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FRED ANDERSON v. COMMISSIONER

OF CORRECTION

(AC 34959)

DiPentima, C. J., and Alvord and Flynn, Js.

Argued January 13—officially released March 11, 2014

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

Kenneth Paul Fox, assigned counsel, for the appellant (petitioner).

Lawrence J. Tytla, supervisory assistant state’s attorney, with whom, on the brief, was Michael L. Regan,

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

PER CURIAM. The petitioner, Fred Anderson,

appeals following a grant of certification to appeal by

the habeas court from the judgment of the habeas court

dismissing his third amended petition for a writ of

habeas corpus. On appeal, the petitioner asserts that

the court improperly dismissed count three1 of his third

amended petition on the grounds that it failed to state

a claim upon which relief can be granted and that it

was barred by the doctrine of res judicata. We disagree

and affirm the judgment of the habeas court.

The following facts and procedural history are relevant to this appeal. The petitioner was convicted, after

a jury trial, of unlawful restraint in the first degree in

violation of General Statutes § 53a-95, assault in the first

degree with intent to disfigure another person seriously

and permanently in violation of General Statutes § 53a59 (a) (2), and interfering with an officer in violation

of General Statutes § 53a-167a. He was sentenced to a

total effective term of sixteen years imprisonment. The

petitioner appealed from his conviction, which we

affirmed in State v. Anderson, 74 Conn. App. 633, 813

A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837

(2003). Our Supreme Court denied certification to

appeal. State v. Anderson, 263 Conn. 901, 819 A.2d

837 (2003).

After his direct appeal, the petitioner brought his first

petition for a writ of habeas corpus alleging prosecutorial impropriety and ineffective assistance of both

trial and appellate counsel. Following a trial, the habeas

court, Hon. Anthony V. DeMayo, judge trial referee,

(first habeas court), denied the petition on March 17,

2005. We affirmed the judgment of the first habeas court

and our Supreme Court denied certification to appeal.

Anderson v. Commissioner of Correction, 95 Conn.

App. 901, 895 A.2d 872, cert. denied, 278 Conn. 921, 901

A.2d 43 (2006). Thereafter, the petitioner filed a second

petition for a writ of habeas corpus alleging ineffective

assistance of habeas, trial, and appellate counsel. Following a trial, the habeas court, Nazarro, J. (second

habeas court), denied the petition in a written memorandum of decision on May 5, 2010. The attorney

appointed to appeal the second habeas court’s ruling

filed an appeal with this court. The matter was withdrawn from the Appellate Court on March 7, 2011.

On February 9, 2010, the petitioner filed his third

amended petition for a writ of habeas corpus, which is

the subject of the present appeal, alleging prosecutorial

impropriety and ineffective assistance of his trial, appellate, and first and second habeas counsel. Prior to the

scheduled trial date of March 9, 2012, the respondent,

the Commissioner of Correction, filed a motion to dismiss the habeas petition along with a memorandum of

law in support thereof. The habeas court, Cobb, J. (third
habeas court), heard oral argument on the motion to

dismiss and subsequently granted the respondent’s

motion to dismiss in a written memorandum of decision

on June 5, 2012. The third habeas court also granted

the petitioner’s petition for certification to appeal and

his application for appointment of counsel on appeal

of the third amended petition. This appeal followed.

Prior to analyzing the petitioner’s claims, we first

set out our standard of review for a challenge to the

dismissal of a petition for a writ of habeas corpus.

‘‘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 . . . .’’ (Citation

omitted; internal quotation marks omitted.) Carter v.

Commissioner of Correction, 133 Conn. App. 387, 392,

35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d

217 (2012).

I

We first address the petitioner’s claim that the third

habeas court improperly determined that count three

of his petition failed to state a claim upon which relief

may be granted. In count three of his third amended

petition, the petitioner asserted that he was entitled to

relief based upon the ‘‘cumulative effect of all issues

of prosecutorial misconduct and judicial misconducts

. . . .’’ Now before us, the petitioner acknowledges that

cumulative error claims2 have been rejected consistently in Connecticut by both our Supreme and Appellate Courts, but asserts that the treatment of this issue

by Connecticut courts ‘‘has been stubbornly misguided.’’ He asks us on appeal ‘‘to determine whether

our . . . Supreme Court has properly barred Connecticut petitioners from seeking relief based upon cumulative error.’’ We decline that invitation, and affirm the

judgment of the third habeas court.

‘‘[I]t is axiomatic that this court, as an intermediate

body, is bound by Supreme Court precedent and [is]

unable to modify it . . . . [W]e are not at liberty to

overrule or discard the decisions of our Supreme Court

but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.’’ (Internal

quotation marks omitted.) Cannizzaro v. Marinyak,

139 Conn. App. 722, 734, 57 A.3d 830 (2012), cert.

granted on other grounds, 308 Conn. 902, 60 A.3d 286

(2013); see also Stuart v. Stuart, 297 Conn. 26, 45–46,

996 A.2d 259 (2010) (‘‘it is manifest to our hierarchical

judicial system that [the Supreme Court] has the final

say on matters of Connecticut law and that the Appel-
late Court . . . [is] bound by [its] precedent’’). When

faced with the assertion that the claims of error, none

of which individually constituted error, should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial, our Supreme

Court has repeatedly ‘‘decline[d] to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.’’ State

v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991),

cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed.

2d 876 (1992); see also State v. Colon, 272 Conn. 106,

218, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126

S. Ct. 102, 163 L. Ed. 2d 116 (2005); State v. Robinson,

227 Conn. 711, 747, 631 A.2d 288 (1993). Likewise, this

court consistently has rejected requests to adopt the

cumulative error approach. See, e.g., State v. Billie, 123

Conn. App. 690, 706, 2 A.3d 1034 (2010); Anderson v.

Commissioner of Correction, 114 Conn. App. 778, 795–

96, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d

488 (2009). Thus, we affirm the third habeas court’s

conclusion that there is no basis in our law to consider

the petitioner’s claim of cumulative error because such

claims have consistently been rejected by both this

court and our Supreme Court.

II

The petitioner also claims that the third habeas court

‘‘erred, as a matter of law, in holding that claim three

[was] barred by the doctrine of res judicata, as the

[first] habeas court . . . did not find that the petitioner’s criminal trial was entirely free of prosecutorial

impropriety and judicial error, and a different ground

is asserted [in his third amended habeas petition] than

those litigated in the prior habeas case.’’ We are not persuaded.

‘‘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 which 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. . . .

[A] second petition alleging the same ground as a previously denied petition will elude dismissal if it alleges

grounds not actually litigated in the earlier petition and

if it alleges new facts or proffers new evidence not

reasonably available at the time of the earlier petition.’’

(Citation omitted; internal quotation marks omitted.)
Campbell v. Commissioner of Correction, 121 Conn.

App. 576, 579, 997 A.2d 543 (2010).

As we already have established in part I of this opinion, count three of the third amended petition fails to

state a claim upon which relief can be granted. Even

if we were to consider the claims of prosecutorial

impropriety stated in count three, the petitioner already

has made the same claims before the first habeas court.3

Our review of the record causes us to conclude that

the petitioner’s claims in his third amended habeas petition are simply an attempt to recast and reformulate

the same facts from his first habeas petition. Accordingly, the third habeas court properly concluded thatthe

petitioner’s claims of prosecutorial impropriety, even

viewed individually instead of cumulatively, are barred

by res judicata.

The judgment is affirmed.

1 The petitioner has not appealed the third habeas court’s judgment as to

counts one, two, and four through seven of his third amended petition for

habeas relief.

2 Under the cumulative error approach followed by the United States

Court of Appeals for the Second Circuit, ‘‘[e]ven were each and every one

of the [alleged due process violations] to pass constitutional muster, their

cumulative effect may violate constitutional due process.’’ Gaines v. Kelly,

202 F.3d 598, 607 (2d Cir. 2000).

3 Although the first habeas court did state that it was ‘‘puzzled by [an]

unfortunate reference to Hannibal Lector,’’ the courtruled that the petitioner

‘‘ha[d] not shown that these remarks in the aggregate created actual prejudice nor that the petitioner’s trial was fundamentally unfair.’’