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*********************************************** 
SCOTT CRAWLEY v. COMMISSIONER

OF CORRECTION

(AC 41052)

Keller, Elgo and Eveleigh, Js.

Syllabus

The petitioner, who had been convicted of possession of narcotics with the

intent to sell by a person who is not drug-dependent, sought a writ of

habeas corpus. He claimed, inter alia, that his criminal trial counsel

rendered ineffective assistance by failing to move to suppress cocaine

that the police found during a search of his bedroom in the residence

of the home in which he had been staying. The petitioner also claimed,

inter alia, that his habeas counsel in a prior habeas action rendered

ineffective assistance by failing to raise that claim of ineffective assistance of trial counsel. The police had found the cocaine after they

obtained the written consent of the owner of the home to search the

petitioner’s bedroom. The habeas court dismissed the petitioner’s claims

that his trial counsel rendered ineffective assistance, concluding that

they were barred by the successive petition doctrine codified in the

applicable rule of practice (§ 23-29 [3]). The court also determined that

the petitioner failed to prove deficient performance by his prior habeas

counsel or prejudice that resulted therefrom. The court thereafter

granted the petitioner’s petition for certification to appeal, and the petitioner appealed to this court. Held:

1. The habeas court properly dismissed the petitioner’s claims of ineffective

assistance of trial counsel pursuant to the successive petition doctrine

in § 23-29 (3); the petitioner’s claims were predicated on the same ground

that was raised in his prior habeas action, the petitioner did not allege

that his claims were based on newly discovered facts or evidence, and

he sought the very same relief that he had requested in the first

habeas action.

2. The petitioner could not prevail on his assertion that the habeas court

improperly denied his claim of ineffective assistance of prior habeas

counsel; trial counsel’s failure to file a motion to suppress the drugs

that were found in the petitioner’s bedroom predicated on a theory that

the petitioner exclusively possessed the bedroom and, by extension,

the cocaine discovered therein, was not objectively unreasonable, as

trial counsel necessarily had to weigh the motion’s limited probability

of success against its potential impact on a contrary theory of defense

that was based on the petitioner’s nonexclusive use of the bedroom,

counsel had to be mindful that any suppression hearing testimony by

the petitioner regarding his exclusive possession of the bedroom could

be used against him at trial, which made the pursuit of a motion to

suppress fraught with risk, and because the petitioner did not demonstrate deficient performance on the part of his trial counsel, his claim

of ineffective assistance of prior habeas counsel necessarily failed.

Argued September 16—officially released November 26, 2019

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland and tried to the court, Sferrazza, J.; judgment

dismissing the petition in part and denying the petition

in part, from which the petitioner, on the granting of

certification, appealed to this court. Affirmed.

Cheryl A. Juniewic, assigned counsel, for the appellant (petitioner).

Laurie N. Feldman, special deputy assistant state’s

attorney, with whom, on the brief, were Brian Preleski,
state’s attorney, and Angela R. Macchiarulo, senior

assistant state’s attorney, for the appellee (respondent).
Opinion

ELGO, J. The petitioner, Scott Crawley, appeals from

the judgment of the habeas court dismissing in part and

denying in part his amended petition for a writ of habeas

corpus. He contends that the court improperly rejected

his claims of ineffective assistance on the part of both

his criminal trial counsel and his first habeas counsel.

We affirm the judgment of the habeas court.

This appeal concerns the petitioner’s convictions on

two counts of possession of narcotics with the intent

to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The relevant facts

underlying those convictions were set forth in this

court’s decision on the petitioner’s direct appeal. ‘‘On

September 5, 2002, Joseph Amato, a detective with the

Manchester police department who was assigned to

the federal Drug Enforcement Administration, informed

Thomas Dillon, then a detective with the Wethersfield

police department, that the [petitioner] possessed a

‘large quantity of cocaine.’ Amato informed Dillon of

the [petitioner’s] known address in Wethersfield and

related information concerning [the petitioner’s] automobile and license plate number. During his subsequent

investigation, Dillon learned that the [petitioner’s] operator’s license was suspended.

‘‘On September 6, 2002, Dillon conducted surveillance

at the Wethersfield address given to him by Amato.

Dillon observed the [petitioner] get into his automobile

and drive away. At Dillon’s request, Christopher Morris,

a Wethersfield police officer, stopped the [petitioner’s]

automobile at a gasoline station and arrested the [petitioner] on a charge of driving with a suspended license.

Morris searched the [petitioner] incident to the arrest

and found a bag containing 120 smaller bags of cocaine,

in a powder mixture, in one of the front pockets of the

[petitioner’s] pants. The cocaine powder weighed 87.32

grams and consisted of between 17 to 60 percent

pure cocaine.

‘‘Later that day, Robert Deroehn, a detective with the

Wethersfield police department, arrived at the [petitioner’s] known residence in Wethersfield, 7 Spring Street

[residence]. There, Deroehn encountered Daniel Hardrick, who owned the residence. Hardrick told Deroehn

that the [petitioner] did not live at the residence but

that the [petitioner] ‘stayed there.’ Hardrick signed a

consent form, thereby permitting the police to enter and

search the home without a warrant. Amato searched

the [petitioner’s] room and discovered a postal mailing

tube that contained two bags of cocaine, in a powder

mixture, in the closet in the [petitioner’s] room. One

bag contained 26.73 grams of cocaine powder separated

into thirty-eight smaller bags. Another bag contained

62.60 grams of cocaine powder and consisted of 72

percent pure cocaine. On the basis of evidence concern-
ing, inter alia, the quantities of cocaine possessed by

the [petitioner], as well as the quantities of cocaine

typically possessed by persons who intend to sell

cocaine, the jury reasonably found that the [petitioner]

possessed both stashes of cocaine with the intent to

sell them.’’ State v. Crawley, 93 Conn. App. 548, 550–51,

889 A.2d 930, cert. denied, 277 Conn. 925, 895 A.2d 799

(2006). The jury thus found the petitioner guilty on all

counts, and the trial court rendered judgments accordingly, sentencing the petitioner to a total effective term

of thirty years of incarceration. Id., 550 n.1. From those

judgments, the petitioner unsuccessfully appealed to

this court.1

Id., 569.

The petitioner commenced his first habeas action in

2006, alleging that his criminal trial counsel, Attorney

Donald Freeman, had rendered ineffective assistance

by failing (1) to present evidence that the petitioner

was a drug-dependent person and (2) to preserve his

right to sentence review. The petitioner was represented by Attorney Hilary Carpenter at the habeas trial,

at the conclusion of which the court agreed with the

petitioner’s latter contention and restored his right to

sentence review.2 At the same time, the court rejected

his other claim of ineffective assistance of counsel.

From that judgment, the petitioner unsuccessfully

appealed to this court. See Crawley v. Commissioner

of Correction, 141 Conn. App. 660, 62 A.3d 1138, cert.

denied, 308 Conn. 946, 68 A.3d 656 (2013).

In subsequent years, the petitioner filed four successive petitions for a writ of habeas corpus. The habeas

court dismissed each of those petitions.

The petitioner commenced the present habeas action

in 2014. In his petition, the petitioner alleged ineffective

assistance on the part of Freeman due to his failure (1)

to move to suppress the cocaine found in the residence

and (2) to provide a competent summation to the jury.

The petitioner further alleged ineffective assistance on

the part of Carpenter due to her failure to raise those

two claims of ineffective assistance of trial counsel in

his first habeas action. In answering that petition, the

respondent, the Commissioner of Correction, alleged a

successive petitions defense, claiming that the petitioner’s claims were ‘‘premised upon the same legal

grounds’’ that he asserted in his first habeas action.

Following a trial, the habeas court, relying on the successive petition doctrine, dismissed the two counts

alleging ineffective assistance of trial counsel and

denied the petition in all other respects. The court subsequently granted certification to appeal from that judgment, and this appeal followed.

I

The petitioner first claims that Freeman rendered

ineffective assistance by failing to file a motion to suppress the cocaine found in the residence. In rejecting
that claim, the court concluded that it was barred by

the successive petition doctrine. We agree.

As our Supreme Court has observed, the successive

petition doctrine involves the ‘‘one situation in which a

court is not ‘legally required’ to hear a habeas petition.’’

Mercer v. Commissioner of Correction, 230 Conn. 88,

93, 644 A.2d 340 (1994). The doctrine is codified in

Practice Book § 23-29, which 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 . . . .’’ That rule comports

with the teaching of Negron v. Warden, 180 Conn. 153,

158, 429 A.2d 841 (1980), in which the Supreme Court

held that ‘‘trial courts may dismiss a second [habeas]

application without a hearing only if that application

asserts the same grounds and fails to state new facts

or proffer new evidence not reasonably available to the

petitioner at the hearing on his previous application.’’

In the present case, the habeas court dismissed the

two counts of ineffective assistance on the part of the

petitioner’s trial counsel pursuant to Practice Book

§ 23-29 (3), concluding that they were predicated on

the same ground that was raised in the petitioner’s first

habeas action. On our plenary review of the record; see

Gudino v. Commissioner of Correction, 191 Conn. App.

263, 271, 214 A.3d 383, cert. denied, 333 Conn. 924,

A.3d (2019); we agree.

This court previously has held that ‘‘[a] claim of ineffective assistance of counsel during trial proceedings

constitutes the ‘same ground’ for purposes of [Practice

Book] § 23-29 (3), despite changes in the precise underlying specifications of deficient performance, unless

such new specifications are based on facts or evidence

not reasonably available when the ground was raised

in the earlier petition.’’ Lebron v. Commissioner of Correction, 178 Conn. App. 299, 318, 175 A.3d 46 (2017),

cert. denied, 328 Conn. 913, 179 A.3d 779 (2018); see

also Alvarado v. Commissioner of Correction, 153

Conn. App. 645, 651, 103 A.3d 169 (‘‘[w]e . . . note that

there is no claim that the third habeas petition contains

newly discovered facts’’), cert. denied, 315 Conn. 910,

105 A.3d 901 (2014). As in the petitioner’s first habeas

action, the first two counts of the operative petition here

allege ineffective assistance on the part of Freeman.

The petitioner has not alleged that those counts are

based on newly discovered facts or evidence. Moreover,

the petitioner seeks the very same relief that he

requested in his first habeas action—namely, vacatur

of his conviction. In such circumstances, the successive

petition doctrine plainly applies. See Zollo v. Commissioner of Correction, 133 Conn. App. 266, 279, 35 A.3d
337 (applying successive petition doctrine when ‘‘the

petitioner’s second habeas petition was not founded on

a new legal ground, nor does it seek different relief’’),

cert. granted, 304 Conn. 910, 39 A.3d 1120 (2012) (appeal

dismissed May 1, 2013); McClendon v. Commissioner

of Correction, 93 Conn. App. 228, 231, 888 A.2d 183

(‘‘where successive petitions are premised on the same

legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the

petition is supported by allegations and facts not reasonably available to the petitioner at the time of the

original petition’’), cert. denied, 277 Conn. 917, 895 A.2d

789 (2006). In light of the foregoing, we conclude that

the habeas court properly dismissed the counts alleging

ineffective assistance on the part of Freeman.

II

The petitioner also challenges the court’s determination that he had not proven ineffective assistance on

the part of Carpenter, his first habeas counsel, for failing

to raise an additional claim of ineffectiveness by Freeman.3 The successive petition doctrine does not operate

as a bar to that claim. As our Supreme Court has

explained, in such instances, ‘‘the second habeas petition is not predicated on the same issues addressed

in the first petition. Although the petitioner must, by

necessity, repeat his allegations of trial counsel’s inadequacy, there may never have been a proper determination of that issue in the first habeas proceeding because

of the allegedly incompetent habeas counsel. The claim

of ineffective assistance of habeas counsel, when added

to the claim of ineffective assistance of trial counsel,

results in a different issue.’’ Lozada v. Warden, 223

Conn. 834, 844, 613 A.2d 818 (1992). Accordingly, we

must consider the merits of the petitioner’s claim.

To prevail on an ineffective assistance of habeas

counsel claim, commonly referred to as a habeas on a

habeas, ‘‘the petitioner must prove both (1) that his

appointed habeas counsel was ineffective, and (2) that

his trial counsel was ineffective. . . . As to each of

those inquiries, the petitioner is required to satisfy the

familiar two-pronged test set forth in Strickland v.

Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984)]. First, the [petitioner] must show that

counsel’s performance was deficient. . . . Second, the

[petitioner] must show that the deficient performance

prejudiced the defense. . . . Unless a [petitioner]

makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary

process that renders the result unreliable. . . . In other

words, a petitioner claiming ineffective assistance of

habeas counsel on the basis of ineffective assistance

of trial counsel must essentially satisfy Strickland

twice . . . .

‘‘It is well settled that in reviewing the denial of a

habeas petition alleging the ineffective assistance of
counsel, [t]his court cannot disturb the underlying facts

found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by

the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.’’ (Internal quotation marks omitted.)

Brewer v. Commissioner of Correction, 189 Conn. App.

556, 561–62, 208 A.3d 314, cert. denied, 332 Conn. 903,

208 A.3d 659 (2019).

On appeal, the petitioner alleges that Carpenter, as

habeas counsel, rendered ineffective assistance in failing to pursue an ineffective assistance of trial counsel

claim in his first habeas action regarding Freeman’s

failure to move to suppress the cocaine found in the

residence.4 Specifically, the petitioner alleges that there

was a lack of consent for the search due to his exclusive

possession of the bedroom in which the cocaine was

found. Freeman’s failure to file a motion to suppress on

that basis underlies the petitioner’s claim of ineffective

assistance of habeas counsel.

The following additional facts are relevant to that

claim. In his operative petition, the petitioner alleged,

inter alia, that the search of the residence was conducted ‘‘without valid consent . . . .’’ At the habeas

trial, the court was presented with uncontroverted evidence that the petitioner was thirty-seven years old at

the time in question and resided at the two bedroom

residence with his mother and Hardrick, his stepfather.

The court also was presented with documentary and

testimonial evidence that Hardrick, acting in his capacity as an owner of the residence, had signed a written

consent form prior to the search of the residence conducted on September 6, 2002. A copy of that consent

form, which was admitted into evidence, authorized

members of the Wethersfield Police Department ‘‘to

conduct a complete search’’ of the residence. The court

also received evidence that, prior to the petitioner’s

criminal trial, Freeman had filed a motion to suppress

‘‘any and all items seized on September 6, 2002 by the

Wethersfield Police Department,’’ arguing that such

items constituted the fruits of an unlawful search and

seizure conducted as part of an automobile stop on

the previous day, which the trial court denied.5 At his

criminal trial, the petitioner’s theory of defense was

that he lacked exclusive possession of the bedroom in

which the cocaine was found.6

It is well established that ‘‘[a] warrantless search is

not unreasonable under either the fourth amendment

to the constitution of the United States or article first,

§ 7, of the constitution of Connecticut if a person with

authority to do so has freely consented to the search.

. . . The state bears the burden of proving [by a preponderance of the evidence] that the consent was free and

voluntary . . . .’’ State v. Jenkins, 298 Conn. 209, 249,

3 A.3d 806 (2010). In light of the written consent form
signed by Hardrick, as well as Hardrick’s testimony that

the Wethersfield police officers received his consent

to search the residence, the state likely could have

established at a suppression hearing that Hardrick’s

consent was freely and voluntarily provided.

The proper scope of that consent is another question

altogether. On appeal, the petitioner maintains that

Freeman rendered ineffective assistance by not pursuing a motion to suppress predicated on Hardrick’s

alleged lack of authority to consent to the search of his

stepson’s bedroom.

In State v. Azukas, 278 Conn. 267, 897 A.2d 554 (2006),

our Supreme Court articulated the legal principles that

govern third-party consent when a parental relationship

is present. The court first observed that ‘‘the overwhelming majority of the cases hold that a parent may

consent to a police search of a home that is effective

against a child, if a son or a daughter, whether or not

still a minor, is residing in the home with the parents

. . . .’’7

(Internal quotation marks omitted.) Id., 278;

accord United States v. Romero, 749 F.3d 900, 905 (10th

Cir. 2014) (‘‘when a child lives with a parent, the parentchild relationship establishes a presumption that the

parent has control for most purposes over the property

and therefore actual authority to consent to a search

of the entire home’’); State v. Crumb, 307 N.J. Super.

204, 243–44, 704 A.2d 952 (App. Div. 1997) (‘‘[e]ven in

cases where the child has reached adulthood, courts

have been reluctant to find that the son or daughter had

exclusive possession of a room in the parent’s home’’).

To overcome that presumption of parental authority,

our Supreme Court explained, ‘‘the child must establish

sufficiently exclusive possession of the room to render

the parent’s consent ineffective. . . . Factors [to consider] when evaluating whether a child has established

sufficiently exclusive possession of the room include:

whether the child is paying rent; who has ownership of

the home; whether the door to the bedroom is generally

kept closed; whether there is a lock on the door;

whether other members of the family use the room;

and whether other members of the family had access

to the room for any reason.’’ (Citation omitted; internal

quotation marks omitted.) State v. Azukas, supra, 278

Conn. 278. The petitioner claims that Freeman rendered

ineffective assistance in failing to pursue such a claim.

We do not agree.

At the habeas trial, the petitioner submitted testimonial evidence to support his claim that he possessed

exclusive possession over the bedroom in question.

Specifically, the petitioner testified that his exclusive

occupancy of the residence’s second bedroom ‘‘was

generally known’’ among family members who shared

that residence and that he was the only person who

could permit access to that bedroom. The petitioner

further testified that the bedroom door had a lock, that
he kept the door shut, and that he paid rent. The petitioner also called Hardrick as a witness, who testified

that no one was allowed into the bedroom without the

petitioner’s permission.

At the same time, that evidence of exclusive possession was undercut by testimony at the habeas trial from

Hardrick’s grandson, Glenn Miller. Contrary to Hardrick’s testimony that Miller never slept at the residence, Miller testified that he had stayed at the residence on ‘‘one or two weekends’’ per month. When he

did so, Miller testified, he ‘‘stayed upstairs’’ in what he

called the ‘‘spare’’ bedroom ‘‘[m]ost of the time . . . .’’

Miller testified that he never obtained the petitioner’s

permission to do so; rather, Hardrick had provided such

permission. The petitioner’s claim of exclusive possession also is contrary to the testimony of Detective

Deroehn, who obtained Hardrick’s consent to search

the residence on September 6, 2002. Deroehn testified

at the petitioner’s criminal trial that Hardrick ‘‘told him

that the [petitioner] did not live at the residence’’ and

only ‘‘ ‘stayed there’ occasionally.’’ State v. Crawley,

supra, 93 Conn. App. 561. For that reason, the habeas

court aptly observed that ‘‘suppression of the cocaine

found in the bedroom was a mere possibility rather

than a probability.’’

In considering the viability of a motion to suppress

that is based on a theory of exclusive possession of the

bedroom, Freeman necessarily had to weigh its limited

probability of success against its potential impact on a

contrary theory of defense predicated on the petitioner’s nonexclusive use of the bedroom. As both Freeman

and the petitioner confirmed at the habeas trial, Freeman’s objective was to distance the petitioner from the

cocaine found in the bedroom. Freeman also had to be

mindful that any suppression hearing testimony provided by the petitioner regarding his exclusive possession of the bedroom in question could be used against

him at trial for impeachment purposes. See United

States v. Jaswal, 47 F.3d 539, 543–44 (2d Cir. 1995)

(holding that defendant’s testimony at suppression

hearing can be used to impeach defendant’s testimony

at trial but not to prove guilt); State v. Vega, 163 Conn.

304, 307–308, 306 A.2d 855 (1972) (defendant’s testimony at suppression hearing admissible at subsequent

trial as prior inconsistent statement). For that reason,

we agree with the habeas court that the pursuit of

a motion to suppress predicated on the petitioner’s

allegedly exclusive possession of the bedroom was one

fraught with risk.

‘‘In any case presenting an ineffectiveness claim, the

performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. . . . Judicial scrutiny of counsel’s performance must be highly deferential and courts must

indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional

assistance; that is, the [petitioner] must overcome the

presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’’

Brewer v. Commissioner of Correction, supra, 189

Conn. App. 561–62. On our review of the record before

us, we conclude that the petitioner has not overcome

that presumption. Freeman’s failure to file a motion

to suppress predicated on a theory that the petitioner

exclusively possessed the bedroom in question and,

by extension, the cocaine discovered therein, was not

objectively unreasonable in light of the particular circumstances of this case. We therefore conclude that

the petitioner has not demonstrated deficient performance on the part of his criminal trial counsel.

In light of that conclusion, the petitioner’s ineffective

assistance of habeas counsel claim necessarily fails.

See Lozada v. Warden, supra, 223 Conn. 842–43; Denby

v. Commissioner of Correction, 66 Conn. App. 809, 814,

786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789

A.2d 994 (2002). Accordingly, the court properly denied

the petition for a writ of habeas corpus with respect

to that claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1

In his direct appeal, the petitioner alleged instructional error, a double

jeopardy violation, and that the evidence adduced at trial was insufficient

to establish his possession of the cocaine discovered at the residence. State

v. Crawley, supra, 93 Conn. App. 550.

2 The sentence review division thereafter modified the petitioner’s total

effective sentence, which resulted in a reduction thereto. See Crawley v.

Commissioner of Correction, 141 Conn. App. 660, 663 n.2, 62 A.3d 1138,

cert. denied, 308 Conn. 946, 68 A.3d 656 (2013).

3 With respect to the petitioner’s claims of ineffective assistance of habeas

counsel, the habeas court concluded that the petitioner had failed to prove

either deficient performance on the part of counsel or prejudice resulting

therefrom.

4 Although he also alleged, in counts two and four of the operative petition,

ineffective assistance predicated on Freeman’s failure to provide a competent summation to the jury, the petitioner has raised no claim in this appeal

with respect thereto. We therefore deem any such claims abandoned. See

Moye v. Commissioner of Correction, 168 Conn. App. 207, 212 n.3, 145 A.3d

362 (2016), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017).

5 A copy of the motion to suppress and accompanying memorandum of

law, dated December 4, 2002, was admitted into evidence at the habeas

trial. Freeman likewise confirmed at trial that he recalled ‘‘arguing repeatedly

that once the [automobile] stop is suppressed and found to be bogus, everything else, including that Wethersfield search,’’ must be suppressed. The

record before us also includes a copy of the transcript of the August 12,

2003 hearing on the motion to suppress, at which Freeman argued in relevant

part that ‘‘if that [automobile] stop was bad, then everything that happened

in Wethersfield . . . was a direct result of that [automobile] stop and [is

the fruit] of a poisonous tree, and everything is suppressed.’’

6 As this court noted in the petitioner’s direct appeal, the petitioner argued

‘‘that the evidence did not demonstrate that he exclusively possessed the

premises where the narcotics were found.’’ State v. Crawley, supra, 93

Conn. App. 562. In his testimony at the habeas trial, the petitioner likewise

confirmed that Freeman’s argument at trial was that the state could not

connect him to the cocaine discovered in the residence.

7 With respect to familial relationships, we note that our Supreme Court

has concluded that the consent of a stepmother, as memorialized on a signed

consent form, to search her stepson’s bedroom was valid. See State v. Jones,

193 Conn. 70, 77–81, 475 A.2d 1087 (1984).