Opinion
CV144006021S
10-09-2019
Charles KERRR (Inmate #56837) v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
OPINION
Hon. Courtney M. Chaplin Judge.
The petitioner, Charles Kerr, filed this petition for a writ of habeas corpus seeking relief for alleged ineffective assistance of appellate counsel. The respondent filed its return on September 5, 2019, therein raising the affirmative defense of successive petition. The court held a trial for this matter on September 10, 2019. At trial, the petitioner presented his testimony. The petitioner did not offer any exhibits or other testimony. The respondent did not present any witnesses or exhibits. The court heard closing argument.
The petitioner testified that his trial attorney refused to challenge the DNA evidence introduced at trial by the state. Specifically, the petitioner argues that his trial counsel failed to object and thereby failed to preserve the claim for appeal. The petitioner testified that a state forensics laboratory technician testified as to DNA testing and results, but did not state that it was the petitioner’s DNA. The petitioner argues that the failure to state definitively that it was his DNA is inconclusive evidence and, thus, insufficient to support his underlying conviction. The petitioner further testified that his appellate counsel failed to brief and argue this issue on appeal from his underlying criminal trial.
On cross examination, the petitioner testified that the DNA expert testified at his criminal trial that he was not excluded from the sample that was tested. The petitioner also testified that he had a habeas trial in 2012 in which he alleged ineffective assistance of trial counsel and appellate counsel. The petitioner also testified that he has never put forth allegations challenging the DNA evidence in his underlying trial. The petitioner also set forth allegations regarding a false warrant. However, that claim was not argued at trial and is hereby deemed abandoned.
See Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.3d 239, cert. denied, 289 Conn . 902, 957 A.2d 873 (2008).
"Our Supreme Court has stated that [i]n our case law, we have recognized only one situation in which a court is not legally required to hear a habeas petitioner. In Negron v. Warden, [ 180 Conn. 153, 158, 429 A.2d 841 (1980)], we observed that pursuant to Practice Book § [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 evidence not reasonably available at the previous hearing. We emphasized the narrowness of our construction of Practice Book § [23-29] by holding that dismissal of a second habeas petition without an evidentiary hearing is improper if the petitioner either raises new claims or offers new facts or evidence ... [A] petitioner may bring successive petitions 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 petition is supported by allegations and facts or reasonably available to the petitioner at the time of the original petition." (Emphasis omitted; internal quotation marks omitted.) Zollo v. Commissioner of Correction, 133 Conn.App. 266, 277-78, 35 A.3d 337, cert. granted, 304 Conn. 910, 39 A.3d 1120 (2012).
Based on the petitioner’s testimony, the court finds that the petitioner’s current habeas corpus petition alleges ineffective assistance of trial counsel, which was the allegation set forth in his prior habeas corpus petition. The court finds that the petitioner seeks the court to provide him relief in the form of reversing his underlying conviction, which relief he sought in his prior habeas corpus petition. The petitioner’s factual allegations could have been previously alleged and are not based on new facts or newly discovered evidence not available at the time of the prior habeas corpus petition. Therefore, the court finds that the current habeas corpus petition is successive as it is founded on the same legal ground as his prior habeas corpus petition and seeks the same relief as the prior habeas corpus petition. The court’s finding is consistent with the respondent’s allegations in the return.
Accordingly, the petition is dismissed pursuant to Practice Book § 23-29(3).