Opinion
CV144006234S
08-21-2017
John Kaminski #241124 v. Commissioner of Correction
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON PETITIONER'S WRIT OF MANDAMUS
William H. Bright, J.
The petitioner initiated the present matter by filing a pro se petition for a writ of habeas corpus. The petitioner was assigned counsel; however, the court, Fuger, J., subsequently permitted counsel to withdraw pursuant to Practice Book § 23-42 and ordered that substitute counsel would not be assigned. Thereafter, Judge Fuger denied the petitioner's motion for reconsideration. This court denied the petitioner's second motion for reconsideration, albeit on different grounds. The petitioner has represented himself in this matter since counsel was permitted to withdraw. On December 21, 2016, the petitioner filed an amended petition which he asserts raises a new claim.
On January 18, 2017, the petitioner filed a request for judicial investigation order and for the appointment of a special master to investigate his habeas claims. This court denied the requests and referred the petitioner to the Office of the Chief Public Defender (OCPD) to obtain information about that office's procedures for the approval of an investigator for a self-represented habeas petitioner. Then, on March 31, 2017, the petitioner filed a writ of mandamus in which he seeks, as a result of being self-represented, a court order that would compel the Department of Correction (DOC) to provide and assist him in conducting legal research because DOC's correctional facilities either lack law libraries or the available legal materials are outdated. The writ of mandamus asserts that if the court does not provide the petitioner with standby counsel to provide access to the courts, then the petitioner requests that the court order DOC to coordinate access to legal research software so that the petitioner can research federal and state law.
See Practice Book § 23-47 (Mandamus Order in a Pending Action).
On April 7, 2017, this court issued an order establishing a briefing schedule. The parties were also ordered to file briefs addressing whether the petitioner is entitled to standby counsel because he does not have access to a law library. Additionally, OCPD was requested to address the issues raised by the petitioner's writ of mandamus. The parties and OCPD filed their respective briefs and then appeared before the court on June 5, 2017, for a hearing.
DISCUSSION
It is well established that a writ of mandamus inherently focuses on discretion. " . . . Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy . . . Even satisfaction of this demanding [three-part] test does not, however, automatically compel issuance of the requested writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity . . ." AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 416-17, 853 A.2d 497 (2004).
The United States Supreme Court has held that inmates must have access to the courts so that they can seek legal redress. Bounds v. Smith, 430 U.S. 817, 824, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). The Bounds court, however, also " . . . noted that while adequate law libraries are one constitutionally acceptable method to assure meaningful access to the court, [its decisions do] not foreclose alternative means to achieve that goal." Id., 830-31. The court then identified different methods, which can " take many imaginative forms and may have a number of advantages over libraries alone." States have employed the following methods to provide meaningful access to the courts: " . . . professional or quasi-professional legal assistance to prisoners[; ] training of inmates as paralegal assistants to work under lawyers' supervision; the use of paraprofessionals and law students, either as volunteers or in formal clinical programs; the organization of volunteer attorneys through bar associations or other groups; the hiring of lawyers on a part-time consultant basis; and the use of full-time staff attorneys, working either in new prison legal assistance organizations or as part of public defender or legal services offices." Id., 831. Thus, the state, through the various state entities such as the judicial branch, OCPD and DOC, has wide discretion and latitude to establish the means by which inmates have meaningful access to the courts. Id., 833.
" Independent legal advisors can mediate or resolve administratively many prisoner complaints that would otherwise burden the courts, and can convince inmate that other grievances against the prison or the legal system are ill-founded, thereby facilitating rehabilitation by assuring the inmate that he has not been treated unfairly . . . [A] legal access program need not include any particular element . . . [and the Supreme Court] encourage[d] local experimentation. Any plan, however, must be evaluated as a whole to ascertain its compliance with constitutional standards." Id., 831-32.
Connecticut's methods include, but are not necessarily limited to: OCPD, which represents numerous indigent defendants, criminal appellants and habeas corpus petitioners; attorneys and law firms that contract with OCPD and represent as assigned counsel defendants, appellants and habeas corpus petitioners; DOC, which contracts with a law firm that then provides assistance under the Inmates Legal Aid Program (ILAP) to inmates who are not challenging their underlying criminal convictions; law schools such as those at Yale University and the University of Connecticut that have clinical programs and represent or assist inmates on a case-by-case basis; and last but not least, the state courts and court staff, who assist inmates in numerous ways that facilitate their meaningful access to the courts.
In State v. Fernandez, 254 Conn. 637, 658, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001), relying on Bounds v. Smith, supra, the Supreme Court announced what it described as " a bright line rule: a criminal defendant who knowingly and intelligently waives the right to counsel and who has been appointed standby counsel is not constitutionally entitled to access a law library. Rather, the appointment of standby counsel satisfies the state's obligation to provide the defendant with access to the courts . . . [T]he role of standby counsel is essentially to be present with the defendant in court and to supply the limited assistance provided for in Practice Book § 44-5, the provision governing the functioning of standby counsel . . . [S]tandby counsel does not . . . have any obligation to perform legal research for the defendant." See also Bounds v. Smith, supra, 97 U.S. 827.
Habeas petitioners, contrary to criminal defendants such as the one in Fernandez, do not have a constitutional right to counsel. See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555-57, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), and Morgan v. Commissioner of Correction, 87 Conn.App. 126, 132, 866 A.2d 649 (2005). Instead, the right to counsel in habeas corpus matters is provided for by statute and Practice Book rule. General Statutes § § 52-466 through 52-470, and 51-296; Practice Book § 23-26. The petitioner obtained assigned counsel pursuant to these provisions. However, both assigned counsel and the court concluded that there were no non-frivolous claims raised by the petitioner, as well as that there were no " other potential claims apparent in the case." See Practice Book § 23-41(b)(1). Assigned counsel was permitted to withdraw, leaving the petitioner to represent himself, potentially through a trial on the merits, in a matter where there has been a judicial determination that there are no non-frivolous claims.
Bounds and Fernandez require that inmates have meaningful access to the courts. In Connecticut, habeas corpus petitioners' statutory right to counsel meets or exceeds the constitutional requirement of meaningful access to the courts, and the court so finds. The petitioner, therefore, has not been deprived of meaningful access to the courts. Given that assigned counsel was permitted to withdraw because the judicial authority concluded that there were no non-frivolous claims to raise, the petitioner now must represent himself. Stated somewhat differently, the petitioner's assigned counsel was his meaningful access until such time as there was a judicial determination that the petitioner had no meritorious claims to pursue. Furthermore, the petitioner's filings with the court and participation in court proceedings since assigned counsel was permitted to withdraw demonstrate that he continues unabatedly to have meaningful access to the courts.
For the above reasons, the court specifically concludes that the petitioner does not have a right to standby counsel in this case. While a habeas court arguably has the discretion, pursuant to General Statutes § 51-296(a) and Practice Book § 44-4, to assign standby counsel for a habeas petitioner, the judicial determination that there are no non-frivolous claims to pursue in this matter strongly countenances against using this discretion to appoint standby counsel. The court sees no basis whatsoever to use its broad discretion to appoint standby counsel for the petitioner, in particular after both his former counsel and the judicial authority concluded there were no non-frivolous claims to raise in his habeas corpus petition.
Alternatively, the petitioner through his writ of mandamus seeks an order that compels DOC to perform or provide access to legal research. The court concludes that DOC does not have an affirmative duty to provide law libraries or legal materials to the petitioner, let alone a duty the performance of which is mandatory and not discretionary. Similarly, the petitioner does not have a clear legal right to have DOC provide law libraries or legal materials to him. As noted above, the state has provided alternative means to guarantee. meaningful access to the courts, including appointed counsel to present non-frivolous claims. For this same reason, DOC has no affirmative duty to transfer the petitioner to another correctional facility just because it has legal materials the petitioner would like to use. Nor does the petitioner have a clear legal right to have DOC transfer him. Furthermore, it is well established that courts are to avoid delving into, and enmeshing themselves in, matters that pertain to the administration of prisons and the inmates housed therein. See, e.g., State v. Fernandez, supra, 254 Conn. 656. (" It is not within the province of the judiciary to micromanage prisons.") " Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism . . ." (Citation omitted.) Washington v. Meachum, 238 Conn. 692, 733-34, 680 A.2d 262 (1996).
Consequently, and based upon the foregoing, the court will not issue an order compelling DOC to transfer the petitioner to any specific correctional facility. In fact, it would be particularly inappropriate to do so when the court has already concluded that the petitioner has no non-frivolous claims to raise.
Lastly, the court notes the petitioner has indicated in one or more of his filings since counsel was permitted to withdraw that his amended petition raises a claim not addressed in counsel's motion for permission to withdraw. This claim is best summarized as the petitioner's claim that had he known that charges in a docket other than the one he pleaded guilty to were going to be nolled subsequently by the prosecutor, then he would not have pleaded guilty and instead would proceeded to trial.
The petitioner obtained assigned counsel in this matter. Assigned counsel investigated the claims the petitioner wanted to pursue and ultimately concluded that it was appropriate to file a motion for permission to withdraw pursuant to Practice Book § 23-41. Judge Fuger conducted the independent review necessitated by relevant case law and Practice Book § 23-42, and granted counsel's motion for permission to withdraw. Thus, both assigned counsel and a judicial authority concluded that there were no non-frivolous claims to raise in the petitioner's habeas corpus petition.
A review of the court's file shows that the petitioner's initial pro se petition did not identify a claim related to the nolled docket and its impact on the petitioner's criminal convictions. Subsequently, the petitioner filed motions to remove the very same attorney who later was permitted to withdraw. See docket entries #106.00, filed August 31, 2015, and #113.00, filed October 7, 2016. Both of these motions identify as a basis for assigned counsel's removal and replacement by substitute counsel that substitute counsel would address the nolled case and its impact on the petitioner's convictions. The first motion was filed shortly before assigned counsel sought permission to withdraw on October 7, 2015; the latter motion was filed subsequent thereto. It is readily apparent that issues pertaining to the nolled docket, and whether a claim pertaining to thereto had merit, were points of contention between counsel and the petitioner.
To whatever extent counsel and the petitioner addressed the nolled docket in the context of the filings reviewed by Judge Fuger, this court will not reconsider the motion for permission to withdraw, the petitioner's objection thereto, and Judge Fuger's decision. The petitioner unsuccessfully requested that Judge Fuger reconsider his decision. It is not for this court to review that decision.
CONCLUSION
The writ of mandamus in a pending action is denied.
It is so ordered.