Opinion
No. CV 06-4000926
November 27, 2007
Ruling on Motion for Summary Judgment
The petitioner pleaded guilty to ten criminal charges and admitted two counts of violations of probation. He received a sentence of eight years in prison, suspended after forty months, with four years probation. He has now filed a two-count amended petition for a writ of habeas corpus. The respondent warden has moved for summary judgment. After a hearing, the court grants the motion.
I
In the first count of the petition, the petitioner alleges that his guilty plea was involuntary because he did not understand that the trial court would impose a condition of probation restricting the petitioner's ability to see his children. The respondent asserts that res judicata bars consideration of this claim because the petitioner raised it in his direct appeal to the Appellate Court. See State v. Stanley S., 101 Conn.App. 770, 779-82, 926 A.2d 1045, cert. denied, 284 Conn. 903, 931 A.2d 267 (2007). The petitioner does not contest this assertion in his objection to the summary judgment motion. Upon review, the court agrees that the petitioner raised the claim on direct appeal and that res judicata bars its relitigation. See Bridges v. Commissioner of Correction, 97 Conn.App. 119, 905 A.2d 103, cert. denied, 280 Conn. 921, 908 A.2d 543 (2006). Accordingly, the respondent is entitled to summary judgment on the first count.
II
In count two, the petitioner claims that the trial court failed to inquire into his competency to represent himself during his plea hearing and subsequent evidentiary hearings on his motion to withdrawn his plea. In its amended return, the respondent alleged a procedural default in that the petitioner did not raise the competency issue in his direct appeal and that the petitioner cannot establish cause and prejudice relating to the default. See Practice Book § 23-30(b). The petitioner thereafter filed a reply that, without further explanation, denied each and every allegation in the return.
Section 23-30(b) provides in pertinent part: "The return shall . . . allege any facts in support of procedural default . . ."
In support of its summary judgment motion, the respondent attaches the petitioner's brief to the Appellate Court, which shows that the petitioner, on appeal, did not raise the claim that he was not competent to represent himself, and the Appellate Court opinion, which shows that the court did not address the issue. In opposition, the petitioner has filed an objection without any supporting evidence. The objection does argue, however, that the petitioner's general denial in his reply is sufficient to generate a fact issue on summary judgment. The petitioner relies on Christian v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 05 4000297 S (June 21, 2006, Fuger, J.,), which held in a similar procedural situation that "a reply that denies procedural default creates genuine issues of material fact that must be tried to the court."
The petitioner was represented by counsel on appeal. State v. Steven S., supra, 101 Conn.App. 772. The appellate brief did raise somewhat related claims that the petitioner was impaired by medication at the time of the plea and that the plea was invalid because a psychiatric report was not completed within the original statutory time period. The Appellate Court rejected these claims. Id., 776-79. The petitioner does not argue that these claims are the same as that in count two of the petition, perhaps because doing so would lead to the conclusion that res judicata would also bar count two. See Taylor v. Commissioner of Correction, 284 Conn. 433, 452 A.2d (2007) ("[t]he fact that the defendant was receiving medication . . . [of itself] does not render him incompetent"). (Internal quotation marks omitted.)
The court respectfully disagrees with the decision in Christian to the extent that it is identical. For one thing, the decision is contrary to the rules governing habeas cases. Practice Book § 23-31[c] provides in pertinent part that "[t]he reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default." The apparent purpose of this rule is to provide notice to the respondent of the specific basis of the claim of cause and prejudice so that the respondent can prepare for an evidentiary hearing on the issue. The petitioner has failed to comply with this rule.
It is not clear whether the petitioner in Christian, unlike the petitioner here, submitted evidence of cause and prejudice in his opposition to the summary judgment motion.
Second, the position that a simple denial of procedural default, without more, can defeat summary judgment is contrary to summary judgment rules. It is clear, initially, that civil summary judgment rules should apply to habeas cases. This conclusion flows from the fact that the habeas corpus rules authorize summary judgment motions using the same operative language as the general civil rules; see Practice Book § 23-37; and that habeas corpus proceedings are, in fact, civil in nature. See Lorthe v. Commissioner of Correction, 103 Conn.App. 662, 687 n. 21, 931 A.2d 348 (2007).
Section 23-37 provides: "At any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law." Practice Book § 17-49, the rule for summary judgment in civil cases, provides in nearly identical terms: "The judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law."
Under the general rules of summary judgment, the party moving for summary judgment has the initial burden "to bring forward . . . evidentiary facts or substantial evidence outside the pleadings to show the absence of any material dispute." (Emphasis deleted; internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000). Correspondingly, "the party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Id. Stated differently, "the party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Emphasis deleted; internal quotation marks omitted.) Mytych v. May Department Stores Co., 260 Conn. 152, 164 n. 8, 793 A.2d 1068 (2002). An adverse party opposing summary judgment shall file "affidavits and other available documentary evidence." Practice Book § 17-45. "Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. See Doty v. Shawmut Bank, supra, 431.
In the present case, even viewing the evidence favorably to the petitioner, the respondent has met its burden of bringing forward evidentiary materials showing that the petitioner failed to raise the self-representation issue on appeal and that therefore there was a procedural default entitling it to judgment. See generally Duperry v. Solnit, 261 Conn. 309, 331-32, 803 A.2d 287 (2002). In response, the petitioner has provided no evidence either refuting the procedural default or showing cause and prejudice. The petitioner's reliance on its general denial in its reply is insufficient, because "unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, supra, 38 Conn.App. 245.
When a party moves for summary judgment and there are no contradictory affidavits, "the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Company of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). Here, the movant has sufficiently shown a procedural default and there is no contradictory evidence. Indeed, the petitioner has had two opportunities — his reply and his summary judgment opposition — to provide the respondent with some evidence of cause and prejudice relating to the procedural default, and has failed on both occasions. Given that the petitioner bears the burden of establishing cause and prejudice; see Johnson v. Commissioner of Correction, 218 Conn. 403, 412-13, 589 A.2d 1214 (1991); it would be unfair to require the respondent to defend an evidentiary hearing on this matter under these circumstances.
IV
The court grants the respondent's motion for summary judgment. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.