March 5, 2018
for a writ of habeas corpus, brought to the Superior Court in
the judicial district of Tolland and tried to the court,
Oliver, J.; judgment dismissing the petition;
thereafter, the court denied the petition for certification
to appeal, and the petitioner appealed to this court.
A. Kostaniak, assigned counsel, for the appellant
L. Chupak, senior assistant state's attorney, with whom,
on the brief, was Gail P. Hardy, state's attorney, for
the appellee (respondent).
DiPentima, C. J., and Bright and Flynn, Js.
petitioner, Vance Johnson, appeals following the denial of
his petition for certification to appeal from the judgment of
the habeas court dismissing his seventh petition for a writ
of habeas corpus. In his habeas petition, the petitioner
alleged that his conviction is illegal because he did not
understand, due to his compromised mental state, what was
occurring when he pleaded guilty to one charge and then
proceeded to trial on a second charge. The habeas court sua
sponte dismissed the petition because it raised the same
ground as two prior petitions that had been denied, and it
failed to state new facts or to proffer new evidence not
reasonably available at the time of the prior petitions. On
appeal, the petitioner claims that the habeas court abused
its discretion in denying the petition for certification to
appeal because he has a meritorious claim that his prior
habeas counsel was ineffective. The respondent, the
Commissioner of Correction, argues that the issue raised on
appeal is not reviewable because the petitioner did not raise
it in his habeas petition or in his petition for
certification. We agree and, therefore, dismiss the appeal.
following facts and procedural history are relevant to our
review. ‘‘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. to 1993)
§ 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 [Attorney] 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).''
Johnson v. Commissioner of Correction, 168 Conn.App.
294, 296, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d
the current appeal concerns the petitioner's seventh
habeas corpus petition, the history regarding the fifth and
sixth petitions is relevant to provide the necessary context
to this appeal. ‘‘On 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.'' ' Id.
petitioner filed a petition for certification to appeal from
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.' . . .
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 counsel's alleged failure to
raise a claim against trial counsel on that ground.
Id., 369 n.2. Our Supreme Court denied the
petitioner's petition for certification to appeal from
this court's judgment. Johnson v. Commissioner of
Correction, 310 Conn. 918, 76 A.3d 633 (2013).
July 22, 2013, the self-represented petitioner filed a sixth
habeas petition . . . . On November 14, 2014, the petitioner
filed [another] amended petition (sixth petition), claiming
ineffective assistance of the first, second, third, and
fourth habeas counsel for failing to allege in their
respective prior habeas petitions that trial counsel was
ineffective for failing to file a motion for competency
evaluation pursuant to § 54-56d at or before the time of
the petitioner's plea on the firearm charge, at or before
sentencing on the firearms charge, at or before the jury
trial for murder, at or before sentencing on the murder
conviction, and after sentencing for murder for discovery of
evidence that trial counsel failed to investigate by way of
petition for a new trial.'' (Footnote omitted.)
Johnson v. Commissioner of Correction, supra, 168
habeas court dismissed the sixth petition in its entirety on
the ground of res judicata. This court affirmed the decision
of the habeas corpus holding that the claims as to first and
second habeas counsel were precluded by res judicata, the
claims as to third habeas counsel were barred by collateral
estoppel, and the claim as to fourth habeas counsel failed to
state a claim upon which relief could be granted.
Id., 308, 312-13.
October 20, 2016, the petitioner filed his seventh habeas
corpus petition, which is the subject of this appeal. In his
petition, the petitioner claimed that he did not understand
the criminal trial proceedings in court, was confused due to
his mental state, and felt that the circumstances of his
mental condition at the time of his criminal proceedings
should have been taken into consideration, but ...