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Ham v. Commissioner of Correction

Court of Appeals of Connecticut

January 15, 2019

ERIC HAM
v.
COMMISSIONER OF CORRECTION

          Argued September 18, 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; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

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

          Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Rebecca A. Barry, assistant state's attorney, for the appellee (respondent).

          Alvord, Keller and Flynn, Js.

          OPINION

          KELLER, J.

         The petitioner, Eric Ham, appeals from the judgment of the habeas court denying his petition for certification to appeal from the court's denial of his third amended petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal with respect to his claims that (1) the prosecutor at his criminal trial violated his right to due process by failing to disclose material exculpatory evidence and (2) counsel in a prior habeas action deprived him of his right to the effective assistance of counsel by failing to pursue a claim of ineffective assistance on the part of his criminal trial counsel. Because we conclude that the court properly exercised its discretion in denying the petition for certification to appeal, we dismiss the appeal.

         The following facts and procedural history are relevant to the present appeal. In 1996, following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59, larceny in the third degree in violation of General Statutes § 53a-124 (a) (1), conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-124 (a) (1), and falsely reporting an incident in violation of General Statutes (Rev. to 1993) § 53a-180 (a) (3) (A). The court, Hon. William L. Hadden, Jr., judge trial referee, sentenced the petitioner to a fifty-year term of imprisonment.

         The petitioner brought a direct appeal, during which he was represented by Attorney William S. Palmieri. This court affirmed the judgment of conviction, and our Supreme Court denied the petitioner's petition for certification to appeal from this court's judgment. State v. Ham, 55 Conn.App. 281, 739 A.2d 1268, cert. denied, 252 Conn. 916, 743 A.2d 1128 (1999).[1] This court summarized the facts that reasonably could have been found by the jury: ‘‘[I]n March, 1993, the [petitioner], accompanied by four masked men, approached Alex Santana and asked him where to find his cousin, George Flores. When Santana replied that he had not seen Flores, the [petitioner] punched Santana in the face, causing him to be thrown against a store window. The owner of the store came outside and the [petitioner] and his companions departed.

         ‘‘On May 5, 1993, at approximately 11 p.m., the [petitioner] agreed to pay Ronaldo Rivera $40 if he would steal a large, fast, four door automobile and deliver it to the [petitioner]. Rivera found such a vehicle on Frank Street in New Haven and, with the help of a friend, stole a four door Buick and brought the car to the [petitioner] and another man on Ward Street at approximately 2 a.m.

         ‘‘Santana had been riding that night in the car of his friend, Butch Console, with three other persons, Marilyn Torres, Melissa Dawson and Dimiris Vega. When the car stopped on Button Street, the occupants got out. As they were standing by the car, a man approached and offered to paint Console's initials on the driver's door. Console agreed and then stood next to a red station wagon parked on the opposite side of the street. Meanwhile, his friends stood on the street side of Console's car watching the man paint. Console noticed a car approaching slowly on Button Street. He saw what he first thought were firecrackers coming from the rear seat of the car. When he realized it was gunfire, Console ran around the front of the station wagon to the sidewalk and knelt to avoid the bullets. The approaching car was the stolen Buick and contained the [petitioner] and three companions. Gunfire erupted from the area of the rear seat of the Buick. One bullet hit Santana in the stomach, resulting in his hospitalization. Another bullet struck Torres in the back, causing her death. The evidence indicated that at least five shots were fired from close range.

         ‘‘A few minutes later, the [petitioner] and his companions crashed the Buick on Howard Avenue and abandoned it with the motor running, the rear door open, a bullet casing on the floor behind the driver's seat, and a sheet covering the rear seat wet with blood. The rear window had been blown out. A second shell was found on the roof of the car, and a third was found on Button Street at the shooting scene. The [petitioner] went to the Hospital of [Saint] Raphael (hospital) at 2:49 a.m. to seek treatment for a gunshot wound. He spoke with a New Haven police officer at 3:05 a.m. He gave a statement to Sergeant Diane Langston declaring that he and his friend had been accosted and shot on the street in an attempted robbery by two masked men. The [petitioner] stated that he and his friend then ran directly to the hospital.

         ‘‘A ballistics expert testified that the bullet obtained from Torres' body matched the .45 caliber shell casing found on the floor of the Buick. The other casings found on the roof of the Buick and on Button Street came from a nine millimeter gun. A fingerprint expert identified fingerprints found on the interior of the driver's door as those of the [petitioner]. Experts from the state forensic laboratory testified that the blood on the sheet covering the backseat was consistent with the [petitioner's] blood type.'' Id., 283-85.

         In 2012, the petitioner filed an initial petition for a writ of habeas corpus and, in December, 2014, he filed the operative, third amended petition.[2] In his petition, the petitioner raised six claims. The claims raised in the present appeal relate to the court's denial of portions of the first and sixth counts of the petition.

         In the first count, the petitioner claimed that he was deprived of his right to due process because the prosecutor at his criminal trial, John Waddock, failed to disclose ‘‘material exculpatory evidence.'' The petitioner alleged that this included evidence that the defense could have used to impeach two of the state's witnesses, namely, Langston and Santana. Langston is a retired sergeant of the New Haven Police Department who, as a patrol officer in 1993, met with the petitioner during the early morning of May 6, 1993, and was a witness for the state at his criminal trial. Central to the petitioner's claims concerning Langston is the fact that, on January 8, 1997, she testified, consistent with her police report in this matter, that, on May 6, 1993, she was dispatched to meet with the petitioner at the hospital at 2:05 a.m. On January 13, 1997, the prosecutor recalled Langston as a witness for the state, and Langston testified that, following her initial testimony in this case, and on her own initiative, she checked her personal daily notebook as well as the police activity log maintained by her department. Relying on these records, Langston realized that, with respect to the specific time at which she had been dispatched to meet with the petitioner, her previous testimony was inaccurate. During her later testimony, she stated that, on May 6, 1993, she had been dispatched to meet with the petitioner at 2:48 a.m. It is undisputed that the time at which Langston had been dispatched to meet with the petitioner was significant in light of the fact that the state's theory of the case was premised on the shooting having occurred at 2:20 a.m.

         Pertinent to the claims raised in the present appeal, the petitioner alleged that the prosecutor was aware of, but did not disclose information that the defense could have used to challenge Langston's credibility, particularly with respect to her testimony concerning the time at which she had been dispatched to meet with him at the hospital on May 6, 1993. Specifically, the petitioner alleged that the prosecutor failed to disclose that ‘‘Langston was involved in a previous incident for which she was subject to prosecution at the time she testified at the petitioner's criminal trial, '' and that, ‘‘[o]n January 8, 1997, [following her initial testimony at the petitioner's criminal trial] the prosecuting authority asked . . . Langston to obtain and produce evidence contradicting her prior testimony that she had been dispatched to speak with the [petitioner] at 2:05 a.m. on May 6, 1993.'' The petitioner alleged that there is a reasonable probability that, had the evidence at issue been disclosed to the defense in a timely manner, the outcome of the trial would have been more favorable to him.

         In the second count, the petitioner claimed that he was deprived of his right to due process because the prosecutor presented testimony from Langston and Santana that the prosecutor knew or should have known to be false, and that the prosecutor failed to correct their testimony. As relevant to the claims raised in the present appeal, the petitioner alleged that, during her trial testimony after she was recalled as witness by the prosecutor, Langston falsely testified ‘‘that she was dispatched to meet with [the petitioner] at 2:48 a.m. on May 6, 1993, and . . . that she checked her personal notebook and daily activity logs on January 8, 1997, of her own volition.'' The petitioner alleged that, but for the false testimony, the outcome of the trial would have been more favorable to him.

         In the third count, the petitioner claimed that he was deprived of his right to the effective assistance of counsel because his trial counsel, William F. Dow, was deficient in several respects. As relevant to the claims raised in the present appeal, the petitioner alleged that Dow ‘‘failed to adequately cross-examine, impeach, or otherwise challenge the testimony of Diane Langston concerning the time she was dispatched to meet with the petitioner and her motivation to testify falsely against the petitioner . . . .'' The petitioner alleged that there was a reasonable probability that, absent Dow's deficient performance, the outcome of the trial would have been more favorable to him.

         In the fourth count, the petitioner claimed that he was deprived of his right to the effective assistance of counsel because his appellate counsel, William S. Palmieri, failed to raise certain claims of error. The petitioner alleged that there was a reasonable probability that, absent Palmieri's deficient performance, the outcome of his direct appeal would have been more favorable to him.

         In the fifth count, the petitioner claimed that he was deprived of his right to the effective assistance of counsel because prior habeas counsel, Frank Cannatelli, failed to raise or failed adequately to pursue the four claims that he previously raised in the present petition. The petitioner alleged that there was a reasonable probability that, absent Cannatelli's deficient performance, the outcome of his prior habeas action would have been more favorable to him.

         In the sixth count, the petitioner claimed that he was deprived of his right to the effective assistance of counsel because his prior habeas counsel, Hilary Carpenter, was deficient in a number of ways. Specifically, the petitioner argued that Carpenter failed to raise or failed adequately to pursue the five claims that he previously raised in the present petition. One aspect of his claim concerning Carpenter's representation was that she failed to pursue a claim of ineffective assistance arising from Dow's failure ‘‘to adequately cross-examine, impeach, or otherwise challenge the testimony of . . . Langston concerning the time she was dispatched to meet with the petitioner and her motivation to testify falsely against the petitioner . . . .'' The petitioner alleged that there was a reasonable probability that, absent Carpenter's deficient performance, the outcome of his prior habeas action would have been more favorable to him.

         The respondent, the Commissioner of Correction, denied the substantive allegations in the petition. By way of defenses, the respondent alleged that, to the extent that the petitioner was raising claims that could have been raised in his direct appeal, in prior habeas actions, or in prior appeals in habeas actions, he was procedurally defaulted from doing so because ‘‘[he] has deliberately bypassed the opportunity to contest said issues, '' and has not shown cause and prejudice as to why such claims were not raised previously. Additionally, the respondent alleged that, to the extent that the petitioner was attempting to relitigate issues that had been raised and decided in his direct appeal, his prior petitions, or in prior appeals in habeas actions, he was barred from doing so under the doctrine of res judicata. Finally, relying on the petitioner's history of filing habeas petitions, the respondent raised the defense of abuse of the writ. In the petitioner's reply to the return, he alleged that none of the defenses relied on by the respondent applied to his claims.

         During the course of three days in January, 2015, the court, Fuger, J., held a hearing concerning the petition. With respect to the claims set forth in the petition, the petitioner presented the testimony of nine witnesses. These included himself; Dow; Waddock; Palmieri; Cannatelli; Carpenter; Langston; Jason Minardi, a lieutenant with the New Haven Police Department who previously had been the officer in charge of its internal affairs division; and Roy Olson, a retired captain of the New Haven Police Department who supervised its internal affairs division for seven years. The court received several exhibits and, at the conclusion of the trial, both parties filed posttrial briefs.

         In its lengthy memorandum of decision filed April 24, 2015, the court addressed all of the claims raised in the petition. In parts I and II of this opinion, we discuss in greater detail those portions of the habeas court's decision that are relevant to the claims raised in the present appeal. At this juncture, it suffices to discuss generally the parameters of the court's decision. In counts one and two of the petition, the petitioner alleged violations of his right to due process resulting from the prosecutor's failure to disclose exculpatory evidence concerning Langston and Santana. Insofar as these claims related to Langston, the court rejected them on their merits. Insofar as these claims were related to Santana, the court deemed the claims to be abandoned.

         The court also rejected the claims raised in counts three, four, and five of the petition. The court, relying on the petitioner's history of filing habeas petitions, concluded that the respondent properly invoked the defense of res judicata and that it barred litigation of the claims of ineffective assistance on the part of Dow, Palmieri, and Cannatelli.

         Furthermore, the court rejected the claim raised in count six, in which the petitioner alleged ineffective assistance on the part of Carpenter for failure to pursue claims of ineffectiveness on the part of Dow, Palmieri, and Cannatelli. The court rejected each aspect of this claim on its merits.

         Finally, the court addressed the respondent's defense of abuse of the writ. In a comprehensive analysis of the issue, the court concluded that the petitioner had abused the writ. Particularly troubling in the court's view were the claims of impropriety directed at the prosecutor, concerning whom the court found ‘‘no evidence whatsoever showing any misconduct or impropriety.'' The court concluded that, although it believed that the petitioner had abused the writ, it declined to dismiss the petition in light of the fact that the petitioner's claim of ineffective assistance on the part of Carpenter had not previously been raised and adjudicated.

         Following the court's denial of the petition for a writ of habeas corpus, the petitioner filed a petition for certification to appeal. See General Statutes § 52-470. The petition encompassed the rulings which are the subject of the present appeal. The court denied the petition. This appeal followed. Additional facts will be set forth as necessary.

         Before we reach the merits of the petitioner's claims, we discuss his burden in demonstrating that he is entitled to relief. ‘‘Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . .

         ‘‘To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. . . .

         ‘‘In evaluating the merits of the underlying claims on which the petitioner relies in the present appeal, we observe that [when] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . . To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . . [A] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has ...


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