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 ...