Opinion
No. CV07-4001571 S
October 27, 2008
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS
Respondent's motion to dismiss requests, pursuant to Practice Book §§ 23-29(2), (3) and (5), that this court dismiss the petition for a writ of habeas corpus in its entirety. The respondent asserts the petitioner is abusing the writ of habeas corpus and that he has failed to reply to the respondent's affirmative defenses. The petitioner's objection to the motion to dismiss denies that he is abusing the writ. Furthermore, the petitioner filed a reply responsive to the affirmative defenses the day preceding the October 21st, 2008 hearing on the instant motion, thereby rendering moot a basis asserted for dismissal. For the reasons articulated below, the motion to dismiss is denied.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "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 citations and 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). Nevertheless, the petitioner ". . . bears the burden of proving that the court has subject matter jurisdiction." Id.
Practice Book § 23-29 provides in relevant part that: "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 proffer new evidence not reasonably available at the time of the prior petition; . . . (5) any other legally sufficient ground for dismissal of the petition exists."
The procedural history of this matter needs to be summarized to address the assertion that the petitioner is abusing the writ of habeas corpus. In 1996, the petitioner was convicted by a jury of Robbery in the First Degree, Conspiracy to Commit Robbery in the First Degree and Robbery in the Third Degree. The petitioner was sentenced to a total effective sentence of twenty-five years to serve on these convictions. The petitioner's convictions were affirmed in State v. Banks, 58 Conn.App. 603, 755 A.2d 279, cert. denied, cert. denied, 254 Conn. 923, 761 A.2d 755 (2000); the state's appeal from the same criminal matter was affirmed in State v. Banks, 59 Conn.App. 145, 763 A.2d 1046 (2000).
In 1998, the petitioner filed petition for a writ of habeas corpus in the judicial district of New Haven, where it was assigned docket number CV98-0416695 (New Haven petition). At some point attorney Michael D'Onofrio was appointed as a special public defender to represent the petitioner in the New Haven petition. Attorney D'Onofrio filed an amended petition dated November 4, 2002. The amended New Haven petition raised a claim of ineffective assistance by trial defense counsel, attorney Margaret P. Levy. The petitioner alleged that attorney Levy failed to conduct a sufficient investigation, failed to locate witnesses who were available to testify, and failed to obtain statements from seven individuals and call them as witnesses to provide exculpatory testimony at the criminal trial. On January 10, 2005, prior to trial, the petitioner withdrew the New Haven petition.
On February 8, 2007, the petitioner initiated the instant matter by way of a pro se petition submitted by attorney D'Onofrio. The pro se petition indicated that the petitioner had previously filed a petition in New Haven, listed the docket number of the New Haven petition, and that the prior petition had been withdrawn. Because the petitioner requested the appointment of an attorney, the matter was referred to the Office of the Chief Public Defender (OCPD) for an indigency investigation and appointment of counsel. On March 15, 2007, the Habeas Corpus Unit, OCPD, filed a motion to appoint attorney D'Onofrio as a special public defender, which was granted on March 26, 2007. Attorney D'Onofrio had, however, already filed an appearance in this matter on March 20, 2007.
Attorney D'Onofrio first amended the petition on April 10, 2008 and, in response to the respondent's request for more specific statements, amended the petition again on July 30, 2008. The second amended petition raises a claim of ineffective assistance by attorney Levy premised on alleged failures to investigate, locate witnesses to testify, obtain statements, call witnesses at trial, object to the court's supplemental jury instruction regarding items seized from the petitioner's mother's home, and properly examine and cross examine the detective who prepared the police report. The second amended petition also avers that the petitioner did not raise these claims in the trial court, on appeal or in any prior habeas petitions.
The respondent thereafter filed a return denying, inter alia, that the petitioner had not raised these claims in a prior habeas corpus petition. The return also raised several affirmative defenses: that the claims raised were barred by the doctrine of res judicata; the petition was successive and an abuse of the writ; and that the petition states claims for which habeas corpus relief cannot be granted. The petitioner's reply denies all three affirmative defenses and asserts that the claims in the second amended petition have not been litigated in any prior proceeding. The reply also asserts that the petitioner's allegations, if proven, would entitle him to habeas corpus relief.
The motion to dismiss relies on Practice Book §§ 23-29(2), (3) and (5). The respondent argues that the petition should be dismissed because the petitioner is abusing the writ, as he previously withdrew a petition that raised the same general claims. The time delay between the withdrawal of the New Haven petition in January of 2005 and the filing of the instant petition in February of 2007, according to the respondent, has prejudiced the respondent. The motion to dismiss also avers that it would be appropriate to dismiss the petition because the petitioner had failed to reply to the affirmative defenses raised in the return. The petitioner's filing of the reply, however, both cures any default for failure to plead and negates the argument that it would be appropriate to dismiss the petition for the failure to file a reply. Thus, the only basis remaining is that the petitioner has abused the writ of habeas corpus.
"Habeas corpus proceedings are civil in nature; Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970)[.]" Lorthe v. Commissioner of Correction, 103 Conn.App. 662, 687 n. 21, 931 A.2d 348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007). "It is well established that `[t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action . . . 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 . . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.' (Citations omitted; internal quotation marks omitted.) Jenkins v. Commissioner of Correction, 52 Conn.App. 385, 406, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999)." Sanders v. Commissioner of Correction, 83 Conn.App. 543, 547, 851 A.2d 313 (2004), cert. denied, 271 Conn. 914, 859 A.2d 569 (2004).
Although not cited to in the memorandum in support of the motion to dismiss, the respondent at the hearing several times referenced Negron v. Warden, 180 Conn. 153, 429 A.2d 841 (1980), in support of the argument that the petitioner is abusing the writ of habeas corpus. Negron does not, in this court's analysis, support the respondent's argument of abuse of the writ in this matter. To the contrary: Negron underscores why it is proper to not dismiss the petition.
In Negron, the Supreme Court addressed ". . . an appeal from the denial of a hearing . . . on a second application brought by the plaintiff for a writ of habeas corpus based on an alleged illegal imprisonment due to his fugitive from justice status arising out of a manslaughter conviction in New York state. The narrow issue presented by [the] appeal [was] whether a plaintiff [was] entitled to a hearing upon a second application for a writ of habeas corpus if this second application is based on a different ground from any asserted in the initial habeas corpus application although not based on new evidence or new facts that were not reasonably available to the plaintiff at the time of the hearing on the first application." Id., at 154-55.
The petitioner in Negron had ". . . made an application to the Superior Court for a writ of habeas corpus challenging his arrest on [an extradition] warrant. This initial habeas corpus action involved a number of claims . . . Some were made by the plaintiff pro se and others were contained in a supplemental application made by the attorney then representing the plaintiff. The court . . . considered these claims at a hearing on August 24, 1978, and in a lengthy and detailed memorandum of decision rendered October 19, 1978, denied the claims and dismissed the writ of habeas corpus. On November 8, 1978, following dismissal of the first habeas corpus action, the plaintiff obtained new counsel and filed another application. That application was summarily denied without a hearing on November 29, 1978, by the [very same] court [that had decided the first petition.] . . ." Id., at 156. Negron thus differs from the instant matter in one critical aspect: the petitioner in Negron had fully litigated his first petition and had the claims decided on their merits.
Based upon the foregoing, the court concludes that Negron does not support the respondent's contention that the instant petition should be dismissed. This conclusion is buttressed, furthermore, by the fact that the instant petitioner withdrew the New Haven petition prior to trial. General Statutes § 52-80 states in relevant part that: "The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof." The petitioner here withdrew the New Haven petition before the hearing on the merits commenced. A subsequently filed petition that in material ways differs from the New Haven petition, a petition not previously denied but withdrawn, cannot be dismissed per Practice Book § 23-29(3).
Lastly, the court notes that the respondent has in no way demonstrated actual prejudice from the time elapsed between the withdrawal of the New Haven petition and the litigation accompanying the instant matter. As with the defense of laches, the mere passage of time is not sufficient to show prejudice. See, e.g., Dickinson v. Mullaney, 92 Conn.App. 689, 695, 887 A.2d 390 (2005) (in light of trial and prosecuting attorneys and judge deceased and much of the trial record missing, respondent still had burden of demonstrating inexcusable delay), rev'd, 284 Conn. 673, 681, 937 A.2d 667 (2007) (judgment of the Appellate Court reversed on the ground that the record was inadequate for appellate review). The respondent additionally has not shown that the petitioner's conduct, here the withdrawal prior to a hearing on the merits, rises to the level of disentitling him from the relief he seeks. Negron v. Warden, supra, 180 Conn. 166 n. 6.
The court concludes, based upon the foregoing, that the petitioner has not abused the writ of habeas corpus. The motion to dismiss therefore is denied.
It is so ordered.