issues regarding the ballistics evidence in his third
habeas action and his two subsequent motions to open
and set aside his conviction, the habeas court in this
case properly concluded that the issue of fraud as to
the diagram pertaining to the ballistics evidence, as set
forth in this fifth habeas petition, is barred by collateral
estoppel.
On the basis of our analysis and conclusions in parts
I and II of this opinion, we conclude that the petitioner
has failed to prove that the resolution of the underlying
claims involves issues that 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, and, there-
fore, the habeas court did not abuse its discretion in
denying the petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
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 . . . .’’
2
The petitioner did not challenge the sufficiency of the evidence support-
ing his conviction of the other crimes.
3
‘‘The petitioner amended his first petition several times, finally claiming
that (1) there was insufficient evidence to prove beyond a reasonable doubt
the element of intent for assault in the first degree, (2) the prosecution
knowingly elicited perjured testimony during the criminal trial, (3) prosecu-
torial impropriety transpired, (4) his arrest warrant contained false state-
ments and material omissions in violation of Franks v. Delaware, 438 U.S.
154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), (5) the trial court impermissibly
amended the information on the charge of assault in the first degree during
its instruction to the jury, (6) his arrest was illegal on the charge of attempt
to commit assault in the first degree, (7) the trial court improperly instructed
the jury on the element of intent, (8) the conviction of assault in the first
degree and risk of injury to a child is legally inconsistent, (9) the conviction
of assault in the first degree and attempt to commit assault in the first
degree violates the constitutional protection against double jeopardy, (10)
§ 53a-59 is unconstitutionally vague, (11) . . . § 53-21 is unconstitutionally
vague, (12) he received ineffective assistance of trial counsel, (13) he
received ineffective assistance of appellate counsel and (14) he was actually
innocent of the crime of assault in the first degree. See Carter v. Warden,
Superior Court, judicial district of Tolland, Docket No. CV-XX-XXXXXXX-S
(May 4, 2006).’’ Carter v. Commissioner of Correction, 133 Conn. App. 387,
389 n.3, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012).
4
‘‘In his second petition for a writ of habeas corpus, the petitioner claimed
that (1) the prosecuting authority deliberately deceived the court and jurors
in order to obtain his conviction, (2) the state’s argument on direct appeal
deliberately deceived the Appellate Court in order to have his conviction
affirmed, (3) his trial counsel rendered ineffective assistance when he failed
to call certain adverse witnesses and (4) his trial counsel rendered ineffective
assistance when he failed to object to the prosecutor’s false or misleading
argument to the jury. Carter v. Commissioner of Correction, [109 Conn.
App. 300, 304 n.4, 950 A.2d 619 (2008)].’’ Carter v. Commissioner of Correc-
tion, 133 Conn. App. 387, 390 n.4, 35 A.3d 1088, cert. denied, 307 Conn. 901,
53 A.3d 217 (2012).
5
Subsequently, the petitioner’s sentence was reviewed by the sentence
review division of the Superior Court, which concluded that the petitioner’s
sentence was appropriate and not disproportionate. State v. Carter, Superior
Court, judicial district of Hartford, Docket No. HHD-CR-01-553550 (June
24, 2014).
6
In his third amended petition, the petitioner also alleged that his trial
counsel was ineffective in not obtaining presentence jail credit for him. He
subsequently withdrew this claim.
7
The petitioner does not specify the new facts that he had been unable
to ascertain without counsel.
8
The habeas court concluded that the petitioner’s due process claim
was barred by res judicata and/or collateral estoppel. The petitioner has
challenged the applicability of both of those doctrines. Because we conclude
that the petitioner’s claim is barred by collateral estoppel, we need not
address his res judicata argument as it relates to this claim.
9
We note that the diagram at issue, which was disclosed to the petitioner’s
trial counsel in advance of trial, was admitted into evidence by the petition-
er’s trial counsel. His trial counsel, therefore, was in possession of the
diagram prior to offering it as a trial exhibit and was able to observe that
there was no label on the diagram. His due process claim thus stems from
a document that his own counsel presented to the jury.
10
In dismissing the petitioner’s motion to set aside the judgment, Judge
Schuman also noted: ‘‘The [petitioner] makes no clear claim or allegation
in his motion papers that the conduct of the prosecution in this case was,
at the very least, directed at the court itself and, in fact, deceived the court.
The [petitioner] has instead merely attempted to fit his previous claim that
there was fraud concerning the Hartford police ballistics reports into a
doctrine that might possibly circumvent the previous rulings against him.
There is no such fit in this case.’’