Kondjoua v. Commissioner of Correction ( 2020 )

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CHRYSOSTOME KONDJOUA v. COMMISSIONER
OF CORRECTION
(AC 43322)
Moll, Alexander and DiPentima, Js.
Syllabus
The petitioner, who had previously been convicted, on a guilty plea, of the
crime of sexual assault in the third degree, sought a second writ of
habeas corpus, claiming that his guilty plea was not made knowingly,
intelligently and voluntarily because, at the time of his plea, he was
under the influence of medication, he did not receive the benefit of an
interpreter and his trial counsel had coerced him. The habeas court sua
sponte dismissed the petition pursuant to the applicable rule of practice
(§ 23-29 (3)) as an improper successive petition. Thereafter, the habeas
court denied the petition for certification to appeal, and the petitioner
appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal, the petitioner having failed to demonstrate that
his claim involved an issue that was debatable among jurists of reason,
that a court could resolve the issue in a different manner, or that the
question raised was adequate to deserve encouragement to proceed
further.
2. The petitioner could not prevail on his claim that the habeas court improp-
erly dismissed his second habeas petition as an improper successive
petition, as the second petition presented the same legal ground and
sought the same relief as the first petition, and the petitioner failed to
state new facts not reasonably available at the time of the first petition.
Argued October 7—officially released December 8, 2020
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., rendered judgment dismissing
the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
Peter G. Billings, for the appellant (petitioner).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were Margaret E. Kelley and Mat-
thew C. Gedansky, state’s attorneys, and Angela Mac-
chiarulo, senior assistant state’s attorney, for the appel-
lee (respondent).
Opinion
DiPENTIMA, J. The petitioner, Chrysostome Kond-
joua, appeals following the denial of his petition for
certification to appeal from the judgment of the habeas
court dismissing his petition for a writ of habeas corpus
as an improper successive petition pursuant to Practice
Book § 23-29 (3). On appeal, the petitioner claims that
the court (1) abused its discretion in denying his petition
for certification to appeal and (2) improperly dismissed
his habeas petition as successive. We dismiss the
appeal.
In the petitioner’s appeal from the denial of his first
habeas petition, we set forth the following facts and
procedural history. ‘‘The petitioner is a Cameroonian
citizen who has resided in the United States since 2010
as a long-term, permanent resident with a green card.
He was arrested on November 29, 2013, and charged
with the sexual assault in the first degree of an eighty-
three year old woman, for whom he had been working.
The petitioner entered a plea of not guilty and elected
a jury trial.
‘‘On December 16, 2014, after the jury had been
picked and evidence was set to begin, the petitioner
accepted a plea agreement to the reduced charge of
sexual assault in the third degree. Before accepting the
petitioner’s guilty plea, the trial court canvassed him.
The trial court found that the plea was made knowingly,
intelligently, and voluntarily, and ordered a presentence
investigation. On March 4, 2015, the court sentenced
the petitioner to the agreed disposition of five years of
imprisonment, execution suspended after twenty
months, with ten years of probation. The petitioner also
was required to register as a sex offender for ten years.
The petitioner did not file a direct appeal.
‘‘While the petitioner was serving his sentence, the
United States Department of Homeland Security
(department) initiated deportation proceedings against
him. The department cited the petitioner’s March, 2015
conviction for sexual assault in the third degree as the
ground for removal and stated that the petitioner was
subject to removal because he had been convicted of
an aggravated felony and a crime of moral turpitude,
in violation of § 237 (a) (2) (A) (iii) and § 237 (a) (2)
(A) (i) of the Immigration and Nationality Act, respec-
tively. A warrant for the petitioner’s arrest was served
on July 14, 2015, and the petitioner was taken into the
department’s custody.
‘‘On June 19, 2015, the petitioner, then self-repre-
sented, filed a petition for a writ of habeas corpus.
Appointed counsel thereafter filed an amended petition.
On October 17, 2017, counsel filed a second amended
petition . . . . It alleged two claims: Ineffective assis-
tance of trial counsel for the improper advice concern-
ing the immigration consequences of a guilty plea and
a due process challenge to his guilty plea on the basis
that it was not knowingly, intelligently, and voluntarily
made. On December 19, 2017, the respondent, the Com-
missioner of Correction, filed a return alleging that the
petitioner’s due process claim was in procedural
default. The petitioner filed a reply denying the allega-
tions in the respondent’s return on December 28, 2017.
‘‘On May 16, 2018, the habeas court issued a memo-
randum of decision in which it denied the petition. The
habeas court found that the petitioner failed to establish
that trial counsel had rendered ineffective assistance.
. . . Regarding the petitioner’s second claim, the court
found that the petitioner had not established cause and
prejudice sufficient to overcome the procedural
default.’’ (Footnotes omitted.) Kondjoua v. Commis-
sioner of Correction, 194 Conn. App. 793, 795–99, 222
A.3d 974 (2019), cert. denied, 334 Conn. 915, 221 A.3d
809 (2020). On appeal, this court rejected the petition-
er’s claims that the first habeas court erred in rejecting
his ineffective assistance of counsel claim and in con-
cluding that his second claim, that his plea was not
made knowingly, intelligently, and voluntarily, was pro-
cedurally defaulted. Id., 799–807.
The self-represented petitioner filed a second habeas
action on August 17, 2018. The petitioner alleged that
his plea was not made knowingly, intelligently, and
voluntarily because he had been under the influence of
medication that caused him to become passive and to
accept a guilty plea ‘‘unconsciously,’’ he did not receive
the benefit of an interpreter, and his counsel coerced
him to plead guilty.1 On July 11, 2019, the court, without
holding a hearing on the petition, dismissed the petition
sua sponte and found the following: ‘‘Upon review of
the complaint in the above titled matter, the court
hereby gives notice pursuant to Practice Book § 23-29
that the matter has been dismissed for the following
reasons: (1) The petition is successive, in that it presents
the same grounds as the prior petition . . . previously
denied . . . and fails to state new facts or to proffer
new evidence not reasonably available at the time of
the prior petition. More specifically, the prior petition
made claims of ineffective assistance of counsel and a
claim that the petitioner’s guilty plea was not know-
ingly, voluntarily, and intelligently made, and a fair read-
ing of the present complaint presents the same legal
grounds, but without any new facts or evidence not
known at the time of the prior petition, and seeks the
same relief.’’ The habeas court denied the petition for
certification to appeal from the dismissal of the second
habeas action. This appeal followed.
I
The petitioner claims that the court erred in denying
his petition for certification to appeal from the court’s
dismissal of his second petition for being successive.
‘‘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. . . . A petitioner may establish an abuse of
discretion by demonstrating that the issues are debat-
able among jurists of reason . . . [the] court could
resolve the issues [in a different manner] . . . or . . .
the questions are adequate to deserve encouragement
to proceed further. . . . The required determination
may be made on the basis of the record before the
habeas court and the applicable legal principles. . . .
‘‘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 peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court
must be affirmed.’’ (Internal quotation marks omitted.)
Mourning v. Commissioner of Correction, 169 Conn.
App. 444, 448, 150 A.3d 1166 (2016), cert. denied, 324
Conn. 908, 152 A.3d 1246 (2017).
On the basis of our review of the petitioner’s substan-
tive claim, we conclude that he has not shown that the
court abused its discretion in denying his petition for
certification to appeal.
II
The petitioner claims that the court improperly dis-
missed his second habeas petition as successive. Specif-
ically, he argues that he raised new factual allegations
and a new legal ground in his second petition. He con-
tends that his first habeas petition centered on ineffec-
tive assistance rendered by trial counsel in failing to
advise him of the immigration consequences of his
guilty plea and that his second petition focused on the
involuntariness of his plea as a result of the psychologi-
cal effect of his medication, the lack of an interpreter,
and the coercive conduct by trial counsel. We are
not persuaded.
Our standard of review is well established. ‘‘The con-
clusions reached by the [habeas] court in its decision
to dismiss the habeas petition are matters of law, sub-
ject to plenary review. . . . Thus, [w]here the legal
conclusions of the court are challenged, we must deter-
mine whether they are legally and logically correct . . .
and whether they find support in the facts in the
record.’’ (Internal quotation marks omitted.) Zollo v.
Commissioner of Correction, 133 Conn. App. 266, 276,
35 A.3d 337, cert. granted, 304 Conn. 910, 39 A.3d 1120
(2012) (appeal dismissed May 1, 2013).
Practice Book § 23-29 provides in relevant part: ‘‘The
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 to
proffer new evidence not reasonably available at the
time of the prior petition . . . .’’ See Diaz v. Commis-
sioner of Correction, 125 Conn. App. 57, 64–65, 6 A.3d
213 (2010) (Practice Book § 23-29 (3) memorialized abil-
ity to dismiss petition that presents same ground as
previously denied petition and that fails to state new
facts or to proffer new evidence not reasonably avail-
able at time of prior petition), cert. denied, 299 Conn.
926, 11 A.3d 150 (2011).
‘‘In Negron v. Warden, [180 Conn. 153, 158, 429 A.2d
841 (1980)], [our Supreme Court] observed that pursu-
ant to Practice Book § 531 [now § 23-29], [i]f a previous
application brought on the same grounds was denied,
the pending application may be dismissed without [a]
hearing, unless it states new facts or proffers new evi-
dence not reasonably available at the previous hearing.
[The court] emphasized the narrowness of [its] con-
struction of Practice Book [§ 23-29] by holding that
dismissal of a second habeas petition without an eviden-
tiary hearing is improper if the petitioner either raises
new claims or offers new facts or evidence. . . .
Negron therefore strengthens the presumption that,
absent an explicit exception, an evidentiary hearing
is always required before a habeas petition may be
dismissed.’’2 (Emphasis omitted; internal quotation
marks omitted.) Mejia v. Commissioner of Correction,
98 Conn. App. 180, 188–89, 192, 908 A.2d 581 (2006).
Pursuant to Practice Book § 23-29 (3), the habeas
court sua sponte dismissed the second habeas petition
as successive. In his first habeas petition, the petitioner
claimed that his trial counsel had provided ineffective
assistance by failing to advise him properly of the immi-
gration consequences of pleading guilty and made a
due process challenge to his guilty plea on the basis
that it was not knowingly, intelligently, and voluntarily
made. See Kondjoua v. Commissioner of Correction,
supra, 194 Conn. App. 798–99. Specifically, with respect
to the second claim, the petitioner had alleged that his
guilty plea was not made knowingly, intelligently, and
voluntarily due to the failure of trial counsel to advise
him adequately of the immigration consequences of his
guilty plea. See id., 805.
In his second habeas petition, the petitioner again
claimed that his guilty plea was not made knowingly,
intelligently, and voluntarily. Instead of claiming, as he
had in his first petition, that the involuntary nature of
his guilty plea was due to inadequate advice by trial
counsel, the petitioner alleged in his second petition
that the involuntary nature of the plea was caused by
the effects of medication, the lack of an interpreter,
and coercion by trial counsel.
The petitioner argues that his second petition is not
successive because his first petition alleged ineffective
assistance of counsel and the second petition alleges
the involuntariness of his guilty plea. We disagree. Both
petitions challenge the voluntariness of the guilty plea.
Although the factual allegations in the two operative
petitions are not the same, it does not necessarily follow
that the claims are not identical. ‘‘Identical grounds may
be proven by different factual allegations, supported
by different legal arguments or articulated in different
language. . . . They raise, however, the same generic
legal basis for the same relief. Put differently, two
grounds are not identical if they seek different relief.’’
(Internal quotation marks omitted.) Carter v. Commis-
sioner of Correction, 133 Conn. App. 387, 393, 35 A.3d
1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012).
The legal ground and the relief sought by the peti-
tioner here is the same in both the first and second
petitions. Moreover, the petitioner cannot prevail on
his argument that the second petition alleges new facts
not reasonably available at the time of the first petition.
See, e.g., McClendon v. Commissioner of Correction, 93
Conn. App. 228, 231, 888 A.2d 183 (successive petition
premised on same legal grounds and seeking same relief
will not survive dismissal unless petition is supported
by allegations not reasonably available to petitioner at
time of original petition), cert. denied, 277 Conn. 917,
895 A.2d 789 (2006); see also Practice Book § 23-29
(3). In the first habeas action, the petitioner’s original
nonoperative petition ‘‘alleged a due process violation
claiming that his guilty plea was not made knowingly,
intelligently, or voluntarily because he was under the
influence of medication, trial counsel pressured him
to plead guilty, and he had trouble understanding and
communicating with trial counsel because English is
not his first language and he did not always have the
benefit of an interpreter during their conversations.’’
Kondjoua v. Commissioner of Correction, supra, 194
Conn. App. 798 n.3. Although that petition was later
amended to eliminate these precise grounds; see id.,
798–99; the petitioner clearly knew of their existence
at the time of the first petition, defeating any argument
now made on appeal that these grounds were not rea-
sonably available at the time of the first petition.
The habeas court was not required to determine the
merits of the second habeas petition because, pursuant
to Practice Book § 23-29 (3), the second petition pre-
sented the same ground as the first petition and the
petitioner failed to state new facts not reasonably avail-
able at the time of the prior petition. See McClendon
v. Commissioner of Correction, supra, 93 Conn. App.
231; see also Practice Book § 23-29 (3). The petitioner,
therefore, has not shown that the resolution of this
claim involves an issue that is debatable among jurists
of reason, that a court could resolve the issue in a
different manner, or that the question is adequate to
deserve encouragement to proceed further. Accord-
ingly, we conclude that the habeas court did not abuse
its discretion in denying his petition for certification
to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner also alleged that his trial counsel had rendered ineffective
assistance. On appeal, the petitioner does not challenge the court’s dismissal
of his ineffective assistance claim as successive.
2
The petitioner does not raise as a ground for reversal the lack of an
evidentiary hearing.