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Lebron v. Commissioner of Correction

Court of Appeals of Connecticut

November 28, 2017

LUIS LEBRON
v.
COMMISSIONER OF CORRECTION

          Argued September 8

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Sferrazza, J., following a preliminary hearing, dismissed the petition and rendered judgment thereon, from which the petitioner, on the granting of certification, appealed to this court. Reversed in part; further proceedings.

          Vishal K. Garg, assigned counsel, for the appellant (petitioner).

          James A. Killen, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Randall S. Bowers, former deputy assistant state's attorney, for the appellee (respondent).

          Keller, Prescott and Kahn, Js. [*]

          OPINION

          PRESCOTT, J.

         The petitioner, Luis Lebron, appeals from the judgment of the habeas court dismissing his third petition for a writ of habeas corpus pursuant to General Statutes § 52-470 (b).[1] The petitioner claims on appeal that, in reaching its determination that no good cause existed to proceed to trial, the habeas court improperly concluded that he had waived many of his claims by entering a guilty plea in the underlying criminal action and relied in part on an affirmative defense that was not pleaded by the respondent, the Commissioner of Correction, in his return. We conclude that the habeas court properly dismissed counts one through four of the petition, but improperly dismissed the entirety of counts five and six. Accordingly, we affirm in part and reverse in part the judgment of the habeas court.

         The relevant facts and procedural history underlying this appeal are set forth in the habeas court's memorandum of decision as well as in this court's decision resolving the petitioner's previous habeas appeal. See Lebron v. Commissioner of Correction, 108 Conn.App. 245, 947 A.2d 349, cert. denied, 289 Conn. 921, 958 A.2d 151 (2008). The petitioner initially was arrested in May, 1997, and charged with one count each of murder in violation of General Statutes § 53a-54a (a) and criminal use of a firearm in violation of General Statutes § 53a-216.[2] The petitioner was appointed a public defender, Attorney Kenneth Simon. Simon represented the petitioner through the start of jury selection, which began in January, 1999. At about that time, Simon filed a motion for permission to withdraw his appearance on the ground that he could be called as a witness at trial for the petitioner.[3] The court granted the motion.

         At that time, the court discussed with the petitioner how the matter should proceed in light of defense counsel's withdrawal on the eve of trial. The petitioner indicated to the court that he had not asked counsel to withdraw and had waived any conflict, and that he wanted to proceed with the trial. He also informed the court that he was prepared to represent himself. The trial court did not agree to allow the petitioner to proceed to trial as a self-represented party at that time. Instead, the court declared a mistrial and continued the matter so that new counsel could be appointed for the petitioner. At that hearing, the prosecutor also indicated to the court that the petitioner would soon be arrested on additional charges.

         Shortly thereafter, the petitioner was arrested under a separate docket on charges of two counts of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and two counts of conspiracy to commit witness tampering in violation of General Statutes §§ 53a-48 and 53a-151. The court ordered that the cases be heard together, and the two cases were continued to February 26, 1999.

         At the February 26, 1999 hearing, the petitioner was appointed a new criminal defense attorney, Thomas M. Conroy, to handle both of his files. Conroy was granted a further continuance.

         In May, 1999, the petitioner, pursuant to a plea agreement that resolved all of the 1997 and 1999 charges, pleaded guilty under the Alford doctrine[4] to one count of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, and one count of conspiracy to tamper with a witness in violation of §§ 53a-151 and 53a-48. The court canvassed the petitioner and found that there was a factual basis for the plea and that it was knowingly and voluntarily made. The trial court later sentenced the petitioner, consistent with the plea agreement, to a term of thirty years of incarceration on the manslaughter charge and to an unconditional discharge on the conspiracy charge. The state entered a nolle prosequi as to all of the other charges against the petitioner.

         The petitioner filed his first action seeking a writ of habeas corpus in June, 2000. The petitioner was appointed habeas counsel, Attorney Sebastian DeSantis, who later filed an amended habeas petition. The amended petition alleged three claims of ineffective assistance directed at Simon and Conroy. Specifically, the ‘‘petitioner alleged that trial counsel failed (1) to pursue discovery and to communicate with him concerning it, (2) to challenge the petitioner's arrest and the search of the area in which he was arrested, as well as the arrest warrant itself, and (3) to communicate with him regarding legal standards and evidentiary standards so that the petitioner could make a knowing and voluntary decision as to whether to proceed to trial or plead guilty.'' Id., 247. The habeas court issued a decision on February 20, 2003, denying the amended habeas petition. Id. DeSantis failed to file a timely petition for certification to appeal from that decision. Id.

         On February 26, 2003, the petitioner filed a pro se petition for certification to appeal, which the habeas court denied. Id. The petitioner, however, did not file an appeal from that denial within twenty days.

         In June, 2003, the petitioner filed a letter with the habeas court, which the court treated as a motion for reconsideration of the habeas petition. Id., 247-48. Soon thereafter, the petitioner also filed a pro se motion for rehearing of his habeas petition. Id., 248. The court denied both of the petitioner's postjudgment motions without a hearing. Id. The petitioner filed a motion with this court on September 29, 2003, in which he sought permission to file a late appeal. Id. This court denied the motion on November 6, 2003. Id.

         Nearly three years later, on July 18, 2006, the petitioner filed a new petition for a writ of habeas corpus alleging again the ineffective assistance of Simon and Conroy, but adding an allegation regarding the ineffective assistance of his first habeas counsel, DeSantis. Id. The petitioner was represented in this second habeas action by Attorney Paul Kraus. The court resolved this second petition by agreeing to render a stipulated judgment that restored the petitioner's appellate rights with respect to the issues raised in the first habeas petition.[5]Id. Thereafter, the petitioner filed a new petition for certification to appeal from the judgment rendered in the first habeas action. Id. The court granted this second petition for certification to appeal, and the petitioner filed an appeal on September 8, 2006. Id.

         The only issue raised in that first appeal, however, was whether the habeas court properly had denied without a hearing the petitioner's postjudgment motions for reconsideration and reargument. Id., 249. The petitioner did not raise the merits of the claims in the habeas petition against Simon and Conroy. Following oral argument, this court ordered the parties to submit supplemental briefs addressing whether the issues the petitioner had raised on appeal fell outside the scope of the stipulated judgment restoring the petitioner's appellate rights, which was limited to issues raised in the first habeas petition. Id., 248-49. Ultimately, this court declined to review the claims raised by the petitioner because they fell outside the scope of the stipulated judgment to which the petitioner had agreed. Id., 249. We affirmed the judgment of the habeas court denying the first petition; id., 250; and our Supreme Court denied a petition for certification to appeal from our decision. Lebron v. Commissioner of Correction, 289 Conn. 921, 958 A.2d 151 (2008).

         The petitioner commenced the present habeas action, his third, in August, 2013. The operative amended petition for a writ of habeas corpus was filed by appointed counsel on January 8, 2016. The petition contains six counts. Counts one and two consist of freestanding constitutional claims directly challenging his underlying conviction. Specifically, count one claims that the criminal trial court, Gaffney, J., violated the petitioner's right to counsel of choice by permitting Simon to withdraw prior to the start of trial despite the petitioner's willingness to waive any potential conflict of interest. See State v. Peeler, 265 Conn. 460, 470-76, 828 A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124 S.Ct. 2094, 158 L.Ed.2d 710 (2004). Count two claims that Judge Gaffney violated the petitioner's right to self-representation by refusing what the petitioner claims was a clear and unequivocal request to represent himself at trial. See State v. Flanagan, 293 Conn. 406, 421-25, 978 A.2d 64 (2009). The remaining counts allege the ineffective assistance of trial and habeas counsel. In particular, count three alleges ineffective assistance by Simon relative to his having withdrawn as trial counsel.[6] Count four alleges ineffective assistance by Conroy, raising many of the same allegations of deficient performance that were raised in the first habeas petition but effectively abandoned in the previous appeal. Count five claims ineffective assistance by the petitioner's first habeas counsel, DeSantis, for failing to ‘‘discover, investigate and raise'' the claims set forth in counts one, two and three, and failing to ‘‘adequately plead, prove and argue'' the claims raised in count four. Count six claims ineffective assistance by the petitioner's second habeas counsel, Kraus, for failing to ‘‘discover, investigate and raise'' the claims set forth in counts one through four, and failing to ‘‘adequately plead, prove and argue'' the claims raised in count five.

         The respondent filed his return on February 29, 2016, in which he raised affirmative defenses as to counts one through four. With respect to counts one and two, the respondent alleged procedural default and waiver resulting from the petitioner's having entered a guilty plea. With respect to count three, the respondent raised the defenses of improper successive petition; see Practice Book § 23-29 (3); and waiver on the basis of the petitioner's guilty plea. The respondent also alleged the defense of improper successive petition with respect to count four. No defenses were pleaded with respect to counts five and six.

         On March 7, 2016, the petitioner filed a reply to the return denying the allegations raised in the respondent's affirmative defenses. A ...


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