Nelson v. Commissioner of Correction ( 2017 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STEPHEN D. NELSON v. COMMISSIONER
OF CORRECTION
(SC 19830)
Rogers, C. J., and Palmer, Eveleigh, McDonald,
Espinosa, Robinson and Vertefeuille, Js.*
Syllabus
The petitioner, who had been convicted of various crimes, including kidnap-
ping, in connection with his role in the abduction of an individual from
his home, sought a writ of habeas corpus, claiming that he had received
ineffective assistance of counsel at his two criminal trials. At the petition-
er’s first criminal trial, he was convicted of certain charges and sentenced
to eighteen years. After the Appellate Court affirmed the judgment of
conviction, the petitioner sought a reduction of his sentence with the
sentence review division of the Superior Court pursuant to statute (§ 51-
195), but the request was denied and his sentence was upheld. A second
trial was held with respect to certain of the charges for which a mistrial
had been declared in his first trial, and, after his conviction, he was
sentenced to fifty-five years imprisonment, to be served concurrently
with his eighteen year sentence. On appeal, the Appellate Court reversed
in part the second judgment of conviction on double jeopardy grounds
but affirmed the judgment in all other respects. The petitioner did not
apply for sentence review in connection with the fifty-five year sentence.
The petitioner then filed a petition for a writ of habeas corpus, alleging
ineffective assistance of counsel at each of his underlying criminal trials.
Thereafter, the habeas court granted the parties’ joint motion for a
stipulated judgment, pursuant to which the respondent agreed to the
reinstatement of the petitioner’s right to file an application with the
sentence review division for a reduction of the fifty-five year sentence
and the petitioner agreed to be foreclosed from filing any future civil
actions challenging the judgments of conviction from his first and second
criminal trials. Pursuant to the stipulated judgment, the remaining counts
of the petitioner’s pending habeas petition were to be stricken with
prejudice. The petitioner thereafter filed an application for sentence
review, in which he sought credit for his cooperation as a state’s witness
in a murder case. The sentence review division declined to modify the
petitioner’s fifty-five year sentence, explaining that it could not consider
the petitioner’s cooperation with the state because that cooperation did
not occur until after the petitioner’s sentencing in his second trial. The
petitioner then brought the habeas action that is the subject of this
appeal. The respondent moved to dismiss the action on the ground that
it was barred by the terms of the stipulated judgment. The petitioner
objected to the motion and filed a memorandum of law in which he
challenged, for the first time, the validity of the stipulated judgment,
claiming that it was invalid because the waiver of his rights was not
knowing and voluntary due to the failure of counsel to inform him that
the sentence review division would be unable to consider his cooperation
with the state as a witness and that, as a result of seeking sentence
review, the state would rescind its offer to promise to support a reduction
in his fifty-five year sentence. The habeas court granted the respondent’s
motion to dismiss, and the petitioner, on the granting of certification,
appealed. Held that the habeas court properly granted the respondent’s
motion to dismiss the habeas petition, the stipulated judgment having
been a legally sufficient ground for dismissal: because the petitioner’s
habeas petition did not allege ineffective assistance predicated on coun-
sel’s failure to properly advise the petitioner regarding the waiver of
his habeas rights under the stipulated judgment, or allege any other
defect in the stipulated judgment, the habeas court properly declined
to consider those issues in connection with the respondent’s motion to
dismiss; moreover, because a memorandum of law is not a proper vehicle
for supplementing the factual allegations in a habeas petition, the habeas
court was not required to consider the assertions contained in his memo-
randum of law in deciding the respondent’s motion to dismiss, and this
court rejected the petitioner’s claim that habeas rights are not subject
to waiver, the petitioner having failed to persuade this court that a
different rule applied to writs of habeas corpus than that which applied
to both constitutional rights and appellate rights, both of which may
be waived if the waiver represents the intentional relinquishment of a
known right.
Argued February 23—officially released September 19, 2017
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Oliver, J., granted the respondent’s motion to
dismiss and rendered judgment dismissing the petition,
from which the petitioner, on the granting of certifica-
tion, appealed. Affirmed.
Peter G. Billings, for the appellant (petitioner).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were Brian Preleski,
state’s attorney, and Michael Proto, assistant state’s
attorney, for the appellee (respondent).
Opinion
PALMER, J. The petitioner, Stephen D. Nelson, filed
this habeas action alleging that he had received ineffec-
tive assistance of counsel at two criminal jury trials,
both of which resulted in convictions and lengthy prison
sentences.1 The respondent, the Commissioner of Cor-
rection, moved to dismiss the action pursuant to Prac-
tice Book § 23-29 (5),2 based on the terms of a stipulated
judgment, filed by the petitioner and the respondent in
connection with a previous habeas action concerning
the same two trials, that barred the petitioner from
filing any further such actions pertaining to those trials.
The habeas court granted that motion, and the peti-
tioner appeals,3 claiming that he did not knowingly and
voluntarily enter into the stipulated judgment and,
therefore, that the habeas court improperly granted the
respondent’s motion to dismiss. We conclude that the
petitioner did not properly raise his challenge to the
enforceability of the stipulated judgment in the habeas
court and, further, that the stipulated judgment was a
legally sufficient ground for dismissal of the present
habeas action. We therefore affirm the judgment of the
habeas court.
The record reveals the following undisputed facts
and procedural history. The petitioner was charged with
two counts each of kidnapping in the first degree, rob-
bery in the first degree, and burglary in the first degree,
and with one count each of conspiracy to commit rob-
bery in the first degree, assault in the first degree, and
larceny in the first degree after he and an accomplice
allegedly broke into a Wethersfield home and pro-
ceeded to assault, rob and kidnap the occupant. Follow-
ing a jury trial, the petitioner was found guilty of
conspiracy to commit robbery in the first degree and
not guilty of larceny in the first degree. The jury was
unable to reach a verdict on the remaining charges,
however, and the trial court, Vitale, J., declared a mis-
trial with respect to those charges. The court thereafter
rendered judgment of conviction and sentenced the
petitioner to a term of imprisonment of eighteen years,
and, on appeal, the Appellate Court affirmed the judg-
ment of the trial court. See State v. Nelson, 105 Conn.
App. 393, 418, 937 A.2d 1249, cert. denied, 286 Conn.
913, 944 A.2d 983 (2008). The petitioner then filed a
timely application under General Statutes § 51-1954 with
the sentence review division of the Superior Court,5
seeking a reduction of his sentence. The sentence
review division, however, denied the petitioner’s
request and upheld his sentence. See State v. Nelson,
Superior Court, judicial district of New Britain, Docket
No. CR-05-220383-A, 2008 WL 2746485 (June 24, 2008).
The petitioner subsequently was retried on certain
of the charges for which a mistrial had been declared
in his first trial, and the jury found him guilty of the
kidnapping, assault, and burglary charges.6 The trial
court, D’Addabbo, J., sentenced the petitioner to fifty-
five years incarceration, to run concurrently with the
eighteen year sentence that had been imposed following
the petitioner’s first trial. On appeal, the Appellate Court
reversed the trial court’s judgment in part on double
jeopardy grounds, remanding the case to the trial court
with direction to merge the petitioner’s two kidnapping
convictions and to vacate the sentence imposed for the
conviction of one of those counts. See State v. Nelson,
118 Conn. App. 831, 853–54, 862, 986 A.2d 311, cert.
denied, 295 Conn. 911, 989 A.2d 1074 (2010). The Appel-
late Court affirmed the judgment in all other respects.
Id., 833–34. The petitioner failed to apply for sentence
review within thirty days, as required by § 51-195.
In addition to his direct appeals from the judgments
of conviction that were rendered following his two tri-
als, the petitioner filed two separate habeas petitions
as a self-represented party, one on August 6, 2007, and
a second petition on April 16, 2008. The two actions
were consolidated, and, on April 8, 2011, the petitioner’s
then newly appointed counsel filed an amended petition
alleging ineffective assistance of counsel at both of the
underlying criminal trials. Thereafter, the petitioner and
the respondent jointly moved for a stipulated judgment,
and the habeas court granted the parties’ motion. Under
that stipulated judgment, the respondent agreed to the
reinstatement of the petitioner’s right to file an applica-
tion with the sentence review division for a reduction
of the fifty-five year term of imprisonment that the
petitioner received following his second trial. For his
part, the petitioner agreed to be foreclosed from filing
any future civil actions challenging the judgments of
conviction arising out of his first and second trials and,
further, that the remaining counts of the then pending
habeas petition were to be stricken with prejudice.7
Thereafter, consistent with the terms of the stipulated
judgment, the petitioner filed an application for sen-
tence review pursuant to § 51-195, seeking a reduction
of his fifty-five year term of imprisonment. In his appli-
cation, the petitioner sought credit for his cooperation
as a state’s witness in a murder case, cooperation that
had occurred following the imposition of the fifty-five
year sentence. Again, however, the sentence review
division declined to modify the petitioner’s sentence.
See State v. Nelson, Superior Court, judicial district of
New Britain, Docket No. CR-05-220383-A (November 2,
2012) (54 Conn. L. Rptr. 904). In reaching its decision,
the sentence review division explained that it could not
lawfully consider the petitioner’s cooperation with the
state because that cooperation did not take place until
after the petitioner’s sentencing, and, therefore, the sen-
tencing court could not have known about it. State v.
Nelson, supra, 54 Conn. L. Rptr. 905; see General Stat-
utes § 51-196 (a) (‘‘[t]he review division . . . may order
such different sentence or sentences to be imposed as
could have been imposed at the time of the imposition
of the sentence under review’’ [emphasis added]).
Several months later, on February 14, 2013, the peti-
tioner brought the present habeas action, once again
alleging various deficiencies in the underlying judg-
ments of conviction. Subsequently, on August 26, 2015,
the respondent moved to dismiss the action under Prac-
tice Book § 23-29 (5), on the ground that it was barred
by the plain terms of the stipulated judgment. The peti-
tioner objected to the motion and filed a memorandum
of law challenging, for the first time, the validity of the
stipulated judgment.
In that memorandum of law, the petitioner explained
that, while his previous habeas petitions were pending,
he had testified as a state’s witness in a murder trial
in exchange for the state’s promise to support a modifi-
cation of his sentence from a fifty-five year term of
imprisonment to one of thirty years. See General Stat-
utes § 53a-39 (b) (providing that sentencing court may
modify sentence for ‘‘good cause shown’’ at ‘‘[a]ny time
during the period of a definite sentence of more than
three years, upon agreement of the defendant and the
state’s attorney to seek review of the sentence’’); State
v. Dupas, 291 Conn. 778, 781–82, 970 A.2d 102 (2009)
(trial court properly considered defendant’s postconvic-
tion testimony against codefendants pursuant to modifi-
cation agreement by state and defendant under § 53a-
39). The petitioner further explained that, after his testi-
mony on behalf of the state in that murder case, he
had agreed to the stipulated judgment, resolving the
consolidated habeas petitions in the belief that he would
be able to obtain the agreed on sentence reduction by
way of his application to the sentence review division
for a sentence modification. According to the petitioner,
however, the state, upon learning that he had sought
sentence review by the sentence review division,
rescinded its promise to support a reduction of his
prison sentence from fifty-five years to thirty years.
The petitioner further claimed that he would not have
agreed to the stipulated judgment if he had known either
(1) that seeking a sentence modification in the sentence
review division, rather than a reduction of his sentence
in the trial court, would cause the state to rescind its
promise to him, or (2) that the sentence review division
would be unable to consider his cooperation with the
state as a witness in the murder trial. He blamed his
ignorance of these facts on the allegedly ineffective
assistance that he received from the two attorneys
working simultaneously on his case—one representing
him in pursuing a sentence reduction under § 53a-39
(b) and the other representing him in connection with
the habeas petition that ultimately was resolved by the
stipulated judgment.
Notwithstanding these assertions, the habeas court,
Oliver, J., granted the respondent’s motion to dismiss
the present action, explaining, in response to the peti-
tioner’s subsequent motion for articulation, that, ‘‘in
exchange and for the consideration of the restoration
of his right to file an application for sentence review,
[the petitioner] agreed that he is foreclosed from future
civil litigation challenging the convictions related to
[the instant habeas petition].’’ The court did not address
the petitioner’s argument—raised solely in his memo-
randum of law in opposition to the respondent’s motion
to dismiss—that the stipulated judgment was invalid
because the waiver of his rights contained therein was
not knowing and voluntary due to the failure of counsel
to inform him of the apparent consequences of entering
into the stipulated judgment, in particular, that the sen-
tence review division would not consider a reduction
of his sentence based on his cooperation with the state.
On appeal, the petitioner claims that the habeas court,
in ruling on the respondent’s motion to dismiss, should
have construed his memorandum of law and the facts
asserted therein in the light most favorable to the peti-
tioner, just as it would have construed the facts alleged
in the habeas petition. The respondent contends that
the habeas court properly dismissed the action in accor-
dance with the express terms of the stipulated judgment
because the petitioner’s challenge to the validity of that
judgment, which the petitioner raised for the first and
only time in his memorandum of law, should have been
raised in the petition itself and, therefore, was not prop-
erly before the habeas court on the respondent’s motion
to dismiss. We agree with the respondent.
It is well established that, when a habeas court con-
siders a motion to dismiss a petition for a writ of habeas
corpus, ‘‘[t]he evidence offered by the [petitioner] is
to be taken as true and interpreted in the light most
favorable to [the petitioner], and every reasonable infer-
ence is to be drawn in [the petitioner’s] favor.’’ (Internal
quotation marks omitted.) Ham v. Commissioner of
Correction, 152 Conn. App. 212, 223–24, 98 A.2d 81,
cert. denied, 314 Conn. 932, 102 A.3d 83 (2014); see also
Orcutt v. Commissioner of Correction, 284 Conn. 724,
739, 937 A.29 656 (2007). It is equally well settled that
‘‘[t]he petition for a writ of habeas corpus is essentially
a pleading and, as such, it should conform generally to
a complaint in a civil action . . . [and it] is fundamental
in our law that the right of a plaintiff to recover is
limited to the allegations of his complaint.’’ (Internal
quotation marks omitted.) Thiersaint v. Commissioner
of Correction, 316 Conn. 89, 125, 111 A.3d 829 (2015).
Thus, ‘‘[w]hile the habeas court has considerable discre-
tion to frame a remedy that is commensurate with the
scope of the established constitutional violations . . .
it does not have the discretion to look beyond the plead-
ings and trial evidence to decide claims not raised. . . .
The purpose of the [petition] is to put the [respondent]
on notice of the claims made, to limit the issues to be
decided, and to prevent surprise.’’ (Internal quotation
marks omitted.) Newland v. Commissioner of Correc-
tion, 322 Conn. 664, 678, 142 A.3d 1095 (2016). In the
present case, it is undisputed that the petitioner’s
habeas petition did not allege ineffective assistance
predicated on counsel’s failure to properly advise the
petitioner regarding the waiver of his habeas rights
under the stipulated judgment, nor did the petition
allege any other defect in the stipulated judgment. As
a result, the habeas court properly declined to consider
those issues in connection with the respondent’s motion
to dismiss.
We disagree with the petitioner that the assertions
contained in his memorandum of law were on equal
footing with the allegations contained in the habeas
petition and, therefore, should have been taken as true
and viewed in the light most favorable to the petitioner.
It is clear that a memorandum of law is not a proper
vehicle for supplementing the factual allegations in a
complaint; see, e.g., Practice Book § 10-31 (party
responding to motion to dismiss shall have thirty days
to file ‘‘a memorandum of law in opposition and, where
appropriate, supporting affidavits as to facts not
apparent on the record’’ [emphasis added]); Connecti-
cut Independent Utility Workers, Local 12924 v. Dept.
of Public Utility Control, 312 Conn. 265, 281, 92 A.3d
247 (2014) (‘‘[T]o the extent that the plaintiffs contend
that memoranda of law or exhibits submitted to the
trial court cured any potential deficiencies in their alle-
gations, they are mistaken. . . . Memoranda of law are
not pleadings.’’); see also Morgan Distributing Co. v.
Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989)
(‘‘it is axiomatic that a complaint may not be amended
by the briefs in opposition to a motion to dismiss’’
[internal quotation marks omitted]), quoting Car Carri-
ers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th
Cir. 1984), cert. denied, 470 U.S. 1054, 105 S. Ct. 1758,
84 L. Ed. 2d 821 (1985); In re Colonial Ltd. Partnership
Litigation, 854 F. Supp. 64, 79 (D. Conn. 1994) (‘‘the
new allegations introduced by [a plaintiff] in [his]
[m]emorandum of [l]aw in [o]pposition to [a motion to
dismiss] . . . are not properly before the court on
[such] a motion’’); and we do not believe that a different
rule should pertain to habeas petitions. See Kendall v.
Commissioner of Correction, 162 Conn. App. 23, 45,
130 A.3d 268 (2015) (‘‘[a] habeas corpus action, as a
variant of civil actions, is subject to the ordinary rules of
civil procedure, unless superseded by the more specific
rules pertaining to habeas actions’’).
In reaching our decision, we are mindful that,
although the petitioner filed the present habeas petition
as a self-represented party on February 14, 2013, he
was represented by counsel as of June 14, 2013, more
than two years before the respondent, on August 26,
2015, filed the motion to dismiss that is the subject of
this appeal. Furthermore, under Practice Book § 23-32,8
the petitioner was entitled to amend his petition ‘‘at
any time prior to the filing of the return’’ on September
11, 2015, or for good cause thereafter.9 Accordingly,
even after the respondent filed the motion to dismiss,
the petitioner had two weeks in which to amend his
habeas petition as of right to include a claim challenging
the enforceability of the stipulated judgment, but he
failed to do so.10 Instead, the petitioner raised the issue
only in his memorandum of law responding to the
motion to dismiss.11 As we have explained, however,
the habeas court properly declined to look beyond the
allegations in the habeas petition in deciding the motion
to dismiss; see Newland v. Commissioner of Correc-
tion, supra, 322 Conn. 678; and, accordingly, the peti-
tioner cannot prevail on his claim that the habeas court
was required to consider the assertions contained in
the petitioner’s memorandum of law related to the stipu-
lated judgment.12
The petitioner nonetheless contends that, under Fine
v. Commissioner of Correction, 147 Conn. App. 136,
81 A.3d 1209 (2013), the respondent was required to
make an affirmative showing that the petitioner know-
ingly and voluntarily waived his right to future habeas
relief under the stipulated judgment and that the respon-
dent failed to make such a showing in the present case.
In light of the plain terms of the stipulated judgment,
however, we disagree that Fine imposes such a burden
in this case.
In Fine, the respondent moved to dismiss a petition
for a writ of habeas corpus on the ground that the
petitioner, Paul Fine, had withdrawn a prior petition
involving identical allegations of ineffective assistance
of counsel ‘‘with prejudice,’’ thereby waiving his right
to pursue the claims contained in the petition in any
future habeas action. Id., 137–38, 141. The habeas court
granted the motion, but the Appellate Court reversed,
concluding that the respondent had failed to make ‘‘an
affirmative showing that, at the time of the withdrawal,
the petitioner was apprised of and understood the right
being waived and the consequences of his waiver.’’ Id.,147–48. The court noted that the respondent had failed
to introduce a transcript of the relevant proceedings,
that the petitioner’s prior counsel was not called as a
witness, that the parties offered conflicting testimony
regarding the proceedings, and, crucially, that even the
withdrawal form did not indicate that a withdrawal with
prejudice had occurred. Id., 146–47. Thus, the court in
Fine was required to determine, on the basis of a murky
record and in the face of contradictory testimony,
whether there was sufficient evidence of record to sup-
port even a prima facie showing that the petitioner had
knowingly and voluntarily waived his right to future
habeas relief in a prior proceeding. By contrast, the
nature of the decision of the prior habeas court in the
present case was clearly set forth in the stipulated judg-
ment and is not disputed: the parties agree that the prior
judgment by its terms barred further habeas actions
relating to the petitioner’s two trials. See Doe v. Roe, 246
Conn. 652, 664–65 n.22, 717 A.2d 706 (1998) (stipulated
judgment is ‘‘a contract of the parties acknowledged in
open court and ordered to be recorded by a court of
competent jurisdiction . . . [and] is binding to the
same degree as a judgment obtained through litigation’’
[citation omitted; internal quotation marks omitted]).
Consequently, Fine, a case involving a purported
agreement of highly uncertain terms, is readily distin-
guishable from the present case.13
Finally, we reject the petitioner’s argument that
habeas rights simply are not subject to waiver at all.
This court has concluded that both constitutional rights;
see Mozell v. Commissioner of Correction, 291 Conn.
62, 71, 967 A.2d 41 (2009); and appellate rights; see
Molinas v. Commissioner of Correction, 231 Conn. 514,
523–24, 652 A.2d 481 (1994); may be waived, if the
waiver represents the intentional relinquishment of a
known right. Furthermore, the Appellate Court has held
that a habeas court may accept the withdrawal of a
habeas petition ‘‘with prejudice,’’ allowing the peti-
tioner to waive any future habeas rights, as long as the
withdrawal is knowing, voluntary, and intelligent. See
Mozell v. Commissioner of Correction, 147 Conn. App.
748, 758 and n.10, 83 A.3d 1174, cert. denied, 311 Conn.
928, 86 A.3d 1057 (2014); see also Fine v. Commissioner
of Correction, supra, 147 Conn. App. 147 n.2 (‘‘we see
no need to foreclose the possibility that, prior to trial,
a petitioner may withdraw a habeas petition with preju-
dice, perhaps after having reached a mutually satisfac-
tory agreement with the respondent’’). Indeed, in other
jurisdictions, such collateral attack waivers are enforce-
able as a general rule. See, e.g., United States v. Lemas-
ter, 403 F.3d 216, 220 (4th Cir. 2005) (‘‘a criminal
defendant may waive his right to attack his conviction
and sentence collaterally, so long as the waiver is know-
ing and voluntary’’); Frederick v. Warden, 308 F.3d 192,
195 (2d Cir. 2002) (‘‘[t]here is no general bar to a waiver
of collateral attack rights in a plea agreement’’), cert.
denied sub nom. Frederick v. Romine, 537 U.S. 1146,
123 S. Ct. 946, 154 L. Ed. 2d 847 (2003); Jones v. United
States, 167 F.3d 1142, 1145 (7th Cir. 1999) (waivers of
collateral attack rights are generally enforceable,
except with respect to claims relating directly to negoti-
ation of waiver in question). The undisputed importance
of the writ of habeas corpus notwithstanding; see
Lozada v. Warden, 223 Conn. 834, 840, 613 A.2d 818(1992) (‘‘the principal purpose of the writ of habeas
corpus is to serve as a bulwark against convictions that
violate fundamental fairness’’ [internal quotation marks
omitted]); the petitioner has not persuaded us that a
different rule should apply to such writs in this state.
In sum, in order to forestall dismissal of his habeas
petition on the basis of the prior stipulated judgment,
the petitioner, at any time before the filing of the return
on September 11, 2015, or by permission of the court
thereafter; see Practice Book § 23-32; could have
amended his habeas petition to allege ineffective assis-
tance of counsel predicated on counsel’s failure to prop-
erly advise him regarding his waiver of habeas rights
under the stipulated judgment. Indeed, as the respon-
dent essentially conceded at oral argument, had the
petitioner done so, the petition would not have been
subject to dismissal because the amended petition
would have raised a genuine issue of fact as to whether
the stipulated judgment constituted a legally sufficient
ground for dismissal under Practice Book § 23-29 (5).
Because the petitioner failed to make this amendment,
however, the habeas court properly granted the respon-
dent’s motion to dismiss the petition. As a consequence,
the petitioner will have to file a new petition properly
alleging ineffective assistance of habeas counsel in con-
nection with the prior proceedings.14
The judgment is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
In addition to ineffective assistance of counsel, the petitioner alleged
that the jury instructions were improper and that certain of the state’s
evidence was acquired in violation of his fourth amendment right against
unreasonable searches and seizures.
2
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 . . . if it determines that . . . (5) any . . . legally suf-
ficient ground for dismissal of the petition exists.’’
3
The habeas court granted the petitioner’s petition for certification to
appeal, and the petitioner appealed to the Appellate Court. We transferred
the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
4
General Statutes § 51-195 provides in relevant part: ‘‘Any person sen-
tenced on one or more counts of an information to a term of imprisonment
for which the total sentence of all such counts amounts to confinement for
three years or more, may, within thirty days from the date such sentence
was imposed . . . file with the clerk of the court . . . an application for
review of the sentence by the review division. . . .’’
5
‘‘In contrast to Practice Book § 43-22, [which establishes the procedure
for the correction of an illegal sentence] the relief of the legislation creating
the sentence review division is to afford properly sentenced and convicted
persons a limited appeal for a reconsideration of their sentence . . . rather
than an avenue to correct an illegally imposed sentence. The sentence review
division offers defendants an optional, de novo hearing as to the punishment
to be imposed. . . . The purpose of the legislation was to create a forum
in which to equalize the penalties imposed on similar offenders for similar
offenses.’’ (Emphasis in original; internal quotation marks omitted.) State
v. Casiano, 282 Conn. 614, 626–27 n.16, 922 A.2d 1065 (2007); see also
Practice Book § 43-28 (‘‘[t]he review division shall review the sentence
imposed and determine whether the sentence should be modified because
it is inappropriate or disproportionate in the light of the nature of the offense,
the character of the offender, the protection of the public interest, and the
deterrent, rehabilitative, isolative, and denunciatory purposes for which the
sentence was intended’’).
6
The petitioner apparently was not retried on the two counts of robbery
in the first degree.
7
The stipulated judgment provides in relevant part: ‘‘[T]he [respondent]
agrees to stipulate to judgment to reinstate the [p]etitioner’s right to file an
application for sentence review as to the February 16, 2007 sentence ren-
dered by the [c]ourt, D’Addabbo, J., in [t]rial [two]. Such application must
be filed within thirty . . . days of the [o]rder entering this [s]tipulated [j]udg-
ment. In exchange for the restoration of such rights, the [p]etitioner hereby
agrees that he is foreclosed from further civil litigation challenging his
convictions, which he places into issue in the cases consolidated under
Docket No. CV-08-4002367, that all other counts contained in the [a]mended
[p]etition shall be stricken with prejudice and that judgment shall enter in
accordance with this stipulation.’’
8
Practice Book § 23-32 provides: ‘‘The petitioner may amend the petition
at any time prior to the filing of the return. Following the return, any pleading
may be amended with leave of the judicial authority for good cause shown.’’
9
We have also found claims of ineffective assistance of counsel to be
adequately pleaded in the petitioner’s reply; see Practice Book § 23-31; Car-
penter v. Commissioner of Correction, 274 Conn. 834, 844–45, 878 A.2d
1088 (2005); but we have ‘‘emphasize[d] . . . that it is the better practice
for habeas counsel to raise all ineffective assistance of counsel claims in the
petition.’’ Carpenter v. Commissioner of Correction, supra, 845. Although,
in the present case, the habeas court entered a decision on the motion to
dismiss before the expiration of the thirty days allotted for filing a reply;
see Practice Book § 23-35; the petitioner has not alleged that the habeas
court did so improperly.
10
The petitioner states that he was ‘‘not afforded’’ the opportunity to file
an amended petition but fails to explain why he was unable to file such an
amendment as of right under Practice Book § 23-32. Indeed, the record
indicates; see footnote 11 of this opinion; that counsel for the petitioner
filed a motion alluding to problems with the stipulated judgment more than
one year before the respondent filed a motion to dismiss but failed to renew
or follow up on that motion.
11
On May 27, 2014, the petitioner did request a pretrial conference, in
part to present information that ‘‘could potentially invalidate the stipulation
agreement,’’ and the habeas court granted the motion, scheduling a confer-
ence for August 21, 2014. There is no record of the pretrial conference,
however, and the petitioner failed to renew his request at any time before
or after the respondent filed his motion to dismiss one year later, on August
26, 2015. Indeed, in his memorandum of law in opposition to the respondent’s
motion to dismiss, the petitioner affirmatively opted against requesting a
hearing to present argument or testimony.
12
Although the petitioner sought an articulation of the court’s judgment,
he did not request that the court clarify its position regarding the validity
of the stipulated judgment. Because the habeas court never addressed the
arguments in the petitioner’s memorandum of law, we also agree with the
respondent’s contention that the record would be inadequate for us to review
the petitioner’s challenges to the stipulated judgment, even if there were
no other procedural bar to our doing so. See Johnson v. Commissioner of
Correction, 285 Conn. 556, 580, 941 A.2d 248 (2008) (‘‘[t]his court is not
bound to consider claimed errors unless it appears on the record that the
question was distinctly raised . . . and was ruled [on] and decided by the
court adversely to the [petitioner’s] claim’’ [internal quotation marks omit-
ted]); see also Practice Book § 60-5.
13
To conclude otherwise might well risk according a stipulated judgment
less weight than other judgments rendered by the Superior Court. See Equity
One, Inc. v. Shivers, 310 Conn. 119, 132, 74 A.3d 1225 (2013) (‘‘[t]he general
rule that a judgment, rendered by a court with jurisdiction, is presumed to
be valid and not clearly erroneous until so demonstrated raises a presump-
tion that the rendering court acted only after due consideration, in confor-
mity with the law and in accordance with its duty’’ [internal quotation
marks omitted]).
14
We note that, on November 5, 2015, shortly after the habeas court in
the present case granted the respondent’s motion to dismiss, the petitioner
filed a separate habeas petition challenging the validity of the stipulated
judgment. This petition was not cited by either party in his brief before this
court, however, and it appears that the petition never progressed beyond
a November 12, 2015 scheduling order. See Nelson v. Warden, Superior
Court, judicial district of Tolland, Docket No. CV-15-4007626-S.