Opinion
No. CV 04 4000125 S
August 14, 2008
MEMORANDUM OF DECISION
On September 7, 2004, the petitioner, Lawrence Smith, filed a petition for a writ of habeas corpus, challenging the legality of his detention. He was convicted of possession of narcotics in violation of General Statutes § 21a-279(a) and sentenced on September 28, 1995 by the court, J. Kaplan, J., to seven years incarceration, to be served consecutively to a fifty-one-year sentence he was currently serving. He was represented throughout the criminal trial proceedings by attorney Lawrence W. Bates, Jr. No appeal was timely filed from the conviction.
The petitioner filed the operative four-count, third amended petition in the present case on April 10, 2008. The respondent filed an amended return on April 18, 2008, denying the material allegations of the petition and asserting, inter alia, the special defenses of procedural default to each count. On April 28, 2008, the parties jointly moved for a stipulated judgment on counts one, three and four, whereby the petitioner would withdraw those counts in return for his appellate rights from his underlying criminal trial being restored. Additionally, the respondent orally moved to dismiss count two on the same day. The court granted the motion for a stipulated judgment on May 21, 2008, leaving only count two of the petition, and the respondent's motion to dismiss it, pending before the court.
In count two, the petitioner alleges that his standby counsel, attorney Bates, so interfered with his representation of himself at his criminal trial that his rights to self-representation and due process of law under the sixth and fourteenth amendments of the United States constitution and Article First, § 8 of the Connecticut Constitution were violated. He also alleges that attorney Bates "did not perform certain tasks that he was requested to perform" and that attorney Bates falsely signed an affidavit attesting that he had never signed any appeal documents for the petitioner.
DISCUSSION CT Page 13601
Practice Book § 23-29 provides in relevant part: "The judicial authority may, at any time, upon its own motion or upon the motion of the respondent, dismiss the petition, or any count thereof, if it determines that: (1) the court lacks jurisdiction; . . . (4) the claims asserted in the petition are moot or premature; [or] (5) any other legally sufficient ground for dismissal of the petition exists." The respondent has moved to dismiss count two of the present petition on the grounds that (1) the issue has already been decided and, therefore, the doctrine of res judicata bars further review by this court, and (2) that the petitioner, having failed to raise these claims at trial or on direct appeal, is procedurally defaulted from raising them now.The petitioner has filed numerous habeas petitions in the past. The respondent first argues that the petitioner has already raised the same claims against attorney Bates in Smith v. Warden, Docket No. CV 99 0337848, that he does now in count two. In that case, the court, White, J., held that there was no right to the effective assistance of standby counsel and, therefore, denied the petitioner's claim. Notably, the court highlighted the fact that the petitioner had not alleged undue interference from his standby counsel. (Exh. C, pp. 7-8.) Thus, the petitioner's present claim, that his standby counsel unduly interfered with his pro se defense, is of a different nature than that already ruled on by the previous habeas court. Rather than being an ineffective assistance claim, it is premised on the sixth amendment right of a criminal defendant to present his own defense without unsolicited participation or interference by standby counsel. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (criminal defendant has constitutional right to self-representation); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122, reh. denied, 465 U.S. 1112, 104 S.Ct. 1620, 80 L.Ed.2d 148 (1984) (undue interference from appointed standby counsel may infringe upon the right to self-representation); see also State v. Oliphant, 47 Conn.App. 271, 281, 702 A.2d 1206 (1997) (defendant's constitutional rights may be violated when "standby counsel is overly zealous and interferes with the defendant's ability to conduct his trial"). Therefore, this claim is not presently barred by res judicata.
The respondent also asserts that this claim is successive, as it could and should have been raised in the petitioner's previous habeas petition. Because the claim is of a fundamentally different character and based on a different legal basis, however, the rule against successive petitions is not implicated. See Negron v. Warden, 180 Conn. 153, 158-61, 429 A.2d 841 (1980); cf. Carpenter v. Commissioner of Correction, 81 Conn.App. 203, 211-12, 840 A.2d 1 (2004), rev'd on other grounds, 274 Conn. 834, 878 A.2d 1088 (2005) (attorney's ineffective pretrial investigation/ineffective request on jury instructions not the same grounds as attorney's failing to appeal or protect petitioner's right to appeal).
The respondent next contends that the petitioner is procedurally defaulted from raising the claim of interference by standby counsel because he failed to raise the claim at trial or on direct appeal. Normally, a petitioner faced with a defense of procedural default must be given an opportunity to establish cause for the default and resulting prejudice. Council v. Commissioner of Correction, 286 Conn. 477, 489, 944 A.2d 340 (2008). This inquiry would be academic in the present case, however, where the petitioner's right to an appeal has already been reinstated by this court after mutual agreement of the parties. Thus, any attempts by the petitioner to allege and show cause why the claim was not raised on direct appeal, and the resulting prejudice, would be an exercise in futility, because the restoration of his appellate rights renders any previous default on his part irrelevant.
Moreover, the reinstatement of his appellate rights makes the petitioner's claim premature in a habeas court, which is not in a position to review claims that are more properly addressed via direct appeal. The petitioner's present claims are not of ineffective assistance of counsel, but of the denial of his constitutional right to self-representation, a claim best addressed in the first instance either in the trial court or on direct appeal. See, e.g., State v. Flanagan, 102 Conn.App. 105, 925 A.2d 385 (2007) (en banc); State v. Oliphant, supra, 47 Conn.App. 271. Under the present circumstances, consideration of this claim by this court would not only usurp the province of the Appellate Court, but could potentially lead to conflicting judgments if the petitioner were to also argue this claim on direct appeal.
Therefore, the respondent's motion to dismiss count two is granted. Should the petitioner wish to appeal, his counsel shall submit a judgment file to the court within thirty days.