Woods v. Commissioner of Correction ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
JERMAINE WOODS v. COMMISSIONER
OF CORRECTION
(AC 41987)
Lavine, Alvord and Keller, Js.
Syllabus
The petitioner, who had previously been convicted of murder, sought a writ
of habeas corpus, claiming that his sentence was illegal because evidence
of his diminished capacity and mitigating circumstances were not consid-
ered at trial and that his equal protection rights were violated by the
state’s decision to try him for murder for a third time after his first
petition for a writ of habeas corpus was granted. The habeas court
granted the motion to dismiss filed by the respondent, the Commissioner
of Correction, and rendered judgment thereon, and, thereafter, denied
the petitioner’s petition for certification to appeal, and the petitioner
appealed to this court. Held:
1. The habeas court did not abuse its discretion by granting the respondent’s
motion to dismiss the third petition for a writ of habeas corpus without
holding a hearing; a hearing on the petition was not required, as the
court did not dismiss the petition sua sponte but, instead, pursuant to
a motion filed by the respondent and to which the petitioner had filed
an objection.
2. The habeas court properly dismissed the petitioner’s claim that evidence
of his diminished capacity and of mitigating circumstances were not
properly presented to the triers of fact.
a. The allegations of the petition could not be construed to allege a claim
of ineffective assistance by the petitioner’s second habeas counsel and
there was no allegation that reasonably could be construed as a direct
or indirect reference to the petitioner’s second habeas counsel; more-
over, the petitioner’s claim that trial counsel was ineffective was litigated
at the second habeas trial and, thus, was barred by the doctrine of
res judicata.
b. The court properly dismissed the petitioner’s claim that mitigating circum-
stances should have been considered at his sentencing for failing to
state a claim for which relief could be granted: the petitioner, who was
nineteen years old and, therefore, not a child at the time he committed
the murder, was not entitled to individualized sentencing; moreover,
the petitioner could not prevail on his claim that his fifty year sentence,
which was ten years less than the maximum legislatively prescribed
sentence, was disproportionate to the crime; furthermore, the court
properly dismissed the petitioner’s mitigating circumstances claim as
procedurally defaulted, as the petitioner failed to raise the claim of
mitigating circumstances at sentencing, on direct appeal or at his second
habeas hearing, the petitioner could not prevail on his claim that proce-
dural default did not apply to eighth amendment claims predicated on
evolving standards of decency evolved when the mitigating circum-
stances of recent research and understandings in brain development
were known and accepted at the time of his third trial and second
habeas petition, and the petitioner failed to plead prejudice adequately
in his reply in that he failed to allege specific facts demonstrating that
if he had offered brain development studies there was a substantial
likelihood or reasonable probability that he would have received a
lighter sentence.
3. The habeas court properly dismissed the petitioner’s equal protection
claim on the ground of procedural default.
a. The petitioner failed to meet his burden to establish good cause for failure
to raise his equal protection claim in a prior proceeding; although the
petitioner asserted in his objection to the respondent’s motion to dismiss
that he could not raise the claim of vindictive prosecution prior to raising
it in his third petition for a writ of habeas corpus, he failed to assert
any facts that prevented him from raising his equal protection claim in
his second petition for a writ of habeas corpus.
b. The petitioner’s equal protection claim also failed on the alternative
ground that he failed to state a claim on which habeas relief could be
granted; the petitioner failed to allege any facts to meet his burden to
demonstrate the prosecutor’s alleged substantial animus toward him,
thus, he failed to demonstrate good cause for failing to raise his claim
in an earlier proceeding.
Argued December 2, 2019—officially released June 2, 2020
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Kwak, J., granted the respon-
dent’s motion to dismiss and rendered judgment dis-
missing the petition; thereafter, the court denied the
petitioner’s petition for certification to appeal, and the
petitioner appealed to this court. Appeal dismissed.
Vishal K. Garg, for the appellant (petitioner).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Jermaine Woods, appeals
from the judgment of the habeas court dismissing his
third petition for a writ of habeas corpus.1 The habeas
court denied the petitioner’s petition for certification
to appeal. On appeal, the petitioner claims that the
habeas court (1) abused its discretion by denying his
petition for certification to appeal, (2) abused its discre-
tion by dismissing his petition without fair notice to
him and without holding a hearing on his petition, (3)
erred by dismissing count one of his petition alleging
that his conviction was illegal because (a) evidence of
his diminished capacity was not properly presented
at his criminal trial and sentencing and (b) mitigating
circumstances warrant reduction of his sentence, and
(4) erred by dismissing count two of his petition alleging
violation of his constitutional right to equal protection.
We dismiss the appeal.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s appeal. Given
the lengthy history of court proceedings and judicial
rulings, a detailed discussion is required. In the underly-
ing criminal matter, the petitioner was charged with
murder for fatally shooting Jamal Hall on November 5,
1994. The charge against the petitioner was tried to a
jury in December, 1996, but the jury was unable to reach
a verdict and a mistrial was declared. The petitioner
was retried in January, 1997, and a jury convicted him
of murder in violation of General Statutes § 53a-54a
(a).2 The petitioner was sentenced to fifty years impris-
onment. His conviction was affirmed in State v. Woods,
250 Conn. 807, 740 A.2d 371 (1999).3
The petitioner thereafter filed a petition for a writ of
habeas corpus in which he alleged that his trial counsel
was ineffective for failing to prepare an adequate dimin-
ished mental capacity defense and that he was actually
innocent. See Woods v. Commissioner of Correction,
85 Conn. App. 544, 545 n.1, 857 A.2d 986, cert. denied,
272 Conn. 903, 863 A.2d 696 (2004). The first habeas
court, Hon. Richard M. Rittenband, judge trial referee,
denied the petition as to the petitioner’s actual inno-
cence claim, but granted it with respect to his claim
that his trial counsel was ineffective in presenting evi-
dence of the petitioner’s diminished capacity. The first
habeas court, therefore, granted in part the petition for
a writ of habeas corpus and ordered a new trial.4 Id.
The judgment granting the habeas petition was upheld
on appeal; id., 545; and the petitioner elected to be tried
by a panel of three judges. State v. Woods, 297 Conn.
569, 572, 4 A.3d 236 (2010). At the petitioner’s third
criminal trial, the three judge panel convicted him of
murder and sentenced him to fifty years imprisonment.5
Id. The petitioner’s conviction again was upheld on
direct appeal.6 Id.
The petitioner filed a second petition for a writ of
habeas corpus on November 4, 2008, alleging various
claims of ineffective assistance of trial counsel during
the third criminal trial, including a claim that the trial
counsel failed to timely notify and to adequately prepare
the petitioner’s expert witness, John H. Felber, a psychi-
atrist, to testify.7 The second habeas court, T. Santos,
J., denied the second habeas petition. This court upheld
the judgment denying the second petition for a writ of
habeas corpus in a memorandum decision. Woods v.
Commissioner of Correction, 142 Conn. App. 907, 64
A.3d 1290, cert. denied, 309 Conn. 915, 70 A.3d 39
(2013).8
The petitioner filed the present petition for a writ of
habeas corpus on July 16, 2013, alleging in count one
that his sentence is illegal because evidence of his
diminished capacity and mitigating circumstances were
not considered at trial and, in count two, that his equal
protection rights were violated. In his January 5, 2018
return, the respondent, the Commissioner of Correc-
tion, alleged multiple special defenses to the petition-
er’s claims.
On March 9, 2018, the respondent filed a motion to
dismiss the petition pursuant to Practice Book § 23-299
on the grounds that the petitioner’s claims are pre-
cluded by the doctrines of res judicata and collateral
estoppel, are procedurally defaulted in that they were
not raised at trial or on direct appeal, and failed to
state claims for which habeas relief can be granted. The
petitioner filed an objection to the motion to dismiss
on March 21, 2018.
The third habeas court, Kwak, J., granted the respon-
dent’s motion to dismiss in a memorandum of decision
on July 16, 2018. With respect to the petitioner’s claim
that evidence of his diminished capacity was not prop-
erly presented during trial, the court determined that
evidence of the petitioner’s diminished capacity was
presented at the petitioner’s third criminal and second
habeas trials. Moreover, the court found that the peti-
tioner was seeking the same relief in both his second
and third petitions for a writ of habeas corpus. The court
concluded that the claim concerning the petitioner’s
diminished capacity was barred by the doctrines of res
judicata and collateral estoppel.
The habeas court also found that the petitioner
alleged that his sentence was illegal because the sen-
tencing court did not consider evidence of mitigating
circumstances prior to imposing sentence. The habeas
court found that the petitioner, who was nineteen at
the time of the murder, was seeking an individualized
sentencing hearing, but determined that the petitioner
was not entitled to such a hearing. The court, therefore,
concluded that the petitioner’s sentence could not be
determined to be illegal on the ground alleged and that
there was no habeas corpus relief the court could grant.
The habeas court also found that the respondent sought
to have the mitigating circumstances claim dismissed
on the ground of procedural default because the peti-
tioner did not raise it at trial or on direct appeal. The
court found that the petitioner failed to allege any new
facts or allege any legally cognizable cause and preju-
dice to rebut his procedural default, citing Anderson v.
Commissioner of Correction, 114 Conn. App. 778, 788,
971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d
488 (2009). See id. (Practice Book § 23-31 (c) requires
petitioner to allege facts and cause and prejudice per-
mitting review). The court thus dismissed the allega-
tions of mitigating circumstances as a basis to reduce
the petitioner’s sentence.
In count two of the third petition, the habeas court
found that the petitioner alleged that his rights under
the equal protection clause were violated by the state’s
decision to try him after his first petition for a writ
of habeas corpus was granted. More particularly, the
petitioner alleged that ‘‘Waterbury Chief State’s Attor-
ney John Connelly resigned on January 14, 2011, after
a federal investigation was launched against him and
his longtime friend defense attorney Martin Minella for
corruption.’’ He also alleged that Connelly provided
favorable treatment to Minella’s clients. The petitioner
further alleged that he was unable to afford to retain
Minella but, if he had retained him, Connelly would
have disposed of the petitioner’s case and not tried him
for a third time. The respondent sought to have the
claim dismissed on the ground of procedural default
because the petitioner failed to raise this improbable
claim in the trial court or on direct appeal. The court
found that the petitioner had failed to meet the cause
and prejudice standard to overcome the bar of proce-
dural default. The court, therefore, dismissed count two
of the petitioner’s third petition for a writ of habeas
corpus. The petitioner filed a petition for certification
to appeal, which the court denied. The petitioner
appealed.
I
CERTIFICATION TO APPEAL
The petitioner’s first claim is that the court abused
its discretion by denying his petition for certification
to appeal from the court’s judgment dismissing his third
petition for a writ of habeas corpus because his appeal
is not frivolous. ‘‘Faced with the habeas court’s denial
of certification to appeal, a petitioner’s first burden is
to demonstrate that the habeas court’s ruling consti-
tuted an abuse of discretion. . . . A petitioner may
establish an abuse of discretion by demonstrating that
the issues are debatable among jurists of reason . . .
[the] court could resolve the issues [in a different man-
ner] . . . or . . . the questions are adequate to
deserve encouragement to proceed further. . . . The
required determination may be made on the basis of
the record before the habeas court and the applicable
legal principles. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court
must be affirmed.’’ (Internal quotation marks omitted.)
Mourning v. Commissioner of Correction, 169 Conn.
App. 444, 448, 150 A.3d 1166 (2016), cert. denied, 324
Conn. 908, 152 A.3d 1246 (2017). On the basis of our
review of the petitioner’s substantive claims as dis-
cussed herein, we conclude that the habeas court did
not abuse its discretion by denying the petition for
certification to appeal.
II
CLAIMS ON APPEAL
On appeal, the petitioner claims that the habeas court
abused its discretion by granting the respondent’s
motion to dismiss his third petition for a writ of habeas
corpus challenging the legality of his conviction, which
he filed as a self-represented party.10 At the heart of the
petitioner’s appellate claims is his contention that the
habeas court misconstrued the allegations of his peti-
tion. The resolution of the petitioner’s appeal, therefore,
turns on our construction of the allegations in his third
petition for a writ of habeas corpus. At oral argument,
the petitioner’s appellate counsel conceded that the
petition was not artfully pleaded but argued that, under
the deferential standard ordinarily afforded self-repre-
sented parties, the habeas court’s dismissal of the peti-
tion should be reversed and the case remanded for a
hearing on its merits. We disagree.
‘‘The standard of review of a motion to dismiss is . . .
well established. In ruling upon whether a complaint
survives a motion to dismiss, 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.’’ (Internal quotation marks omitted.) Young v.
Commissioner of Correction, 104 Conn. App. 188, 193,
932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942
A.2d 416 (2008). ‘‘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.’’ (Internal
quotation marks omitted.) McMillion v. Commissioner
of Correction, 151 Conn. App. 861, 869–70, 97 A.3d 32
(2014).
‘‘The purpose of the [petition] is to put the [respon-
dent] on notice of the claims made, to limit the issues
to be decided, and to prevent surprise. . . . The peti-
tion for a writ of habeas corpus is essentially a pleading
and, as such, it should conform generally to a complaint
in a civil action. . . . The principle that a plaintiff may
rely only upon what he has alleged is basic. . . . It is
fundamental in our law that the right of a plaintiff to
recover is limited to the allegations of his complaint.
. . . A complaint includes all exhibits attached to it.
. . .
‘‘[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 ple-
nary. . . . [T]he modern trend, which is followed in
Connecticut, is to construe pleadings broadly and real-
istically, rather than narrowly and technically. . . .
[T]he [petition] must be read in its entirety in such a
way as to give effect to the pleading with reference to
the general theory upon which it proceeded, and do
substantial justice between the parties. . . . As long
as the pleadings provide sufficient notice of the facts
claimed and the issues to be tried and do not surprise
or prejudice the opposing party, we will not conclude
that the [petition] is insufficient to allow recovery.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) Lorthe v. Commissioner of Correc-
tion, 103 Conn. App. 662, 668–69, 931 A.2d 348, cert.
denied, 284 Conn. 939, 937 A.2d 696 (2007).
‘‘While the habeas court has considerable discretion
to frame a remedy that is commensurate with the scope
of the established constitutional violations . . . it does
not have the discretion to look beyond the pleadings
and trial evidence to decide claims not raised.’’ (Internal
quotation marks omitted.) Arriaga v. Commissioner
of Correction, 120 Conn. App. 258, 262, 990 A.2d 910
(2010), appeal dismissed, 303 Conn. 698, 36 A.3d 224
(2012).
As counsel for the petitioner correctly has pointed
out on appeal, ‘‘[i]t is the established policy of the Con-
necticut courts to be solicitous of [self-represented]
litigants and when it does not interfere with the rights
of the other parties to construe the rules of practice
liberally in favor of the [self-represented] party.’’ (Inter-
nal quotation marks omitted.) Vitale v. Commissioner
of Correction, 178 Conn. App. 844, 850, 178 A.3d 418
(2017), cert. denied, 328 Conn. 923, 181 A.3d 566 (2018).
‘‘The modern trend . . . is to construe pleadings
broadly and realistically, rather than narrowly and tech-
nically. . . . The courts adhere to this rule to ensure
that [self-represented] litigants receive a full and fair
opportunity to be heard, regardless of their lack of legal
education and experience . . . . This rule of construc-
tion has limits, however. Although we allow [self-repre-
sented] litigants some latitude, the right of self-repre-
sentation provides no attendant license not to comply
with relevant rules of procedural and substantive law.
. . . A habeas court does not have the discretion to
look beyond the pleadings and trial evidence to decide
claims not raised. . . . In addition, while courts should
not construe pleadings narrowly and technically, courts
also cannot contort pleadings in such a way so as to
strain the bounds of rational comprehension.’’ (Cita-
tions omitted; internal quotation marks omitted.) Oli-
phant v. Commissioner of Correction, 274 Conn. 563,
569–70, 877 A.2d 761 (2005). There, however, comes
a point at which granting too much latitude to self-
represented parties can simply be unfair to their adver-
saries.
III
The petitioner claims that it was improper for the
third habeas court to grant the respondent’s motion to
dismiss without providing him fair notice and without
holding a hearing on his third petition for a writ of
habeas corpus. In support of his argument, the peti-
tioner relies on our Supreme Court’s decision in Mercer
v. Commissioner of Correction, 230 Conn. 88, 644 A.2d
340 (1994), which stands for the general proposition
that a petitioner is entitled to present evidence in sup-
port of his claims. Id., 93. The court, however, noted a
narrow exception to the presumption that a hearing is
required. ‘‘[I]f a previous application brought on the
same grounds was denied, the pending application may
be dismissed without hearing, unless it states new facts
or proffers new evidence not reasonably available at
the previous hearing.’’ (Internal quotation marks omit-
ted.) Id. We disagree that a hearing was required in the
present case.
‘‘Whether the habeas court was required to hold a
hearing prior to dismissing a habeas petition presents
a question of law subject to plenary review. . . . Pur-
suant to Practice Book § 23-29, the habeas court may,
at any time, upon its own motion or upon motion of
the respondent, dismiss the petition, or any count
thereof . . . .’’ (Citation omitted; internal quotation
marks omitted.) Boria v. Commissioner of Correction,
186 Conn. App. 332, 339, 199 A.3d 1127 (2018), cert.
granted on other grounds, 335 Conn. 901, 225 A.3d 685
(2020). ‘‘Although, under Practice Book § 23-40,
[h]abeas petitioners generally have the right to be pres-
ent at any evidentiary hearing and at any hearing or
oral argument on a question of law which may be dispos-
itive of the case . . . Practice Book § 23-40 speaks only
to the petitioner’s right to be present at an evidentiary
hearing when such a hearing is held. Such hearings are
not always required, as Practice Book § 23-29 authorizes
the court to dismiss a habeas petition on its own
motion.’’ (Internal quotation marks omitted.) Id., 340.
In support of his argument, the petitioner relies on
Boyd v. Commissioner of Correction, 157 Conn. App.
122, 115 A.3d 1123 (2015). ‘‘This court previously has
held that it is an abuse of discretion by the habeas court
to dismiss a habeas petition sua sponte under Practice
Book § 23-29 without fair notice to the petitioner and
a hearing on the court’s own motion to dismiss.’’ Id.,
125. The facts of the present case are distinguishable
from those in Boyd. The habeas court in the present
case did not dismiss the petition sua sponte. The respon-
dent filed a motion to dismiss and the petitioner filed
an objection to the motion to dismiss. We therefore
conclude that it was not improper for the habeas court
to grant the respondent’s motion to dismiss without
holding a hearing.
IV
The petitioner claims that the third habeas court
improperly dismissed count one of his third petition
for a writ of habeas corpus (1) ‘‘because evidence of
his diminished capacity was not properly presented
during the criminal trial [and sentencing],’’ and (2) ‘‘his
sentence should be reduced because mitigating circum-
stances existed.’’ We disagree that the habeas court
improperly dismissed count one of the third petition
for a writ of habeas corpus.
A
The petitioner claims that the habeas court improp-
erly dismissed his claim that evidence of his diminished
capacity was not properly presented during his criminal
trial and sentencing because it failed to construe the
allegations of count one broadly. We disagree.
After the pleadings were closed, the respondent filed
a motion to dismiss the third petition for a writ of
habeas corpus to which the petitioner objected. When
ruling on the motion to dismiss, Judge Kwak reviewed
the record and found that evidence related to the peti-
tioner’s diminished capacity defense was presented at
his third criminal and second habeas trials. In her oral
decision, Judge Santos acknowledged that Felber’s tes-
timony regarding the petitioner’s diminished capacity
differed at the third criminal trial from his testimony
at the second habeas trial, but ultimately denied the
petitioner’s claims.11 In addition, Judge Kwak found that
the other witnesses identified by the petitioner, i.e.,
Rosita Saucier, Gregory St. John, and Louis Avitabile,
all previously testified on the petitioner’s behalf. 12
Moreover, he found that the relief the petitioner was
seeking in the second and third habeas proceedings
was the same. The third habeas court concluded that
the petitioner’s claim alleging that evidence of his dimin-
ished capacity had been adjudicated previously and,
therefore, was barred by the doctrines of res judicata
and collateral estoppel. For those reasons, it dismissed
the claim.
We begin with a review of the applicable law. ‘‘The
doctrine of res judicata provides that a former judgment
serves as an absolute bar to a subsequent action involv-
ing any claims relating to such cause of action which
were actually made or which might have been made.
. . . The doctrine . . . applies to criminal as well as
civil proceedings and to state habeas corpus proceed-
ings. . . . However, [u]nique policy considerations
must be taken into account in applying the doctrine of
res judicata to a constitutional claim raised by a habeas
petitioner. . . . Specifically, in the habeas context, in
the interest of ensuring that no one is deprived of liberty
in violation of his or her constitutional rights . . . the
application of the doctrine of res judicata . . . [is lim-
ited] to claims that actually have been raised and liti-
gated in an earlier proceeding.’’ (Internal quotation
marks omitted.) Diaz v. Commissioner of Correction,
125 Conn. App. 57, 63–64, 6 A.3d 213 (2010), cert. denied,
299 Conn. 926, 11 A.3d 150 (2011).
‘‘Thus, a habeas petition may be vulnerable to dis-
missal by reason of claim preclusion only if it is prem-
ised on the same ground litigated in a previously dis-
missed habeas petition. We recognize, therefore, that
the application of the doctrine of claim preclusion to
a habeas petition is narrower than in a general civil
context because of the nature of the Great Writ.
‘‘A narrowing of the application of the doctrine of
res judicata to habeas proceedings is encapsulated in
Practice Book § 23-29, which states: The judicial author-
ity, may, at any time, upon its own 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 evi-
dence not reasonably available at the time of the prior
petition . . . .’’ (Internal quotation marks omitted.)
Kearney v. Commissioner of Correction, 113 Conn.
App. 223, 233–34, 965 A.2d 608 (2009).
On appeal, the petitioner claims that the habeas court
improperly dismissed his claim that evidence of his
diminished capacity defense was not properly pre-
sented to the triers of fact because the habeas court
‘‘failed to recognize that a broad [construction] of the
pleading reveals that the petitioner alleged ineffective
assistance of prior habeas counsel.’’ The petitioner also
noted that in his reply to the respondent’s return, he
alleged that ‘‘the evidence of diminished capacity in the
petitioner’s case has never been litigated or reviewed
in its entirety.’’ In other words, the petitioner is claiming
that his third petition for a writ of habeas corpus alleges
the ineffective assistance of both his third criminal trial
counsel and his second habeas counsel. We are not per-
suaded.
The petitioner’s claim requires us to examine the
relevant allegations of count one of his third petition.
The construction of pleadings presents a question of
law over which our review is plenary. See, e.g., Miller
v. Egan, 265 Conn. 301, 308, 828 A.2d 549 (2003).
Count one begins with the allegation that the ‘‘peti-
tioner’s conviction is illegal because [t]here is a signifi-
cant amount of evidence of diminished capacity in the
petitioner’s case, that could of changed the outcome
of this case, if presented properly to the triers of fact.
. . . The petitioner’s habeas corpus was granted in
2002–2003 because of the testimony of a psychiatrist
named Dr. Felber, but the triers of fact never got to
hear that testimony.’’13 Even the most generous reading
of the allegations in paragraphs 1 and 2 of count one
cannot be construed to allege a claim of ineffective
assistance by the petitioner’s second habeas counsel.
First, the petitioner states that his conviction is illegal
because significant evidence of his diminished capacity
could have changed the outcome of his case if it had
been presented to the triers of fact.14
In addition, the petitioner alleged that three individu-
als also testified as to his diminished capacity, which
testimony was not heard by the triers of fact. The three
individuals testified at the petitioner’s second habeas
trial. The triers of fact referred to in the third petition
for a writ of habeas corpus, therefore, must refer to
the three judge panel. On the basis of our construction
of count one, there is no allegation that reasonably can
be construed as a reference, either directly or indirectly,
to the petitioner’s second habeas counsel.
As to any claim that his third trial counsel was ineffec-
tive, Judge Santos found, following the second habeas
trial, in which the petitioner had alleged the ineffective
assistance of his third trial counsel, that the evidence
regarding trial counsel’s performance did not support
a finding of ineffective assistance. See footnote 11 of
this opinion. The petitioner’s claim that trial counsel
was ineffective was litigated at the second habeas trial
and, therefore, the claim is barred by the doctrine of res
judicata. Thus, we conclude that Judge Kwak properly
dismissed the petitioner’s claim that evidence of his
diminished capacity special defense was not properly
presented to the triers of fact.
B
The petitioner also claims that the third habeas court
improperly dismissed that portion of count one of his
third petition alleging that there were mitigating circum-
stances that should have been considered at sentencing.
We do not agree.
In his memorandum of decision, Judge Kwak found
that the petitioner had alleged that his conviction was
illegal because the sentencing court did not consider
that the petitioner was nineteen years old when the
murder occurred, he had no history of violence prior
to or subsequent to the murder, the weapon used was
discharged only once, there were more than 100 people
in the area when the murder occurred, and there was
no evidence that the petitioner and the victim knew
one another. In his return, the respondent alleged that
the claim should be dismissed because it failed to state
a claim for which habeas corpus relief can be granted
and on the ground of procedural default. In his reply
to the respondent’s return, the petitioner alleged that
he was a teenager in 1994 and that his age is relevant
because newly discovered brain research demonstrates
that the brain’s frontal lobe is not fully developed until
the age of twenty-five.
The habeas court construed the allegations as a claim
that the petitioner was entitled to an individualized
sentencing hearing pursuant to Miller v. Alabama, 567
U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and
State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015), cert.
denied, U.S. , 136 S. Ct. 1361, 194 L. Ed. 2d 376
(2016) (Miller/Riley). The habeas court concluded,
however, on the basis of Haughey v. Commissioner of
Correction, 173 Conn. App. 559, 164 A.3d 849, cert.
denied, 327 Conn. 906, 170 A.3d 1 (2017), that Miller/
Riley considerations do not apply to the petitioner, who
was older than eighteen at the time of the crime.15 In
Haughey, this court concluded that ‘‘[e]xpanding the
application of [Miller/Riley] to offenders eighteen years
of age or older simply does not comport with existing
eighth amendment jurisprudence pertaining to juvenile
sentencing.’’ Id., 568. The habeas court, therefore, con-
cluded that the petitioner, who was nineteen at the time
of the crime, was not a child entitled to individualized
sentencing pursuant to General Statutes §§ 46b-120 (1)
and 54-91g (a) (1), and dismissed the claim as one that
failed to state a claim for which habeas relief could
be granted.
The habeas court also concluded that the petitioner’s
claim was barred by the doctrine of procedural default.
After examining the petitioner’s reply to the respon-
dent’s return, the court found that the reply failed to
allege any facts or to assert any cause and resulting
prejudice to permit review of the petitioner’s mitigating
circumstances claim. The court stated that the petition-
er’s reply merely reasserted facts alleged in his petition,
which is not permissible or sufficient to overcome the
respondent’s affirmative defense of procedural default.
The court concluded that the petitioner failed to allege
a legally cognizable cause and prejudice to rebut proce-
dural default and, therefore, dismissed the claim alleg-
ing mitigating circumstances.
1
On appeal, the petitioner claims that the habeas court
misconstrued the allegations of his mitigating circum-
stances claim. He denies that he was seeking to expand
the age at which individualized sentencing is required
and contends that he made that clear in his objection
to the respondent’s motion to dismiss.16 He claims that
the habeas court misconstrued the allegations as an
attempt to raise the age for individualized sentencing
and contends that a more ‘‘natural’’ interpretation of
the allegations is that his sentence was disproportionate
under the eighth and fourteenth amendments to the
United States constitution, citing State v. Santiago, 318
Conn. 1, 122 A.3d 1 (2015). The petitioner argues that
the habeas court should have construed his petition as
a claim that his fifty year sentence was grossly dispro-
portionate in light of evolving standards of decency
and that it no longer served any legitimate penological
purpose. He contends that the allegations were suffi-
cient to state a claim that his right to be free from
cruel and unusual punishment under the eighth and
fourteenth amendments was violated because his sen-
tence is disproportionate.
We disagree that the allegations of the first count of
the petition alleged a constitutional challenge to his
sentence in that it constituted cruel and unusual punish-
ment because it was disproportionate. The petitioner
alleged that he ‘‘was a teenager (nineteen) when this
incident occurred.’’ In his reply to the respondent’s
return, the petitioner alleged factors and evidence of his
diminished capacity. He did not allege that the sentence
was disproportionate nor did he allege cruel and
unusual punishment or mention the eighth amendment.
In the past fifteen years, the United States Supreme
Court has issued three cases addressing the sentencing
of juvenile offenders to assure that their sentences are
not excessive or disproportionate. ‘‘The court first
barred capital punishment for all juvenile offenders;
Roper v. Simmons, 543 U.S. 551, 575, 125 S. Ct. 1183,
161 L. Ed. 2d 1 (2005); and then barred life imprisonment
without the possibility of parole for juvenile nonhomi-
cide offenders. Graham v. Florida, 560 U.S. 48, 79–80,
130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). Most recently,
in Miller v. Alabama, [supra, 567 U.S. 467], the court
held that mandatory sentencing schemes that impose
a term of life imprisonment without parole on juvenile
homicide offenders, thus precluding consideration of
the offender’s youth as mitigating against such a severe
punishment, violate the principle of proportionate pun-
ishment under the eighth amendment.’’ State v. Riley,
supra, 315 Conn. 640.
In Riley, the defendant was seventeen at the time he
committed the crimes of which he was convicted. Id.,
641. Our Supreme Court agreed with the defendant’s
claim on direct appeal that, pursuant to Miller v. Ala-
bama, supra, 567 U.S. 460, he was ‘‘entitled to a new
sentencing proceeding at which the court must consider
as mitigation the defendant’s age at the time he commit-
ted the offenses and the hallmarks of adolescence that
Miller deemed constitutionally significant when a juve-
nile offender is subject to a potential life sentence.’’17
State v. Riley, supra, 315 Conn. 641. Our Supreme Court
made clear, however, that it used the ‘‘term juvenile
offenders to refer to persons who committed a crime
when they were younger than eighteen years of age.’’
(Emphasis added.) Id., 640 n.1.
Subsequent opinions of this court have stated that
Miller’s holding is limited to cases in which the defen-
dant is younger than eighteen at the time of the crime.
‘‘Our law . . . categorically limits review pursuant to
Miller and its progeny to cases in which the defendant
was under the age of eighteen at the time of the crime.
In State v. Delgado, 323 Conn. 801, 810–11, 151 A.3d
234 (2016), our Supreme Court held that the Superior
Court had no jurisdiction to entertain a motion to cor-
rect that did not state a colorable claim for relief.’’18
State v. Mukhtaar, 179 Conn. App. 1, 9, 177 A.3d 1185
(2017). ‘‘[A]n offender who has reached the age of eigh-
teen is not considered a juvenile for sentencing proce-
dures and eighth amendment protections articulated
in Miller.’’ Haughey v. Commissioner of Correction,
supra, 173 Conn. App. 571.
The petitioner alleged that he was nineteen years old
at the time of the crime. We conclude, therefore, that
the habeas court properly dismissed the petitioner’s
claim that he was denied an individualized sentencing
hearing on the ground that it failed to state a claim for
which habeas relief can be granted under Miller/Riley.
Even if the habeas court misconstrued the allegations
of the petition as an effort to expand the application
of Miller/Riley, the petitioner cannot prevail on his
claim that his sentence is disproportionate to the crime
and therefore a violation of the eighth amendment.
Numerous decisions of the United States Supreme
Court and the appellate courts of this state hold to
the contrary. ‘‘The eighth amendment to the federal
constitution establishes the minimum standards for
what constitutes impermissibly cruel and unusual pun-
ishment. . . . Specifically, the United States Supreme
Court has indicated that at least three types of punish-
ment may be deemed unconstitutionally cruel: (1) inher-
ently barbaric punishments; (2) excessive and dispro-
portionate punishments; and (3) arbitrary or
discriminatory punishments.’’ (Citation omitted; foot-
note omitted.) State v. Santiago, supra, 318 Conn. 18–
19. In State v. Ross, 230 Conn. 183, 646 A.2d 1318 (1994),
cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed.
2d 1095 (1995), our Supreme Court ‘‘broadly adopted,
as a matter of state constitutional law, this federal
framework for evaluating challenges to allegedly cruel
and unusual punishments.’’ State v. Santiago, supra, 19.
‘‘[T]he eighth amendment mandates that punishment
be proportioned and graduated to the offense of convic-
tion.’’ Id., 20.
As to the petitioner’s eighth amendment claim, the
respondent correctly points out that a claim that a fifty
year sentence of imprisonment for murder is excessive
and disproportionate fails as a matter of law. The eighth
amendment ‘‘does not require strict proportionality
between crime and sentence. Rather, it forbids only
extreme sentences that are grossly disproportionate to
the crime.’’ (Internal quotation marks omitted.) Ewing
v. California, 538 U.S. 11, 23, 123 S. Ct. 1179, 155 L.
Ed. 2d 108 (2003). The petitioner’s fifty year sentence
is ten years less than the maximum life term that our
legislature has prescribed for murder. ‘‘The potential
maximum sentence for murder in violation of . . .
§ 53a-54a is life imprisonment. General Statutes § 53a-
35a (2). A life sentence is a definite sentence of sixty
years. General Statutes § 53a-35b.’’ Braham v. Commis-
sioner of Correction, 72 Conn. App. 1, 9 n.6, 804 A.2d
951, cert. denied, 262 Conn. 906, 810 A.2d 271 (2002).
‘‘[I]t is rare that a sentence falling within a legislatively
prescribed term of years will be deemed grossly dispro-
portionate.’’ United States v. Reingold, 731 F.3d 204,
212 (2d Cir. 2013); see also Ewing v. California, supra,
22 (‘‘federal courts should be reluctant to review legisla-
tively-mandated terms of imprisonment’’ (internal quo-
tation marks omitted)). For these reasons, the habeas
court properly dismissed the plaintiff’s mitigating cir-
cumstances claim for failing to state a claim for which
relief can be granted.
2
The petitioner also claims that the habeas court
improperly dismissed his mitigating circumstances
claim as procedurally defaulted for two reasons: (1)
it is questionable whether procedural default can be
applied meaningfully to evolving standards of decency,
and (2) his claim is predicated upon newly discovered
evidence regarding brain development. We disagree.
‘‘Practice Book § 23-29 (5) permits a habeas court to
dismiss a petition for any . . . sufficient ground . . .
which may include procedural default. . . . The con-
clusions reached by the trial court in its decision to
dismiss [a] habeas petition are matters of law, subject
to plenary review. . . . [If] the legal conclusions of the
court are challenged, we must determine whether they
are legally and logically correct . . . and whether they
find support in the facts that appear in the record.’’
(Citations omitted; internal quotation marks omitted.)
Saunders v. Commissioner of Correction, 194 Conn.
App. 473, 481–82, 221 A.3d 810 (2019), cert. granted on
other grounds, 334 Conn. 917, 222 A.3d 103 (2020).
The law regarding procedural default is clear. ‘‘Under
the procedural default doctrine, a claimant may not
raise, in a collateral proceeding, claims that he [or she]
could have made at trial or on direct appeal in the
original proceeding, unless he [or she] can prove that
his [or her] default by failure to do so should be excused.
. . . 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 procedural default. . . .
‘‘The cause and prejudice standard [of reviewability]
is designed to prevent full review of issues in habeas
corpus proceedings that counsel did not raise at trial
or on appeal for reasons of tactics, [inadvertence] or
ignorance . . . . In order to satisfy this standard, the
[habeas] petitioner must demonstrate both good cause
for failing to raise a claim at trial or on direct appeal
and actual prejudice from the underlying impropriety.
. . . [T]he existence of cause for a procedural default
must ordinarily turn on whether the [petitioner] can
show that some objective factor external to the defense
impeded counsel’s efforts to comply with the [s]tate’s
procedural rule. . . .
‘‘With respect to the actual prejudice prong, [t]he
habeas petitioner must show not merely that the errors
at . . . trial created the possibility of prejudice, but
that they worked to the actual and substantial disadvan-
tage, infecting his entire trial with error of constitutional
dimensions. . . . Such a showing of pervasive actual
prejudice can hardly be thought to constitute anything
other than a showing that the prisoner was denied fun-
damental fairness at trial.’’ (Citations omitted; emphasis
in original; internal quotation marks omitted.) Arroyo
v. Commissioner of Correction, 172 Conn. App. 442,
461–62, 160 A.3d 425, cert. denied, 326 Conn. 921, 169
A.3d 235 (2017).
Our review of the record discloses that the petitioner
failed to raise the claim of mitigating circumstances at
sentencing, on direct appeal, or at his second habeas
hearing. But see footnote 15 of this opinion. The respon-
dent alleged in its return that the petitioner’s mitigating
circumstances claim was procedurally defaulted; the
third habeas court agreed, stating that the petitioner’s
reply failed to allege any facts or assert any cause and
resulting prejudice to permit review of his claim. On
appeal, the respondent argues that we should affirm the
judgment of dismissal because the petitioner’s appellate
argument that his sentence is disproportionate is unsup-
ported by legal authority that procedural default does
not apply to eighth amendment claims predicated on
evolving standards of decency. The respondent cites
several federal cases in support of his argument, e.g.,
Dugger v. Adams, 489 U.S. 401, 405–407, 109 S. Ct. 1211,
103 L. Ed. 2d 435 (1989) (claim not so novel that failure
to raise it in state court proceedings procedurally
defaulted in federal habeas proceeding); Franklin v.
Bradshaw, 695 F.3d 439, 454–55 (6th Cir. 2012) (proce-
dural default applies to evolving standards argument
where petitioner failed to raise equal protection claim
in state court, seeking better outcome in federal habeas
petition), cert. denied sub nom. Franklin v. Robinson,
569 U.S. 906, 133 S. Ct. 1724, 185 L. Ed. 2d 789 (2013);
Prieto v. Zook, 791 F.3d 465, 467–69 (4th Cir.) (eighth
amendment claim regarding prohibition on execution
of intellectually disabled person procedurally barred
when not raised at sentence review), cert. denied,
U.S. , 136 S. Ct. 28, 192 L. Ed. 2d 999 (2015).
The respondent also argues that the petitioner failed
to allege any facts regarding cause and prejudice.
Although the petitioner alleged that newly discovered
brain research shows that the brain’s frontal lobe is not
fully developed until the age of twenty-five, he did not
allege that the research was not reasonably available
to him at the time of the trial before the three judge
panel in 2006, his direct appeal in 2010, or his second
habeas trial in 2011. The respondent points out, how-
ever, that, in 2005, when the Supreme Court decided
Roper, scientific evidence confirmed that ‘‘regions of
the adolescent brain,’’ in particular ‘‘those associated
with impulse control, regulation of emotions, risk
assessment, and moral reasoning’’ are not fully mature
until after the age of eighteen. See Roper v. Simmons,
U.S. Supreme Court Briefs, October Term, 2004, Amicus
Brief of the American Medical Association et al. p.2,
reprinted in 2004 WL 1633599 *2.19 The Supreme Court
recognized that ‘‘qualities that distinguish juveniles
from adults do not disappear when an individual turns
eighteen.’’ Roper v. Simmons, supra, 543 U.S. 574. In
Graham v. Florida, supra, 560 U.S. 68, decided in 2010,
the Supreme Court explicitly relied on amici briefs
explaining the results of brain development research
conducted in the late 1990s through 2009. The peti-
tioner, therefore, can hardly prevail on his argument
that societal standards are evolving when the mitigating
circumstances for which he argues were known and
accepted at the time of his third trial and his second
habeas petition.
The respondent further argues that the petitioner
failed to plead prejudice adequately in his reply. We
agree. To allege a legally sufficient prejudice in the
context of the present case, the petitioner was required
to allege specific facts demonstrating that, if he had
offered brain development studies, there was a substan-
tial likelihood or a reasonable probability sufficient to
undermine the confidence in the outcome that the three
judge panel would have imposed a lighter sentence.
We, therefore, conclude that the habeas court properly
dismissed the petitioner’s mitigating circumstances
claim pursuant to procedural default.
For the foregoing reasons, the habeas court properly
dismissed count one of the third petition for a writ of
habeas corpus.
V
The petitioner’s third claim is that the habeas court
improperly dismissed count two of his third petition
on the ground of procedural default. In count two, the
petitioner alleged that he was denied the constitutional
right to equal protection because the prosecutor vindic-
tively tried him for murder a third time after his first
petition for a writ of habeas corpus was granted. We
do not agree.
The petitioner alleged in count two of his third peti-
tion that a federal investigation revealed that Connelly,
former Waterbury state’s attorney, allegedly was pro-
viding Minella’s clients with favorable treatment in
exchange for trips provided to him by Minnella. The
petitioner further alleged that he was subject to a third
criminal trial because Connelly vindictively prosecuted
him for a third time. He alleged that he could not afford
to retain Minnella but, if Minnella had been his counsel,
Connelly would not have subjected him to a third crimi-
nal trial and the petitioner would not be in ‘‘this situa-
tion’’ because Minnella would have disposed of the peti-
tioner’s case.20 He also alleged that without Connelly’s
misconduct, he would have been tried on a lesser
charge, released on time served, or offered a favorable
plea deal.
In his return, the respondent alleged that count two
was barred by procedural default and failed to state a
claim upon which habeas relief may be granted.21 In
his reply, the petitioner realleged the substance of the
allegations in count two of the petition and attached
copies of a November 30, 2005 newspaper article
regarding Connelly’s decision to retry him for murder.
In the article, the petitioner’s counsel is quoted as stat-
ing that the petitioner is not willing to plead to a charge
higher than manslaughter.
A
In its memorandum of decision with regard to the
petitioner’s equal protection claim, the habeas court
stated that the petitioner had not raised the claim in
the trial court or on appeal. The court found that the
petitioner’s reply ‘‘merely recites the facts alleged in
his petition, with the addition of a copy of a newspaper
article in which . . . Connelly indicates that he is
unwilling to let the petitioner plead guilty to manslaugh-
ter. The petitioner has failed to allege legally cognizable
cause and prejudice to rebut his procedural default.’’
As we previously stated in part III B of this opinion,
when a habeas court dismisses a claim on the ground
of procedural default, we review the court’s conclusions
to determine whether, as a matter of law, they are legally
and logically correct. To overcome procedural default,
the petitioner must demonstrate both good cause for
failing to raise the claim in a prior proceeding and
prejudice. The existence of good cause turns on
whether there was some objective factor external to
the defense that impeded counsel’s efforts to comply
with the procedural rule. See Arroyo v. Commissioner
of Correction, supra, 172 Conn. App. 461–62. We agree
with the habeas court that the petitioner failed to meet
his burden.
In his reply, the petitioner failed to state facts as to
why he did not raise the claim of vindictive prosecution
prior to alleging it in his third petition for a writ of
habeas corpus. In his opposition to the respondent’s
motion to dismiss, however, he asserted that he could
not have raised the claim because the federal investiga-
tion into Connelly’s alleged corruption did not occur
until years after the 2006 trial before the three judge
panel. Even if that assertion could be read into the
petitioner’s reply, it does not assert objective facts that
prevented him from raising the equal protection claim
in his second petition for a writ of habeas corpus. In his
petition, the petitioner alleged that Connelly resigned
in January, 2011. The petitioner’s second habeas trial
did not commence until June, 2011. The petitioner,
therefore, failed to meet his burden to establish good
cause for failing to raise the claim in a prior proceeding.
B
Although the habeas court did not dismiss the second
count of the third petition on the ground of failing to
state a claim on which habeas relief can be granted,
on appeal, the respondent raises failure to state a claim
as an alternative ground on which to affirm the judg-
ment of dismissal22 should we conclude that the court
improperly dismissed the petitioner’s third petition for
a writ of habeas corpus.23 Although we conclude that
the court properly dismissed the second count of the
petition on the ground of procedural default,24 we agree
with the respondent that the judgment also can be
affirmed on the ground of failure to state a viable claim
for habeas relief.25
The petitioner alleged that ‘‘Connelly ordered his
assistant to selectively and vindictively prosecute the
petitioner for the third time on the same case that hap-
pened back in 1994.’’ ‘‘A presumption of vindictiveness
generally does not arise in a pretrial setting. . . .
Therefore, the defendant must show actual vindic-
tiveness on the part of the prosecutor.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Lee, 86
Conn. App. 323, 327–28, 860 A.2d 1268 (2004), cert.
denied, 272 Conn. 921, 867 A.2d 839 (2005). To establish
an actual vindictive motive on Connelly’s part, the peti-
tioner had to ‘‘prove objectively that the prosecutor’s
charging decision was a direct and unjustifiable penalty
. . . that resulted solely from the defendant’s exercise
of a protected legal right . . . . Put another way, the
defendant must show that (1) the prosecutor harbored
genuine animus toward the defendant, or was prevailed
upon to bring the charges by another with animus such
that the prosecutor could be considered a stalking
horse, and (2) [the defendant] would not have been
prosecuted except for the animus.’’ (Internal quotation
marks omitted.) Id., 328.
The petitioner failed to allege any facts to meet his
substantial burden to demonstrate Connelly’s animus
toward him. It is undisputed that the petitioner was
tried twice on the charge of murder. Thus, Connelly’s
decision to try the petitioner for a third time could not
have been a direct and unjustifiable penalty for the
petitioner’s having exercised a protected legal right; see
id., 328; as it flowed from Judge Rittenband’s order
granting, in part, the first petition for a writ of habeas
corpus. Judge Rittenband ordered that the petitioner
be unconditionally discharged if the state’s attorney for
the judicial district of Waterbury did not file a notice
of intention to retry the petitioner. See footnote 4 of
this opinion. Moreover, in his first petition for a writ
of habeas corpus, the petitioner, who had been tried
for murder, sought a new trial. When Judge Rittenband
granted the petition and ordered that the petitioner be
retried, the petitioner got the remedy he sought. The
petitioner, therefore, failed to demonstrate good cause
for failing to raise his claim in an earlier proceeding.
In order to overcome procedural default, a petitioner
must demonstrate both good cause and actual prejudice
for failing to raise the claim in a prior proceeding. See
Arroyo v. Commissioner of Correction, supra, 172
Conn. App. 462. Because the petitioner has failed to
meet his burden to demonstrate good cause, we need
not determine whether he demonstrated actual preju-
dice. For the foregoing reasons, we conclude that the
habeas court properly dismissed count two of the third
petition for a writ of habeas corpus.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner filed his third petition for a writ of habeas corpus as a
self-represented party. He was represented by counsel on appeal.
2
In the petitioner’s first direct appeal, our Supreme Court stated that the
jury ‘‘reasonably could have found the following facts. In the early morning
hours of November 5, 1994, the [petitioner] and [Hall] began arguing in the
vicinity of North Main and East Farm Streets in Waterbury. Domingo Alves,
a close family friend of Hall, placed himself between Hall and the [petitioner].
Alves put his hands out, one toward Hall and one toward the [petitioner],
in an effort to separate them. Hall stood calmly, but the [petitioner] kept
pushing against Alves, trying to reach Hall. Alves then lightly put both his
hands on the [petitioner’s] chest to stop him from advancing. The [petitioner]
removed a gun from his pocket. When Alves saw the gun, he took a step
back from the [petitioner]. Hall stood still and appeared to be frightened.
The [petitioner] shot Hall once in the torso, then ran to his car. While driving
away, the [petitioner] told his cousin, James Bryan, who was waiting in the
car, ‘I told him stop messing with me.’ ’’ (Footnote omitted.) State v. Woods,
250 Conn. 807, 809, 740 A.2d 371 (1999).
3
In his first direct appeal, the petitioner claimed that the trial court
improperly permitted the prosecutor to comment during closing argument
on the petitioner’s failure to call his prior counsel to testify, and that the
court’s jury instructions on ‘‘self-defense inadequately advised the jury that
the [petitioner’s] subjective belief that he was in imminent danger, even if
mistaken, could justify his conduct.’’ State v. Woods, supra, 250 Conn.
808–809.
4
Judge Rittenband ordered the petitioner ‘‘conditionally released from
confinement. He shall be absolutely discharged unless within thirty days
from the date of this memorandum of decision, the state’s attorney for the
judicial district of Waterbury files with the clerk’s office a written notice
of intention to proceed with the retrial of the petitioner.’’ Woods v. Warden,
Superior Court, judicial district of Hartford, Docket No. CV-XX-XXXXXXX (April
3, 2003).
5
At trial before the three judge panel, the petitioner argued that, ‘‘because
of his diminished mental capacity, he believed that he was acting in self-
defense.’’ State v. Woods, Superior Court, judicial district of Waterbury,
Docket No. CR-94-235234 (June 30, 2006). The court found, however, that
the petitioner did not ‘‘[produce] any credible evidence that would support
a claim of self-defense.’’ Id. The record discloses that John H. Felber, a
psychiatrist, and attorneys Gregory St. John and Louis Avitabile testified to
the petitioner’s diminished capacity.
6
In his second direct appeal, the petitioner claimed that the trial court
abused its discretion by admitting his testimony from a prior trial because
that testimony was not voluntary and that his waiver of his right to a jury
trial was not valid. State v. Woods, supra, 297 Conn. 571. Our Supreme Court
rejected his claims and affirmed his conviction. Id., 589.
7
The petitioner alleged in his second petition for a writ of habeas corpus
that his third criminal trial counsel rendered ineffective assistance by (1)
failing to adequately prepare him to testify at the third criminal trial, (2)
advising him to waive a trial by jury and to be tried by a three judge panel,
(3) failing to object to testimony regarding a firearm that was unrelated to
the subject crime, (4) failing to impeach state’s witnesses who were seen
speaking with one another during the trial, (5) failing to adequately prepare
his expert witness, John H. Felber, a psychiatrist, to testify, and (6) failing
to follow through on a plea bargain. The second habeas court, T. Santos,
J., found that the petitioner failed to meet his burden of proof on any of
the claims. See Woods v. Warden, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX (June 30, 2011).
8
The record discloses that the petitioner was represented by the same
attorney at his first and second habeas trials.
9
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion or upon motion of the respondent,
dismiss the petition, or any count thereof, if it determines that . . .
‘‘(2) the petition, or a count thereof, fails to state a claim upon which
habeas corpus relief can be granted;
‘‘(3) the petition presents the same ground as a prior petition previously
denied and fails to state new facts or to proffer new evidence not reasonably
available at the time of the prior petition . . . .’’
10
At the petitioner’s request, counsel was appointed to represent the
petitioner in the habeas court. Appointed counsel, however, filed a motion
for leave to withdraw his appearance pursuant to Practice Book § 23-41 (a),
which provides in relevant part: ‘‘[w]hen counsel has been appointed . . .
and counsel, after conscientious investigation and examination of the case,
concludes that the case is wholly frivolous, counsel shall so advise the
judicial authority by filing a motion for leave to withdraw from the case.
. . .’’ The judicial authority, Bright, J., granted appointed counsel’s motion
to withdraw. The petitioner proceeded as a self-represented party until
appellate counsel was appointed for him.
11
In her opinion, Judge Santos stated in relevant part: ‘‘Now as to [the
allegation that] trial counsel failed to timely notice and adequately prepare
petitioner’s expert witness . . . Felber, and this is what the petitioner’s
counsel has felt is the most important of these issues.
‘‘I know that, and it’s clear and you’re right [habeas counsel], there is a
difference in terms of what has transpired here in the testimony, and I think
anybody reading that would see that there was a difference in how . . .
Felber testified, but just as . . . and there was no evidence as to . . .
although there were comments, but there was no evidence as to whether
or not . . . Felber had any decline in his mental capacity or whatever over
the years from between 2002 and 2006, as . . . was argu[ed] . . . so that
wasn’t based on any evidence. . . .
‘‘[The court agreed that trial counsel testified that he did not notice a
decline in Felber’s mental faculties, but perhaps there was a physical decline.
The court stated] I don’t think that as far as his ability to recollect or anything
of that sort, it doesn’t seem like there’s any evidence that he could not
testify, if he wished, to exactly what he had testified earlier. . . . The fact
that he didn’t do that that day none of us know why. . . . He couldn’t tell
us today . . . but [trial counsel] spoke with him on the telephone twice.
The first time he told him what he was going to send him. He told him that
. . . he was going to send him the . . . prior habeas testimony, and he was
going to send him the transcript of the trial, and so he would know, he would
have some ability to be able to go back and see what he had said before.’’
Trial counsel looked at Felber’s ‘‘opinion as he would something that was
an empirical test.’’ Prior to the third criminal trial, trial counsel had the
petitioner examined by Kenneth Selig, a psychiatrist. Trial counsel, however,
did not like what he heard when he received Selig’s report.
Trial counsel felt that Felber’s ‘‘examination of whatever records he had,
his initial conversations with [the petitioner], on the eve of trial was perhaps
all he had and the best he had and he was going with it, and whatever
problems he was going to encounter, he was going to have to deal with at
the trial. And it wasn’t until he had the results of . . . Selig’s report that
he made that decision, and, again, it was a strategic decision.’’ See Woods
v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-08-
4002720 (June 30, 2011).
12
The petitioner made the following allegations regarding the witness’
testimony. Saucier, a guidance counselor with Waterbury Adult Education,
‘‘testified that [the petitioner’s] scores on a standardized test were abysmal.
. . .’’ Gregory St. John, an attorney who represented the petitioner when
he was a juvenile, ‘‘testified that [the petitioner] had been difficult to explain
matters to . . . in a way that he could understand.’’ St. John believed the
petitioner was ‘‘sufficiently impaired to make it difficult for him to form the
requisite specific intent for intentional murder.’’ Avitabile, an experienced
criminal defense lawyer, ‘‘testified that after speaking with [the petitioner,
Avitabile] said that [the petitioner’s] intellectual abilities [were] subpar and
that he is of diminished capacity.’’
13
Interestingly, the petitioner alleged in paragraph 5 of count one: ‘‘Evi-
dence in this case shows that [the petitioner] was under the influence of a
large amount of alcohol the night this incident occurred.’’
14
The petitioner essentially is alleging that he would not have been con-
victed if evidence of his diminished capacity had been presented to the
triers of fact. The triers of fact who convicted the petitioner and, ultimately,
sentenced him, were the members of the three judge panel. If there is any
claim of ineffective assistance of counsel, it logically relates to his third
trial counsel. Moreover, in the next paragraph, the petitioner sets out Felber’s
testimony that was presented at his first habeas trial and alleges that it was
not presented to the triers of fact. The words triers of fact, therefore, must
refer to the three judge panel which convicted and sentenced him. Such
allegations cannot refer to his second habeas counsel.
15
The habeas court stated that General Statutes § 54-91g (a) (1), which
requires a sentencing court to take into account ‘‘the defendant’s age at the
time of the offense, the hallmark features of adolescence, and any scientific
and psychological evidence showing the differences between a child’s brain
development and an adult’s brain development,’’ only applies to cases involv-
ing children, as defined by General Statutes § 46b-120. (Internal quotation
marks omitted.) Section 46b-120 (1) defines child as ‘‘any person under
eighteen years of age who has not been legally emancipated . . . .’’ We
note that at the time of the petitioner’s sentencing, General Statutes (Rev.
to 1997) § 46b-120 (1) defined child as ‘‘any person under sixteen years of
age . . . .’’
16
The record does not support the petitioner’s representation. In his brief
on appeal, the petitioner represented that in his objection to the respondent’s
motion to dismiss, he explicitly disclaimed that he intended to plead that
Miller v. Alabama, supra, 567 U.S. 460, and State v. Riley, supra, 315 Conn.
637, should be extended to nonjuveniles. Our review of the petitioner’s
objection to the motion to dismiss makes no mention of Miller and Riley,
let alone an argument that the petitioner did not seek to expand the age of
individuals for whom individualized sentencing applies.
17
‘‘By statute and the rule of practice, our trial courts must consider the
information in the presentence report before imposing sentence. See General
Statutes § 54-91a (a); Practice Book §§ 43-3 and 43-10.’’ State v. Riley, supra,
315 Conn. 659.
In the present case, the three judge panel ordered a presentence investiga-
tion of the petitioner. The petitioner referred to it in his reply to the respon-
dent’s return and attached a copy of the mental health evaluation performed
by Catholic Charities as part of the presentence investigation. The evaluation
states that, on ‘‘August 11, 2006, the [petitioner] was evaluated by the director
of the clinical staff at Catholic Charities. The clinical impressions of the
evaluation were that the [petitioner] has a long history of learning disability,
alcoholism, some sleep disturbance, and depression. It was determined that
the [petitioner] would benefit from therapy for mental health and substance
abuse issues, including medication management. It was also noted that
extensive educational and psychological testing would be useful in determin-
ing the full extent of [the petitioner’s] learning and cognitive impairments
and would have implications for possible treatment modalities. During the
evaluation the [petitioner] expressed some paranoia particularly that he
believes that some people act suspiciously around him and may be out to
get him, however, it was unclear how much reality there is to that perception.
The [petitioner] was diagnosed with [d]epression, [not otherwise specified]
and [l]earning [d]isability [not otherwise specified].’’ (Internal quotation
marks omitted.) The petitioner does not claim that the three judge panel
failed to consider the Catholic Charities mental health evaluation prior
to sentencing.
18
Melvin Delgado was convicted of a murder he committed when he was
sixteen years old and sentenced to sixty-five years imprisonment without
the possibility of parole. State v. Delgado, supra, 323 Conn. 802. At the time
of his sentence, the court did not consider ‘‘mitigating factors associated
with the juvenile’s young age at the time of the crime.’’ Id. Following the
passage of No. 15-84 of the 2015 Public Acts (P.A. 15-84), Delgado filed a
motion ‘‘to correct his allegedly illegal sentence, claiming that he [was]
entitled to be resentenced.’’ Id., 803-–804. Our Supreme Court affirmed the
judgment dismissing of the motion to correct. Id., 816. Delgado failed to
allege a colorable claim; he conceded that the enactment of P.A. 15-84,
which ensures that he is eligible for parole, resolved his eighth amendment
claim. Id., 809.
19
The brief was submitted by the American Medical Association, American
Psychiatric Association, American Society for Adolescent Psychiatry, Ameri-
can Academy of Child & Adolescent Psychiatry, American Academy of Psy-
chiatry and the Law, National Association of Social Workers, Missouri Chap-
ter of the National Association of Social Workers, and National Mental
Health Association.
20
Shorn of its legalese, this part of the petitioner’s singular claim appears
to decry his inability to benefit from an allegedly corrupt practice.
21
The respondent alleged that the petitioner failed to state a cognizable
equal protection claim under either the state or federal constitutions which
demonstrates that his conviction was the product of purposeful discrimina-
tion, citing Abdullah v. Commissioner of Correction, 123 Conn. App. 197,
1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010). The respondent
also alleged that the petitioner failed to state a claim upon which the habeas
court could grant relief because the relief the petitioner sought would have
resulted from his own illegal acts, citing Greenwald v. Van Handel, 311
Conn. 370, 88 A.3d 467 (2014).
22
The petitioner responded to the respondent’s alternative ground for
affirmance by arguing that the respondent failed to raise the affirmative
defense in his return. The record is to the contrary. The respondent pleaded
procedural default and two grounds for failure to state a claim in his return.
23
An appellate court may affirm the judgment of the trial court although
it may be founded on an improper reason. See Mercer v. Rodriquez, 83
Conn. App. 251, 268, 849 A.2d 886 (2004).
24
We address the respondent’s alternative ground to affirm the judgment
of dismissal to resolve all claims should the petitioner seek certification to
appeal to our Supreme Court.
25
Our Supreme Court has acknowledged that ‘‘circumstances exist where
although the trial court did not reach a dispositive issue’’; Bouchard v. Deep
River, 155 Conn. App. 490, 496, 110 A.3d 484 (2015); an appellate court may
nonetheless ‘‘affirm the judgment of the trial court [on an alternative ground]
so long as the plaintiff is not prejudiced or unfairly surprised by the consider-
ation of the issue.’’ Id. An appellate court may affirm on an alternative
ground if it concerns a question of law, the essential facts are undisputed,
and the court’s standard of review is plenary. See id. In the present case,
the respondent raised the alternative ground in its brief and the petitioner
responded to it in his reply brief. Moreover, the respondent pleaded failure
to state a claim in his return to the allegations of count two of the petition.