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*********************************************** 
CHRYSOSTOME KONDJOUA v. COMMISSIONER

OF CORRECTION

(AC 43322)

Moll, Alexander and DiPentima, Js.

Syllabus

The petitioner, who had previously been convicted, on a guilty plea, of the

crime of sexual assault in the third degree, sought a second writ of

habeas corpus, claiming that his guilty plea was not made knowingly,

intelligently and voluntarily because, at the time of his plea, he was

under the influence of medication, he did not receive the benefit of an

interpreter and his trial counsel had coerced him. The habeas court sua

sponte dismissed the petition pursuant to the applicable rule of practice

(§ 23-29 (3)) as an improper successive petition. Thereafter, the habeas

court denied the petition for certification to appeal, and the petitioner

appealed to this court. Held:

1. The habeas court did not abuse its discretion in denying the petition for

certification to appeal, the petitioner having failed to demonstrate that

his claim involved an issue that was debatable among jurists of reason,

that a court could resolve the issue in a different manner, or that the

question raised was adequate to deserve encouragement to proceed

further.

2. The petitioner could not prevail on his claim that the habeas court improperly dismissed his second habeas petition as an improper successive

petition, as the second petition presented the same legal ground and

sought the same relief as the first petition, and the petitioner failed to

state new facts not reasonably available at the time of the first petition.

Argued October 7—officially released December 8, 2020

Procedural History

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 petition; thereafter, the court denied the petition

for certification to appeal, and the petitioner appealed

to this court. Appeal dismissed.

Peter G. Billings, for the appellant (petitioner).

Jennifer F. Miller, assistant state’s attorney, with

whom, on the brief, were Margaret E. Kelley and Matthew C. Gedansky, state’s attorneys, and Angela Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
Opinion

DiPENTIMA, J. The petitioner, Chrysostome Kondjoua, appeals following the denial of his petition for

certification to appeal from the judgment of the habeas

court dismissing his petition for a writ of habeas corpus

as an improper successive petition pursuant to Practice

Book § 23-29 (3). On appeal, the petitioner claims that

the court (1) abused its discretion in denying his petition

for certification to appeal and (2) improperly dismissed

his habeas petition as successive. We dismiss the

appeal.

In the petitioner’s appeal from the denial of his first

habeas petition, we set forth the following facts and

procedural history. ‘‘The petitioner is a Cameroonian

citizen who has resided in the United States since 2010

as a long-term, permanent resident with a green card.

He was arrested on November 29, 2013, and charged

with the sexual assault in the first degree of an eightythree year old woman, for whom he had been working.

The petitioner entered a plea of not guilty and elected

a jury trial.

‘‘On December 16, 2014, after the jury had been

picked and evidence was set to begin, the petitioner

accepted a plea agreement to the reduced charge of

sexual assault in the third degree. Before accepting the

petitioner’s guilty plea, the trial court canvassed him.

The trial court found that the plea was made knowingly,

intelligently, and voluntarily, and ordered a presentence

investigation. On March 4, 2015, the court sentenced

the petitioner to the agreed disposition of five years of

imprisonment, execution suspended after twenty

months, with ten years of probation. The petitioner also

was required to register as a sex offender for ten years.

The petitioner did not file a direct appeal.

‘‘While the petitioner was serving his sentence, the

United States Department of Homeland Security

(department) initiated deportation proceedings against

him. The department cited the petitioner’s March, 2015

conviction for sexual assault in the third degree as the

ground for removal and stated that the petitioner was

subject to removal because he had been convicted of

an aggravated felony and a crime of moral turpitude,

in violation of § 237 (a) (2) (A) (iii) and § 237 (a) (2)

(A) (i) of the Immigration and Nationality Act, respectively. A warrant for the petitioner’s arrest was served

on July 14, 2015, and the petitioner was taken into the

department’s custody.

‘‘On June 19, 2015, the petitioner, then self-represented, filed a petition for a writ of habeas corpus.

Appointed counsel thereafter filed an amended petition.

On October 17, 2017, counsel filed a second amended

petition . . . . It alleged two claims: Ineffective assistance of trial counsel for the improper advice concerning the immigration consequences of a guilty plea and
a due process challenge to his guilty plea on the basis

that it was not knowingly, intelligently, and voluntarily

made. On December 19, 2017, the respondent, the Commissioner of Correction, filed a return alleging that the

petitioner’s due process claim was in procedural

default. The petitioner filed a reply denying the allegations in the respondent’s return on December 28, 2017.

‘‘On May 16, 2018, the habeas court issued a memorandum of decision in which it denied the petition. The

habeas court found that the petitioner failed to establish

that trial counsel had rendered ineffective assistance.

. . . Regarding the petitioner’s second claim, the court

found that the petitioner had not established cause and

prejudice sufficient to overcome the procedural

default.’’ (Footnotes omitted.) Kondjoua v. Commissioner of Correction, 194 Conn. App. 793, 795–99, 222

A.3d 974 (2019), cert. denied, 334 Conn. 915, 221 A.3d

809 (2020). On appeal, this court rejected the petitioner’s claims that the first habeas court erred in rejecting

his ineffective assistance of counsel claim and in concluding that his second claim, that his plea was not

made knowingly, intelligently, and voluntarily, was procedurally defaulted. Id., 799–807.

The self-represented petitioner filed a second habeas

action on August 17, 2018. The petitioner alleged that

his plea was not made knowingly, intelligently, and

voluntarily because he had been under the influence of

medication that caused him to become passive and to

accept a guilty plea ‘‘unconsciously,’’ he did not receive

the benefit of an interpreter, and his counsel coerced

him to plead guilty.1 On July 11, 2019, the court, without

holding a hearing on the petition, dismissed the petition

sua sponte and found the following: ‘‘Upon review of

the complaint in the above titled matter, the court

hereby gives notice pursuant to Practice Book § 23-29

that the matter has been dismissed for the following

reasons: (1) The petition is successive, in that it presents

the same grounds as the 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. More specifically, the prior petition

made claims of ineffective assistance of counsel and a

claim that the petitioner’s guilty plea was not knowingly, voluntarily, and intelligently made, and a fair reading of the present complaint presents the same legal

grounds, but without any new facts or evidence not

known at the time of the prior petition, and seeks the

same relief.’’ The habeas court denied the petition for

certification to appeal from the dismissal of the second

habeas action. This appeal followed.

I

The petitioner claims that the court erred in denying

his petition for certification to appeal from the court’s

dismissal of his second petition for being successive.
‘‘Faced with the habeas court’s denial of certification

to appeal, a petitioner’s first burden is to demonstrate

that the habeas court’s ruling constituted an abuse of

discretion. . . . A petitioner may establish an abuse of

discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could

resolve the issues [in a different manner] . . . or . . .

the questions are adequate to deserve encouragement

to proceed further. . . . The required determination

may be made on the basis of the record before the

habeas court and the applicable legal principles. . . .

‘‘In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must consider the merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by this court for

determining the propriety of the habeas court’s denial

of the petition for certification. Absent such a showing

by the petitioner, the judgment of the habeas court

must be affirmed.’’ (Internal quotation marks omitted.)

Mourning v. Commissioner of Correction, 169 Conn.

App. 444, 448, 150 A.3d 1166 (2016), cert. denied, 324

Conn. 908, 152 A.3d 1246 (2017).

On the basis of our review of the petitioner’s substantive claim, we conclude that he has not shown that the

court abused its discretion in denying his petition for

certification to appeal.

II

The petitioner claims that the court improperly dismissed his second habeas petition as successive. Specifically, he argues that he raised new factual allegations

and a new legal ground in his second petition. He contends that his first habeas petition centered on ineffective assistance rendered by trial counsel in failing to

advise him of the immigration consequences of his

guilty plea and that his second petition focused on the

involuntariness of his plea as a result of the psychological effect of his medication, the lack of an interpreter,

and the coercive conduct by trial counsel. We are

not persuaded.

Our standard of review is well established. ‘‘The conclusions reached by the [habeas] court in its decision

to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal

conclusions of the court are challenged, we must determine whether they are legally and logically correct . . .

and whether they find support in the facts in the

record.’’ (Internal quotation marks omitted.) Zollo v.

Commissioner of Correction, 133 Conn. App. 266, 276,

35 A.3d 337, cert. granted, 304 Conn. 910, 39 A.3d 1120
(2012) (appeal dismissed May 1, 2013).

Practice Book § 23-29 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 . . . .’’ See Diaz v. Commissioner of Correction, 125 Conn. App. 57, 64–65, 6 A.3d

213 (2010) (Practice Book § 23-29 (3) memorialized ability to dismiss petition that presents same ground as

previously denied petition and that fails to state new

facts or to proffer new evidence not reasonably available at time of prior petition), cert. denied, 299 Conn.

926, 11 A.3d 150 (2011).

‘‘In Negron v. Warden, [180 Conn. 153, 158, 429 A.2d

841 (1980)], [our Supreme Court] observed that pursuant to Practice Book § 531 [now § 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.

[The court] emphasized the narrowness of [its] 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. . . .

Negron therefore strengthens the presumption that,

absent an explicit exception, an evidentiary hearing

is always required before a habeas petition may be

dismissed.’’2

(Emphasis omitted; internal quotation

marks omitted.) Mejia v. Commissioner of Correction,

98 Conn. App. 180, 188–89, 192, 908 A.2d 581 (2006).

Pursuant to Practice Book § 23-29 (3), the habeas

court sua sponte dismissed the second habeas petition

as successive. In his first habeas petition, the petitioner

claimed that his trial counsel had provided ineffective

assistance by failing to advise him properly of the immigration consequences of pleading guilty and made a

due process challenge to his guilty plea on the basis

that it was not knowingly, intelligently, and voluntarily

made. See Kondjoua v. Commissioner of Correction,

supra, 194 Conn. App. 798–99. Specifically, with respect

to the second claim, the petitioner had alleged that his

guilty plea was not made knowingly, intelligently, and

voluntarily due to the failure of trial counsel to advise

him adequately of the immigration consequences of his

guilty plea. See id., 805.

In his second habeas petition, the petitioner again

claimed that his guilty plea was not made knowingly,

intelligently, and voluntarily. Instead of claiming, as he

had in his first petition, that the involuntary nature of

his guilty plea was due to inadequate advice by trial

counsel, the petitioner alleged in his second petition
that the involuntary nature of the plea was caused by

the effects of medication, the lack of an interpreter,

and coercion by trial counsel.

The petitioner argues that his second petition is not

successive because his first petition alleged ineffective

assistance of counsel and the second petition alleges

the involuntariness of his guilty plea. We disagree. Both

petitions challenge the voluntariness of the guilty plea.

Although the factual allegations in the two operative

petitions are not the same, it does not necessarily follow

that the claims are not identical. ‘‘Identical grounds may

be proven by different factual allegations, supported

by different legal arguments or articulated in different

language. . . . They raise, however, the same generic

legal basis for the same relief. Put differently, two

grounds are not identical if they seek different relief.’’

(Internal quotation marks omitted.) Carter v. Commissioner of Correction, 133 Conn. App. 387, 393, 35 A.3d

1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012).

The legal ground and the relief sought by the petitioner here is the same in both the first and second

petitions. Moreover, the petitioner cannot prevail on

his argument that the second petition alleges new facts

not reasonably available at the time of the first petition.

See, e.g., McClendon v. Commissioner of Correction, 93

Conn. App. 228, 231, 888 A.2d 183 (successive petition

premised on same legal grounds and seeking same relief

will not survive dismissal unless petition is supported

by allegations not reasonably available to petitioner at

time of original petition), cert. denied, 277 Conn. 917,

895 A.2d 789 (2006); see also Practice Book § 23-29

(3). In the first habeas action, the petitioner’s original

nonoperative petition ‘‘alleged a due process violation

claiming that his guilty plea was not made knowingly,

intelligently, or voluntarily because he was under the

influence of medication, trial counsel pressured him

to plead guilty, and he had trouble understanding and

communicating with trial counsel because English is

not his first language and he did not always have the

benefit of an interpreter during their conversations.’’

Kondjoua v. Commissioner of Correction, supra, 194

Conn. App. 798 n.3. Although that petition was later

amended to eliminate these precise grounds; see id.,

798–99; the petitioner clearly knew of their existence

at the time of the first petition, defeating any argument

now made on appeal that these grounds were not reasonably available at the time of the first petition.

The habeas court was not required to determine the

merits of the second habeas petition because, pursuant

to Practice Book § 23-29 (3), the second petition presented the same ground as the first petition and the

petitioner failed to state new facts not reasonably available at the time of the prior petition. See McClendon

v. Commissioner of Correction, supra, 93 Conn. App.

231; see also Practice Book § 23-29 (3). The petitioner,
therefore, has not shown that the resolution of this

claim involves an issue that is debatable among jurists

of reason, that a court could resolve the issue in a

different manner, or that the question is adequate to

deserve encouragement to proceed further. Accordingly, we conclude that the habeas court did not abuse

its discretion in denying his petition for certification

to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

1 The petitioner also alleged that his trial counsel had rendered ineffective

assistance. On appeal, the petitioner does not challenge the court’s dismissal

of his ineffective assistance claim as successive.

2 The petitioner does not raise as a ground for reversal the lack of an

evidentiary hearing.