JAMES L. DAVIS III
v.
COMMISSIONER OF CORRECTION
Argued
September 7, 2018
Procedural
History
Amended
petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Fuger, J.; judgment denying the petition;
subsequently, the court denied the petition for certification
to appeal, and the petitioner appealed to this court.
Appeal dismissed.
Heather Clark, for the appellant (petitioner)
Michael L. Regan, state's attorney, for the appellee
(respondent).
DiPentima, C. J., and Lavine and Sheldon, Js.
OPINION
DiPENTIMA, C. J.
The
petitioner, James L. Davis III, appeals from the judgment of
the habeas court denying his second amended petition for a
writ of habeas corpus. On appeal, the petitioner claims that
the court (1) abused its discretion in denying his petition
for certification to appeal and (2) erred in concluding that
his trial counsel had not rendered ineffective assistance by
failing to (A) file a motion in limine to preclude certain
evidence, (B) consult with and present the testimony of an
eyewitness identification expert, (C) object to the testimony
of a laboratory supervisor on the ground that the testimony
violated his right to confrontation under the federal
constitution and (D) prepare the petitioner for the
presentence investigation interview. We dismiss the
petitioner's appeal.
The
following facts and procedural history are relevant to our
resolution of the petitioner's claims. The petitioner was
charged with murder by use of a firearm in violation of
General Statutes § 53a-54a (a), attempt to commit murder
in violation of General Statutes §§ 53a-49 (a) (2)
and 53a-54a (a), three counts of assault in the first degree
in violation of General Statutes § 53a-59 (a) (5) and
carrying a pistol without a permit in violation of General
Statutes § 29-35 (a). The matter proceeded to trial
twice; both ended in mistrials due to the inability of the
jury to reach a unanimous verdict. Following the
petitioner's third trial, the jury returned a verdict of
not guilty on the count of murder, but guilty of the lesser
included offense of manslaughter in the first degree in
violation of General Statutes § 53a-55a, not guilty of
attempt to commit murder, guilty of three counts of assault
in the first degree, and guilty of carrying a pistol without
a permit. The trial court, Hadden, J., accepted the
verdict and sentenced the petitioner to a total effective
sentence of forty-eight years imprisonment.
On
direct appeal, our Supreme Court affirmed the
petitioner's conviction. See State v. Davis, 283
Conn. 280, 929 A.2d 278 (2007). The following facts, which
the jury reasonably could have found, were set forth on
direct appeal: ‘‘The events in question took
place in the early morning hours of November 14, 1999, at the
Sportsmen's Athletic Club (club) at 40 High Street in
Norwich. Joseph Ellis arrived at the club with Susan Gomez at
approximately midnight. Ellis had arranged to meet Jermaine
Floyd, Timothy McCoy and Xavier Cluff there. The
[petitioner], Susan Gomez' estranged husband, and Ricky
Gomez, Ron Pires, Clayton Ballinger and Yolanda Pires were in
the poolroom of the club when Ellis arrived. Ellis went to
the bar area, accompanied by Floyd and McCoy, and saw Ricky
Gomez and Ron Pires, both of whom he knew, looking at him
through a service window between the bar and the poolroom.
Ellis then left the bar area and went to the club's
office to make arrangements for a birthday party. When he
came out of the office, Ellis saw Ricky Gomez, Ron Pires and
a third person whom he could not clearly see walk in and out
of the bathroom several times. Ricky Gomez left the club,
came back with something concealed under his jacket and again
entered the bathroom. Gomez then left the bathroom, and,
shortly thereafter, another person came out and started
shooting a gun. The shooter's face was covered with a
cloth of some type.
‘‘The
shooter first shot Joseph Dubose. He then shot Ellis in the
left leg and went to the front door of the club, where he
fired two more shots. He returned to Ellis and shot him in
the right leg, upper right arm and armpit, and left forearm.
At that point, the cloth over the shooter's face slipped,
and Ellis recognized him as the [petitioner].
‘‘At
approximately 1:16 a.m. on November 14, 1999, members of the
Norwich Police Department responded to an alarm at the club.
Upon entering the club, they observed Dubose and Ellis lying
on the floor with apparent gunshot wounds. One of the
officers also observed that Floyd, who was able to stand on
his own, had been shot in the buttocks. Emergency medical
personnel transported Dubose, Ellis and Floyd to William W.
Backus Hospital in Norwich. Cluff, who had been shot in the
arm during the incident, arrived at the hospital by other
means of transportation. Dubose was declared dead at
approximately 2:11 a.m.
‘‘Later
on the day of the shooting, members of the Norwich Police
Department, assisted by members of the state police eastern
district major crime squad, recovered ten spent .40 caliber
shell casings and eleven bullet fragments from the scene of
the shooting. The Norwich police recovered two additional
bullet fragments on November 16, 1999. All of the shell
casings had been fired from the same .40 caliber Glock
semiautomatic handgun.
‘‘Several
months prior to the shooting, in September, 1999, Wilfred
Pepin had reported the theft of several guns, including a .40
caliber Glock semiautomatic handgun, from his residence in
Lisbon. After the shooting, the Norwich Police Department
contacted Pepin and inquired if Pepin had retained possession
of any casings that had been discharged from the Glock
handgun. Pepin was able to find three casings that he thought
may have been discharged from the gun and provided them to
the police. Two of those casings matched the casings that had
been recovered at the club.
‘‘On
January 5, 2000, Adrianne Cook went to the Norwich police
station and informed the police that the [petitioner] was
staying at her apartment at 29 Carpenter Street in Norwich
and that he had refused to leave. The police went to the
apartment and arrested the [petitioner] for criminal
trespassing. They also seized a black duffel bag from the
room in which the [petitioner] had been staying. The duffel
bag contained a number of guns and gun paraphernalia that had
been stolen from Pepin. Several of the items, including a gun
case, a magazine clip, two screws, an Allen wrench and spare
magazine holders, were linked to Pepin's .40 caliber
Glock handgun, but the gun itself never was
recovered.'' (Footnote omitted.) Id.,
284-86.
In
January, 2016, the petitioner filed his second amended
petition for a writ of habeas corpus in which he alleged
ineffective assistance of trial counsel, Michael Fitzpatrick,
on several grounds. The habeas court, Fuger, J.,
denied the petition. The court determined that Fitzpatrick
had testified credibly and concluded that the petitioner had
proven neither deficient performance nor prejudice. The
petitioner filed a petition for ...