Tyson v. Commissioner of Correction ( 2015 )

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CHARLES TYSON III v. COMMISSIONER
OF CORRECTION
(AC 36258)
Lavine, Sheldon and Keller, Js.
Argued December 5, 2014—officially released January 20, 2015
(Appeal from Superior Court, judicial district of
Tolland, Kwak, J.)
Arthur L. Ledford, assigned counsel, for the appel-
lant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and David Clifton, assistant state’s
attorney, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Charles Tyson III, appeals
from the judgment of the habeas court dismissing his
amended third petition for a writ of habeas corpus
for lack of subject matter jurisdiction. On appeal, the
petitioner claims that the habeas court improperly
granted the motion to dismiss filed by the respondent,
the Commissioner of Correction. We lack subject mat-
ter jurisdiction to consider a portion of the petitioner’s
claim and therefore dismiss it. We affirm the remainder
of the judgment of the habeas court.
The following facts are relevant to this appeal. On
October 24, 1991, James Tyson was bludgeoned in a
parking lot in New Haven, and he died several days
later. State v. Tyson, 43 Conn. App. 61, 62–64, 682 A.2d
536, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996).
At about the time of the bludgeoning, the petitioner
was seen exiting the parking lot carrying a metal pipe,
which he later used to assault an investigating police
officer. Id., 63–64. The petitioner was arrested and
charged with numerous crimes. A jury found him guilty
of murder in violation of General Statutes § 53a-54a,
felony murder in violation of General Statutes § 53a-
54c, attempt to commit robbery in the first degree in
violation of General Statutes §§ 53-49 and 53a-134, and
assault on a peace officer in violation of General Stat-
utes § 53a-167c. Id., 62. The petitioner was given a total
effective sentence of sixty-five years in the custody
of the respondent. See id., 69–70. Our Supreme Court
denied the petitioner’s petition for certification to
appeal. State v. Tyson, 239 Conn. 933, 683 A.2d 401
(1996).
The present appeal concerns the petitioner’s
amended third petition for a writ of habeas corpus (third
petition). In his third petition, the petitioner alleged, in
part, that in October, 1998, he filed an amended petition
for a writ of habeas corpus (first petition) in which he
alleged that his trial counsel, Erskine McIntosh, ren-
dered ineffective assistance. Specifically, he alleged
that McIntosh failed to cross-examine certain witnesses
effectively, to object to prejudicial evidence, to object
to prosecutorial impropriety, and to investigate and
interview material witnesses. Attorney Raymond Rigat
represented the petitioner in the first habeas proceed-
ing. The first petition was dismissed, and the petitioner
appealed to this court, which affirmed the judgment of
the habeas court. Tyson v. Commissioner of Correc-
tion, 64 Conn. App. 905, 777 A.2d 758 (2001). Attorney
James M. Fox represented the petitioner on appeal, but
he did not file a petition for certification to appeal this
court’s judgment to our Supreme Court.
The third petition further alleged that in April, 2009,
the petitioner filed an amended second petition for a
writ of habeas corpus (second petition) in which he
alleged, in part, that Rigat rendered ineffective assis-
tance of habeas counsel due to his failure to demon-
strate that McIntosh rendered ineffective assistance at
trial by failing to present expert medical testimony.
Attorney W. Theodore Koch III represented the peti-
tioner in the second habeas proceeding. One count of
the second petition was dismissed, and the remaining
three counts were denied. Koch failed to apply for the
appointment of counsel and waiver of fees to appeal
and failed to file a petition for certification to appeal
to this court.
In June, 2013, the petitioner filed the third petition
in which he alleged that Koch rendered ineffective assis-
tance of counsel. Specifically, he alleged in paragraph
6 (a) that Koch rendered ineffective assistance by failing
to allege that Fox rendered ineffective assistance of
counsel by failing to file a petition for certification to
appeal to our Supreme Court from this court’s judgment
on the first petition. In paragraph 6 (b) of the third
petition, the petitioner alleged that Koch’s assistance
was ineffective for his failure to file an application for
the appointment of counsel and waiver of fees on appeal
and a petition for certification to appeal to this court
from the habeas court’s judgment dismissing in part
and denying in part the second petition.
In response to the third petition, the respondent
asserted the defense of abuse of the writ because the
‘‘underlying claim regarding failure to seek certification
to appeal to [our] Supreme Court on his direct appeal
was available in both prior petitions.’’ (Emphasis in
original.) The petitioner denied that he had abused the
writ, relying on Iovieno v. Commissioner of Correction,
242 Conn. 689, 702–703, 699 A.2d 1003 (1997).
On October 17, 2013, the respondent filed a motion
to dismiss the third petition pursuant to Janulawicz
v. Commissioner of Correction, 310 Conn. 265, 77 A.3d
113 (2013). In Janulawicz, our Supreme Court held that
an ineffective assistance of counsel claim for failure to
file a petition for certification to appeal to that court
was not ripe for adjudication because such a claim of
ineffective assistance of counsel ‘‘is contingent on [the
court’s] denial of his motion to file a late petition for
certification to appeal, an event that may never occur,
thereby obviating any need for a resolution of the issues
presented in this appeal.’’ Id., 275. Until our Supreme
Court has denied Janulawicz’ motion to file late a peti-
tion for certification to appeal, if any, he will have
suffered no prejudice, and his petition for a writ of
habeas corpus grounded on ineffective assistance of
counsel will not be ripe for adjudication.1 Id. In the
subject motion to dismiss, the respondent argued that
the habeas court lacked subject matter jurisdiction over
the allegations in paragraphs 6 (a) and (b) of the third
petition because said allegations were not yet ripe for
adjudication because the petitioner had suffered no
prejudice due to the denial of his motions or petitions
to file late appeals. See footnote 1 of this opinion.
The parties appeared before the habeas court on
November 4, 2013, to commence trial on the third peti-
tion. As a preliminary matter, the court addressed the
respondent’s motion to dismiss. Counsel for the peti-
tioner agreed that Janulawicz controlled the allegation
in paragraph 6 (a) and withdrew it. The court stated:
‘‘6 (a) is withdrawn.’’ With respect to the allegations in
paragraph 6 (b), the petitioner’s counsel argued that
due to procedural differences noted in footnote 10 of
Janulawicz, that case was not applicable. See Janu-
lawicz v. Commissioner of Correction, supra, 310
Conn. 274 n.10.
Counsel for the respondent objected to the with-
drawal of the allegations in paragraph 6 (a), stating that
the parties were in court to start trial. He, however,
agreed that footnote 10 of Janulawicz identified proce-
dural differences regarding the manner in which our
Supreme Court considers motions for permission to file
late a petition for certification to appeal and this court
considers motions for permission to file late an appeal.2
Despite the procedural distinctions, the respondent’s
counsel argued that the legal analysis as to the habeas
court’s subject matter jurisdiction over the allegations
in paragraphs 6 (a) and (b) of the third petition was
similar and that the habeas court lacked jurisdiction as
the allegations were not ripe for adjudication.
The habeas court acknowledged the procedural dis-
tinctions with respect to the filing of late appeals in
our appellate courts, but concluded that the legal analy-
sis with respect to the habeas court’s subject matter
jurisdiction over the allegations in paragraphs 6 (a) and
(b) was the same. Counsel for the petitioner asserted
that the allegation in paragraph 6 (b) was controlled
by Iovieno v. Commissioner of Correction, supra, 242
Conn. 689. The habeas court disagreed, and, despite
counsel’s representation that the allegation in para-
graph 6 (a) was withdrawn, the court dismissed para-
graphs 6 (a) and (b) of the third petition pursuant to
Janulawicz. The court advised the petitioner that he
could seek permission to file late appeals in the Appel-
late or Supreme Courts as appropriate. Thereafter, the
habeas court granted the petitioner’s petition for certifi-
cation to appeal to this court from the judgment of dis-
missal.
On appeal, the petitioner claims that the court
improperly dismissed his third petition because (1) he
withdrew the allegation in paragraph 6 (a) before it was
tried on its merits and (2) Janulawicz is inapplicable
to paragraph 6 (b). We conclude that (1) we lack subject
matter jurisdiction to consider the petitioner’s claim
with regard to the allegation in paragraph 6 (a) for
lack of aggrievement and (2) the habeas court properly
dismissed the allegation in paragraph 6 (b), which was
not ripe for adjudication.
We begin by setting forth the applicable standard of
review. ‘‘A motion to dismiss tests, inter alia, whether,
on the face of the record, the court is without jurisdic-
tion. . . . [O]ur review of the court’s ultimate legal con-
clusion and resulting [determination] of the motion to
dismiss will be de novo. . . . When a . . . court
decides a jurisdictional question raised by a pretrial
motion to dismiss, it must consider the allegations of
the complaint in their most favorable light. . . . In this
regard, a court must take the facts to be those alleged in
the complaint, including those facts necessarily implied
from the allegations, construing them in a manner most
favorable to the pleader. . . . The motion to dismiss
. . . admits all facts which are well pleaded, invokes
the existing record and must be decided upon that
alone. . . . In undertaking this review, we are mindful
of the well established notion that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.’’
(Citations omitted; internal quotation marks omitted.)
Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774,
23 A.3d 1192 (2011).
To prevail on a claim of ineffective assistance of
counsel, a petitioner must allege and prove the two part
test established in Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
‘‘According to Strickland, [a] claim of ineffective assis-
tance of counsel consists of two components: a perfor-
mance prong and a prejudice prong. To satisfy the
performance prong . . . the petitioner must demon-
strate that his attorney’s representation was not reason-
ably competent or within the range of competence
displayed by lawyers with ordinary training and skill
in criminal law. . . . To satisfy the prejudice prong, a
claimant must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.
. . . The claim will succeed only if both prongs are
satisfied.’’ (Internal quotation marks omitted.) Sargent
v. Commissioner of Correction, 121 Conn. App. 725,
738, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d
71 (2010).
I
The petitioner claims that the habeas court improp-
erly dismissed the allegation in paragraph 6 (a) of the
third petition in violation of General Statutes § 52-80,
because his counsel withdrew it prior to a hearing on
the merits. See Travelers Property Casualty Co. of
America v. Twine, 120 Conn. App. 823, 826–28, 993
A.2d 470 (2010); Daigneault v. Consolidated Controls
Corp./Eaton Corp., 89 Conn. App. 712, 714–15, 875 A.2d
46, cert. denied, 276 Conn. 913, 888 A.2d 83 (2005), cert.
denied, 546 U.S. 1217, 126 S. Ct. 1434, 164 L. Ed. 2d 137
(2006). The respondent counters that this court lacks
subject matter jurisdiction to consider the claim, as the
petitioner is not aggrieved by the judgment of dismissal.
We agree with the respondent.
General Statutes § 52-263 provides in relevant part
that ‘‘[u]pon the trial of all matters of fact . . . if either
party is aggrieved by the decision of the court or judge
upon any question or questions of law arising in the
trial . . . [that party] may appeal to the court having
jurisdiction from the final judgment of the court or of
such judge . . . .’’ Whenever a jurisdictional question
is raised, the court must resolve it before it may proceed
further with an appeal. See Johnson v. Commissioner
of Correction, 258 Conn. 804, 813, 786 A.2d 1091 (2002).
Before an appellate tribunal may consider an appeal,
it must determine whether the appellant is an aggrieved
party with standing to maintain an appeal. See State v.
Long, 268 Conn. 508, 530–31, 847 A.2d 862, cert. denied,
543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004).
‘‘We traditionally have applied the following two part
test to determine whether aggrievement exists: (1) does
the allegedly aggrieved party have a specific, personal
and legal interest in the subject matter of a decision;
and (2) has this interest been specially and injuriously
affected by the decision.’’ (Internal quotation marks
omitted.) Nanni v. Dino Corp., 117 Conn. App. 61, 70,
978 A.2d 531 (2009).
This case requires us to determine the effect of the
habeas court’s ruling dismissing the allegation in para-
graph 6 (a) of the third petition. In paragraph 6 (a), the
petitioner alleged that ‘‘Koch failed to claim and show
ineffective assistance of Petitioner’s habeas appellate
counsel . . . Fox for his failure to file the Petition for
Certification to Appeal to the Supreme Court from the
Appellate Court’s Per Curiam decision dismissing Peti-
tioner’s Appeal from Judge Corrigan’s decision relative
to Petitioner’s first petition.’’
The petitioner concedes that he has not filed a motion
for permission to file late a petition for certification to
appeal or a petition for certification to appeal. He also
concedes that the claim alleged in paragraph 6 (a) is
hypothetical and is not justiciable under Janulawicz
because the claim is not ripe. His claim on appeal is that
the habeas court improperly dismissed the allegation in
paragraph 6 (a) after he withdrew it, but he does not
contend that the habeas court dismissed paragraph 6
(a) with prejudice. ‘‘A dismissal without prejudice ter-
minates litigation and the court’s responsibilities, while
leaving the door open for some new, future litigation.
. . . It is well established that a dismissal without preju-
dice has no res judicata effect on a subsequent claim.’’
(Citation omitted; internal quotation marks omitted.)
Commission on Human Rights & Opportunities v.
Torrington, 96 Conn. App. 313, 319, 901 A.2d 46, cert.
denied, 280 Conn. 929, 909 A.2d 957 (2006). The peti-
tioner has suffered no harm due to the dismissal of the
allegation in paragraph 6 (a); he is free to file a motion
for permission to file late a petition for certification to
appeal, if he so desires. He, therefore, is not aggrieved
by the judgment of the habeas court, and we lack sub-
ject matter jurisdiction to consider his claim with
respect to the allegation in paragraph 6 (a) of the
third petition.3
II
The petitioner also claims that the habeas court
improperly dismissed paragraph 6 (b) of his third peti-
tion pursuant to Janulawicz. We agree with the peti-
tioner that the court’s reliance on Janulawicz was
improper, but conclude that the court properly dis-
missed the allegation in paragraph 6 (b) as it was not
ripe for adjudication by the habeas court.4
Paragraph 6 (b) of the third petition alleged that
‘‘Koch failed to cause Petitioner to file Petitioner’s
Application for Appointment of Counsel and Waiver of
Fees on Appeal, and Petitioner’s Petition for Certifica-
tion to Appeal to the Appellate Court relative to dis-
missal of Petitioner’s second petition on August 9, 2009
. . . .’’ The petitioner does not dispute that he has not
yet filed an application for the appointment of counsel
and waiver of fees on appeal or a petition for certifica-
tion to appeal in the habeas court.
The habeas court granted the respondent’s motion
to dismiss the allegation in paragraph 6 (b) pursuant
to Janulawicz. On appeal, the petitioner argues that
our Supreme Court did not intend for Janulawicz to
apply to motions for permission to file late a brief in
this court. Although we agree that Janulawicz does
not apply to the facts of this case, we disagree that the
allegation in paragraph 6 (b) is ripe for adjudication in
the habeas court. A petition for certification to appeal
from the judgment of the habeas court is filed in the
habeas court. See General Statutes § 52-470 (g).5 The
petitioner’s failure to comply with the ten day limitation
period of § 52-470 (g) does not necessarily deprive him
of the right to file an untimely appeal. The decision to
grant or deny a motion for permission to file late a
petition for certification to appeal is left to the sound
discretion of the habeas court. See Iovieno v. Commis-
sioner of Correction, supra, 242 Conn. 700. ‘‘In exercis-
ing that discretion, a habeas court should take into
account the reasons for the delay.’’ Id.
A petitioner presenting a petition for a writ of habeas
corpus due to the ineffective assistance of counsel must
allege and prove both deficient performance of counsel
and resulting harm or prejudice. See Strickland v.
Washington, supra, 466 U.S. 687. Until the petitioner
files a motion for permission to file late a petition for
certification to appeal with our Supreme Court as to
the allegation in paragraph 6 (a) or a motion for permis-
sion to file late a petition for certification to appeal
with the habeas court as to the allegation in paragraph
6 (b) of the third petition and the motions are denied,
the petitioner has suffered no prejudice. Until at least
one motion for permission to file late is denied, the
petitioner cannot allege a viable petition for a writ of
habeas corpus on the ground of ineffective assistance
of counsel with respect to Koch.
The appeal is dismissed as to the petitioner’s claim
with respect to the allegation in paragraph 6 (a) of the
third petition for a writ of habeas corpus; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
1
See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984) (petitioner who alleges ineffective assistance of counsel
must demonstrate both deficient performance and prejudice).
2
Footnote 10 in Janulawicz is not relevant to the petitioner’s claim on
appeal, and we, therefore, need not address it.
3
To date, the petitioner has suffered no harm due to Fox’ failure to file
a petition for certification to appeal. His injury, if any, is contingent on his
filing and our Supreme Court’s denying a motion for permission to file late
a petition for certification to appeal. See Janulawicz v. Commissioner of
Correction, supra, 310 Conn. 271–72. If the petitioner files such a motion
and our Supreme Court grants it, the petitioner will have suffered no harm.
Id., 272; see footnote 1 of this opinion.
4
‘‘That the court relied on a wrong theory does not render the judgment
erroneous. We can sustain a right decision although it may have been placed
on a wrong ground.’’ Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d
697 (1964).
5
General Statutes § 52-470 (g) provides in relevant part: ‘‘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 . . . 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.’’