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Carmon v. Commissioner of Correction

Court of Appeals of Connecticut

November 28, 2017

ADAM CARMON
v.
COMMISSIONEROF CORRECTION

          Argued September 18, 2017

          Erica A. Barber, assigned counsel, for the appellant (petitioner).

          Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Grayson Colt Holmes, former special deputy assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Lavine and Mullins, Js. [*]

          OPINION

          MULLINS, J.

         The petitioner, Adam Carmon, appeals from the judgment of the habeas court, dismissing in part and denying in part, his fourth petition for a writ of habeas corpus.[1] On appeal, the petitioner claims that the habeas court improperly concluded that he failed to establish that (1) the state had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding critical exculpatory evidence at the time of his criminal trial, (2) his criminal trial counsel, first habeas counsel, and second habeas counsel all had provided ineffective assistance, and (3) he was entitled to immediate release on the basis of actual innocence. We affirm the judgment of the habeas court.

         The opinion of this court from the petitioner's direct appeal set forth the following facts underlying the petitioner's conviction: ‘‘On the night of February 3, 1994, Charlene Troutman was in the living room of her apartment located on Orchard Street in New Haven waiting for a taxicab. With her, among others, was her seven month old granddaughter. Shots fired from the street passed through the living room window killing the granddaughter and leaving Troutman permanently paralyzed. At the time the shots were fired, Jaime Stanley and Raymond Jones were [in a vehicle] stopped at a traffic light near Troutman's apartment and saw a man firing into the apartment. As the shooter ran away, both Stanley and Jones saw his face. Both witnesses identified the [petitioner] during trial as the person who had fired the shots through the window of Troutman's apartment.'' State v. Carmon, 47 Conn.App. 813, 815, 709 A.2d 7, cert. denied, 244 Conn. 918, 714 A.2d 7 (1998).

         On the basis of this evidence, following a guilty verdict by the jury, the trial court rendered judgment of conviction against the petitioner for murder, assault in the first degree and carrying a pistol without a permit. Id., 814-15. The court then sentenced the petitioner to a total effective term of eighty-five years incarceration. Following a direct appeal, this court affirmed the judgment of conviction, and our Supreme Court denied the petition for certification to appeal. State v. Carmon, 244 Conn. 918, 714 A.2d 7 (1998).

         Thereafter, the petitioner filed a petition for a writ of habeas corpus claiming that his criminal trial counsel, Richard Silverstein, as well as his appellate counsel, Suzanne Zitser, had provided ineffective assistance; the habeas court denied that petition, but granted the petition for certification to appeal. See Carmon v. Commissioner of Correction, 114 Conn.App. 484, 486, 969 A.2d 854, cert. denied, 293 Conn. 906, 978 A.2d 1108 (2009). The petitioner filed an appeal, which we dismissed after he failed to file an appellate brief. Id., 486-87.

         The petitioner then filed a second petition for a writ of habeas corpus, claiming again that his criminal trial counsel had provided ineffective assistance. In this second petition, he included allegations of deficient performance that had not been alleged in his first petition. Id., 487. Specifically, the petitioner alleged, in relevant part, that Silverstein had performed deficiently because he had failed to investigate and to introduce fingerprint evidence taken from a storm window at the crime scene and from an empty ammunition cartridge box found near the crime scene. Id.

         Following a habeas trial, the court issued a memorandum of decision denying the petition for a writ of habeas corpus. Id. We affirmed the judgment of the habeas court on appeal, and our Supreme Court denied the petition for certification to appeal. Carmon v. Commissioner of Correction, 293 Conn. 906, 978 A.2d 1108 (2009).

         Then, the petitioner filed a third petition for a writ of habeas corpus, claiming that his criminal trial counsel, first habeas counsel, and second habeas counsel all had provided ineffective assistance. See Carmon v. Commissioner of Correction, 148 Conn.App. 780, 782, 87 A.3d 595 (2014). He also alleged that several material witnesses had given false testimony during his criminal trial, that the state had withheld exculpatory evidence, that his conviction was rendered on the basis of prosecutorial impropriety, and that he is actually innocent. Id. When the petitioner failed to respond to the request by the respondent, the Commissioner of Correction, for a more specific statement, the habeas court defaulted the petitioner and rendered judgment dismissing the petitioner's third habeas case. Id., 784. We affirmed that judgment on appeal. Id., 788.

         During the pendency of the petitioner's appeal from the judgment of dismissal of his third habeas petition, however, the petitioner filed the present habeas petition, his fourth. In this petition, the petitioner alleged: as to count one, his criminal trial counsel, and his first and second habeas counsel all had provided ineffective assistance;[2] as to count two, the state knew or should have known that the testimony of several of its witnesses was false; as to count three, the state violated his right to due process by permitting the witnesses to provide false testimony; as to count four, the state violated Brady v. Maryland, supra, 373 U.S. 83, by not turning over exculpatory evidence; as to count five, the prosecutor committed impropriety, which was based on the allegations in counts two through four of the petition; and, as to count six, actual innocence.

         The respondent asserted several special defenses: (1) as to count one, the respondent asserted that the fourth petition was successive as to the petitioner's criminal trial counsel and first habeas counsel, and that the petitioner failed to state a claim as to his second habeas counsel; (2) as to counts two through five, the petitioner had procedurally defaulted on those counts; and, as to count six, the petition was successive.[3] The petitioner responded, inter alia, that there was newly discovered evidence in the form of a fingerprint analysis report that proved that the fingerprints on the ammunition box found near the crime scene belonged to Arthur Brantley, an early suspect in this shooting. The petitioner contended that this report had not been disclosed by the prosecution at the time of his last petition that was decided on the merits, namely, the second petition for a writ of habeas corpus.

         After a trial, the habeas court determined that the allegations in count one, which were that his trial counsel, and his first and second habeas counsel had provided ineffective assistance by failing to investigate and to call certain expert witnesses, were abandoned due to inadequate briefing. Additionally, the court found that those allegations were ‘‘without factual foundation and support in the record.'' The court further found that the petitioner had failed to prove that the failure of his criminal trial counsel to introduce the fingerprint analysis report was prejudicial to the petitioner. In addition, the court found that neither the petitioner's first nor his second habeas counsel had the fingerprint analysis report, but that the petitioner failed to establish that he was prejudiced by their failure to obtain and to present this evidence because it was not material. Accordingly, the court rejected count one of the fourth habeas petition.

         As to counts two and three of the fourth petition, regarding the allegations of perjured testimony, the court found that the petitioner was procedurally defaulted from raising these claims, and it dismissed them. As to count four, alleging a Brady violation, the court found that the petitioner had failed to prove that the state had not disclosed, at the time of his criminal trial, the fingerprint analysis report. The court also found that this evidence, even if not disclosed, was not material. As to count five of the fourth petition, the court rejected the allegations in that count on the basis of its rejection of counts two through four, which formed the basis of the alleged prosecutorial impropriety allegation in count five. As to count six, the actual innocence claim, the court concluded that the fingerprint analysis report was not newly discovered evidence because the petitioner did not establish that his criminal trial counsel did not have the report at the time of trial. Alternatively, the court found, even if it were to assume arguendo that this evidence was newly discovered, on the basis of the ‘‘credible ...


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