Opinion
No. CV04-4000200 S
February 10, 2009
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS
Respondent's motion to dismiss requests that this court dismiss counts one and two of the second amended petition filed by and though counsel on January 20, 2009. The motion to dismiss argues that counts one and two constitute successive claims and should therefore be dismissed. The parties appeared before the court on February 3, 2009, for a trial on the merits, at which time the court addressed the motion to dismiss after the petitioner's objection was filed with the court. After hearing the parties' arguments on the motion to dismiss and the objection thereto, the court granted the motion to dismiss and indicated it would subsequently file a memorandum of decision more fully articulating its decision.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . ." (Internal citations and quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn.App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). Nevertheless, the petitioner ". . . bears the burden of proving that the court has subject matter jurisdiction." Id.
Practice Book § 23-29 provides in relevant part that: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . . (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition[.]" "In this context, a `ground' has been defined as `sufficient legal basis for granting the relief sought.'" Tirado v. Commissioner of Correction, 24 Conn.App. 152, 156, 586 A.2d 625 (1991). A habeas court may also dismiss all or part of a habeas corpus petition if . . . "any other legally sufficient ground for dismissal of the petition exists." Practice Book § 23-29(5).
In count one, the petitioner alleges ineffective assistance by attorney Theresa Dalton, who represented the petitioner during the earlier stages of the underlying criminal matter. In count two, the petitioner alleges ineffective assistance by Thomas Nalband, who replaced attorney Dalton and who represented the petitioner at the time he resolved the criminal matter via plea agreement. In count three, the petitioner alleges ineffective assistance by attorney Kenneth Fox, who represented the petitioner in a prior habeas petition in which he litigated a claim of ineffective assistance by attorney Nalband.
The prior habeas, docket number CV01-809670, was tried to the court (White, J.). Judge White dismissed the petition, which was affirmed in Sadler v. Commissioner of Correction, 90 Conn.App. 702, 880 A.2d 902, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005).
"[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief . . . But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition. (Citation omitted; internal quotation marks omitted.) Mejia v. Commissioner of Correction, 98 Conn.App. 180, 188-89, 908 A.2d 581 (2006); see also McClendon v. Commissioner of Correction, 93 Conn.App. 228, 231-32, 888 A.2d 183 (affirming habeas court's dismissal of petitioner's second petition for writ of habeas corpus because petitioner failed to allege factual support for allegations contained in petition unavailable to him at time of original habeas petition; likewise, at hearing on motion to dismiss filed by respondent, petitioner offered no evidence facts alleged unavailable while original habeas petition pending), cert. denied, 277 Conn. 917, 895 A.2d 789 (2006)." (Internal quotation marks omitted.) Carter v. Commissioner of Correction, 109 Conn.App. 300, 306, 950 A.2d 619 (2008).
The petitioner's claims in counts one and two allege ineffective assistance by trial defense counsel, one of whom did not even represent the petitioner at the time he resolved his criminal matter by plea agreement. The prior habeas sought the following habeas corpus relief: that the petitioner's conviction and sentence be vacated; that he be allowed to withdraw his guilty plea and have the criminal matter restored to the docket for further proceedings; that he be released from custody; and such other relief as the ends of law and justice require. In the instant habeas, the petitioner seeks the following relief: that he be allowed to withdraw his guilty plea and have the matter restored to the criminal docket for further proceedings; another habeas corpus trial on claims of ineffective assistance of trial counsel; and such other relief as the law, equity and justice require. Both attorneys Dalton and Nalband testified during the trial on the prior habeas corpus petition and will not be called to testify in the instant matter. Instead, the petitioner has submitted a transcript from the prior habeas trial, during which Dalton and Nalband testified.
As to this specific relief (i.e., a new habeas corpus trial on the claim of ineffective assistance of trial defense counsel), the court notes that if the petitioner were to prove deficient performance by attorney Fox, the petitioner would also have to prove that he was prejudiced thereby. To show that he was prejudiced requires an undermining of this court's confidence in the outcome not just of the prior habeas, but also of the underlying criminal case. This task is difficult enough to have been called "Herculean." See, e.g., Lozada v. Warden, 223 Conn. 834, 843, 613 A.2d 818 (1992). As stated somewhat differently in Lozada, the petitioner will have to show ineffective assistance of trial defense counsel as part of the showing that prior habeas counsel rendered ineffective assistance of counsel. If the petitioner completes this Herculean task, it would be nonsensical to order another habeas trial to again show what has already been shown.
It is quite clear from the foregoing that the petitioner is attempting to relitigate a claim that has previously been adjudicated on the merits. The petitioner's legal basis — ineffective assistance by trial counsel — is very same ground as in the prior petition, as is the relief the petitioner seeks. There are no new facts proffered in support of counts one and two, nor is there new evidence, not reasonably available at the time of the prior petition.
Based upon the foregoing, the respondent's motion to dismiss counts one and two is granted in accordance with Practice Book § 23-29(3).
It is so ordered.