Johnson v. Commissioner of Correction

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VANCE JOHNSON v. COMMISSIONER
OF CORRECTION
(AC 37856)
Keller, Mullins and Norcott, Js.
Argued May 17—officially released September 13, 2016
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Arnold V. Amore, assigned counsel, for the appel-
lant (petitioner).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, Jo Anne Sulik, supervisory assistant state’s attor-
ney, and Randall Blowers, special deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
NORCOTT, J. The petitioner, Vance Johnson, appeals
from the judgment of the habeas court dismissing his
sixth petition for a writ of habeas corpus.1 On appeal,
the petitioner claims that the habeas court, Fuger, J.,
improperly granted the motion to dismiss filed by the
respondent, the Commissioner of Correction. We con-
clude that the court properly dismissed that portion
of the petition for a writ of habeas corpus alleging
ineffective assistance of his first and second habeas
counsel on the ground of res judicata, and that the court
also properly dismissed that portion of the petition
alleging ineffective assistance of his third and fourth
habeas counsel, albeit on alternative grounds than those
on which the court relied.
The record reveals the following facts and procedural
history. On August 29, 1994, the petitioner was charged
with murder in violation of General Statutes (Rev. to
1993) § 53a-54a and with criminal possession of a fire-
arm in violation of General Statutes (Rev. to 1993) § 53a-
217. On December 9, 1996, the petitioner pleaded guilty
to the charge of criminal possession of a firearm and
received a sentence of five years incarceration in the
custody of the respondent. At a subsequent jury trial,
in which he was represented by Fred DeCaprio (trial
counsel), the petitioner was convicted of murder and
sentenced to sixty years incarceration, to run concur-
rently with the sentence on the firearm charge for a
total effective sentence of sixty years of imprisonment.
The petitioner’s murder conviction was affirmed on
direct appeal in State v. Johnson, 53 Conn. App. 476,
733 A.2d 852, cert. denied, 249 Conn. 929, 733 A.2d
849 (1999).
Since his conviction, the petitioner has filed six rele-
vant habeas corpus petitions.2 In the present petition,
he alleges ineffective assistance of counsel as to every
counsel that has represented him in the prior habeas
actions; therefore, we describe each in turn.
In 2001, the petitioner filed a four count revised
amended petition for a writ of habeas corpus (first
habeas petition), alleging ineffective assistance of trial
counsel. See Johnson v. Warden, Superior Court, judi-
cial district of Danbury, Docket No. CV-99-0336854-S
(January 15, 2002). The petitioner was represented by
Attorney Vicki Hutchinson (first habeas counsel) during
the first habeas trial. As set forth in the memorandum
of decision in the first habeas proceeding, the petitioner
specifically claimed that trial counsel: (1) failed to
investigate the state’s factual allegations properly and
failed to preserve a 911 tape related to misconduct
evidence that was admitted at the criminal trial; (2) was
‘‘distracted’’ by the participation of a second defense
lawyer during the jury selection process; (3) improperly
permitted a juror to be dismissed in spite of the petition-
er’s wishes to the contrary; and (4) for various reasons,
failed to seek permission to withdraw from the case. Id.
After a trial, the first habeas court, White, J., denied
the petition for a writ of habeas corpus, concluding that
trial counsel’s conduct did not amount to ineffective
assistance and that the petitioner failed to prove any
of the allegations in the petition. Id. The first habeas
court also denied a subsequent petition for certification
to appeal. This court dismissed the petitioner’s appeal
from the first habeas court’s denial of certification to
appeal, and the Supreme Court denied certification to
appeal. See Johnson v. Commissioner of Correction,
76 Conn. App. 901, 819 A.2d 940, cert. denied, 264 Conn.
904, 823 A.2d 1221 (2003).
In 2005, the petitioner, represented by Attorney Wil-
liam P. Burns (second habeas counsel) filed a second
habeas petition, claiming again that trial counsel had
rendered ineffective assistance of counsel, but in differ-
ent respects than he had claimed in the first petition.
Johnson v. Commissioner of Correction, 288 Conn. 53,
57, 951 A.2d 520 (2008), overruled in part on other
grounds, State v. Elson, 311 Conn. 726, 754, 91 A.3d 862
(2014). In the second habeas petition, the petitioner
also alleged that ‘‘counsel at his first habeas proceeding
had also rendered ineffective assistance on his behalf
by, inter alia, failing to secure certain witness testimony
at the first habeas proceeding, to present certain rele-
vant evidence at that proceeding, and to prepare ade-
quately an argument on the petitioner’s behalf.’’ Id. The
petitioner further claimed ineffective assistance of first
habeas counsel for failing to allege that trial counsel
was ineffective for failing to secure a ballistics expert
to testify on the petitioner’s behalf. Id., 64. ‘‘The peti-
tioner also asserted that the respondent’s method of
recalculating the petitioner’s presentence confinement
credit violated his constitutional rights to due process
and equal protection.’’ Id., 57.
After a trial, the second habeas court concluded that
the petitioner’s claims of ineffective assistance by his
first habeas counsel failed under both prongs of Strick-
land v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), and that his claim as to trial
counsel’s ineffectiveness was ‘‘barred by the doctrine
of res judicata as the petitioner had litigated the effec-
tiveness of his trial counsel’s performance in his first
habeas proceeding.’’ Johnson v. Commissioner of Cor-
rection, supra, 288 Conn. 58.
The second habeas court dismissed the petition for
habeas corpus and subsequently granted certification
to appeal. Id., 58. The Supreme Court affirmed the judg-
ment of the second habeas court, concluding that first
habeas counsel had not provided ineffective assistance
as the petitioner failed to establish prejudice resulting
from that counsel’s failure to raise the issue of trial
counsel’s failure to present testimony of a ballistics
expert at trial. Id., 65. The Supreme Court further agreed
with the second habeas court that, despite the petition-
er’s allegation of different factual bases in the second
habeas petition, his claims of ineffective assistance of
trial counsel were barred by the doctrine of res judicata
as ‘‘the petitioner had an opportunity to litigate fully
the effectiveness of his trial counsel in his first habeas
proceeding.’’ Id., 67.
On December 20, 2005, the self-represented petitioner
filed a third habeas petition. On July 10, 2008, the habeas
court, Schuman, J., dismissed the petition without a
hearing. No appeal followed.
On February 13, 2007, the petitioner, represented by
Margaret P. Levy (third habeas counsel), filed a fourth
habeas petition that sought, and ultimately obtained,
the restoration of his right to sentence review. No
appeal followed.
On March 21, 2011, the petitioner, represented by
Laljeebhai R. Patel (fourth habeas counsel), filed a fifth
habeas petition,3 alleging that his second habeas coun-
sel provided ineffective assistance by failing to allege
in the second habeas action that his first habeas counsel
rendered ineffective assistance for failing to allege that
trial counsel was ineffective ‘‘at the petitioner’s plea on
the weapons charge and at the murder trial for failing
to investigate . . . the [petitioner’s] incompetence at
plea and trial’’ and ‘‘failing to present the claim of the
petitioner’s incompetence at plea and at trial.’’ Follow-
ing the testimony of trial counsel, first habeas counsel
and second habeas counsel, the fifth habeas court
denied the petition for a writ of habeas corpus, finding
the petitioner’s claim that his trial counsel had provided
ineffective assistance meritless as ‘‘there had never
been ‘a question in anyone’s mind’ as to the petitioner’s
competency at the time of his trial.’’ Johnson v. Com-
missioner of Correction, 144 Conn. App. 365, 368, 73
A.3d 776, cert. denied, 310 Conn. 918, 76 A.3d 633 (2013).
The fifth habeas court further determined that ‘‘ ‘there
is no possibility . . . that [the petitioner] was incompe-
tent. There isn’t even a hint of it.’ ’’ Id.
The petitioner filed a petition for certification to
appeal that decision, which the fifth habeas court
granted. Id., 369. On appeal, this court noted that the
claims in the fifth petition ‘‘were based upon . . . trial
counsel’s alleged failure to request a competency exam-
ination pursuant to General Statutes § 54-56d and the
failure of [the petitioner’s] two prior habeas attorneys
to allege ineffectiveness by their predecessors in prior
trial and habeas corpus proceedings.’’ (Footnote omit-
ted.) Id., 367–68. We affirmed the fifth habeas court’s
conclusion that the petitioner failed to prove that his
trial counsel rendered ineffective assistance. Id., 371.
We further affirmed the judgment in regard to the claims
against the first and second habeas counsel because,
as a result of the determination that ‘‘[trial counsel] did
not render ineffective assistance in failing to request a
competency evaluation,’’ the petitioner could not as a
matter of law prove prejudice resulting from the first
and second habeas counsel’s alleged failure to raise a
claim against trial counsel on that ground. Id., 369 n.2.
Our Supreme Court denied the petitioner’s petition for
certification to appeal from this court’s judgment. John-
son v. Commissioner of Correction, 310 Conn. 918, 76
A.3d 633 (2013).
On July 22, 2013, the self-represented petitioner filed
a sixth habeas petition, which is the subject matter of
the present appeal. On November 14, 2014, the peti-
tioner filed the operative amended petition (sixth peti-
tion), claiming ineffective assistance of the first,
second, third, and fourth habeas counsel for failing to
allege in their respective prior habeas petitions that
trial counsel was ineffective for failing to file a motion
for competency evaluation pursuant to § 54-56d at or
before the time of the petitioner’s plea on the firearm
charge, at or before sentencing on the firearms charge,
at or before the jury trial for murder, at or before sen-
tencing on the murder conviction, and after sentencing
for murder for discovery of evidence that trial counsel
failed to investigate by way of petition for a new trial.
On November 25, 2014, the respondent filed a motion
to dismiss, pursuant to Practice Book § 23-39, alleging
that the sixth petition failed to state a claim upon which
relief could be granted4 and that it constituted a succes-
sive petition. After a hearing on the motion, the habeas
court in the present case, Fuger, J., concluded in an
oral decision that the sixth petition was precluded on
the grounds of res judicata in its entirety as to the
claims relating to first, second, third, and fourth habeas
counsel and granted the respondent’s motion to dis-
miss.5 Thereafter, the habeas court granted certification
to appeal, and this appeal followed.
We begin by setting forth our standard of review for
a challenge to the dismissal of a petition for a writ of
habeas corpus. ‘‘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, we
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 Correction, 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.’’ (Internal 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 that standard in
mind, we turn to the petitioner’s claim that the habeas
court in the present case improperly granted the respon-
dent’s motion to dismiss on the ground of res judicata.
I
The petitioner claims that the court erred when it
granted the respondent’s motion to dismiss on the basis
of res judicata. The sixth petition included four counts
alleging that first, second, third, and fourth habeas
counsel were ineffective for failing to raise a claim that
trial counsel was ineffective for failure to file a motion
for a competency evaluation. For the reasons that fol-
low, we conclude that the petitioner’s claims as to the
first two habeas counsel are barred by the doctrine of
res judicata, but that the claims regarding third and
fourth habeas counsel are not barred by that doctrine.
Nevertheless, the claims regarding third and fourth
habeas counsel are precluded, respectively, by collat-
eral estoppel and for failure to state a claim upon which
relief can be granted. Thus, we affirm the judgment
of the habeas court as to the dismissal of the claims
involving first and second habeas counsel on the basis
of res judicata, and also affirm the judgment as to the
claims involving third and fourth habeas counsel, albeit
on the aforementioned alternative grounds.6
The standard of review of a motion to dismiss is well
established. See Zollo v. Commissioner of Correction,
133 Conn. App. 266, 277, 35 A.3d 337, cert. granted
on other grounds, 304 Conn. 910, 37 A.3d 1120 (2012)
(appeal dismissed May 1, 2013). ‘‘It is well settled that
the petition for a writ of habeas corpus is essentially
a pleading and, as such, it should conform generally to
a complaint in a civil action. . . . The principle that a
plaintiff may rely only on what he alleged is basic. . . .
It is fundamental in our law that the right of a plaintiff
to recover is limited to the allegations of his complaint.’’
(Internal quotation marks omitted.) Id.
Having set forth the applicable legal standard regard-
ing the granting of a motion to dismiss, we now turn
to the court’s conclusion that the petitioner’s claims
were barred by the doctrine of res judicata.
In the second habeas action, the petitioner claimed
ineffective assistance of first habeas counsel for failing
to allege that trial counsel was ineffective for failing to
secure a ballistics expert to testify on the petitioner’s
behalf. See Johnson v. Commissioner of Correction,
supra, 288 Conn. 61. That claim was adjudicated fully
on the merits. See id., 61–65. In the fifth habeas action,
the petitioner claimed that first and second habeas
counsel were ineffective for failing to allege that trial
counsel was ineffective in failing to investigate and
present a claim that the petitioner was incompetent at
the plea and trial. These claims also were fully adjudi-
cated on the merits. See Johnson v. Commissioner of
Correction, supra, 144 Conn. App. 369–71. Now, the
petitioner claims that first and second habeas counsel
failed to allege that trial counsel was ineffective for
failing to file a motion for a competency evaluation.
The petitioner appears to believe that merely providing
a procedural gloss of the same factual allegations in a
sixth petition in support of the same claim of ineffective
assistance of trial counsel raised in an earlier petition
is adequate to avoid dismissal of the latter petition. The
procedural mechanism that the petitioner alleges that
trial counsel was ineffective for failing to use—filing a
motion under § 54-56d—is, however, the only means to
formally present a claim of incompetency to a trial
court. Nonetheless, the petitioner also alleges that these
claims do not constitute the ‘‘same ground’’ or grounds
as those litigated in the second and fifth habeas actions
because the sixth petition alleges a new fact, namely,
that trial counsel failed to file a motion for a competency
evaluation under § 54-56d.
The respondent argues that the habeas court was
correct in dismissing the sixth petition as to the first two
counts on the grounds of res judicata, as the petitioner
already fully litigated his claims against first and second
habeas counsel in the second and fifth habeas actions.
Because the petitioner has asserted claims that pre-
viously were adjudicated fully on their merits and has
made no showing that any new factual allegations con-
tained in the sixth petition were not available to him
when he filed his earlier petitions, we agree with the
habeas court that the claims against first and second
habeas counsel are barred by the doctrine of res judi-
cata. The habeas court therefore properly dismissed
those claims.
We first analyze the application of the doctrine of
res judicata in the habeas context. ‘‘The doctrine of res
judicata provides that a former judgment serves as an
absolute bar to a subsequent action involving any claims
relating to such cause of action which were actually
made or which might have been made. . . . The doc-
trine . . . applies to criminal as well as civil proceed-
ings and to state habeas corpus proceedings. . . .
However, [u]nique policy considerations must be taken
into account in applying the doctrine of res judicata to
a constitutional claim raised by a habeas petitioner.
. . . Specifically, in the habeas context, in the interest
of ensuring that no one is deprived of liberty in violation
of his or her constitutional rights . . . the application
of the doctrine of res judicata . . . [is limited] to claims
that actually have been raised and litigated in an earlier
proceeding.’’ (Internal quotation marks omitted.) Car-
ter v. Commissioner of Correction, 133 Conn. App. 387,
393, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d
217 (2012); see also Johnson v. Commissioner of Cor-
rection, supra, 288 Conn. 66–67 (holding that principles
of res judicata prevent claim from being litigated where
identical claim was raised, argued, and litigated in previ-
ous habeas trial).
In the context of a habeas action, a court must deter-
mine whether a petitioner actually has raised a new
legal ground for relief or only has alleged different fac-
tual allegations in support of a previously litigated
claim. ‘‘Identical grounds may be proven by different
factual allegations, supported by different legal argu-
ments or articulated in different language. . . . They
raise, however the same generic legal basis for the same
relief.’’ (Citations omitted.) James L. v. Commissioner
of Correction, 245 Conn. 132, 141, 712 A.2d 947 (1998).
‘‘[T]he doctrine of res judicata in the habeas context
must be read in conjunction with Practice Book § 23-29
(3), which narrows its application.’’ (Footnote omitted.)
Kearney v. Commissioner of Correction, 113 Conn.
App. 223, 235, 965 A.2d 608 (2009). 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
. . . .’’ Thus, a subsequent petition ‘‘alleging the same
ground as a previously denied petition will elude dis-
missal if it alleges grounds not actually litigated in the
earlier petition and if it alleges new facts or proffers
new evidence not reasonably available at the time of
the earlier petition.’’ Kearney v. Commissioner of Cor-
rection, supra, 235. ‘‘In this context, a ground has been
defined as sufficient legal basis for granting the relief
sought.’’ (Internal quotation marks omitted.) Id.
Accordingly, having compared the sixth petition to
the prior petitions and having determined that they raise
the same ground and seek the same relief, we conclude
that the habeas court in the present case properly deter-
mined that the judgments rendered by the second and
fifth habeas courts were judgments on the merits on
the issue of ineffective assistance of the petitioner’s
trial counsel. We further conclude that the habeas court
properly found that the petitioner had an opportunity
to litigate fully the effectiveness of his trial counsel in
the second and fifth habeas proceedings. See Brown v.
Commissioner of Correction, 44 Conn. App. 746, 751,
692 A.2d 1285 (1997) (rejecting petitioner’s claim of
ineffective assistance of counsel as barred under doc-
trine of res judicata where petitioner raised additional
ineffective assistance claims that could have been
raised in first proceeding).
As noted previously, the petitioner failed to prove
that the ‘‘new’’ facts alleged in the sixth habeas petition
were ‘‘not reasonably available at the time of the prior
petition.’’ Practice Book § 23-29 (3). The allegations
within the petitioner’s sixth habeas petition claiming
ineffective assistance of trial counsel constituted the
same legal ground as those found in the second and fifth
habeas petitions, simply expressed in a reformulation of
facts. These ‘‘new’’ allegations could have been raised
in those petitions.7 See Mejia v. Commissioner of Cor-
rection, 98 Conn. App. 180, 189, 908 A.2d 581 (2006).
Because the petitioner asserted claims that pre-
viously were adjudicated fully on their merits, we agree
with the habeas court in the present case that the claims
against the first and second habeas counsel are barred
by the doctrine of res judicata. See Brown v. Commis-
sioner of Correction, supra, 44 Conn. App. 751–52
(rejecting petitioner’s claim of ineffective assistance of
counsel as barred under doctrine of res judicata where
petitioner, after having fully litigated effectiveness of
counsel in petition for new trial, made additional inef-
fective assistance claim as to same attorney before
habeas court but cited different factual grounds in sup-
port thereof); see also Asherman v. State, 202 Conn.
429, 443, 521 A.2d 578 (1987) (concluding that defen-
dant’s claim of juror misconduct was barred by res
judicata because claim was ‘‘virtually identical in sub-
stance’’ to claim previously raised and decided); State
v. Aillon, 189 Conn. 416, 423, 456 A.2d 279 (noting that
judgment is final not only as to every matter that actu-
ally was presented to sustain claim, but also as to any
other admissible matter that could have been offered
for that purpose), cert. denied, 464 U.S. 837, 104 S. Ct.
124, 78 L. Ed. 2d 122 (1983). Further, the petitioner’s
argument that the counts involving said counsel in the
current petition raise a different legal ground from those
raised in the prior petitions is without merit; both the
current and prior petitions alleged ineffective assis-
tance of trial counsel. Accordingly, the habeas court
properly dismissed these counts of the sixth petition.
II
The petitioner next claims that the habeas court in
the present case improperly dismissed his petition with
respect to the ineffective assistance of his third habeas
counsel. Specifically, the petitioner argues that res judi-
cata does not preclude his claim against third habeas
counsel because it was not litigated in any of the prior
habeas proceedings. The petitioner alleged that third
habeas counsel was ineffective because she did not
raise the issue of whether trial counsel was ineffective
for failing to file a motion for a competency evaluation.
The respondent concedes that the petitioner’s claim
of ineffective assistance of third habeas counsel was
dismissed by the habeas court on improper grounds.
We agree with the petitioner that the doctrine of res
judicata does not apply with respect to his claim against
his third habeas counsel. Nonetheless, we affirm the
dismissal of this count on the alternative ground of
collateral estoppel.8
Our Supreme Court has ruled that a petitioner has a
right to effective assistance of habeas counsel. Lozada
v. Warden, 223 Conn. 834, 838, 613 A.2d 818 (1992).
‘‘When a claim of ineffective assistance of habeas coun-
sel is brought for the first time, it is not subject to
dismissal on grounds of res judicata.’’ Brewer v. Com-
missioner of Correction, 162 Conn. App. 8, 20, 130 A.3d
882 (2015). ‘‘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 proceeding. Regardless of the
difficult burden undertaken by a habeas petitioner who
claims ineffective assistance of habeas counsel, such a
claim is not subject to dismissal on the ground that an
earlier habeas petition that was based on the ineffec-
tiveness of trial counsel had been unsuccessful.’’ Kear-
ney v. Commissioner of Correction, supra, 113 Conn.
App. 239.
The current habeas proceeding was the first time the
petitioner had raised a claim of ineffective assistance
of third and fourth habeas counsel for allegedly failing
to raise an ineffective assistance claim regarding trial
counsel’s failure to file a motion for a competency evalu-
ation. The respondent concedes that the habeas court’s
dismissal of the claims against third and fourth habeas
counsel on the ground of res judicata was incorrect as
the petitioner had not raised this particular claim in
any of his ‘‘numerous prior habeas petitions [alleging]
ineffective assistance of counsel claims.’’
In part I of this opinion, we concluded that the habeas
court properly dismissed the petitioner’s claims of inef-
fective assistance of his first and second habeas counsel
because they already had been litigated fully in the
second and fifth habeas proceedings. The trial court’s
ruling does not preclude a claim in the current habeas
proceeding that a prior habeas counsel was ineffective
litigating that claim. ‘‘Although the petitioner must, by
necessity, repeat his allegations of trial counsel’s inade-
quacy, there may never have been a proper determina-
tion of that issue in the [prior] habeas proceeding[s]
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.) Brewer v. Commissioner of Correc-
tion, supra, 162 Conn. App. 21.
A claim of ineffective assistance of counsel involving
a habeas attorney ‘‘is not subject to dismissal on the
ground that an earlier habeas petition that was based
on the ineffectiveness of trial counsel had been unsuc-
cessful.’’ Kearney v. Commissioner of Correction,
supra, 113 Conn. App. 239; see also Lozada v. Warden,
supra, 223 Conn. 844 (‘‘[t]he claim of ineffective assis-
tance of habeas counsel, when added to the claim of
ineffective assistance of trial counsel, results in a differ-
ent issue’’). Moreover, as noted previously, the applica-
tion of the doctrine of res judicata is limited in habeas
actions to ‘‘claims that actually have been raised and
litigated in an earlier proceeding.’’ (Internal quotation
marks omitted.) Johnson v. Commissioner of Correc-
tion, supra, 288 Conn. 67.
Thus, the habeas court in the present case incorrectly
concluded that the petitioner’s claim involving third
habeas counsel was precluded by the doctrine of res
judicata, as the petitioner had not raised that claim in
any of the prior habeas petitions. Nonetheless, we
affirm the habeas court’s judgment on alternative
grounds, as the issue of whether the third habeas coun-
sel was ineffective for failing to allege that trial counsel
was deficient for failing to file a motion for a compe-
tency evaluation was precluded by the doctrine of col-
lateral estoppel.
‘‘The common-law doctrine of collateral estoppel, or
issue preclusion, embodies a judicial policy in favor of
judicial economy, the stability of former judgments and
finality. . . . Collateral estoppel . . . is that aspect of
res judicata which prohibits the relitigation of an issue
when that issue was actually litigated and necessarily
determined in a prior action between the same parties
upon a different claim. . . . For an issue to be subject
to collateral estoppel, it must have been fully and fairly
litigated in the first action. It also must have been actu-
ally decided and the decision must have been necessary
to the judgment. . . .
‘‘An issue is actually litigated if it is properly raised
in the pleadings or otherwise, submitted for determina-
tion, and in fact determined. . . . An issue is necessar-
ily determined if, in the absence of a determination of
the issue, the judgment could not have been validly
rendered.’’ (Internal quotation marks omitted.) Oli-
phant v. Commissioner of Correction, 161 Conn. App.
253, 266, 127 A.3d 1001 (2015). ‘‘[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 manage-
ment of their affairs which results when a controversy
is finally laid to rest.’’ (Internal quotation marks omit-
ted.) Id., 267.
In his brief, the respondent argues that the habeas
court’s decision should be affirmed on the alternative
ground that the claim as to third habeas counsel is
barred by collateral estoppel because litigation of that
claim necessarily requires relitigation of an issue that
already has been fully and fairly decided in the fifth
habeas action, specifically, whether trial counsel was
ineffective for failing to move for a competency evalua-
tion. We agree. Here, the claim involving third habeas
counsel is barred by collateral estoppel because the
judgment in the fifth habeas proceeding concerned the
petitioner’s claim against trial counsel, first habeas
counsel, and second habeas counsel necessarily
resolved an issue that would need relitigation if the
claim involving third habeas counsel were to proceed
in this case. To establish that third habeas counsel was
ineffective for failing to allege a claim that trial counsel
was ineffective for failing to move for a competency
evaluation, the petitioner would be required to prove
that trial counsel was ineffective for failing to move for
a competency evaluation. This already was decided,
after a full evidentiary hearing, by the fifth habeas court
when it found that (1) there was never a doubt as to
the petitioner’s competency at the time of the trial, and
(2) trial counsel was not ineffective for failing to move
for a competency evaluation. See Johnson v. Warden,
supra, 144 Conn. App. 368.
We therefore conclude that because the fifth habeas
court necessarily decided the underlying issue of
whether trial counsel was ineffective for failing to move
for a competency evaluation, the petitioner is precluded
by collateral estoppel from relitigating the same in
regard to his claim involving third habeas counsel. Thus,
we affirm the dismissal of the claim involving third
habeas counsel on the alternative ground that it is
barred by collateral estoppel.
III
Finally, the petitioner claims that the habeas court
improperly dismissed his count alleging that fourth
habeas counsel was ineffective. Specifically, he argues
that res judicata does not preclude his claim that fourth
habeas counsel rendered ineffective assistance because
it was not previously litigated in any of the prior habeas
proceedings. The respondent concedes that the count
alleging ineffective assistance of fourth habeas counsel
for failure to raise the issue of whether trial counsel was
ineffective for failure to file a motion for a competency
evaluation was dismissed improperly. We agree with
the petitioner that the doctrine of res judicata does not
apply as to his claim against the fourth habeas counsel.
Nonetheless, we affirm the dismissal of this count on
the alternative ground that the petition fails to state a
claim upon which relief can be granted.
Practice Book § 23-29 (2) provides that a petition may
be dismissed by the court if ‘‘the petition, or a count
thereof, fails to state a claim upon which habeas corpus
relief can be granted.’’ On the basis of our plenary
review of the record, we conclude that the petitioner’s
claim involving fourth habeas counsel in his sixth peti-
tion fails to state a claim upon which habeas corpus
relief can be granted as fourth habeas counsel raised
the very claim that petitioner, in the present petition,
alleges was not raised. Specifically, fourth habeas coun-
sel raised the claim that first and second habeas counsel
were ineffective for failing to allege that trial counsel
failed to investigate adequately and present the issue
of the petitioner’s competency at the time of plea and
trial. Johnson v. Commissioner of Correction, supra,
144 Conn. App. 367–68.
This court explained that in the fifth habeas petition,
the petitioner’s claims ‘‘were based upon his trial coun-
sel’s alleged failure to request a competency examina-
tion pursuant to . . . § 54-56d and the failure of his
two prior habeas attorneys to allege ineffectiveness by
their predecessors in prior trial and habeas corpus pro-
ceedings.’’ (Footnote omitted.) Id. In the current, sixth
petition, the petitioner alleges that fourth habeas coun-
sel, who represented him in the fifth habeas action, was
ineffective for failing to allege that trial counsel was
ineffective for not filing a motion for competency evalu-
ation pursuant to § 54-46d. The petitioner’s allegation
that his fourth habeas counsel failed to raise such a
claim fails as that claim was, in fact, raised by his fourth
habeas counsel in the fifth habeas action. Thus, we
conclude that the habeas court properly dismissed the
count against fourth habeas counsel on the alternative
ground that it fails to state a claim upon which relief can
be granted. See Mejia v. Commissioner of Correction,
supra, 98 Conn. App. 197–98.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted the petitioner’s petition for certification to
appeal. See General Statutes § 52-470 (g).
2
The petitioner’s first habeas action was Johnson v. Warden, Superior
Court, Docket No. CV–XX-XXXXXXX (April 27, 1999) (1997 WL 413047), in
which he alleged that his right to receive visitors at the prison had been
denied. The petition was dismissed for lack of jurisdiction. Id. Nevertheless,
the amended petition dated November 14, 2014, at issue in the present case,
describes the petitioner’s second habeas action as the first action and refers
to counsel in that case as the first habeas counsel. Thus, for the sake of
simplicity, we will do the same.
3
Previously, the petitioner, acting as a self-represented party, had filed a
petition for a writ of habeas corpus on May 16, 2008, which the habeas
court, Schuman, J., dismissed as successive. See Johnson v. Commissioner
of Correction, 121 Conn. App. 441, 442, 996 A.2d 319 (2010). The petitioner,
represented by Patel, appealed the dismissal, and this court reversed the
judgment and remanded the matter for further proceedings on June 1, 2010.
Id. Again, for simplicity’s sake, we do not count the May 16, 2008 petition
in the count of the total number of habeas petitions the petitioner has filed.
4
The respondent argued in the memorandum of law accompanying its
motion to dismiss that the sixth petition failed to state a claim upon which
relief could be granted because the petitioner did not have a right to effective
assistance of habeas counsel in the fifth habeas action. Whether a habeas
petitioner has the right to effective assistance of counsel in a ‘‘habeas on
a habeas’’ currently is being litigated before our Supreme Court in Kaddah
v. Commissioner of Correction, SC 19512.
5
Although the petitioner states in his brief that the habeas court dismissed
the sixth petition on the ground of res judicata, he argues that ‘‘by dismissing
the habeas case without an evidentiary hearing it agreed [with] the
[respodent’s] claim that pursuant to Practice Book § 23-29 (3) the November
14, 2014 petition . . . constitute[s] a successive petition.’’ Because the
habeas court granted the respondent’s motion to dismiss on the ground of
res judicata, we will not address the petitioner’s argument that said dismissal
necessarily constituted an acceptance of the respondent’s successive peti-
tion argument in its motion to dismiss.
6
‘‘It is axiomatic that we may affirm a proper result of the trial court
for a different reason.’’ (Internal quotation marks omitted.) Coleman v.
Commissioner of Correction, 111 Conn. App. 138, 140 n.1, 958 A.2d 790
(2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009). The petitioner makes
the novel, but unpersuasive, argument that we cannot address alternative
grounds for affirmance because the respondent failed to raise those grounds
‘‘at trial in violation of Practice Book § 60-5,’’ which states, in relevant part,
that ‘‘[t]he court shall not be bound to consider a claim unless it was distinctly
raised at the trial or arose subsequent to the trial.’’ The term ‘‘grounds’’ is
not equivalent to the term ‘‘claim.’’ We conclude that the petitioner miscon-
strues the law when he equates affirmance on alternative grounds with this
court’s considering an unpreserved claim. The respondent is not raising
claims for appellate review; it is the claims of the petitioner that are at stake
here. Simply raising alternative legal theories upon which we may affirm
the judgment does not constitute request for review of an unpreserved claim
that we are not bound to consider. See Practice Book § 60-5.
7
In fact, the petitioner has acknowledged that the ‘‘new’’ facts he intended
to present in support of the sixth habeas petition were available to him at
the time of the fifth habeas proceeding.
8
Dismissal of a claim on alternative grounds is proper when those grounds
present pure questions of law, the record is adequate for review, and the
petitioner will suffer no prejudice because he has the opportunity to respond
to proposed alternative grounds in the reply brief. State v. Martin M., 143
Conn. App. 140, 151–53, 70 A.3d 135 (2013).