Coleman v. Commissioner of Correction

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CHARLES COLEMAN v. COMMISSIONER
OF CORRECTION
(AC 33828)
(AC 33829)
Bear, Sheldon and Flynn, Js.
Submitted on briefs February 19—officially released April 22, 2014
(Appeal from Superior Court, judicial district of
Tolland, Schuman, J.)
Joseph Visone, assigned counsel, filed a brief for the
appellant (petitioner).
Michael Dearington, state’s attorney, James A. Kil-
len, senior assistant state’s attorney, and David Clifton,
assistant state’s attorney, filed a brief for the appel-
lee (respondent).
Opinion
PER CURIAM. The petitioner, Charles Coleman,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
dismissing count seven of his amended petition for a
writ of habeas corpus. The petitioner alleged in count
seven of his amended petition that he received ineffec-
tive assistance from Kathleen Berry, his court-
appointed counsel in two prior habeas cases, who
sought and was allowed to withdraw from both cases
under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967), and Practice Book § 23-41.
We conclude that the habeas court did not abuse its
discretion in denying the petition for certification to
appeal with respect to this count because the claims in
this count are precluded by the doctrine of res judicata.
Accordingly, we dismiss the petitioner’s appeals.
The applicable standard of review is well established
and ‘‘requires the petitioner to prove that the denial of
the petition for certification was an abuse of discretion
and also that the decision of the habeas court should
be reversed on the merits.’’ Key v. Commissioner of
Correction, 106 Conn. App. 211, 212, 942 A.2d 417, cert.
denied, 287 Conn. 904, 947 A.2d 342 (2008). The factual
and procedural history of the petitioner’s criminal case
and prior habeas cases is lengthy and well documented.
See Coleman v. Commissioner of Correction, United
States District Court, Docket No. 2:91-CV0005 (PCD)
(D. Conn. December 30, 1991), aff’d, 969 F.2d 1041 (2d
Cir. 1992); Coleman v. Commissioner of Correction,
274 Conn. 422, 876 A.2d 533 (2005); State v. Coleman,
251 Conn. 249, 741 A.2d 1 (1999), cert. denied, 529 U.S.
1061, 120 S. Ct. 1570, 146 L. Ed. 2d 473 (2000); State v.
Coleman, 242 Conn. 523, 700 A.2d 14 (1997); State v.
Coleman, 241 Conn. 784, 699 A.2d 91 (1997); Coleman
v. Commissioner of Correction, 108 Conn. App. 836,
949 A.2d 536, cert. denied, 289 Conn. 913, 957 A.2d 876(2008); Coleman v. Commissioner of Correction, 99
Conn. App. 310, 913 A.2d 477, cert. denied, 281 Conn.
924, 918 A.2d 275 (2007); State v. Coleman, 38 Conn.
App. 531, 662 A.2d 150, cert. denied, 235 Conn. 906, 665
A.2d 903 (1995); State v. Coleman, 17 Conn. App. 307,
552 A.2d 442 (1989).
Of direct relevance to our conclusion that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal on the ground that the peti-
tioner’s claims in count seven are subject to the doctrine
of res judicata is Coleman v. Commissioner of Correc-
tion, supra, 274 Conn. 425, in which the petitioner
claimed that the court in a prior habeas proceeding
‘‘abused its discretion in [1] denying his petition for
certification to appeal from the dismissal of his petition
for a writ of habeas corpus because he was denied his
constitutional right to counsel at the habeas proceeding
when Berry was allowed to withdraw . . . [and 2]
granting the motion to withdraw.’’ Our Supreme Court
disagreed with the petitioner, holding: ‘‘After a careful
review of the record and briefs, we conclude that the
petitioner has not demonstrated that the issues he has
raised are debatable among jurists of reason, that a
court could resolve the issues in a different manner or
that the questions raised deserve encouragement to
proceed further. . . . Accordingly, the appeal should
be dismissed as frivolous.’’ (Citations omitted.) Id., 426;
see also Coleman v. Commissioner of Correction,
supra, 99 Conn. App. 315 (applying foregoing holding
in dismissing petitioner’s appeal following denial of
petition for certification to appeal, where petitioner
made same claim and habeas case at issue was second
habeas case from which Berry was allowed to
withdraw).
‘‘The doctrine of res judicata provides that a former
judgment serves as an absolute bar to a subsequent
action involving any claims relating to such cause of
action which were actually made or which might have
been made. . . . The doctrine . . . applies . . . to
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. . . . [A] second 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.’’ (Citation omitted; internal quotation
marks omitted.) Campbell v. Commissioner of Correc-
tion, 121 Conn. App. 576, 579, 997 A.2d 543 (2010).
In granting the motion to dismiss filed by the respon-
dent, the Commissioner of Correction, as to count seven
of the amended petition, the court concluded: ‘‘Count
seven alleges ineffective assistance against Attorney
Kathleen Berry, who was the petitioner’s first habeas
attorney prior to her withdrawal under Anders. Under
the Practice Book, when Attorney Berry filed an Anders
brief, she was obliged to examine all potential claims.
Practice Book § 23-41 (b). She submitted an Anders
brief, and that was approved by the trial court, presum-
ably on the ground that she had examined all potential
claims and found none had any merit. This decision
by, I think it was Judge White, was affirmed by the
Appellate Court.
‘‘And so there have been two judicial findings that
Attorney Berry raised all potential claims and found no
merit in any of them. This inquiry is more thorough
than whether an attorney has rendered effective assis-
tance of counsel because counsel is not obliged ordi-
narily to raise every conceivable claim as Attorney
Berry was under the Anders standard. So, essentially,
this is res judicata because the effectiveness and perfor-
mance of Attorney Berry has already been approved by
the trial court and the Appellate Court.’’
We agree. The petitioner argues in his brief that the
court abused its discretion because it dismissed count
seven without first holding an evidentiary hearing,
which would have turned the question of whether he
‘‘may have been able to prove his claim that . . . Berry
did not provide [him] with effective assistance of coun-
sel when she filed the Anders motion’’ into one that is
debatable among jurists of reason. This court and our
Supreme Court held in the aforementioned decisions,
however, that there was no abuse of discretion in deny-
ing the petitioner’s prior petitions for certification to
appeal following the dismissals of his prior petitions
for writs of habeas corpus, in which he claimed, inter
alia, that he was deprived of effective assistance of
counsel due to Berry’s withdrawal. The petitioner thus
seeks to relitigate a claim that he has litigated before the
three constitutional courts in this state. We conclude for
the foregoing reasons that the habeas court properly
determined that the doctrine of res judicata precludes
him from doing so again, and we accordingly hold that
the court did not abuse its discretion in denying the
present petition for certification to appeal with respect
to count seven of the amended petition.
The appeals are dismissed.