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Johnson v. Commissioner of Correction

Court of Appeals of Connecticut

September 13, 2016

VANCE JOHNSON
v.
COMMISSIONER OF CORRECTION

          Argued May 17, 2016

         Appeal from Superior Court, judicial district of Tolland, Fuger, J.

          Arnold 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.

          OPINION

          NORCOTT, J.

         The petitioner, Vance Johnson, appeals from the judgment of the habeas court dismissing his sixth petition for a writ of habeas corpus.[1] 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.

         The 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 (1999).

         Since his conviction, the petitioner has filed six relevant habeas corpus petitions.[2] 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.

         In 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.

         After a 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).

         In 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.

         After a 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.

         The 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.

         On 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.

         On 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.

         On March 21, 2011, the petitioner, represented by Laljeebhai R. Patel (fourth habeas counsel), filed a fifth habeas petition, [3] 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.' '' Id.

         The 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 ...


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