Opinion
HHDCV166067801S
08-07-2018
Stefon MORANT v. KOSKOFF, KOSKOFF & BIEDER, P.C. et al.
UNPUBLISHED OPINION
OPINION
Cesar A. Noble, J.
Presently before the court is the defendants’ motion for summary judgment. Because the court adopts and applies the "exoneration rule," which requires a convicted criminal defendant to obtain appellate or post-conviction relief as a precondition to maintaining a legal malpractice action, the defendants’ motion for summary judgment is granted.
FACTS
On November 17, 2017, the plaintiff, Stefon Morant, filed the second amended complaint sounding in professional negligence against the defendants, Koskoff, Koskoff & Bieder, P.C. (KKB) and William M. Bloss, who is an attorney at KKB. The United States District Court for the District of Connecticut appointed Attorney Bloss to replace prior counsel in the pro bono representation of the plaintiff in his habeas petition following the plaintiff’s two felony murder convictions.
The plaintiff also brought this action against Richard S. Cramer, an attorney, however, on July 31, 2017, the plaintiff’s action against Attorney Cramer was withdrawn and, thus, Attorney Cramer is no longer a party to the action. Hereinafter, the court will refer to Attorney Bloss and KKB collectively as the defendants.
The plaintiff voluntarily accepted a sentence modification to time served, rather than continue to pursue exoneration through his federal habeas petition, and was released from prison. The plaintiff’s habeas petition was dismissed, and he remains a convicted felon. The plaintiff alleges Attorney Bloss was negligent, largely due to claimed inaction, and claims damages stemming from the consequences of convictions.
The undisputed facts are as follows. On October 11, 1990, Ricardo Turner and Lamont Fields were shot and killed in their apartment in New Haven. The state charged the plaintiff and another individual, Scott Lewis, with the murders and tried them separately in the Superior Court. In 1994, following a jury trial, the plaintiff was convicted of two counts of felony murder. The Superior Court for the Judicial District of New Haven, Hadden, J., sentenced the plaintiff to thirty-five years imprisonment on each count, to run consecutively, for an effective sentence of seventy years. In a separate trial in 1995, Lewis was convicted on two counts of murder and two counts of felony murder, one as to each victim. Lewis was sentenced to 120 years’ imprisonment. On direct appeal, the Supreme Court affirmed Lewis’ convictions for the murders of Turner and Fields but vacated his felony murder convictions on double jeopardy grounds. See State v. Lewis, 245 Conn. 779, 817 A.2d 1140 (1998).
In 1997, the Supreme Court affirmed the plaintiff’s convictions. See State v. Morant, 242 Conn. 666, 701 A.2d 1 (1997). Following the plaintiff’s unsuccessful direct appeal, he unsuccessfully petitioned twice for a new trial on the basis of newly discovered evidence. Morant v. State, Superior Court, judicial district of New Haven, Docket No. CV-970398736-S 1999 WL 566934 (July 26, 1999, Hadden, J.), aff’d, 68 Conn.App. 137, 802 A.2d 93, cert. denied, 260 Conn. 914, 796 A.2d 558 (2002) (discovery of alibi witnesses) and Morant v. State, Superior Court, judicial district of New Haven, Docket No. 398736, 2000 WL 804695 (June 5, 2000, Blue, J.), aff’d, Morant v. State, 68 Conn.App. 137, 802 A.2d 93, cert. denied, 260 Conn. 914, 796 A.2d 558 (2002) (second petition).
The plaintiff’s second petition is the one most relevant to the present action as it raised significant issues of perjury and fabrication of evidence. Following a complaint by Lewis, the Federal Bureau of Investigation (FBI) conducted an investigation. Morant v. State, supra, 2000 WL 804695 *1. During the investigation, Ovil Ruiz, a principal witness, recanted his trial testimony related to events immediately surrounding the murder of Turner and Fields. Id. The trial testimony, as recounted by the court in its decision denying the plaintiff’s second petition for new trial, included the following. Ruiz had sold drugs for the plaintiff and Lewis. Id., *4. Turner held money and drugs for the two in the same operation. Id. Lewis, however, suspected that Turner planned to abscond with the money and drugs. Id. At the plaintiff’s instruction, Ruiz retrieved two handguns. Id. Ruiz drove with the plaintiff and Lewis to Turner’s house. Id. After they arrived, the plaintiff and Lewis entered Turner’s apartment with the guns while Ruiz remained in the vehicle. Id. After about thirty minutes, Ruiz heard gun shots, and the plaintiff and Lewis quickly entered the car and threw some bags in the back seat. Id. Upon entering the car, Lewis asked Morant if he thought "they" were dead. Id. Weeks later, Ruiz saw Lewis throw one of the handguns into the river in Morant’s presence. Id.
The Supreme Court referred to Ruiz as the state’s "key witness" against both Morant and Lewis. State v. Morant, 242 Conn. 666, 668, 701 A.2d 1, 4 (1997), aff’d, 68 Conn.App . 137, 802 A.2d 93 (2002) and State v. Lewis, supra, 245 Conn. 782.
As damning as the trial testimony was, the recantation was equally lurid. When first interviewed by the FBI, Ruiz recounted the events consistent with his testimony at the plaintiff’s criminal trial. Morant v. State, supra, 2000 WL 804695, *6. Thereafter, Ruiz admitted that he lied under oath, that the plaintiff and Lewis were innocent and had been framed by him and the principal investigating police officer, Detective Vincent Raucci, who, at the time, served as a detective of the New Haven Police Department (NHPD). Id. Detective Raucci and Ruiz conspired to fabricate a case against the plaintiff and Lewis. Id., *7. According to Ruiz, Detective Raucci’s motivation for the fabrication was that "Lewis owed a great deal of drug trafficking money to another drug dealer who was [allegedly] in partnership with [Detective] Raucci in the drug trade." Id.
Raucci was subsequently "linked to the New Haven drug trade; charged with larceny following an internal NHPD investigation; arrested for a domestic-violence incident; and, after fleeing Connecticut as a result of the charges against him, was ultimately arrested by the [FBI] after a four-hour standoff in New Mexico." Lewis v. Connecticut Commissioner of Correction, 790 F.3d 109, 115 (2015).
The plaintiff presented additional exculpatory evidence during the second petition hearing. This evidence was the testimony of Detective Michael Sweeney. Morant v. State, supra, 2000 WL 804695, *9. In January 1991, Detective Sweeney supervised Detective Raucci and participated in Ruiz’ initial interrogation, which ultimately yielded a statement from Ruiz consistent with his later trial testimony. Id. Detective Sweeney testified that Ruiz had initially stated, in Detective Raucci’s absence, that he knew nothing about the Turner-Fields murder. Id. When Detective Raucci joined the interview he started supplying Ruiz with facts about the Turner-Fields case to the extent that Detective Sweeney thought was inappropriate. As a consequence Sweeney directed Detective Raucci to provide no further facts. Id. After the interview was resumed Detective Sweeney was obliged to once again admonish Detective Raucci to stop providing additional facts. Id., *10. Thereafter, Detective Raucci resumed the interview with Ruiz alone. Id. After a period of time, Detective Raucci reported that Ruiz wanted to give the whole case up. Id. Detective Sweeney reentered the room with Detective Raucci to listen to Ruiz. Id. Ruiz admitted to driving the car the night of the Turner-Fields murder, having seen Morant and Lewis go up to Turner’s apartment with guns, and subsequently return to the car after hearing shots. Id. Detective Sweeney then confronted Ruiz alone who again reported that he was not telling the truth and that the information he had given had come from Detective Raucci. Id. Detective Sweeney’s shift ended, at which point Detective Raucci took a recorded statement from Ruiz that provided details consistent with his trial testimony. Id.
Michael Sweeney was a detective of the NHPD. He was one of two police detectives who questioned Ruiz on the night he implicated Lewis.
The court denied the second petition for a new trial because the plaintiff had failed to satisfy his burden of proving that the testimony of a material witness was false. Morant v. State, supra, 2000 WL 804695 *13. Significant to this conclusion were significant inconsistencies in Ruiz’ statements and a subsequent repudiation of his recantation in which he asserted that he had been pressured to lie to the FBI by Lewis and re-affirmed that his testimony about Lewis and the plaintiff was the truth. Morant v. State, supra, 2000 WL 804695 *13. Given the inconsistencies in Ruiz’ statements, his statements to the FBI were not considered to be entitled to no evidentiary weight whatsoever. Id., *16. In the view of the court the availability of the newly discovered evidence would not have led to a different result because of the other evidence at the trial, including an inculpatory statement made by the plaintiff, which placed him near the scene of the crime at the time of the Turner-Fields homicides. Id., *14, 16. The court concluded that the totality of the evidence did not meet the standard for granting a new trial. The plaintiff appealed but the Appellate Court affirmed the denial concluding that "[the plaintiff] did not sustain his burden of proving that the testimony of a material witness was false or that newly discovered evidence would probably result in a different verdict." Morant v. State, 68 Conn.App. 137, 160, 802 A.2d 93, cert. denied, 260 Conn. 914, 796 A.2d 558 (2002).
Meanwhile, Lewis twice sought habeas corpus relief from the Connecticut courts, without success. See Lewis v. Commissioner of Correction, 73 Conn.App. 597, 808 A.2d 1164 (2002), cert. denied, 262 Conn. 939, 815 A.2d 17 (2003); Lewis v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-06-4001783-S, 2008 WL 544579 (February 5, 2008, Schuman, J.), appeal dismissed, 116 Conn.App. 400, 975 A.2d 740 (2009), cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009).
In October 2006, the plaintiff filed an amended petition for a writ of habeas corpus and claimed he was entitled to a new criminal trial because, the state had withheld material evidence in violation of Brady, and that his trial counsel was ineffective for failing to present certain evidence. After a trial, the habeas court denied the plaintiff’s petition for a writ of habeas corpus. See Morant v. Commissioner of Correction, Superior Court, judicial district of New Haven, Docket No. CV-02-0485200-S, 2007 WL 1893329 (June 12, 2007, DeMayo, J.T.R.), aff’d, 117 Conn.App. 279, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). The plaintiff then requested certification to appeal. The Appellate Court affirmed the judgment and reasoned that the evidence provided through the testimony of Detective Sweeney and Detective Joseph Pettola and the information contained in the FBI report was not material pursuant to Brady, and that the plaintiff’s ineffective assistance of counsel claim failed. See Morant v. Commissioner of Correction, 117 Conn.App. 279, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).
The suppression by the prosecution of material evidence favorable to the accused violates due process. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The prosecution has a clear and unconditional duty to disclose all material, exculpatory evidence, which was applied to impeachment evidence. Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
The FBI interviewed Detective Pettola related to an incident involving improprieties by Raucci involving the latter’s suggesting in an unrelated matter that officers plant a small amount of cocaine in a suspect’s vehicle so the suspect could be arrested. Morant v. Commissioner of Correction, supra, 117 Conn.App. 291.
On December 21, 2009, the plaintiff filed a writ of habeas corpus with the United States District Court for the District of Connecticut. On September 13, 2010 and July 1, 2011, the plaintiff requested that the District Court appoint counsel to assist him in obtaining the relief he seeks through his petition for a writ of habeas corpus. "[T]here is no constitutional right to counsel in a habeas corpus action. Appointment of counsel in a habeas corpus action is discretionary." Damato v. Murphy, United States District Court, Docket No. 3:08CV855 (SRU) (WIG) (D.Conn. January 21, 2009), citing Wright v. West, 505 U.S. 277, 293, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992). After denying the plaintiff’s first request, dated September 13, 2010, the District Court, Arterton, J., granted the plaintiff’s motion for counsel and appointed a sole practitioner, Attorney Cramer, as the plaintiff’s counsel on March 7, 2012. During the period that Attorney Cramer served as the plaintiff’s counsel no substantive pleadings were filed on the plaintiff’s behalf. On April 17, 2014, the plaintiff filed a motion to appoint new counsel. On April 18, 2014, five years after the plaintiff first filed his pro se federal habeas, the District Court, Arterton, J., appointed Attorney Bloss to replace Attorney Cramer as the plaintiff’s pro bono counsel. The District Court reasoned that the plaintiff’s case required "counsel with sufficient resources and availability to promptly prosecute [the plaintiff’s] petition to conclusion." Shortly after his appointment, Attorney Bloss visited the plaintiff.
On April 16, 2012, Lewis filed an amended petition for habeas corpus relief at the United States District Court for the District Court of Connecticut. In the petition, Lewis asserted that the state violated his right to due process of law when it suppressed exculpatory and impeachment information, including Ruiz’ denial of knowledge related to the homicides and Detective Sweeney’s version of the interview, that was material to his conviction and sponsored perjured testimony of a key prosecution witness. Lewis v. Commissioner of Correction, 975 F.Supp.2d 169, 172 (D.Conn. 2013), aff’d, 790 F.3d 109 (2nd Cir. 2015). On December 16, 2013, the District Court, Haight, J., granted Lewis’ petition for a writ of habeas corpus and ordered Lewis’ release from prison because "the State suppressed exculpatory and impeachment evidence which should have been disclosed under the Supreme Court’s decisions Brady and Giglio." Id., 207. The District Court, therefore, directed the Commissioner of Correction to release Lewis from its custody "within sixty (60) days of the date of this Ruling and Order, unless the State of Connecticut within those 60 days declares its written intention ... to retry [Lewis] on the charges against him." Id., 208-09. On February 14, 2014, the parties submitted a joint motion to release Lewis, which was granted by the District Court. On February 26, 2014, the District Court signed a writ ordering Lewis’ release. The state timely appealed.
Meanwhile, during Attorney Bloss’ appointment as pro bono counsel for the plaintiff, the defendants made the decision to wait until the United States Court of Appeals for the Second Circuit issued its Lewis decision prior to filing any substantive motions given that the issues to be addressed in Lewis were important to the plaintiff’s federal habeas petition. Attorney Bloss filed status reports with the District Court on June 5, 2014, July 28, 2014, and October 21, 2014. On October 23, 2014, the District Court, Arterton, J., entered an order requiring Attorney Bloss to file a status report twenty-one days following the Lewis decision pending in the Second Circuit Court of Appeals.
On May 14, 2015, the United States Court of Appeals for the Second Circuit affirmed the District Court. See Lewis v. Commissioner of Correction, 790 F.3d 109 (2nd Cir. 2015). As a result, Lewis’ convictions for the double murder were vacated, and all charges were subsequently dismissed. The Second Circuit Court of Appeals reasoned that the state plainly failed to disclose material evidence, in violation of Brady, to the defense in Lewis’ case because "[i]f defense counsel had known this information at trial, he could have cross examined Ruiz regarding his prior inconsistent statements and the extent to which [Detective] Raucci coached him and induced him to testify falsely ... As the district court concluded, [Detective] Sweeney’s testimony was clearly exculpatory under Brady or impeachment material under Giglio, if not both." (Footnote added.) Lewis v. Commissioner of Correction, supra, 124.
Further, the Second Circuit Court of Appeals examined whether such failure to disclose resulted in prejudice to Lewis, and reasoned, "[a]t trial, no witness other than Ruiz directly implicated Lewis in the murders, and the state did not introduce any forensic or eyewitness testimony against Lewis. As a result, Ruiz’s testimony was critical to the state’s obtaining a conviction. Sweeney provided credible evidence that Ruiz specifically parroted information supplied by an unscrupulous police officer. Sweeney’s testimony thoroughly undermines Ruiz’s credibility and thus any reasonable confidence in the outcome of the trial ... Accordingly, the state’s failure to disclose the evidence relating to Ruiz’s interrogation prejudiced Lewis and deprived him of his constitutional right to a fair trial." (Citation omitted; footnote omitted.) Id.
Subsequent to the Second Circuit Court of Appeal’s Lewis decision, Attorney Bloss informed the plaintiff that he could choose to continue to pursue his federal habeas petition, but there was no guarantee that he would succeed, especially in light of the differences between Lewis’ and the plaintiff’s habeas cases, and even if he did succeed, it could take several years to obtain the decision during which time the plaintiff would remain incarcerated. In the alternative, Attorney Bloss informed the plaintiff that he could request from the State’s Attorney a modification of the plaintiff’s sentence to "time served."
In his deposition, the plaintiff avers that he accepted Attorney Bloss’ suggestion to modify his sentence to time served because he felt that it was "the only meaningful option." This was so because he felt abandoned by Attorney Bloss during the approximate thirteen months between his appointment and the Second Circuit Court of Appeal’s decision in Lewis. The plaintiff asserts that the minimal work he observed by Bloss, apart from periodic pro forma letters, "combined with the absence of any specifics or progress in the case left him with the sense that he was once again being put off by an attorney who was not fighting for him, did not believe in his case and was not devoting the resources to advance his case." Plaintiff’s Corrected and Amended Memorandum in Opposition to Defendants’ Motion for Summary Judgment, February 28, 2018, Entry No. 172, p. 6. Moreover, Attorney Bloss took a negative view of his habeas case, said that it would likely take years to prosecute and showed no evidence that he was willing to fight for the plaintiff. Id., p. 8.
Conversely, the plaintiff understood that the sentence modification would leave him with a conviction. Plaintiff Deposition Transcript 8:1-13. While he felt there was "no fight behind what [Attorney] Bloss was doing" he did not feel coerced into taking the sentence modification and he took it voluntarily. Plaintiff Deposition Transcript 10:2-16. Attorney Bloss informed him that pursuing the appeal could take another three years and that the verdict may or may not be overturned. Plaintiff Deposition Transcript 11:18-25. The plaintiff testified that he believed that he was left with no other option other than taking the sentence modification because he felt that Attorney Bloss was not trying to fight for his habeas. Plaintiff Deposition Transcript 20:23-25, 21:1-21. It was for this reason that the plaintiff never told Attorney Bloss that he did not want to accept the sentence modification and wanted, instead, to pursue clearing the charges against him. Plaintiff Morant Deposition Transcript 30:13-21.
On June 17, 2015, the state court reduced the plaintiff’s sentence to concurrent terms of twenty-five years. The basis for the agreement was that the sentence would be reduced to the statutory minimum. During the sentence modification hearing, Michael Dearington, the State’s Attorney, said: "At some point in time it was determined that the key witness in this case was not honest in his testimony with respect to both trials, and its public information that a certain police officer involved in this had put him to contriving a story." As a result, the plaintiff was released from custody but remains convicted of two counts of felony murder. On June 18, 2015, Attorney Bloss filed a motion to dismiss the plaintiff’s pending federal habeas petition on the ground that the issues presented in the habeas petition were "resolved" because the plaintiff had been released from incarceration. On June 19, 2015, the District Court, Arterton, J., granted the motion to dismiss. See Morant v. Commissioner of Correction, United States District Court, Docket No. 3:09CV02082 (JBA) (D.Conn. 2015). On June 22, 2015, the District Court entered judgment dismissing the case. See id. By complaint dated April 7, 2016 the plaintiff commenced the current action against Attorney Cramer and the defendants alleging professional negligence. On July 19, 2016, the plaintiff filed the amended two-count complaint.
STANDARD
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). "Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). "[B]ecause any valid special defense raised by the defendant ultimately would prevent the court from rendering judgment for the plaintiff, a motion for summary judgment should be denied when any [special] defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Cadle Co. v. Ogalin, 175 Conn.App. 1, 10, 167 A.3d 402, cert. denied, 327 Conn. 930, 171 A.3d 454 (2017). "Only one of the defendants’ defenses needs to be valid in order to overcome the motion for summary judgment. [S]ince a single valid defense may defeat recovery, [a movant’s] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996).
DISCUSSION
The defendants argue that summary judgment should be granted on the grounds that: (1) the plaintiff must obtain exoneration prior to bringing a legal malpractice action stemming from a criminal case, a principle known as the "exoneration rule."
The defendants also asserted that summary judgment should be granted because the plaintiff cannot demonstrate the necessary element of causation to prevail on his legal malpractice claim; the plaintiff waived his claim to exoneration when he voluntarily accepted his sentence modification to time served; the plaintiff is estopped from asserting claims based on exoneration because he voluntarily accepted his sentence modification and never informed Attorney Bloss that he allegedly had "changed his mind"; and Attorney Bloss owed no duty to inform the plaintiff of the collateral consequences relating to seeking compensation in subsequent proceedings. The court does not separately examine these issues because of the disposition of the case by way of the adoption and application of the "exoneration rule." These other grounds are nevertheless to some extent implicated by "exoneration rule."
In response, the plaintiff argues that the court should deny the defendants’ motion for summary judgment on the grounds that the defendants waived the additional special defenses of the exoneration rule and collateral estoppel because they failed to raise them in the original answer and special defenses or in their amended answer and special defenses filed in April 2017 and the exoneration rule does not apply here because it is Attorney Bloss’ malpractice that precludes the plaintiff from obtaining exoneration.
I
Legal Malpractice
A plaintiff asserting a legal malpractice claim on Connecticut law must prove: "(1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages." (Internal quotation marks omitted.) Gray v. Weinstein, 110 Conn.App. 763, 773, 955 A.2d 1246 (2008). "The essential element of causation has two components. The first component, causation in fact, requires us to determine whether the injury would have occurred but for the defendant’s conduct ... The second component, proximate causation, requires us to determine whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries." (Internal quotation marks omitted.) Bozelkos v. Papastavros, 323 Conn. 275, 283, 147 A.3d 1023 (2016).
The majority of courts have adopted two additional elements applicable to a claim for legal malpractice when the plaintiff is a convicted criminal defendant asserting a legal malpractice claim against trial or post-conviction counsel, often referred to as "criminal malpractice." Cort Thomas, "Criminal Malpractice: Avoiding the Chutes and Using the Ladders" 37 Am. J. Crim. L. 331, 343 (2010). The first element has been referred to as the "exoneration rule" or "legal innocence" and mandates that "a convicted criminal defendant must obtain appellate or post-conviction relief as a precondition to maintaining a legal malpractice action." (Internal quotation marks omitted.) Cira v. Dillinger, 903 So.2d 367, 370 (Fla.App.2d Dist. 2005). The second, that of actual innocence of the crimes charged in the underlying criminal proceeding, is not considered by this court because it was not raised by the defendants in their summary judgment motion.
The element of actual innocence requires a criminal malpractice defendant to prove their actual innocence by a preponderance of the evidence. Ang v. Martin, 154 Wash.2d 477, 484, 114 P.3d 637 (2005) (based on proximate cause considerations because criminal’s "bad acts, not the alleged negligence of defense counsel, should be regarded as the cause in fact of their harm"). The existence of these two distinct elements stems from the burden of proof in a criminal proceeding, which requires proof "beyond a reasonable doubt"; State v. Griffin, 253 Conn. 195, 205, 749 A.2d 1192 (2000); under which a guilty defendant may be acquitted. Similar public policy reasons underlie both "legal innocence" and "actual innocence."
II
Exoneration Rule
There is no Connecticut appellate authority that considers whether the exoneration rule should be adopted although it has been squarely addressed, and adopted, by one decision of the Superior Court. In Mauro v. Cashman, Superior Court, judicial district of New Haven, Docket No. CV- 11-6020907-S, 2015 WL 1500435 (March 10, 2015, Blue, J.) (59 Conn.L.Rptr. 951), the plaintiff brought a criminal malpractice claim against his criminal defense counsel following a nolo contendere plea and receipt of an unconditional discharge subsequent to the reversal of a conviction on more serious charges after a trial to the court. The defendant, a criminal defense attorney, asserted entitlement to summary judgment based, in part, on the exoneration rule. The court, Blue, J., relied on the exoneration rule to grant summary judgment.
The plaintiff argues that the defendants waived the new special defenses of actual innocence, the exoneration rule, and collateral estoppel by the timing of their filing. The case law that the plaintiff submits to support this proposition, however, relates specifically to motions to strike. "Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796-97, 981 A.2d 517 (2009), cert. denied, 294 Conn . 926, 986 A.2d 1053 (2010) ("These same principles apply to claims raised in the trial court ..." [emphasis omitted] ). Thus, the court declines to consider this argument.
The court found three policy reasons persuasive that support the employment of the exoneration rule: (1) the built in protection already afforded criminal defendants by the criminal justice system; (2) the lack of a legal right to enforce; and (3) a break in the chain of causation. The Mauro court observed that the first rationale stems from the fact that "the criminal justice system itself provides redress for the errors and omissions of counsel ... Such relief is afforded to those clearly guilty as long as they demonstrate incompetence." Id., *2, quoting Coscia v. McKenna & Cuneo, 25 P.3d 670, 675 (Ca. 2001). Additional safeguards include the heightened "beyond a reasonable doubt" standard, the exclusionary rule, and the right to counsel, among others. See Wiley v. County of San Diego, 19 Cal.4th 532, 79 Cal.Rptr.2d 672, 966 P.2d 983, 988-89 (1998). The second policy is rooted in "fundamental principles of both tort and criminal law. Tort law provides damages only for harms to the plaintiff’s legally protected interests, Restatement (Second) of Torts, § 1 comment d, § 7(1) (1965), and the liberty of a guilty criminal is not one of them. The guilty criminal may be able to obtain an acquittal if he is skillfully represented, but he has no right to that result ... and the law provides no relief if the ‘right’ is denied him." (Emphasis in the original.) Mauro v. Cashman, supra, *2, quoting Levine v. Kling, 123 F.3d 580, 582 (7th Cir. 1997).
Finally, the court in Mauro quoted Peeler v. Hughes & Luce, 909 S.W.2d 494, 497 (Tex. 1995) for the proposition that "[for reasons of public policy, the criminal conduct is the only cause of any injury suffered as a result of conviction." Mauro v. Cashman, supra, *2. Our sister states have found the causation analysis compelling. "[W]ithout exoneration, it cannot be said that the attorney’s actions were the proximate cause of the guilty criminal’s injury. In other words, because of the antecedent criminal conduct, it cannot be said that ‘but for’ the attorney’s conduct the outcome of the criminal proceeding would differ. Thus, ‘without obtaining relief from the conviction or sentence, the criminal defendant’s own actions must be presumed to be the proximate cause of the injury.’ [Noske v. Friedberg, 656 N.W.2d 409, 414 (Minn.App. 2003) ]; Steele [v. Kehoe, 747 So.2d 931, 933 (Fla. 1999) ]. See also Berringer [v. Steele, 133 Md.App. 442, 758 A.2d 597 (2000) ] (If a potential criminal plaintiff is unsuccessful in obtaining relief from conviction, then it would seem that the attorney’s conduct was not the proximate cause of the conviction or injury’)." (Emphasis added.) Canaan v. Bartee, 276 Kan. 166, 124, 72 P.3d 911, cert. denied, 540 U.S. 1090, 124 S.Ct. 962, 157 L.Ed.2d 795 (2003).
Another rationale which has persuaded courts to apply the exoneration rule is that of collateral estoppel. The Restatement of the Law- Judgments, has observed that "[a] judgment in favor of the prosecuting authority is preclusive in favor of a third person in a civil action. Restatement (Second), Judgments, "Effect of Criminal Judgment in Subsequent Civil Action" § 85 (1982). One example of the operation of the issue preclusive effect of collateral estoppel in this context is that "where the person who was convicted of an offense brings an action against the third party to assert a claim that rests on factual premises inconsistent with those established in the criminal prosecution." Id., comment (e). The theory of collateral estoppel has been adopted by numerous courts as a basis for precluding a criminal malpractice action. See Gibson v. Trant, 58 S.W.3d 103, 114 (Tenn. 2001) (collecting cases). As the Gibson court opined: "[A] criminal defendant who believes he has been wrongly convicted should seek redress through the post-conviction process, not through a legal malpractice action. Collateral estoppel provides that once he does seek such relief, and it is denied, he cannot thereafter bring a civil claim based on the same allegations brought before the post-conviction court. It seems to us that the first conclusion leads ineluctably to the second. If the criminal courts are the mechanisms our society relies upon to provide relief to wrongly-convicted defendants, it should not be that civil courts may ignore the results of the post-conviction process once it has concluded." Id., 115.
Illustration 7 of § 85 provides: "D is convicted of arson of a building, D then brings an action against I, an insurer which wrote a fire insurance policy on the building, seeking to recover on the policy. The policy has an exclusion of liability for losses caused by intentional act of the insured. The determination in the criminal prosecution that D deliberately set the fire is conclusive in favor of I in the subsequent civil action."
Additional policy reasons to adopt and apply the exoneration rule are the avoidance of potential conflicting factual determinations among the civil and criminal courts and the impact of the absence of such a rule on an attorney’s willingness to take criminal cases, especially in the context of pro bono representation. Cort Thomas, "Criminal Malpractice: Avoiding the Chutes and Using the Ladders," supra, 37 Am. J. Crim. L. 346.
The court is persuaded that the above policies support the adoption and application of the exoneration rule in the present case. The undisputed evidence is that the plaintiff voluntarily elected to accept the sentence modification. He had the means available to him to secure exoneration by electing to continue with his federal habeas. His assertion that he felt that he was left with "no other option" because it seemed to him that Attorney Bloss was not trying to fight for his habeas is unpersuasive. At oral argument the plaintiff answered in the affirmative that his assertion was that "had there been a perception on Mr. Morant’s part that Mr. Bloss was actively pursuing the defense that he would not have voluntarily agreed to the sentence reduction." Presuming that the plaintiff did indeed feel that he had no other option but to accept the sentence modification for immediate release the bald fact remains that he did have another option, that of continuing his habeas. While allowing the federal habeas to proceed to conclusion may have been unattractive in the extreme to the plaintiff because he might have remained incarcerated, this option was never foreclosed to him.
The plaintiff, however, argues that the exoneration rule should not apply in the present case because it was Attorney Bloss’ conduct that prevented him from obtaining any kind of post-conviction relief. To support his proposition, the plaintiff argues that Taylor v. Davis, 265 Va. 187, 191, 191, 576 S.E.2d 445 (2003) supports the conclusion that when "the plaintiff [is] unable to establish actual innocence because of his attorneys’ negligence, the plaintiff is not required to plead that he sought and obtained post-conviction relief." The plaintiff, however, fails to quote important language in the court’s reasoning in Taylor. In Taylor, the Supreme Court of Virginia stated that Taylor was distinguishable from Adkins v. Dixon, supra, 253 Va. 275 because the plaintiff in Taylor "was not guilty of a legally cognizable offense" and "[pleaded] that he was incarcerated upon a purported conviction of acts that did not constitute a crime." Id. "And unlike the plaintiff in Adkins, [the] plaintiff in [Taylor ] did not participate in an illegal act and, therefore, if he is able to recover judgments against his former attorneys, he will not profit from the commission of an illegal act." Id. Therefore, the Virginia Supreme Court held, "when ... [the] plaintiff in an attorney malpractice action against his former criminal defense attorneys makes allegations in his motion for judgment which, if true, establish that the plaintiff is actually innocent as a matter of law because the purported offense for which he was convicted did not constitute a crime at the time the plaintiff was charged, and the plaintiff was unable to establish actual innocence because of his attorneys’ negligence, the plaintiff is not required to plead that he sought and obtained post-conviction relief." (Emphasis added.) Id. The court, therefore, is not persuaded that Taylor v. Davis applies in the present case.
Moreover, the court is also persuaded that the public policy reasons for finding that there is no proximate causation between the plaintiff’s continued sufferance of the burdens attendant to a criminal conviction and Attorney Bloss’ alleged negligence are not overcome by the present facts. The court has carefully reviewed the allegations of the operative complaint, the plaintiff’s affidavit in support of his objection to the motion for summary judgment, the proffered deposition testimony, and his memoranda in opposition to summary judgment. This review has not yielded any claim or evidence to the effect that Attorney Bloss made any misrepresentation, negligently, or intentionally, of fact or law that induced the plaintiff to accede to the sentence modification. Rather, the essence of the plaintiff’s claim is that the "let down and frustration" of a lawyer who was "doing nothing" left him with no hope of going forward causing him to go along with the sentence modification. Affidavit of Plaintiff, ¶¶ 40 and 42. This subjective perceived lack of willingness to pursue the habeas on Attorney Bloss’ part provides too thin a reed upon which to bridge the causal gap between any claimed negligence on the part of the defendants and the existence of a valid conviction.
The plaintiff testified at deposition that he did not believe that Attorney Bloss had ever lied to him. Plaintiff Deposition Transcript 146:6-12.
The damages claimed by the plaintiff are, in light of his conviction, simply not subject to vindication. To paraphrase Judge Posner, the freedom from conviction- never mind liberty- of a guilty criminal is not a condition even arguably objectionable or a legally protected interest. See Levine v. Kling, supra, 123 F.3d 580.
The principle of collateral estoppel also applies in the present case. At least one Connecticut Superior Court has applied collateral estoppel to grant summary judgment on the grounds that it barred a prisoner’s criminal malpractice suit where habeas corpus relief had been denied. Gray v. Weinstein, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-01-0175974-S, 2004 WL 3130552 (December 22, 2004, Schuman, J.) (38 Conn.L.Rptr. 450). Certainly consistency of judgments is one of the goals embodied in the doctrine of collateral estoppel; Corcoran v. Dept. of Social Services, 271 Conn. 679, 723, 859 A.2d 533 (2004); that is served by avoiding the potential of contrasting factual findings on identical issues, such as guilt or innocence, between criminal and civil courts. Our Appellate Court has recently adopted the policy enunciated in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) that "if success in a tort action would necessarily imply the invalidity of a conviction, the action is to be dismissed unless the underlying conviction has been invalidated." Taylor v. Wallace, 2018 WL 3724015 *4 (2018). While Taylor involved a dismissal for lack of ripeness because a habeas corpus action was pending, the tension between potential inconsistent findings of identical facts serves to bar an action for criminal malpractice. Id.
In the present case, it is undisputed that the plaintiff has not been successful in obtaining any form of post-conviction relief. The plaintiff appealed his criminal conviction and the Supreme Court affirmed. Then, the plaintiff petitioned for a new trial on the basis of newly discovered evidence, which was denied. The Appellate Court affirmed the denial. The plaintiff filed a petition for a writ of habeas corpus in the state court. The state habeas court denied the plaintiff’s petition for a writ of habeas corpus. The Appellate Court affirmed the denial. The plaintiff’s appeals and state habeas petitions, therefore, were denied, and the plaintiff’s federal habeas petition was dismissed voluntarily.
CONCLUSION
The plaintiff, thus, has not received any post-conviction relief, and remains convicted of two counts of felony murder. The exoneration rule precludes recovery. For the foregoing reasons, the defendants’ motion for summary judgment is granted.