Argued January 12, 2015
Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Young, J., rendered judgment dismissing the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court.
The petitioner filed a fourth amended petition for a writ of habeas corpus, alleging, inter alia, ineffective assistance of counsel and violation of his rights to due process at sentencing. The petitioner had been convicted of various crimes and the trial court ordered him upon release from confinement to register as a sex offender pursuant to statute ([Rev. to 1999] § 54-254 [a]). He claimed that his sentence had been imposed in an illegal manner because the presentence investigation report that the trial court relied on improperly incorporated, without his consent, certain of his psychiatric treatment records that had been prepared for a prior presentence investigation report, in violation of the statutes (§ § 52-146d and 52-146e) pertaining to the disclosure of privileged communications. The petitioner also claimed that he was denied the effective assistance of counsel because his trial counsel at sentencing failed to object to the inclusion of the psychiatric records in the presentence investigation report and failed to assert the petitioner's due process rights. The respondent Commissioner of Correction filed a motion to dismiss the petition, alleging that the due process claim was barred by the doctrine of res judicata or that it was procedurally defaulted, and that the ineffective assistance of counsel claim constituted a successive petition and was an abuse of the writ of habeas corpus. The habeas court granted the respondent's motion to dismiss and rendered judgment dismissing the petition, and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court did not abuse its discretion in denying the petition for certification to appeal: the habeas court properly determined that the due process and ineffective assistance claims were intertwined and could have been raised in the prior petitions, and that the petitioner failed to demonstrate cause and prejudice sufficient to overcome the respondent's affirmative defense of procedural default; furthermore, the petitioner's ineffective assistance of counsel claim was barred by the doctrine of res judicata, was successive, and was an abuse of the writ of habeas corpus, as the factual basis of that claim was readily available to the petitioner at the time he filed his three prior habeas petitions, none of the factual allegations in the fourth petition constituted newly discovered evidence, and the petitions all sought the same relief, namely, to have the petitioner's classification as a sex offender vacated.
Cameron R. Dorman, assigned counsel, for the appellant (petitioner).
Rita M. Shair, senior assistant state's attorney, with whom were Brian Preleski, state's attorney, and, on the brief, Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).
Lavine, Keller and Flynn, Js.
[158 Conn.App. 289] " [A] petitioner may bring successive petitions [for a writ of habeas corpus] on the same legal grounds if the petitions seek different relief. . . . But [158 Conn.App. 290] 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." (Citation omitted.) McClendon v. Commissioner of Correction, 93 Conn.App. 228, 231, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006). The petition for a writ of habeas corpus at issue in the present appeal, the fourth filed by the petitioner, Jeffrey Pierce, is predicated on legal grounds and facts previously alleged, and seeks the same relief he sought in his third petition for a writ of habeas corpus. We, therefore, dismiss the appeal.
The petitioner appeals from the judgment of the habeas court, Young, J., dismissing his fourth petition for a writ of habeas corpus. He claims that the habeas court (1) abused its discretion by failing to grant certification to appeal from the judgment of dismissal, and (2) improperly dismissed his fourth petition by concluding that (a) count one is barred by procedural default and (b) count two is barred by the doctrine of res judicata. We disagree.
UNDERLYING FACTS AND PROCEDURAL HISTORY
The present appeal is the most recent in a lengthy series of appeals in which the petitioner has attempted to reverse the judgment of the trial court, Gaffney, J., which requires him upon his release from confinement to register as a sex offender pursuant to General Statutes (Rev. to 1999) § 54-254 (a). The crimes of which [158 Conn.App. 291] the petitioner was convicted occurred on August 11, 1998. State v. Pierce, 269 Conn. 442, 445, 849 A.2d 375 (2004). The victim was in her minivan at a Newington supermarket when the petitioner compelled her at knifepoint to drive to a wooded area in East Hartford. Id. The petitioner ordered the victim to follow him into the woods, but she refused, telling him that she did not want to be harmed or raped. Id. The petitioner told the victim that he did not intend to harm her, but that he did not want her to see where he went so as to aid in his escape. Id. The victim offered to look away as the petitioner left, and he agreed. Id. When the petitioner was gone, the victim drove to the Newington police station and reported the incident. Id. A composite drawing of the suspect was made from the victim's description of the perpetrator. Id. Two police officers recognized the petitioner from the drawing and went to the motel where they knew he was living. Id., 445-46. During the police interview, the petitioner confessed to facts similar to those reported by the victim. Id., 446.
The petitioner was charged with various crimes. A jury found him guilty of kidnapping in the second degree in violation of General Statutes § 53a-94 and burglary in the first degree in violation of General Statutes § 53a-101. See State v. Pierce, 69 Conn.App. 516, 518, 794 A.2d 1123 (2002), rev'd in part, 269 Conn. 442, 849 A.2d 375 (2004) (reversed and remanded to Appellate Court with direction to reinstate sexual offender registry requirement imposed by trial court). Thereafter, the state " invoked § 54-254 (a) and filed a motion asking the trial court to find that the [petitioner's] crimes had been committed for a sexual purpose." State v. Pierce, supra, 269 Conn. 446.
At sentencing, Judge Gaffney informed the parties that he had ordered a presentence investigation report [158 Conn.App. 292] (1999 report), which he had reviewed. State v. Pierce, 129 Conn.App. 516, 519, 21 A.3d 877, cert. denied, 302 Conn. 915, 27 A.3d 368 (2011). The court inquired whether the parties had reviewed the 1999 report. Id. The petitioner's trial counsel stated that " he had reviewed it and gone over it 'briefly' with the [petitioner]. The court then asked the [petitioner] if he needed more time to go over 1999 the report, and the [petitioner] nodded his head. The court then called a recess to give the [petitioner] and his attorney time to go over the 1999 report in more detail. . . . When the sentencing hearing resumed approximately fifty minutes later, defense counsel stated on the record that he and the [petitioner] . . . were ready to proceed." (Citation omitted.) Id., 520.
The petitioner opposed the state's § 54-254 (a) request, arguing " that the evidence presented during the trial was insufficient to support [the] requisite finding [that he committed the crime for a sexual purpose]. He conceded nevertheless that the trial court could only make such a finding based on the [petitioner's] history [of sex-related offenses] as . . . detailed in the [1999 report]." (Internal quotation marks omitted.) State v. Pierce, supra, 269 Conn. 446-47. The court " remarked [158 Conn.App. 293] upon the evidence presented during the trial as well as other information that had come before it during the sentencing hearing and found that the [petitioner] was a 'sexual devia[nt]' with a long and alarming history of 'antisocial behavior.'" Id., 447. On the basis of the evidence presented at trial, the court found that the petitioner had abducted the victim for sexual purposes and ordered him to register as a sex offender pursuant to § 54-254 (a). Id. The court sentenced the petitioner to a total effective term of thirty years of incarceration, execution suspended after twenty-five years, with five years of probation. State v. Pierce, supra, 129 Conn.App. 521.
The petitioner filed an appeal from the judgment of conviction. This court reversed the judgment insofar as it required the petitioner to register as a sex offender. Our Supreme Court, however, reinstated the judgment with respect to sex offender registration. See State v. Pierce, supra, 269 Conn. 444. Before the petitioner's [158 Conn.App. 294] direct appeal was resolved by our Supreme Court, he had filed a petition for a writ of habeas corpus (first petition). In his amended first petition, the petitioner alleged that his trial counsel had rendered ineffective assistance by failing (1) to raise evidentiary issues with respect to his motion to suppress, (2) to subpoena police records, (3) to investigate adequately and (4) to seek timely sentence review. Pierce v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-02-0003666 (September 18, 2003) ( White, J. ). The petitioner prayed that " a writ of habeas corpus be issued, such that justice may be done." Id.
Prior to the commencement of evidence on the first petition, the petitioner sought to have his first habeas counsel removed for failing to allege that his psychiatric records were improperly included in the 1999 report. Id. The first habeas court, White, J., denied the petitioner's claim of ineffective trial counsel and dismissed the claim related to the petitioner's psychiatric records as outside the scope of the first petition. Id. Judge White, however, restored the petitioner's right to sentence review. The petitioner did not file an appeal from the judgment denying his first petition.
Pursuant to the relief granted by Judge White, the petitioner filed an application for sentence review; see General Statutes § 51-195; claiming that the sentence imposed by Judge Gaffney was excessive in light of the petitioner's age and the nature of the crimes of which he was convicted. State v. Pierce, Superior Court, judicial district of New Britain, Docket No. CR-98-177629, (June 29, 2005) ( Holden, Miano and Iannotti, Js. ). The sentence review panel stated that having reviewed " the record before us and having considered the arguments of counsel and comments by the petitioner, and given the gravity of the nature of the offenses and character [158 Conn.App. 295] and history and age of the petitioner, we find the sentence is neither inappropriate [n]or disproportionate."  (Emphasis added.) Id. The petitioner did not file an appeal from the judgment of the sentence review panel.
In October, 2003, the petitioner filed a second petition for a writ of habeas corpus (second petition) in which he alleged prosecutorial impropriety and the ineffective assistance of trial counsel, appellate counsel, and first habeas counsel. Pierce v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV-03-0004220, (April 11, 2005) ( Fuger, J. ). The ...