Opinion
No. CV04-0004423S
November 5, 2007
MEMORANDUM OF DECISION
The motion to dismiss is granted and in the alternative the petition is denied on the merits for procedural default.
The motion to dismiss is granted because count two of the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not recently available at the time of the prior petition.
Under Section 23-29(3) of the Practice Book, count two, when construed in light of the reply, presents a claim that trial counsel was ineffective in failing to object to portions of the closing argument. This could well have been raised thirteen years ago when the first habeas petition which addressed multiple grounds of ineffective assistance of counsel or multiple specifications; this is simply another specification of the same general ground of ineffective assistance of trial counsel.
The record was fully adequate in 1994 to raise this in the habeas petition. It's a matter of record and there's no reason why it could not have been raised.
The petitioner does not state new facts or proffer new evidence, not reasonably available at the time of the prior petition.
Alternatively, I'm dismissing it under 23-29(5), which provides for dismissal for any other legally sufficient ground for dismissal of the petition and I find that claim of ineffective assistance of counsel for failure to challenge the closing argument is procedurally defaulted and that's a legally sufficient ground for dismissal of the petition. If it's not, and again in the alternative, if it's not a ground for dismissal, then procedural default is a ground for denial of the petition on the merits.
I'll now explain my basis for concluding that this claim is procedurally defaulted.
If we construe the claim as one of prosecutorial improprieties in closing argument, then this claim could have been raised on direct appeal. It's a matter of record. The fact that there were no objections at trial would not have precluded review any more than review precluded — was precluded in State v. Williams, which was 1987, and, in fact, review was granted in State v. Williams under the State v. Evans doctrine. Similarly, this could have been raised on direct appeal in 1992 under State v. Evans.
Alternatively, even if it wasn't raised on direct appeal and it wasn't, the claim for prosecutorial misconduct could have been raised in the 1994 petition and it could have been supplemented by a claim of ineffective assistance of counsel for failure to object to the allegedly improper closing argument; although, and there has been no adequate cause shown for not raising it on direct appeal or on in the first habeas petition; although, certainly there are more cases now, thirteen years having elapsed. The law has not changed and the same law that the petitioner relies on today existed in 1992 and 1994. It's been applied to other circumstances as cases have arisen, but the same fundamental elements and rules apply in closing argument. So, there is no cause that can be presented why this was not raised in 1992 and 1994, and to the extent that trial counsel's failure to object at trial is interwoven with the claim of prosecutorial misconduct or impropriety, again, I see no prejudice because — or it's partly caused, partly prejudice, but again this matter would have been fully reviewable under our simultaneous objection rules in State v. Evans type exception that existed at the time. So, there's simply no cause for not raising this in two prior occasions: One, appeal. The second, the previous habeas petition. And society's interest in finality of convictions, interests of the victim and the public in justice being carried out are really the foundation of the cause and prejudice procedural default rule and prevent habeas petitioners from deciding to raise three claims or so in 1994, and then waiting another thirteen years to raise other claims that could have been raised at the time. So, the claim is procedurally defaulted and that may be a ground for dismissal or alternatively it's a ground for denial of the petition on the merits.
The fact that, as we discussed during colloquy, that Golding Review no longer applies to claims of prosecutorial impropriety doesn't change the analysis because these claims were always reviewable under Golding. Golding standards were really the same as Williams, so in Stevenson the court just eliminated the duplication of analysis and said it's reviewable under Williams instead of reviewable under Golding, but either way it would have been reviewable on direct appeal and at the very least it could have been raised in the first habeas petition.
So, for these reasons the petition is dismissed and in the alternative it's denied for procedural default.
Schuman, J.
THE COURT: Is there any correction or — obviously, the petitioner may well disagree and is free to, but is there any correction or clarification that's needed?
MS. SALVATORE: No, Your Honor, I'd only ask for the purposes of his petition for certification that the clerk prepare a transcript order for Your Honor to sign.
THE COURT: I'll order that.
MS. SALVATORE: Thank you, Your Honor.
MS. HOWE: Thank you, Your Honor. I have nothing further.
THE COURT: All right. Thank you, counsel.
(End of excerpt as ordered.)
(The hearing concluded.)