Marra v. Commissioner of Correction

 THOMAS MARRA v. COMMISSIONER
OF CORRECTION
(AC 38033)
Keller, Prescott and Harper, Js.
Syllabus
The petitioner, who had been convicted in two separate criminal cases of
multiple offenses, including conspiracy to commit kidnapping in the
first degree, attempted kidnapping in the first degree, and murder, sought
writs of habeas corpus, claiming that his attorneys in both cases had
rendered ineffective assistance. The cases were subsequently consoli-
dated. The day before his habeas trial was set to begin, after multiple
postponements, the petitioner filed a withdrawal of the habeas action.
Despite the filing, the habeas court required the petitioner to appear
the next day, with counsel, and canvassed the petitioner on the record
regarding his decision to withdraw the case. The habeas court noted
the withdrawal and deemed it to be with prejudice. Less than one month
after he withdrew the habeas action, the petitioner filed another petition
for habeas corpus, claiming ineffective assistance of his prior habeas
counsel for their failure to adequately challenge the effectiveness of the
petitioner’s trial and appellate counsel in the underlying criminal cases.
The trial court rendered judgment dismissing the petition after hearing
evidence on the respondent Commissioner of Correction’s special
defenses, including deliberate bypass, by which the court can deny relief
to a petitioner who has intentionally given up rights or privileges by
bypassing orderly court procedure and surrendering any remedies. The
trial court concluded that the deliberate bypass doctrine applied, there-
fore depriving the court of subject matter jurisdiction. On the granting
of certification, the petitioner appealed to this court, claiming that the
trial court improperly gave preclusive effect to the ruling of the prior
habeas court that the petitioner’s withdrawal was with prejudice because
no hearing on the merits had commenced pursuant to statute (§ 52-
80), and that the trial court improperly concluded that the doctrine of
deliberate bypass barred his action. Held:
1. The trial court did not impermissibly rely on the prior habeas court’s
ruling that the petitioner’s withdrawal was with prejudice, but, rather,
made its own independent ruling on the merits under the circumstances
to determine that the petitioner could not maintain the present action:
the petitioner’s waiver of his right to go forward with the habeas trial
was made expressly and on the record before the prior habeas court,
the petitioner participated personally in the decision to withdraw the
petition and signed the withdrawal form after consultation with his
attorney, and the prior habeas court’s canvass made abundantly clear
that the decision to terminate the case was the petitioner’s, made know-
ingly and without force or pressure; furthermore, the petitioner engaged
in procedural chicanery by filing the petition in an attempt to undermine
the order of the prior habeas court, and such gamesmanship is a limita-
tion on the general rule that a party has a right to unilaterally withdraw
litigation prior to a hearing on the merits.
2. This court did not address the issue of whether the trial court improperly
applied the deliberate bypass doctrine, as it was not necessary to reach
that claim because of the resolution of the petitioner’s first claim; this
court concluded, however, that the form of the trial court’s judgment
was improper because the trial court’s determination that the prior
habeas action should be deemed to be withdrawn with prejudice did
not implicate the subject matter jurisdiction of the court, and as such,
the trial court should have denied, rather than dismissed, the petition.
Argued January 17—officially released July 4, 2017
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J. [motion for permission to amend
pleading]; Sferrazza, J. [judgment].)
Procedural History
Two petitions for writs of habeas corpus, brought to
the Superior Court in the judicial district of Tolland,
where the cases were consolidated; thereafter, the
court, Oliver, J., granted the petitioner’s motion for
permission to amend his pleading; subsequently, the
court, Sferrazza, J., rendered judgment dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Improper form of
judgment; judgment directed.
Cheryl A. Juniewic, assigned counsel, for the appel-
lant (petitioner).
Emily D. Trudeau, assistant state’s attorney, with
whom, on the brief, was John C. Smriga, state’s attor-
ney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Thomas Marra, appeals
from the judgment of the habeas court dismissing his
petition for a writ of habeas corpus.1 On appeal, the
petitioner claims that the habeas court improperly dis-
missed his eighteen count petition, which alleged claims
of ineffective assistance of counsel against his prior
habeas attorneys, because the court improperly (1)
relied on a decision of the prior habeas court deeming
his withdrawal of that action as being ‘‘with prejudice’’
and (2) concluded that the deliberate bypass doctrine
barred his action. We conclude that only the form of the
habeas court’s judgment is improper and, accordingly,
reverse the judgment on that limited ground.
The record reveals the following relevant facts and
procedural history of this habeas appeal, which derives
from two separate criminal cases and their subsequent
posttrial proceedings. With regard to the first case (Noel
case), the petitioner was found guilty, following a jury
trial, of one count of conspiracy to commit kidnapping
in the first degree in violation of General Statutes
§§ 53a-48 and 53a-92 (a) (2) (A), two counts of
attempted kidnapping in the first degree in violation of
General Statutes §§ 53a-49 and 53a-92, one count of
arson in the second degree in violation of General Stat-
utes § 53a-112 (a) (1) (B), two counts of larceny in the
second degree in violation of General Statutes § 53a-
123 (a) (1), and one count of accessory to kidnapping in
the first degree in violation of General Statutes §§ 53a-8
and 53a-92 (a) (2) (A). State v. Marra, 215 Conn. 716,
718–19, 579 A.2d 9 (1990). He was subsequently sen-
tenced to sixty-five years of incarceration. Id., 719.
The relevant facts underlying the Noel case are dis-
cussed at length in our Supreme Court’s opinion
affirming that judgment. They may be summarized as
follows.
Sometime during 1981, the petitioner began operating
a criminal enterprise that involved selling stolen auto-
mobiles to J. W. Ownby, who lived in Kansas City,
Missouri. Id., 720. In 1982, the petitioner hired Richard
Noel, the victim, to drive the stolen automobiles to
Ownby, and Ownby and Noel developed a friendly rela-
tionship. Id. In 1983, Ownby terminated almost all of his
dealings with the petitioner and began dealing primarily
with Noel. Id. The petitioner became ‘‘aggravated’’ with
the situation, and his relationships with both men dete-
riorated. Id.
In November, 1983, during the course of a police
investigation into auto theft in the Bridgeport area, Noel
implicated the petitioner in statements to the police,
and the petitioner later became aware of Noel’s conver-
sations with the police. Id., 721. On January 23, 1984,
a neighbor of Noel ‘‘awoke at approximately 2 a.m.
to the sound of a male voice, coming from outside,
screaming: ‘No, no!’ ’’; observed two men quickly car-
rying the limp body of another man, presumably Noel,
by his arms and legs down the sidewalk toward a parked
van in which they tossed him; and, later that morning,
‘‘observed a large puddle of blood near the door of the
building, a clump of dark brown hair near the puddle,
blood splattered from the puddle over to the place
where the van had been parked, and a set of keys.’’ Id.,
722–23. The petitioner later burned the van, and he and
his associates dumped a barrel, presumably containing
Noel’s body, into the harbor in Stratford. See id.,
723–24.
Subsequently, the petitioner enlisted some of his
associates to participate in a scheme to steal money
from Noel’s bank account, which continued until the
bank closed the account in March, 1984. See id., 724–25.
In addition, the petitioner filed a lawsuit to collect on
a promissory note in the amount of $18,000 on which
Noel appeared as the maker and the petitioner as the
payee; that suit resulted in a judgment in favor of the
petitioner. Id., 725.
As previously indicated, the petitioner appealed from
his judgment of conviction, and our Supreme Court
affirmed the judgment of the trial court. See id., 739.
Thereafter, the petitioner filed a petition for a writ of
habeas corpus, alleging ineffective assistance of trial
and appellate counsel in the Noel case, and the habeas
court, Bishop, J., dismissed the petition and denied the
petition for certification to appeal. Marra v. Commis-
sioner of Correction, 51 Conn. App. 305, 305, 721 A.2d
1237 (1998), cert. denied, 247 Conn. 961, 723 A.2d 816
(1999). The petitioner subsequently appealed the
habeas court’s decision to this court, and this court
dismissed the appeal. See id., 310.
With regard to the second case (Palmieri case), the
petitioner was convicted, following a jury trial, of mur-
der in violation of General Statutes § 53a-54a (a) and
sentenced to sixty years of incarceration. State v.
Marra, 222 Conn. 506, 508, 610 A.2d 1113 (1992). The
relevant facts underlying the Palmieri case were set
forth in our Supreme Court’s opinion affirming that
judgment as well.
‘‘On February 6, 1984, the [petitioner] asked [Nicho-
las] Byers to drive the fifteen year old victim, another
associate of the [petitioner], to the [petitioner’s] house
later that day. At the same time, the [petitioner] asked
[Frank] Spetrino [an associate of his] if he would help
him put the victim in a barrel. That evening, Byers drove
the victim [Alex Palmieri], Spetrino and Tamara Thiel,
the victim’s girlfriend, to the [petitioner’s] house. The
[petitioner], the victim, Byers and Spetrino entered the
[petitioner’s] garage, while Thiel remained in the car.
‘‘In the garage, the [petitioner] and the victim argued
about the [petitioner’s] desire that the victim leave Con-
necticut and reside for a time in Italy, and the victim’s
refusal to do so. When the matter was not resolved to
the [petitioner’s] satisfaction, he handed Spetrino an
aluminum baseball bat and told Spetrino not to let the
victim leave the garage. Thereafter, as the group began
to exit the garage, Spetrino struck the victim in the
head with the bat. After Spetrino had hit the victim
from one to three times, the [petitioner] said, ‘Let’s get
him in the refrigerator.’ Spetrino then began to drag
the victim toward a refrigerator that was located inside
the [petitioner]’s garage. As he was being dragged, the
victim began to speak incoherently, and the [petitioner]
said, ‘Shut up Alex. You didn’t go to Italy.’ When the
victim failed to quiet down, the [petitioner] struck him
on the head with the bat numerous times. The additional
blows made the victim bleed heavily and caused some
of his brain tissue to protrude from his skull. The [peti-
tioner], Byers and Spetrino then placed the victim into
a large refrigerator, and the [petitioner] closed and pad-
locked the door. The men then loaded the refrigerator
into the back of a rented van, and the [petitioner] and
Spetrino drove the van to a parking area near the
Pequonnock River, where the river empties into the
harbor in downtown Bridgeport. After making several
holes in the refrigerator with an axe so that it would
sink, the [petitioner] and Spetrino slid the refrigerator
into the water and it floated away. Although a police
dive team searched the harbor for the victim’s body
and the refrigerator for a period of five months, the
divers could locate neither. The victim has not been
seen or heard from by his family or friends since Febru-
ary 6, 1984.’’ Id., 508–10.
The petitioner appealed from the judgment of convic-
tion, and our Supreme Court affirmed the judgment of
the trial court. See id., 539. Thereafter, on November
25, 1993, the petitioner filed a petition for a writ of
habeas corpus, alleging ineffective assistance of trial
and appellate counsel in the Palmieri case, and the
habeas court, Zarella, J., dismissed the petition. On
appeal, this court affirmed the habeas court’s dismissal.2
Marra v. Commissioner, 56 Conn. App. 907, 743 A.2d
1165, cert. denied, 252 Conn. 949, 747 A.2d 525 (2000).
Subsequently, the petitioner filed two additional
habeas actions alleging ineffective assistance of his
prior habeas counsel in both the Noel and Palmieri
cases. Those two actions eventually were consolidated
under docket number CV-05-4000275 (CV-05). As dis-
cussed in the habeas court’s memorandum of decision
in the present case, the petitioner’s habeas trial in the
CV-05 action ‘‘was first scheduled to begin in February
2010. At the request of the petitioner, trial was post-
poned to . . . August, 2010. For unknown reasons, the
trial was again rescheduled to . . . October 4, 2011.
The petitioner again requested a postponement and the
case was reassigned a ‘hard’ and firm trial start date of
October 23, 2012, [with] Judge Pavia presiding.
‘‘However, the day before trial was to begin, the peti-
tioner executed a withdrawal of the habeas action on
October 22, 2012. The petitioner signed the withdrawal
form as [did] counsel. Despite the withdrawal filing,
Judge Pavia required the petitioner and counsel to
appear before her on October 23, 2012. Judge Pavia
and [the] respondent’s counsel both expressed their
readiness to proceed with the habeas trial, but [the]
petitioner’s counsel reiterated the petitioner’s desire to
withdraw the case.
‘‘Judge Pavia canvassed the petitioner on the record
regarding his decision to withdraw the case and relin-
quish his opportunity to prove his allegations against
previous habeas counsel. The judge recounted the
lengthy procedural history and the fact that the trial
had been postponed multiple times. Judge Pavia warned
the petitioner that attempts to refile would be met with
opposition by the respondent [Commissioner of Correc-
tion] and that such refiling might be dismissed sum-
marily because of the withdrawal.
‘‘The judge ascertained that the petitioner’s decision
to terminate the litigation was made after consultation
with counsel and without coercion of any sort and was
a product of the petitioner’s free will. The petitioner
acknowledged the judge’s admonitions but still wished
to withdraw his case.’’
Judge Pavia deemed the withdrawal to be with preju-
dice,3 stating: ‘‘For what it’s worth, I am going to just
put this on the record. I understand that there’s an issue
in terms of whether or not this is with prejudice or
without prejudice. And while there may not be any case
law that addresses the issue of prejudice in such a
matter, I do want to place some things on the record
for the next judge if in fact this issue ever is
addressed again.
‘‘As indicated, we are here today for the first day of
trial. This trial date was set many months ago. We were
accommodating a request, a special request, which
came in from Rockville to accommodate the [petitioner]
because he had some serious health concerns and we
wanted to be able to accommodate his needs so that
he was able to attend the trial in the best manner that
he possibly could. And so this court agreed to take
the case.
‘‘The case is not necessarily a short habeas petition
and did need at least a week to two weeks of trial time,
as I was told from counsel. And on several occasions,
we cleared our matters here in this court where we
only have a single trial judge to be able to accommodate
the petitioner’s matter. In addition, we had addressed
the idea of depositions taking place before the trial
began, specifically the deposition of Attorney [Frank]
Riccio, who is one of the main [witnesses with respect
to the] claims of ineffectiveness in terms of the petition-
er’s habeas petition. That deposition was scheduled and
rescheduled on several occasions.
‘‘I know that the state is—or the respondent is indicat-
ing that they’re not going to ponder as to why the deposi-
tion did not go forward, but I think it’s worth noting
for the record that it was not the respondent who was
not available. It was also not the deponent who was
not available, but for one reason or another, the matter
was called off. So it was not the respondent calling it
off, it was not the deponent calling it off. And I think
that matter will probably become more developed as
time goes on.
‘‘This court has not only set aside the time in terms
of trial, but the clerk gave up her time by way of setting
afternoons, and even met with the attorneys and
marked all the exhibits for this matter so that we’d be
ready to go in an effective way today. The . . . respon-
dent is ready to begin, and has, according to . . . much
discussion in chambers, been actively pursuing their
readiness for this trial for some time and are prepared
to go forward today. The court is ready to go for-
ward today.
‘‘I note the withdrawal of the action after a full can-
vass of the matter and the ramifications of that canvass.
And to the extent that this matter can be deemed to
be with prejudice, it would be this court’s opinion that
it should be.’’
On November 14, 2012, that is, less than one month
after he withdrew the CV-05 action before Judge Pavia,
the petitioner filed the present habeas action.4 In his
fifth amended petition dated March 26, 2015,5 the peti-
tioner alleged in eighteen counts that his prior habeas
attorneys in both the Noel and Palmieri cases rendered
ineffective assistance of counsel. More specifically, the
petitioner alleges, inter alia, that the petitioner’s prior
habeas counsel in the Noel case, Attorney Raymond
Rigat, did not adequately challenge the effectiveness
of the petitioner’s appellate counsel, Attorney Timothy
Pothin, and his trial counsel, Attorney Riccio; and that
the petitioner’s prior habeas counsel in the Palmieri
case, Attorney Thomas Conroy, failed to adequately
challenge the effectiveness of the petitioner’s trial coun-
sel in that case, Attorney Riccio. In his return,6 the
respondent pleaded the special defenses of procedural
default, deliberate bypass, res judicata,7 and laches.8
The habeas court, Sferrazza, J., was scheduled to
begin trial on the petitioner’s claims on May 4, 2015.
That day, however, prior to hearing evidence, Attorney
Fox stated that the parties were in agreement that ‘‘it
would be simpler for [the court] to . . . decide
whether [it] would want to rule on [the special defense]
issues . . . if [the respondent] prevails, the trial is not
going forward, so it would make sense to deal with
them now. ‘‘ Judge Sferrazza agreed, and the parties
presented evidence, which included the testimony of
the petitioner, on the limited issues posed by the respon-
dent’s special defenses. Later that day, Judge Sferrazza
orally ruled that the petitioner’s action was dismissed.
In his written memorandum of decision dated May
7, 2015, Judge Sferrazza made the following findings:
‘‘[T]he petitioner testified that his decision to withdraw
the case and his responses to Judge Pavia were clouded
by the effects of illness and/or medication. The court
finds this testimony unworthy of belief. He signed the
withdrawal form on October 22, 2012, after discussions
with counsel. His replies to Judge Pavia the next day
were cogent and belie his assertion of diminished com-
prehension.
‘‘His counsel, on October 23, 2012, revealed that the
reason for the withdrawal was predicated on counsel’s
inability to arrange to depose Attorney Riccio, who was
seriously ill around that date. Habeas counsel feared
that Attorney Riccio might be unable to testify as to
his version of events at the habeas trial because of his
deteriorating health. He died a few months later in 2013.
‘‘Habeas counsel’s explanation for withdrawal on the
eve of trial was due to a lack of confidence in proving
the habeas on a habeas case if the trial proceeded.
Attorney Wallace remarked, ‘The fact that [Attorney
Riccio] is our main witness, that that—without his testi-
mony, this trial would go nowhere’ . . . .
‘‘It must be noted that the petitioner chose to termi-
nate the case rather than request additional time to
secure whatever useful information Attorney Riccio
might possess. Recall that Attorney Riccio had testified
at the earlier habeas trials . . . . Presumably, he was
available for discussion with new habeas counsel during
the seven year period between January, 2005, when
the previous habeas on a habeas case was filed, and
October, 2012. . . . As mentioned above, the habeas
trial was twice postponed at the petitioner’s behest.’’
(Citation omitted; emphasis in original.)
Ultimately, Judge Sferrazza concluded that ‘‘Judge
Pavia’s canvass made abundantly clear that [the peti-
tioner’s] decision to terminate his case was, indeed, his
decision, made knowingly and without force or pres-
sure. A petitioner ought not be permitted to withdraw
a habeas case at the moment of trial simply based on
fear of failure if the trial were to proceed, without incur-
ring the consequence of finality.’’ (Emphasis in origi-
nal.) He then concluded that the deliberate bypass
doctrine applied and dismissed the petition due to a lack
of subject matter jurisdiction. This appeal followed.
We begin by setting forth the applicable standard of
review. ‘‘The conclusions reached by the trial court in
its decision to dismiss [a] habeas petition are matters
of law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . .’’ (Internal quo-
tation marks omitted.) Diaz v. Commissioner of Cor-
rection, 157 Conn. App. 701, 704, 117 A.3d 1003, cert.
granted in part, 318 Conn. 903, 122 A.3d 632 (2015).
I
The petitioner first claims on appeal that, in determin-
ing that the prior habeas action was withdrawn with
prejudice, Judge Sferrazza improperly gave preclusive
effect to the prior ruling of Judge Pavia in the CV-
05 action, which the petitioner claims was improper
because no hearing on the merits had commenced pur-
suant to General Statutes § 52-80 as interpreted by Ken-
dall v. Commissioner of Correction, 162 Conn. App.
23, 130 A.3d 268 (2015). In response, the respondent
contends that the previous ruling in the CV-05 action
was permissible because Kendall is distinguishable
from the present case, and ‘‘any mechanical application
of § 52-80 to permit the petitioner to deliberately forgo
pursuit of his known claims, only to reassert them years
later when all of the available evidence is more stale
and some of the most critical evidence . . . is now
forever unavailable, would completely ignore the con-
cerns for finality reflected in our habeas jurisprudence,
be irreconcilable with the policies behind our habeas
rules of procedural default, and completely turn on
their head the equitable principles that serve as the
foundation for habeas corpus relief.’’ We conclude that
Judge Sferrazza did not impermissibly rely on Judge
Pavia’s prior ruling but, rather, made his own indepen-
dent ruling, and, on the merits, we agree with the
respondent.
As an initial matter, we address the faulty premise
upon which the petitioner’s first claim rests, i.e., that
Judge Sferrazza’s dismissal was predicated solely on
Judge Pavia’s prior ruling. Having thoroughly reviewed
Judge Sferrazza’s memorandum of decision, we con-
strue his ruling to be an independent determination that
the petitioner’s conduct in the previous CV-05 proceed-
ing constituted a withdrawal with prejudice. More spe-
cifically, we conclude that although Judge Sferrazza
relied upon the factual findings of Judge Pavia with
respect to the CV-05 action, he did not treat Judge
Pavia’s legal conclusions as res judicata9 on the issue
of whether the petitioner’s withdrawal should be
deemed to be with prejudice.
We, therefore, turn to whether Judge Sferrazza cor-
rectly determined that this habeas action could not be
maintained in light of the petitioner’s conduct in the
prior proceeding. We conclude that Judge Sferrazza
properly determined that the petitioner could not main-
tain the present action because his withdrawal of the
CV-05 action should, under the circumstances, be
deemed to be with prejudice.
Section 52-80 provides in relevant part: ‘‘The plaintiff
may withdraw any action . . . before the commence-
ment of a hearing on the merits thereof. After the com-
mencement 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 . . . .’ ’’ Mozell v. Commis-
sioner of Correction, 147 Conn. App. 748, 756, 83 A.3d
1174, cert. denied, 311 Conn. 928, 86 A.3d 1057 (2014).
‘‘The disposition of withdrawal with prejudice exists
within Connecticut jurisprudence. . . . Indeed, the
disposition of withdrawal with prejudice is a logically
compelling disposition in some circumstances. A plain-
tiff is generally empowered, though not without limita-
tion, to withdraw a complaint before commencement
of a hearing on the merits. . . . A plaintiff is not enti-
tled to withdraw a complaint without consequence at
such hearing.’’ (Citations omitted.) Id., 757. ‘‘The deci-
sion by a habeas court to condition a withdrawal of a
habeas petition on that withdrawal being ‘with preju-
dice’ is, when authorized, a decision left to that court’s
discretion.’’ Kendall v. Commissioner of Correction,
supra, 162 Conn. App. 28, citing Mozell v. Commis-
sioner of Correction, supra, 759–60.
As previously mentioned, the petitioner cites to Ken-
dall v. Commissioner of Correction, supra, 162 Conn.
App. 23, as support for his argument that the withdrawal
of the CV-05 action cannot properly be labelled ‘‘with
prejudice’’ because a hearing on the merits had not yet
commenced at the time he requested it. In Kendall,
which was decided several months after Judge Sfer-
razza dismissed the petition in the present case, the
petitioner wished to withdraw his habeas petition with-
out prejudice after the court had taken the bench for
his scheduled habeas trial but before any evidence or
arguments concerning the merits of the case had been
presented. Id., 26–27. The habeas court would not per-
mit him to do so on the ground that his ‘‘habeas hearing
[had] commenced for purposes of [General Statutes]
§ 52-80 when the court took the bench to hear evidence
on the date and time assigned.’’ (Internal quotation
marks omitted.) Id., 28. On appeal, we reversed the
judgment of the habeas court, concluding that ‘‘no hear-
ing on the merits can be said to have commenced within
the meaning of the statute at the time the petitioner
stated that he wished to withdraw his petition and the
court ruled that it would allow a withdrawal only with
prejudice.’’10 Id., 48, 51.
Significantly, however, the court in Kendall 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: ‘‘ ‘[A]
plaintiff is generally empowered, though not without
limitation, to withdraw a complaint before commence-
ment of a hearing on the merits . . . .’ ’’ (Emphasis
added.) Id., 29, quoting Mozell v. Commissioner of Cor-
rection, supra, 147 Conn. App. 757. Moreover, this court,
in Kendall, was careful to make clear that the only
question it was asked to resolve in that case was
whether a hearing on the merits had commenced for
purposes of applying § 52-80. Kendall v. Commissioner
of Correction, supra, 162 Conn. App. 29 (‘‘[n]either party
disputes that § 52-80 applies to habeas actions or that,
under the appropriate circumstances, a habeas court
can order that a withdrawal of a habeas petition be
with prejudice; rather, the primary point of contention
concerns whether the habeas court properly deter-
mined that the petitioner could not withdraw his peti-
tion without prejudice because a hearing on the merits
had commenced’’). Accordingly, as neither party here
disputes that a hearing on the merits had not yet com-
menced at the time the petitioner requested a with-
drawal of his CV-05 action, Kendall does not resolve
the question before this court.
One year after Kendall was decided, this court
decided Palumbo v. Barbadimos, 163 Conn. App. 100,
134 A.3d 696 (2016).11 Palumbo stands for the principle
that although the party initiating an action generally
enjoys a right to withdraw litigation unilaterally prior
to a hearing on the merits, a later filing of an identical
case by that party can be deemed an abuse of that
right if it constitutes ‘‘procedural chicanery,’’ that is, it
‘‘offends the orderly and due administration of justice’’
and is intended ‘‘to avoid the consequences of [his or]
her [previous] waiver.’’ Id., 103–104. The defendant in
Palumbo sought to have a civil action restored to the
docket, because the plaintiff had previously withdrawn
that original action and filed a second, identical action
to avoid a bench trial that was the consequence of the
plaintiff having missed the deadline for claiming the
action to the jury trial list. Id., 102. We agreed with the
defendant that his motion to restore the original action
to the docket should have been granted, holding that
‘‘the broad authority granted to a [party] pursuant to
§ 52-80 to unilaterally withdraw an action prior to a
hearing on the merits does not automatically extend
to [that party] the additional right to commence an
essentially identical action following that withdrawal if
the primary purpose for doing so is to undermine an
order of the court rendered in the prior litigation . . . .’’
Id., 115.
We recognize that, in the present case, the conse-
quence of the petitioner’s withdrawal of his previous
CV-05 action is that he is now precluded from raising
the CV-05 habeas claims entirely, a harsher result than
that occasioned in Palumbo. In the present case, how-
ever, the petitioner’s waiver of his right to go forward
with the habeas trial in the CV-05 case was made
expressly and on the record before Judge Pavia, as
opposed to in Palumbo, where the plaintiff’s waiver of
his right to a jury trial was done by operation of statute
once he missed the deadline for claiming the action to
a jury trial list. See General Statutes § 51-239b. As Judge
Sferrazza highlighted in his memorandum of decision,
the petitioner here ‘‘participated personally in the deci-
sion to withdraw the previous habeas matter the day
before trial was to begin. He signed the form on October
22, 2012, after consultation with his lawyer. Judge Pav-
ia’s canvass made abundantly clear that his decision
to terminate his case was, indeed, his decision, made
knowingly and without force or pressure.’’ (Emphasis
in original.) To the extent that the petitioner believed
it was improper for Judge Pavia to canvass him and
to enter the withdrawal with prejudice, he could have
appealed her decision,12 rather than file a second, identi-
cal habeas petition.
Additionally, in relying on Judge Pavia’s prior findings
and the record in that proceeding,13 Judge Sferrazza
found that ‘‘[h]abeas counsel’s explanation for with-
drawal [of the CV-05 action] on the eve of trial was due
to a lack of confidence in proving the habeas on a
habeas case if the trial proceeded. Attorney Wallace
remarked, ‘The fact that [Attorney Riccio] is our main
witness, that that—without his testimony, this trial
would go nowhere.’ ’’ (Emphasis in original.) Judge Sfer-
razza also stated that Attorney Riccio presumably was
‘‘available for discussion with new habeas counsel dur-
ing the seven year period between January, 2005, when
the [CV-05] habeas on a habeas case was filed, and
October, 2012 [when the withdrawal of that action
occurred],’’ and that ‘‘[a]ny lack of preparedness was
attributable to the petitioner rather than the respondent
or the court.’’ Judge Sferrazza did not find that the
petitioner’s previous withdrawal was due to the peti-
tioner’s own health problems, and he found that the
petitioner lacked credibility when he testified before
the court.14
Ultimately, Judge Sferrazza considered the proce-
dural posture of this case to implicate the doctrine of
deliberate bypass,15 noting that the petitioner chose to
terminate the CV-05 case rather than request additional
time to secure whatever useful information Attorney
Riccio could have provided as evidence. The argument
could also be made that the court’s disposition falls
more neatly under other doctrines such as waiver or
abuse of the writ.16 Regardless of the label, the effect is
the same. Judge Sferrazza’s independent determination
that the petitioner’s conduct in the previous CV-05 pro-
ceeding constituted a withdrawal with prejudice was
legally correct, despite the fact that a hearing on the
merits had not yet commenced, because the petitioner
engaged in ‘‘procedural chicanery’’ by filing the present
petition in an attempt to undermine the order of the
court in the CV-05 action. As previously discussed, we
have considered such gamesmanship to be a limitation
on the general rule that a party has a right to withdraw
litigation unilaterally prior to a hearing on the merits.
See Palumbo v. Barbadimos, supra, 163 Conn. App.
103–104.
II
The petitioner next claims on appeal that Judge Sfer-
razza improperly applied the doctrine of deliberate
bypass.17 Although the basis of Judge Sferrazza’s reli-
ance upon the deliberate bypass doctrine is less than
clear, we conclude that it is unnecessary to reach the
respondent’s second claim because of our prior conclu-
sion that the petitioner’s withdrawal of his CV-05 peti-
tion was with prejudice. Because we conclude that the
withdrawal was with prejudice, the petitioner is barred
from raising identical claims in the present petition.
See Mozell v. Commissioner of Correction, supra, 147
Conn. App. 756. Accordingly, it would serve no practical
purpose to analyze whether Judge Sferrazza’s reliance
on the deliberate bypass doctrine was appropriate
under the circumstances of this case.
Finally, we note that Judge Sferrazza’s determination
that the prior action should be deemed to be withdrawn
with prejudice does not implicate the subject matter
jurisdiction of the court over this petition. Accordingly,
he should have denied, rather than dismissed, the peti-
tion, and the form of the judgment is thus improper.
The form of the judgment is improper; the judgment
dismissing the petition for habeas corpus is reversed,
and the case is remanded with direction to render judg-
ment denying the petition for a writ of habeas corpus.
In this opinion the other judges concurred.
1
The habeas court subsequently granted certification to appeal from
the judgment.
2
We note that the petitioner also has filed several other habeas petitions.
Specifically, he filed an application for a writ of habeas corpus in federal
district court pursuant to 28 U.S.C. § 2254, raising the following claims with
regard to his trial in the Palmieri case: ‘‘(1) during the initial closing argument
and the rebuttal argument, the State improperly commented on his failure
to testify; (2) the trial court violated his right to a fair trial by giving misleading
examples of reasonable doubt during the jury instructions; (3) the trial court
improperly charged the jury that it could convict him as an accessory to
murder; (4) insufficient evidence was produced at his probable cause hearing
to establish that the victim was dead; (5) the trial court improperly admitted
testimony regarding lost evidence; (6) the trial court improperly admitted
irrelevant physical evidence; (7) the trial court improperly bolstered the
testimony of his accomplices during the jury instructions; (8) the trial court
constructively amended the charges against him; (9) the trial court improp-
erly marshalled the evidence in favor of the State during the jury instructions;
(10) his trial counsel barred him from testifying in his defense; (11) his
appellate counsel failed to raise a cognizable issue on appeal; and (12) the
State failed to disclose Brady materials.’’ Marra v. Acosta, United States
District Court, Docket No. 3:01CV0368 (AWT) (D. Conn. November 7, 2008).
The federal district court denied that petition. Id.
On October 18, 2007, the petitioner filed a pro se petition for a writ of
habeas corpus in the Superior Court in Rockville under docket number CV-
07-4002041-S, and the habeas court, Schuman, J., declined to issue the writ
pursuant to Practice Book § 23-24. Likewise, on May 14, 2015, the petitioner
filed yet another petition for a writ of habeas corpus in Rockville under
docket number CV-15-4007255-S, which alleged claims of ineffective assis-
tance of habeas counsel in both the Noel and Palmieri cases. The habeas
court, Bright, J., dismissed that petition. That dismissal was recently
affirmed on appeal by this court, and certification was denied by our Supreme
Court. See Marra v. Commissioner of Correction, 170 Conn. App. 908, 154
A.3d 1123, cert. denied, 325 Conn. 906, 156 A.3d 536 (2017).
The petitioner additionally has two separate habeas actions that are cur-
rently pending before the trial court; however, the record in this case does
not disclose the particular claims in those actions. See Rockville docket
numbers CV-15-4007234-S, filed on May 27, 2015, and CV-15-4007353-S, filed
on July 13, 2015.
3
To the extent that Judge Pavia’s order on the record may be ambiguous
as to whether the withdrawal was made with or without prejudice, the
written notice of the order, issued to all parties of record on October 26, 2012,
makes clear that the matter was deemed to be withdrawn with prejudice.
Moreover, neither party disputes that the withdrawal was deemed to be
with prejudice.
4
This case, in which the petitioner was represented by Attorney Kenneth
Fox, eventually was consolidated with another of the petitioner’s habeas
actions in Rockville, docket number CV-13-4005039-S, in which the petitioner
was represented by Attorney Adam Wallace. Accordingly, the petitioner was
represented by two attorneys in this habeas action.
5
At the hearing before the habeas court on May 4, 2015, the respondent
stated that ‘‘the . . . factual allegations [in the fifth amended petition] are
identical to the CV-05 case that [the petitioner] withdrew intentionally in
2012 and then refiled [in] this action.’’ The petitioner later stated that ‘‘the
allegations are the same in the sense that the allegations are about whether
Attorney Riccio had originally done adequately discovery himself, but [there]
are new items [that differ from the withdrawn petition that] we feel he
could have discovered if he had done it adequately himself.’’
6
‘‘Practice Book § 23-30 (b) provides, in relevant part, that the respon-
dent’s return shall allege any facts in support of any claim of procedural
default, abuse of the writ, or any other claim that the petitioner is not
entitled to relief. . . . [T]he doctrine of deliberate bypass historically has
arisen in the context of habeas petitions involving claims procedurally
defaulted at trial and on appeal.’’ (Internal quotation marks omitted.) Diaz
v. Commissioner of Correction, 157 Conn. App. 701, 706, 117 A.3d 1003,
cert. granted, 318 Conn. 903, 122 A.3d 632 (2015). Because the respondent
pleaded procedural default and deliberate bypass as part of its special
defenses, it satisfied the requirement of § 23-30 (b).
7
More specifically, the respondent pleaded that count twelve is barred
by the doctrine of res judicata.
8
More specifically, the respondent pleaded that counts sixteen and seven-
teen are barred by the doctrine of laches.
9
‘‘The doctrine of res judicata provides that a former judgment serves as
an absolute bar to a subsequent action involving 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 proceedings.’’ (Internal quotation marks omitted.)
Oliphant v. Commissioner of Correction, 161 Conn. App. 253, 265, 127 A.3d
1001, cert. denied, 320 Conn. 910, 128 A.3d 953 (2015).
10
More specifically, this court concluded that ‘‘[h]abeas counsel had
alerted the habeas court prior to the court’s taking the bench that the
petitioner wished to address the court. After addressing both the petitioner
and habeas counsel, the court denied the petitioner’s oral motion to appoint
new counsel and indicated that the case would proceed that day. Immediately
following this denial and prior to the court calling for the testimony of the
first witness or the petitioner’s taking the witness stand, however, habeas
counsel, after conferring with the petitioner, indicated that his client wished
to withdraw his petition. No evidence had been taken, and neither party
had presented any arguments concerning the merits of the case before the
court ruled that the petitioner could not withdraw his petition without
prejudice.’’ (Footnotes omitted.) Kendall v. Commissioner of Correction,
supra, 162 Conn. App. 48.
11
In Palumbo, we cited to Kendall, inter alia, as support for the following
assertion: ‘‘The broad language used by this court to describe a plaintiff’s
right to withdraw an action must be read in conjunction with other cases
that make clear that the right of withdrawal may be trumped in certain
circumstances by another party’s right to restore the case to the docket.’’
Palumbo v. Barbadimos, supra, 163 Conn. App. 112.
12
We have previously held that an appeal of a withdrawal with prejudice
is ripe for review because it ‘‘does not constitute a hypothetical injury
contingent on a future event. The court’s decision [constitutes] a final adjudi-
cation ending this matter and [concludes] the petitioner’s rights with respect
to [the] case.’’ (Footnote omitted.) Mozell v. Commissioner of Correction,
supra, 147 Conn. App. 756.
13
At the previous CV-05 proceeding, Judge Pavia found that the trial date
in that matter had been set many months in advance and that the issue of
taking Attorney Riccio’s deposition before the start of trial, due to his failing
health, had been previously addressed by the parties and the court. Judge
Pavia found that ‘‘[t]hat deposition was scheduled and rescheduled on sev-
eral occasions. I know that the . . . respondent is indicating that they’re
not going to ponder as to why the deposition did not go forward, but I think
it’s worth noting for the record that it was not the respondent who was not
available. It was also not the deponent who was not available, but for one
reason or another, the matter was called off.’’ As previously mentioned, Judge
Pavia’s factual findings were never challenged by the petitioner. Accordingly,
Judge Sferrazza was free to rely upon them in determining whether to
dismiss the present petition.
14
In his memorandum of decision, Judge Sferrazza stated: ‘‘Before this
court, the petitioner testified that his decision to withdraw the case and
his responses to Judge Pavia was clouded by the effects of illness and/or
medication. The court finds this testimony unworthy of belief.’’
15
Our appellate courts historically ‘‘employed the deliberate bypass rule,
as articulated in Fay v. Noia [372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837
(1963)], in order to determine the reviewability of constitutional claims in
habeas corpus proceedings that had not been properly raised at trial or
pursued on direct appeal. . . . In Fay v. Noia, supra, [372 U.S. 438–39], the
United States Supreme Court held that habeas corpus jurisdiction was not
affected by the procedural default, specifically a failure to appeal, of a
petitioner during state court proceedings resulting in his conviction. The
court recognized, however, a limited discretion in the federal habeas judge
to deny relief to an applicant who has deliberately by-passed the orderly
procedure of the state courts and in so doing has forfeited his state court
remedies. . . . This deliberate bypass standard for waiver required an inten-
tional relinquishment or abandonment of a known right or privilege by the
petitioner personally and depended on his considered choice. . . . A choice
made by counsel not participated in by the petitioner does not automatically
bar relief.’’ (Citation omitted; internal quotation marks omitted.) Jackson
v. Commissioner of Correction, 227 Conn. 124, 130–31, 629 A.2d 413 (1993).
‘‘The deliberate bypass rule serves two important functions: (1) it encourages
a litigant to have all constitutional claims resolved in a single proceeding
economizing the time and resources of all concerned parties and bringing
the case to a conclusion; and (2) it prevents a prisoner from deliberately
deferring his claims of unlawful confinement until a time when a new trial,
if required as a result of the collateral proceeding, would be, for all practical
purposes, impossible.’’ (Internal quotation marks omitted.) State v. Rivera,
196 Conn. 567, 571, 494 A.2d 570 (1985).
We acknowledge that our Supreme Court later concluded that the Wain-
wright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), cause
and prejudice standard should be employed to determine the reviewability
of habeas claims that were not properly pursued at trial or on direct appeal.
See Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d
413 (1993); Johnson v. Commissioner of Correction, 218 Conn. 403, 409,
589 A.2d 1214 (1991). The majority in Jackson made clear, however, that
‘‘[i]n those rare instances in which a deliberate bypass is found, of course,
habeas review would be barred for that reason alone, apart from the cause
and prejudice standard.’’ (Internal quotation marks omitted.) Jackson v.
Commissioner of Correction, supra, 132.
16
‘‘[T]he ability to bring a habeas corpus petition at any time is limited
by the traditional doctrine of abuse of the writ based upon unnecessary
successive petitions.’’ Summerville v. Warden, 229 Conn. 397, 428 n.15, 641
A.2d 1356 (1994).
17
As previously discussed in part I of this opinion, we need not decide
whether Judge Sferrazza’s basis for dismissing the petition more properly
implicates the doctrine of deliberate bypass, waiver, or abuse of the writ,
as application of any of those doctrines results in the same outcome here.