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McClendon v. Commissioner of Correction

Connecticut Superior Court, Judicial District of New Haven at New Haven
Jul 21, 2004
2004 Ct. Sup. 11380 (Conn. Super. Ct. 2004)

Opinion

No. CV 02-0469477 S

July 21, 2004


MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 109)


This is a habeas corpus case brought by the petitioner, Charlie McClendon, against the respondent, Commissioner of Correction. On November 14, 2003, the petitioner filed the amended petition alleging that he was denied effective assistance of counsel at his criminal trial. In the present motion, the respondent moves to dismiss the amended petition asserting that it asserts 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. The respondent filed a memorandum in support of its motion. The petitioner did not file a memorandum in opposition. A hearing was held on the motion on May 3, 2004. At the hearing, the petitioner was represented by appointed counsel. For the reasons set forth below, this court, on May 3, 2004, granted the motion to dismiss.

BACKGROUND

The record reflects the following procedural history.

The petitioner was convicted by a jury of two counts of felony murder, attempted robbery in the first degree, and two counts of robbery in the first degree. The trial court (Koletsky, J.) imposed a total effective sentenced of 140 years imprisonment. Petitioner's conviction was affirmed on direct appeal. State v. McClendon, 248 Conn. 572, 730 A.26 1107 (1999).

The petitioner filed a petition for writ of habeas corpus in the judicial district of Hartford in the matter known as Charlie McClendon v. Warden, State Prison, Docket No. CV 95-556554. In that habeas case, the petitioner alleged that he was denied the effective assistance of counsel at his criminal trial. Specifically he claimed that his trial counsel (1) failed to conduct a full, thorough and complete examination of the chief witness against him, Darlene Hale Kelley, and (2) failed to call witnesses that would have assisted in the impeachment of Darlene Hale Kelley. After a trial on the merits, the habeas court (Corrigan, J.) denied the petition in a memorandum of decision dated June 25, 1998. The petitioner then appealed Judge Corrigan's habeas decision which appeal was dismissed by the Appellate Court. McClendon v. Commissioner of Correction, 58 Conn. App. 436, 755 A.2d 238, cert. denied, 254 Conn. 920, 759 A.2d 1025 (2000).

In the present amended petition, the petitioner again claims that his trial attorneys were ineffective because they (1) failed to adequately prepare Michael Leippe, a defense expert on eyewitness identification, so as to prevent the court's exclusion of Mr. Leippe's testimony and make a record that would allow an appellate court to determine that the trial court, in excluding such evidence, abused its discretion, and (2) failed to adequately research the issue of uncharged misconduct so as to keep out evidence of other robberies and have a stronger record on appeal.

The trial court's rulings excluding the testimony of Michael Leippe and admitting the evidence of the other robberies were both raised on direct appeal and rejected by the Appellate Court. State v. McClendon, supra, 45 Conn. App. 666, 672.

DISCUSSION

Our Practice Book provides that a court may dismiss a habeas corpus petition if it determines that "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." Practice Book § 23-29(3). A "ground" is a sufficient legal basis for granting the relief sought. Sanders v. United States, 373 U.S. 1, 1683 S.Ct. 1068, 10 L.Ed.2d 148 (1963); James L. v. Commissioner of Correction, 245 Conn. 132, 141, 712 A.2d 947 (1998). Identical grounds may be supported by different factual allegations or by different legal arguments. Id.

Both the prior petition and the present amended petition are based on the same ground, namely, that petitioner's counsel at his criminal trial were ineffective. In the prior petition it was asserted that they were ineffective because they did not competently cross-examine or impeach a key witness. In the present amended petition, the claim of incompetence is rooted in the allegation that their preparation and presentation of the legal claims concerning the identification expert and the admissibility of uncharged misconduct was below the standard for effective counsel. Varying the underlying factors, however, does not change the ground relied on for relief. Sanders v. United States, supra, 373 U.S. 16; Johnson v. McCotter, 803 F.2d 830, 833 (5th Cir. 1986); Anderson v. Warden, State Prison, Superior Court, judicial district of Tolland (Docket No. CV88-582-S, November 20, 1990).

Given the fact that both the prior petition and present petition are based on the same ground, Practice Book § 23-29(3) requires dismissal unless the present petition asserts new facts not reasonably available at the time of the prior petition. In this regard, the petitioner has failed to make any persuasive showing that the present petition is based on facts not reasonably available at the time of the prior petition. Indeed, the petitioner has made no showing on this point either through testimony, proffer or written submission. A review of the history of the case suggests that the facts surrounding the testimony of the identification expert and admission of uncharged misconduct evidence have been available since the time of the first habeas petition, if not earlier.

The petitioner has not met his burden to show that the present petition is based on new evidence not reasonably available at the time of the prior petition.

CONCLUSION

For the reasons set forth above, the motion to dismiss is granted.

Devlin, J.


Summaries of

McClendon v. Commissioner of Correction

Connecticut Superior Court, Judicial District of New Haven at New Haven
Jul 21, 2004
2004 Ct. Sup. 11380 (Conn. Super. Ct. 2004)
Case details for

McClendon v. Commissioner of Correction

Case Details

Full title:CHARLIE McCLENDON v. COMMISSIONER OF CORRECTION

Court:Connecticut Superior Court, Judicial District of New Haven at New Haven

Date published: Jul 21, 2004

Citations

2004 Ct. Sup. 11380 (Conn. Super. Ct. 2004)