Kaddah v. Commissioner of Correction ( 2017 )

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NABEEL KADDAH v. COMMISSIONER OF
CORRECTION
(SC 19512)
Rogers, C. J., and Palmer, Eveleigh, McDonald and Robinson, Js.*
Argued October 11, 2016—officially released January 31, 2017
Andrew P. O’Shea, with whom was Damon A. R.
Kirschbaum, for the appellant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Craig P. Nowak, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
ROBINSON, J. The sole issue in this appeal is whether
Connecticut law permits a third petition for a writ of
habeas corpus (third habeas) to vindicate a claim of
ineffective assistance of counsel during what is com-
monly known as a ‘‘habeas on a habeas,’’ namely, a
second petition for a writ of habeas corpus (second
habeas) challenging the performance of counsel in liti-
gating an initial petition for a writ of habeas corpus
(first habeas), which had claimed ineffective assistance
of counsel at the petitioner’s underlying criminal trial
or on direct appeal. See Lozada v. Warden, 223 Conn.
834, 843, 613 A.2d 818 (1992). The petitioner, Nabeel
Kaddah,1 appeals2 from the judgment of the habeas
court dismissing his third habeas petition alleging, inter
alia, ineffective assistance of habeas counsel during
litigation of his second habeas petition. On appeal, the
petitioner claims that the habeas court improperly
determined that the statutory right of indigent habeas
petitioners to counsel under General Statutes § 51-296
(a)3 is limited to ‘‘effective representation by . . . first
habeas counsel,’’ thus rendering the third habeas peti-
tion challenging counsel’s performance in the second
habeas proceeding not cognizable as a matter of law.
Given the concession by the respondent, the Commis-
sioner of Correction (commissioner), that § 51-296 (a)
provides a statutory right to assigned counsel in a sec-
ond habeas proceeding that necessarily includes the
right to competent counsel, we conclude that our com-
mon law authorizes a third habeas petition as a proper
vehicle to vindicate that right. Accordingly, we reverse
the judgment of the habeas court dismissing the counts
of the third habeas petition that claimed ineffective
assistance of prior habeas counsel.4
The record reveals the following relevant facts and
procedural history. Following a jury trial, the petitioner
was convicted of murder, attempted murder, and unlaw-
ful restraint in the first degree. See State v. Kaddah,
250 Conn. 563, 564, 736 A.2d 902 (1999). This court
subsequently affirmed the petitioner’s conviction on
direct appeal. Id., 581. The petitioner, then represented
by Attorney Salvatore Adamo, filed his first habeas peti-
tion alleging ineffective assistance of counsel at his trial
and on direct appeal. See Kaddah v. Commissioner of
Correction, 105 Conn. App. 430, 433–34, 939 A.2d 1185,
cert. denied, 286 Conn. 903, 943 A.2d 1101 (2008) (Kad-
dah I). The habeas court, White, J., denied the first
habeas petition, along with the petitioner’s petition for
certification to appeal. See Kaddah v. Commissioner
of Correction, 299 Conn. 129, 132, 7 A.3d 911 (2010)
(Kaddah II). The petitioner appealed from Judge
White’s denial of the first habeas petition to the Appel-
late Court, but withdrew that appeal before that court
rendered judgment. Id., 132–33.
The petitioner, represented by Attorney Joseph
Visone, then filed a second habeas petition alleging
ineffective assistance of habeas counsel by Attorney
Adamo in the first habeas proceeding.5 Kaddah I, supra,
105 Conn. App. 434. The habeas court, Fuger, J., denied
this petition, along with the petitioner’s petition for
certification to appeal. Id. The Appellate Court subse-
quently dismissed the petitioner’s appeal from the
denial of the second habeas petition, concluding that
Judge Fuger had not abused his discretion by denying
the petitioner’s petition for certification to appeal.
Id., 446.
The petitioner later filed the third habeas petition6
alleging, inter alia,7 that Attorney Visone had rendered
ineffective assistance during litigation of his second
habeas petition by failing to raise certain claims relating
to the jury instructions used at his criminal trial. After
a three day habeas trial, the habeas court, sua sponte,
asked the parties to brief ‘‘the question of whether the
petition’s allegations assert a cognizable habeas corpus
claim for which this court can provide relief.’’ See Prac-
tice Book § 23-29 (2). Specifically, the habeas court
questioned whether this court’s decision in Lozada v.
Warden, supra, 223 Conn. 834, ‘‘which recognized the
viability of a habeas corpus claim of ineffective assis-
tance of first habeas counsel, [should] be extended ad
infinitum.’’ (Emphasis omitted.) The petitioner and the
commissioner subsequently filed posttrial briefs in
which they agreed that the petitioner’s claim in his third
habeas petition was cognizable under Lozada.8 Despite
the parties’ agreement on this point, the habeas court
nevertheless concluded that the petitioner had failed
to state a cognizable claim and dismissed the remaining
counts of the third habeas petition. See footnote 4 of
this opinion.
In its memorandum of decision, the habeas court
began its analysis with this court’s decision in Lozada
v. Warden, supra, 223 Conn. 834, which authorized
habeas on habeas petitions, and the Appellate Court’s
decision in Sinchak v. Commissioner of Correction,
126 Conn. App. 684, 692, 14 A.3d 343 (2011), which held
that § 51-296 (a) requires the appointment of counsel
for such petitions. The habeas court declined, however,
‘‘to apply the same rubric used by the Supreme Court
in Lozada to the [Appellate Court’s] holding in Sinchak
and conclude, therefore, because a [second habeas]
petitioner has a right to appointment of habeas counsel
under § 51-296 (a), that the petitioner must also have
the companion right to habeas corpus relief based on
the poor performance of second habeas counsel
through a third habeas [proceeding].’’ The habeas court
determined that this ‘‘syllogistic reasoning’’ would have
the ‘‘absurd result’’ of fostering infinite habeas claims,
which would defy ‘‘concepts of certainty, finality, and
judicial economy.’’ The habeas court determined that
‘‘it would stretch the meaning of the phrase ‘arising
from a criminal matter’ [as used in § 51-296 (a)] beyond
all linguistic boundaries to interpret that phrase to mean
‘arising from a habeas proceeding which arose from a
habeas proceeding . . . which arose from a criminal
matter,’ ad infinitum. The more rational and plausible
construction of that ambiguous phrase is that the legis-
lature only had a first level habeas claim in mind when
it created the statutory right to counsel and never
intended to create a system of ineffective assistance
claims in habeas cases [that] resembles the Russian
Matryoshka dolls, each embraced within a more expan-
sive one, without end.’’ (Emphasis omitted.) Accord-
ingly, the habeas court concluded that the petitioner’s
allegations did not raise a cognizable habeas corpus
claim for which the court could provide relief, and ren-
dered judgment dismissing the remaining counts of the
third habeas petition. The habeas court subsequently
granted the petitioner’s petition for certification to
appeal, and this appeal followed. See footnote 2 of
this opinion.
On appeal, the petitioner, relying primarily on Lozada
v. Warden, supra, 223 Conn. 834, and Sinchak v. Com-
missioner of Correction, supra, 126 Conn. App. 684,
claims that the habeas court improperly determined
that § 51-296 (a) did not afford him a right to competent
counsel for his second habeas petition that could be
vindicated by a third habeas petition. The petitioner
argues that any other reading of the broad statutory
language of § 51-296 (a), namely, ‘‘any habeas corpus
proceeding arising from a criminal matter,’’ would ren-
der the right to counsel in the second habeas proceeding
illusory and foster the absurd result of allowing the
appointment of incompetent counsel to represent peti-
tioners in that proceeding. The petitioner contends that
the habeas court’s concern of infinite habeas on habeas
petitions is addressed by existing procedures, such as
dismissals under the doctrines of collateral estoppel,
successive petitions, and for frivolous pleading, along
with the amendments to General Statutes § 52-4709 via
the 2012 habeas reform legislation. See Public Acts
2012, No. 12-115, § 1. The petitioner further emphasizes
that the legislature took no action to limit the right to
counsel under § 51-296 (a) when it enacted the 2012
habeas reform measures subsequent to the Appellate
Court’s decision in Sinchak.
In response, the commissioner concedes the correct-
ness of Sinchak v. Commissioner of Correction, supra,
126 Conn. App. 684, in which the Appellate Court held
that § 51-296 (a) provides a right to counsel in a second
habeas proceeding. The commissioner also acknowl-
edges that the Appellate Court’s holding in Sinchak
necessarily encompasses the right to assistance by com-
petent counsel in the second habeas proceeding.
Retreating from the concession made before the habeas
court; see footnote 8 of this opinion; the commissioner
contends, however, that a claim of ineffective assis-
tance of second habeas counsel is not a cognizable
basis for habeas relief under Connecticut law. Specifi-
cally, the commissioner argues that nothing in the text
or legislative history of § 51-296 (a) indicates that the
legislature intended to authorize a third habeas petition
to vindicate such a right.10 The commissioner also relies
on In re Jonathan M., 255 Conn. 208, 209, 764 A.2d 739
(2001), a termination of parental rights case, in support
of the proposition that the existence of a right to counsel
in a given situation does not mean that a habeas corpus
petition is available to vindicate that right. To this end,
the commissioner agrees with the finality concerns
stated by the habeas court, and argues that, as a matter
of the fundamental fairness that underlies the common-
law habeas remedy, we should decline to permit habeas
petitions raising claims of ineffective assistance beyond
the second habeas petition alleging ineffective assis-
tance because such claims are extremely difficult to
prove, meaning that the utility of allowing such petitions
is outweighed by the associated costs on the judicial
system, including assigned counsel, victims, and wit-
nesses. We, however, agree with the petitioner, and
conclude that a third habeas petition is available as a
matter of fundamental fairness to vindicate the statu-
tory right under § 51-296 (a) to competent counsel in
litigating a second habeas petition.
Whether a habeas court properly dismissed a petition
pursuant to Practice Book § 23-29 (2), on the ground
that it ‘‘fails to state a claim upon which habeas corpus
relief can be granted,’’ presents a question of law over
which our review is plenary. See, e.g., Zollo v. Commis-
sioner of Correction, 133 Conn. App. 266, 276–77, 35
A.3d 337, cert. granted, 304 Conn. 910, 39 A.3d 1120
(2012) (appeal dismissed May 1, 2013); accord Kaddah
II, supra, 299 Conn. 140.
Before considering whether a third habeas petition
is a cognizable remedy, we ordinarily would begin by
determining the existence or scope of the statutory
right to counsel at issue in the second habeas petition
under § 51-296 (a). This inquiry is, however, unneces-
sary in this appeal because the commissioner concedes
that, in Sinchak v. Commissioner of Correction, supra,
126 Conn. App. 692, the Appellate Court properly deter-
mined that, under § 51-296 (a), there is a right to counsel
in a second habeas proceeding brought pursuant to
Lozada v. Warden, supra, 223 Conn. 834, and that right
to counsel necessarily encompasses the right to compe-
tent counsel. We exercise our discretion11 to accept this
significant concession12 because it is consistent with
our case law holding that it ‘‘would be absurd to have
the right to appointed counsel who is not required to
be competent,’’ and that ‘‘§ 51-296 (a) would become
an empty shell if it did not embrace the right to have
the assistance of a competent attorney.’’ Id., 838–39;
see also Gipson v. Commissioner of Correction, 257
Conn. 632, 639 n.14, 778 A.2d 121 (2001) (‘‘although the
state disputes the petitioner’s claim of a right to counsel
in connection with the filing of a petition for certifica-
tion, the state does not dispute the principle that the
right to counsel, if such right exists, includes the right
to competent counsel’’); State v. Anonymous, 179 Conn.
155, 160, 425 A.2d 939 (1979) (holding in termination
of parental rights case that ‘‘[w]here . . . as here, a
statute . . . or practice book rule . . . mandates the
assistance of counsel, it is implicit that this means com-
petent counsel’’ [citations omitted]). Simply put, we
agree with the parties that nothing in the text of § 51-
296 (a) or our state’s appellate case law interpreting
that provision provides any basis for the habeas court’s
conclusion that a petitioner has the right to counsel in
a second habeas petition, but not the right to effective
assistance from that attorney. Accordingly, we turn to
the commissioner’s contention that a third habeas peti-
tion may not be used to vindicate the right to competent
counsel in prosecuting a second habeas petition.
In determining whether a third habeas petition is an
available remedy to enforce the right to the effective
assistance of counsel in a second habeas proceeding,
we begin with Lozada v. Warden, supra, 223 Conn. 834.
In Lozada, this court concluded that a second habeas
petition is an available remedy to vindicate a claim of
ineffective assistance of counsel in prosecuting a first
habeas petition claiming ineffective assistance at trial or
on direct appeal. Id., 843. In rejecting the respondent’s
argument that the writ of habeas corpus is ‘‘reserved
solely for claims arising under the constitution,’’ and
is, therefore, ‘‘not available’’ to vindicate the statutory
right to counsel in a habeas corpus proceeding under
§ 51-296 (a),13 we observed that ‘‘the writ of habeas
corpus is available as a remedy for a miscarriage of
justice or other prejudice. . . . As this court stated in
Bunkley v. Commissioner of Correction, 222 Conn. 444,
460–61, 610 A.2d 598 (1992), the principal purpose of
the writ of habeas corpus is to serve as a bulwark
against convictions that violate fundamental fairness.
. . . This court has taken the same view. To mount a
successful collateral attack on his conviction a prisoner
must demonstrate a miscarriage of justice or other prej-
udice and not merely an error which might entitle him to
relief on appeal.’’ (Citations omitted; internal quotation
marks omitted.) Lozada v. Warden, supra, 223 Conn.
839–40.
‘‘Indeed . . . this court, in Safford v. Warden, 223
Conn. 180, 191 n.13, 612 A.2d 1161 (1992), put the issue
to rest when it recognized that the great writ of liberty
is not a remedy for constitutional violations exclusively,
albeit most cases in which the remedy has been applied
involve issues of fundamental fairness that implicate
constitutional rights. Surely, fundamental fairness
opens the door for relief by habeas corpus when the
state, in discharging its statutory duty, appoints incom-
petent counsel.’’ Lozada v. Warden, supra, 223 Conn.
840; see also Fay v. Noia, 372 U.S. 391, 400–402, 83 S.
Ct. 822, 9 L. Ed. 2d 837 (1963) (describing common-law
history of ‘‘[g]eat [w]rit’’).
Notably, in recognizing the right to bring a second
habeas petition to challenge counsel’s performance in
the first habeas proceeding, this court in Lozada also
rejected the respondent’s argument that ‘‘the writ [of
habeas corpus] is available only to attack the validity
of the underlying criminal judgment or to challenge a
wrongful confinement.’’ Lozada v. Warden, supra, 223
Conn. 841. Citing the works of Chief Justice Zephaniah
Swift and William Blackstone for a historical overview
of the writ as a common-law remedy, this court
observed that the ‘‘writ of habeas corpus, as it is
employed in the twentieth century . . . does not focus
solely upon a direct attack on the underlying judgment
or upon release from confinement.’’ (Emphasis added.)
Id. This court concluded that ‘‘the subject of the writ—
that is, whether the accused had reasonably competent
habeas and trial counsel—are matters that ultimately
challenge the underlying conviction. The respondent
does not question that if this were the petitioner’s first
habeas corpus petition, he would be entitled to chal-
lenge the competency of his trial attorney, even though
the petitioner’s success would lead only to a new trial.
. . . Also, it is beyond dispute that the great writ may
be used as a vehicle to challenge the competency of
appellate counsel, even though granting the writ would
likewise not result in release, but only in a new trial.’’
(Citation omitted; emphasis added.) Id., 842.
This court emphasized, however, the petitioner’s
‘‘herculean’’ task to prove in a second habeas, under
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), ‘‘(1) that his appointed
habeas counsel was ineffective, and (2) that his trial
counsel was ineffective.’’ Lozada v. Warden, supra, 223
Conn. 842–43. We observed that the ‘‘new trial would
go to the heart of the underlying conviction to no lesser
extent than if it were a challenge predicated on ineffec-
tive assistance of trial or appellate counsel. The second
habeas petition is inextricably interwoven with the
merits of the original judgment by challenging the very
fabric of the conviction that led to the confinement.’’
(Emphasis added.) Id., 843. This court, therefore,
‘‘reject[ed] the respondent’s claim that habeas corpus
is not an appropriate remedy for ineffective assistance
of appointed habeas counsel.’’ Id.
The logical threads of Lozada, which led us to con-
clude that a habeas on a habeas ‘‘is inextricably inter-
woven with the merits of the original judgment by
challenging the very fabric of the conviction that led
to the confinement’’; id.; seem to apply with equal force
to the third habeas petition, which is brought to vindi-
cate the petitioner’s right to counsel in the second
habeas petition. See Iovieno v. Commissioner of Cor-
rection, 242 Conn. 689, 702, 699 A.2d 1003 (1997) (sec-
ond habeas remedy authorized by Lozada ‘‘extends to
ineffective assistance of counsel claims involving appel-
late counsel in habeas appeals’’ because ‘‘[t]he statutory
right to counsel in habeas proceedings has also been
held to extend to habeas appeals’’). Given the funda-
mental fairness origins underlying the common-law writ
of habeas corpus, it would be anomalous to conclude
that a right as significant as the statutory right to coun-
sel in a second habeas petition that ultimately chal-
lenges a criminal conviction, and the concomitant right
that the attorney be competent, is one that cannot be
vindicated by the writ. See Fay v. Noia, supra, 372 U.S.
401–402 (‘‘Although in form the [g]reat [w]rit is simply
a mode of procedure, its history is inextricably inter-
twined with the growth of fundamental rights of per-
sonal liberty. For its function has been to provide a
prompt and efficacious remedy for whatever society
deems to be intolerable restraints.’’). Given the overrid-
ing concerns of fundamental fairness that underlie the
writ of habeas corpus, not allowing a third habeas peti-
tion would undermine the very nature of the statutory
right provided by § 51-296 (a), which, as conceded by
the commissioner, extends to a second habeas
petition.14
We are mindful of the economic and finality concerns
cited by the habeas court and the commissioner in
support of the proposition that third habeas petitions
should not be available to remedy claims of ineffective
assistance of counsel during litigation of a second
habeas petition. As in Lozada, we emphasize the avail-
ability of ‘‘restrictive measures’’ by which the courts
may check abusive or frivolous habeas petitions.’’
Lozada v. Warden, supra, 223 Conn. 845 n.11; see id.
(rejecting ‘‘floodgates’’ argument that allowing second
habeas petitions will lead to ‘‘successive and unlimited
petitions for habeas corpus on the basis of ineffective
assistance of habeas counsel’’). Concerns of jurispru-
dential Matryoshka dolls aside, we tread carefully in
foreclosing entirely the writ of habeas corpus in such
cases because we do not occupy the entire field in state
habeas corpus law, and ‘‘[a] common-law rule . . .
may be subject to both legislative and judicial modifica-
tion.’’ (Internal quotation marks omitted.) Craig v. Dris-
coll, 262 Conn. 312, 323, 813 A.2d 1003 (2003); see also
id., 323–24 (considering ‘‘whether legislature, by creat-
ing an affirmative remedy, has manifested an intention
to occupy the field or whether a common-law remedy
would conflict with or frustrate the purpose of the
[Dram Shop Act, General Statutes § 30-102], so as to
stay our hand in recognizing an action at common law’’
for bystander emotional distress against seller of alco-
holic beverages). Although the writ of habeas corpus
has a long common-law history, the legislature has
enacted numerous statutes shaping its use, such as Gen-
eral Statutes § 52-466,15 which governs the litigation of
the writ as a civil matter. See, e.g., Lebron v. Commis-
sioner of Correction, 274 Conn. 507, 525–26, 876 A.2d
1178 (2005) (because ‘‘custody’’ requirement in § 52-
466 is jurisdictional, habeas court lacked jurisdiction
over challenge to fully expired conviction), overruled
in part on other grounds by State v. Elson, 311 Conn.
726, 91 A.3d 862 (2014). Although we recognize that the
provisions of the statutes governing habeas corpus do
not control the outcome in this case, ‘‘it is well estab-
lished that statutes are a useful source of policy for
common-law adjudication, particularly when there is a
close relationship between the statutory and common-
law subject matters. . . . Statutes are now central to
the law in the courts, and judicial lawmaking must take
statutes into account virtually all of the time . . . .’’
(Citations omitted; internal quotation marks omitted.)
C & J Builders & Remodelers, LLC v. Geisenheimer,
249 Conn. 415, 419–20, 733 A.2d 193 (1999); see, e.g.,
Hopkins v. O’Connor, 282 Conn. 821, 844–45, 925 A.2d
1030 (2007) (relying on criminal penalty in General Stat-
utes § 17a-504 for wrongful acts in connection with
psychiatric commitment to conclude that common law
provided police officer with qualified, rather than abso-
lute, civil immunity); State v. Guess, 244 Conn. 761, 780,
715 A.2d 643 (1998) (considering statutory definition
of death under Uniform Determination of Death Act,
General Statutes § 19a-504a, in modifying common law
for purposes of Penal Code, which did not define
term ‘‘death’’).
Given the statutory overlay with respect to the com-
mon law governing the writ of habeas corpus, we find
it significant that the legislature recently engaged in
comprehensive habeas reform, culminating in the 2012
amendments to § 52-47016 that are intended to supple-
ment that statute’s efficacy in averting frivolous habeas
petitions and appeals. See Public Acts 2012, No. 12-
115, § 1. It is well established that we presume the
legislature’s awareness of the common and statutory
law governing the fields in which it acts. See, e.g.,
Financial Consulting, LLC v. Commissioner of Insur-
ance, 315 Conn. 196, 212, 105 A.3d 210 (2014). We are
especially confident as to this awareness with respect
to habeas law in particular, as the legislature adopted
the 2012 habeas reforms just a few months after the
Appellate Court’s decision in Sinchak v. Commissioner
of Correction, supra, 126 Conn. App. 684, and the
reforms were the product of collaboration and compro-
mise by representatives from the various stakeholders
in the habeas process, including the Division of Criminal
Justice, the Office of the Chief Public Defender, the
criminal defense bar, and the Judicial Branch. See, e.g.,
Division of Criminal Justice, Request for Joint Favor-
able Report on House Bill 5554 (March 29, 2012), avail-
able at https://www.cga.ct.gov/2012/JUDdata/Tmy
/2012HB-05554-R000329-Division%20of%20Criminal%20
Justice-TMY.PDF (last visited January 13, 2017). Nota-
bly, the 2012 habeas reform did not limit the right to
counsel under § 51-296 (a) or otherwise render habeas
relief unavailable in broad categories of cases, including
multiple petitions testing the effectiveness of prior
habeas counsel. Quite the opposite, § 52-470 (d), as
amended in 2012, specifically recognizes the possibility
of multiple petitions challenging a single conviction.
See General Statutes § 52-470 (d) (‘‘[i]n the case of a
petition filed subsequent to a judgment on a prior peti-
tion challenging the same conviction, there shall be a
rebuttable presumption that the filing of the subsequent
petition has been delayed without good cause if such
petition is filed after the later of the following: [1] [t]wo
years after the date on which the judgment in the prior
petition is deemed to be a final judgment’’). Thus, given
recent legislative activity in the field with no indication
that the General Assembly intended to eliminate the
use of the common-law habeas corpus remedy to vindi-
cate the statutory right under § 51-296 (a) to the effec-
tive assistance of counsel in a second habeas, we stay
our hand as a matter of common law with respect to
disturbing the availability of that remedy. Cf. Stuart v.
Stuart, 297 Conn. 26, 47, 996 A.2d 259 (2010) (discussing
particular applicability of doctrine of legislative acqui-
escence when ‘‘legislature affirmatively amended the
statute subsequent to a judicial or administrative inter-
pretation, but chose not to amend the specific provision
of the statute at issue’’ [internal quotation marks omit-
ted]). Should the legislature determine that existing
‘‘restrictive measures’’; Lozada v. Warden, supra, 223
Conn. 845 n.11; already in place to address frivolous
habeas petitions, such as summary dismissal without
a trial under § 52-470 (b) or Anders briefs17 filed by
habeas counsel, are insufficient to stem the tide of third
habeas petitions challenging the first two layers of
habeas representation, the legislature remains free to
amend the relevant statutes as necessary.18 Cf. In re
Jonathan M., supra, 255 Conn. 240–41 (concluding that
habeas corpus petition not available remedy to chal-
lenge termination of parental rights because ‘‘permitting
a habeas writ as a vehicle in which a parent whose
rights have been terminated may attack that judgment
collaterally, unbounded by constraints within which
time such a petition may be filed, would further under-
mine the legislative pronouncements in this area of the
law,’’ namely, General Statutes § 45a-719, which ‘‘pre-
clud[es] the court from granting any motion or petition
filed after a final decree of adoption has been entered’’).
We conclude, therefore, that a third habeas petition
is an available remedy to challenge the effectiveness
of the petitioner’s counsel in the second habeas pro-
ceeding.19 Accordingly, the habeas court improperly dis-
missed the third and sixth counts of the third petition;
see footnote 4 of this opinion; on the ground that they
failed to state a claim for which habeas relief was
available.20
The judgment is reversed only with respect to the
dismissal of counts three and six of the amended peti-
tion and the case is remanded for further proceedings
according to law.
In this opinion the other justices concurred.
* This case was originally argued before a panel of this court consisting
of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald
and Robinson. Thereafter, Justice Zarella retired from this court and did
not participate in the consideration of the case.
1
We note that the petitioner’s first name has been spelled ‘‘Nabil’’ in other
appellate opinions. See generally Kaddah v. Commissioner of Correction,
299 Conn. 129, 130, 7 A.3d 911 (2010); State v. Kaddah, 250 Conn. 563, 564,
736 A.2d 902 (1999); Kaddah v. Commissioner of Correction, 105 Conn.
App. 430, 431, 939 A.2d 1185, cert. denied, 286 Conn. 903, 943 A.2d 1101
(2008). In the present case, however, we use the spelling ‘‘Nabeel’’ for the
sake of consistency with the original pleadings.
2
The habeas court granted the petitioner’s petition for certification to
appeal. See General Statutes § 52-470 (g). The petitioner subsequently
appealed from the judgment of the habeas court to the Appellate Court,
and we transferred the appeal to this court pursuant to General Statutes
§ 51-199 (c) and Practice Book § 65-2.
3
General Statutes § 51-296 (a) provides in relevant part: ‘‘In any criminal
action, in any habeas corpus proceeding arising from a criminal matter . . .
the court before which the matter is pending shall, if it determines after
investigation by the public defender or his office that a defendant is indigent
as defined under this chapter, designate a public defender, assistant public
defender or deputy assistant public defender to represent such indigent
defendant . . . .’’
4
We note that the operative pleading with respect to the third habeas
petition includes six counts claiming ineffective assistance of counsel in
connection with the criminal trial, the direct appeal, and his two prior habeas
petitions. On the first day of trial, the habeas court, acting sua sponte,
dismissed counts one, two, four, and five of the amended petition, which
alleged ineffective assistance of counsel in connection with the criminal
trial and the direct appeal, but did not pertain to prior habeas counsel. The
petitioner does not challenge the dismissal of these counts in this appeal.
5
The petitioner also filed a series of unsuccessful habeas petitions in
federal court, prior to exhausting his state habeas remedies. See Kaddah
v. Brighthaupt, United States District Court, Docket No. 3:11CV1809 (SRU)
(D. Conn. August 6, 2013); Kaddah v. Lee, United States District Court,
Docket No. 3:08CV519 (SRU) (D. Conn. October 7, 2008); Kaddah v. Strange,
United States District Court, Docket No. 3:00CV1642 (CFD) (D. Conn. Janu-
ary 18, 2001). The disposition of these federal petitions does not affect our
analysis in this appeal.
6
We note that, prior to filing the petition at issue in the present case,
the petitioner filed a habeas petition as a self-represented party alleging
ineffective assistance of his trial counsel in order to reinstate his previously
withdrawn appeal. The habeas court, Nazzaro, J., summarily dismissed this
petition as successive to the first habeas petition. See Kaddah II, supra,
299 Conn. 134–35. This court affirmed Judge Nazzaro’s decision on the
alternative ground that the petition did not state a claim on which the
requested relief could be granted because it failed to challenge Attorney
Visone’s decision to withdraw the first habeas appeal. See id., 139–40. The
claims raised in that proceeding are not, however, relevant to the present
appeal. Consequently, for the sake of simplicity, we refer to the petition at
issue in the present case as his third habeas petition.
7
See footnote 4 of this opinion.
8
Specifically, the commissioner’s brief to the habeas court stated: ‘‘[The]
[p]etitioner’s prior habeas attorneys were appointed pursuant to . . . § 51-
296. Accordingly, he possessed a right to effective assistance of both habeas
attorneys; a right he is claiming was violated in this pending habeas corpus
action. Therefore, he may claim that his second appointed habeas counsel
was ineffective. This analysis raises the question, can a petitioner bring
habeas on a habeas ad infinitum? As long as a petitioner is provided counsel
pursuant to . . . § 51-296, he is entitled to effective assistance of counsel.
Accordingly, he may challenge that appointed habeas attorney’s representa-
tion at a subsequent habeas [proceeding].’’
9
General Statutes § 52-470 provides: ‘‘(a) The court or judge hearing any
habeas corpus shall proceed in a summary way to determine the facts and
issues of the case, by hearing the testimony and arguments in the case, and
shall inquire fully into the cause of imprisonment and thereupon dispose
of the case as law and justice require.
‘‘(b) (1) After the close of all pleadings in a habeas corpus proceeding,
the court, upon the motion of any party or, on its own motion upon notice
to the parties, shall determine whether there is good cause for trial for all
or part of the petition.
‘‘(2) With respect to the determination of such good cause, each party
may submit exhibits including, but not limited to, documentary evidence,
affidavits and unsworn statements. Upon the motion of any party and a
finding by the court that such party would be prejudiced by the disclosure
of the exhibits at that stage of the proceedings, the court may consider
some or all of the exhibits in camera.
‘‘(3) In order to establish such good cause, the petition and exhibits must
(A) allege the existence of specific facts which, if proven, would entitle the
petitioner to relief under applicable law, and (B) provide a factual basis
upon which the court can conclude that evidence in support of the alleged
facts exists and will be presented at trial, provided the court makes no
finding that such evidence is contradicted by judicially noticeable facts. If
the petition and exhibits do not establish such good cause, the court shall
hold a preliminary hearing to determine whether such good cause exists. If,
after considering any evidence or argument by the parties at such preliminary
hearing, the court finds there is not good cause for trial, the court shall
dismiss all or part of the petition, as applicable.
‘‘(c) Except as provided in subsection (d) of this section, there shall be
a rebuttable presumption that the filing of a petition challenging a judgment
of conviction has been delayed without good cause if such petition is filed
after the later of the following: (1) Five years after the date on which the
judgment of conviction is deemed to be a final judgment due to the conclu-
sion of appellate review or the expiration of the time for seeking such
review; (2) October 1, 2017; or (3) two years after the date on which the
constitutional or statutory right asserted in the petition was initially recog-
nized and made retroactive pursuant to a decision of the Supreme Court
or Appellate Court of this state or the Supreme Court of the United States
or by the enactment of any public or special act. The time periods set forth
in this subsection shall not be tolled during the pendency of any other
petition challenging the same conviction.
‘‘(d) In the case of a petition filed subsequent to a judgment on a prior
petition challenging the same conviction, there shall be a rebuttable pre-
sumption that the filing of the subsequent petition has been delayed without
good cause if such petition is filed after the later of the following: (1) Two
years after the date on which the judgment in the prior petition is deemed
to be a final judgment due to the conclusion of appellate review or the
expiration of the time for seeking such review; (2) October 1, 2014; or (3)
two years after the date on which the constitutional or statutory right
asserted in the petition was initially recognized and made retroactive pursu-
ant to a decision of the Supreme Court or Appellate Court of this state or
the Supreme Court of the United States or by the enactment of any public
or special act. For the purposes of this section, the withdrawal of a prior
petition challenging the same conviction shall not constitute a judgment.
The time periods set forth in this subsection shall not be tolled during the
pendency of any other petition challenging the same conviction. Nothing in
this subsection shall create or enlarge the right of the petitioner to file a
subsequent petition under applicable law.
‘‘(e) In a case in which the rebuttable presumption of delay under subsec-
tion (c) or (d) of this section applies, the court, upon the request of the
respondent, shall issue an order to show cause why the petition should be
permitted to proceed. The petitioner or, if applicable, the petitioner’s coun-
sel, shall have a meaningful opportunity to investigate the basis for the delay
and respond to the order. If, after such opportunity, the court finds that the
petitioner has not demonstrated good cause for the delay, the court shall
dismiss the petition. For the purposes of this subsection, good cause
includes, but is not limited to, the discovery of new evidence which materially
affects the merits of the case and which could not have been discovered
by the exercise of due diligence in time to meet the requirements of subsec-
tion (c) or (d) of this section.
‘‘(f) Subsections (b) to (e), inclusive, of this section shall not apply to (1)
a claim asserting actual innocence, (2) a petition filed to challenge the
conditions of confinement, or (3) a petition filed to challenge a conviction
for a capital felony for which a sentence of death is imposed under section
53a-46a.
‘‘(g) No appeal from the judgment rendered in a habeas corpus proceeding
brought by or on behalf of a person who has been convicted of a crime in
order to obtain such person’s release may be taken unless the appellant,
within ten days after the case is decided, petitions the judge before whom
the case was tried or, if such judge is unavailable, a judge of the Superior
Court designated by the Chief Court Administrator, to certify that a question
is involved in the decision which ought to be reviewed by the court having
jurisdiction and the judge so certifies.’’
10
Given the commissioner’s concessions before the habeas court, his
arguments in this appeal are, in essence, unpreserved alternative grounds
for affirming that court’s judgment. We exercise our discretion to consider
these unpreserved arguments because: (1) the petitioner has not objected
and has had full opportunity to respond in his reply brief; and (2) judicial
economy counsels in favor of reviewing them insofar as granting the peti-
tioner relief in this appeal will entail further proceedings before the habeas
court. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of
Connecticut, Inc., 311 Conn. 123, 166, 84 A.3d 840 (2014); Dumas v. Commis-
sioner of Correction, 168 Conn. App. 130, 140 n.8, 145 A.3d 355 (2016).
11
We emphasize that a party’s concession as to a point of law is not
binding on this court. See, e.g., State v. Warholic, 278 Conn. 354, 373 n.11, 897
A.2d 569 (2006); State v. Avery, 199 Conn. 377, 379 n.2, 507 A.2d 464 (1986).
12
This concession is significant because, if there is no right to competent
counsel in a second habeas, then there is no need for us to consider the
remedies available to vindicate that right.
13
It is well settled that there is no federal constitutional right to counsel
in a habeas corpus proceeding. See, e.g., Lozada v. Warden, supra, 223
Conn. 839 n.8; see also Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.
Ct. 1990, 95 L. Ed. 2d 539 (1987) (no federal constitutional right to counsel
in collateral review proceedings).
14
We acknowledge the commissioner’s argument that Lozada v. Warden,
supra, 223 Conn. 834, properly allows a second habeas petition for review
of counsel’s actions in the first habeas proceeding, albeit not as a matter
of vindicating the statutory right to counsel under § 51-296 (a), but rather,
as a matter of ‘‘fundamental fairness’’ to assure that a criminal defendant
has two opportunities to vindicate his constitutional right to counsel at
trial and on direct appeal under the sixth amendment to the United States
constitution. Specifically, the commissioner notes our well established prac-
tice of deferring review of ineffectiveness claims from the original criminal
proceedings, including direct appeal, to collateral review by habeas corpus
in order to allow for necessary record development. See, e.g., State v. Leecan,
198 Conn. 517, 542, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922,
91 L. Ed. 2d 550 (1986). The commissioner posits that, in the absence
of this procedure, a criminal defendant would ordinarily be able to raise
ineffective assistance claims under the sixth amendment for review pursuant
to Strickland v. Washington, supra, 466 U.S. 687, at the criminal trial and
on direct appeal, with review by a subsequent habeas proceeding. The
commissioner argues that our reticence to review ineffective assistance
claims in direct proceedings necessitates a second habeas petition to assure
that criminal defendants in Connecticut get the same pair of opportunities
for review of a possible deprivation of their constitutional right to counsel.
We agree with the general doctrinal framework posited by the commis-
sioner, namely, that ‘‘fundamental fairness’’ dictates the availability of the
writ of habeas corpus as a matter of common law; see Safford v. Warden,
supra, 223 Conn. 190; meaning that, as we held in Lozada v. Warden, supra,
223 Conn. 839–40, it may well be available to remedy statutory as well as
constitutional violations. Our decision in Lozada is consistent with the
commissioner’s arguments because, in that case, we treated the question
of whether the statutory right to counsel under § 51-296 (a) includes a
component of competence as a separate inquiry from whether a habeas
petition is a proper remedy for vindicating that right. See Id., 840–43. Put
differently, nowhere in Lozada did we treat the right to bring a second
habeas petition as one with its doctrinal roots in the right provided by § 51-
296 (a). Although we recognize that there has been substantial legislative
involvement in the area of habeas corpus, culminating in a recent set of
reforms in 2012; see Public Acts 2012, No. 12-115, § 1; we emphasize that,
in the absence of a statute curtailing the common-law right to the writ, any
modifications that we make to its availability to vindicate legal rights are
a function of our ultimate authority over the state’s common law. See, e.g.,
State v. DeJesus, 288 Conn. 418, 456–57, 953 A.2d 45 (2008).
15
General Statutes § 52-466 provides in relevant part: ‘‘(a) (1) An applica-
tion for a writ of habeas corpus, other than an application pursuant to
subdivision (2) of this subsection, shall be made to the superior court, or
to a judge thereof, for the judicial district in which the person whose custody
is in question is claimed to be illegally confined or deprived of such per-
son’s liberty.
‘‘(2) An application for a writ of habeas corpus claiming illegal confinement
or deprivation of liberty, made by or on behalf of an inmate or prisoner
confined in a correctional facility as a result of a conviction of a crime,
shall be made to the superior court, or to a judge thereof, for the judicial
district of Tolland.
‘‘(b) The application shall be verified by the affidavit of the applicant for
the writ alleging that he truly believes that the person on whose account
the writ is sought is illegally confined or deprived of his liberty.
‘‘(c) The writ shall be directed to some proper officer to serve and return,
who shall serve the same by putting a true and attested copy of it into the
hands of the person who has the custody of the body of the person who is
directed to be presented upon the writ. If the officer fails to make immediate
return of the writ, with his actions thereon, he shall pay fifty dollars to the
person so held in custody. . . .’’
16
See footnote 9 of this opinion for the full text of § 52-470.
17
Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967); see, e.g., Lorthe v. Commissioner of Correction, 103 Conn. App.
662, 676, 931 A.2d 348 (discussing filing of briefs by appointed counsel,
pursuant to Anders, to inform court that habeas petition or appeal is ‘‘wholly
frivolous’’), cert. denied, 284 Conn. 939, 937 A.2d 696 (2007); see also Practice
Book § 23-41 (governing motions to withdraw by appointed counsel in
habeas cases).
18
We briefly discuss In re Jonathan M., supra, 255 Conn. 208, on which
the commissioner relies heavily in support of barring the use of a third
habeas petition to vindicate the petitioner’s right to the effective assistance
of counsel in prosecuting a second habeas petition. In that case, this court
held that due process, implemented by the three factor balancing test of
Mathews v. Eldridge, 424 U.S. 319, 334–35, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976), did not require ‘‘the writ of habeas corpus as a procedural means
of vindicating the right to effective assistance of counsel in an action to
terminate parental rights.’’ In re Jonathan M., supra, 229. Acknowledging
the grave constitutional significance of the parent-child relationship, we
emphasized the state’s interest in the rapid resolution of termination litiga-
tion because of the best interests of the subject child, namely, assuring that
the child received a permanent home as soon as possible. Id., 230–32. We
observed that, ‘‘to allow a habeas action to raise an ineffective assistance
of counsel claim, as in this case, necessarily would suspend adoption pro-
ceedings and infuse uncertainty therein. Due to the fact that a habeas petition
may be filed at any time . . . there exists . . . a frightening possibility that
a habeas petition will negate the permanent placement of a child whose
status had presumably been in limbo for several years.’’ (Citation omitted;
internal quotation marks omitted.) Id., 232–33. We then determined that
existing remedies were sufficient to protect parental interests, including the
heightened ‘‘vigilance’’ of trial judges in termination proceedings, direct
appeal from the judgment of termination, rules of practice providing review
by an independent attorney in the event of a withdrawal by counsel, statutory
and common-law motions to open the judgment, and a petition for a new
trial within three years pursuant to General Statutes § 52-582. See id., 234–40.
Finally, we emphasized that General Statutes § 45a-719 demonstrated the
legislature’s concern with finality by ‘‘precluding the court from granting
any motion or petition filed after a final decree of adoption has been entered.’’
Id., 240; see also id., 240–41 (‘‘permitting a habeas writ as a vehicle in which
a parent whose rights have been terminated may attack that judgment
collaterally, unbounded by constraints within which time such a petition
may be filed, would further undermine the legislative pronouncements in
this area of the law’’). Thus, we declined ‘‘to infect the delicate and serious
process governing the placement of foster children in permanent adoptive
homes with perpetual uncertainty where the General Assembly has not
directed us to do so.’’ Id., 241.
We decline the commissioner’s invitation to follow In re Jonathan M.
because the finality considerations in a collateral challenge to a termination
of parental rights are drastically different from those presented by a writ
of habeas corpus attacking a criminal conviction with respect to the funda-
mental fairness concerns that drive the availability of the writ as a common-
law remedy. ‘‘[C]riminal prosecutions and termination proceedings are sub-
stantially different in focus. The resolution of a civil juvenile proceeding
focuses on the best interests of the child, not on guilt or innocence as in a
criminal proceeding.’’ Baker v. Office of Family & Children, 810 N.E.2d
1035, 1039 (Ind. 2004). In relying on In re Jonathan M. in a termination of
parental rights case, the Indiana Supreme Court drew a sharp distinction
between ‘‘serial [litigation] in criminal cases,’’ with its attendant burdens
on the state, potential victims, and witnesses, ‘‘by saying that the complete
deprivation of personal liberty represented by incarceration demands a
thorough search for the innocent. In the context of termination cases,
extended litigation imposes that burden on the most vulnerable people
whom the system and such cases seek to protect: the children.’’ Id., 1040.
Thus, we view In re Jonathan M. as embodying very different interests of
finality than those presented in a habeas petition that ultimately challenges
a criminal conviction. This is particularly so given our reliance in that case
on the absolute finality that the legislature imposed in termination cases
by § 45a-719. See In re Jonathan M., supra, 255 Conn. 240. Indeed, the
commissioner has not pointed us to a similar statutory bright line barring
further relief in the criminal habeas context, and our independent research
has not revealed one.
19
We emphasize, however, that our holdings in this case are limited to
the questions decided by the habeas court, and briefed and argued by the
parties, namely: (1) whether there is, as conceded by the commissioner, a
statutory right under § 51-296 (a) to the effective assistance of counsel in
prosecuting a second habeas petition; and (2) if such a right exists, whether
a third habeas petition is an available procedural vehicle by which to vindi-
cate that right. Given the concerns of ‘‘fundamental fairness’’ that attend
the use of the habeas remedy; see, e.g., Safford v. Warden, supra, 223 Conn.
190; along with the practical and economic concerns aptly noted by the
habeas court in the present case, we take no position in this appeal about
whether the writ is available to remedy claims of ineffective assistance of
counsel during litigation of the third habeas petition and beyond. We similarly
decline to opine, as a matter of statutory interpretation, about whether the
statutory right to counsel under § 51-296 (a) extends beyond the second
habeas petition. See, e.g., Stuart v. Stuart, supra, 297 Conn. 48 (‘‘sound
principles of judicial restraint and judicial economy counsel [an appellate
court] to resolve only those issues that are necessary to the proper determina-
tion of [an] appeal’’ [internal quotation marks omitted]); see also Simms v.
Warden, 229 Conn. 178, 190, 640 A.2d 601 (1994) (Borden, J., concurring)
(‘‘Experience has demonstrated that we are wiser to defer difficult questions
to cases that squarely present them. I would follow that wisdom and defer
the question to a case in which the issue is squarely presented and briefed.’’).
20
Observing that ‘‘the issue may arise again’’ on remand, the petitioner asks
us to ‘‘address the available remedies for his claim of ineffective assistance of
second habeas counsel,’’ given the habeas court’s conclusion that ‘‘the only
remedy possible for this claim is the granting of a new second habeas trial.’’
Citing Lapointe v. Commissioner of Correction, 316 Conn. 225, 229, 112
A.3d 1 (2015), in which this court upheld the Appellate Court’s order of a
new criminal trial in connection with a second habeas petition, the petitioner
observes that ‘‘the issues raised at a second habeas go to the heart of the
underlying criminal proceeding, [and] it is within the broad scope of a habeas
court’s authority in crafting equitable relief to not only grant a new second
habeas trial, but also to grant a new criminal trial.’’ Although we often
address issues that are likely to arise on remand; see, e.g., Total Recycling
Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC,
308 Conn. 312, 325, 63 A.3d 896 (2013); given the habeas court’s broad
discretion with respect to the available remedies, we decline to address this
claim in the absence of factual findings and conclusions of law with respect
to the specific claims of ineffectiveness in the preceding habeas proceedings
and underlying criminal trial that might better inform our remedial analysis.
See Gaines v. Manson, 194 Conn. 510, 528, 481 A.2d 1084 (1984) (observing
that habeas court, ‘‘much like a court of equity, has considerable discretion
to frame a remedy, so long as that remedy is commensurate with the scope
of the constitutional violations which have been established’’).