Opinion
No. CV05-4000543 S
October 15, 2008
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS
Respondent's motion to dismiss requests that this court dismiss counts one and two of the amended petition dated and filed April 7, 2008. As to count one, which asserts a claim of actual innocence, the respondent argues that the petitioner is not entitled to relief as a matter of law because he has not pleaded sufficient facts to establish newly discovered evidence. As to count two, which claims ineffective assistance by trial defense counsel, attorney Dennis McDonough, the respondent argues that the claim is barred by the doctrine of res judicata or, in the alternative, because it is a successive claim.
The petitioner filed an objection to the motion to dismiss. According to the petitioner, the claim in count one does not fail as a matter of law because he pleaded sufficient facts in the amended petition to establish the claim is premised on newly discovered evidence. The petitioner further avers that the respondent's return did not deny the claim in count one and that the respondent's request for a more specific statement also failed to address count one. And as to count two, the petitioner's objection indicates that count two contains information, claims and allegations which have not previously been addressed or decided in a prior petition; thus, res judicata is not applicable to count two.
The parties came before this court on September 5, 2008 for a hearing on the motion to dismiss. Both the petitioner and the respondent offered no additional argument and rested on their respective briefs. For the following reasons, the motion to dismiss is denied as to count one and granted as to count two.
DISCUSSION
A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.
Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . (Internal citations and quotation marks omitted.)
Young v. Commissioner of Correction, 104 Conn.App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). Nevertheless, the petitioner ". . . bears the burden of proving that the court has subject matter jurisdiction." Id.
Practice Book § 23-29 provides in relevant part that: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . . (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition[.]" "In this context, a `ground' has been defined as `sufficient legal basis for granting the relief sought.'" Tirado v. Commissioner of Correction, 24 Conn.App. 152, 156, 586 A.2d 625 (1991). A habeas court may also dismiss all or part of a habeas corpus petition if "any other legally sufficient ground for dismissal of the petition exists." Practice Book § 23-29(5).
The pro se petition that initiated this matter asserted a single claim, namely ineffective assistance of counsel by attorney Kenneth Fox. Attorney Fox represented the petitioner in his first habeas corpus petition, docketed under CV03-0004182 in the judicial district of Tolland. As amended by and through appointed habeas counsel, the amended petition now raises claims of actual innocence (count one), ineffective assistance by attorney McDonough (count two), ineffective assistance by attorney Fox (count three), and ineffective assistance by attorney William Palmieri (count four), who represented the petitioner on appeal from the adverse judgment in the first habeas corpus matter.
Count one contains a free standing claim of actual innocence. The amended petition simply asserts that the petitioner is actually innocent of the crime of assault in the first degree, in violation of General Statutes § 53a-59. According to the amended petition, the petitioner entered a nolo contendere plea to that charge and the state nolled three other charges to resolve the charges pending in docket number CR02-115006. There is no allegation or indication that the petitioner entered a nolo contendere plea conditioned on his right to appeal some adverse ruling. Thus, the court concludes the plea was an unconditional nolo contendere plea.
After the petitioner filed the amended petition, the respondent filed a request for a more specific statement. The respondent's request sought the revision of the amended petition and, in accordance with Practice Book § 23-33, that the petitioner provide ". . . a more complete and particular statement of facts supporting each legal claim or to obtain any other appropriate correction in the preceding pleading." The request did not seek any revision or more particularized statement of facts regarding the claim of actual innocence in count one. The petitioner complied with the request and filed responses thereto on June 27, 2008.
The respondent then filed a return. As to count one, the respondent left the petitioner to his burden of proof and cited to case law holding that a claim of actual innocence in a habeas corpus matter must be based on newly discovered evidence. As to count two, the respondent asserted several defenses: res judicata and collateral estoppel, as well as that the claim was successive and an abuse of the writ. The petitioner's reply to the return, in accordance with Practice Book § 23-31(a), only responded to the defenses raised as to count two. The reply denies that res judicata and collateral estoppel apply to the claim of ineffective assistance of counsel by attorney McDonough, as well as that the claim is successive and an abuse of the writ.
The respondent now seeks to have count one dismissed because it fails to state a claim upon which habeas corpus relief may be granted. See Practice Book § 23-29 (2). More specifically, the respondent argues that ". . . because [the petitioner] did not reply to the respondent's return nor did he plead in his amended petition, sufficient facts to establish newly discovered evidence. See Batts v. Commissioner of Correction, 85 Conn.App. 723, 726-27, 858 A.2d 856 (2004). See also Williams v. Commissioner of Correction, 41 Conn.App. 515, 526-29, 677 A.2d 1, cert. improvidently granted, 240 Conn. 547, 692 A.2d 1231 (1997) (per curiam). To be considered `newly discovered,' the evidence must be such that it could not have been discovered prior to the criminal trial through the exercise of due diligence. Williams, 41 Conn.App. at 528-29." Mtn. to Dismiss, at 2.
It is well-established that a claim of actual innocence may be brought by way of a habeas corpus petition. See Miller v. Commissioner of Correction, 242 Conn. 745, 700 A.2d 1108 (1997). Thus, should the petitioner meet his burden of proof as to the claim of actual innocence, there most assuredly is relief this court could grant. Count one as alleged puts the respondent on notice of the petitioner's claim, what issue is to be decided in that count, and precludes the respondent from asserting surprise. See, e.g., Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 818, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004) ("The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise").
The respondent's reliance on Batts and Williams does not support dismissal of count one at this embryonic stage of the case. In Batts, the Appellate Court cited to Williams for the following: "[A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered." (Emphasis added.) Batts v. Commissioner of Correction, supra, 85 Conn.App. 726. After discussing the petitioner's burden of proof to prevail on such a claim, the Appellate Court reviewed the evidence presented by the petitioner in support thereof.
The petitioner must ". . . demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Batts v. Commissioner of Correction, 85 Conn.App. 723, 727, 858 A.2d 856 (2004). The petitioner's burden of proof as to the claim of actual innocence, however, is greater: "To prevail on a claim of actual innocence, the petitioner must satisfy two criteria. First, [he] must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, [he] must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime." (Citation omitted; internal quotation marks omitted.) Player v. Commissioner of Correction, 73 Conn.App. 556, 559, 808 A.2d 1140, cert. denied, 262 Conn. 926, 814 A.2d 378 (2002).
The court concludes from the foregoing that it has jurisdiction over the claim of actual innocence. The motion to dismiss count one therefore is denied. Furthermore, the court notes that the claim of ineffective assistance of habeas counsel alleges, inter alia, that attorney Fox rendered deficient performance by failing to properly investigate a claim of actual innocence. To prove that he was prejudiced by such deficiency, the petitioner will essentially have to prove the actual innocence claim. This further cements this court's conclusion that it has jurisdiction over the claim of actual innocence and that such claim presently cannot be dismissed.
Turning to count two and the claim of ineffective assistance by attorney McDonough, who was trial defense counsel, the petitioner identifies the following failures: inadequate advice concerning the evidence and potential affirmative defenses; exercising undue influence on petitioner's decision regarding resolving the matter by way of trial or plea; inadequately preserving and protecting the record for appeal. The respondent asserts that the petitioner is barred by the doctrines of res judicata and collateral estoppel from again claiming ineffective assistance by attorney McDonough. Although the respondent did not attach a copy of the operative complaint from the first habeas corpus, the respondent did cite to the Appellate Court's decision on the petitioner's appeal from the judgment in his first habeas petition. See Danzy v. Commissioner of Correction, 100 Conn.App. 654, 918 A.2d 1029 (2007).
The Appellate Court decision restates the claims from the first habeas as follows: ". . . the petitioner filed a second amended petition for a writ of habeas corpus, in which he alleged that McDonough rendered ineffective assistance in that he did not (1) investigate the case adequately, (2) interview various witnesses, (3) make effective use of the gunshot residue analysis report, (4) have the petitioner's clothing tested for gunshot residue, (5) represent the petitioner zealously and (6) file necessary motions, including a motion to suppress. The petitioner asserted that but for counsel's failures, he would not have entered into the plea agreement and, as a result, the plea was not knowing, intelligent and voluntary." Id., at 655-56. The habeas court (Elgo, J.) denied the petition in what the Appellate Court described as "detailed and well reasoned opinion." Id., at 656.
In the instant matter, count two undeniably again asserts a claim of ineffective assistance by attorney McDonough. The relief sought in the instant matter is that the petitioner's conviction be vacated and the matter be returned to the trial court for further proceedings, that he be released from custody, and such other and further relief as the law, equity and justice require. The relief sought in the first habeas corpus petition is indistinguishable, for had the petitioner prevailed by showing the plea was not knowing, intelligent and voluntary, the plea and ensuing conviction would thereby be vacated.
"[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief . . . But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition . . . Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language . . . Simply put, [a]n applicant must . . . show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground . . ." (Internal citations and quotation marks omitted.) Mejia v. Commissioner of Correction, 98 Conn.App. 180, 189-90, 908 A.2d 581 (2006).
Taking the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, and construing them in a manner most favorable to the petitioner, a fair reading of the factual allegations in count two underscores that it is wholly unsupported by allegations and facts not reasonably available to the petitioner at the time of the original petition. Consequently, and based upon the foregoing, the court finds the petitioner is precluded on the ground of res judicata from pursuing the claim in count two. The respondent's motion to dismiss count two is granted.
It is so ordered.