Opinion
No. TSR CV10-4003580
May 12, 2011
Ruling on Motion to Dismiss
The respondent moves to dismiss the petitioner's latest pro se habeas petition on the ground that the petitioner has filed two previous petitions raising the same grounds. The court conducted a hearing on the motion at which the petitioner appeared and argued in opposition.
The petitioner was convicted of one count of capital felony, four counts of murder, and one count of assault in the third degree in 1991 and received a sentence of life imprisonment without the possibility of parole. The Supreme Court affirmed his conviction in 1995. State v. Day, 233 Conn. 813, 661 A.2d 539 (1995). The petitioner was represented at trial by attorneys Patrick Culligan and William Holden and on appeal by attorney Richard Emmanuel.
The decision was overruled in part in State v. Connor, 292 Conn. 483, 528 n. 29, 973 A.2d 627 (2009).
In 2001, the petitioner filed his first habeas petition, which alleged ineffective assistance of all three of his previous attorneys. After a trial at which attorney James Ruane represented the petitioner, the court, Fuger, J., denied the petition. The habeas court found that "[criminal trial] counsel did a `superb job' of representing the petitioner, as the state's case, which involved multiple homicide counts, was strong. Despite the petitioner's filing a pro se motion for a speedy trial, and electing to represent himself during jury selection and the first day of evidence, the petitioner's reappointed counsel were able to avoid the death penalty in a case in which one of the murder victims was a five-year-old child." Day v. Commissioner of Correction, 86 Conn.App. 522, 525-36, 862 A.2d 309 (2004). `The petitioner, represented by attorney Lisa Steele, appealed the denial of habeas relief and the Appellate Court affirmed. Id.
In 2005, the petitioner filed a second petition alleging ineffective assistance by attorney Ruane. After a trial in 2007 in which the petitioner represented himself, the court, A. Santos, J., denied the petition. On appeal taken by attorney Mary Boehlert on the petitioner's behalf, the Appellate Court affirmed and the Supreme Court denied certification. Day v. Commissioner of Correction, 118 Conn.App. 130, 983 A.2d 869 (2009), cert. denied, 294 Conn. 930, 986 A.2d 1055 (2010).
The petitioner's latest pro se petition is at best rambling and, at worst, incomprehensible. To the extent ascertainable, the petitioner appears to allege additional ineffective assistance by all his previous attorneys as well as vague claims concerning false F.B.I. testimony at his criminal trial, violations of the Jencks Act, and denial of confrontation.
Upon review, the court dismisses the claims of ineffective assistance by Culligan, Holden, Emmanuel, and Ruane on the grounds of res judicata and Practice Book § 23-29(3). The latter provides for dismissal when the "petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition." These doctrines fully apply here even if the specifications of ineffective assistance differ from those in the previous cases, because ineffective assistance of the same attorney at the same trial seeking the same relief presents the same ground and cannot be litigated twice. See Mejia v. Commissioner of Correction, 98 Conn.App. 180, 187-90, 908 A.2d 581 (2006).
The court dismisses the claim of ineffective assistance against Steele and the freestanding claims of confrontation clause violations at his criminal trial on the ground of abuse of the writ. As the Appellate Court has observed: "[H]abeas corpus has traditionally been regarded as governed by equitable principles . . . Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks . . . Negron v. Warden, 180 Conn. 153, 166 n. 6, 429 A.2d 841 (1980). Indeed, the ability to bring a habeas corpus petition at any time is limited by the equitable doctrine of abuse of the writ based on unnecessary successive petitions. See Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994)." (Internal quotation marks omitted.) Dickinson v. Mullaney, 92 Conn.App. 689, 694 n. 5, 887 A.2d 390 (2005), reversed on other grounds, 284 Conn. 673, 937 A.2d 667 (2007). See Sherbo v. Manson, 21 Conn.App. 172, 175, 572 A.2d 378, cert. denied, 215 Conn. 808, 576 A.2d 539 (1990).
In this case, the petitioner had ample opportunity to raise the claim of ineffective assistance against Steele and the free-standing confrontation clause claims in his prior pro se petition. He has no one to blame but himself for failing to do so. Allowance of these additional claims at this point, some twenty years after his conviction, would run contrary to society's "need for finality of convictions." (Internal quotation marks omitted.) Young v. Commissioner of Correction, CT Page 11325 104 Conn.App. 188, 192, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). The latest petition, insofar as it raises claims that the petitioner could have raised previously, is an "unnecessary successive [petition]." (Internal citation omitted.) Dickinson v. Mullaney, supra, 92 Conn.App. 694 n. 5. It thus constitutes an abuse of the writ.
Although the respondent failed to raise this ground, the court can dismiss a petition "upon its own motion" if it determines that: "any other legally sufficient ground for dismissal of the petition exists." Practice Book § 23-29(5).
The only other possible claim concerns attorney Boehlert. The sole allegation in the current petition regarding Boehlert is as follows: "Because appellate attorney Steele failed/refused to raise these issues, appellate attorney Mary Boehlert failed/refused to raise these issues. Day v. Comm. of Correction, 118 Conn.App. 130 (2009)." Petition supplement, p. E. There is no specific allegation that Boehlert rendered ineffective assistance of appellate counsel. Moreover, a review of the petition reveals that the phrase "these issues" refers to the free-standing claims of perjury and confrontation clause violations. Because the petitioner did not raise these free-standing issues in his second petition, Boehlert could not possibly have raised them on appeal.
The court has corrected obvious grammatical or spelling mistakes in the quotation so as not to distract from the substance of the discussion.
At oral argument on the motion, the petitioner claimed that the petition alleges ineffective assistance against Boehlert because she failed to appeal the issue of whether Judge Dos Santos erred in denying his request to subpoena criminal trial counsel to his second habeas trial. The petition, however, mentions absolutely nothing of this claim. Further, the decision of Judge Dos Santos reveals that trial counsel Patrick Culligan did testify at the habeas hearing. Day v. Warden, Superior Court, judicial district of Tolland, Docket No. CV05 4000470, page 1 (August 27, 2007, Dos Santos, J) Finally, on appeal, the Appellate Court decided that the habeas court did not abuse its discretion in denying the petitioner a continuance to subpoena Culligan and Holden. Day v. Commissioner of Correction, supra, 118 Conn.App. 135 n. 4. For all these reasons, to the extent the petitioner has even stated a claim of ineffective assistance against Boehlert, the court dismisses these allegations because the petition "fails to state a claim upon which habeas corpus relief can be granted." Practice Book § 23-29(2).
The petition for a writ of habeas corpus is dismissed. Judgment shall enter for the respondent.
It is so ordered.