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Brewer v. Commissioner of Correction

Court of Appeals of Connecticut

April 30, 2019

JOHN BREWER
v.
COMMISSIONEROF CORRECTION

          Argued January 8

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Kwak, J., dismissed the petition in part; thereafter, the remaining count of the petition was tried to the court; judgment denying the petition; subsequently, the court denied the petition for certification to appeal, and the petitioner appealed to this court, which affirmed in part, reversed in part, and remanded the matter for further proceedings; thereafter, the court, Sferrazza, J., granted the petitioner's motion to consolidate; subsequently, the matter was tried to the court, Hon. John F. Mulcahy, Jr., judge trial referee; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Daniel Fernandes Lage, assigned counsel, for the appellant (petitioner).

          Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).

          Alvord, Sheldon and Eveleigh, Js. [*]

          OPINION

          SHELDON, J.

         Following the granting of his petition for certification to appeal, the petitioner, John Brewer, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus alleging ineffective assistance by his prior habeas counsel. On appeal, the petitioner claims that the habeas court erred in rejecting his claim that his prior habeas attorney rendered ineffective assistance by failing to allege that his criminal trial counsel rendered ineffective assistance by failing (1) to consult with a forensic pathologist to reconstruct the crime scene, and (2) to object to the admission into evidence of certain witness statements. We affirm the judgment of the habeas court.

         The petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a (a) and criminal possession of a firearm in violation of General Statutes (Rev. to 2001) § 53a-217, upon which he ultimately was sentenced to a total effective sentence of sixty years incarceration. His conviction was later affirmed by our Supreme Court on direct appeal. See State v. Brewer, 283 Conn. 352, 927 A.2d 825 (2007).

         The Supreme Court set forth the following facts that reasonably could have been found by the jury. ‘‘In the early morning hours of December 29, 2001, the victim, Damian Ellis, was with his friends, Damian Wade and Arthur Hall, at the Athenian Diner in Waterbury (diner). The [petitioner] also was present at the diner with a group of friends that included Jason Greene, his brother, Michael Greene, and Gregory Hunter. The victim's group had a verbal altercation with the [petitioner] and Hunter that prompted the restaurant manager to eject both groups of menfrom the diner. The two groups engaged in some additional verbal sparring and then separated once outside the diner.

         ‘‘The [petitioner's] group entered a black Lexus sport utility vehicle, driven by Hunter, and was exiting the diner parking lot when Hunter stopped the car in front of the victim, who was standing outside the entrance to the diner. Either Hunter or the victim reinitiated the dispute, and Hunter subsequently exited the vehicle and approached the victim's group with a knife in his hand. The victim backed away from Hunter, down a ramp on the side of the diner, as the [petitioner] exited the vehicle and moved to the corner of the building near the ramp. The [petitioner] walked up to the victim and shot him twice with a nine millimeter Cobray M-11 semiautomatic pistol. One shot entered the victim's brain and likely killed him within five seconds.

         ‘‘Following the shooting, the [petitioner] got back into the Lexus, which was now driven by Jason Greene, and the two men left the scene. The [petitioner] threw the gun out of the car's window and shortly thereafter exited the vehicle. Jason Greene later directed the police to the area in which the [petitioner] had discarded the murder weapon.'' Id., 353-54.

         Following his conviction, the petitioner filed his first habeas corpus petition in 2006, in which he was represented by Attorney Walter Bansley III, alleging ineffective assistance of his trial counsel, Attorney John Cizik. The habeas court, Fuger, J., denied his petition and his subsequent petition for certification to appeal. This court dismissed his appeal from the judgment of the habeas court. Brewer v. Commissioner of Correction, 133 Conn.App. 904, 34 A.3d 480, cert. denied, 304 Conn. 910, 39 A.3d 1121 (2012).

         The petitioner filed a second habeas corpus action in April, 2010. His amended petition in that action, filed on June 5, 2013, contained four counts, three of which were dismissed by the second habeas court, Kwak, J. The second habeas court denied the petition as to the one remaining count claiming ineffective assistance of appellate counsel on direct appeal. The petitioner appealed from the denial of the petition for certification to appeal, and this court dismissed in part and reversed in part the judgment of the second habeas court. Brewer v. Commissioner of Correction, 162 Conn.App. 8, 22- 23, 130 A.3d 882 (2015). This court dismissed the appeal as to the petitioner's claims of ineffective assistance of trial counsel and prosecutorial impropriety, but concluded that the dismissal of his claim of ineffective assistance of prior habeas counsel was improper and, therefore, remanded that claim to the habeas court for further proceedings in accordance with law. Id. The petitioner did not challenge the denial of his claim of ineffective assistance of appellate counsel.

         While the appeal from the second habeas court's judgment was pending, the petitioner filed a third habeas corpus petition alleging that his second habeas counsel, Attorney Vicki Hutchinson, rendered ineffective assistance. The third habeas corpus petition and the present matter, on remand from this court, were ordered consolidated by the court, Sferrazza, J., upon motion of the petitioner's current habeas counsel.

         On September 5, 2017, following a trial, the habeas court, Hon. John F. Mulcahy, Jr., judge trial referee, filed a memorandum of decision rejecting the petitioner's claims that his first habeas counsel, Bansley, was ineffective in failing to claim in his first habeas action, that his criminal trial counsel, Cizik, rendered ineffective assistance by failing to consult with a forensic pathologist to reconstruct the crime scene, and failing to object to the admission of prior inconsistent statements by Jason ...


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