Day v. Commissioner of Correction ( 2014 )

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JASON DAY v. COMMISSIONER
OF CORRECTION
(AC 35132)
Beach, Sheldon and Bishop, Js.
Argued April 21—officially released July 29, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Sarah F. Summons, assigned counsel, for the appel-
lant (petitioner).
Adam E. Mattei, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Craig Nowak, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
SHELDON, J. The petitioner, Jason Day, appeals fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court dismiss-
ing his sixth postconviction petition for a writ of habeas
corpus, in which he challenged his conviction of one
count of capital felony murder in violation of General
Statutes § 53a-54b (8), four counts of murder in viola-
tion of General Statutes § 53a-54a (a) and one count of
assault in the third degree in violation of General Stat-
utes § 53a-61 (a) (1). In support of his sixth petition,
the petitioner made several allegations of prosecutorial
impropriety, claiming, inter alia, that the prosecuting
attorney in the underlying criminal trial vouched for
the credibility of certain state’s witnesses, argued facts
not in evidence and withheld exculpatory evidence from
the defense. The petitioner also made allegations of
ineffective assistance with respect to his trial attorneys,
Patrick J. Culligan and William Holden, on the basis of
their decision not to call certain witnesses, and alleged
failure, on that basis, to present an adequate defense
on his behalf. For the following reasons, we reverse
the judgment of the habeas court in part and dismiss
the appeal in part.
We begin by setting forth the procedural background
of the present appeal. Since March 1, 2001, the peti-
tioner has filed five habeas corpus petitions alleging
ineffective assistance of both his trial and his prior
habeas counsel. The habeas courts dismissed all five
petitions. The petitioner appealed to this court from
three of those rulings. See Day v. Commissioner of
Correction, 139 Conn. App. 911, 56 A.3d 764 (appeal
dismissed), cert. denied, 308 Conn. 906, 61 A.3d 1097
(2013); Day v. Commissioner of Correction, 118 Conn.
App. 130, 983 A.2d 869 (2009) (judgment affirmed), cert.
denied, 294 Conn. 930, 986 A.2d 1055 (2010); Day v.
Commissioner of Correction, 86 Conn. App. 522, 862
A.2d 309 (2004) (judgment affirmed). On December 23,
2005, in addition to his five state habeas petitions, the
petitioner commenced a federal habeas corpus action
in the United States District Court for the District of
Connecticut. The respondent, the Commissioner of Cor-
rection, filed a motion to dismiss that federal action,
which the District Court granted, concluding ‘‘that
jurists of reason would not find it debatable that the
petitioner did not exhaust his state court remedies with
regard to any claim included in this petition.’’ Day v.
Dzurenda, Docket No. 3:06-CV-156 (AWT), 2008 WL
786321 (D. Conn. March 24, 2008).
On March 19, 2012, while the appeal from the dis-
missal of the petitioner’s fifth state habeas petition was
pending, he filed his sixth self-represented habeas cor-
pus petition, which is the subject of this appeal. On
August 24, 2012, the court, Newson, J., held a hearing
on its sua sponte motion to dismiss, at which the parties
were invited, upon the order of the court, to make
arguments and present evidence ‘‘as to why the petition
should not be dismissed for any or all of the reasons
cited under Practice Book § 23-29.’’ Thereafter, the
court, Newson, J., dismissed the petition pursuant to
§ 23-29, upon finding that the petitioner’s prosecutorial
impropriety claims had been procedurally defaulted and
that his remaining claims, alleging ineffective assistance
of counsel, were successive. On September 4, 2012, the
petitioner filed a self-represented petition for certifica-
tion to appeal from the dismissal of his petition, which
the court, Newson, J., denied without opinion on Sep-
tember 14, 2012. This appeal followed.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, he must then prove that the decision of the habeas
court should be reversed on its merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . .
‘‘We examine the petitioner’s underlying claim of inef-
fective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. Our standard
of review of a habeas court’s judgment on ineffective
assistance of counsel claims is well settled. In a habeas
appeal, this court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Mejia v. Commissioner of Correction, 98 Conn. App.
180, 185–86, 908 A.2d 581 (2006). We will review each
of the petitioner’s claims in turn.
I
We begin by discussing the petitioner’s prosecutorial
impropriety claims, on which, the respondent argued
and the habeas court ruled, the petitioner was procedur-
ally defaulted. Because the respondent failed to file a
return pleading the affirmative defense of procedural
default as to the petitioner’s claims of prosecutorial
impropriety, we conclude that the habeas court abused
its discretion by dismissing those claims on that basis.
In a habeas corpus proceeding in Connecticut, ‘‘[t]he
petition is in the nature of a pleading, and the return
is in the nature of an answer. . . . [T]he interpretation
of pleadings is always a question of law for the court
. . . . Our review of the [habeas] court’s interpretation
of the pleadings therefore is plenary. . . . When a
respondent seeks to raise an affirmative defense of
procedural default, the rules of practice require that he
or she must file a return to the habeas petition alleg[ing]
any facts in support of any claim of procedural default
. . . or any other claim that the petitioner is not entitled
to relief. . . . If the return alleges any defense or claim
that the petitioner is not entitled to relief, and such
allegations are not put in dispute by the petition, the
petitioner shall file a reply. . . . The reply shall allege
any facts and assert any cause and prejudice claimed
to permit review of any issue despite any claimed proce-
dural default.’’1 (Citations omitted; internal quotation
marks omitted.) Anderson v. Commissioner of Correc-
tion, 114 Conn. App. 778, 786–87, 971 A.2d 766, cert.
denied, 293 Conn. 915, 979 A.2d 488 (2009).
Here, the respondent never filed any return, let alone
one that pleaded the affirmative defense of procedural
default. The respondent, however, at the hearing before
the habeas court pursuant to Practice Book § 23-29,
argued for the first time that the petitioner’s prosecu-
torial impropriety claims were procedurally defaulted
because of his failure to raise these claims either on
direct appeal or in any of his previous habeas petitions.
‘‘[T]he plain language of Practice Book § 23-30 (b)
requires the state to plead procedural default in its
return or it will relinquish the right to assert the defense
thereafter. . . . [I]n Connecticut, although the peti-
tioner has the burden of proving cause and prejudice
. . . that burden does not arise until after the respon-
dent raises the claim of procedural default in its return.’’
(Internal quotation marks omitted.) Ankerman v. Com-
missioner of Correction, 104 Conn. App. 649, 654–55,
935 A.2d 208 (2007), cert. denied, 285 Conn. 916, 943
A.2d 474 (2008).
Because the respondent here did not file a return, and
thus did not plead the affirmative defense of procedural
default as to any of the petitioner’s prosecutorial impro-
priety claims, we conclude that the court abused its
discretion by denying the petition for certification to
appeal from the judgment denying the petitioner’s sixth
petition for a writ of habeas corpus. The petitioner
successfully has demonstrated that the resolution of
these claims involves issues debatable among reason-
able jurists, that a court could resolve the issues in
a different manner and that they present a question
adequate to deserve encouragement to proceed further.
Accordingly, the petitioner is entitled to an evidentiary
hearing on these claims. See Mejia v. Commissioner
of Correction, supra, 98 Conn. App. 196–97 (defendant
entitled to evidentiary hearing on claim in third petition
for writ of habeas corpus, even though claim raised for
first time in third petition, where state failed to plead
procedural default with respect to defendant’s claim).
II
We turn next to the petitioner’s claim that the habeas
court abused its discretion by dismissing his remaining
claims of ineffective assistance of counsel on the
ground that they are successive, and by denying his
petition for certification to appeal from the dismissal.
The respondent claims that the petitioner’s general alle-
gations of ineffective assistance of trial counsel are
successive, that he failed to allege new facts to the
habeas court that were not available to him at the time
he filed his previous petitions, and thus that these
claims were properly dismissed by the habeas court.
We agree with the respondent that the habeas court
properly dismissed these claims as successive and
denied certification to appeal therefrom. Accordingly,
we dismiss the remainder of the petitioner’s claims
on appeal.
With regard to the petitioner’s claims of ineffective
assistance of trial counsel, the court found that the
petitioner ‘‘has litigated that issue fully, and now he
only seems to simply attempt to try to relitigate the
issue by inserting a different name. . . . [I]t is a succes-
sive petition . . . . [The petitioner] has not presented
any evidence to this court that this particular witness
. . . or any other witness whom he claims counsel
failed to call, was not information that was available
. . . to him when he brought any one of his numerous
prior petitions . . . . [H]e has not presented anything
to this court for the court to believe that the claims he
presents now were either not available to him or could
not have been brought at a prior hearing or [are] other-
wise new evidence.’’
‘‘Our Supreme Court has stated that [i]n our case
law, we have recognized only one situation in which a
court is not legally required to hear a habeas petition.
. . . [P]ursuant to Practice Book [§ 23-29], [i]f a previ-
ous application brought on the same grounds was
denied, the pending application may be dismissed with-
out hearing, unless it states new facts or proffers new
evidence not reasonably available at the previous hear-
ing. We emphasized the narrowness of our construction
of § [23-29] by holding that dismissal of a second habeas
petition without an evidentiary hearing is improper if
the petitioner either raises new claims or offers new
facts or evidence. . . . [A]bsent an explicit exception,
an evidentiary hearing is always required before a
habeas petition may be dismissed. . . .
‘‘We recently explained that Practice Book § 23-29
provides in relevant part: The judicial authority may,
at any time, upon its motion or upon motion of the
respondent, dismiss the petition, or any count thereof,
if it determines that . . . (3) the petition presents the
same ground as a prior petition previously denied and
fails to state new facts or proffer new evidence not
reasonably available at the time of the prior petition
. . . . In this context, a ground has been defined as
sufficient legal basis for granting the relief sought. . . .
‘‘[A] petitioner may bring successive petitions on the
same legal grounds if the petitions seek different relief.
. . . But where successive petitions are premised on
the same legal grounds and seek the same relief, the
second petition will not survive a motion to dismiss
unless the petition is supported by allegations and facts
not reasonably available to the petitioner at the time
of the original petition. . . .
‘‘Identical grounds may be proven by different factual
allegations, supported by different legal arguments or
articulated in different language. . . . Simply put, [a]n
applicant must . . . show that his application does,
indeed, involve a different legal ground, not merely a
verbal reformulation of the same ground.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Mejia v. Commissioner of Correction, supra,
98 Conn. App. 188–90.
Here, the petitioner’s allegations of ineffective assis-
tance of trial counsel constituted the same legal ground
as those made in his previously filed petitions and sim-
ply were expressed in different language in his sixth
petition. The petitioner as much as admitted on the
record that the only new claims that he was attempting
to raise in this sixth petition were those alleging prose-
cutorial impropriety.2 In short, the allegations of ineffec-
tive assistance of trial counsel in the petitioner’s sixth
habeas petition are ‘‘merely a verbal reformulation of
previously rejected claims.’’ Negron v. Warden, 180
Conn. 153, 161, 429 A.2d 841 (1980). The court found,
and we agree, that these claims do not constitute a
legal ground different from those raised or seek relief
different from that sought in the petitioner’s prior peti-
tions. Moreover, although the petitioner claims that the
habeas court legally was obligated to hold an eviden-
tiary hearing to allow him the opportunity to comply
with the federal District Court’s ruling to exhaust his
state remedies before seeking a federal remedy, he ‘‘has
not cited, nor are we aware of, any legal authority that
supports his contention that the holding of a judicial
opinion constitutes a new fact or new evidence as con-
templated by Practice Book § 23-29 (3).’’ Asif v. Com-
missioner of Correction, 132 Conn. App. 526, 530, 32
A.3d 967 (2011), cert. denied, 304 Conn. 901, 37 A.3d
745 (2012). As such, we conclude that this issue is not
debatable among jurists of reason, not resolvable in a
manner different from that in which it had been resolved
and not of the sort that deserves encouragement to
proceed further. Because the petitioner failed to allege
any new facts that were not available to him at the time
of his previous petitions, we conclude that the habeas
court did not abuse its discretion in dismissing these
claims as successive or in denying certification to
appeal therefrom.
The judgment is reversed only as to the dismissal of
the petitioner’s claims of prosecutorial impropriety and
the case is remanded for further proceedings in accor-
dance with this opinion. The appeal is dismissed as to
the remaining claims.
In this opinion the other judges concurred.
1
‘‘Once the respondent has raised the defense of procedural default in
the return, the burden is on the petitioner to prove cause and prejudice.
. . . [When] no evidence [of cause and prejudice] has been provided [to
the habeas court], [the reviewing] court can independently conclude that
the petitioner has failed to meet the cause and prejudice test. . . . [O]nce
the respondent raise[s] the defense in [the] return, the burden shift[s] to
the petitioner to allege and prove cause and prejudice. [When a] petitioner
fail[s] to do so, his claims are procedurally defaulted.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.) Borrelli v. Commis-
sioner of Correction, 113 Conn. App. 805, 814–15, 968 A.2d 439 (2009).
2
The petitioner engaged in the following colloquy with the court about
the claims he was attempting to raise in his sixth petition:
‘‘The Court: [T]he only claim you’re attempting to raise in this current
petition is a claim of prosecutorial misconduct?
‘‘[The Petitioner]: Basically, yes, Your Honor. That was the gist of this.’’