Smith v. Commissioner of Correction

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DEVON SMITH v. COMMISSIONER OF CORRECTION
(AC 40747)
Keller, Prescott and Pellegrino, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming, inter alia, that he
received ineffective assistance from his criminal trial counsel. After the
habeas court granted the motion to dismiss the third count of the
amended petition alleging actual innocence filed by the respondent
Commissioner of Correction, the petitioner filed a withdrawal of the
remaining counts of the habeas petition, which the habeas court
accepted with prejudice. Subsequently, the habeas court granted the
petition for certification to appeal, and the petitioner appealed to this
court. Held that the petitioner could not prevail in his claim that the
habeas court erred in accepting the withdrawal of his habeas petition
only with prejudice; that court acted within its discretion in accepting
the withdrawal with prejudice, as the petitioner had filed and withdrawn
numerous prior habeas petitions, all of which he withdrew before trial,
the petitioner was provided every opportunity to continue to litigate his
prior habeas petitions and had a full opportunity to be heard, trial was
continued on five occasions, four continuances of which were granted
at the petitioner’s request, the habeas court was willing to continue the
case and offered the petitioner a second day of trial in the future so
that he could attempt to locate a potential witness, the petitioner sought
to withdraw his petition on the eve of trial, when exhibits had been
marked, counsel were ready to proceed, and witnesses had been subpoe-
naed and were ready to testify, and the petitioner, who had been exten-
sively canvassed by the habeas court, was fully aware of the potential
consequences of withdrawal.
Argued November 13, 2018—officially released February 19, 2019
Procedural History
Amended petition for writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland,
where the court, Sferrazza, J., granted the respondent’s
motion to dismiss as to the third count of the amended
petition and rendered partial judgment thereon; there-
after, the petitioner filed a withdrawal of the remaining
counts of the amended petition, which the court, Prats,
J., accepted with prejudice; subsequently, the court,
Prats, J., denied the petitioner’s motion for reconsidera-
tion and granted the petition for certification to appeal,
and the petitioner appealed to this court. Affirmed.
Justine F. Miller, assigned counsel, for the appel-
lant (petitioner).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Tamara Grosso, assistant state’s attorney,
for the appellee (respondent).
Opinion
PELLEGRINO, J. The petitioner, Devon Smith,
appeals from the judgment of the habeas court, Prats,
J., rendered when it granted the petitioner’s motion to
withdraw his petition for a writ of habeas corpus. The
petitioner claims that the habeas court abused its dis-
cretion because it conditioned the petitioner’s with-
drawal of his petition to be with prejudice. We disagree
and, accordingly, affirm the judgment of the habeas
court.
The record reveals the following relevant facts and
procedural history. In 1993, following a jury trial, the
petitioner was found guilty of murder in violation of
General Statutes § 53a-54a and sentenced to sixty years
incarceration. State v. Smith, 46 Conn. App. 285, 298,
699 A.2d 250, cert. denied, 243 Conn. 930, 701 A.2d 662
(1997). This court affirmed the petitioner’s conviction
on direct appeal. Id.
In January, 2011, the petitioner, who was self-repre-
sented at the time, filed a habeas petition, which is the
subject of this appeal. In the petition, the petitioner
alleged, inter alia, that his criminal trial counsel, Kevin
Randolph, provided ineffective assistance due to his
failure to call a ‘‘number of witnesses.’’1 The petitioner
also represented that he had previously not filed a
habeas petition.
On November 21, 2011, the habeas court, Newson,
J., granted the petitioner’s motion for the appointment
of counsel and appointed Dante Gallucci to represent
the petitioner. Gallucci appeared before the habeas
court on November 2, 2012, at which time he stated
that it was his understanding that the petitioner had
‘‘filed a couple of [prior habeas petitions], but he with-
drew them.’’ Gallucci also stated: ‘‘[The petitioner]
hasn’t had any kind of substantive habeas on [the 1993]
murder [conviction]. He’s been involved in other habe-
as[es] with other cases.’’ In response to Galluci’s state-
ments, the clerk of court identified several habeas
petitions that the petitioner previously had filed.
On January 11, 2013, the petitioner appeared before
the habeas court, Solomon, J., by videoconference. Dur-
ing that conference, the court asked the petitioner
whether he had previously filed habeas petitions and
noted that court records indicated that he had filed
seven prior habeas petitions. The petitioner then admit-
ted to having filed other petitions involving his 1993
murder conviction but maintained that the issues in the
current petition were different from those in the earlier
petitions. Ultimately, in a filing dated September 10,
2013, the petitioner acknowledged previously having
filed eight habeas actions, seven of which related to
the petitioner’s 1993 conviction.2
On April 3, 2013, the habeas court issued a scheduling
order, in which it set the first day of trial for October
7, 2013. On September 13, 2013, less than a month before
trial was scheduled to begin, the petitioner filed a
motion requesting a continuance. The habeas court,
Newson, J., granted this motion on September 19, 2013.
On September 17, 2013, Gallucci filed a motion to with-
draw as the petitioner’s counsel, which the habeas
court, Bright, J., granted on September 23, 2013. In
October, 2013, Wade Luckett entered an appearance as
the petitioner’s counsel.
On June 6, 2014, the habeas court issued a new sched-
uling order, which postponed the start of trial until June
18, 2015. On January 2, 2015, the petitioner, through
counsel, filed an amended habeas petition. On June 4,
2015, two weeks before trial, the petitioner again filed
a motion to continue the trial date. In support of this
motion, the petitioner identified four potential wit-
nesses that he had yet to interview. The habeas court,
Oliver, J., granted the petitioner’s motion on June 9,
2015, and subsequently rescheduled the trial for May
26, 2016.
On May 3, 2016, approximately three weeks before
the trial was scheduled to begin, the petitioner filed a
motion to amend his habeas petition because he had
become aware that another witness, ‘‘Jesus Rodriguez,
would have provided favorable, if not outright exculpa-
tory, testimony on [the petitioner’s] behalf . . . and
was available to testify if he [were] called as a witness.’’
The habeas court granted the petitioner’s motion to
amend and marked off the trial that had been scheduled
to begin on May 26, 2016. The start of trial was then
postponed to March 20, 2017. The petitioner filed a third
amended habeas petition on March 8, 2017.
On March 15, 2017, five days before trial was sched-
uled to begin, the petitioner again asked that trial be
continued, this time to accommodate two of his wit-
nesses. The habeas court granted this request and
rescheduled trial for July 17, 2017. On July 7, 2017, the
respondent, the Commissioner of Correction, submitted
a witness list for the trial. On July 17, 2017, the petitioner
submitted an exhibit, which was marked for identifi-
cation.
Prior to the commencement of trial on July 17, 2017,
Luckett informed the habeas court, Prats, J., that he
was not ready to proceed because the petitioner wanted
to withdraw his petition. The habeas court canvassed
the petitioner regarding his desire to withdraw and
informed him that if he withdrew his petition, it would
be with prejudice, meaning he would be unable to raise
the same claims in a subsequent habeas petition. In
response, the petitioner stated that he had made the
decision to withdraw the pending petition freely and
voluntarily.
The petitioner also stated that it was his understand-
ing that he ‘‘could withdraw the habeas at any time
prior to a hearing’’ without consequence. The court
explained that the petitioner could withdraw his peti-
tion, but also stated: ‘‘[I]f you try to raise a new habeas
in the future, there will be objection from the respon-
dent in this case . . . we’re on the eve of trial today.
We have witnesses who have been subpoenaed for
today. This case goes back six years . . . . [Present]
[c]ounsel has been involved . . . since 2013. It’s been
scheduled for trial. There [have] been continuances.
‘‘All of what has been done between now and then
with a full opportunity to be heard. So just withdrawing
it with the hope that later on you’re going to file another
[petition] with the same claims would not be appro-
priate. Do you understand? And it’s going to meet objec-
tion, and if the court accepts your withdrawal today,
it would be with prejudice, meaning that it would bar
you from raising these claims [in the future].’’
Luckett acknowledged that exhibits had been marked
and witnesses had been subpoenaed and were present.
He argued, however, that the petitioner should be per-
mitted to withdraw his petition without prejudice
because evidence had not yet been presented and
because the petitioner’s claims in the petition at issue
had never been fully litigated. Additionally, Luckett
asserted that a withdrawal without prejudice was war-
ranted because there were potential witnesses whom
the petitioner had been unable to locate, including
Rodriguez. Luckett argued that Rodriguez was expected
to provide exculpatory testimony and that he had hired
several investigators to find Rodriguez, but that they
had been unable to do so.
The habeas court told the petitioner that if he started
trial that day it would grant the petitioner another day
of trial in the future, which would allow the petitioner
to continue to search for Rodriguez and the other wit-
nesses whom the petitioner had been unable to locate.
The habeas court reiterated that if the petitioner with-
drew his petition, it would be with prejudice. Luckett
stated that he was ready to begin trial that day but that
he would let the petitioner make the ultimate decision
regarding withdrawal.
The habeas court again canvassed the petitioner, stat-
ing: ‘‘[I]f I grant the withdrawal, just for the record, I
want to be very clear that the court is going to do it
with prejudice, and that later on, if you try to raise the
same basis, there’s going to be a very strong objection,
and you’re possibly going to be barred from raising
this claim again. You understand that?’’ The petitioner
responded: ‘‘I’ll take my chances. Rather [not] have a
hearing today and lose with certainty.’’ The petitioner
subsequently signed a withdrawal form that contained
the notation, ‘‘withdrawal w[ith] prejudice accepted
. . . after canvass on the record.’’ Thereafter, the peti-
tioner filed a motion to reconsider, which the habeas
court denied on July 28, 2017. The petitioner then filed
a petition for certification to appeal the decision, which
the habeas court granted on July 28, 2017. This
appeal followed.
On appeal, the petitioner claims that the habeas court
abused its discretion by stating that it would permit
him to withdraw his petition only if it was with prejudice
to filing a later petition raising the same claims. Specifi-
cally, the petitioner claims that the circumstances of
the present case are not similar to those in which a
court may order that a petition be withdrawn with preju-
dice. The respondent argues that the habeas court did
not abuse its discretion because ‘‘the matter had been
pending since 2011; counsel had made diligent efforts
to locate desired witnesses; trial had been continued
at least three times . . . trial was scheduled to begin
that day; subpoenaed witnesses were present . . .
exhibits had been marked; [the] petitioner’s counsel
was ready to proceed; the habeas court informed the
petitioner that if he proceeded with trial as scheduled,
it would schedule a second trial day; and, a withdrawal
with prejudice is entirely consistent with our habeas
jurisprudence.’’ We agree with the respondent.
‘‘We begin by setting out the standards of review
governing this appeal. The decision by a habeas court
to condition a withdrawal of a habeas petition on that
withdrawal being with prejudice is, when authorized,
a decision left to that court’s discretion.’’ (Internal quo-
tation marks omitted.) Kendall v. Commissioner of
Correction, 162 Conn. App. 23, 28, 130 A.3d 268 (2015).
‘‘Discretion means a legal discretion, to be exercised
in conformity with the spirit of the law and in a manner
to subserve and not impede or defeat the ends of sub-
stantial justice. . . . Inherent in the concept of judicial
discretion is the idea of choice and a determination
between competing considerations. . . . When
reviewing claims under an abuse of discretion standard,
the unquestioned rule is that great weight is due to the
action of the trial court . . . . Under that standard, we
must make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . [Our] review of
such rulings is limited to questions of whether the trial
court correctly applied the law and reasonably could
have reached the conclusion that it did.’’ (Citation omit-
ted; internal quotation marks omitted.) Palumbo v.
Barbardimos, 163 Conn. App. 100, 110–11, 134 A.3d
696 (2016).
General Statutes § 52-80 provides in relevant part:
‘‘The plaintiff may withdraw any action . . . before the
commencement of a hearing on the merits thereof. After
the commencement of a hearing on an issue of fact in
any such action, the plaintiff may withdraw such action
. . . only by leave of court for cause shown.’’ ‘‘The term
with prejudice means [w]ith loss of all rights; in a way
that finally disposes of a party’s claim and bars any
future action on that claim. . . . The disposition of
withdrawal with prejudice exists within Connecticut
jurisprudence. . . . Indeed, the disposition of with-
drawal with prejudice is a logically compelling disposi-
tion in some circumstances. A plaintiff is generally
empowered, though not without limitation, to withdraw
a complaint before commencement of a hearing on the
merits. . . . A plaintiff is not entitled to withdraw a
complaint without consequence at such hearing. . . .
The decision by a habeas court to condition a with-
drawal of a habeas petition on that withdrawal being
with prejudice is, when authorized, a decision left to
that court’s discretion.’’ (Citations omitted; internal
quotation marks omitted.) Marra v. Commissioner of
Correction, 174 Conn. App. 440, 454–55, 166 A.3d 678,
cert. denied, 327 Conn. 955, 171 A.3d 456 (2017).
Moreover, ‘‘[h]abeas courts are given wide latitude
in fashioning remedies.’’ Mozell v. Commissioner of
Correction, 147 Conn. App. 748, 760, 83 A.3d 1174, cert.
denied, 311 Conn. 928, 86 A.3d 1057 (2014). ‘‘[H]abeas
corpus has traditionally been regarded as governed by
equitable principles. . . . Among them is the principle
that a [petitioner’s] conduct in relation to the matter at
hand may disentitle him to the relief he seeks.’’ (Internal
quotation marks omitted.) Negron v. Warden, 180 Conn.
153, 166 n.6, 429 A.2d 841 (1980). ‘‘A [petitioner] should
never be permitted to abuse [his] right to voluntarily
withdraw an action. Such abuse may be found if, in
executing [his] right of withdrawal, the [petitioner]
unduly prejudices the right of an opposing party or the
withdrawal interferes with the court’s ability to control
its docket or enforce its rulings.’’ Palumbo v. Barbad-
imos, supra, 163 Conn. App. 115.
‘‘Significantly . . . [this] court . . . [has] recog-
nized that in certain circumstances, a withdrawal of a
petition prior to the commencement of a hearing on
the merits could be deemed to be with prejudice . . . .’’
(Emphasis in original.) Marra v. Commissioner of Cor-
rection, supra, 174 Conn. App. 456. This court con-
cluded that such circumstances existed in Marra and
Mozell.
In Marra v. Commissioner of Correction, supra, 174
Conn. App. 454, this court concluded that, under the
circumstances of that case, the habeas court properly
determined that the petitioner’s habeas action could
not be maintained because his withdrawal of a previous
habeas action was with prejudice. The petitioner in
Marra executed a withdrawal of his previous habeas
action the day before trial was to begin. Id. The petition-
er’s case had been pending for two and one-half years,
during which time it was continued three times. Id.
The previous habeas court stated that prejudice existed
because the court ‘‘set aside the time [for the] trial . . .
the clerk [of court] gave up her time . . . and even
met with the attorneys and marked all the exhibits . . .
so that [the court] [would be] ready to go . . . .’’ (Inter-
nal quotation marks omitted.) Id., 449. Moreover, the
previous habeas court noted that the court and the
respondent were ready for trial. Id., 447. This court also
cited the fact that the petitioner ‘‘participated person-
ally in the decision to withdraw the previous habeas
matter the day before trial was to begin,’’ in affirming
that the petitioner’s withdrawal of his previous habeas
action was with prejudice. (Internal quotation marks
omitted.) Id., 458.
Similarly, in Mozell v. Commissioner, supra, 147
Conn. App. 760, this court concluded that the habeas
court acted within its discretion when it only allowed
the petitioner to withdraw one of the counts in his
habeas petition with prejudice. The petition at issue in
Mozell was the petitioner’s third, and by the time the
petitioner sought to withdraw his petition on the day
of trial, the action had been pending for approximately
two and one-half years. Id., 750–51. The habeas court
conditioned withdrawal of one of the petitioner’s counts
on being with prejudice because ‘‘[w]itnesses had been
subpoenaed and were in court ready to proceed;
[expenses] such as setting up videoconferencing for a
witness in Nevada had been incurred; [and] evidence
had begun, according to the respondent’s counsel, in
that some exhibits had already been admitted in full
. . . .’’ (Footnote omitted.) Id., 760.
The petitioner argues that the present case is factually
distinguishable from Marra and Mozell, and, therefore,
that a withdrawal with prejudice was not appropriate
under the circumstances. We are unpersuaded.
Like the petitioners in Marra and Mozell, the peti-
tioner in the present case had filed and withdrawn
numerous prior habeas petitions. Indeed, the petitioner
in the present case had filed more petitions than the
petitioners in Marra and Mozell, who filed two and
three petitions, respectively. The petitioner in the pre-
sent case filed at least seven petitions, all of which he
withdrew before trial.
The petitioner attempts to distinguish the present
case from Marra and Mozell by arguing that in those
cases a final judgment had been rendered on other
petitions filed by the petitioners, whereas, in the present
case, none of the petitioner’s prior habeas petitions had
reached final judgment or even received a hearing on
the merits. In the present case, final judgment was not
reached on any of the petitioner’s many habeas petitions
because the petitioner chose to withdraw them. Despite
his choice to withdraw the petitions, the petitioner was
provided every opportunity to continue to litigate them
and, therefore, had a full opportunity to be heard.
In this case, trial was continued on five occasions,
more times than in Marra and Mozell combined. In
Marra, trial was continued three times, and, in Mozell,
trial was never continued. Four of the continuances in
the present case were granted at the petitioner’s
request. Moreover, the habeas court was willing to con-
tinue the case in response to the petitioner’s request to
withdraw his petition. The court offered the petitioner
a second day of trial in the future so that he could
attempt to find Rodriguez.3 The petitioner was afforded
ample time to prepare his case.
As did the petitioners in Marra and Mozell, the peti-
tioner sought to withdraw his petition on the eve of
trial when the case was ready to proceed after efforts
and resources had been expended in preparation for
trial. Similarly, exhibits in the present case had been
marked, counsel were ready to proceed, and witnesses
had been subpoenaed and were ready to testify. More-
over, as in Mozell where expenses had been incurred
in setting up videoconferencing for a witness in Nevada,
in the present case, witnesses were subpoenaed and
were present to testify.
Additionally, like the petitioner in Marra, the peti-
tioner in the present case made the ultimate decision
to withdraw the habeas matter on the day of trial and
was fully aware of the potential consequences of with-
drawal, as he had been extensively canvassed by the
habeas court.
On the basis of the foregoing, we conclude that, under
these circumstances, the court acted within its discre-
tion in granting the petitioner’s motion to withdraw
with prejudice.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner also alleged a claim of actual innocence that was dismissed
by the habeas court.
2
The petitioner clarified that one of the petitions he had previously filed
related to a different conviction.
3
The petitioner argues that he had a good reason to withdraw his petition,
namely, that he needed more time to locate Rodriguez. By the time the
petitioner withdrew his petition, however, he had been attempting to locate
Rodriguez with the assistance of counsel for approximately two years. In
fact, the habeas court had already granted at least one continuance to allow
the petitioner more time to find potential witnesses.