Brewer v. Commissioner of Correction

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
JOHN BREWER v. COMMISSIONER OF CORRECTION
(AC 36746)
Gruendel, Alvord and West, Js.
Argued October 22—officially released December 22, 2015
(Appeal from Superior Court, judicial district of
Tolland, Kwak, J.)
Elio C. C. Morgan, assigned counsel, for the appel-
lant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, John Brewer, appeals
from the judgment of the habeas court dismissing three
counts of his petition for a writ of habeas corpus and
denying certification to appeal from that decision. On
appeal, the petitioner claims that the habeas court (1)
abused its discretion by denying his petition for certifi-
cation to appeal and (2) violated his due process rights
guaranteed under the Connecticut and United States
constitutions by dismissing his claims without an evi-
dentiary hearing.1 We dismiss in part and reverse in
part the judgment of the habeas court.
The petitioner’s incarceration is a result of his 2004
convictions of murder in violation of General Statutes
§ 53a–54a (a) and criminal possession of a firearm in
violation of General Statutes § 53a–217 (a) (1). He
received a total effective sentence of sixty years in
prison. In 2007, the Connecticut Supreme Court
affirmed his conviction. State v. Brewer, 283 Conn. 352,
353, 927 A.2d 825 (2007).
The petitioner filed his first petition for a writ of
habeas corpus in 2006 and amended it in 2009. The
petitioner argued that his trial counsel had been ineffec-
tive. Specifically, he claimed that counsel: had not pre-
sented an alibi defense; requested, without the
petitioner’s permission, that the court instruct the jury
on a lesser included offense; and had not entered letters
into evidence that allegedly showed a state’s witness
had agreed to testify favorably in exchange for consider-
ation in his own criminal case. The habeas court, Fuger,
J., denied the petition for a writ of habeas corpus and
also denied certification for appeal. This court dis-
missed the petitioner’s appeal of the habeas court’s
judgment. Brewer v. Commissioner of Correction, 133
Conn. App. 904, 34 A.3d 480, cert. denied, 304 Conn.
910, 39 A.3d 1121 (2012).
In 2010, the petitioner filed his second petition for a
writ of habeas corpus, and later amended that petition
in June, 2013. The amended petition raised four counts:
(1) ineffective assistance of trial counsel, (2) ineffective
assistance of appellate counsel, (3) prosecutorial
impropriety, and (4) ineffective assistance of prior
habeas counsel. On September 9, 2013, the habeas
court, Kwak, J., conducted a habeas trial. The court
dismissed counts one and four, ineffective assistance of
trial counsel and ineffective assistance of prior habeas
counsel, on two grounds: failure to state a claim upon
which habeas relief could be granted in accordance
with Practice Book § 23-29 (2) and res judicata in that
the claim and underlying principles raised were litigated
previously with adverse final judgments. Count three,
prosecutorial impropriety, was also dismissed for a fail-
ure to comply with Practice Book § 23-29 (2) as well
as procedural default per Practice Book § 23-31 (a). On
the second count, ineffective assistance of appellate
counsel, the habeas court held an evidentiary hearing
and denied the petition. Following the hearing, the
habeas court denied the petitioner’s petition for certifi-
cation to appeal. This appeal of the habeas court’s judg-
ment on the second habeas petition followed.
The petitioner claims that the habeas court abused
its discretion by denying his petition for certification
to appeal. The petitioner argues that the habeas court
erred by dismissing his claims of ineffective assistance
of trial counsel, prosecutorial impropriety, and ineffec-
tive assistance of first habeas counsel.2 We conclude
that the habeas court properly dismissed the claims of
ineffective assistance of trial counsel and prosecutorial
impropriety. The respondent, the Commissioner of Cor-
rection, concedes and we agree that the habeas court
erred by denying the petitioner an evidentiary hearing
on his claim that prior habeas counsel was ineffective
for not raising the claim of ineffective assistance of
trial counsel.
‘‘We begin by setting forth the applicable standard
of review and procedural hurdles that the petitioner
must surmount to obtain appellate review of the merits
of a habeas court’s denial of the habeas petition follow-
ing denial of certification to appeal. In Simms v. War-
den, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our
Supreme Court] concluded that . . . [General Stat-
utes] § 52–470 (b) prevents a reviewing court from hear-
ing the merits of a habeas appeal following the denial of
certification to appeal unless the petitioner establishes
that the denial of certification constituted an abuse of
discretion by the habeas court. In Simms v. Warden, 230
Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme
Court] incorporated the factors adopted by the United
States Supreme Court in Lozada v. Deeds, 498 U.S. 430,
431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as
the appropriate standard for determining whether the
habeas court abused its discretion in denying certifica-
tion to appeal. This standard requires the petitioner to
demonstrate that the issues are debatable among jurists
of reason; that a court could resolve the issues [in a
different manner]; or that the questions are adequate
to deserve encouragement to proceed further. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . In determining whether
the habeas court abused its discretion 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis in original; internal quotation marks
omitted.) Atkins v. Commissioner of Correction, 158
Conn. App. 669, 674–75, 120 A.3d 513, cert. denied, 319
Conn. 932, A.3d (2015).
‘‘The conclusions reached by the trial 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 . . . . [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.) Anderson v. Commissioner of
Correction, 114 Conn. App. 778, 784, 971 A.2d 766, cert.
denied, 293 Conn. 915, 979 A.2d 488 (2009).
I
First we address the petitioner’s claim of ineffective
assistance of trial counsel. The habeas court dismissed
this claim under the doctrine of res judicata.3 To deter-
mine whether the habeas court’s denial of certification
to appeal was an abuse of discretion, we must review
the petitioner’s underlying claim of ineffective assis-
tance of trial counsel. Kearney v. Commissioner of
Correction, 113 Conn. App. 223, 228, 965 A.2d 608
(2009). ‘‘To prevail on a claim of ineffective assistance
of counsel, a habeas petitioner must satisfy two require-
ments. First, the [petitioner] must show that counsel’s
performance was deficient. . . . Second, the [peti-
tioner] must show that the deficient performance preju-
diced the defense. . . . Unless a [petitioner] makes
both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversarial pro-
cess that renders the result unreliable. . . . A
reviewing court need not address both components of
the inquiry if the [petitioner] makes an insufficient
showing on one.’’ (Internal quotation marks omitted.)
Talton v. Commissioner of Correction, 155 Conn. App.
234, 240, 110 A.3d 434 (2015).
The doctrine of res judicata applies to habeas corpus
proceedings that include constitutional claims as long
as the claims have been previously raised and litigated.
Pierce v. Commissioner of Correction, 158 Conn. App.
288, 307, 118 A.3d 640 (2015). ‘‘The common-law doc-
trine of collateral estoppel, or issue preclusion, embod-
ies a judicial policy in favor of judicial economy, the
stability of former judgments and finality. . . . Collat-
eral estoppel . . . is that aspect of res judicata which
prohibits the relitigation of an issue when that issue
was actually litigated and necessarily determined in a
prior action between the same parties upon a different
claim. . . . For an issue to be subject to collateral
estoppel, it must have been fully and fairly litigated in
the first action. It also must have been actually decided
and the decision must have been necessary to the judg-
ment. . . . An issue is actually litigated if it is properly
raised in the pleadings or otherwise, submitted for
determination, and in fact determined. . . . An issue
is necessarily determined if, in the absence of a determi-
nation of the issue, the judgment could not have been
validly rendered.’’ (Internal quotation marks omitted.)
Oliphant v. Commissioner of Correction, 161 Conn.
App. 253, 266, A.3d (2015).
Practice Book § 23-29 adopts this concept by author-
izing the habeas court to dismiss claims that have been
previously litigated even though the claims are sup-
ported by a different set of facts.4 ‘‘[A] petitioner may
bring successive petitions on the same legal grounds if
the petitions seek different relief. . . . But where suc-
cessive 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.’’ (Internal quotation marks omitted.) Anderson
v. Commissioner of Correction, supra, 114 Conn.
App. 794.
In his first petition for a writ of habeas corpus, the
petitioner claimed that his trial counsel had been inef-
fective. The first habeas court held an evidentiary hear-
ing and denied the writ of habeas corpus. In this second
petition for a writ of habeas corpus, the petitioner again
claims that his trial counsel was ineffective; the identi-
cal legal claim as was raised in his first habeas petition.
The petitioner offers new reasons why trial counsel
was ineffective; he claims counsel failed to investigate
and request a hearing as to whether the state had
agreements for consideration in sentencing with three
adverse witnesses, to object to admitted evidence that
constituted prior inconsistent statements, to adequately
develop a theory of third party culpability, and to offer
testimony from a crime scene reconstruction expert.
In his responsive pleading, the commissioner claimed
that res judicata barred the petitioner from arguing
ineffective assistance of trial counsel. In reply, the peti-
tioner offered no explanation why his new allegations as
to the performance of trial counsel were not reasonably
available to him at the time of the first petition. ‘‘[A]n
applicant must . . . show that his application does,
indeed, involve a different legal ground, not merely a
verbal reformulation of the same ground.’’ (Emphasis
omitted; internal quotation marks omitted.) Mejia v.
Commissioner of Correction, 98 Conn. App. 180, 190,
908 A.2d 581 (2006). The second habeas court was
within its discretion to dismiss the claim. As such, we
conclude that the habeas court did not abuse its discre-
tion by denying the petitioner certification to appeal
this claim.
II
The petitioner’s third claim, prosecutorial impropri-
ety, was dismissed by the habeas court because of pro-
cedural default.5 Procedural default presents a question
of law over which we exercise plenary review. Johnson
v. Commissioner of Correction, 285 Conn. 556, 566, 941
A.2d 248 (2008). If a claim was not properly pursued
at trial or on direct appeal, then habeas corpus review
is not available unless the petitioner can make both a
showing of cause for his failure to raise the claim and
also a showing of actual prejudice. See Jackson v. Com-
missioner of Correction, 227 Conn. 124, 131–32, 629
A.2d 413 (1993). ‘‘This [procedural] rule promotes not
only the accuracy and efficiency of judicial decisions,
but also the finality of those decisions, by forcing the
defendant to litigate all of his claims together, as quickly
after trial as the docket will allow, and while the atten-
tion of the appellate court is focused on his case.’’
(Internal quotation marks omitted.) Lorthe v. Commis-
sioner of Correction, 103 Conn. App. 662, 696, 931 A.2d
348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).
‘‘A respondent seeking to raise an affirmative defense
of procedural default must file a return to the habeas
petition responding to the allegations of the petitioner
and alleg[ing] any facts in support of any claim of proce-
dural default . . . . Only after the respondent raises
the defense of procedural default in accordance with
§ 23–30 (b) does the burden shift to the petitioner to
allege and prove that the default is excused.’’ (Citations
omitted; internal quotation marks omitted.) Crawford
v. Commissioner of Correction, 294 Conn. 165, 175–76,
982 A.2d 620 (2009). Bearing this burden, the petitioner
must demonstrate good cause and actual prejudice.
Zabian v. Commissioner of Correction, 115 Conn. App.
144, 152, 971 A.2d 822 (2009). ‘‘Under this standard, the
petitioner must demonstrate good cause for his failure
to raise a claim at trial or on direct appeal and actual
prejudice resulting from the impropriety claimed in the
habeas petition. . . . [T]he cause and prejudice test is
designed to prevent full review of issues in habeas cor-
pus proceedings that counsel did not raise at trial or
on appeal for reasons of tactics, inadvertence or igno-
rance . . . . [When] no evidence [of cause and preju-
dice] has been provided [to the habeas court], [the
reviewing] court can independently conclude that the
petitioner has failed to meet the cause and prejudice
test.’’ (Internal quotation marks omitted.) Anderson v.
Commissioner of Correction, supra, 114 Conn. App.
787.
In his second petition for a writ of habeas corpus,
the petitioner alleged that in exchange for testimony
adverse to the petitioner, the state had agreed to give
favorable sentencing consideration to several key wit-
nesses and knowingly withheld that information from
the petitioner. The petitioner conceded that he had not
raised this claim at his trial or on direct appeal. In his
return, the commissioner raised the defense of proce-
dural default because these claims had not been raised
at the appropriate time. Accordingly, the burden shifted
to the petitioner to prove why the default should be
excused. In his reply, regarding why the claim of prose-
cutorial impropriety was not raised at his trial or on
direct appeal, the petitioner did not make any showing
of good cause and actual prejudice. Instead, he faulted
his first habeas counsel for not raising the claim at
his first habeas trial. ‘‘[T]he existence of cause for a
procedural default must ordinarily turn on whether the
[petitioner] can show that some objective factor exter-
nal to the defense impeded counsel’s efforts to comply
with the [s]tate’s procedural rule. . . . [For example]
a showing that the factual or legal basis for a claim was
not reasonably available to counsel . . . or . . . some
interference by officials . . . would constitute cause
under this standard.’’ (Internal quotation marks omit-
ted.) Johnson v. Commissioner of Correction, supra,
285 Conn. 568. Thus, the focus is not on habeas counsel,
but rather, what caused trial counsel to not comply
with the state’s procedural rules. The petitioner made
no such showing.
The petitioner instead argues that because his claim
in this second habeas petition implicates a violation of
constitutional protections, the ordinary rules of proce-
dural default do not apply. However, constitutional
claims do not receive such special relief: ‘‘Habeas, as a
collateral form of relief, is generally available to litigate
constitutional issues only if a more direct route to jus-
tice has been foreclosed through no fault of the peti-
tioner. . . . Since 1991, it has become bedrock habeas
jurisprudence that in order to be eligible for habeas
relief, a petitioner who raises a constitutional claim for
the first time in a habeas proceeding must show cause
for the failure to raise the claim previously and preju-
dice resulting from the alleged constitutional violation.’’
(Citation omitted.) Tart v. Commissioner of Correc-
tion, 94 Conn. App. 134, 139, 892 A.2d 298, cert. denied,
278 Conn. 904, 896 A.2d 106 (2006). The petitioner did
not show good cause or actual prejudice to overcome
the burden to rebut the commissioner’s defense of pro-
cedural default. The habeas court properly dismissed
this claim. There was no abuse of discretion in denying
the petitioner certification to appeal.
III
The commissioner concedes that part of the petition-
er’s fourth claim, ineffective assistance of prior habeas
counsel, was improperly dismissed.6 The petitioner
argued that prior habeas counsel was ineffective
because he did not raise several issues in the first peti-
tion for a writ of habeas corpus. Specifically, the peti-
tioner alleges that prior habeas counsel did not raise all
available claims of ineffective assistance of trial counsel
and also failed to raise claims of ineffective assistance
of appellate counsel and prosecutorial impropriety. We
conclude that the habeas court improperly dismissed
the petitioner’s claim of ineffective assistance of prior
habeas counsel for failing to raise the claim of ineffec-
tive assistance of trial counsel. The petitioner’s other
claims were properly dismissed because elements nec-
essary to both claims were adjudicated by the first
habeas court.
Our Supreme Court has concluded that a petitioner
has a right to effective habeas counsel. Lozada v. War-
den, 223 Conn. 834, 838, 613 A.2d 818 (1992). When
a claim of ineffective assistance of habeas counsel is
brought for the first time, it is not subject to dismissal
on grounds of res judicata. See Kearney v. Commis-
sioner of Correction, supra, 113 Conn. App. 238. ‘‘The
teaching of Lozada is that a habeas petitioner is entitled
to make a claim that he or she was deprived of effective
habeas counsel in a prior petition, and the petitioner
is entitled to advance this claim in an evidentiary pro-
ceeding. Regardless of the difficult burden undertaken
by a habeas petitioner who claims the ineffective assis-
tance of habeas counsel, such a claim is not subject to
dismissal on the ground that an earlier habeas petition
that was based on the ineffectiveness of trial counsel
had been unsuccessful.’’ Id., 239.
This second habeas proceeding was the first time the
petitioner had raised the claim of ineffective assistance
of prior habeas counsel. The commissioner concedes
that the petitioner was entitled to an evidentiary hearing
as to whether prior habeas counsel was ineffective by
not raising additional claims of ineffective assistance
of trial counsel, and we agree. Previously in this opinion,
we concluded that the habeas court properly dismissed
the petitioner’s claim of ineffective assistance of trial
counsel because it had already been litigated in the
first habeas trial. This ruling does not preclude the
possibility that prior habeas counsel was ineffective
as to how that claim was litigated in the first habeas
proceeding. ‘‘Although the petitioner must, by neces-
sity, repeat his allegations of trial counsel’s inadequacy,
there may never have been a proper determination of
that issue in the first habeas proceeding because of the
allegedly incompetent habeas counsel. The claim of
ineffective assistance of habeas counsel, when added
to the claim of ineffective assistance of trial counsel,
results in a different issue.’’ (Internal quotation marks
omitted.) Harris v. Commissioner of Correction, 108
Conn. App. 201, 207, 947 A.2d 435, cert. denied, 288
Conn. 911, 953 A.2d 652 (2008). The habeas court abused
its discretion by denying the petitioner certification to
appeal from the dismissal of this claim because the
petitioner raised a question that is adequate to deserve
encouragement to proceed further. We remand this
issue to the habeas court for an evidentiary hearing.
The petitioner’s other claims of ineffective assistance
of prior habeas counsel are precluded because essential
elements of those claims were adjudicated during the
second habeas trial. First, the commissioner argues that
because the habeas court determined that the petition-
er’s claim of prosecutorial impropriety was procedur-
ally defaulted, the petitioner could similarly not succeed
on subsequent habeas counsel’s failure to raise the same
issue. As addressed previously in this opinion, the peti-
tioner must show good cause and actual prejudice to
overcome the state’s defense of procedural default.
Anderson v. Commissioner of Correction, supra, 114
Conn. App. 787. In his current petition for a writ of
habeas corpus, the petitioner has been unable to show
any good cause or actual prejudice to allow the claim of
prosecutorial impropriety to be reviewed. ‘‘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.’’
(Internal quotation marks omitted.) Harris v. Commis-
sioner of Correction, supra, 108 Conn. App. 207.
Because the petitioner cannot prove the underlying
claim, the allegation that habeas counsel was ineffective
for not raising the same claim cannot prevail. We agree
with the commissioner that this claim was properly
dismissed. Thus, the habeas court did not abuse its
discretion by denying certification to appeal this claim.
Finally, the commissioner also argues that the peti-
tioner is foreclosed from an evidentiary hearing as to
whether his prior habeas counsel was ineffective for
not raising a claim of ineffective assistance of appellate
counsel. As with the previous claim, this issue was
effectively decided because the second habeas court
adjudicated the underlying claim of ineffective assis-
tance of appellate counsel. The habeas court held an
evidentiary hearing to determine if appellate counsel
had been ineffective. Ultimately, the court denied the
petitioner’s claim on the merits and the petitioner has
not challenged that judgment. ‘‘To succeed in his bid
for a writ of habeas corpus, the petitioner must prove
both (1) that his appointed habeas counsel was ineffec-
tive, and (2) that his . . . counsel was ineffective. A
convicted defendant’s claim that counsel’s assistance
was so defective as to require reversal of a conviction
. . . has two components. First, the defendant must
show that counsel’s performance was deficient. . . .
Second, the defendant must show that the deficient
performance prejudiced the defense. . . . Only if the
petitioner succeeds in what he admits is a herculean
task will he receive a new trial.’’ (Internal quotation
marks omitted.) Id., 206–207. Because the habeas court
held an evidentiary hearing and denied the petitioner’s
claim of ineffective assistance of appellate counsel, the
‘‘herculean task’’ could not be accomplished. The
habeas court properly dismissed the claim and there-
fore properly denied certification to appeal.
The judgment is reversed only as to the claim of
ineffective assistance of prior habeas counsel for failing
to raise certain claims of ineffective assistance of trial
counsel, and the case is remanded for further proceed-
ings in accordance with law. The appeal is dismissed
in all other respects.
In this opinion the other judges concurred.
1
Our resolution of the petitioner’s second claim is controlled by our
discussion of the first claim that addresses whether the habeas court prop-
erly dismissed the petitioner’s habeas petition.
2
The petitioner has not challenged the habeas court’s ruling that denied
certification to appeal from the habeas court’s judgment denying the claim
of ineffective assistance of appellate counsel.
3
During the habeas trial, the court ruled from the bench dismissing count
one under the doctrine of res judicata. Following the hearing, the court issued
a written order reiterating this ruling, but also adding that the petitioner failed
to state a claim upon which habeas corpus relief could be granted, citing
Practice Book § 23-29 (2). Because we find that the habeas court properly
dismissed the claim under the doctrine of res judicata, we do not reach the
court’s additional ground for dismissal.
4
Practice Book § 23-29 states in relevant part: ‘‘The judicial authority may,
at any time, upon its own motion or upon motion of the respondent, dismiss
the petition, or any count thereof, if it determines that . . . (3) the petition
presents the same ground as a prior petition previously denied and fails to
state new facts or to proffer new evidence not reasonably available at the
time of the prior petition . . . .’’
5
During the habeas trial, the court ruled from the bench that count three
had been dismissed for procedural default. Following the hearing, the court
issued a written order repeating the dismissal for procedural default, but
also adding that the petitioner failed to state a claim upon which habeas
corpus relief could be granted under the authority of Practice Book § 23-
29 (2). Because we find that the habeas court properly dismissed the claim
as procedurally defaulted, we do not reach the court’s additional ground
for dismissal.
6
The habeas court ruled from the bench that the claim was dismissed
for procedural default and res judicata. However, the court’s written order
dismissing the claim did not list procedural default as a ground for dismissal.
Instead, the order cited the grounds for dismissal as res judicata and Practice
Book § 23-29 (2), failure to state a claim upon which habeas corpus relief
could be granted.