Opinion
No. CV 01-452868 S
August 5, 2003
MEMORANDUM OF DECISION
The respondent on July 15, 2002 filed a motion for summary judgment. The petitioner had filed a pro se petition for a writ of habeas corpus claiming a violation of the time period and anti-shuttling provision of the Interstate Act on Detainers (IAD), C.G.S. 54-186 et seq. The petitioner on December 5, 2001 filed an Amended Petition alleging that he was not brought to trial for the assault charges related to his assaults of correction officers on July 24, 1996, and he was improperly retained to custody of US Marshall's on August 27, 1996. He therefore claims his conviction and sentence of six years for the assault was improper because the sentencing court ordered the sentence to begin after he completed a federal sentence. The six-year sentence was imposed on April 11, 1997.
On May 14, 2002 the petitioner was extensively canvassed by the habeas court (Robinson, J.) and he agreed to proceed pro se to brief the claims and to proceed only on count five of the Amended Petition. The petitioner claims that the criminal charges resulting in his conviction for assaults was illegal because the trial court lacked "subject matter jurisdiction."
This court finds from the affidavit of Lynn Milling, dated July 10, 2002, as the Interstate Compact Supervisor for the Connecticut Department of Correction (DOC) that it relates the pertinent information of the petitioner. Petitioner on March 20, 1995 was terminated as a Connecticut Department of Corrections employee after his arrest on weapons charges by federal authorities. He was then committed to the D.O.C. to await designation to a federal facility. On May 10, 1995 he was confined at the Bridgeport Correctional Center. On May 13, 1995 he was charged with an arson incident at the Correctional Center. On August 7, 1995, US Marshals transferred petitioner to a federal facility. On April 4, 1996 he was sentenced to eighty-seven months in the federal court for weapons and narcotic offenses. On May 31, 1996 he was readmitted to Bridgeport Correctional Center pending disposition of criminal charges in Connecticut. After his transfer to the New Haven Correctional Center on July 24, 1996 he assaulted a D.O.C. employee. He subsequently received a sentence of twelve years suspended after six years for Assault on a Peace Officer, which was to be served consecutive to his federal sentence. On August 27, 1996, U.S. Marshals removed him to the custody of federal authorities. After his removal from Connecticut IAD was utilized to obtain Petitioner's presence in New Haven, Fairfield and Enfield. On December 3, 1996, he was returned to Connecticut pursuant to IAD to dispose of all of his pending cases in this state. On April 11, 1997 he was sentenced in New Haven Superior Court to an effective sentence of six years for the assault charge, consecutive to the federal sentence he was serving at the time. On May 20, 1997 he was sentenced in Bridgeport Superior Court for the arson charge to an effective sentence of two years, concurrent to the federal sentence he was serving at the time. On May 29, 1997 he was returned to the custody of the Federal Bureau of Prisons (BOP). All of the charges in Connecticut were disposed of between December 3, 1996 and May 29, 1997. On July 17, 1998 he was discharged from the two-year sentence for the arson conviction imposed by the Bridgeport Superior Court. On August 7, 2001 he was discharged from his federal sentence and his six-year sentence for assault of a correction officer commenced to run on August 7, 2001. On November 7, 2001 petitioner was returned to the Connecticut Department of Corrections, and he continues to serve that sentence, and has a discharge date of August 5, 2007.
This court also finds from the affidavit of Lynn Milling that IAD was not effectuated until September 1996. He was returned under the IAD on December 3, 1996, and his criminal trial commenced January 13, 1997. The anti-shuffling provisions were not violated because IAD was not triggered until September 1996, and all his criminal cases were disposed of between December 3, 1996 and his return to federal custody on May 29, 1997.
The petitioner in this habeas action claims that his criminal charges should be dismissed because his present conviction is illegal and his confinement is unlawful. The respondent contends there is no merit to the claims of the petitioner and a summary judgment should be granted.
The criminal conduct of the petitioner occurred after he was admitted on a continuance mittimus on May 31, 1996 and he was not subject to IAD on July 24, 1996 when he assaulted a DOC employee. The Petitioner arrived in Connecticut under the IAD on December 3, 1996 and began trial January 13, 1997 well within the 120-day period of the IAD. It is also noted that Judge McMahon on August 23, 1996 issued a valid court order waiving any applicable time limits of the IAD. Petitioner's claims are not sufficient to constitute a "fundamental defect" constituting "manifest injustice" to form a basis for habeas corpus relief. Reed v. Farley, 512 U.S. 339, 114 S.Ct. 2291 (1994).
The petitioner has failed to allege an IAD violation which actually interferes with his ability to secure a fair trial. Ronald Johnson v. Commission of Corrections, 60 Conn. App. 1; Michael Roland Roy v. Connecticut Department of Corrections, Civ. No. H86-18 (AHN) (D.Conn. Jan 24, 1991). Petitioner has failed to demonstrate any actual injury and therefore any standing to obtain habeas relief Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174 (1996); Washington v. Meahum, 238 Conn. 692; State v. Fernandez, 254 Conn. 637.
The petitioner was tried within the 120-day period under Article IV (C) of the IAD of his transfer to Conn. on December 3, 1996. He was unable to stand trial in Bridgeport and Enfield while he was being prosecuted on pending charges in New Haven which ended in a guilty verdict. In State v. Taylor, 63 Conn. App., it was determined that IAD applied to petitioner's May 31, 1996 admission to DOC, and the detainer in place covered the arson charge which was pending at that time, and did not apply to the assault charge which occurred on July 24, 1996. The IAD was not involved until September 1996 and until IAD was invoked, none of the IAD provisions applied United States v. Roy, 771 F.2d 54 (2nd Cir. 1985); US v. Mauro, 426 U.S. 357, 98 S.Ct 1834 (1978). A writ of habeas corpus was not a detainer for purposes of the IAD. No detainer issues under the IAD arose prior to the date petitioner was produced in Conn. under the IAD December 3, 1996. He was not shuttled but returned to federal custody once on May 29, 1997.
The amended petition for a Writ of Habeas is dated December 5, 2001 and it was filed by Attorney Sebastian DeSantis who represented the petitioner. The petition alleges the petitioner was convicted after a jury trial. The conviction occurred in the case of State v. Taylor, with docket number CR 96-0434841. On February 7, 1997 he was found guilty of assault and on April 11, 1997 he was sentenced to a total sentence of six years to serve with five years of probation. The conviction was appealed and the Appellate Court affirmed the conviction in State v. Taylor, 63 Conn. App. 386 (2001). The Supreme Court denied the petition for certification on July 10, 2001. The petitioner alleged in the habeas action that he was denied his right to effective assistance of both trial counsel, and of appellate counsel. The six counts allege (1) Ineffective assistance of trial counsel and appellate counsel (2) The sentence was illegal (3) Denial of a fair trial (4) Denial of trial counsel and inadequate assistance of standby counsel (5) Violation of C.G.S. § 54-186 Interstate Agreement on Detainers (6) Claims of ineffective assistance of counsel.
The return to the amended petition dated February 11, 2002 was filed by Assistant State's Attorney for the respondent. A defense alleged the claims were resolved on direct appeal, and that petitioner has not established "cause and prejudice" for not raising the claims as required under Johnson v. Commissioner, 218 Conn. 403 (1991), and Jackson v. Commissioner, 227 Conn. 124 (1993).
On February 21, 2002 petitioner filed a pro se appearance, also a motion to strike the Amended petition. The motion was denied February 27, 2002. On June 6, 2002 the petitioner filed a motion to dismiss the changes of the charges resulting in his conviction based upon his claim the court lacked subject matter jurisdiction. The petitioner's pro se motion was never granted.
On July 15, 2002 the respondent filed a Motion for Summary Judgment. On January 14, 2003 the motion came for argument before Judge Hadden at the New Haven Superior Court. At that hearing Attorney DeSantis and Attorney Johnson appeared with the petitioner who acted pro se. Attorney Johnson represented the petitioner for the conviction in New Haven for the assault charges. Attorney DeSantis represented the petitioner for the conviction in Bridgeport for the arson charges. The petitioner represented himself pro se. At the hearing Attorney Johnson agreed to file a response to the motion for summary judgment by February 18, 2003.
At the January 14, 2003 hearing Judge Hadden stated that the motion for summary judgment is only directed at the fifth count which involves the IAD issue (pg. 69 of transcript). In file #452868 the respondent was to file an amended motion for summary judgment on or before February 4, 2003, and the petitioner was to file a response on or before February 18, 2003. The respondent on February 4, 2003 filed an amended motion for summary judgment as to count five of the Amended Petition dated December 5, 2001. Attached to this amended motion and memorandum of law were additional affidavits of Lynn Milling, Michelle DeVeau and Frank Garr. The respondent also included previous memoranda filed.
Judge Hadden on January 14, 2003 stated the summary judgment hearing would proceed by way of affidavits and arguments.
The amended motion for summary judgment filed by the respondent claims it is entitled to judgment as a matter of law because the IAD claims were resolved on direct appeal and petitioner cannot establish "cause and prejudice." It also argues an IAD violation cannot be raised in a collateral attack on the conviction, nor does petitioner have a factual basis to withstand the motion for summary judgment.
On March 28, 2003 Attorney Johnson filed petitioner's memorandum in opposition to respondent's amended motion for summary judgment, with an affidavit from petitioner. The petitioner also filed extensive motions which were never granted. On May 29, 2003 Attorney Johnson filed a motion to withdraw as counsel and on June 18, 2003 the motion was granted. Judge DeMayo ordered the summary judgment motion be assigned for July 18, 2003. He also stated the petitioner is thereafter acting pro se. Petitioner then filed a series of motions, and none of them were granted.
On July 11, 2003 a hearing was held before Judge Radcliffe who referred petitioner's request for issuance of subpoenas to the judge at the hearing on the motion. July 18, 2003 the pending motion for summary judgment was assigned for a hearing. The pro se petitioner appeared for the hearing. The pro se petitioner at the hearing requested the court to issue twelve subpoenas to reconstruct the record, and that request was denied. At the hearing Attorney DeSantis argued his motion to withdraw as counsel for the petitioner, which the court reserved the right to rule upon.
As a result of the hearing on July 18, 2003 the court concluded the operative pleading were the petition dated December 7, 2001, and the return dated February 11, 2002. The motion filed by the respondent for summary judgment was dated July 15, 2002 with the attached documents as well as the amended motion for summary judgment and documentation filed December 5, 2003. The petitioner's memorandum with the affidavit of the petitioner attached was also considered by the undersigned. The undersigned also considered the amended motion for summary judgment on count five of the amended petition. Judge Robinson on May 14, 2002 found that the petitioner agreed to proceed on count five of the Amended Petition. On January 14, 2003 Judge Hadden also found the motion for summary judgment was only directed to the fifth count of the Amended Petition.
Practice Book § 17-45 provides that a motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits. The adverse party shall file opposing affidavits and other documentary proof. Practice Book § 17-49 states that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
This court finds that on December 3, 1996 the petitioner was brought back to Connecticut for the first time under the IAD and the trial commenced January 13, 1997 within the requirements of the IAD. The IAD was never involved prior to those dates. The memorandum of law of the petitioner and his affidavit do not support the allegations of the fifth court. The IAD was not violated and therefore summary judgment is granted as to count five.
Howard F. Zoarski Judge Trial Referee