Pierce v. Commissioner of Correction ( 2015 )

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JEFFREY PIERCE v. COMMISSIONER
OF CORRECTION
(AC 36403)
Lavine, Keller and Flynn, Js.
Argued January 12—officially released June 30, 2015
(Appeal from Superior Court, judicial district of
Tolland, Young, J.)
Cameron R. Dorman, assigned counsel, for the appel-
lant (petitioner).
Rita M. Shair, senior assistant state’s attorney, with
whom were Brian Preleski, state’s attorney, and, on the
brief, Angela R. Macchiarulo, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
LAVINE, J. ‘‘[A] petitioner may bring successive peti-
tions [for a writ of habeas corpus] on the same legal
grounds if the petitions seek different relief. . . . But
where successive petitions are premised on the same
legal grounds and seek the same relief, the second peti-
tion will not survive a motion to dismiss unless the
petition is supported by allegations and facts not rea-
sonably available to the petitioner at the time of the
original petition.’’ (Citation omitted.) McClendon v.
Commissioner of Correction, 93 Conn. App. 228, 231,
888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789(2006). The petition for a writ of habeas corpus at issue
in the present appeal, the fourth filed by the petitioner,
Jeffrey Pierce, is predicated on legal grounds and facts
previously alleged, and seeks the same relief he sought
in his third petition for a writ of habeas corpus. We,
therefore, dismiss the appeal.
The petitioner appeals from the judgment of the
habeas court, Young, J., dismissing his fourth petition
for a writ of habeas corpus. He claims that the habeas
court (1) abused its discretion by failing to grant certifi-
cation to appeal from the judgment of dismissal, and (2)
improperly dismissed his fourth petition by concluding
that (a) count one is barred by procedural default and
(b) count two is barred by the doctrine of res judicata.
We disagree.1
I
UNDERLYING FACTS AND PROCEDURAL HISTORY
The present appeal is the most recent in a lengthy
series of appeals in which the petitioner has attempted
to reverse the judgment of the trial court, Gaffney, J.,
which requires him upon his release from confinement
to register as a sex offender pursuant to General Stat-
utes (Rev. to 1999) § 54-254 (a).2 The crimes of which
the petitioner was convicted occurred on August 11,
1998. State v. Pierce, 269 Conn. 442, 445, 849 A.2d 375(2004). The victim was in her minivan at a Newington
supermarket when the petitioner compelled her at kni-
fepoint to drive to a wooded area in East Hartford. Id.The petitioner ordered the victim to follow him into
the woods, but she refused, telling him that she did not
want to be harmed or raped. Id. The petitioner told the
victim that he did not intend to harm her, but that he
did not want her to see where he went so as to aid in
his escape. Id. The victim offered to look away as the
petitioner left, and he agreed. Id. When the petitioner
was gone, the victim drove to the Newington police
station and reported the incident. Id. A composite draw-
ing of the suspect was made from the victim’s descrip-
tion of the perpetrator. Id. Two police officers
recognized the petitioner from the drawing and went
to the motel where they knew he was living. Id., 445–46.
During the police interview, the petitioner confessed
to facts similar to those reported by the victim. Id., 446.
The petitioner was charged with various crimes. A
jury found him guilty of kidnapping in the second degree
in violation of General Statutes § 53a-94 and burglary
in the first degree in violation of General Statutes § 53a-
101. See State v. Pierce, 69 Conn. App. 516, 518, 794
A.2d 1123 (2002), rev’d in part, 269 Conn. 442, 849 A.2d
375 (2004) (reversed and remanded to Appellate Court
with direction to reinstate sexual offender registry
requirement imposed by trial court). Thereafter, the
state ‘‘invoked § 54-254 (a) and filed a motion asking
the trial court to find that the [petitioner’s] crimes had
been committed for a sexual purpose.’’ State v. Pierce,
supra, 269 Conn. 446.
At sentencing, Judge Gaffney informed the parties
that he had ordered a presentence investigation report
(1999 report), which he had reviewed.3 State v. Pierce,
129 Conn. App. 516, 519, 21 A.3d 877, cert. denied,
302 Conn. 915, 27 A.3d 368 (2011). The court inquired
whether the parties had reviewed the 1999 report. Id.The petitioner’s trial counsel stated that ‘‘he had
reviewed it and gone over it ‘briefly’ with the [peti-
tioner]. The court then asked the [petitioner] if he
needed more time to go over 1999 the report, and the
[petitioner] nodded his head. The court then called a
recess to give the [petitioner] and his attorney time to
go over the 1999 report in more detail. . . . When the
sentencing hearing resumed approximately fifty
minutes later, defense counsel stated on the record that
he and the [petitioner] . . . were ready to proceed.’’
(Citation omitted.) Id., 520.
The petitioner opposed the state’s § 54-254 (a)
request, arguing ‘‘that the evidence presented during
the trial was insufficient to support [the] requisite find-
ing [that he committed the crime for a sexual purpose].
He conceded nevertheless that the trial court could only
make such a finding based on the [petitioner’s] history
[of sex-related offenses] as . . . detailed in the [1999
report].’’ (Internal quotation marks omitted.) State v.
Pierce, supra, 269 Conn. 446–47. The court ‘‘remarked
upon the evidence presented during the trial as well as
other information that had come before it during the
sentencing hearing and found that the [petitioner] was
a ‘sexual devia[nt]’ with a long and alarming history
of ‘antisocial behavior.’ ’’ Id., 447. On the basis of the
evidence presented at trial, the court found that the
petitioner had abducted the victim for sexual purposes
and ordered him to register as a sex offender pursuant
to § 54-254 (a).4 Id. The court sentenced the petitioner
to a total effective term of thirty years of incarceration,
execution suspended after twenty-five years, with five
years of probation. State v. Pierce, supra, 129 Conn.
App. 521.
The petitioner filed an appeal from the judgment of
conviction. This court reversed the judgment insofar
as it required the petitioner to register as a sex offender.
Our Supreme Court, however, reinstated the judgment
with respect to sex offender registration. See State v.
Pierce, supra, 269 Conn. 444. Before the petitioner’s
direct appeal was resolved by our Supreme Court, he
had filed a petition for a writ of habeas corpus (first
petition). In his amended first petition, the petitioner
alleged that his trial counsel had rendered ineffective
assistance by failing (1) to raise evidentiary issues with
respect to his motion to suppress, (2) to subpoena
police records, (3) to investigate adequately and (4) to
seek timely sentence review. Pierce v. Warden, Superior
Court, judicial district of Tolland, Docket No. CV-02-
0003666 (September 18, 2003) (White, J.). The petitioner
prayed that ‘‘a writ of habeas corpus be issued, such
that justice may be done.’’ Id.Prior to the commencement of evidence on the first
petition, the petitioner sought to have his first habeas
counsel removed for failing to allege that his psychiatric
records were improperly included in the 1999 report. Id.The first habeas court, White, J., denied the petitioner’s
claim of ineffective trial counsel and dismissed the
claim related to the petitioner’s psychiatric records as
outside the scope of the first petition. Id. Judge White,
however, restored the petitioner’s right to sentence
review. The petitioner did not file an appeal from the
judgment denying his first petition.
Pursuant to the relief granted by Judge White, the
petitioner filed an application for sentence review; see
General Statutes § 51-195; claiming that the sentence
imposed by Judge Gaffney was excessive in light of the
petitioner’s age and the nature of the crimes of which he
was convicted. State v. Pierce, Superior Court, judicial
district of New Britain, Docket No. CR-98-177629 (June
29, 2005) (Holden, Miano and Iannotti, Js.). The sen-
tence review panel stated that having reviewed ‘‘the
record before us and having considered the arguments
of counsel and comments by the petitioner, and given
the gravity of the nature of the offenses and character
and history and age of the petitioner, we find the sen-
tence is neither inappropriate [n]or disproportionate.’’5
(Emphasis added.) Id. The petitioner did not file an
appeal from the judgment of the sentence review panel.
In October, 2003, the petitioner filed a second petition
for a writ of habeas corpus (second petition) in which
he alleged prosecutorial impropriety and the ineffective
assistance of trial counsel, appellate counsel, and first
habeas counsel. Pierce v. Commissioner of Correction,
Superior Court, judicial district of Tolland, Docket No.
CV-03-0004220 (April 11, 2005) (Fuger, J.). The peti-
tioner requested that ‘‘the case be restored to the trial
docket within sixty days of decision.’’
The second habeas court, Fuger, J., granted the
motion filed by the respondent, the Commissioner of
Correction, to dismiss the count alleging the ineffective
assistance of trial counsel pursuant to the doctrine of
res judicata. Id. Following a hearing on the merits of the
remaining claims, Judge Fuger found that the petitioner
was not denied the effective assistance of either appel-
late or first habeas counsel and that the claim of prose-
cutorial impropriety was procedurally defaulted. Id.
Judge Fuger denied the second petition and denied
certification to appeal. This court dismissed the peti-
tioner’s appeal from the judgment dismissing his second
petition. See Pierce v. Commissioner of Correction,
100 Conn. App. 1, 13, 916 A.2d 864, cert. denied, 282
Conn. 908, 920 A.2d 1017 (2007).
The petitioner filed a third petition for a writ of
habeas corpus (third petition) in August, 2005. In his
third petition, the petitioner alleged a denial of his rights
to due process and a jury trial, the ineffective assistance
of trial counsel, of appellate counsel, of first habeas
counsel, and of second habeas counsel. Pierce v. War-
den, Superior Court, judicial district of Tolland, Docket
No. CV-05-4000609-S (November 24, 2010) (Nazzaro,
J.). The petitioner made five requests for relief, includ-
ing in paragraph 4 that the third habeas court issue a
writ of habeas corpus ‘‘directing the respondent to
release the petitioner from confinement unless the sen-
tencing court, in State v. Pierce, [supra, Superior Court,
Docket No.] CR-98-0177629, vacates the order requiring
the petitioner to register as a sex offender, under . . .
§ 54-254, within [ninety] days or some other certain and
reasonable period of time.’’
In response to the third petition, the respondent
alleged that the petitioner was procedurally defaulted
from alleging a violation of his rights to due process
and a jury trial. Id. The third habeas court, Nazzaro,
J., found that the petitioner failed to demonstrate cause
and prejudice sufficient to overcome the affirmative
defense of procedural default as to the petitioner’s due
process and jury trial claims. Id. Moreover, Judge Naz-
zaro found that the petitioner’s due process claims were
without merit6 and, therefore, that no prior counsel
could have failed to render effective assistance, as those
claims were derivative of the due process claim.7 Judge
Nazzaro denied the third petition and certification to
appeal from that denial. The petitioner filed an appeal
nonetheless, which was dismissed by this court. See
Pierce v. Commissioner of Correction, 134 Conn. App.
904, 38 A.3d 1253, cert. denied, 305 Conn. 904, 44 A.3d
180 (2012).
In addition to having filed three prior petitions for a
writ of habeas corpus, the petitioner filed a motion to
correct an illegal sentence, in which he claimed that
Judge Gaffney used statutorily protected information
in ordering him to register as a sex offender. See State v.
Pierce, Superior Court, judicial district of New Britain,
Docket No. CR-98-0177629 (November 25, 2009)
(Espinosa, J.). Specifically, the petitioner claimed that
the 1999 report contained confidential information col-
lected by the Office of Adult Probation for which the
petitioner had not waived his rights with respect to the
1999 report. Id. The state filed a motion to dismiss the
motion to correct on the ground that the petitioner’s
allegations, even if true, did not establish that the sen-
tence imposed was illegal. Id.The trial court hearing the motion to correct,
Espinosa, J., found that in preparing the 1999 report,
Maureen Klinkert, a probation officer, used information
from a presentence investigation she had prepared of
the petitioner in 1996 (1996 report). See footnote 3 of
this opinion. The court determined that the petitioner
was not claiming that Judge Gaffney had imposed an
illegal sentence, but that the sentence had been imposed
in an illegal manner in that privileged psychiatric infor-
mation included in the 1996 report was included in the
1999 report. Id. The court concluded, therefore, that
the petitioner’s claim regarding the use of privileged
psychiatric information did not fall within the definition
of a sentence imposed in an illegal manner. See State
v. Olson, 115 Conn. App. 806, 811, 973 A.2d 1284 (2009).
Moreover, the court found that the petitioner, who had
not objected to the information at the time of sentenc-
ing, had waited ten years to object to the inclusion of his
psychiatric records in the 1999 report, and concluded,
therefore, that he had waived his right to do so by
means of a motion to correct an illegal sentence. The
court, therefore, granted the state’s motion to dismiss
the petition to correct an illegal sentence and dismissed
the petition to correct illegal sentence for lack of juris-
diction.8 This court affirmed the judgment of dismissal
in State v. Pierce, supra, 129 Conn. App. 526.
In April, 2011, the petitioner filed a fourth petition
for a writ of habeas corpus (fourth petition), which is
the subject of the present appeal. In his fourth petition,
the petitioner alleged that his rights to due process
under the state and federal constitutions had been vio-
lated because his sentence was imposed in an illegal
manner in that the 1999 report improperly incorporated
his psychiatric records without his written consent (due
process claims). The petitioner also alleged that he was
denied the effective assistance of trial counsel, who
failed to object to the inclusion of his psychiatric
records in the 1999 report and to assert the petitioner’s
due process rights at the time of sentencing (ineffective
assistance claim). The petitioner alleged seven separate
paragraphs regarding relief, including paragraph 6,
which requested that the fourth habeas court issue a
writ of habeas corpus ‘‘directing the [r]espondent to
release the [p]etitioner from confinement unless the
[s]entencing [c]ourt, in State v. Pierce, [supra, Superior
Court, Docket No.] CR-98-0177629 [(Holden, Miano and
Iannotti, Js.)], vacates the order requiring the [p]eti-
tioner to register as a sex offender, under . . . § 54-
254, within [ninety] days or some other certain and
reasonable period of time.’’
On August 30, 2013, the respondent filed a motion to
dismiss the fourth petition on the ground that the due
process claim was barred by the doctrine of res judicata,
or in the alternative, that the claim was procedurally
defaulted. The respondent cited the sentence review
proceeding as the basis of its res judicata claim. With
respect to the ineffective assistance claim, the respon-
dent alleged that the claim constitutes a successive
petition and an abuse of the writ.9 In response to the
respondent’s procedural default claim, the petitioner
alleged cause and prejudice predicated on the ineffec-
tive assistance of trial counsel.10
On September 16, 2013, the petitioner filed a second
amended fourth petition in which he alleged that his
rights to due process under both the federal and state
constitutions were violated because the 1999 report
improperly incorporated his psychiatric treatment
records without his express written consent in violation
of General Statutes §§ 52-146d and 52-146e. He also
alleged that he had raised this claim by way of a motion
to correct an illegal sentence, but that Judge Espinosa
dismissed the motion to correct for lack of subject
matter jurisdiction without reaching the merits of his
claim.
Following a hearing, Judge Young issued a detailed
memorandum of decision on the respondent’s motion
to dismiss the fourth petition, including an extensive
retelling of the postjudgment procedural history related
to the underlying conviction. He also included a com-
prehensive statement of the law regarding res judicata
and procedural default. The court found that the peti-
tioner previously had challenged his sentence by way
of a motion to correct an illegal sentence and unsuccess-
fully appealed from the dismissal of that motion. More-
over, the essence of the petitioner’s due process claim
was his assertion that his sentence is illegal because
Judge Gaffney relied on the psychiatric treatment
records that were incorporated into the 1999 report.
Judge Young found that claim is the same one the peti-
tioner raised in his motion to correct an illegal sentence.
The court concluded, however, that because Judge
Espinosa dismissed the motion to correct an illegal
sentence and did not reach the merits of the petitioner’s
claim, the petitioner’s due process claim was not barred
by res judicata. The ‘‘doctrine of res judicata, or claim
preclusion, [provides that] a former judgment on a
claim, if rendered on the merits, is an absolute bar to
a subsequent action [between the same parties] on the
same claim.’’ (Emphasis added; internal quotation
marks omitted.) Bridges v. Commissioner of Correc-
tion, 97 Conn. App. 119, 122, 905 A.2d 103, cert. denied,
280 Conn. 921, 908 A.2d 543 (2006).
With respect to the sentence review proceeding,
Judge Young determined that the petitioner had filed a
petition for sentence review, claiming that his sentence
was too long, not that it was illegal or illegally imposed.
The court noted that the decision of the sentence review
panel indicates that the petitioner expressed to the
panel his concern that his psychiatric treatment history
was included in the 1999 report. The court, however,
concluded that the petitioner’s expression of concern
and the panel’s decision cannot reasonably be con-
strued as the petitioner’s having previously raised and
fully litigated the due process claim alleged in the fourth
petition. Thus, the petitioner’s due process claim was
not barred by the doctrine of res judicata.
The court, however, agreed with the respondent that
the petitioner’s due process claim was procedurally
defaulted, noting that a sentence that is illegal or was
imposed in an illegal manner is the type of claim that
must first be raised in the sentencing court or on direct
appeal. See Practice Book § 43-22; Cobham v. Commis-
sioner of Correction, 258 Conn. 30, 39, 779 A.2d 80(2001) (to challenge illegal sentence, defendant must
appeal sentence directly or file motion to correct
sentence).
As to the petitioner’s claim of cause and prejudice,
the court concluded that the petitioner could not over-
come his procedural default due to the ineffective assis-
tance of his trial counsel. The court determined that
the viability of the petitioner’s due process claim was
linked to the viability of his claim of ineffective assis-
tance. The petitioner alleged that his trial counsel’s
assistance was ineffective because at sentencing coun-
sel did not object to the 1999 report. Moreover, the
court found that the factual basis of his ineffective
assistance claim was readily available at the time the
petitioner filed each of his three prior petitions for a
writ of habeas corpus and that none of the factual
allegations in the fourth petition was newly discovered
evidence. The court found that the petitioner previously
could have raised and litigated the ineffective assistance
of counsel claim premised on his due process claim.
See McCue v. Birmingham, 88 Conn. App. 630, 635–36,
870 A.2d 1126 (res judicata/claim preclusion bars any
claim that could have been raised in prior proceeding),
cert. denied, 274 Conn. 905, 876 A.2d 14 (2005). The
court, therefore, concluded that the petitioner was
barred on the basis of res judicata from again attacking
the representation of his trial counsel. The court also
concluded that the claim of ineffective assistance was
successive and an abuse of the writ of habeas corpus.
The court therefore dismissed the fourth petition.
Judge Young also denied the petitioner’s request for
certification to appeal. The petitioner appealed, claim-
ing that the fourth habeas court (1) abused its discretion
by failing to grant certification to appeal, and (2)
improperly dismissed his fourth petition for a writ of
habeas corpus.
II
DENIAL OF CERTIFICATION TO APPEAL
On appeal the petitioner claims that the habeas court
abused its discretion by failing to grant certification to
appeal. We disagree and, therefore, dismiss the appeal.
We begin with the well known standard of review.
‘‘Faced with the habeas court’s denial of certification
to appeal, a petitioner’s first burden is to demonstrate
that the habeas court’s ruling constituted an abuse of
discretion. Abuse of discretion is the proper standard
because that is the standard to which we have held
other litigants whose rights to appeal the legislature
has conditioned upon the obtaining of the trial court’s
permission. . . . If the petitioner succeeds in sur-
mounting that hurdle, the petitioner must then demon-
strate that the judgment of the habeas court should be
reversed on its merits. . . .
‘‘To determine whether the court abused its discre-
tion, the petitioner must demonstrate that the issues
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 there has
been an abuse of discretion, every reasonable presump-
tion should be given in favor of the correctness of the
court’s ruling . . . [and] [r]eversal is required only
where an abuse of discretion is manifest or where injus-
tice appears to have been done.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Pierce v. Commissioner of Correction, supra, 100 Conn.
App. 9–10.
‘‘In a habeas appeal, although this court cannot dis-
turb the underlying facts found by the habeas court
unless they are clearly erroneous, our review of whether
the facts as found by the habeas court constituted a
violation of the petitioner’s constitutional right to effec-
tive assistance of counsel is plenary.’’ White v. Commis-
sioner of Correction, 58 Conn. App. 169, 170, 752 A.2d
1159 (2000).
The petitioner claims that Judge Young improperly
determined that (1) his due process claim was inextrica-
bly linked to the viability of his ineffective assistance
claim, and (2) his ineffective assistance claim was
barred by res judicata. We disagree.
A
The petitioner claims that the court abused its discre-
tion when it denied certification to appeal by improperly
determining that he had failed to demonstrate cause
and prejudice sufficient to overcome the respondent’s
affirmative defense of procedural default with respect
to his due process claim. We agree with the reasoning
of the fourth habeas court.
An appellate court’s review of a determination of the
application of procedural default involves a question
of law over which our review is plenary. Johnson v.
Commissioner of Correction, 285 Conn. 556, 566, 941
A.2d 248 (2008).
Our Supreme Court has stated that ‘‘[i]n discussing
the principles that govern review of a respondent’s affir-
mative defense that a habeas claim is procedurally
defaulted, we have recognized that, as a general rule,
[t]he appropriate standard for reviewability of habeas
claims that were not properly raised at trial . . . or on
direct appeal . . . because of a procedural default is
the cause and prejudice standard. Under this standard,
the petitioner must demonstrate good cause for his
failure to raise a claim at trial or on direct appeal and
actual prejudice resulting from the impropriety claimed
in the habeas petition.’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) Id., 567.
‘‘[T]he existence of cause for a procedural default
must ordinarily turn on whether the [petitioner] can
show that some objective factor external to the defense
impeded counsel’s efforts to comply with the [s]tate’s
procedural rule. . . . [For example] a showing that the
factual or legal basis for a claim was not reasonably
available to counsel . . . or . . . some interference by
officials . . . would constitute cause under this stan-
dard. . . . A court will not reach the merits of the
habeas claim when the petitioner fails to make the
required showing.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 568.
In the present case, Judge Young determined that the
petitioner’s due process claim was intertwined with his
ineffective assistance claim and could have been raised
in the first petition. In his brief on appeal, the petitioner
recounts facts that occurred during trial: he refused to
sign a waiver for his psychiatric records, his trial coun-
sel knew that the 1999 report contained the petitioner’s
psychiatric records and that the petitioner objected to
the inclusion of the records in the 1999 report, trial
counsel refused to raise the petitioner’s objection, and
trial counsel believed that there was no legal basis to
exclude the petitioner’s psychiatric records in the 1999
report. The petitioner further argues that trial counsel’s
belief that there was no legal basis to object to the 1999
report constituted ineffective assistance because his
records are protected by §§ 52-146d and 52-146e. He
also argues that had trial counsel made Judge Gaffney
aware of the ‘‘illegally obtained information,’’ a new
sentencing report could have been ordered.
We conclude that the petitioner’s argument is without
merit. The question before Judge Young was not the
legal question of whether the petitioner’s psychiatric
records were improperly included in the 1999 report,
but whether the factual basis of what transpired at trial
was known to the petitioner at the time he filed his
direct appeal or his petition for sentence review. The
petitioner was present at trial. He knew that he had not
signed the waiver, and he knew that his trial counsel
did not object to the 1999 report. The facts were within
the petitioner’s personal knowledge, and they were not
withheld from him by some external force. The petition-
er’s due process claim, therefore, could have been
raised on direct appeal or he could have alleged the
ineffective assistance of trial counsel predicated on that
legal claim in his first petition. The court, therefore,
properly determined that the petitioner failed to over-
come the respondent’s affirmative defense of proce-
dural default.
B
The petitioner also claims that the habeas court
abused its discretion wen it denied certification to
appeal by concluding that his ineffective assistance
claim was barred by the doctrine of res judicata. We
conclude that the habeas court did not abuse its discre-
tion by denying certification to appeal.
‘‘The doctrine of res judicata holds that an existing
final judgment rendered upon the merits without fraud
or collusion, by a court of competent jurisdiction, is
conclusive of causes of action and of facts or issues
thereby litigated as to the parties and their privies in
all other actions in the same or any other judicial tribu-
nal of concurrent jurisdiction. . . . If the same cause
of action is again sued on, the judgment is a bar with
respect to any claims relating to the cause of action
which were actually made or which might have been
made.’’ (Citations omitted; emphasis added; footnote
omitted.) Wade’s Dairy, Inc. v. Fairfield, 181 Conn.
556, 559–60, 436 A.2d 24 (1980). ‘‘A cause of action is
that single group of facts that is claimed to have brought
about an unlawful injury to the plaintiff and that entitles
the plaintiff to relief.’’ McCue v. Birmingham, supra,
88 Conn. App. 636.
‘‘The doctrine [of res judicata] . . . applies to crimi-
nal as well as civil proceedings and to state habeas
corpus proceedings. . . . However, [u]nique policy
considerations must be taken into account in applying
the doctrine of res judicata to a constitutional claim
raised by a habeas petitioner. . . . Specifically, in the
habeas context, in the interest of ensuring that no one
is deprived of liberty in violation of his or her constitu-
tional rights . . . the application of the doctrine of res
judicata . . . [is limited] to claims that actually have
been raised and litigated in an earlier proceeding.’’
(Internal quotation marks omitted.) Diaz v. Commis-
sioner of Correction, 125 Conn. App. 57, 64–65, 6 A.3d
213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150(2011).
There is no dispute that the petitioner alleged the
ineffective assistance of trial counsel in each of his
three prior petitions for a writ of habeas corpus. There
also is no dispute that the petitioner was aware of the
content of the 1999 report at the time he was sen-
tenced.11 In paragraph 37 of his amended fourth petition,
the petitioner alleged that his claim that the 1999 report
improperly incorporated his psychiatric treatment
records was raised in his motion to correct illegal sen-
tence. The petitioner, however, claims that there were
new facts before Judge Young, namely, the trial tran-
script from the trial on the first habeas petition. The
petitioner claims that the transcript demonstrates that
trial counsel knew of the petitioner’s refusal to sign
the waiver to release his psychiatric records and that
counsel refused to object to the 1999 report at sentenc-
ing. Regardless of what the transcript of the first habeas
trial demonstrates, its contents cannot constitute newly
discovered facts. The petitioner was there and had first-
hand knowledge of what transpired.12 Despite this prior
knowledge of his trial counsel’s alleged deficiencies,
the petitioner did not allege the ineffective assistance
of trial counsel on the due process grounds alleged in
the fourth petition.13
Practice Book § 23-29 provides in relevant part that
‘‘[t]he judicial authority may, at any time, upon its own
motion or upon motion of the respondent, dismiss the
petition, or any count thereof, if it determines that . . .
(3) the petition presents the same ground as a prior
petition previously denied and fails to state new facts
or proffer new evidence not reasonably available at the
time of the prior petition . . . (5) any other legally
sufficient ground for dismissal of the petition exists.’’
In this case, the petitioner’s ineffective assistance
claim is predicated on counsel’s failure to object to the
inclusion of his psychiatric records in the 1999 report,
which is the basis of his due process claim. As discussed
in part II A of this opinion, the petitioner knew of coun-
sel’s alleged deficiency at the time he was sentenced.
Judge Young, therefore, properly concluded that the
fourth petition was not predicated on newly discov-
ered evidence.
Our conclusion that the fourth petition is not
grounded in newly discovered evidence, does not end
our analysis. As we stated at the beginning, ‘‘a petitioner
may bring successive petitions on the same legal
grounds if the petitions seek different relief.’’ McClen-
don v. Commissioner of Correction, supra, 93 Conn.
App. 231. We therefore must consider whether the peti-
tioner is seeking a form of relief that he has not pursued
in one of his prior petitions.
‘‘Identical grounds may be proven by different factual
allegations, supported by different legal arguments or
articulated in different language. . . . They raise, how-
ever, the same generic legal basis for the same relief.
Put differently, two grounds are not identical if they
seek different relief. . . . Simply put, an applicant
must show that his application does, indeed, involve a
different legal ground, not merely a verbal reformation
of the same ground.’’ (Citations omitted; internal quota-
tion marks omitted.) Carter v. Commissioner of Correc-
tion, 133 Conn. App. 387, 393–94, 35 A.3d 1088, cert.
denied, 307 Conn. 901, 53 A.3d 217 (2012). The next
question is whether the relief the petitioner sought in
his fourth petition is different from that which he sought
in a prior petition. We conclude that there is no dif-
ference.
The third petition alleged in five paragraphs the relief
he was seeking. The fourth petition alleged in seven
paragraphs the relief he was seeking. ‘‘[The] purpose
of pleadings is to frame, present, define, and narrow
the issues and to form the foundation of, and to limit,
the proof to be submitted on the trial . . . . The con-
struction of pleadings is a question of law over which
our review is plenary.’’ (Citation omitted; internal quota-
tion marks omitted.) Perez v. Cumba, 138 Conn. App.
351, 367, 51 A.3d 1156, cert. denied, 307 Conn. 935, 56
A.3d 712 (2012). On the basis of our plenary review of
the relief sought in the petitioner’s third and fourth
petitions, we conclude that the essence of the relief
sought is the petitioner’s desire to be relieved of the
sex offender classification and registration require-
ment. Moreover, in addition to the otherwise similar
allegations of relief sought, paragraph 4 of the third
petition’s prayer for relief is identical to paragraph 6
of the fourth petition’s prayer for relief.14 The petitioner,
therefore, has filed successive petitions for a writ of
habeas corpus grounded in the ineffective assistance
of counsel for which he sought to have his classification
as a sex offender vacated.
On the basis of our review of the record and the
fourth habeas court’s memorandum of decision, we
conclude that the court did not abuse its discretion in
denying the petitioner certification to appeal. The
record demonstrates that the allegations against the
petitioner’s trial counsel in the fourth petition are suc-
cessive and constitute an abuse of the writ, as deter-
mined by the fourth habeas court. See Practice Book
§ 23-29 (a).
The appeal is dismissed.
In this opinion KELLER, J., concurred.
1
Because we conclude that the fourth habeas court did not abuse its
discretion by denying the petitioner certification to appeal, we need not
address the petitioner’s second claim.
2
General Statutes (Rev. to 1999) § 54-254 (a) provides in relevant part:
‘‘Any person who has been convicted . . . in this state on or after October
1, 1998, of any felony that the court finds was committed for sexual purposes,
may be required by the court upon release into the community to register
his name, identifying factors, criminal history record and residence address
with the Commissioner of Public Safety . . . .’’
3
The 1999 report was prepared by Maureen Klinkert, a probation officer.
To facilitate her preparation of the 1999 report, Klinkert had asked the
petitioner to sign a consent form permitting her to obtain his psychiatric
treatment records. The petitioner refused. The petitioner, however, had
signed a consent form permitting Klinkert to obtain his psychiatric treatment
records when she was preparing a 1996 presentence investigation report
(1996 report) in an unrelated matter. Klinkert used the information regarding
the petitioner’s psychiatric treatment in the 1996 report when she prepared
the 1999 report. The petitioner’s psychiatric treatment records contained a
prognosis that he was at ‘‘high risk of committing sexual and aggressive
offenses, that he had been sexually abusing children since he was nine years
old, that he had been diagnosed as a developing pedophile and sexual sadist
and that he had borderline antisocial personality traits.’’ State v. Pierce, 129
Conn. App. 516, 519, 21 A.3d 877, cert. denied, 302 Conn. 915, 27 A.3d
368 (2011).
4
Judge Gaffney concluded, ‘‘on the basis of the evidence presented at
trial, that the [petitioner’s] purpose in his actions with regard to . . . kidnap-
ping in the second degree . . . [was] to sexually assault the victim . . .
when he forced her at knifepoint to drive to a secluded area . . . off a
main road and onto a dirt road, which led to apparently nowhere. . . . And
[the victim], as I recall, was directed to bring the car to a stop and ordered
out of the car, still at knifepoint, and to accompany the [petitioner] to a
wooded area. . . . [T]he [petitioner’s] claim that . . . in . . . directing her
into the wooded area . . . he merely was attempting to make easier his
escape and the victim’s detection in what direction he was traveling . . .
is entirely implausible. It’s the court’s finding that . . . the kidnapping in
the second degree was committed for sexual purposes, pursuant to § 54-
254.’’ (Emphasis added; internal quotation marks omitted.) State v. Pierce,
supra, 269 Conn. 447 n.4.
A reviewing court ‘‘may not retry the case or pass on the credibility of
witnesses. . . . [A reviewing court] must defer to the [finder] of fact’s
assessment of the credibility of the witnesses that is made on the basis of
its firsthand observation of their conduct, demeanor, and attitude. . . .
Credibility determinations are the exclusive province of the . . . fact finder,
which we refuse to disturb.’’ (Citation omitted; internal quotation marks
omitted.) State v. Gene C., 140 Conn. App. 241, 246–47, 57 A.3d 885, cert.
denied, 308 Conn. 928, 64 A.3d 120 (2013).
5
During the sentence review hearing, the petitioner ‘‘addressed the panel
and expressed concern for what he believes was the improper use of confi-
dential information obtained through a release [he] executed . . . .’’
(Emphasis added.) State v. Pierce, supra, Superior Court, Docket No. CR-
98-177629 (Holden, Miano and Iannotti, Js.). The sentence review panel
found that ‘‘[t]he gravamen of the petitioner’s claim is that the trial court’s
reliance on his psychological and social history and not the nature of the
offenses for which he was convicted was inappropriate and as a result
the sentence imposed should be modified. It is a fundamental sentencing
principle that a sentencing judge may appropriately conduct an inquiry broad
in scope and largely unlimited either as to the kind of information he [or
she] may consider or the source from which it may come. United States v.
Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972).’’ State v.
Pierce, supra, Superior Court, Docket No. CR-98-177629 (Holden, Miano
and Iannotti, Js.).
6
Judge Nazzaro quoted our Supreme Court, which has stated that ‘‘the
issue of whether the imposition of registry requirements pursuant to § 54-
254 (a) is a sentence enhancement has been resolved by this court in State
v. Waterman, 264 Conn. 484, 492–93, 498, 825 A.2d 63 (2003), wherein we
held that the registration requirement of the statutory scheme known as
Megan’s Law; General Statutes § 54-250 et seq.; is a separate regulatory
incident of the criminal judgment of conviction and therefore the trial court
retained jurisdiction, even after the judgment was rendered, with respect
to making the finding necessary to trigger the registration requirement.
. . . [T]he registration requirement is not punitive in nature, but, rather, is
ministerial, and that making the factual finding and informing the [petitioner]
of the registration requirement did not necessitate any modification, opening
or correction of [his] sentence.’’ State v. Pierce, supra, 269 Conn. 448 n.5.
Citing State v. Arthur H., 288 Conn. 582, 953 A.2d 630 (2008), Judge
Nazzaro stated that the petitioner’s ‘‘registration as a sexual offender does
not increase the punishment for the sentence imposed for the kidnapping
conviction.’’ Pierce v. Warden, supra, Superior Court, Docket No. CV-05-
4000609-S (Nazzaro, J.).
7
Judge Nazzaro also found that the petitioner’s appellate counsel had
raised a claim that Judge Gaffney improperly ordered the petitioner to
register as a sex offender; see State v. Pierce, supra, 69 Conn. App. 520; but
noted that our Supreme Court had concluded that Judge Gaffney properly
ordered the petitioner to register as a sex offender.
8
Judge Espinosa concluded that, even if she had jurisdiction to consider
the merits of the motion to correct, the petitioner could not prevail because,
in 1996, he waived his statutory right to the confidentiality of his psychiatric
records. State v. Pierce, supra, Superior Court, Docket No. CR-98-0177629
(Espinosa, J.). Klinkert was not required to obtain a new waiver of confiden-
tiality from the petitioner to include the information she obtained in 1996
in the 1999 report.
Practice Book § 43-9 provides in relevant part: ‘‘The presentence investiga-
tion . . . shall be available at all times to the following: (1) The office of
adult probation . . . (6) Any court of proper jurisdiction where it is relevant
to any proceeding before such court. . . .’’
A sentencing court may ‘‘appropriately conduct an inquiry broad in scope,
[and] largely unlimited either as to the kind of information [it] may consider
or the source from which it may come.’’ United States v. Tucker, 404 U.S.
443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972).
Of greater significance, however, is Judge Espinosa’s determination that
the petitioner’s psychiatric records were discussed on the record at length
by the 1996 sentencing court, Cofield, J., when Judge Cofield rejected a
plea agreement that would have resulted in a suspended sentence for the
petitioner. State v. Pierce, supra, Superior Court, Docket No. CR-98-0177629
(Espinosa, J.). ‘‘Arrests, indictments, convictions, and sentences are public
events that are usually documented in court records.’’ (Internal quotation
marks omitted.) Commissioner of Public Safety v. Freedom of Information
Commission, 144 Conn. App. 821, 830, 76 A.3d 185 (2013). Judge Espinosa,
therefore, concluded that even if the 1999 report violated the petitioner’s
statutory right to confidentiality, the error was harmless, as the petitioner’s
psychiatric records were available to Judge Gaffney independent of the
1999 report.
9
The respondent attached the following documents to his motion to dis-
miss: the transcript of the hearing before Judge White on September 18,
2003; Judge Fuger’s opinion denying the second petition; Judge Nazzaro’s
opinion denying the third petition; Judge Holden’s opinion regarding sen-
tence review; Judge Espinosa’s opinion dismissing the motion to correct an
illegal sentence; and the fourth petition pleadings.
10
‘‘Under [the cause and prejudice] standard, the petitioner must demon-
strate good cause for his failure to raise a claim at trial or on direct appeal
and actual prejudice resulting from the impropriety claimed in the habeas
petition. . . . [T]he cause and prejudice test is designed to prevent full
review of issues in habeas corpus proceedings that counsel did not raise
at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . .’’
(Internal quotation marks omitted.) Brunetti v. Commissioner of Correc-
tion, 134 Conn. App. 160, 168, 37 A.3d 811, cert. denied, 305 Conn. 903, 44
A.3d 180 (2012).
The burden of proving lack of procedural default lies on the petitioner
by demonstrating cause and prejudice. Johnson v. Commissioner of Correc-
tion, 218 Conn. 403, 409, 589 A.2d 1214 (1991).
11
‘‘The essence of the [petitioner’s] claim is that the probation department
had no authority to include in the 1999 report the privileged information it
had received when preparing the 1996 report, for which the [petitioner] had
signed written waivers. He asserts that the privileged information could not
be reused by the probation department in preparing a new report.’’ (Footnote
omitted.) State v. Pierce, supra, 129 Conn. App. 525.
‘‘[T]here was no attempt by counsel or by the [petitioner] to alert the
court that the [petitioner] had a problem with the report, there was no
attempt by counsel or the [petitioner] to request that the alleged improper
information be stricken from the report, and there was no denial by the
court of any request made by the [petitioner] related to the report. Quite
to the contrary, when the [petitioner] indicated that he had not had sufficient
time to go over the report with counsel, [Judge Gaffney] called a recess
and gave the [petitioner] the time he needed. After the proceedings were
reconvened, neither the [petitioner] nor counsel said a word about any
problem with the contents of the 1999 report.’’ Id., 526.
12
The record demonstrates that prior to sentencing, the petitioner refused
to sign a waiver permitting Klinkert to obtain his psychiatric records; at the
time of sentencing, Judge Gaffney recessed the proceedings to enable the
petitioner to review the 1999 report, the petitioner therefore knew its con-
tents; and he was present in court and knew that his trial counsel did not
object to the contents of the report. All of the relevant facts were known
to the petitioner before he filed his first petition for a writ of habeas corpus.
13
In his objection to the respondent’s motion to dismiss the fourth petition,
the petitioner contended that the factual allegations in the fourth petition
were new, as he was ‘‘presented with additional evidence that was not
available to him at the time of his previous habeas actions. The Appellate
Court’s decision in [State v. Pierce, supra, 129 Conn. App. 516] was released
after the conclusion of his previous habeas trial, [Pierce v. Warden, supra,
Superior Court, Docket No. CV-05-4000609-S (Nazzaro, J.)]. The Appellate
Court’s decision provides the [p]etitioner with additional persuasive evi-
dence to support [his claim of ineffective assistance of trial counsel].’’ The
petitioner’s contention is predicated on a false proposition.
Evidence is produced by the parties at the time of trial. The procedural
history of trial is captured by the evidence, exhibits, and transcripts of the
proceeding. No appellate court may add to that record. An appellate court
does not generate evidence, although it may construe the legal consequences
of the evidence presented at trial. The procedural history of this appeal
demonstrates that each time a judgment has been rendered against him, be
it in the habeas court or on his petition for sentence review, or his motion
to correct an illegal sentence, the petitioner has snatched a legal conclusion
predicated on the facts evident in the trial court record and asserted it as
a new claim in a subsequent petition for a writ of habeas corpus. See, e.g.,
Turner v. Commissioner of Correction, 118 Conn. App. 565, 568 n.2, 984
A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010).
We take this occasion to note, on the basis of our thorough review of the
procedural history and all of the judicial opinions underlying this appeal,
that the petitioner picks and chooses the evidence and procedural history
that he believes will help his cause to avoid having to register as a sex
offender when he is released from confinement. For whatever reason, the
petitioner ignores significant facts that do not favor him. Specifically, the
petitioner continues to ignore Judge Gaffney’s finding that his testimony
about his intent in taking the victim to a wooded area in East Hartford was
implausible and that the court found that the petitioner kidnapped the
victim for a sexual purpose. Judge Gaffney’s credibility determination stands
separate and apart from the 1999 report. See footnote 4 of this opinion.
Moreover, the petitioner continues to ignore Judge Espinosa’s determina-
tion that the inclusion of the petitioner’s psychiatric treatment records in the
1999 report was harmless error, if any, because the petitioner’s psychiatric
treatment was discussed on the record when he appeared before Judge
Cofield in 1996. By virtue of the 1996 criminal proceedings, the petitioner’s
psychiatric treatment records have entered the public domain and are no
longer protected by statute. See footnote 8 of this opinion.
14
The petitioner requested that the habeas court issue a writ of habeas
corpus ‘‘directing the respondent to release the petitioner from confinement
unless the [s]entencing [c]ourt, in State v. Pierce, [supra, Superior Court,
Docket No.] CR-98-0177629 [(Holden, Miano and Iannotti, Js.)], vacates
the order classifying the [p]etitioner as a sex offender, under . . . § 54-254,
within [ninety] days or some other certain and reasonable period of time.’’