Opinion
No. TSR CV04-4000012 S
March 9, 2009
MEMORANDUM OF DECISION
The petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus filed July 12, 2004. After the appointment of counsel, the petition was amended for the final time on August 21, 2007. The second amended petition raises two claims: first, that the Department of Correction (DOC) has incorrectly calculated and applied a variety of statutory good time credits; and second, that the petitioner received ineffective assistance by trial defense counsel. As relief the petitioner requests that this court order the Commissioner of Correction (Commissioner) to correctly calculate and apply his good time credits and that the court vacate his judgment of conviction. The respondent's amended return denies the petitioner's material allegations and that he is entitled to habeas corpus relief. The amended return also raises a "defense" to count one that the respondent has correctly interpreted good time statutes and properly applied credits. As to count two, the respondent asserts laches as a defense because the petitioner asserted his ineffective assistance of counsel claim more than twenty years after his sentencing and direct appeal. The petitioner's reply to the return denies that the defense of laches applies to habeas corpus matters in this state, as well as that the respondent has not properly pleaded the defense of laches.
The matter proceeded to trial on May 13 and July 9, 2008. The petitioner, Associate Justice Joette Katz, who was the petitioner's appellate counsel, and DOC Record Specialist II Mary Jane Steele testified, and numerous documents were entered into evidence. The court permitted the parties to file post-trial briefs. The petitioner's brief was filed on December 17, 2008; the respondent's brief was filed on January 13, 2009; and the petitioner's reply brief was filed on January 30, 2009. For the reasons stated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.
FINDINGS OF FACTS
"During the night of April 11-12, 1977, a nineteen year old woman was brutally stabbed to death. Following his indictment, the [petitioner], Richard Ostroski, was charged with her murder in violation of General Statutes (Rev. to 1977) 53a-54a(a) and (c). After a trial by a panel of three judges of the Superior Court, the [petitioner] was found guilty and sentenced to a prison term of not less than twenty-five years nor more than life. On appeal from this conviction, the [petitioner] argued that the trial court erred in denying his motion to suppress `potential testimony or other evidence that was obtained in violation of the constitution or laws of the United States or the State of Connecticut.' State v. Ostroski, 184 Conn. 455, 456, 440 A.2d 166 (1981) ( Ostroski, I). This court remanded the case to the trial court for further articulation on the issue of the [petitioner's] custody. Id. On remand, the trial court found that the [petitioner] was not in police custody until his formal arrest following his confession. On the [petitioner's] appeal after remand, this court reversed the [petitioner's] conviction, ruling that the [petitioner] had been in state police custody during interrogation, that such custody was without probable cause, and that the trial court had erred in admitting into evidence his confession and certain physical evidence obtained from the [petitioner] as a result of the interrogation. State v. Ostroski, 186 Conn. 287, 440 A.2d 984, cert denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982) ( Ostroski II). The judgment was set aside and a new trial ordered.
"After retrial, the jury, on April 19, 1983, found the [petitioner] guilty of murder. The [petitioner] was sentenced to a prison term of not less than twenty-five years nor more than life." State v. Ostroski, 201 Conn. 534, 558-59, 518 A.2d 915 (1986) ( Ostroski III).
One of the claimed errors raised in Ostroski III was that the petitioner had received ineffective assistance of counsel. Id., at 559. The Supreme Court did not address that claim due to its holding in State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986). On July 12, 2004, nearly twenty years after the Supreme Court affirmed the judgment of conviction, the petitioner filed the instant petition for a writ of habeas corpus. After the appointment of counsel, the petition was amended for the final time. The second amended petition's second claim is that attorney Michael A. Connor, Jr., who was the petitioner's trial counsel, rendered ineffective assistance of counsel at trial. The parties have stipulated that attorney Connor deceased on September 26, 2003. The parties have also stipulated that attorney Jerrold H. Barnett, who also was involved in the petitioner's representation, deceased on September 20, 2002. It is only attorney Connor, the attorney who primarily represented the petitioner during both criminal trials, who is alleged to have rendered ineffective assistance of counsel.
In Leecan, the Supreme Court ". . . decided to once more lower [barriers] to habeas corpus relief. It is preferable that all of the claims of ineffective assistance, those arguably supported by the record [of criminal proceedings] as well as others requiring an evidentiary hearing, be evaluated by the same trier in the same proceeding. A defendant should not be required to await the outcome of his appeal upon other issues before pursuing his claim of incompetent counsel. If his claim is meritorious, he may often obtain relief in the trial court before his appeal on other issues can be heard, thus mooting such an appeal. An appeal by the state or the defendant from the determination of the incompetency of counsel question may also be joined with a pending appeal from the judgment of conviction, thus allowing a single resolution of appeal of all the claims of error that have been raised." State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986). See, e.g., State v. Silva, 65 Conn.App. 234, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001). In Silva, the Appellate Court resolved in one decision the claims arising from the criminal conviction and the habeas court's decision. While it is implicit in Leecan that such simultaneous resolution would promote judicial economy, it rarely happens. It is explicitly clear from Leecan, however, that there is no need to hold a petition for a writ of habeas corpus in abeyance as the final attack on a criminal conviction. A wrongfully convicted defendant clearly would not want to delay relief that, if so entitled, so significantly impacts the conviction and resultant sentence that it has been called the `Great Writ'. See, e.g., Ex parte Yerger, 8 Wall. 85, 95, 75 U.S. 85, 19 L.Ed. 332 (1868) ("The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defense of personal freedom."). Stated somewhat differently, a petition for a writ of habeas corpus need not, and should not, be a last resort.
Additional facts will be discussed as necessary to address the two distinct claims raised in the operative petition.
DISCUSSION
The petitioner raises two very different claims. First, a claim that encompasses various alleged failures by the DOC pertaining to statutory interpretation and sentence calculation. Second, ineffective assistance by attorney Connor, the petitioner's former trial defense counsel. The court will address these claims in seriatim fashion.
I. STATUTORY INTERPRETATION AND SENTENCE CALCULATION
The petitioner alleges numerous failures by the Commissioner. Thus, the Commissioner has failed to: calculate his maximum term of incarceration to be a definite sentence of sixty years, in violation of General Statutes § 53a-35b; allow him to earn statutory good time for the entire term of incarceration, in violation of General Statutes § 18-7a(a); apply statutory good conduct credit towards his maximum term of incarceration, in violation of General Statutes § 18-7a(a); apply statutory presentence credit for confinement under a mittimus towards his maximum term of incarceration, in violation of General Statutes § 18-97; apply statutory presentence confinement credit for confinement where bail was denied or unobtainable towards his maximum term of incarceration, in violation of General Statutes § 18-98; allow him to earn statutory employment credit for the petitioner's entire term of incarceration, in violation of General Statutes § 18-98a; apply statutory employment credit towards his maximum term of incarceration, in violation of General Statutes § 18-98a; allow him to earn statutory outstandingly meritorious performance award credit for the entire term of incarceration, in violation of General Statutes § 18-98b; and apply statutory good conduct credit for presentence confinement towards his maximum term of incarceration, in violation of General Statutes § 18-98c.
These enumerated failures by the Commissioner are all inextricably interwoven with the allegation that the petitioner's maximum term of incarceration, namely his life sentence, is not being correctly determined. Because all other allegations in count one hinge on whether the Commissioner has correctly determined that General Statutes § 53a-35b does not apply to the petitioner, the court will begin by addressing this alleged failure.
A. ADDITIONAL FINDINGS OF FACTS CT Page 4621
The petitioner committed the offense of murder on or about April 12, 1977, and was convicted on October 19, 1978 of violating General Statutes § 53a-54a(a) and (c). On November 27, 1978, the petitioner was sentenced to an indeterminate sentence of not less then twenty-five years nor more than life. Respondent's Exhibit A. As a result of the petitioner's direct appeal to the Supreme Court, the 1978 conviction was vacated and he received a new criminal trial. On March 9, 1983, the petitioner was again convicted of the crime of murder, in violation of General Statutes § 54a-54a, and was sentenced on April 19, 1983 to an indeterminate sentence of not less than twenty-five years nor more than life. Respondent's Exhibit C. The Supreme Court affirmed the judgment of conviction in Ostroski III.
Upon being sentenced in 1978, the DOC received the petitioner on the sentencing mittimus. Respondent's Exhibit A. The timesheet maintained by the DOC for the petitioner indicates that the sentence type imposed in 1978 was "indeterminate." The DOC then calculated the petitioner's good time, presentence confinement (jail credit), and jail credit good time credits. The petitioner received, in accordance with the "up front" posting method then employed, 4,200 days of statutory good time to be applied to the twenty-five-year portion of the indeterminate sentence. The DOC also determined that the petitioner was entitled to 589 days of jail credit and 194 days of jail credit good time. The application of these three credits advanced the petitioner's theoretical release date from the twenty-five-year portion of the indeterminate sentence to January 10, 1991. The petitioner also earned 7-day job credits between the years of 1986 and 1987, and also forfeited good time credits, so that the last posting, dated March 1, 1987, on the time sheet indicates a release date of January 10, 1991 from the minimum portion of the indeterminate sentence. The DOC timesheet indicates that no credits were applied to the life portion of the indeterminate sentence.
"[F]or purposes of administrative efficiency statutory good time was calculated and credited at the outset of a prisoner's sentence on the basis of the sentence imposed by the sentencing court. This method of awarding good time is commonly referred to as `posting.'" Seno v. Commissioner of Correction, 219 Conn. 269, 275 (1991). The legislature amended § 18-7a via Public Acts 1982, No. 82-379 by adding subsection (c). "The legislative history of Public Acts 1982, No. 82-379 demonstrates that the act was designed to attain two related objectives. First, the legislature sought to return to the original concept behind good time, that is, the concept of reward for good behavior . . . The legislature's second objective was to eradicate an irrational consequence of the posting system. Because under the posting system, good time is credited at the outset of a sentence, some prisoners receive good time for time that they, in fact, never serve . . . [T]he predominant purpose of § 18-7a(c) was to eliminate the possibility of prisoners earning good tine for time that is never served." Id., at 277-78.
After the second trial and again being sentenced in 1983 to a term of twenty-five years nor more than life, the DOC received the petitioner on another mittimus. Respondent's Exhibit C. The DOC timesheet maintained for the petitioner's 1983 sentence indicates that the sentence type imposed was "indeterminate." Respondent's Exhibit E. The DOC calculated and applied the following credits under the `up front' posting method to the twenty-five-year portion of the indeterminate sentence: 4,200 days of statutory good time; 2,192 days of jail credit; and 721 days of jail credit good time. Through the forfeiture and restoration of good time credits, as well as earned 7-day job credits, the petitioner's discharge from the minimum portion was indicated as January 16, 1989. The portion of the timesheet for the maximum, or "life," portion of the indeterminate sentence does not have any credits applied.
The timesheet for the 1983 indeterminate sentence contains postings pertaining to parole. After the final posting pertaining to good time credits, dated August 17, 1988, postings dated November 1, 1988, April 11, 1995, June 19, 1995 and October 25, 2002 indicate that the petitioner was denied parole. The petitioner testified at the habeas hearing that he was told he would next be eligible for parole in 2004, the year he initiated the instant petition. The petitioner also testified that he had been released on furlough eight times, starting in 1991 and continuing through October 1992, but that the furlough program was discontinued. According to the petitioner, the furloughs were to prepare him for eventual release to the community. The petitioner additionally testified that when he was sentenced, he expected to serve about fifteen years or so in prison. Justice Katz testified on cross-examination that she was surprised that the petitioner is still incarcerated and that she expected him to be released by now.
DOC Record Specialist II Mary Jane Steele testified that the petitioner is not serving a definite sentence; instead, he is serving an indefinite sentence. She also testified that the petitioner's next parole hearing is scheduled for October 2017. On cross-examination, Steele further testified that if the petitioner's "life" sentence were treated as being sixty years, that his expected release date would be about October 2020. She additionally indicated that there are approximately 250 inmates presently incarcerated with offense dates preceding 1981, though there are less than twenty inmates with offense dates prior to 1981 who were sentenced after July 1, 1981.
B. DISCUSSION
The Supreme Court very recently addressed a similar claim that an inmate serving a sentence of "life" was serving a sixty-year sentence. In Mead v. Commissioner of Correction, 282 Conn. 317, 320-21, 920 A.2d 301 (2007), the petitioner had alleged ". . . that the commissioner's custody of the petitioner is unlawful because the commissioner has not calculated the petitioner's sentence of life imprisonment in accordance with the current version of § 53a-35b, which provides in relevant part that `[a] sentence of imprisonment for life shall mean a definite sentence of sixty years.' . . . The petitioner [sought] a recalculation of his life sentence to a definite sentence of sixty years, and the reduction of such sentence by all applicable credits, pursuant to General Statutes § 18-7 . . . The commissioner opposed the petition on the grounds that § 53a-35b does not apply retroactively to the petitioner's sentence, and that the petitioner is serving the correct indeterminate sentence of twenty-five years to life imprisonment." (Footnote omitted.) The Supreme Court affirmed the judgment of the habeas court after ". . . conclud[ing] that § 53a-35b affects substantive rights and, in the absence of any clear and unequivocal expression by the legislature rebuffing the presumption of prospective application, that the statute does not apply retroactively to persons sentenced prior to its enactment." Id., at 322.
Mead is, however, distinguishable from the instant matter for two reasons. First, the petitioner in Mead was sentenced in 1972, prior to P.A. 80-442 and the effective date of § 53a-35b. Second, because of the sentencing occurring before § 53a-35b took effect, the petitioner's claim in Mead essentially was that § 53a-35b applied retroactively to him. In the instant case, contrary to Mead, the petitioner's present sentence was imposed in 1983, subsequent to P.A. 80-442 and the effective date of § 53a-35b. The petitioner here makes no claim of retroactivity; instead, the petitioner in essence argues that because he was sentenced after § 53a-35b took effect, his "life" sentence must be calculated as being a sentence of sixty years. The key question that must be addressed, and that resolves the petitioner's claim, is whether it is the offense date or the sentencing date that is relevant to determining the applicability of § 53a-35b.
The Supreme Court has held that "[i]n criminal cases, to determine whether a change in the law applies to a defendant, we generally have applied the law in existence on the date of the offense, regardless of its procedural or substantive nature. See, e.g., State v. Ross, 230 Conn. 183, 283, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995) (relying on date of offense in retroactivity analysis of change in law ultimately found to be procedural); State v. Jones, 132 Conn. 682, 684-85, 47 A.2d 185 (1946) (application of statute requiring court in certain pending cases to order examination of defendant for venereal disease, enacted after date of offense but prior to arrest, would impermissibly give it retroactive effect); see also State v. Millhouse, 3 Conn.App. 497, 501, 490 A.2d 517 (1985) (in construing penal statute to determine whether application is retroactive, date of crime controls) . . ." In re Daniel H., 237 Conn. 364, 377, 678 A.2d 462 (1996). See also, State v. Skakel, 276 Conn. 633, 684 n. 46, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.Ct. 78, 166 L.Ed.2d 428 (2006) ("As this court recently has observed, . . . we generally look to the date of the offense in determining whether a change in the law is considered retroactive[.]").
The Skakel case is particularly relevant to the discussion of the petitioner's claim, as the defendant in Skakel was sentenced subsequent to the effective date of § 53a-35b for an offense that occurred in 1975. CT Page 4624 Id. at 639. The Supreme Court's decision in Skakel indicates that the defendant received an indeterminate sentence of twenty years to life imprisonment. Id., at 639 n. 2. According to the respondent's post-trial brief, the sentence in Skakel was imposed in 2002. Brief, at 15. From cases such as Ross, Jones, Millhouse, In re Daniel H., and Skakel, it is readily apparent that it is the offense date and not the sentencing date that determines the applicable law. In this case, the petitioner's offense date of April 12, 1977 determines whether or not the maximum portion of his indeterminate sentence is natural life or sixty years.
The petitioner's post-trial brief advances five arguments in support of his claim that the maximum portion of his indeterminate sentence is sixty years. First, that the Mead decision does not dictate that § 53a-35b does not apply to defendants sentenced on or after July 1, 1981, for offenses committed before July 1, 1981. Second, that the legislature had the ability to lawfully make § 53a-35b apply to defendants sentenced on or after July 1, 1981, for offenses committed before July 1, 1981, because § 53a-35b is ameliorative. Third, the maximum term of the petitioner's indeterminate sentence is sixty years because the text and structure of P.A. 80-442, §§ 9, 10 and 11 and their relationship to other statutes clearly and unambiguously directs that all life sentences imposed after July 1, 1981, are sixty-year sentences, and this reading does not yield absurd or unworkable results. Fourth, the maximum term of the petitioner's indeterminate sentence is sixty years because extratextual evidence of the meaning of § 53a-35b shows that the legislature intended for all life sentences imposed on or after July 1, 1981, to be sixty years. And fifth, alternatively, that the maximum term of the petitioner's indeterminate sentence is sixty years because the meaning of the text of § 53a-35b — after and examination of the text and structure of P.A. 80-442, §§ 9, 10, and 11 and their relationship to other statutes — is ambiguous, extratextual evidence of the meaning of § 53a-35b fails to eliminate the ambiguity, and the rule of lenity dictates that this reading be adopted. The court will address these arguments in seriatim fashion.
1.
The petitioner's first argument is that the Mead decision does not dictate that § 53a-35b does not apply to defendants sentenced on or after July 1, 1981, for offenses committed before July 1, 1981. At the core of this argument is one of ways in which Mead is distinguishable from the instant matter: the petitioner in Mead was sentenced in 1972, prior to P.A. 80-442 and the effective date of § 53a-35b, while the instant petitioner was sentenced after § 53a-35b took effect. The petitioner's argument essentially is that applying § 53a-35b to his sentence raises no real retroactivity issues, as were at issue in Mead. Instead, according to the petitioner's argument, application of § 53a-35b to the maximum portion of his indeterminate sentence only involves "quasi-retroactivity." Brief at 3 and n. 3. The petitioner cites to Black's Law Dictionary 1343 (8th ed. 2004). which quotes from T.C. Hartley, The Foundations of European Community Law 129 (1981). The petitioner does cite to any case law involving the application of quasi-retroactivity.
This court's independent research of federal and state case law reveals a dearth of decisions addressing quasi-retroactivity. Several cases from Louisiana using the term "quasi-retroactive" rely on State v. Mayeux, 820 So.2d 526 (2002), in which the Louisiana Supreme Court addressed a defendant's claim that he was sentenced in error ". . . under the provisions of the statute in effect at the time of his offense rather than provisions that were in effect at the time of his conviction." Id., at 527. "Based on the language of the statute and the legislative statement of purpose, [the Supreme Court] agree[d]." Id. The statute at issue in Mayeux" . . . plainly state[d] that ` upon conviction,' and not `upon committing the offense,' the defendant shall be sentenced to a specific term." (Emphasis in original.) Id., at 529. There were two additional provisions within the new legislation that lent further support to the conclusion that the statute applied to offenses committed prior to the enactment of the new statute. Id., at 529-30.
The Mayeux court ". . . acknowledge[d] Louisiana's prior case law on the subject has adhered to the rule that `the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer.'" State v. Wright, 384 So.2d 399, 401 (La. 1980); see also, State v. Clark, 391 So.2d 1174 (La. 1980); accord, State v. Paciera, 290 So.2d 681 (La. 1974) (Imposition of a sentence under a statute in effect at the time an offense was committed rather than lesser sentence provided for by an amended statute which was enacted after commission of the charged offense and prior to conviction did not deny defendant due process or equal protection when the amendatory statute provided that it was not to apply to crimes committed prior to the effective date of the amendment). Although this rule of law has been consistently applied in the courts of this state, the rule requiring the penalty provision in effect at the time of the offense be the governing provision where an ameliorative change in the law has occurred is not followed in all jurisdictions. See Clark, 391 So.2d at 1176 n. 1; see also, State v. Morris, 131 Idaho 263, 954 P.2d 681 (1998) (Defendant convicted of first degree burglary was subject to maximum ten-year sentence under amended burglary statute enacted after he committed offense but before he was sentenced, rather than to maximum 15-year sentence under statute in effect when he committed offense, where amended statute did not include savings clause and did not indicate which maximum sentence should apply). Today, this rule is followed by a majority of the states that have dealt with the issue. See State v. Von Geldern, 638 P.2d 319 (Hawaii 1981); Elkins v. State, 659 N.E.2d 563 (Ind.App. 1995); People v. Schultz, 460 N.W.2d 505 (Mich. 1990); State v. Coolidge, 282 N.W.2d 511 (Minn. 1979); State v. Pardon, 272 N.C. 72, 157 S.E.2d 698 (1967); State v. Cummings, 386 N.W.2d 468 (N.D. 1986); State v. Macarelli, 118 R.I. 693, 375 A.2d 944 (1977).
"Thus, while current Louisiana appellate court jurisprudence holds that the law in effect at the time of the offense should control the sentencing of the instant defendant, this court has not concluded definitely that, in a case such as the one before it here concerning the specific statutory provisions of the amended [statute], the date of the offense and not the date of the conviction controls. Specifically, this case differs from both Wright, 384 So.2d 399, and Clark, 391 So.2d 1174, in that those cases dealt only with changes in the term of imprisonment. In both of those cases, the earlier statute . . . had provided for a penalty of imprisonment at hard labor of `not less than one nor more than ten years,' for the crime of theft of livestock. As amended, the penalty provided for imprisonment for `not more than one year.' Nothing in the language of the statute changed except the term of imprisonment.
"Conversely, here, as discussed at length above, the legislature made substantial changes to the penalty provisions of the statute as well as adding a `policy' statement to the statute . . . While the amended version of the statute does not specifically address the `retroactivity' of the new provisions, the statute does state that `upon conviction' and not `upon committing the offense' the defendant shall be punished to a specific term . . ." (Internal citations omitted.) State v. Mayeux, supra, 530-31.
A few other decisions reference the term quasi-retroactive. See Marrero-Rivera v. Dept. of Justice, 800 F.Sup. 1024, 1031 (P.R. 1992) (in addressing retroactivity of the Civil Rights Act of 1991, concluding "in this situation, where the action alleging sexual harassment was brought after the effective date of the statute but the conduct involved occurred before the effective date, [the court found] the quasi-retroactive application of the Civil Rights Act of 1991 appropriate"), aff'd, 36 F.3d 1089 (1st Cir. 1994); In re Estate of Spengler, 12 Ill.App.3d 30, 33, 297 N.E.2d 401 (1973) ("It may be said that the verdict of the jury determining the incompetency thus has quasi retroactive power back to the moment when the petition for conservatorship was filed."); Hillerby v. Town of Colchester, 167 Vt. 270, 706 A.2d 446 (1997) (retroactivity of general municipal immunity). These cases do not support the petitioner's contention that § 53a-35b applies to him in a quasi-retroactive manner.
Hillerby is particularly noteworthy for the succinct discussion of the general rule of retrospective application, quasi-retroactivity, quasi-prospectively and strict prospectively. Hillerby v. Town of Colchester, 167 Vt. 270, 293, 706 A.2d 446 (1997) (Johnson, J, dissenting).
As previously indicated, cases such as Ross, Jones, Millhouse, In re Daniel H., and Skakel support the conclusion that in Connecticut, it is the offense date and not the sentencing date that determines the applicable law. Neither this state's cases nor the cases from other jurisdictions addressing quasi-retroactivity support the petitioner's argument that § 53a-35b applies to him in a quasi-retroactive manner.
To the contrary: in Mead, the Supreme Court indicated that "[t]he language of § 53a-53b itself is silent as to whether the legislature intended it to be applied retroactively. Accordingly, we look to the relationship of § 53a-35b to related statutes enacted as part of P.A. 80-442, which comprehensively revised this state's sentencing structure by abolishing indeterminate sentencing and creating definite sentencing. Section 53a-35a expressly provides that definite sentences shall be imposed only for felonies committed on or after July 1, 1981. The statute further provides that the penalty for the class A felony of murder is a term of imprisonment not less than twenty-five years nor more than life. General Statutes § 53a-35a(2). Prior to 1981, the term `life imprisonment' was inherently indeterminate because it referred to the natural life of the prisoner. It is reasonable to conclude, therefore, that the purpose of § 53a-35b was to define life imprisonment — the one remaining indeterminate term in the now definite sentencing scheme — as a definite sentence of sixty years. It is also reasonable to conclude that § 53a-35b applies only to post-1981 determinate sentencing." (Emphasis added.) Mead v. Commissioner of Correction, supra, 282 Conn. 325.
The petitioner here was sentenced in 1983 to an indeterminate sentence. It is clear from the foregoing discussion in Mead that § 53a-35b only applies to post-1981 determinate sentences. The instant petitioner is not serving a determinate sentence. Consequently, and based upon the foregoing, the court concludes that the petitioner's argument that the Mead decision does not dictate that § 53a-35b does not apply to defendants sentenced on or after July 1, 1981, for offenses committed before July 1, 1981, is without support and contrary to Mead itself. Furthermore, the petitioner's argument that § 53a-35b applies to him in a quasi-retrospective manner is without foundation.
2.
The petitioner's second argument is that the legislature had the ability to lawfully make § 53a-35b apply to defendants sentenced on or after July 1, 1981, for offenses committed before July 1, 1981, because § 53a-35b is ameliorative. This second argument relies on the petitioner's assertion that § 53a-35b is ameliorative in nature and, therefore, there is no constitutional prohibition that prevents § 53a-35b to be applied to his maximum term of life. The petitioner also posits that a sentence of sixty years is less punishment than an indefinite sentence. In a footnote, the petitioner cites to Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). These arguments and the petitioner's citation to Dobbert do not hold up well under scrutiny.
"Prior to 1981, defendants were subjected to an `indeterminate' sentencing scheme. See General Statutes § 53a-35. `The indeterminate sentencing scheme used . . . allowed the court to set both the minimum and maximum portion of the sentence . . . parole eligibility [was] established at the minimum less any good time used to reduce that minimum term . . . The minimum and maximum portions of the sentence [were] a fixed number of years except for a class A felony where the maximum [was] life imprisonment, unless for a capital felony where a sentence of death [could] be imposed.' Williams v. Bronson, 24 Conn.App. 612, 618, 590 A.2d 984, cert. denied, 219 Conn. 913, 593 A.2d 138 (1991). This scheme was subsequently abolished and replaced by the current scheme of definite sentencing applicable to crimes committed on or after July 1, 1981. See General Statutes § 53a-35a. Under this system, sentencing courts `impose a flat or exact term of years of imprisonment without a minimum or maximum; that term can be reduced by various statutory credits.' Williams v. Bronson, supra, 618. The legislature's purpose, therefore, in using the label definite sentence is to differentiate the type of sentence it denotes from the historical, indeterminate sentence, and not to indicate any `definite' amount of time that a defendant will be incarcerated. Furthermore, because of the availability of statutory credits as well as the operation of probation, the precise time that a defendant will serve in prison cannot be predicted with exact certainty." State v. Adam H., 54 Conn.App. 387, 392, 735 A.2d 839, cert. denied, 251 Conn. 905, 738 A.2d 1091 (1999).
A review of the legislative history of P.A. 80-442 shows that an important concern was remedying the public's perception that inmates serving lengthy sentences, in particular ones imposed for murder convictions, were being released to parole after serving a small portion of the imposed sentence. Petitioner's Exhibit 1. See also, State v. Dupree, 196 Conn. 655, 659, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S.Ct. 318, 88 L.Ed.2d 301 (1985) ("In the 1980 legislative session, the legislature passed what is now General Statutes 53a-35a, which became effective on July 1, 1981 . . . This statute instituted definite sentencing and effectively eliminated parole in Connecticut."); Evans v. Bronson, 19 Conn.App. 571, 574 n. 6, 563 A.2d 318, 213 Conn. 802, 567 A.2d 832 (1989). Thus, contrary to the petitioner's argument that a sixty-year sentence was intended to be less punishment and somehow be ameliorative, the legislative intent was to lengthen the time to be served.
Furthermore, as the Mead court articulated when looking at the ". . . relationship of § 53a-35b to related statutes enacted as part of P.A. 80-442, which comprehensively revised this state's sentencing structure by abolishing indeterminate sentencing and creating definite sentencing. Section 53a-35a expressly provides that definite sentences shall be imposed only for felonies committed on or after July 1, 1981. The statute further provides that the penalty for the class A felony of murder is a term of imprisonment not less than twenty-five years nor more than life. General Statutes § 53a-35a(2). Prior to 1981, the term `life imprisonment' was inherently indeterminate because it referred to the natural life of the prisoner. It is reasonable to conclude, therefore, that the purpose of § 53a-35b was to define life imprisonment — the one remaining indeterminate term in the now definite sentencing scheme — as a definite sentence of sixty years. It is also reasonable to conclude that § 53a-35b applies only to post-1981 determinate sentencing." Mead v. Commissioner of Correction, supra, 282 Conn. 325.
As to the petitioner's reliance on Dobbert, that case is radically different from Mead and the instant case. The change in law at issue in Dobbert was procedural and found to be ameliorative. Dobbert v. Florida, supra, 432 U.S. 294. In Mead, contrary to Dobbert, the Connecticut Supreme Court concluded that ". . . § 53a-35b is a substantive statute . . . § 53a-35b defines and regulates the length of time that a prisoner is deprived of liberty. The statute does not merely tell the commissioner how to administer an existing right, but, instead, governs the right that the commissioner must administer." Mead v. Commissioner of Correction, supra, 282 Conn. 324-25. Thus, any reliance on Dobbert is both misplaced and misguided.
Based on the foregoing, the court concludes that the petitioner's argument that § 53a-35b was intended to be ameliorative and, therefore, may be applied retroactively to the petitioner s life, is wholly unsupported and entirely without merit.
3.
The petitioner's third argument is that the maximum term of his indeterminate sentence is sixty years because the text and structure of P.A. 80-442, §§ 9, 10 and 11 and theft relationship to other statutes clearly and unambiguously directs that all life sentences imposed after July 1, 1981, are sixty-year sentences, and this reading does not yield absurd or unworkable results. This argument overlooks the fact that there is a clear distinction between the type of sentence that may be imposed as demarcated by July 1, 1981. Sentences imposed for offenses committed prior to July 1, 1981 are, per § 53a-35, indeterminate sentences. Sentences imposed for offenses committed on or after July 1, 1981 are, per § 53a-35a, definite sentences.
The petitioner is absolutely correct when he argues that the text and structure of P.A. 80-442, §§ 9, 10 and 11 and their relationship to other statutes clearly and unambiguously directs that all life sentences imposed after July 1, 1981, are sixty-year sentences, and this reading does not yield absurd or unworkable results. The problem with the argument is that the maximum portion of his indeterminate sentence of twenty-five years nor more than life is governed by the indeterminate sentencing scheme as set forth in § 53a-35. Mead v. Commissioner of Correction, supra, 282 Conn. 325. The petitioner's sentence is in no way governed or determined by § 53a-35a and other related statutes such as § 53a-35b. Stated somewhat differently, the petitioner's sentence cannot be both indeterminate per § 53a-35 and simultaneously somehow determinate per § 53a-35a and § 53a-35b. The July 1, 1981 demarcation and the significant differences between the indeterminate and definite sentencing schemes do not permit the sort of hybrid sentence the petitioner appears to be advocating — one that is both indeterminate and definite. Such a hybrid sentence would not be consistent with the presumption that the legislature has created a harmonious and consistent body of law. See, e.g., In re William D., 284 Conn. 305, 313, 933 A.2d 1147 (2007). Accordingly, the petitioner's third argument must also fail.
An argument positing that a range (e.g., twenty-five years to life), as indicated by statute, means an indefinite sentence would border on the absurd and render the differences between § 53a-35 and § 53a-35a meaningless. The result would also be unworkable. Section 53a-35(a) required a court to impose indeterminate sentences that spanned from the minimum term to the maximum term. While § 53a-35a indicates ranges (e.g., twenty-five years nor more than life for murder), the court must impose a definite sentence and not a sentence demarcated by a minimum and maximum per § 53a-35(a).
4.
The petitioner's fourth argument is that the maximum term of the petitioner's indeterminate sentence is sixty years because extratextual evidence of the meaning of § 53a-35b shows that the legislature intended for all life sentences imposed on or after July 1, 1981, to be sixty years. This argument differs from the preceding argument only in that it relies on extratextual evidence that, according to the petitioner, demonstrates the legislature's intent that all post-July 1, 1981 life sentences are defined as sixty years.
As with the preceding argument, this fourth argument glosses over the considerable differences between the indeterminate and definite sentencing schemes. The court relies on its discussion of the third argument to similarly conclude that this fourth argument cannot prevail. The court does additionally note that the doctrine of legislative acquiescence further supports the conclusion that the petitioner's cannot win through his third and fourth arguments.
"Under that doctrine, the legislature's failure to amend a statutory provision in response to a definitive interpretation of the provision may be viewed as evidence of legislative agreement with that interpretation. E.g., Commission on Human Rights Opportunities v. Sullivan Associates, 250 Conn. 763, 783, 739 A.2d 238 (1999) (`[t]he legislature is presumed to be aware of the interpretation of a statute and . . . its subsequent nonaction may be understood as a validation of that interpretation' [internal quotation marks omitted]). Although, normally, the doctrine is applicable when the legislature fails to amend a statute within a reasonable period of time following this court's interpretation of the provision at issue; see, e.g., State v. Peeler, 271 Conn. 338, 427-28, 857 A.2d 808 (2004) (legislative inaction following this court's interpretation of statute may be viewed as legislative acquiescence in that interpretation), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005); we also have applied the rule of legislative acquiescence to administrative interpretations of statutes. E.g., Berkley v. Gavin, 253 Conn. 761, 780, 756 A.2d 248 (2000)." Vincent v. New Haven, 285 Conn. 778, 791 n. 15, 941 A.2d 932 (2008).
Here, DOC has interpreted § 53a-35b as not applying to the petitioner's maximum portion of his indeterminate sentence. The Supreme Court's decision in Mead, which concluded that § 53a-35b applies only to post-1981 determinate sentencing, was released on May 8, 2007. Section § 53a-35b has since May of 2007 only been referenced in P.A. 08-01, Sec. 7, which amended § 53a-40. The legislature is presumed to be aware of the Supreme Court's interpretation of § 53a-35b and has not amended § 53a-35b since the release of Mead. Thus, the doctrine of legislative acquiescence further supports this court's conclusions regarding the petitioner's third and fourth arguments.
5.
The petitioner's fifth and final argument is that, alternatively, that the maximum term of the petitioner's indeterminate sentence is sixty years because the meaning of the text of § 53a-35b — after an examination of the text and structure of P.A. 80-442, §§ 9, 10, and 11 and their relationship to other statutes — is ambiguous, extratextual evidence of the meaning of § 53a-35b fails to eliminate the ambiguity, and the rule of lenity dictates that this reading be adopted. Based on this court's discussion of the first four arguments, the court concludes that § 53a-35b, when viewed together with §§ 53a-35 and 53a-35a, as seen through the prism of Mead and the legislature's acquiescence thereto, is not ambiguous.
The Supreme Court has ". . . said many times that `[c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.' State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986); State v. Russell, 218 Conn. 273, 277-78, 588 A.2d 1376 (1991); State v. Whiteman, 204 Conn. 98, 101, 526 A.2d 869 (1987) (penal statutes should be strictly construed in favor of the accused). `It is a fundamental tenet of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.' State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985). As the United States Supreme Court has noted, `[t]he "touchstone" of this rule of lenity is "statutory ambiguity." Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980).' Id., 122. `[W]e . . . [reserve] lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to "the language and structure, legislative history, and motivating policies" of the statute.' (Emphasis in original.) Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990)." State v. Hinton, 227 Conn. 301, 317-18, 630 A.2d 593 (1993).
The court finds, based on the foregoing, that the rule of lenity is inapplicable, for there is no reasonable doubt as to § 53a-35b's intended meaning and scope after reviewing the language and structure, legislative history, and motivating policies of § 53a-35b.
II. INEFFECTIVE ASSISTANCE BY TRIAL DEFENSE COUNSEL
The petitioner's second claim in the amended petition is that attorney Michael A. Connor rendered ineffective assistance of counsel during the petitioner's retrial in 1983. More specifically, the petitioner alleges that Connor failed to: raise extreme emotional disturbance as an affirmative defense to murder, pursuant to General Statutes § 53a-54a(a); request that the trial court charge the jury on extreme emotional disturbance as an affirmative defense to murder, pursuant to General Statutes § 53a-54a(a); adequately request that the trial court charge the jury on the lesser included offense of manslaughter, in violation of General Statutes § 53a-55(a)(1) and (3); request that the trial court charge the jury on the lesser included offense of manslaughter, in violation of General Statutes § 53a-55(a)(2); present a defense; present evidence to support extreme emotional disturbance as an affirmative defense to murder, pursuant to General Statutes § 53a-65a(a); present evidence to support a conviction for the offense of manslaughter, in violation of General Statutes 53a-55(a)(1), (2) or (3); and advise the petitioner to testify in his own defense. The petitioner further asserts that he was prejudiced by these alleged deficiencies because otherwise there is a reasonable probability that he would have been acquitted of murder and convicted of manslaughter as a lesser degree.
The respondent's amended return denies the petitioner's material allegations or leaves him to his burden of proof. The return also raises the defense of laches to the claim of ineffective assistance of counsel.
A. ADDITIONAL FINDINGS OF FACTS
The parties have stipulated that the petitioner was represented by attorneys Michael A. Connor, Jr. and Jerrold H. Barnett in his criminal matter, State v. Richard Ostroski, Docket No. 41843, Superior Court, judicial district of Hartford-New Britain. Attorney Connor died on September 26, 2003; Attorney Barnett died on September 20, 2002.
The petitioner appealed his judgment of conviction after the second trial, which was affirmed in Ostroski III, a decision released on December 9, 1986. The Supreme Court decision and the petitioner's appellate brief indicate that attorney Kathleen Eldergill represented the petitioner in the appeal assigned docket number S.C. 12229, which ultimately affirmed the judgment of conviction. The petitioner raised a claim of ineffective assistance of counsel in S.C. 12229. The Supreme Court, citing and following its recently pronounced edict in State v. Leecan, supra, 198 Conn. 541-42, did not address the ineffective assistance of counsel claim, State v. Ostroski, supra, 201 Conn. 559.
Leecan specifically indicated that the proper forum was the habeas corpus court, as additional fact finding was necessary to resolve claims of ineffective assistance of counsel.
At the instant habeas corpus trial, the petitioner testified that he was arrested in 1977 and has been incarcerated since then. According to the petitioner's testimony, he was eligible for parole in 1998, but was not released to parole and informed his eligibility would again be reviewed in 2004. On redirect, the petitioner testified that he has had four parole hearings — in 1988, 1995, 1997 and 2002 — and that his next parole hearing is in 2017. The petitioner also testified that he had been released on furlough eight times, starting in 1991 and continuing though October 1992, but that the furlough program had been suspended. According to the petitioner, the purpose of these furloughs was to prepare him for eventual release into the community. The petitioner filed his pro se petition for a writ of habeas corpus in 2004, approximately eighteen years after the Supreme Court released Ostroski III.
Associate Justice Katz testified that she had represented the petitioner on appeal. Justice Katz did not represent the petitioner in Ostroski III, which affirmed his conviction. Instead, Justice Katz represented the petitioner in Ostroski I and II, which occurred several years before Ostroski III and together resulted in the petitioner receiving a new criminal trial. Justice Katz had a vague recollection of a conversation with the petitioner's trial counsel after the new trial was ordered in Ostroski II, though she could not recall any specifics. Justice Katz also could not recall any conversations with the petitioner.
B. DISCUSSION
The respondent has raised the affirmative defense of laches to the claim in count two that the petitioner's trial defense counsel rendered ineffective assistance of counsel. The respondent correctly notes that the petitioner raised an ineffective assistance of counsel claim on direct appeal in Ostroski III but that the Supreme Court, relying on Leecan, did not address the claim. The respondent then further discusses the procedural history of the instant habeas and stresses that the operative complaint, the second amended petition, challenges trial defense counsel's representation approximately twenty-one years after Ostroski III. The return identifies the elapse of time from the release of Ostroski III to the instant matter and how the elapse of multiple decades has negatively influenced the respondent's ability to defend against the claims. For example, attorneys Connor and Barnett deceased very shortly before the petitioner filed his pro se petition. Lastly, Associate Justice Katz had no specific recollection aside from a vague recollection of a conversation with the petitioner's trial counsel after the new trial was ordered.
The court notes that the petitioner's pro se petition filed in 2004 specifically raises a claim of ineffective assistance by trial defense counsel. How much time specifically elapsed is not that relevant to addressing laches; instead, what must be demonstrated is inexcusable delay.
Connor died in 2003, Barnett died in 2002, and the petitioner filed his pro se petition in 2004.
Based upon the foregoing, the respondent asserts the following: "Given these circumstances, no person — other than the petitioner — who would have knowledge of the circumstances and reasoning surrounding the defense strategy is able or available to testify. Thus, the evidence necessary to defend against the petitioner's allegations, such as counsel's testimony, is no longer available to the respondent because of the petitioner's inexcusable delay in raising his claims. As a result, the respondent has been prejudiced in its ability to defend against Count Two of the Second Amended Petition and his claim in Count Two is barred by laches." Return, at pg. 6. The petitioner's reply to the return denies that the defense of laches applies to habeas corpus matters in this state, as well as that the respondent has not properly pleaded the defense of laches.
1.
"The defense of laches, if proven, bars a plaintiff from seeking equitable relief . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. (Internal quotation marks omitted.) . . . `The burden is on the party alleging laches to establish that defense.' Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987). `The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] . . . as where, for example, the [opposing party] is led to change his position with respect to the matter in question.' (Internal quotation marks omitted.) Fromm v. Fromm, 108 Conn.App. 376, 385-86, 948 A.2d 328 (2008)." (Internal citation and quotation marks omitted.) Caminis v. Troy, 112 Conn.App. 546, 553 (2009).
The use of laches as a defense to habeas corpus claims is an issue that has not yet been fully addressed on the merits. In Dickinson v. Mullaney, 92 Conn.App. 689, 887 A.2d 390 (2005) ( Dickinson I), a claim was raised on appeal that laches is not an appropriate defense in a habeas corpus matter. Id., at 693. The Appellate Court concluded that because the petitioner had not raised that claim before the habeas court, and for the first time raised the claim on appeal without asking that the court employ either the plain error doctrine or review the claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), that it was not appropriate to review the claim. Dickinson v. Mullaney, supra, 92 Conn.App. 693-94. The petitioner in Dickinson I also claimed on appeal that the habeas court improperly concluded that laches barred his claims without making findings that the delay was inexcusable and was prejudicial. Id., at 694. The Appellate Court agreed, concluding the habeas court never made the required finding that the delay was inexcusable. The judgment of the habeas court was reversed and the matter was remanded for further proceedings.
The respondents in Dickinson petitioned the Supreme Court for certification to appeal from the Appellate Court's decision, and which was granted. "The respondents claim[ed] that the Appellate Court improperly reversed the habeas court's judgment denying the petitioner's claim. Specifically, the respondents assert that the habeas court properly applied the doctrine of laches, and that the habeas court's failure to make a specific factual finding that the petitioner's delay was inexcusable did not render its determination improper. Moreover, the respondents claim[ed] that the petitioner was obligated to seek an articulation to clarify the habeas court's ruling and that, without such a ruling, the record was inadequate for review by the Appellate Court. In response, the petitioner contend[ed] that the Appellate Court properly concluded that the habeas court had made no finding of inexcusable delay and that the record was insufficient to support a finding of inexcusable delay. The petitioner further raise[d] three alternative grounds to affirm the judgment of the habeas court. [The Supreme Court] agree[d] with the respondents that the petitioner ha[d] failed to provide an adequate record for appellate review of his claim that the habeas court improperly failed to find inexcusable delay, and, accordingly, . . . reverse[d] the judgment of the Appellate Court." Dickinson v. Mullaney, 284 Conn. 673, 677-78, 937 A.2d 667 (2007) ( Dickinson II). Consequently, the case was remanded to the Appellate Court with direction to affirm the judgment of the habeas court. Id., at 684.
The Supreme Court in Dickinson II ". . . conclude[d] that the Appellate Court improperly reached the merits of the petitioner's claims on appeal because the habeas court record is inadequate to permit any meaningful review of the petitioner's claim that the habeas court had not made the requisite finding of inexcusable delay. The habeas court's memorandum of decision reflects that the court accurately understood the law of laches, including the requirement of a finding that the delay was inexcusable. The habeas court, however, failed to make such a finding despite its determination that the petitioner's claim was barred by laches. The habeas court found only that `the petitioner's delay in bringing his habeas petition was unduly prejudicial to the respondent[s].' The habeas court's failure to make a finding of inexcusable delay therefore is an `overlooked matter' that must be addressed by the appellant, here, the petitioner, in order to provide an adequate record for review . . . The petitioner, however, did not file a motion for articulation requesting the habeas court to address whether the delay was inexcusable or to otherwise clarify its finding of laches. As a result, it is impossible to determine both whether the habeas court found that the petitioner's delay in bringing his claims was inexcusable and, if so, the evidentiary basis for any such finding. It is axiomatic that `[a]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed.' . . . Desrosiers v. Henne, 283 Conn. 361, 366, 926 A.2d 1024 (2007). `Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the petitioner's claims] would be entirely speculative . . . State v. Dalzell, 282 Conn. 709, 720, 924 A.2d 809 (2007)." (Internal citation and quotation marks omitted.) Dickinson v. Mullaney, supra, 284 Conn. 680-81.
The petitioner in Dickinson II asserted three alternate grounds for affirming the Appellate Court's decision. Id., at 682. Only the third alternate ground, however, is relevant to the instant discussion. This third ground was that ". . . the evidence was insufficient for the habeas court to determine that the respondents were prejudiced . . . The evidence before the habeas court established that the principal participants in the petitioner's 1985 criminal trial, namely, the petitioner's trial counsel, the prosecuting attorney, and the trial judge, all had died in the sixteen-year period between the petitioner's being committed to the custody of the commissioner of mental health and addiction services and the petitioner's filing of a petition for a writ of habeas corpus in September 2001. The habeas court specifically found that the respondents were unduly prejudiced in the habeas proceedings, noting that the death of the petitioner's trial counsel precluded the respondents from refuting the petitioner's allegations that his trial counsel had failed to advise him of the consequences of his plea of not guilty by reason of mental disease or defect. The habeas court also specifically found that the death of the prosecuting attorney and the trial judge also prejudiced the respondents. As we have noted previously, a finding of laches is a question of fact for the trier of fact, and we must review such findings under a clearly erroneous standard of review . . . On the basis of the evidence before the habeas court, we are unable to conclude that its finding that the respondents were prejudiced is clearly erroneous." (Internal citations omitted.) Id., at 683-84.
The first alternate ground was that laches does not apply in habeas corpus. The Supreme Court agreed with the Appellate Court's conclusion that this claim had not been raised in the habeas court and would not be addressed on appeal. The second alternate ground was that the habeas court "mechanically applied laches to deny relief . . . [and that its] perfunctory analysis is devoid of any balancing of the equities, weighing of competing interests, or exercise of discretion." Dickinson v. Mullaney, 284 Conn. 673, 683, 937 A.2d 667 (2007). The Supreme Court also found that the record was inadequate to review this second alternate ground.
While the Appellate Court in Dickinson I noted that ". . . the applicability of the defense of laches in habeas proceedings . . . [was] an issue that has not been addressed in Connecticut appellate jurisprudence[,]" it never addressed that issue on the merits because the petitioner had not raised it in the habeas court. Dickinson v. Mullaney, supra, 92 Conn.App. 693. The Supreme Court in Dickinson II agreed with the Appellate Court on this issue. Dickinson v. Mullaney, supra, 284 Conn. 682-83. While the Supreme Court thus did not explicitly address whether laches was a viable defense in habeas corpus proceedings, it nevertheless is more than implicit in the Supreme Court's decision that laches does apply in habeas corpus. The petitioner in Dickinson had failed to seek articulation from the habeas court as to its specific finding of inexcusable delay, which resulted in the claim not being reviewed on appeal. Id., at 681-82. The Supreme Court did, however, address the adequacy of evidence that proved prejudice to the respondents. The ultimate outcome of the Supreme Court's decision — affirmation of the habeas court's holding that the petitioner's claims were barred by laches — again implicitly demonstrates that laches is a viable defense in habeas corpus.
2.
To show that the petitioner is guilty of laches, the respondent here must first show inexcusable delay. The petitioner specifically and explicitly raised a timely claim of ineffective assistance by trial defense counsel in Ostroski III. The Supreme Court declined to address the claim because it had very recently indicated that all claims of ineffective assistance of counsel should be brought before the same trier of fact in one habeas corpus proceeding. State v. Leecan, supra, 198 Conn. 541. The court in Leecan had also noted that "[a] defendant should not be required to await the outcome of his appeal upon other issues before pursuing his claim of incompetent counsel. If his claim is meritorious, he may often obtain relief in the trial court before his appeal on other issues can be heard, thus mooting such an appeal." Id., at 541-42.
The United States Supreme Court has indicated that "[t]he principle that collateral review is different from direct review resounds throughout our habeas jurisprudence . . . Direct review is the principal avenue for challenging a conviction. When the process of direct review — which, if a federal question is involved, includes the right to petition this Court for a writ of certiorari — comes to an end, a presumption of finality and legality attaches to the conviction and sentence. The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials . . .
"In keeping with this distinction, the writ of habeas corpus has historically been regarded as an extraordinary remedy, `a bulwark against convictions that violate `fundamental fairness.' . . . `Those few who are ultimately successful [in obtaining habeas relief] are persons whom society has grievously wronged and for whom belated liberation is little enough compensation.' Fay v. Noia, 372 U.S. 391, 440-41 (1963). See also Kuhlmann v. Wilson, 477 U.S. 436, 447 (1986) (plurality opinion) (`The Court uniformly has been guided by the proposition that the writ should be available to afford relief to those "persons whom society has grievously wronged" in light of modern concepts of justice') . . . (quoting Fay v. Noia, supra, at 440-41); Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (STEVENS, J., concurring in judgment) (Habeas corpus `is designed to guard against extreme malfunctions in the state criminal justice systems'). Accordingly, it hardly bears repeating that `an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.' United States v. Frady, 456 U.S. 152, 165 (1982) (quoting United States v. Addonizio, 442 U.S. 178, 184 (1979))." (Internal citations and quotation marks omitted.) Brecht v. Abrahamson, 507 U.S. 619, 633-34, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
An individual convicted of an offense who believes that the conviction is illegal, unconstitutional, or otherwise suspect, would want to remedy the wrong as rapidly as is possible. Remedies and relief are possible in many forums: the trial court; on direct appeal; before the Sentence Review Division; in the habeas corpus court. There are many avenues available to right wrongs, and delay is not particularly of much assistance in remedying grievous wrongs, extreme malfunctions, or violations of fundamental fairness. Stated somewhat differently, a convicted individual either aware of a suspect conviction or suspects a conviction may be flawed would have no reasonable reason to delay seeking redress.
The petitioner here was convicted and sentenced in 1983 after his second trial. On direct appeal he attempted to raise a claim of ineffective assistance of counsel, but the Supreme Court in 1986 declined to address the claim. The pro se petition for a writ of habeas corpus alleging ineffective assistance of counsel was filed in 2004, about eighteen (18) years after the Supreme Court declined to address the claim in the context of the direct appeal. The only evidence presented by the petitioner to explain this delay is that he was not released as early as expected through the furlough program and anticipated release to the community. The petitioner has presented no credible, persuasive or even relevant evidence as why the alleged deficiencies by trial defense counsel, known prior to and in 1986, were not raised for almost twenty years until shortly after trial defense counsel deceased.
The court finds, based upon the foregoing, that the delay was inexcusable.
3.
The respondent must also show that the inexcusable delay prejudiced the respondent's ability to defend against the claim. The second amended petition asserts numerous deficiencies by attorney Connor in that he failed to: raise extreme emotional disturbance as an affirmative defense to murder, pursuant to General Statutes § 53a-54a(a); request that the trial court charge the jury on extreme emotional disturbance as an affirmative defense to murder, pursuant to General Statutes § 53a-54a(a); adequately request that the trial court charge the jury on the lesser included offense of manslaughter, in violation of General Statutes § 53a-55(a)(1) and (3); request that the trial court charge the jury on the lesser included offense of manslaughter, in violation of General Statutes § 53a-55(a)(2); present a defense; present evidence to support extreme emotional disturbance as an affirmative defense to murder, pursuant to General Statutes § 53a-65a(a); present evidence to support a conviction for the offense of manslaughter, in violation of General Statutes 53a-55(a)(1), (2) or (3); and advise the petitioner to testify in his own defense.
The respondent here is unable to present any evidence to refute the petitioner's relatively scant testimony in support of his ineffective assistance of counsel claim. For example, the petitioner testified that he did not testify during the criminal trial because attorney Connor advised him not to testify. The petitioner testified in the habeas corpus proceeding that he wanted to testify and tell the truth (i.e., that he killed the victim while under the influence of drugs and alcohol, but does not think he intended to kill the victim). The petitioner further indicated to this court that he had no choice but to trust attorney Connor, especially in light of his threatening to leave the case if the petitioner insisted on testifying.
The respondent has no meaningful way of countering this self-serving testimony presented after an inexcusable delay that spanned the death of attorneys Connor and Barnett. The respondent has been unduly prejudiced in this habeas corpus proceeding from refuting the petitioner's assertions, in particular that attorney Connor threatened to leave the case if the petitioner insisted on his right to testify.
Consequently, the court finds that the respondent has shown actual prejudice. The respondent's burden of proven the defense of laches has been met. The petitioner is barred, therefore, from seeking relief premised on ineffective assistance by trial defense counsel.
4.
Even if the respondent had not proven laches, the petitioner has failed to present credible evidence necessary to prove both deficient performance by attorney Connor and the resultant prejudice. Accordingly, the petitioner's claim of ineffective assistance of counsel claim would fail on the merits, for he has made a slew of allegations and presented a shortage of proof.
The court additionally notes that the trial transcripts of both criminal trials were entered into evidence. It is not the habeas court's function to micro-analyze these extensive transcripts to find and locate anything that might somehow either disprove or support of any of the petitioner's claims. Stated somewhat differently, this habeas court is not an "inspector" performing a "quality control" assessment of the underlying criminal trial, as embodied in the transcripts, to assess the validity of the underlying criminal proceeding and ensuing conviction.
CONCLUSION CT Page 4641
Based upon the foregoing, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall submit a judgment file to the clerk within thirty (30) days of this decision.