Submitted on Briefs Sept. 8, 2008.
[Copyrighted Material Omitted]
Robert J. McKay filed a brief for the appellant (petitioner).
John A. Connelly, state's attorney, Margaret Gaffney Radionovas, senior assistant state's attorney, and Robin Lipsky, former senior assistant state's attorney, filed a brief for the appellee (respondent).
HARPER, LAVINE and WEST, Js.
[111 Conn.App. 406] The petitioner, Willie Myers, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his third petition for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly dismissed his habeas petition. We dismiss the appeal, as it relates to the ground of ineffective assistance of counsel, and reverse the judgment as to all other grounds.
The following facts and procedural history are relevant to our disposition of the petitioner's appeal. The petitioner pleaded guilty under the Alford doctrine  to [111 Conn.App. 407] the crime of murder in violation of General Statutes § 53a-54a and was sentenced to thirty years of incarceration. The petitioner did not file a direct appeal but has since filed three petitions for a writ of habeas corpus. The first petition, filed on
September 10, 1996, then amended on December 28, 1998, alleged that the petitioner's incarceration was constitutionally invalid because his conviction " was obtained in violation of his right to conflict free counsel" because his trial counsel, Gregory St. John, had a conflict of interest. Myers v. Commissioner of Correction, 68 Conn.App. 31, 32, 789 A.2d 999, cert. denied, 260 Conn. 907, 795 A.2d 545 (2002). This court affirmed the habeas court's denial of the petition. Id. The second petition, filed on July 10, 2003, then amended on September 17, 2004, asserted that habeas counsel, Adele V. Patterson, provided ineffective assistance by failing to allege that trial counsel, St. John, was ineffective. The habeas court denied the petition; see Myers v. Commissioner of Correction, 98 Conn.App. 737, 739, 911 A.2d 345 (2006), cert. denied, 282 Conn. 903, 920 A.2d 309 (2007); and this court dismissed the appeal. Id.
On April 2, 2007, the petitioner filed his third pro se petition for a writ of habeas (the present petition) alleging ineffective assistance of counsel by St. John and several other grounds. In addition to the filing of the petition, the petitioner requested a waiver of fees and appointment of counsel. After the waiver of fees was granted, the habeas court sua sponte dismissed the habeas petition and granted the application for appointment of counsel. In dismissing the petition, the [111 Conn.App. 408] court explained that " [u]nder [Practice Book] § 23-29, the judicial authority may, at any time ... dismiss the petition ... if it determines that ... the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition.... The petitioner has failed to make a showing that there is new evidence not reasonably available at the time of his two prior petitions. The court finds [that] the claims are res judicata and enters a judgment of dismissal." (Emphasis in original; internal quotation marks omitted.)
The petitioner then filed a petition for certification to appeal. The petitioner argued that " in the present petition, although the petitioner is attacking an ineffective[ness] issue, [he] is also attacking his guilty plea, mental state at plea, his sentence being illegal [and] a violation of due process which ... would result from ineffectiveness of ... trial counsel ... The petitioner argues that although it may have appeared that he has failed to make a showing, such showing would have been shown on further articulation of an amended petition." Certification to appeal was denied. This appeal followed.
We begin by setting forth the standard of review and any relevant legal principles. " Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion.... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits." (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). " To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could ...