Opinion
No. CV05-4000391 S
October 2, 2006
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS
The petitioner, Rafael Fernandez, filed a pro se petition for a writ of habeas corpus on April 1, 2005, and which was amended on November 14, 2005. The amended petition raises claims in two counts. Count one alleges ineffective assistance of trial defense counsel; count two alleges ineffective assistance by prior habeas counsel. Though the petitioner has previously litigated a habeas corpus petition, he has never raised a claim of ineffective assistance of trial defense counsel prior to the instant matter.
On December 19, 2005, the respondent filed both a return and a motion to dismiss the amended petition in its entirety. On January 17, 2006, the petitioner filed a reply to the return.
After receiving extensions of time, the petitioner filed an objection to the motion to dismiss on March 9, 2006. The matter was set down for September 29, 2006 for a trial on the merits. However, upon motion the court granted a request to convert the trial date to a hearing on the motion to dismiss and the objection thereto. Counsel of record and the petitioner were present on September 29, 2006 for a hearing on the motion to dismiss and the objection thereto.
"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 . . ." State v. Welwood, 258 Conn. 425, 433, 780 A.2d 924 (2001). "When a . . . court decides a jurisdictional question raised by a pre-trial motion to dismiss, 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.". . . Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004).
The respondent's motion to dismiss relies on Practice Book § 23-29. The respondent first summarizes the procedural history of the prior proceedings, which includes a prior habeas corpus petition. That summary concludes with the statement that "[o]n April 15, 2002, the petitioner, through counsel filed a petition for writ of habeas corpus alleging former trial counsel, William Gerace, was ineffective for withdrawing from petitioner's case. (See Exh. B.)" Motion to Dismiss, at 1. A review of the claims raised by the petitioner in the prior habeas petition shows that the petitioner did not raise a claim of ineffective assistance of counsel in the prior petition.
§ 23-29 states 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: (1) the court lacks jurisdiction; (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted; (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; (4) the claims asserted in the petition are moot or premature; (5) any other legally sufficient ground for dismissal of the petition exists."
The prior habeas corpus matter was assigned docket number CV99-0422586 in the judicial district of New Haven. On November 26, 2002, the court (Robinson, J.) granted respondent's motion to dismiss the petition based on res judicata grounds. As indicated above, the prior petition did not raise any claims directed against trial counsel's performance, but instead attempted to re-litigate claims indistinguishable from those the petitioner raised on his direct appeal from the criminal conviction. See State v. Fernandez, 254 Conn. 637, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001). The petitioner appealed from the dismissal of the prior habeas petition. The Appellate Court held that Judge Robinson properly dismissed the petition based on res judicata. See Fernandez v. Commissioner of Correction, 86 Conn.App. 42, 859 A.2d 948 (2004). As the Appellate Court summarized the claims in the first petition, ". . . the petitioner sought habeas review of two claims that were unequivocally raised, litigated and decided on direct appeal from his judgment of conviction." Id. at 46.
The motion to dismiss then correctly states that the 2002 amended petition raised two claims. That petition first claimed ". . . that the Appellate Court erred in its ruling that denial of defendant's request for access to a law library did not deprive defendant of his constitutional right to self representation or access to the courts." Id. The second count ". . . claimed the Appellate Court erred in its ruling that trial court's decision granting defense counsel's oral motion to withdraw, despite the fact that defense counsel had not filed a written motion requesting permission to withdraw as required by rule, did not deprive defendant of his constitutional right to counsel." Id., at 1-2. Ultimately, the prior petition was dismissed and the Appellate Court affirmed the dismissal of the petition. Fernandez v. Commissioner of Correction, 86 Conn.App. 42, 859 A.2d 948 (2004).
In Fernandez v. Commissioner of Correction, the Appellate Court noted that "[t]he doctrine of res judicata, or claim preclusion, provides that a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action between the same parties] on the same claim . . . To determine whether two claims are the same for purposes of res judicata, we compare the pleadings and judgment in the first action with the complaint in the subsequent action . . . The doctrine of res judicata applies to criminal as well as civil proceedings and to state habeas corpus proceedings . . . Although the doctrine of res judicata in its fullest sense bars claims that could have been raised in a prior proceeding, such an application in the habeas corpus context would be unduly harsh . . . Unique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner . . . Foremost among those considerations is the interest in making certain that no one is deprived of liberty in violation of his or her constitutional rights . . . With that in mind, we limit the application of the doctrine of res judicata in circumstances such as these to claims that actually have been raised and litigated in an earlier proceeding. (Emphasis added.) (Internal citations and quotation marks omitted.) Id. at 45-46.
In the present matter, the respondent first asserts that count one of the amended petition must be dismissed based on res judicata and collateral estoppel. It is critical to note that the petitioner has never alleged a claim of ineffective assistance of counsel and has never had the opportunity to litigate such a claim on the merits in any proceeding. Consequently, the motion to dismiss count one based on res judicata and collateral estoppel must be denied.
The respondent also argues that the instant petition is a successive petition and an abuse of the writ of habeas corpus. Thus, according to the respondent, the petitioner is barred from litigating the issue of Attorney Gerace's alleged ineffective assistance of counsel. The respondent again incorrectly asserts that the 2002 petition alleged ineffective assistance of counsel. Relying on McCleskey v. Zant, 499 U.S. 467, 494-95 (1991), the respondent goes on to argue that an ". . . abuse of the writ could be accomplished by raising a claim in a subsequent petition that could have been raised in the first petition." Motion to Dismiss, at 4. This court is well aware that piecemeal litigation can result in an abuse of the writ of habeas corpus. Nevertheless, the petitioner here for the first time alleges ineffective assistance by Attorney Gerace and, at the same time, ineffective assistance by Attorney Aspinwall, who represented the petitioner in the 2002 petition and failed to raise a claim of ineffective assistance of trial defense counsel. The court cannot conclude either that this is a successive petition or that this petition is an abuse of the writ.
The motion to dismiss indicates a third basis for dismissal, namely that the claim in count two of the amended petition alleging ineffective assistance by Attorney Aspinwall in the 2002 petition should be dismissed in accordance with Practice Book § CT Page 17919 23-29(2). That section allows for the dismissal of the petition or a count thereof if it ". . . fails to state a claim upon which habeas corpus relief can be granted." The allegation in the present petition is that Attorney Aspinwall provided ineffective assistance of habeas counsel by not including ineffective assistance of counsel claims against Attorney Gerace. The petitioner has clearly alleged a claim upon which habeas corpus relief can be granted. Consequently, the claim in count two against Attorney Aspinwall cannot be dismissed based on § 23-29(2).
Lastly, the respondent on September 26, 2006 filed a pleading captioned "Motion for Consideration of Supplemental Caselaw and Argument in Support of Respondent's Motion to Dismiss." The respondent's pleading does not assert another ground for dismissing the petition. Instead, the pleading seems to argue that the petitioner will not be able to meet his burden of proof. The petitioner filed a response to this motion on September 28, 2006. The court has reviewed and considered both filings, but neither has much, if any, bearing on the motion to dismiss and the objection thereto.
Accordingly, and based on the foregoing, the motion to dismiss is DENIED. Counsel are to agree upon a trial date in the near future and contact habeas caseflow so the matter can be set down for a trial on the merits.