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Parker v. Commissioner of Correction

Court of Appeals of Connecticut

November 15, 2016

EDWARD PARKER
v.
COMMISSIONER OF CORRECTION

          Argued September 9, 2016

         Appeal from Superior Court, judicial district of Tolland, Cobb, J. [summary judgment]; Fuger, J. [motion to vacate order, judgment dismissing petition].)

          W. Theodore Koch III, assigned counsel, for the appellant (petitioner).

          Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Peter A. McShane, state's attorney, and David M. Carlucci, senior assistant state's attorney, for the appellee (respondent).

          Beach, Keller and Bear, Js.

          OPINION

          BEAR, J.

         The petitioner, Edward Parker, appeals from the judgment of the habeas court dismissing his third petition for a writ of habeas corpus.[1] On appeal, the petitioner claims that (1) the habeas court, Cobb, J., erred in rendering summary judgment on counts one and two of that petition, in which he alleged ineffective assistance of his trial counsel and first habeas counsel, respectively, because his third petition was a successive petition as to those counts; and (2) the habeas court, Fuger, J., erred in granting the motion, filed by the respondent, the Commissioner of Correction, to dismiss count three of that petition, in which the petitioner alleged ineffective assistance of his second habeas counsel, under the doctrines of res judicata and collateral estoppel. We conclude that the court properly granted the respondent's motion for summary judgment on counts one and two because the third petition was a successive petition as to those counts. Additionally, we conclude that the court also properly dismissed count three on the alternative ground of collateral estoppel.[2] We therefore affirm the judgment of the habeas court.

         The following factual and procedural background is relevant to our resolution of the petitioner's appeal. On July 20, 1999, the petitioner pleaded guilty under the Alford doctrine[3] to murder in violation of General Statutes § 53a-54a (a), and the court, Iannotti, J., sentenced him in accordance with a plea agreement to thirty years incarceration in the custody of the respondent. At the sentencing hearing, the defendant sought new counsel and to withdraw his plea. See State v. Parker, 67 Conn.App. 351, 353, 786 A.2d 1252 (2001), cert. denied, 259 Conn. 922, 792 A.2d 855 (2002), cert. denied, 537 U.S. 838, 123 S.Ct. 155, 154 L.Ed.2d 59 (2002). The court denied each request. Id. The petitioner thereafter appealed and claimed that his plea was not made knowingly, intelligently, and voluntarily. Id. This court affirmed his conviction. Id., 357.

         This is the petitioner's third habeas corpus petition since his conviction. In this petition, he alleges ineffective assistance of his trial counsel, Stephen Gionfriddo; his first habeas counsel, Michael D'Onofrio; and his second habeas counsel, Thomas Mullaney. We describe the petitioner's habeas cases in turn.

         In 2000, the petitioner filed his first petition for a writ of habeas corpus. Parker v. Warden, Superior Court, judicial district of New Haven, Docket No. CV-00-0439172-S (January 24, 2003) (Parker I). In his third amended two count petition in that proceeding, he alleged both ineffective assistance of trial counsel and actual innocence. The petitioner claimed that trial counsel: (1) did not adequately advise him of his option to plead guilty or to proceed to trial; (2) did not adequately advise him concerning the consequences of his plea; (3) failed to ensure that his plea was made knowingly, intelligently, and voluntarily; (4) did not adequately advise him of the elements of murder; (5) did not conduct a sufficient investigation into possible defenses; (6) failed to conduct a sufficient investigation into the elements of the prosecution's proof or of his case; and (7) failed to conduct a sufficient investigation by not speaking to certain witnesses.

         After a trial, the first habeas court denied the petition for a writ of habeas corpus, concluding that trial counsel's representation did not amount to ineffective assistance; that the petitioner failed to prove any of the allegations in his petition; and that he did not prove prejudice. The court also found that the petitioner had failed to prove by clear and convincing evidence that he was actually innocent of murder, the crime to which he pleaded guilty and of which he was convicted. Following the first habeas court's denial of his petition for certification to appeal, this court dismissed his appeal, and our Supreme Court denied certification to appeal. See Parker v. Commissioner of Correction, 83 Conn.App. 905, 853 A.2d 652 (2004), cert. denied, 281 Conn. 912, 916 A.2d 54 (2007).

         In 2005, the petitioner filed his second petition for a writ of habeas corpus. Parker v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-05-4000487-S (January 5, 2009) (Parker II). In his amended petition in that proceeding, he alleged both ineffective assistance of trial counsel and ineffective assistance of first habeas counsel. He claimed that trial counsel was ineffective because he failed to (1) file a motion to suppress the petitioner's statements and other evidence obtained during a stop and search of his vehicle; and (2) advise the petitioner about proceeding with a motion to suppress, and, if the court denied that motion, then entering a nolo contendere plea, which would permit him to appeal the denial of that motion to suppress. As to first habeas counsel, the petitioner claimed that he was ineffective for failing to raise these issues in the first habeas petition.

         After a hearing, the second habeas court found that the petitioner was unlikely to prevail on the motion to suppress the petitioner's statements and other evidence, trial counsel discussed this with him, and, thus, trial counsel was not ineffective in failing to pursue the motion. This court dismissed the petitioner's appeal from the second habeas court's judgment, and our Supreme Court denied certification to appeal. See Parker v. Commissioner of Correction, 124 Conn.App. 905, 4 A.3d 354, cert. denied, 299 Conn. 911, 10 A.3d 527 (2010).[4]

         On August 1, 2011, the then self-represented petitioner filed a third petition for a writ of habeas corpus, which is the subject of the present appeal. The habeas court appointed counsel for him. On October 16, 2013, the petitioner amended his petition, claiming that his trial counsel was ineffective because he failed to (1) investigate the facts and circumstances of his statements to law enforcement officers, and the facts and circumstances concerning the search of his vehicle; (2) research legal and factual grounds for a motion to suppress his statements to law enforcement officers and also to suppress any additional evidence discovered in the search of his vehicle; (3) adequately advise him about the grounds for moving to suppress such evidence; (4) adequately advise him of the option to file a motion to suppress; and (5) adequately advise him about whether to accept the plea deal. He also claimed ineffective assistance of first and second habeas counsel for failing to argue trial counsel's ineffectiveness under the Strickland-Hill standard[5] for ineffective assistance of counsel.

         On November 13, 2013, the respondent filed a motion for summary judgment, pursuant to Practice Book § 23-37, [6] in which he alleged both that the third amended petition was a successive petition and that the doctrines of res judicata and collateral estoppel barred the claims contained therein. Following a hearing on the motion, the habeas court, Cobb, J., found that count one concerning trial counsel and count two concerning first habeas counsel constituted successive petitions and granted summary judgment against the petitioner on those counts. As to count three concerning second habeas counsel, however, the court denied the ...


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