Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19
Leon E. Bell #13812
MEMORANDUM OF DECISION
Vernon D. Oliver, J.
The petitioner, Leon E. Bell, Jr., initiated this second petition for a writ of habeas corpus claiming that he received ineffective assistance of counsel by a series of his prior attorneys, as well as that his right to due process was violated. The petitioner seeks to have his 2002 conviction for Kidnapping in the first degree vacated and have the matter remanded to the criminal trial court for further proceedings. The gravamen of the petitioner's claims is that his criminal jury was not properly instructed on the kidnapping charge and that he, pursuant to the legal doctrine that has evolved beginning with State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), is entitled to have a properly instructed jury decide the kidnapping charge. The respondent's return denies the petitioner's claims and that he is entitled to habeas corpus relief. Based upon the credible evidence presented, the court finds the issues for the respondent and denies the petition.
The petitioner stands convicted, after a jury trial, of two counts of Robbery in violation of General Statutes § 53a-134(a)(4), two counts of Burglary in the third degree in violation of General Statutes § 53a-103(a), two counts of Kidnapping the first degree in violation of Connecticut General Statutes § 53a-92(a)(2)(B) and two counts of Larceny in the third degree in violation of General Statutes § 53a-124(a)(2). These charges were brought in two separate dockets that were consolidated for trial. The trial court, Mullarkey, J., sentenced the petitioner to a total effective sentence of thirty-six years of imprisonment. The petitioner appealed from the judgment of conviction, which was affirmed in State v. Bell, 93 Conn.App. 650, 891 A.2d 9, cert. denied, 277 Conn. 933, 896 A.2d 101 (2006). On appeal, the petitioner claimed that the " trial court improperly (1) granted the state's motion to consolidate the two informations, (2) denied his motion to suppress identification evidence, (3) denied his motion to suppress his statement to the police and (4) denied his motion for a judgment of acquittal on the basis of insufficient evidence." Id., 652.
The Appellate Court summarized the facts reasonably found by the jury as follows: " During the early hours of April 12, 2001, at a Friendly's restaurant in Manchester, manager Cheryl Royer, alone in the restaurant, was locking up for the night. While exiting the front doors to go home, Royer was confronted by the [petitioner]. Royer recognized the [petitioner], but could not at that time recall the circumstances as to how she had met him. The [petitioner] told her that he had a gun and ordered her to take him to the safe. After she unlocked the safe, Royer started screaming and pleading for the [petitioner] not to hurt her. The [petitioner] told Royer to go into the walk-in refrigerator for fifteen minutes. Royer stayed in the refrigerator for only a few minutes, ran out and called 911. When the police arrived at the restaurant, Royer told the police that she recognized the perpetrator and described him as a tall, slender black male wearing a tan jacket and a black knit hat.
" That evening, Royer remembered that she had met the [petitioner] a few years prior when they worked the same shift at another Friendly's restaurant. Royer called the Manchester police department and reported the [petitioner's] name. The next day, Detective Michael Morrissey of the Manchester police department met with Royer at the restaurant and showed her a photographic array. Royer immediately identified the [petitioner] as the perpetrator of the Manchester robbery.
" On April 14, 2001, Tricia Smith, the assistant manager of a Friendly's restaurant in Glastonbury, arrived at the store alone at about 6 a.m. to open the restaurant. As she unlocked the front door, the [petitioner], unmasked, came up behind her and forced his way into the restaurant. He told her that he would not hurt her if she did what he told her to do. Smith was fixated on something the [petitioner] was holding in his hand under his jacket that 'looked like a gun.' The [petitioner] ordered her to take him to the safe. By the time Smith had reached the safe, the [petitioner] had put a bandana over the lower portion of his face. After Smith opened the safe, the [petitioner] told her to get into the walk-in refrigerator. Smith waited a few minutes in the refrigerator until she thought the [petitioner] had left the restaurant. She then ran to a nearby gasoline station for help. Smith, in speaking to the police, described the [petitioner] as a tall, skinny black male and stated that she would recognize him if she saw him again. Detective William Sanderson from the Glastonbury police department met with Smith a few hours after the robbery and presented her with the same photographic array that was shown to Royer. Smith identified the [petitioner] as the perpetrator of the Glastonbury robbery.
" The [petitioner] was arrested at approximately 4 p.m. on April 14, 2001, pursuant to a warrant in connection with the Manchester robbery. He was taken to the Manchester police department where he was also arrested and charged with the Glastonbury robbery. That evening, the [petitioner] confessed to both the Manchester and Glastonbury robberies. The [petitioner] was charged in separate informations that were consolidated for trial." Id., 652-54.
The petitioner's criminal trial occurred in 2002 and his direct appeal was completed in 2006. The Supreme Court's decision in Salamon was released in 2008. Thus, the trial judge, criminal trial counsel and appellate counsel on direct appeal were not yet on notice of Salamon . The petitioner's prior habeas attorney, however, represented the petitioner in his habeas trial after the release of Salamon and could have raised such a claim in the petitioner's first habeas. The amended petition filed by Attorney Mullaney did not raise a Salamon claim. See Petitioner's Exhibit 10.
The petitioner's first habeas petition was denied after trial on November 30, 2009, as the petitioner failed to establish both deficient performance and prejudice regarding counsel's purported failure to adequately pursue the identification and insufficiency of evidence issues. Leon Bell v. Warden, Superior Court, Judicial District of Tolland, CV06-4001280-S, 2010 Ct.Sup. 399, 2009 Conn. Super. LEXIS 3333 (Fuger, Jr., J., November 30, 2009). The petitioner appealed from the denial of the petition for certification to appeal. The appeal was dismissed. Bell v. Comm'r of Corr., 131 Conn.App. 904, 27 A.3d 115 (per curiam), cert. denied, 302 Conn. 949, 31 A.3d 383 (2011).
The petitioner brought this habeas petition on June 8, 2012. In his three-count amended petition, filed on January 20, 2015, the petitioner claims that his kidnapping conviction must be reversed pursuant to State v. Salamon, supra, 287 Conn. 509, in which our Supreme Court reconsidered its interpretation of the kidnapping statute. A trial was held on January 28, 2015, at which the petitioner presented the testimony of Attorneys Thomas Mullaney III, George Flores and Kristin Coffin. Both parties entered documents into evidence, which consisted of copies of transcripts, court decisions and appellate materials. The court permitted the parties to file post-trial briefs, which were filed on May 8, 2015.
In his amended petition, the petitioner alleges claims in three counts: (1) ineffective assistance of trial, appellate and habeas counsel; (2) ineffective assistance of direct appeal counsel;  and (3) violation of due process. At the heart of all counts is the petitioner's claim, best articulated in count three, the freestanding due process claim, that his convictions for Kidnapping in the first degree must be vacated because at the time of the petitioner's conviction, the kidnapping statute was invalid and unconstitutional. Because the ineffective assistance of counsel claims are based on, and derivative of, the claim in count three, the court will first address that claim. Should the petitioner prevail in count three, then prior counsel potentially could have ...