Opinion
No. TSR CV06-4001151
May 24, 2011
Memorandum of Decision
The petitioner in this habeas corpus case was convicted of capital felony and attempted murder in 1985 — some twenty-six years ago. The Supreme Court affirmed his conviction in 1988. State v. Gonzalez, 206 Conn. 213, 537 A.2d 460 (1988). In 1992, the petitioner filed his first habeas petition. The court, Zarella, J., denied the petition, the Appellate Court dismissed the appeal, and the Supreme Court denied certification. Gonzalez v. Warden, 58 Conn.App. 371, 752 A.2d 85, cert. denied, 254 Conn. 921, 759 A.2d 1024 (2000). In 2000, the petitioner filed a second petition. The court, DeMayo, J.T.R., granted the respondent's motion to dismiss. There is no reported appeal.
The petitioner has now filed a third habeas corpus petition. The court held a hearing at which the petitioner appeared pro se. Although he had detailed some four claims in his pro se petition, the petitioner expressed an interest in pursuing only the claim that his criminal trial was unfair because one of the jurors did not speak English.
The petitioner also mentioned that he did not have an interpreter at trial. This claim was not alleged, however, and so the court does not consider it further.
The respondent alleges in its return that the petitioner raised this same claim in his 2000 petition. At the hearing on the present petition, the petitioner acknowledged having done so. A review of the pleadings from the 2000 case (which are now court exhibits) confirms that the petitioner did, in fact, raise this claim in count two of an amended petition filed by counsel on petitioner's behalf in 2003. The respondent then filed a motion to dismiss on the ground that the petition presented the same grounds as the 1992 petition. The petitioner submitted a supplemental response arguing that the issue of a non-English speaking juror was not raised in the 1992 petition. On June 14, 2005, Judge DeMayo granted the motion with the following margin endorsement: "The alleged `new grounds' could have been included in the prior habeas as it was available then." The petitioner filed a pro se motion that sought to open the judgment and grant a new trial, but Judge DeMayo denied the motion on September 21, 2005.
Judge DeMayo's ruling, while not elaborate, was entirely correct. The use of a subsequent habeas petition to allege a claim that could have been raised in a previous petition represents a form of procedural default. See Henderson v. Commissioner of Correction, 104 Conn.App. 557, 570, 935 A.2d 162, cert. denied, 285 Conn. 911, 943 A.2d 470 (2007). Alternatively, the filing of a successive petition to raise a claim that could have been raised in a prior petition constitutes an abuse of the writ. See Dickinson v. Mullaney, 92 Conn.App. 689, 694 n. 5, 887 A.2d 390 (2005), reversed on other grounds, 284 Conn. 673, 937 A.2d 667 (2007) ("Indeed, the ability to bring a habeas corpus petition at any time is limited by the equitable doctrine of abuse of the writ based on unnecessary successive petitions. See Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994)") (internal quotation marks omitted).
In any event, in the absence of an appeal, Judge DeMayo's ruling represents a final denial of his claim involving the jury. Because the petitioner has not offered any new facts or evidence to support his claim, his petition is subject to dismissal as a successive petition under Practice Book § 23-29(3). This section provides for dismissal by the court "upon its own motion or upon motion of the respondent" if the court determines that: "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 . . ." See also Thorpe v. Commissioner of Correction, 73 Conn.App. 773, 778-79 n. 9, 809 A.2d 1126 (2009) (res judicata in habeas cases applies to claims that "actually have been raised and litigated in an earlier proceeding").
The petition is dismissed. Judgment shall enter for the respondent. It is so ordered.