Diaz v. Commissioner of Correction ( 2015 )


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    IVAN DIAZ v. COMMISSIONER OF CORRECTION
    (AC 36003)
    Gruendel, Mullins and Dupont, Js.
    Argued March 3—officially released June 9, 2015
    (Appeal from Superior Court, judicial district of
    Tolland, Sferrazza, J.)
    John J. Duguay, with whom, on the brief, was
    Michael D. Day, for the appellant (petitioner).
    Michael Proto, assistant state’s attorney, with whom,
    on the brief, was John C. Smriga, state’s attorney, for
    the appellee (respondent).
    Opinion
    MULLINS, J. The petitioner, Ivan Diaz, appeals from
    the judgment of the habeas court dismissing, sua
    sponte, his petition for a writ of habeas corpus on the
    basis of deliberate bypass.1 The petitioner claims that
    the court improperly dismissed his petition sua sponte.
    We agree. Accordingly, we reverse the judgment of the
    habeas court and remand the matter for further pro-
    ceedings.
    The facts underlying the petitioner’s conviction can
    be found in our Supreme Court’s decision, affirming
    the judgment of conviction, in his direct appeal; see
    State v. Diaz, 
    237 Conn. 518
    , 
    679 A.2d 902
     (1996); and
    need not be repeated for purposes of this appeal. In
    February, 1997, the petitioner filed his first petition for
    a writ of habeas corpus, alleging that his trial attorney
    and his appellate attorney rendered ineffective assis-
    tance. That petition was not successful. See Diaz v.
    Commissioner of Correction, 
    92 Conn. App. 533
    , 
    886 A.2d 460
     (2005), cert. denied, 
    277 Conn. 905
    , 
    894 A.2d 986
     (2006). In February, 2004, the petitioner filed his
    second petition for a writ of habeas corpus, alleging
    that his attorney in his first habeas proceeding was
    ineffective. That petition also was unsuccessful. In May,
    2007, the petitioner filed his third petition for a writ of
    habeas corpus. Attorney Cheryl Juniewic was assigned
    to represent the petitioner in this third petition, in which
    the petitioner alleged, among other things, that his attor-
    ney in his second habeas proceeding, Genevieve Salva-
    tore, was ineffective. The third petition was assigned for
    trial on July 8, 2010, but, on July 2, 2010, the petitioner
    withdrew the third petition. The withdrawal form was
    signed by both Attorney Juniewic and the petitioner.
    On February 4, 2011, the petitioner filed his fourth
    petition for a writ of habeas corpus, alleging claims
    of ineffective assistance of counsel as to each of the
    petitioner’s previous attorneys, in addition to due pro-
    cess claims. Following the appointment of counsel, the
    petitioner filed an amended petition on March 13, 2013.
    The respondent, the Commissioner of Correction, filed
    his return on March 20, 2003, admitting in part and
    denying in part the allegations set forth in the
    amended petition.
    The matter proceeded to a May 30, 2013 habeas trial,
    at the start of which the petitioner withdrew his claims
    regarding Attorney Juniewic. On August 14, 2013, the
    habeas court dismissed, sua sponte, the entire petition
    on the ground that the court was deprived of subject
    matter jurisdiction because the petition consisted of
    claims that were deliberately bypassed.2 Specifically,
    the court determined that, once the petitioner had with-
    drawn his claims against Attorney Juniewic, there
    remained only claims that he previously had raised in
    this third habeas petition, and that the withdrawal of
    that third petition barred the petitioner from raising the
    same claims in a future habeas petition on the ground
    of deliberate bypass. This appeal followed.
    On appeal, the petitioner claims that the court
    improperly dismissed his petition sua sponte. He claims
    that the court improperly raised and acted sua sponte
    on an affirmative defense not pleaded by the respon-
    dent. The petitioner also claims that the court improp-
    erly determined that the deliberate bypass doctrine
    applied in this case and that it was a bar to the petition-
    er’s claims. We conclude that the court improperly
    acted sua sponte in this case on an issue that did not
    involve the court’s subject matter jurisdiction.
    ‘‘The conclusions reached by the trial court in its
    decision to dismiss [a] habeas petition are matters of
    law, subject to plenary review. . . . [When] the legal
    conclusions of the court are challenged, [the reviewing
    court] must determine whether they are legally and
    logically correct . . . and whether they find support
    in the facts that appear in the record. . . . To the extent
    that factual findings are challenged, this court cannot
    disturb the underlying facts found by the habeas court
    unless they are clearly erroneous . . . .’’ (Internal quo-
    tation marks omitted.) Fine v. Commissioner of Correc-
    tion, 
    147 Conn. App. 136
    , 140, 
    81 A.3d 1209
     (2013).
    First, we consider it important to address the court’s
    conclusion that the deliberate bypass doctrine impli-
    cates the court’s subject matter jurisdiction, which
    would then give the court the authority to raise the
    doctrine sua sponte.3 See Lopez v. Board of Education,
    
    310 Conn. 576
    , 589–90, 
    81 A.3d 184
     (2013) (‘‘issues of
    subject matter jurisdiction may be raised at any time,
    including by the court sua sponte, regardless of the
    manner in which the issue is treated by the parties’’).
    In its memorandum of decision, the court relied, inter
    alia, on Galland v. Bronson, 
    204 Conn. 330
    , 333, 
    527 A.2d 1192
     (1987) (‘‘issue of deliberate bypass is jurisdic-
    tional in nature’’), for its determination that the doctrine
    of deliberate bypass was jurisdictional. In a later case,
    however, our Supreme Court explained: ‘‘While we have
    often characterized the question of deliberate bypass
    as ‘jurisdictional’ . . . and thus arguably not waivable
    [by the state] . . . the rule is rather a prudential limita-
    tion on the right to raise constitutional claims in collat-
    eral proceedings.’’ (Citations omitted.) Payne v.
    Robinson, 
    207 Conn. 565
    , 569 n.1, 
    541 A.2d 504
    , cert.
    denied, 
    488 U.S. 898
    , 
    109 S. Ct. 242
    , 
    102 L. Ed. 2d 230
    (1988).
    Following its decision in Payne, the court further
    clarified that deliberate bypass was not jurisdictional
    when it stated: ‘‘The cause and prejudice requirement,
    like the deliberate-bypass standard that preceded it
    . . . is not jurisdictional in nature. . . . Consequently,
    a habeas petitioner’s failure to establish cause and prej-
    udice does not deprive either the habeas court or a
    reviewing court of subject matter jurisdiction over the
    habeas action.’’ (Citations omitted; internal quotation
    marks omitted.) Taylor v. Commissioner of Correction,
    
    284 Conn. 433
    , 447 n.18, 
    936 A.2d 611
     (2007). Accord-
    ingly, the habeas court improperly determined that the
    deliberate bypass doctrine implicated its subject matter
    jurisdiction in this case.
    We next address whether the court improperly raised
    the deliberate bypass doctrine sua sponte. We agree
    with the petitioner that this issue is controlled by Bar-
    low v. Commissioner of Correction, 
    150 Conn. App. 781
    , 786–87, 
    93 A.3d 165
     (2014).4
    In Barlow, we explained: ‘‘Practice Book § 23-30 (b)
    provides, in relevant part, that the respondent’s return
    shall allege any facts in support of any claim of proce-
    dural default, abuse of the writ, or any other claim that
    the petitioner is not entitled to relief. . . . [T]he doc-
    trine of deliberate bypass historically has arisen in the
    context of habeas petitions involving claims procedur-
    ally defaulted at trial and on appeal. . . . If the respon-
    dent claims that the petitioner should have raised the
    issue [previously] . . . the claim [of procedural
    default] must be raised in the return or it will not be
    considered at the [habeas] hearing. . . . [T]he plain
    language of Practice Book § 23-30 (b) requires the
    [respondent] to plead procedural default in [the] return
    or [the respondent] will relinquish the right to assert
    the defense thereafter. . . . [I]n Connecticut, although
    the petitioner has the burden of proving cause and
    prejudice . . . that burden does not arise until after
    the respondent raises the claim of procedural default
    in [the] return. . . . [When] the respondent [does] not
    plead procedural default as an affirmative defense . . .
    the court [may] not find that the petitioner was proce-
    durally defaulted . . . .’’ (Citations omitted; emphasis
    omitted; internal quotation marks omitted.) Id.; see Day
    v. Commissioner of Correction, 
    151 Conn. App. 754
    ,
    758–60, 
    96 A.3d 600
    , cert. denied, 
    314 Conn. 936
    , 
    102 A.3d 1113
     (2014).
    Here, the respondent did not assert in his return the
    affirmative defense of procedural default or otherwise
    indicate that he wished to assert a defense of deliberate
    bypass. Although the respondent argues that such a
    claim was not viable when the return was filed in this
    case, and that it did not become viable until the peti-
    tioner withdrew his claim that Attorney Juniewic had
    been ineffective, the record does not demonstrate that
    the respondent made any attempt after the withdrawal
    to raise this defense by seeking to amend his return or
    otherwise. See generally Jackson v. Commissioner of
    Correction, 
    149 Conn. App. 681
    , 685, 
    89 A.3d 426
    (respondent filed amended return), cert. granted on
    other grounds, 
    313 Conn. 901
    , 
    96 A.3d 558
     (2014); Anker-
    man v. Commissioner of Correction, 
    122 Conn. App. 246
    , 248, 
    999 A.2d 789
     (respondent filed amended
    return), cert. denied, 
    298 Conn. 922
    , 
    4 A.3d 1225
     (2010).
    Accordingly, we conclude that the defense was waived
    by the respondent and that the court, therefore, improp-
    erly raised it sua sponte.5
    The judgment is reversed and the case is remanded
    for further proceedings.
    In this opinion the other judges concurred.
    1
    The habeas court granted the petition for certification to appeal.
    2
    Although the court in its memorandum of decision clearly stated that
    the petition for a writ of habeas corpus was dismissed, the judgment file
    prepared by the assistant clerk stated that it was denied.
    3
    For purposes of our analysis, we need not determine whether deliberate
    bypass could be applicable to any individual claims in the petitioner’s habeas
    petition or in habeas proceedings alleging ineffective assistance of counsel.
    4
    We note that our decision in Barlow v. Commissioner of Correction,
    supra, 
    150 Conn. App. 781
    , was released well after the habeas court rendered
    its decision in this case.
    5
    Although we conclude that the respondent waived this defense, we,
    nonetheless, also note, in accordance with Fine v. Commissioner of Correc-
    tion, supra, 
    147 Conn. App. 145
    –48, that a petitioner does not automatically
    ‘‘deliberately bypass’’ or waive his right to refile a petition simply because
    he withdraws a prior petition, unless there is a showing that the petitioner
    knew that the withdrawal of that prior petition was with prejudice or under
    some sanction. See, e.g., id.; Mozell v. Commissioner of Correction, 
    147 Conn. App. 748
    , 757–60, 
    83 A.3d 1174
     (court properly held that petitioner
    knowingly withdrew, with prejudice, count from prior habeas petition when
    record supported such finding), cert. denied, 
    311 Conn. 928
    , 86 A.3d. 1057
    (2014); Richardson v. Commissioner of Correction, 
    123 Conn. App. 301
    , 305
    n.4, 
    1 A.3d 1142
     (‘‘petitioner withdrew his initial petition without prejudice so
    that he could combine and address in one petition’’ several convictions),
    cert. denied, 
    299 Conn. 910
    , 10 A.3d. 528 (2010).
    

Document Info

Docket Number: AC36003

Filed Date: 6/9/2015

Precedential Status: Precedential

Modified Date: 7/30/2015