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Pierce v. Commissioner of Correction
TYRONE PIERCE v. COMMISSIONER
OF CORRECTION
(AC 47542)
Alvord, Seeley and Wilson, Js.*
Syllabus
The petitioner, who previously had been convicted of several crimes on pleas of nolo contendere, appealed, on the granting of certification, from the habeas court’s judgment dismissing his habeas petition, in which he alleged that the prosecutor at his criminal trial had improperly failed to timely disclose certain exculpatory documents prior to his pleas. He claimed, inter alia, that the court improperly determined that his claim was barred by the doctrine of res judicata. Held:
The habeas court properly granted the motion to dismiss filed by the respondent, the Commissioner of Correction, and determined that the doctrine of res judicata required the dismissal of the petitioner’s habeas petition pursuant to the applicable rule of practice (§ 23-29 (3)), as the petitioner set forth the same ground that was raised in a prior petition and failed to show that the allegedly undisclosed documents would not have been reasonably available to him at the time of his prior petition, and, although the court incorrectly relied on the representations of the petitioner’s counsel in determining that the documents had been reasonably available to the petitioner at the time of the prior petition, that error was harmless in that it was unlikely to have affected the court’s ruling.
Argued October 14, 2025—officially released September 22, 2026
Procedural History
Amended 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 first count of the petition; thereafter, the court
denied the petitioner’s petition for certification to appeal; subsequently, the court denied the remaining counts of
the petition and rendered judgment thereon; thereafter,
the court denied the petitioner’s petition for certification to appeal, and the petitioner appealed to this court,
which reversed the judgment in part and remanded the
case for further proceedings; subsequently, the case was
tried to the court, Wagner, J.; judgment dismissing the
*
The listing of judges reflects their seniority status on this court as of the date of oral argument.
Pierce v. Commissioner of Correction
petition, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
Nicole P. Britt, assigned counsel, with whom, on the
brief, was Christopher Y. Duby, assigned counsel, for
the appellant (petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, was Craig P. Nowak, state’s
attorney, for the appellee (respondent).
Opinion
WILSON, J. Following the granting of certification
to appeal, the petitioner, Tyrone Pierce,1 appeals from
the judgment of the habeas court dismissing count one of
his third amended petition for a writ of habeas corpus on
the grounds that count one (1) is barred by the doctrine
of res judicata and (2) fails to state a claim on which
relief could be granted.2 The petitioner challenges both
1
We note that the petitioner spells his first name Tyronne, as evidenced by his handwritten signature throughout the habeas court file. For consistency, however, we maintain the use of Tyrone in this case in conformity with the pleadings, judgment file and Appellate Court decision in his prior habeas appeal. See Pierce v. Commissioner of Correction, 221 Conn. App. 80, 301 A.3d 530 (2023); see also Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 289 n.1, 94 A.3d 553 (2014).
2
In its memorandum of decision, the habeas court stated that it “agrees with the respondent [the Commissioner of Correction] that the claim in count one fails to state a claim for which habeas relief may be granted and that the court, therefore, also lacks jurisdiction over the claim.” Although it does not affect our disposition of this appeal, we note that the court improperly reasoned that the petitioner’s failure to state a claim on which relief could be granted, which is a proper ground for dismissal, deprived it of subject matter jurisdiction. “Our jurisprudence has, at times, conflated the concepts of a lack of subject matter jurisdiction and the failure to state a claim upon which relief can be granted. Our Supreme Court, however, held in In re Jose B., 303 Conn. 569, 34 A.3d 975 (2012), that ‘the failure to allege an essential fact under a particular statute goes to the legal sufficiency of the complaint, not to the subject matter jurisdiction of the trial court.’ Id., 579. The court in In re Jose B. reasoned that ‘[t]his conclusion is consistent with the rule that every presumption is to be indulged in favor of jurisdiction . . . is consistent with the judicial policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . by allowing the litigant, if possible,
Pierce v. Commissioner of Correction
of these grounds. We conclude that the court properly
dismissed count one because it is barred by the doctrine
of res judicata.3 Accordingly, we affirm the judgment
of the habeas court.
The following undisputed procedural history underlies this appeal. In 2008, the petitioner entered pleas
of nolo contendere to charges of kidnapping in the first
degree in violation of General Statutes § 53a-92 (a) (2)
(A), sexual assault in the first degree in violation of General Statutes (Rev. to 2003) § 53a-70 (a) (1), assault in
the second degree in violation of General Statutes (Rev.
to 2003) § 53a-60 (a) (1), and tampering with a witness
in violation of General Statutes § 53a-151. The charges
arose from incidents involving the petitioner and C, the
petitioner’s former girlfriend, in July 2004. The court
imposed a total effective sentence of ten years of incarceration, followed by fifteen years of special parole, to
be served consecutively to a sentence that the petitioner
was serving for having violated his probation.
In December 2013, the petitioner filed a petition for
a writ of habeas corpus as a self-represented party. In
April 2019, after the court appointed counsel to represent the petitioner, he filed a third amended petition. In
count one of his third amended petition, the petitioner
claimed that his right to due process, guaranteed by the
federal and state constitutions, was violated because the
prosecution failed to disclose “exculpatory or otherwise
favorable evidence” in a timely manner prior to his nolo
to amend the complaint to correct the defect . . . .’ (Citations omitted; internal quotation marks omitted.) Id. That same presumption in favor of jurisdiction applies equally to habeas courts. See, e.g., Stafford v. Commissioner of Correction, 207 Conn. App. 85, 94, 261 A.3d 791 (2021) (it is well established that, in determining whether court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged).” Rios v. Commissioner of Correction, 224 Conn. App. 350, 377–78, 312 A.3d 1059, cert. denied, 349 Conn. 910, 314 A.3d 601 (2024).
3
In light of our conclusion that the habeas court properly dismissed count one on the ground of res judicata, it is unnecessary for us to consider whether the court erred in concluding that count one failed to state a claim on which relief could be granted.
Pierce v. Commissioner of Correction
contendere pleas. Specifically, the petitioner claimed,
“[o]n July 10, 2004, the complainant in [his] criminal
matter, [C], was the perpetrator of a home invasion style
robbery and assault where the petitioner’s grandmother
. . . was the victim.” The petitioner alleged that, prior to the time of his pleas, the prosecution did not disclose the following evidence related to C’s criminal conduct and
the police investigation of C: (1) an official police document indicating that Officer Kent Lee of the Hartford
Police Department, who had responded to the incident
perpetrated by C and was given information that C was
involved in the criminal conduct perpetrated against
the petitioner’s grandmother, had “failed to document”
the incident; (2) an official police document indicating
that the Putnam Police Department had C in its custody
in 2004 “with direct information from [C] that [C] was
responsible for the [home invasion],” and that the Putnam police did not take any action to inform the Hartford Police Department or to prosecute C; and (3) a July
11, 2004 dispatch log from the Dudley, Massachusetts
Police Department “detailing that Dudley police officials
were alerted by [the] Putnam police that [C] was in their
custody and that she had confessed to her involvement
with the Hartford home invasion of [the petitioner’s
grandmother].”
With respect to count one of his third amended habeas
petition, the petitioner alleged that, if this information had been disclosed in a timely manner, there was a
reasonable probability that “the result of [his] criminal
proceeding would have been different and more favorable to [him] in that [he] would have proceeded to trial
and used that information in a manner favorable to [his]
defense.” In count two, the petitioner alleged that he
was deprived of the effective assistance of counsel at his
criminal trial. In count three, the petitioner alleged that he was deprived of the effective assistance of counsel in
connection with a prior habeas action, in which the court
denied his petition.4
4
The petitioner, in a self-represented capacity, brought the prior habeas action in 2009. Following the appointment of counsel, the petitioner filed
Pierce v. Commissioner of Correction
The respondent, the Commissioner of Correction,
alleged in his return that the prosecutorial impropriety
claim set forth in count one was barred by the doctrines
of res judicata and collateral estoppel, the claim was
successive because it could have been raised in the prior
habeas action, and the claim was procedurally defaulted
because it was not raised in the prior habeas action. The
respondent requested that the court dismiss count one.
In May 2019, the court, Newson, J., dismissed count
one of the third amended petition pursuant to Practice
Book § 23-29 (3).5 In its order, the court, relying on the
doctrine of res judicata, stated: “Count one of the current petition raises a claim of prosecutorial misconduct
because the state allegedly failed to disclose exculpatory
information related to criminal conduct [C] is alleged to
have engaged in against the petitioner’s grandmother
in the Hartford . . . area the day before the incident for
which the petitioner now stands convicted, and alleged
failures by Hartford and other local police agencies to
properly investigate or charge [C] with said criminal
conduct, or to disclose that she had allegedly confessed
thereto.
a third amended petition in 2012. Later, the petitioner withdrew counts one and two of the petition. The habeas court denied the remaining count of the petition, in which the petitioner argued that he was denied a fair trial as a result of prosecutorial impropriety, specifically, the prosecution’s failure to disclose allegedly exculpatory information related to the criminal conduct of C against the petitioner’s grandmother. The court thereafter rendered judgment denying the petition and denied the petitioner’s petition for certification to appeal. This court dismissed the petitioner’s appeal from that judgment. See Pierce v. Commissioner of Correction, 150 Conn. App. 906, 98 A.3d 121 (2014).
5
Practice Book § 23-29 provides: “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:
“(1) the court lacks jurisdiction;
“(2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted;
“(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;
“(4) the claims asserted in the petition are moot or premature;
“(5) any other legally sufficient ground for dismissal of the petition exists.”
Pierce v. Commissioner of Correction
“However, in a prior petition . . . the petitioner also
litigated a claim of prosecutorial misconduct, which also
alleged a failure to turn over exculpatory materials, and
has failed to set forth new facts or new evidence in the
present petition not reasonably discoverable at the time
of the prior petition. In fact, the record of the prior proceeding shows that the petitioner, and habeas counsel,
were actually in possession of information regarding
this alleged criminal act committed by [C], and that this
knowledge reaches as far back as the petitioner’s original
criminal trial and trial counsel.” The court denied the
petitioner’s petition for certification to appeal from the
dismissal of count one of his third amended petition.
On January 23, 2020, following a trial on the remaining two counts of the third amended petition, the habeas
court denied those counts. In its memorandum of decision, the court noted that “the petitioner continues to
support all of his claims, in various forms, with an assertion that the state withheld exculpatory evidence related
to [C] robbing money from his grandmother in the days
before [he] committed his criminal acts against her. More
specifically, he insists that [C] confessed to robbing the
petitioner’s grandmother at the grandmother’s home
during a taped interview with the Dudley, Massachusetts police about the petitioner’s crimes against her
and that the state failed to disclose that exculpatory
information.” Although, prior to the habeas trial, the
court had dismissed count one of the third amended
petition, in which the petitioner set forth various claims
related to the prosecution’s alleged failure to disclose
exculpatory information, the court nonetheless made
several detailed findings, supported by reference to the
evidence, to demonstrate why the claims encompassed by
count one lacked merit “[s]o that future courts will not
be burdened with these baseless claims . . . .” Thereafter, the court denied the petition with respect to counts two
and three. The petitioner filed a petition for certification to appeal, which the court denied. The petitioner
then appealed to this court, challenging the denial of
certification to appeal and the court’s earlier dismissal
of count one of his third amended petition.
Pierce v. Commissioner of Correction
This court reversed in part the judgment of the habeas
court with respect to the first count of the third amended
petition and remanded the case to the habeas court for
further proceedings. See Pierce v. Commissioner of Correction, 221 Conn. App. 80, 89, 301 A.3d 530 (2023).
This court stated: “We agree with the petitioner that
the [habeas] court abused its discretion in denying his
petition for certification to appeal. Furthermore, in light of our Supreme Court’s decisions in Brown v. Commissioner of Correction, 345 Conn. 1, 282 A.3d 959 (2022),
and in Brown’s companion case, Boria v. Commissioner
of Correction, 345 Conn. 39, 282 A.3d 433 (2022), which
were decided in 2022, after the habeas court’s 2019 dismissal of the first count of the petitioner’s third amended petition, we agree that the habeas court committed error
in dismissing that count pursuant to [Practice Book]
§ 23-29 without first providing him with prior notice of
its intention to dismiss and an opportunity to submit a
brief or a written response addressing the proposed basis
for dismissal.” Pierce v. Commissioner of Correction,
supra, 82–83.
On September 7, 2023, the habeas court, Bhatt, J.,
issued an order providing notice to the parties pursuant to Practice Book § 23-29 (3) that a hearing would
be held to determine why the first count of the third
amended petition should not be dismissed because “it
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.” On November 6, 2023, the respondent filed a
motion to dismiss the first count of the third amended
petition pursuant to Practice Book § 23-29 (1) and (2).
In support of the motion to dismiss, the respondent
argued that the petitioner failed to state a claim on which relief could be granted because the prosecution did not
have an obligation to disclose impeachment information to the petitioner prior to his nolo contendere pleas.
Alternatively, the respondent argued that the petition
should be dismissed as successive. The petitioner filed
memoranda of law in opposition to Judge Bhatt’s order
Pierce v. Commissioner of Correction
and the respondent’s motion to dismiss. On December
13, 2023, the habeas court, Wagner, J., held a hearing
concerning Judge Bhatt’s order and the respondent’s
motion. Neither party asked to present evidence at the
hearing. The court heard arguments from the petitioner’s
attorney and the respondent’s attorney at the hearing.
In its memorandum of decision filed February 15,
2024, the habeas court noted that the petitioner did not
dispute that, in count three of his prior petition for a
writ of habeas corpus,6 he alleged that the prosecutor had
improperly failed to disclose to him certain documents
and information related to the police investigation of
C’s robbery and assault of his grandmother. The court
observed that, in the present petition, the petitioner
focused on the prosecution’s nondisclosure of two police
records, one generated by the Hartford Police Department and the other by the Putnam Police Department,
as well as a dispatch log generated by the Dudley, Massachusetts Police Department, which he believes are
exculpatory or otherwise favorable to him.
The habeas court noted that, in count three of the prior
petition, “[the petitioner] had specifically alleged that
the state had ‘failed to provide the petitioner’s counsel
with exculpatory information that was favorable to the
petitioner. The information that was not disclosed was
the videotaped exculpatory statement of the victim taken
in Dudley, Massachusetts, on July 11, 2008. The videotape was discoverable in that the records were cited in
the police report created by Trooper Jeffrey Payette of
the Connecticut State Police. . . . The medical records
were discoverable in that the records were cited in the
police report created by Trooper Jeffrey Payette of the
Connecticut State Police.’ [The petitioner] alleged that
this undisclosed evidence was favorable to his defense
because it was exculpatory or had impeachment value.
As habeas relief, [the petitioner] requested that he be
permitted to withdraw his [nolo contendere] pleas and
such other relief as law and justice require.”
6
See footnote 4 of this opinion.
Pierce v. Commissioner of Correction
After discussing relevant precedent, the habeas court
observed that the records at issue in the present action
had been generated in connection with the police investigation into C and her involvement in the incident involving the petitioner’s grandmother on July 10, 2004. The
court also observed that, by way of relief, the petitioner
requested that his nolo contendere pleas and sentences
be vacated and such other relief as law, equity, or justice may require.
The habeas court stated that “[the petitioner] asserts
in his objection to the respondent’s motion to dismiss, as
he did in his reply to the return, that the claim in count
one is not successive because the prosecuting authority suppressed materials related to the lapses by law
enforcement in response to the criminal conduct of [C],
the victim assaulted by [the petitioner]. However, [the
petitioner] neither avers nor offers any explanation as
to why the three documents were not reasonably available at the time of the prior petition. At the hearing on
the motion to dismiss, [the petitioner] acknowledged
that these documents were received through Freedom of
Information Act [FOIA]7 requests. Such easy availability
undermines [the petitioner’s] argument that these three
documents were not reasonably available.
“Consequently, the court finds that these three documents are not newly discovered evidence that was reasonably unavailable at the time [when the petitioner
brought] the first habeas [petition] because they were
readily available and could have been used in the prior
habeas [proceeding]. The court concludes that res judicata bars the claim in count one because it is successive.” (Footnote added.) The court dismissed count one of the
third amended petition on this ground.8 Thereafter, the
7
See General Statutes § 1-200 et seq.
8
The habeas court also dismissed count one of the third amended petition on the legally distinct ground that it failed to state a claim on which habeas corpus relief could be granted. See Practice Book § 23-29 (2). Specifically, the court, relying on United States v. Ruiz, 536 U.S. 622, 122 S. Ct. 2450, 153 L. Ed. 2d 586 (2002), agreed with the respondent that the petitioner’s nolo contendere pleas acted as a waiver of his right
Pierce v. Commissioner of Correction
court granted the petitioner’s petition for certification
to appeal.
The petitioner argues that the habeas court incorrectly
concluded that count one was barred by the doctrine of
to claim that the undisclosed materials and the prosecution’s failure to disclose them rendered his nolo contendere pleas invalid. The court stated that, in Ruiz, the United States Supreme Court had “determined that the federal constitution does not require the government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” (Emphasis added.)
In light of our conclusion that the habeas court properly dismissed count one of the third amended petition on the basis of res judicata, it is unnecessary for us to consider the propriety of the court’s ruling on this alternative ground. Nonetheless, we recognize that the petitioner in this case alleged that the prosecution had failed to disclose material exculpatory evidence rather than material impeachment evidence. Although we need not determine whether that characterization of the evidence at issue in this case was accurate, we nonetheless urge lower courts to tread with caution in applying Ruiz in the context of claims arising under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), that pertain to the prosecution’s failure to disclose information prior to a guilty plea. See Walcott v. Commissioner of Correction, 238 Conn. App. 545, 580–83, 356 A.3d 1217 (2026) (Ruiz applies to material impeachment evidence and, in absence of trial, Brady imposed no obligation on state to disclose alleged agreement between state and state’s witness).
In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, supra, 373 U.S. 87. The United States Court of Appeals for the Second Circuit has discussed the scope of Ruiz as applying to impeachment evidence but not exculpatory evidence: “In United States v. Ruiz, [supra, 536 U.S. 622], the Supreme Court reaffirmed its earlier holding that a defendant is entitled to information necessary to ensure that his plea is voluntary, and that any related waiver of his rights are made knowing[ly], intellingent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences. . . . Nevertheless, because impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary . . . the Supreme Court held that the failure to disclose such information prior to a guilty plea does not violate the [d]ue [p]rocess [c]lause. While the Supreme Court acknowledged that the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will likely be, it held that the [c]onstitution does not require the prosecutor to share all useful information with the defendant.” (Citations omitted; emphasis
Pierce v. Commissioner of Correction
res judicata because he had previously raised the issue
of prosecutorial impropriety, based on a failure to disclose allegedly exculpatory information related to C, in
his prior habeas petition. According to the petitioner,
he specifically pleaded in the present action “that there
were three new documents that were exculpatory and
material to [his] case, which were not disclosed by the
state before [he] entered his [nolo contendere] pleas. . . . [The] petitioner sufficiently alleged new facts and new
evidence that would, if proven, entitle him to relief.
Whether the alleged evidence was available at the time
of his prior habeas trial would be a factual issue for the
habeas court to resolve at the time of the habeas trial.
Thus, the habeas court’s decision to dismiss count one
omitted; internal quotation marks omitted.) Friedman v. Rehal, 618 F.3d 142, 153 (2d Cir. 2010). The court further observed that “Ruiz did not explicitly address” evidence that falls within the broader definition of exculpatory evidence. Id. Following Ruiz, the Second Circuit also stated that, “[i]n order to establish that a Brady violation has occurred before a guilty plea, a defendant must show, among other things, that the government failed to disclose exculpatory evidence.” (Emphasis added.) United States v. McDonald, Docket No. 23-6004-cr, 2024 WL 4356387, *1 (2d Cir. October 1, 2024); id., *1–2 (failure to disclose impeachment evidence “that could have been used at trial to undermine the victim’s anticipated testimony” prior to guilty plea does not give rise to constitutional violation, but failure to disclose exculpatory evidence prior to guilty plea may give rise to Brady violation). Although decisions of the Second Circuit are not binding on our courts, they are “particularly persuasive” in resolving issues of federal law. State v. Langston, 346 Conn. 605, 618, 294 A.3d 1002 (2023), cert. denied,
U.S. , 144 S. Ct. 698, 217 L. Ed. 2d 391 (2024).
Practice Book § 39-18 (a) is consistent with this approach in the context of disclosure by the prosecuting authority prior to the entry of a plea: “In the discretion of the judicial authority, the defendant may enter a plea of guilty or nolo contendere to the information or complaint at arraignment or any later time, provided that the judicial authority confirms in open court that the defendant has received all discovery materials that he or she requested in writing pursuant to Chapter 40 that are within the possession of the prosecuting authority. If the defendant has not received all requested discovery, the judicial authority shall confirm that the defendant and his or her counsel agree to waive any right to receive further disclosure, before allowing the defendant to enter the plea. Any such waiver shall not apply to the prosecuting authority’s continuing obligation to disclose exculpatory information or materials pursuant to Sections 40-3 and 40-11.”
Pierce v. Commissioner of Correction
is incorrect.” (Citation omitted; emphasis omitted; footnote omitted.) The petitioner also argues that “there
is no res judicata because these three alleged pieces of
evidence are different than what was alleged in the first
habeas trial. The factual allegations are also different
than those alleged in the first habeas [action].” Finally,
the petitioner argues that the court improperly found,
in the absence of proper support in the record, that the
evidence at issue was not new because it was available to
him at the time of the first habeas proceeding.
The following principles are relevant to our analysis:
“The conclusions reached by the [habeas] court in its
decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court]
must determine whether they are legally and logically
correct . . . and whether they find support in the facts
that appear in the record. . . . To the extent that factual findings are challenged, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous . . . .
“The doctrine of res judicata provides that a former
judgment serves as an absolute bar to a subsequent action
involving any claims relating to such cause of action [that] were actually made or which might have been made. . . .
The doctrine . . . applies to criminal 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 constitutional rights . . . the application
of the doctrine of res judicata . . . [is limited] to claims that actually have been raised and litigated in an earlier
proceeding. . . .
“In the context of a habeas action, a court must determine whether a petitioner actually has raised a new legal
ground for relief or only has alleged different factual
Pierce v. Commissioner of Correction
allegations in support of a previously litigated claim . . . . Identical grounds may be proven by different factual
allegations, supported by different legal arguments or
articulated in different language. . . . [T]wo grounds are
not identical if they seek different relief. . . .
“[T]he doctrine of res judicata in the habeas context
must be read in conjunction with Practice Book § 23-29
(3), which narrows its application. . . . [Section] 23-29
states 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. . . . Thus, a . . . petition alleging the same ground [previously litigated]
will elude dismissal if it alleges grounds not actually
litigated in [an earlier proceeding] and if it alleges new
facts or proffers new evidence not reasonably available
at the time of the earlier [proceeding]. . . . In this context, a ground has been defined as sufficient legal basis
for granting the relief sought. Simply put, an applicant
must show that his application does, indeed, involve a
different legal ground, not merely a verbal reformulation
of the same ground. . . . Further, this doctrine applies
equally to claims litigated on direct appeal, not just to
claims raised in prior habeas petitions. . . .
“It is incumbent on the petitioner to establish that
evidence would not have been reasonably available at the
time of a prior petition. . . . [Thus] when [a] petitioner
[brings] a claim on the same legal ground and [seeks]
the same relief, he can avoid dismissal only by alleging
and demonstrating that evidence necessary to support
the newly asserted facts was not reasonably available at
the time of the prior petition . . . .” (Citations omitted; emphasis omitted; internal quotation marks omitted.)
Anwar S. v. Commissioner of Correction, 237 Conn. App.
144, 159–61, 351 A.3d 819, cert. denied, 354 Conn. 942,
356 A.3d 345 (2026); see also Kearney v. Commissioner
Pierce v. Commissioner of Correction
of Correction, 113 Conn. App. 223, 235, 965 A.2d 608
(2009) (explaining res judicata in habeas corpus context).
First, we conclude that, in count one of the third
amended petition in the present action, the petitioner
set forth the same ground that was raised in the prior
petition and disposed of in the prior habeas action. The
petitioner argues that the purpose of the evidence at issue in the present action was to show “that the police failed to properly investigate,” and, in contrast, the purpose of the evidence at issue in the prior habeas action was to impeach C’s confessions. We consider this to be an attempt by the
petitioner to verbally reformulate the same ground. See
Davis v. Commissioner of Correction, 109 Conn. App. 92,
97, 950 A.2d 587 (petitioner was precluded from raising
essentially same claim in second habeas action when he
failed to demonstrate that petition involved different
legal ground), cert. denied, 289 Conn. 930, 958 A.2d
157 (2008). In both the present third amended petition
and the prior petition, the petitioner alleged that, prior
to his nolo contendere pleas, the prosecution failed to
disclose exculpatory materials that were related to C’s
involvement in certain crimes that she had committed
against his grandmother. In both actions, the petitioner
sought the same relief, a new trial.
Second, we conclude that the habeas court properly
concluded that the petitioner had failed to satisfy his
burden of establishing “that [the] evidence [not disclosed
by the prosecution] would not have been reasonably available [to him] at the time of [the] prior petition.” (Internal quotation marks omitted.) Anwar S. v. Commissioner of
Correction, supra, 237 Conn. App. 161. As stated previously in this opinion, having raised the same ground as
was raised in the prior petition, the petitioner needed
to allege and demonstrate “that evidence necessary to
support the newly asserted facts was not reasonably
available at the time of the prior petition . . . .” (Internal quotation marks omitted.) Id. The petitioner argues that
the court failed to credit the facts as alleged in count one of his third amended petition and that he specifically
Pierce v. Commissioner of Correction
alleged “that there were three new pieces of exculpatory
evidence or otherwise material evidence that were not
available at the time of the prior habeas.” Our review of
the petition reflects that the petitioner alleged therein
that the evidence at issue was not disclosed prior to his
nolo contendere pleas and that timely disclosure of the
evidence would have resulted in a favorable outcome to
him. The petitioner did not specifically allege that the
evidence was not reasonably available to him at the time
of the prior petition. The petitioner also argues that “[his] claim that the materials were unavailable because they
were suppressed was sufficient to elude dismissal.” Even
if we were to assume that the prosecution had failed to
disclose the evidence, that does not necessarily lead to
the conclusion that the petitioner through reasonable
efforts could not have obtained it on his own.9
The transcript of the hearing on the motion to dismiss
supports the habeas court’s observation that, although
the petitioner’s attorney disputed that the evidence
at issue in count one was reasonably available to the
petitioner at the time of the prior habeas petition, the
petitioner did not explain why the evidence was not reasonably available to him at the time of the prior petition. The respondent’s attorney specifically argued that,
because the documents at issue were public records, they
appeared to be reasonably available to the petitioner
at the time that he brought the prior habeas petition.
The petitioner did not submit any evidence concerning
whether the evidence was reasonably available to him at
the time of the prior petition. Instead, the petitioner’s
attorney represented to the court that she believed the
petitioner had “filed complaints and there [were] investigations into the failures by law enforcement,” and
that the petitioner had obtained the evidence at issue
by means of requests made under the FOIA. In light of
the foregoing, the court properly concluded that the
petitioner did not satisfy his burden of demonstrating
9
We note that, in his reply to the respondent’s return, the petitioner stated that count one “is based on new facts and evidence not reasonably available at the time of the prior petition . . . .”
Pierce v. Commissioner of Correction
that the materials were not reasonably available to him
at the time of the prior petition.
Lastly, the petitioner argues that the habeas court made
a finding of fact that was not supported by evidence. The
petitioner focuses on the portion of the court’s decision
in which it observed that his attorney had acknowledged
that the petitioner ultimately obtained these documents
by means of a FOIA request and in which the court stated
that “[s]uch easy availability” undermined the petitioner’s argument that they were not readily available to
the petitioner and could have been a subject of the prior
habeas petition. The petitioner correctly observes that
the court did not hear any evidence in connection with
the motion to dismiss, and he argues that “when [these
materials] became reasonably available [was a] critical,
factual jurisdictional [issue] that the habeas court was
required to determine before dismissing count one.”
The petitioner states that “it was inappropriate for the
habeas court to determine that these records were readily
available without an evidentiary hearing.”
Despite correctly recognizing that whether and when
the records were reasonably available to him was a “critical, factual” issue in resolving the respondent’s motion
to dismiss, the petitioner does not draw our attention to
any indication in the record that he sought to introduce
any evidence whatsoever, as was his burden in opposing
the motion, or that he was denied an opportunity to do
so. In his September 7, 2023 notice that there would
be a hearing concerning the first count of the amended
habeas petition, Judge Bhatt clearly indicated that the
purpose of the hearing was “to determine why the first
count of the amended petition . . . should not be dismissed. More specifically, this hearing will determine
whether the petition is successive, in that it 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.”
(Emphasis added.) The petitioner does not suggest that
Pierce v. Commissioner of Correction
he was unaware of the purpose of the hearing that took
place on December 13, 2023.
As we stated previously, it was the petitioner’s burden
in opposing the respondent’s motion to dismiss to establish that the evidence at issue would not have been reasonably available at the time of a prior petition. This court
has stated that a petitioner “can avoid dismissal only
by alleging and demonstrating that evidence necessary
to support the newly asserted facts was not reasonably
available at the time of the prior petition . . . .” (Emphasis altered; internal quotation marks omitted.) Anwar S.
v. Commissioner of Correction, supra, 237 Conn. App.
161. The petitioner did not distinctly allege in his habeas petition that the evidence was not reasonably available
to him at the time of the prior petition. Following the
hearing on the motion to dismiss, the habeas court determined that the petitioner failed to demonstrate that the
evidence at issue was not reasonably available to him.
The record supports that determination, which was a
sufficient basis on which to grant the motion to dismiss.
The habeas court thereafter referred to the factual
representations made by the petitioner’s attorney that
the documents at issue were public records and that
the petitioner had obtained them by means of FOIA
requests. Insofar as the court appears to have relied on
those representations to find that the documents were
reasonably available to the petitioner, that was improper
because the representations of counsel are not evidence.
See, e.g., Norberg-Hurlburt v. Hurlburt, 162 Conn. App.
661, 670, 133 A.3d 482 (2016) (“[t]his court, as well as
our Supreme Court, repeatedly has stated that representations of counsel are not evidence” (internal quotation
marks omitted)). As stated, the court’s determination
that the petitioner failed to demonstrate that evidence
necessary to support the newly asserted facts in the
present petition was not reasonably available to him
at the time of his prior petition was a sufficient basis
on which to grant the respondent’s motion to dismiss.
In light of that determination, the petitioner is unable
Pierce v. Commissioner of Correction
to demonstrate that the court’s error in relying on the
factual representations of the petitioner’s attorney was
harmful in that it was likely to have affected the court’s
ruling on the motion to dismiss. “[T]he harmless error
standard in a civil case is whether the improper ruling would likely affect the result. . . . Generally, a trial court’s ruling will result in a new trial only if the ruling was both wrong and harmful. . . . A petition for a writ of
habeas corpus is a civil action . . . therefore, in order to prevail, the petitioner must be able to satisfy the harmless error standard.” (Emphasis in original; internal
quotation marks omitted.) Nicholson v. Commissioner
of Correction, 186 Conn. App. 398, 422, 199 A.3d 573
(2018), cert. denied, 330 Conn. 961, 199 A.3d 19, cert.
denied sub nom. Nicholson v. Cook, 589 U.S. 944, 140
S. Ct. 70, 205 L. Ed. 2d 76 (2019).10
Because the petitioner failed to demonstrate that count
one of his third amended petition alleged a ground not
previously litigated in an earlier habeas proceeding or
involved new evidence not available at the time of his
earlier habeas petition, the habeas court properly dismissed count one of the petitioner’s third amended habeas
petition.
The judgment is affirmed.
In this opinion the other judges concurred.
10
For the first time on appeal, the petitioner argues that one of the materials at issue in count one of his third amended habeas petition, “an internal affairs report,” was not generated until 2014. The petitioner neither alerted the habeas court to this fact nor presented the report to the court in an attempt to demonstrate that it was not reasonably available to him at the time of his prior habeas petition. In any event, if the report did not exist until after the prior habeas trial in 2014, it is difficult to comprehend how the prosecution improperly failed to disclose it to the petitioner prior to his nolo contendere pleas in 2008.