Opinion
No. CV07-4001680S
July 25, 2008.
Memorandum of Decision
The respondent warden moves for summary judgment on the ground that the habeas petition, which raises a claim under Santobello v. New York, 404 U.S. 257 (1971), is barred by res judicata and procedural default because the petitioner litigated the same claim in a motion to correct an illegal sentence and did not appeal its denial. For the reasons that follow, the court grants the motion.
I
The material facts are undisputed. On December 5, 2005, the petitioner was arrested and detained in jail for possession of narcotics (first arrest). On January 25, 2006, while in jail, the petitioner was arrested for a prior incident and charged with second degree larceny, criminal impersonation, and first degree forgery (second arrest). On July 11, 2006, the petitioner pleaded guilty to charges stemming from both arrests. The court, Shluger, J., thereupon imposed a sentence of ten years incarceration suspended after five years for the first arrest and a concurrent term of five years for the larceny charge in the second arrest, for a net effective sentence of ten years suspended after five years of incarceration.
The petitioner also admitted to a violation of probation and the court then terminated the prior probation.
At the plea hearing, defense counsel stated that the petitioner "has been incarcerated since December 5th . . . I would like to make sure that [the petitioner] gets credit on all files for that period of incarceration." The court responded that the mittimus should reflect that the petitioner should receive "all appropriate jail credit as computed by the Department of [Correction]."
The department of correction (department) computed the petitioner's discharge date as January 24, 2011, which was five years from the date of the second arrest. Thus, the department did not give the petitioner credit on the case involving the second arrest for the fifty days he was confined between the first and second arrest. The petitioner thereupon
filed a "Motion for Revised Judgment Mittimus" with the sentencing court claiming that the sentence was illegal under Santobello because it violated the agreement of the parties that the petitioner should receive jail credit on both sentences from the time of the first arrest. On October 26, 2007, Judge Shluger denied the motion without an evidentiary hearing or oral argument. The court wrote in a margin endorsement that the petitioner "wants presentence confinement credit on both files for 12/5/05-1/25/06 but that date precedes the date of his arrest in the second file."
Santobello held that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, supra, 404 U.S. 262.
The petitioner then filed a Motion for Reconsideration. On March 31, 2008, Judge Shluger denied the motion on the papers. In a memorandum of decision, the court concluded that "there was no implied promise by the State and no agreement between the parties on [the issue of jail credit]." The petitioner did not appeal from either the original denial or the denial of the motion for reconsideration.
The present habeas petition raises the same Santobello claim. The respondent contends that res judicata and procedural default bar the petition. The respondent accordingly moves for summary judgment pursuant to Practice Book § 23-37.
Section 23-37 provides: "At any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law."
II
The res judicata doctrine in habeas cases bars relitigation of "claims that actually have been raised and litigated in an earlier proceeding." Thorpe v. Commissioner of Correction, 73 Conn.App. 773, 778-79 n. 7, 809 A.2d 1126 (2002). There is no dispute that the petitioner raised the same Santobello claim or ground before the sentencing court that he raises now. See Meija v. Commissioner, 98 Conn.App. 180, 187-90, 908 A.2d 581 (2006). The question instead is whether the petitioner "actually . . . litigated" the claim in the prior proceeding. Thorpe v. Commissioner of Correction, supra, 73 Conn.App. 778-79 n. 7.
The petitioner contends that he did not actually litigate the claim previously because the sentencing court denied the motions without a hearing. He now asserts that he seeks to call three witnesses — trial defense counsel, the assistant state's attorney, and the petitioner — to testify at a habeas trial on the existence of a Santobello agreement and that he did not have the opportunity to call them before the sentencing court.
The public policy behind the res judicata doctrine is that "a party should not be able to relitigate a matter that it already has had a fair and fill opportunity to litigate." In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 661, 866 A.2d 542, cert. denied, 513 U.S. 1165 (2005). The doctrine does not literally require that a trial or any particular form of hearing take place, as long as the petitioner had an opportunity to litigate and the trial court resolved the issue on the merits. See Boone v. Backus Hospital, 102 Conn.App. 305, 311, 925 A.2d 432, cert. denied, 284 Conn. 906, 931 A.2d 261 (2007) ("a judgment obtained through the grant of summary judgment against a plaintiff constitutes a judgment on the merits for purposes of res judicata") (internal quotation marks omitted). See also Johnson v. Commissioner of Correction, 288 Conn. 53, 67 (2008) ("the second habeas court properly found that the petitioner had an opportunity to litigate fully the effectiveness of his trial counsel in his first habeas proceeding"); Davis v. Commissioner of Correction, 109 Conn.App. 92, 96 (2008) ("[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim") (internal quotation marks omitted).
In this case, the petitioner had a fair and full opportunity for a hearing, but did not take advantage of it. The petitioner acknowledges that his motion for a revised judgment mittimus was essentially a motion to correct an illegal sentence under Practice Book § 43-22. The plain language of § 43-22, however, does not require any particular form of hearing. Nor does the case law. The operative rule in this situation is that "unless otherwise required by statute, a rule of practice or a rule of evidence, whether to conduct an evidentiary hearing generally is a matter that rests within the sound discretion of the trial court." (Internal quotation marks omitted.) State v. Michael J., 274 Conn. 321, 332, 875 A.2d 510 (2005). Here, the petitioner gave the trial court no reason to exercise its discretion to order a hearing. The petitioner's motion did not ask for oral argument or indicate that testimony would be required. The petitioner made no mention in his motion of any desire to call any of the three witnesses whom he now wishes to testify. The petitioner instead submitted a copy of the transcript of the sentencing proceeding with his motion, thus suggesting, in light of his omissions to request more, that the transcript was the only evidence that the sentencing court needed to consider.
Section 43-22 provides: "The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner."
State v. Henderson, 82 Conn.App. 473, 844 A.2d 922 (2004), relied upon by the petitioner, is not to the contrary. In Henderson, the sentencing court had misconstrued the defendant's pro se motion to correct an illegal sentence as a motion for sentence modification, which it believed it did not have authority to entertain. The Appellate Court remanded "for a hearing on the motion [to correct]." Id., 475. A reading of the opinion reveals, however, that the Court's focus was not on whether the defendant should receive any particular form of hearing, but rather on insuring that the sentencing court consider the defendant's motion to correct on the merits. At no point did the Court discuss the nature of the hearing that the defendant should receive.
The analysis is similar for the motion to reconsider. It is true that the petitioner specifically noted on this motion that he requested oral argument and might require the presentation of testimony. However, if one analogizes a motion to reconsider to a motion to reargue in civil cases, then there is no right either to an evidentiary hearing or oral argument. See Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981
(2001) (a motion to reargue "is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument") (internal quotation marks omitted); Practice Book § 11-12[c] ("The motion to reargue shall be considered by the judge who rendered the decision or order. Such judge shall decide, without a hearing, whether the motion to reargue should be granted. If the judge grants the motion, the judge shall schedule the matter for hearing on the relief requested."). Here as well, the petitioner gave the sentencing court no reason to exercise its discretion to order a hearing. Although the petitioner alleged that the court had denied the original motion without a hearing, the petitioner did not allege that that denial was erroneous. The petitioner again did not identify any additional evidence that he wished to present. The gist of the motion was that the court had mistakenly decided the issue on the basis of the statutes governing jail credit rather than the due process mandates of the Santobello rule. The sentencing court's memorandum of decision responds precisely to that issue.
The petitioner, in short, received exactly the opportunity to litigate to which he was entitled given the limited nature of his requests and the governing law. Thus, the petitioner had a full and fair opportunity to litigate the Santobello motion before the sentencing court. The res judicata doctrine bars his attempt to relitigate this matter.
III
The petitioner's failure to appeal the sentencing court's denial of his Santobello motion constitutes a procedural default and thus an alternative ground for granting the motion for summary judgment. Although there is no appellate court decision precisely on point, the Supreme Court's decision in Orcutt v. Commissioner, 284 Conn. 724, 937 A.2d 656 (2007), leads the way. There the Supreme Court stated: "[U]nder Cobham v. Commissioner of Correction, [ 258 Conn. 30, 38, 779 A.2d 80 (2001)], the petitioner first was required to raise his Santobello claim via a motion to correct an illegal sentence or on direct appeal. As a general matter, a defendant who files a petition for a writ of habeas corpus will be deemed to have procedurally defaulted unless he exhausts at least one of those remedies." Id., 737. While Orcutt does not specifically hold that a habeas petitioner must appeal the denial of a motion to correct to avoid a procedural default, the court now concludes that the failure to take such an appeal is, under CT Page 12430 Orcutt, a failure to "[exhaust] . . . one of [the available] remedies." Id. The general purpose of the requirement of taking a direct appeal
In Jefferson v. Commissioner of Correction, 99 Conn.App. 321, 325, 913 A.2d 491, cert. denied, 281 Conn. 928, 918 A.2d 277 (2007), a per curiam opinion, the Appellate Court held without explanation that a habeas petitioner's failure to appeal the denial of his motion to correct was part of the basis for a res judicata bar rather than a procedural default. To be sure, it is possible to see the availability of an appeal as part of the petitioner's full and fair opportunity to litigate and thus related to the res judicata doctrine. In any event, the Court did not discuss procedural default.
As discussed in Cobham, supra, 258 Conn. 38-39, the reason for the preference for raising these claims in the sentencing court is that that court can usually reach the matter more expeditiously and has access to various sentencing remedies that the habeas court does not have.
rather than raising a matter in a habeas petition is to insure the orderly resolution of criminal cases. Our Supreme Court has stated:
[S]pecial problems . . . are likely to arise relating to the feasibility of a second trial when a conviction is set aside by a habeas court rather than by an appellate court. These problems are related mainly to the more extended delay of the second trial that frequently results from a reversal of a conviction by a habeas court. There is no statute of limitation or other time limit that would bar a habeas petition . . . Ordinarily the petition may not be filed until appellate remedies have been exhausted . . . An additional record must be created in the habeas court, which may require extensive testimony. If the petitioner is successful in overturning his conviction, another appeal is almost inevitable.
A direct appeal following a conviction, on the other hand, is subject to strict time limits at each stage of the proceeding. Except for extraordinary cases, an appeal in this state is ordinarily determined within approximately one year from the date it was filed. The greater time lapse that results when a second trial is ordered by a habeas court has a serious impact on the availability of witnesses and other evidence for the second trial. Memories fade with the passage of time, exhibits are lost, and other evidence is less likely to be available. Appellate counsel would have less incentive to raise on appeal all arguable constitutional claims of the defendant if another opportunity to raise such claims were available in the habeas court.
(Internal quotation marks omitted; citations omitted.) Jackson v. Commissioner of Correction, 227 Conn. 124, 132-33, 629 A.2d 413 (1993).
Although some of these policy considerations do not apply fully to the appeal of a denial of a motion to correct an illegal sentence, the overall analysis is similar. The litigation of a claim of an illegal sentence in habeas court rather than on direct appeal from the denial of a sentencing court's decision is likely, in most cases, to finish after the time it would take to complete the appeal. An appellate court has an
existing record to review, whereas the parties must create a new one in habeas court. And review of an illegal sentencing claim puts the habeas court in the difficult position of reviewing a coordinate judge's decision, which is more properly the role of an appellate court. Largely for these reasons, our Supreme Court has stated that "a habeas corpus petition may not be employed as a substitute for a direct appeal." Somerville v. Warden, 229 Conn. 397, 429, 641 A.2d 1356 (1994). The court therefore finds a procedural default.
The petitioner asserts that there was cause and prejudice for any procedural default. The petitioner contends that the cause for the failure to appeal was the fact that any appeal would not resolve the merits of the Santobello claim but would instead focus on the sentencing court's decision not to hold a hearing. However, the absence of a hearing was not the sort of "objective factor external to the defense" that would constitute cause. (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 568, 941 A.2d 248 (2008). Rather, because the petitioner himself did not request a hearing or inform the sentencing court that he had several witnesses whom he wished to call, the absence of a hearing cannot constitute an external factor. Therefore, the petitioner cannot excuse the procedural default.
The petitioner's case for proving prejudice is the same as the merits of his Santobello claim. Because there is no cause for the procedural default, the court need not consider the prejudice prong. See Henderson v. Commissioner of Correction, 104 Conn.App. 557, 569, 935 A.2d 162, cert. denied, 285 Conn. 911, 943 A.2d 470 (2007).
IV
The court grants the respondent's motion for summary judgment. The petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.