Opinion
CV154007271S
03-14-2016
Nathan Dull (Inmate #253135) v. Warden, State Prison
UNPUBLISHED OPINION
ORDER
Vernon D. Oliver, J.
The petitioner, Nathan Dull, initiated this third petition for a writ of habeas corpus, claiming that his 1999 conviction for murder should be vacated and that he should receive a new trial. The petitioner identifies several grounds in his pro se petition, which include, but are not limited to, that his sentence is illegal, that he received ineffective assistance of counsel, and that his mental state at trial was impaired. The petitioner attached hand-written documents in support of his pro se petition, which include the petitioner's acknowledgement that he killed the victim with a baseball bat. The hand-written supplement makes additional claims, namely that the petitioner was deprived of his: 1) first amendment right to free speech; 2) fifth amendment right against self-incrimination; 3) sixth amendment right to effective assistance of counsel; 4) eighth amendment right against cruel and unusual punishment; and 5) fourteenth amendment right to due process.
The matter was referred to the Office of the Chief Public Defender for an indigency investigation and assignment of counsel. On July 22, 2015, the Law Office of Christopher Duby, LLC filed a firm appearance. Shortly thereafter, on August 5, 2015, the respondent filed a request, pursuant to General Statutes § 52-470(d) and (e), asking the court to order the petitioner to show cause why he should be permitted to proceed despite his delay in filing the instant habeas corpus petition. This court granted the respondent's motion on August 27, 2015, and the parties appeared before this court on January 8, 2016, at which time the show cause hearing was scheduled for January 19, 2016. The parties appeared before this court on that latter date for the show cause hearing.
For the reasons articulated more fully below, the court concludes that the petitioner has failed to show good cause for the delay in filing the present habeas corpus petition. Accordingly, judgment shall enter dismissing the petition for a writ of habeas corpus.
I
PROCEDURAL HISTORY
The petitioner was the defendant in a criminal case brought in the judicial district of New London. The state charged the petitioner with murder in violation of General Statutes § 53a-54a. After opting for a trial before a three-judge panel (Miano, J., Parker, J., and Schimelman, J.), at which the petitioner unsuccessfully presented the affirmative defense that he should be found not guilty by reason of mental disease or defect pursuant to General Statutes § 53a-13(a), the petitioner was found guilty of murder. The petitioner thereafter was sentenced to a total effective sentence of thirty-five years of incarceration. The petitioner appealed from the judgment of conviction.
The Appellate Court's decision summarizes the underlying facts as reasonably found by the three-judge panel: " The [petitioner] had a long history of mental instability and substance abuse prior to the victim's murder. In the summer of 1990, the [petitioner] enlisted in the United States Marine Corps and began basic training at Parris Island. Thereafter, he was sent to Okinawa, where he experienced psychological and behavioral problems that resulted in his hospitalization at Bethesda Naval Hospital and treatment with antipsychotic medications. In the fall of 1992, he was discharged from the marines and classified as being 50 percent mentally disabled from paranoid schizophrenia, which entitled him to receive disability benefits. Thereafter, the [petitioner's] condition had worsened and he was reclassified as being 100 percent mentally disabled as of September 1995.
" In the fall of 1996, the [petitioner] moved to Groton. The victim and his friend, Richard Vanenburg, were crack cocaine dealers from Brooklyn and occasionally stayed at the [petitioner's] home. The [petitioner] sometimes purchased cocaine from the victim and Vanenburg with his monthly disability check or obtained the drug in exchange for allowing them to use his apartment.
" At approximately 8 a.m. on January 20, 1997, Vanenburg went to the [petitioner's] apartment for a prearranged meeting, but the [petitioner's] car was not in the parking lot. Vanenburg returned at 9 a.m. with a key to unlock the door. He entered the apartment where he discovered the victim's body on the bathroom floor. The evidence suggested that the victim died from multiple blows to the head and face by a baseball bat.
" The [petitioner] was located several hours later in Rhode Island, where he was interviewed by a detective. Although he admitted to using marijuana and crack cocaine on the day of the murder, he did not admit to killing the victim. Forensic evidence linked the [petitioner] to the killing, however, and, subsequently, he was charged with murder.
" The [petitioner] elected to be tried by a three judge panel . . . At trial, he offered the affirmative defense that he suffered from paranoid schizophrenia, that he was in an acutely psychotic state at the time of the killing and that he lacked substantial capacity to appreciate or control his wrongful conduct. On September 14, 1998, the court rejected the [petitioner's] insanity defense and found him guilty of murder. The court noted that there was a divergence of opinion concerning the [petitioner's] mental capacity among the various mental health professionals who had evaluated him and concluded that the [petitioner] failed to establish his affirmative defense by a preponderance of the evidence.
" On January 20, 1999, defense counsel moved for a court-ordered psychiatric evaluation of the [petitioner] to assist in the sentencing. The motion was denied. The [petitioner] reargued the motion, but it was denied a second time. The [petitioner's] motion for a judgment of acquittal also was denied. On April 16, 1999, the [petitioner] was sentenced to a term of thirty-five years to serve." (Footnote omitted.) State v. Dull, 59 Conn.App. 579, 582-83, 757 A.2d 1194 (2000).
" The thirty-five year sentence that was imposed was five years longer than the sentence that had been requested by the state, and Judge Schimelman dissented because he thought that an appropriate sentence would have been a sentence of forty-five years to serve." State v. Dull, 59 Conn.App. 579, 583 n.7, 757 A.2d 1194 (2000). The petitioner pursued sentence review. A panel (Iannotti, J., O'Keefe, J., and Holden, J.) of the Sentence Review Division affirmed his sentence. State v. Dull, Superior Court, judicial district of New London, Docket No. CR1-0236528 (November 23, 2004) (2004 WL 3090614). ---------
" On appeal, the [petitioner] claim[ed] that the trial court improperly (1) concluded that he failed to establish as an affirmative defense that he lacked substantial capacity due to a mental disease or defect to appreciate or control his wrongful conduct, . . . (2) violated his due process rights by failing to require the state to disprove his insanity defense . . . beyond a reasonable doubt and (3) denied his motion for a presentence psychiatric evaluation pursuant to General Statutes § 17a-566 . . ." (Footnotes omitted.) Id., 581. The Appellate Court affirmed the judgment of conviction. Id., 593.
The petitioner filed his first habeas corpus petition in late 2002. In the first petition, the petitioner asserted numerous claims, namely that: his public defender suffered from a conflict of interest; the public defender did not contest his guilt but instead assumed his guilt and presented the affirmative defense of mental disease or defect; the petitioner's waiver of a jury trial was not knowing, voluntary or intelligent; trial counsel failed to contest evidence adverse to the affirmative defense; trial counsel failed to present expert testimony in support of the affirmative defense; trial counsel failed to prepare and present evidence from a physician in support of the affirmative defense; and trial counsel failed to interview and object to written evidence the only mental health professional known to be opposed to the affirmative defense. After a habeas trial, the claims were either denied on the merits or deemed abandoned for the reasons articulated by the first habeas court. Dull v. Commissioner of Correction, Superior Court, judicial district of Danbury, docket No. CV03-0347849-S (October 27, 2005) (2005 WL 3112516). The petitioner appealed from the judgment of the first habeas court, which was affirmed by the Appellate Court. Dull v. Commissioner of Correction, 96 Conn.App. 787, 901 A.2d 1239 (2006) (per curiam).
The petitioner filed a second habeas corpus petition in the judicial district of Tolland. The second habeas was assigned docket CV10-4003470-S, and the petitioner received assigned counsel, Attorney Gerald Hecht. The second petition did not, however, proceed to trial because it was withdrawn on October 13, 2011.
The petitioner then brought this third habeas corpus petition on June 11, 2015.
II
DISCUSSION
The respondent, relying on General Statutes § 52-470(d) and (e), requested an order that the petitioner show cause why he should be permitted to proceed despite his delay in filing the present habeas corpus petition. That requested was granted and the petitioner was provided a hearing at which he could show cause. The court concludes that the petitioner has failed to show cause for the delay.
A
General Statutes § 52-470
In 2012, General Statutes § 52-470 was amended by P.A. 12-115, which added several new subsections, (c) through (e). These subsections were effective October 1, 2012, and provide as follows:
(c) Except as provided in subsection (d) of this section, there shall be a rebuttable presumption that the filing of a petition challenging a judgment of conviction has been delayed without good cause if such petition is filed after the later of the following: (1) Five years after the date on which the judgment of conviction is deemed to be a final judgment due to the conclusion of appellate review or the expiration of the time for seeking such review; (2) October 1, 2017; or (3) two years after the date on which the constitutional or statutory right asserted in the petition was initially recognized and made retroactive pursuant to a decision of the Supreme Court of Appellate Court of this state or the Supreme Court of the United States or by the enactment of any public or special act. The time periods set forth in this subsection shall not be tolled during the pendency of any other petition challenging the same conviction.
(d) In the case of a petition filed subsequent to a judgment on a prior petition challenging the same conviction, there shall be a rebuttable presumption that the filing of the subsequent petition has been delayed without good cause if such petition is filed after the later of the following: (1) Two years after the date on which the judgment in the prior petition is deemed to be a final judgment due to the conclusion of appellate review or the expiration of the time for seeking such review; (2) October 1, 2014; or (3) two years after the date on which the constitutional or statutory right asserted in the petition was initially recognized and made retroactive pursuant to a decision of the Supreme Court or Appellate Court of this state or the Supreme Court of the United States or by the enactment of any public or special act. For the purposes of this section, the withdrawal of a prior petition challenging the same conviction shall not constitute a judgment. The time periods set forth in the subsection shall not be tolled during the pendency of any other petition challenging the same conviction. Nothing in this subsection shall create or enlarge the right of the petitioner to file a subsequent petition under applicable law.
(e) In a case in which the rebuttable presumption of delay under subsection (c) or (d) of this section applies, the court, upon the request of the respondent, shall issue an order to show cause why the petition should be permitted to proceed. The petitioner or, if applicable, the petitioner's counsel, shall have a meaningful opportunity to investigate the basis for the delay and respond to the order. If, after such opportunity, the court finds that the petitioner has not demonstrated good cause for the delay, the court shall dismiss the petition. For the purposes of this subsection, good cause includes, but is not limited to, the discovery of new evidence which materially affects the merits of the case and which could not have been discovered by the exercise of due diligence in time to meet requirements of subsection (c) or (d) of this section.
Because the present petition is a petition filed subsequent to the judgment on a prior petition, the applicable subsection is (d).
By operation of subsection (d), there is a rebuttable presumption that the present petition was delayed without good cause if such petition is filed after the later of the three time periods specified in subsections (1) through (3). There is no constitutional or statutory right, initially recognized and made retroactive, asserted in the petition that makes the two-year time period in subsection (3) applicable. The Appellate Court decision affirming the judgment of the first habeas court was officially released on August 1, 2006, so that 2008 is the year established by subsection (1). Consequently, the date established by subsection (2), October 1, 2014, is the later of the dates established by application of subsections (1) through (3). The present petition was filed on June 11, 2015. Although the petitioner filed a second petition, that petition was withdrawn and does not constitute a judgment for purposes of this analysis. The court finds, therefore, that the rebuttable presumption in (d) applies to the present petition.
Pursuant to subsection (e), the respondent requested an order to show cause. This request was certified to the petitioner's counsel of record. This court granted the request on August 27, 2015. Counsel for the petitioner and the respondent appeared before this court for a status conference nearly five months later, on January 8, 2016, at which time this court scheduled the show cause hearing for January 19, 2016. Counsel for the petitioner has not indicated that there was no meaningful opportunity to investigate the basis for the delay and respond to the order. Consequently, the court finds that the petitioner has had a meaningful opportunity to investigate the basis for the delay and respond to the order.
B
Show Cause Hearing
At the show cause hearing, the petitioner testified that he wanted, through the second habeas corpus petition, to show that his zeal working for a higher power led to the killing of the victim and that he had been defending the honor of the Lord. Attorney Hecht would not raise the claims the petitioner wanted to pursue and advised the petitioner to withdraw the petition. The petitioner answered in the negative when asked if Attorney Hecht explained to him that he could raise this claim representing himself. Attorney Hecht also did not explain the consequences of withdrawing the petition, nor did he tell the petitioner that he subsequently could be time barred from bringing another habeas corpus petition.
The petitioner's explanation for the delay in filing his third habeas corpus petition was that he was depressed that he could not explain his defense and was not getting the justice he felt he deserved. Additionally, because about five years transpired between the first and second habeas corpus petitions, the petitioner did not contemplate that his third petition would be time barred. Counsel for the petitioner argued that fairness was sufficient good cause for the delay and that the petitioner did not understand his legal rights at the time he withdrew the second petition.
The respondent argued that the petitioner had failed to show any good cause for delay. The respondent emphasized that the only good cause specifically enumerated in General Statutes § 52-470 (e) is " . . . the discovery of new evidence which materially affects the merits of the case and which could not have been discovered by the exercise of due diligence in time to meet the requirements of subsection (c) or (d) of this section." However, the same section indicates that " [f]or purposes of this subsection, good cause includes, but is not limited to, . . ." the discovery of new evidence. (Emphasis added.) The petitioner is not limited, therefore, to showing good cause based on newly discover evidence.
" [G]ood cause is defined as 'a substantial reason amounting in law to a legal excuse for failing to perform an act required by law [and] [l]egally sufficient ground or reason.' Black's Law Dictionary (6th Ed. 1990) . . ." (Citation omitted.) Roberto v. Honeywell, Inc., 33 Conn.App. 619, 626, 637 A.2d 405 (1994) (error by trial court to simply find prejudice and delay without considering intent and reasons for failure to timely disclose expert witness); see also Schoolhouse Corp. v. Wood, 43 Conn.App. 586, 591, 684 A.2d 1191 (1996) (neglect, indifference, disregard of plainly applicable statutory authority and self-created hardship are not good cause to excuse delay in filing motion).
General Statutes § 52-470(d) specifically provides that a withdrawal of a petition does not constitute a judgment. This is consistent with General Statutes § 52-80 (" . . . The plaintiff may withdraw any action so returned to [court] and entered in the docket of any court, before the commencement of a hearing on the merits thereof . . .") The petitioner here essentially presents the withdrawal as the good cause, in particular because Attorney Hecht did not advise the petitioner of consequences of the withdrawal such as being time barred.
The withdrawal of the second petition and counsel's advice at that time is not sufficient good cause. The petitioner withdrew the second petition on October 13, 2011, prior to P.A. 12-115 enacting § 52-470(c) through (e), effective October 1, 2012. Attorney Hecht could not have advised the petitioner of any time barring as a result of a statute that had not yet been proposed and enacted. Furthermore, the claims identified by the petitioner as claims that he believed had merit and that he wanted to pursue in the second petition are not legally cognizable habeas claims.
The petitioner has not presented any newly discovered evidence, nor has he presented anything that amounts to a substantial reason in law as a legal excuse for failing to file his third habeas corpus petition. The petitioner has not demonstrated a legally sufficient ground or reason for such delay and has not shown why he should be permitted to proceed further. The court concludes, therefore, that the petitioner has failed to rebut the presumption of delay because he has not shown good cause for the delay in filing his third habeas corpus petition and has failed to rebut the presumption of delay.
CONCLUSION
The petition for a writ of habeas corpus is dismissed pursuant to General Statutes § 52-470(e).
It is so ordered.