Opinion
DBDCV195014581S
10-10-2019
Channy Nee KHUTH v. STATE of Connecticut et al.
UNPUBLISHED OPINION
OPINION
D’Andrea, Robert A., Judge.
The plaintiff, Channy Nee Khuth ("plaintiff"), filed a petition for new trial, pursuant to General Statutes § § 52-270 and 52-582(b), and Practice Book § 42-55, dated November 21, 2018, based on newly discovered scientific evidence and social science evidence, which plaintiff claims recognizes that eighteen-year-old individual should be treated differently from mature adults. The plaintiff also requests that the court appoint counsel to represent him in his petition for a new trial, which this court has issued a separate memorandum of decision. The defendants here are the State of Connecticut State’s Attorney for the Judicial District of Danbury, the Chief State’s Attorney’s Office, and the Attorney General Office State of Connecticut ("defendants"). Pursuant to Practice Book § 10-30, the defendants filed a motion to dismiss the petition for a new trial dated April 2, 2019, moving to dismiss the complaint against them, as the defendants claim that the court lacks subject matter jurisdiction because the petition is untimely, as it was filed beyond the three-year statute of limitations, and the petition fails to state a claim upon which relief may be granted. The plaintiff filed no response to defendants’ motion to dismiss, however, as the defendant is a self-represented incarcerated individual, the court will draw whatever favorable inferences it can in favor of the plaintiff in response to the motion to dismiss.
FACTS
On November 21, 2018, the plaintiff filed a petition for a new trial, pursuant to General Statutes § § 52-270 and 52-582(b), and Practice Book § 42-55, regarding what he alleges is newly discovered "scientific" evidence, including "scientific knowledge," which he alleges includes knowledge of the general scientific community and fields of scientific knowledge upon which those fields or disciplines rely. Plaintiff further alleges that § 52-582 and Senate Bill 504 allows for additional exceptions to the three-year statute of limitation for petitioning for a new trial, and, in addition, to allow for appointment of counsel pursuant to § 51-296. As part of his service of the summons and complaint, the plaintiff served the State of Connecticut State’s Attorney for the Judicial District of Danbury, the Chief State’s Attorney’s Office, and the Attorney General Office State of Connecticut.
By way of background, the plaintiff is a sentenced prisoner, serving a long sentence for several charges. On August 4, 2004, the plaintiff and others were involved in an attack on two young men, causing serious injuries to both. In 2005, the plaintiff was convicted after trial of assault in the first degree, in violation of General Statutes § 53a-59(a)(4), conspiracy to commit assault in the first degree in violation of General Statutes § § 53a-48 and 53a-59(a)(4) and two counts of assault in the first degree as an accessory, in violation of General Statutes § § 53a-8 and 53a-59(a)(4). The plaintiff was sentenced by the trial court, Schuman, J., to a net effective sentence of thirty years’ incarceration followed by five years of probation. The matter was heard by the court on two occasions, where the defendant participated on said occasions via video conferencing from the corrections center where he is serving his sentence.
LEGAL STANDARD
Any defendant wishing to contest the court’s jurisdiction may do so by filing a motion to dismiss. Practice Book. § 10-30. The determination of whether a trial court has subject matter jurisdiction is a question of law. Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003); Martinez v. Dept. of Public Safety, 263 Conn. 74, 81, 818 A.2d 758 (2003). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, 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 quotation marks omitted; citations omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
"[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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
Ordinarily, a statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, "[when] ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation ... but rather is a limitation on the liability itself, and not of the remedy alone ... [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time ... and may not be waived." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).
Occasionally, our Appellate Court has stated that in the context of statutes that create rights of action that are unavailable at common law, it is proper for parties to raise a statute of limitations issue in a motion to strike. See, e.g., Greco v. United Technologies Corp., 277 Conn. 337, 344-45 n.12, 890 A.2d 1269 ("It is undisputed that the defendants properly raised the limitation period of § 52-555 in a motion to strike."); Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (citing this circumstance as one of "two limited circumstances" in which it would "allow the use of a motion to strike"). It is permissible to raise this issue in a motion to strike, but because it is an issue of subject matter jurisdiction, courts should apply the procedural law applicable to motions to dismiss. See, e.g., Ecker v. West Hartford, 205 Conn. 219, 231-32, 245, 530 A.2d 1056 (1987) (court erred by refusing to dismiss action for lack of subject matter jurisdiction); Diamond National Corp. v. Dwelle, 164 Conn. 540, 545-47, 325 A.2d 259 (1973) (court properly raised issue sua sponte as issue of subject matter jurisdiction).
DEFENDANTS’ POSITION
Pursuant to Practice Book § 10-30, the defendants respectfully move to dismiss the complaint against them on the ground that the court lacks subject matter jurisdiction because the petition is untimely, as it was filed beyond the three-year statute of limitations, and the petition fails to state a claim upon which relief may be granted. The petitioner points to a 2018 ruling by the Honorable Janet C. Hall, United States District Judge in the matter of Luis Noel Cruz v. United States of America, Docket No. 3:11-CV-00787-JCH (D.Conn.). The petitioner in that case argued that his sentence of life imprisonment without the possibility of parole for a gang-related murder violates the rule announced in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Miller examined sentencing schemes that "requir[ed] that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and nature of their crimes." Id., 489. The Supreme Court thus held that "the mandatory sentencing schemes before us violate [the] principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment." Each offender in Miller was fourteen years old. Here the plaintiff was eighteen. Judge Hall concluded that: "[T]he hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds. As such, the penological rationales for imposing mandatory life imprisonment without the possibility of parole cannot be used as justification when applied to an 18-year-old." Miller at 4. The plaintiff at bar asks this Court for a new trial because, he claims, when viewed through this same lens, "the outcome of [his] trial and sentence would [have] been different."
A petition for new trial filed beyond the time prescribed by statute must be dismissed. The instant petition was filed beyond General Statutes § 52-270(a) provides that the court may grant a new trial in any case due to the discovery of new evidence. However, General Statutes § 52-582(a) provides that: "No petition for a new trial in ... criminal proceeding shall be brought but within three years next after rending of the judgment ... except that a petition for a new trial based on ... newly discovered evidence ... that was not ... available at the time of the original trial or at the time of any previous petition ... may be brought at any time after the ... availability of such new evidence, and the court may grant the petition if the court finds that had such evidence been presented at trial, there is a reasonable likelihood there would have been a different outcome at the trial." Newly discovered evidence may include forensic scientific evidence not discoverable at the time of the trial. Plaintiff claims that the newly discovered evidence that was not available at trial is a collection of scientific research articles, of recent vintage and published some years after the petitioner’s trial, regarding adolescent brain development.
In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the United States Supreme Court determined that the eighth amendment’s proscription against cruel and unusual punishment prohibited the imposition of the death penalty upon a defendant who was seventeen years of age at the time that he committed murder. In making that determination, the Supreme Court relied, in part, on scientific research of the very same nature as that which the petitioner now proffers as "newly discovered evidence." The Court stated: "Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, ‘[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.’ 509 U.S. 350, ] 367, 113 S.Ct. 2658; see also Eddings [v. Oklahoma, 455 U.S. 104, ] 115-16, 102 S.Ct. 869 ... The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. Eddings, supra, at 11B, 102 S.Ct. 869 ... The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis (1968). (Emphasis added.) Roper, supra, 543 U.S. at 569-70. Roper, decided in 2005 (the year during which the plaintiff was tried), called upon cases and studies from as early as 1968 and others in the 1980s and 1990s in advancing the very same theory that the plaintiff advances with his newly discovered scientific evidence. The evidence is not sufficient to satisfy the newly discovered evidence exception to the three-year limitations period, his petition is untimely, and the Court is deprived of subject matter jurisdiction. General Statutes § 52-582.
The application of Miller v. Alabama to this case is foreclosed for two reasons. First, in Miller the sentencing scheme, rather than a particular sentence, was ruled unconstitutional. This plaintiff was not sentenced pursuant to an unconstitutional sentencing scheme, nor does he claim as much. He simply complains that his sentence, within a constitutionally sound sentencing scheme, would have been different had his age been taken into account. Accordingly, sentence review, which the petitioner has already had, is the exclusive remedy for the petitioner’s complaint. Second, and more importantly, recent precedent from our Appellate Court has already rejected the claim that Miller applies to eighteen-year-olds.
The plaintiff asks this court to review a complaint about his sentence, and his petition is more in the form of one seeking sentence review. The plaintiff is using this action to appeal from the Sentence Review Division’s affirmance of his sentence. He makes no claim that Judge Schuman abused his discretion in sentencing him. A sentencing judge has "very broad discretion" when imposing sentence, so long as it is within the statutory limits, and he may consider a wide range of factors, even those not admissible at trial. Because the petitioner does not claim that the sentencing scheme under which the petitioner was sentenced is unconstitutional, his complaint is about the severity of his sentence. The petitioner does not have a liberty interest in a lesser sentence. State v. Rupar, 293 Conn. 489, 502-03, 978 A.2d 502 (2009). Therefore, the Sentence Review Division is the exclusive avenue for such a complaint, and this Court does not have jurisdiction to hear and decide it. Id. at 496-97. He has had sentence review. This petitioner’s sentence was reviewed and affirmed by the Sentence Review Division. Accordingly, a complaint about its duration fails to state a claim upon which relief can be granted, and this court is thus without jurisdiction over the matter.
This claim is moot. "Mootness ... implicates subject matter jurisdiction, which imposes a duty on the trial court to dismiss a case if the court can no longer grant practical relief to the parties." (Citation and internal brackets omitted.) We the People of Connecticut, Inc. v. Malloy, 150 Conn.App. 576, 581, 92 A.3d 961 (2014). In Haughey v. Commissioner of Correction, 173 Conn.App. 559, 164 A.3d 849, (2017), the habeas petitioner, like the plaintiff, committed his crime after his eighteenth birthday. He claimed that his "youthful characteristics" put him in league with the kind of juvenile offenders involved in the Miller case. Id. at 564. Three separate experts testified in support of defense theories that included consideration of the brain development of young adults. Id. at 564-65. One such expert specifically "presented scientific evidence relating to relevant risk factors [such as impulsivity, recklessness, and poor judgment] that can impact early development." Id.
Notably, Haughey, in which the underlying crimes involved the kind of mandatory sentence at issue in Miller- imposing life imprisonment without the possibility of release. The plaintiff, like the petitioner in Miller and the defendant in Cruz, challenged the constitutionality of a sentencing scheme, rather than an individual sentence within an otherwise constitutional scheme. Haughey, supra, at 566. Applying the Miller case, the Appellate Court rejected the claim. The Appellate Court noted that the eighth amendment prohibition against cruel and unusual punishment requires courts to consider mitigating evidence of youth and immaturity when sentencing juvenile offenders. Haughey, supra, at 566-67. However, juvenile offenders in Connecticut are those who are under the age of eighteen when their crimes are committed. The Appellate Court concluded the petitioner was not entitled to impose the same requirement upon a court even if his scientific evidence showed that "the risk factors associated with imposing unconstitutionally harsh sentences on juveniles remain present through the age of twenty-five." Id. at 568. The Appellate Court further noted that, although the United States Supreme Court in Roper stated that: "The qualities that distinguish juveniles from adults do not disappear when an individual turns [eighteen]. [But, b]y the same token, some under [eighteen] have already attained a level of maturity some adults will never reach. The age of [eighteen] is the point where society draws the line for many purposes between childhood and adulthood." Id. at 568-69 (citing Roper, supra, 543 U.S. at 574). The Roper court, as our Appellate Court noted, went on to hold that eighteen years of age was the appropriate age at which to clip the constitutional analysis at issue there. Id.
In Haughey, the Appellate Court noted that our own Supreme Court similarly views the age of eighteen as a line of demarcation. Haughey, supra at 569. Our Appellate Court concluded that an offender who has reached the age of eighteen, although not prevented from having factors attendant to his age considered at sentencing, cannot impose an obligation upon the trial court to consider such factors. Id. at 571. The plaintiff’s claim is that he has "newly discovered" evidence that could have persuaded the trial court to impose a lesser sentence. The petitioner cannot impose a requirement upon the trial court to consider the factors attendant to his age that his proffered evidence suggests should be considered. Nonetheless, the petitioner here cannot escape the simple fact that, in sentencing him, Judge Schuman did consider his age. Thus, even if Haughey did not stand in the way of the instant action, the petitioner’s claim is nonetheless moot. This court is therefore without jurisdiction.
ANALYSIS
First, the court is not convinced that the plaintiff is entitled to new trial, based on newly discovered scientific evidence and social science evidence which recognizes that eighteen-year-old individual should be treated differently from mature adult, as the defendants correctly state such evidence was available for some period of time prior to this petition. Subsequent to the filing of the brief by the defendants, the Second Circuit decided a case on August 1, 2019. The recent case of United States v. Sierra, 933 F.3d 95 (2019) provides both guidance and a definitive answer as to the validity of the plaintiff’s petition for a new trial. In Sierra, the defendants appealed from a judgment of the United States District Court for the Southern District of New York (Engelmayer, J.) sentencing them, inter alia, to mandatory minimum terms of life imprisonment applicable to convictions for murder in aid of racketeering. On appeal, the defendants argue that because they were between 18 and 22 years old when the murders were committed, a mandatory life sentence is cruel and unusual in violation of the eighth amendment. The judgment of the district court was affirmed in the Circuit Court.
The Sierra defendants argue that the mandatory minimum life sentences violates the eighth amendment, relying principally on Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Miller held "that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments, ’" Id. at 465. 132 S.Ct. 2455, because "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles," Id. at 489, 132 S.Ct. 2455. The defendants claimed that Miller ’s holding clearly applies to them because scientific research, as claimed by the plaintiff in this matter, shows that the biological factors that reduce children’s "moral culpability" likewise affect individuals through their early 20s.
Sierra referred back to prior Supreme Court decision evaluating similar fact patterns. The Supreme Court has acknowledged that "[d]rawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules," such as that "[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18," and that "[b]y the same token, some under 18 have already attained a level of maturity some adults will never reach." Roper v. Simmons, 543 U.S. 551, 574, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Nevertheless, "a line must be drawn," and the Supreme Court has repeatedly chosen in the Eighth Amendment context to draw that line at the age of eighteen, which "is the point where society draws the line for many purposes between childhood and adulthood." Id.; see also Graham v. Florida, 560 U.S. 48, 74-75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); United States v. Reingold, 731 F.3d 204, 215 (2d Cir. 2013) (under Miller, courts may not "substitute the defendant’s relative immaturity for the actual age of minority"). "Since the Supreme Court has chosen to draw the constitutional line at the age of 18 for mandatory minimum life sentences, Miller, 567 U.S. at 465, 132 S.Ct. 2455, the defendants’ age-based Eighth Amendment challenges to their sentences must fail." Sierra at XXX.
Although the plaintiff claims that he is entitled to a new trial based on newly discovered scientific evidence and social science evidence which recognizes that eighteen-year-old individual should be treated differently from mature adult, the case law does not support that claim. As the defendants have posited, Roper, decided in 2005 (the year during which the plaintiff was tried), called upon cases and studies from as early as 1968 and others in the 1980s and 1990s in advancing the substantially similar theory that the plaintiff advances with his newly discovered scientific evidence. As stated in Roper, "Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn ... The age of 18 is the point where society draws the line for many purposes between childhood and adulthood." Roper, S.Ct. 1197-98. Clearly Roper sets the line at eighteen years of age for defendants to be treated as adults. While new studies have been done after the time of the plaintiff’s sentencing, the "scientific evidence" is not truly newly discovered or unique to the last several years, it is only updated, refined or more extensive with more advanced studies. It does not rise to the threshold of meriting a new trial by creating a "eureka" moment in understanding the adolescent brain and behavior, but supports the previous studies in their past conclusions. It is not, in and of itself, truly newly discovered as contemplated by General Statutes § 52-582(a) which provides that: "No petition for a new trial ... except that a petition for a new trial based on ... newly discovered evidence ... that was not ... available at the time of the original trial ..." Therefore, the plaintiff’s claim that newly discovered evidence as to the adolescent brain and behavior, i.e. eighteen years of age, must fail.
General Statutes § 52-582(a) also provides that the court may grant a new trial in any case due to the discovery of new evidence if the court finds that had such evidence been presented at trial, there is a reasonable likelihood there would have been a different outcome at the trial. Plaintiff has not demonstrated any newly discovered evidence that would likely rise to the level of creating a "reasonable likelihood there would have been a different outcome at the trial." As such, as the defendants correctly state the claim, if not allowable under newly discovered evidence, the petition can only rest if made within three years of the conviction. This petition is brought thirteen years after the conviction. The defendants claim that the petition is moot, as "Mootness ... implicates subject matter jurisdiction, which imposes a duty on the trial court to dismiss a case if the court can no longer grant practical relief to the parties." (Citation and internal brackets omitted.) We the People of Connecticut, Inc. v. Malloy, 150 Conn.App. 576, 581, 92 A.3d 961 (2014). The defendants are correct that the petition for a new trial is moot. Based on the foregoing, the petition fails to state a claim upon which relief may be granted by this court.
Finally, "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, 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 quotation marks omitted; citations omitted.) Conboy v. State, 292 Corm. 642, 651 (2009). Following the directive stated above, this court, 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 plaintiff, finds that the plaintiff’s petition for a new trial does not state a claim upon which relief can be granted, therefore, the motion to dismiss must be granted.
CONCLUSION
For all of the foregoing reasons, the petition for new trial is dismissed, and the decision of this court is that the defendants’ motion to dismiss the petition for a new trial is GRANTED.