Opinion
No. CV 05 4000452 S
January 21, 2009
MEMORANDUM OF DECISION RE: MOTION TO STRIKE NO. 113
The petitioner, Donald Roberson, filed a petition for a writ of habeas corpus on May 31, 2005, amended on September 5, 2008, challenging the legality of his detention. Therein, he asserts two counts of ineffective assistance of counsel arising from convictions after a jury trial of assault in the first degree, burglary in the first degree and risk of injury to a minor.
The respondent filed a corrected return on September 10, 2008, in which he denied the material allegations of the petition and raised the special defense of procedural default based on the petitioners having filed two previous petitions for habeas corpus, both of which were voluntarily withdrawn before proceeding to trial. The petitioner, on October 6, 2008, filed a motion to strike the special defense pursuant to Practice Book §§ 10-1, 10-39(5), 10-50, 10-51, 11-18 and 23-30 because it does not assert a legally cognizable defense. Oral argument was heard on the motion on December 12, 2008, at which time the respondent also filed a written objection.
Docket Nos. CV 01 03855411, CV 01 0813120.
Although there is no express provision in the Connecticut Rules of Practice for a motion to strike in the context of a habeas petition, it has been held that "[i]t is clear that civil summary judgment rules should apply to habeas cases. This conclusion flows from the fact that the habeas corpus rules authorize summary judgment motions using the same operative language as the general civil rules; see Practice Book § 23-37 . . . and that habeas corpus proceedings are, in fact, civil in nature. See 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)." Stevens v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 06 4000926 (November 27, 2007, Schuman, J.). The Superior Court has previously recognized and addressed motions to strike certain counts of a habeas petition. E.g., Logan v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 06 4001037 (October 3, 2008, dos Santos, J.).
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In . . . ruling on the . . . motion to strike, the trial court . . . [must] take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
In the present case, the petitioner is correct that there is no legal basis for the procedural default defense. Even construing the pleadings in a light favorable to the respondent, it is clear that the petitioner has never proceeded to judgment on a prior habeas petition and, therefore, the failure to raise the present claims in either of the prior two petitions cannot constitute a default. The respondent offers no authority for the proposition that "failing to proceed with his prior petitions" is grounds for a finding of procedural default. The only law cited is the general principle that a petitioner is procedurally defaulted from raising claims that could have been raised on direct appeal. See Henderson v. Commissioner of Correction, 104 Conn.App. 557, 570, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008). This does not, however, speak to a situation like the present one, where prior petitions were filed but never adjudicated on the merits or even dismissed by the court prior to trial. "As the United States Supreme Court has noted in specifically adopting the cause and prejudice standard to analyze procedural defaults on direct appeal: A State's procedural rules serve vital purposes at trial, on appeal, and on state collateral attack . . . [Such rules] [afford] . . . the opportunity to resolve the issue shortly after trial, while evidence is still available both to assess the defendant's claim and to retry the defendant effectively if he prevails in his appeal . . . This type of rule promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case." (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 227 Conn. 124, 134, 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 490-91, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). These concerns are not implicated, however, in the context of claims not raised in a habeas petition, which may be filed at any time while the petitioner is still in custody without time limitation.
Although the Henderson court stated that "[o]ur review of the record before the habeas court reveals that the petitioner did not raise his constitutional claims on direct appeal or in his first petition for a writ of habeas corpus. Those claims, therefore, would be subject to the defense of procedural default in the habeas proceedings"; Henderson v. Commissioner of Correction, supra, 104 Conn.App. 570; this statement is taken out of context and does not stand for the proposition that the failure to raise a certain claim in a habeas corpus petition precludes the claim's consideration in a subsequent petition. As the petitioner correctly points out, this is curtailed only by the case law and Practice Book sections regarding successive petitions, which are not at issue here. See Practice Book § 23-29(3); Negron v. Warden, 180 Conn. 153, 158, 429 A.2d 841 (1980); Harris v. Warden, 108 Conn.App. 201, 947 A.2d 435 (2008).
But cf. n. 2, supra.
The present case presents the same situation as Velasco v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 05 4000321 (August 13, 2008, Schuman, J.). In Velasco, the court held that the respondent's defense of procedural default was inapplicable because the petitioner's prior habeas petitions had been withdrawn. This court agrees with the reasoning in Velasco and concludes that procedural default does not apply where a prior petition has been filed but has been withdrawn by the petitioner. This court looks with some disfavor upon the repetitive filing and withdrawal of petitions; nevertheless, the petitioner's claims have not been adjudicated on the merits and there is no basis for the defense of procedural default. Although this issue in Velasco was not decided via motion to strike, the considerations remain the same.
Nevertheless, this court is not of the opinion that a motion to strike is the appropriate vehicle by which to challenge the defense of procedural default. In Carmona v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 06 4001360 (October 4, 2007, dos Santos, J.) [44 Conn. L. Rptr. 279], appeal dismissed, 110 Conn.App. 194, 954 A.2d 265 (2008), the habeas court denied petitioner's motion to strike the special defense of procedural default on the grounds that the habeas-specific sections of the Rules of Practice provided a more appropriate remedy for the petitioner. The court in Carmona reasoned that a motion to strike should not act as a "means to unburden a petitioner from the burden shifting emanating from well-established common law and Practice Book rules on procedural default." Id. The present situation differs somewhat because rather than there existing a factual dispute over the applicability of procedural default or the existence of cause and prejudice for the default, here, there is no legal basis for the procedural default defense from the outset. In Carmona, the respondent had alleged that the petitioner had not raised the claim at trial or on direct appeal, claims which, if true, would constitute grounds for procedural default. To the contrary, in the present case, even if the respondent's claims that the petitioner has raised the present claims in cases he subsequently withdrew are true, this would not constitute procedural default. Thus, the defense fails as a matter of law regardless of the truth of the facts therein.
This conclusion notwithstanding, this court concurs with the rationale in Carmona that a motion to strike is not an appropriate mechanism by which to challenge a defense of procedural default in light of the language in Practice Book § 23-31, which provides in relevant part: "(a) If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply . . .
"(c) The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. The reply shall not restate the claims of the petition." (Emphasis added.) The mandatory language "shall" strongly suggests that a reply is the appropriate method of challenging or denying a procedural default defense. While civil motions may have a place in the habeas context despite their absence in the habeas-specific section of the practice book, this court does not believe that, in the situation presented by this case, a motion to strike is appropriate.
Moreover, such a practice would contravene the fundamental goal of the motion to strike in simplifying pleadings and conserving parties' and judicial resources. Unlike a legally insufficient claim or defense in a standard civil action, which may, if it is not stricken early in the proceedings, necessitate the needless expenditure of time and resources to litigate, procedural default in a habeas case is often readily apparent and requires little in the way of evidence or proof. Often a simple denial by the petitioner is all that is required to counter the respondent's claim of procedural default, and the claim is not addressed at trial and is disposed in cursory fashion by the habeas court. To engage in the standard practice of moving to strike a defense serves only to complicate this efficient process and add an additional layer of pleadings and briefs, court resources, and time spent on oral argument where it is not necessary. The habeas-specific sections of the Practice Book already provide for the appropriate procedures by which a petitioner is to counter a defense of procedural default.
This is not to say that a motion to strike never has a place in a habeas case, simply that it is inappropriate in the context of attacking a respondent's claim of procedural default.
The petitioner's motion to strike the special defense of procedural default is denied.