May 17, 2016
from Superior Court, judicial district of Tolland, Fuger, J.
V. Amore, assigned counsel, for the appellant (petitioner).
Kathryn W. Bare, assistant state's attorney, with whom,
on the brief, were Gail P. Hardy, state's attorney, Jo
Anne Sulik, supervisory assistant state's attorney, and
Randall Blowers, special deputy assistant state's
attorney, for the appellee (respondent).
Keller, Mullins and Norcott, Js.
petitioner, Vance Johnson, appeals from the judgment of the
habeas court dismissing his sixth petition for a writ of
habeas corpus. 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 conclude 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.
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 firearm in violation of
General Statutes (Rev. to1993) § 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
concurrently 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
his conviction, the petitioner has filed six relevant habeas
corpus petitions. 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.
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, judicial
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 petitioner's wishes to the
contrary; and (4) for various reasons, failed to seek
permission to withdraw from the case. Id.
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).
2005, the petitioner, represented by Attorney William P.
Burns (second habeas counsel) filed a second habeas petition,
claiming again that trial counsel had rendered ineffective
assistance of counsel, but in different 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
relevant evidence at that proceeding, and to prepare
adequately 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 petitioner 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.
trial, the second habeas court concluded that the
petitioner's claims of ineffective assistance by his
first habeas counsel failed under both prongs of
Strickland 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 effectiveness of his trial
counsel's performance in his first habeas
proceeding.'' Johnson v. Commissioner of
Correction, supra, 288 Conn. 58.
second habeas court dismissed the petition for habeas corpus
and subsequently granted certification to appeal.
Id., 58. The Supreme Court affirmed the judgment 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
petitioner'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.
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.
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.
March 21, 2011, the petitioner, represented by Laljeebhai R.
Patel (fourth habeas counsel), filed a fifth habeas petition,
alleging that his second habeas counsel 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.'' Following 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.
Commissioner 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 incompetent. There isn't even a hint of it.'
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
examination 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 omitted.) 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