Opinion
No. CV09-4002834-S
July 25, 2011
MEMORANDUM OF DECISION RE RESPONDENT'S MOTION TO DISMISS
The petitioner, Andrew Siminausky, was charged with five counts of robbery in the first degree, one count of robbery in the third degree, and one violation of probation, and faced a maximum penalty of 111 years in prison. On November 29, 2006, the petitioner pled guilty to five counts of robbery in the first degree, pursuant to a global agreement for a sentence between 10 and 15 years of incarceration. A presentence investigation report was ordered and the matter was set down for sentencing on January 26, 2007. The petitioner moved to withdraw his guilty pleas between the plea and sentencing, claiming that his plea was involuntary due to the ineffective assistance of his trial counsel.
At the April 27, 2007 hearing, the court stated that the maximum penalty for the counts against the petitioner was a sentence of 86 years incarceration. However, that penalty was only inclusive of the violation of probation and four counts of robbery in the first degree.
The record before the court is unclear as to the date the petitioner was originally scheduled to be sentenced and the date the motion to withdraw the guilty plea was filed. However, it appears from the April 27, 2007 transcript that the original sentencing date was January 26, 2007.
The Court for the New Haven Judicial District held an evidentiary hearing on the motion on April 27, 2007. At that hearing, the petitioner testified that prior to entering his guilty pleas his trial attorneys, John Donovan and Michael Dolan, had advised him that he would be eligible for parole after serving 65 percent of his sentence, and that he could also apply for a sentence modification. The petitioner's trial attorneys testified that they had neither advised the petitioner that he would be able to apply for a sentence modification, nor that he would be eligible for parole after serving 65 percent of his sentence. Following the hearing, the motion was denied. On July 1, 2007 the petitioner was sentenced to 12 years incarceration on each robbery count, with all sentences to run concurrent. The petitioner appealed his convictions, arguing that his pleas were not voluntary. The Appellate Court rejected his claims and affirmed his convictions. State v. Siminausky, 112 Conn.App. 33, 961 A.2d 1005, cert. denied, 290 Conn. 918, 966 A.2d 234 (2009).
In the respondent's return, based on the attached mittimus, the sentencing date is alleged to have been June 1, 2007. However, in his petition for writ of habeas corpus, the petitioner alleges the date was July 1, 2007. For the purposes of this motion, the facts of the petitioner's complaint are taken as true. The actual date is not dispositive of the motion.
On January 2, 2009, the petitioner filed a petition for a writ of habeas corpus challenging his convictions. The petitioner's claims amount to an allegation of perjury and falsifying documents by his trial attorneys. The petitioner claims that during the April 27, 2007 evidentiary hearing, his trial attorneys lied under oath regarding their counseling of the petitioner prior to his guilty plea. On April 26, 2011, the respondent filed both a return and a motion to dismiss the petition. The motion claims that the petition fails to state a claim upon which habeas corpus relief may be granted. The petitioner's reply to the respondent's return does not address the motion to dismiss. For reasons stated below, the respondent's motion is granted.
DISCUSSION
Pursuant to Practice Book § 23-29, "[t]he judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition . . . if it determines that: . . . (2) the petition . . . fails to state a claim upon which habeas corpus relief can be granted . . ." On such a motion, "the allegations of the petitioner are deemed admitted." (Internal quotations omitted.) Santiago v. Warden, 27 Conn.App. 780, 784, 609 A.2d 1023 (1992).
The Appellate Court has held that a claim of a conviction based on perjury insufficient to grant habeas corpus relief. In Lewis v. Commissioner of Correction, 116 Conn.App. 400, 975 A.2d 740, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009), the petitioner claimed, among other things, that his conviction was the product of the perjured testimony of a state witness at trial. The habeas court declined to grant the petition because "his claim that his conviction was the product of perjured testimony was not an independent or freestanding claim on which relief could be granted in a habeas proceeding." Id. at 402. The Appellate Court upheld the habeas court because the petitioner failed to "allege a violation of any constitutional right in connection with his perjury claim before the habeas court," and concluded "that the perjury count of the petitioner's complaint failed to state a claim on which habeas corpus relief can be granted." Id. at 411, 412.
In light of the above, the petitioner's habeas corpus petition fails to state a claim on which relief may be granted. The petitioner alleges that his attorneys falsified documents and committed perjury at the hearing on his motion to withdraw his guilty plea. (Petition, ¶ 7.) However, like the petitioner in Lewis, the petitioner here does not allege any violation of a constitutional right in connection with this perjury claim. Taking the petitioner's claims as true, such perjury is not a claim on which habeas corpus relief may be granted.
CONCLUSION
Based on the forgoing, the respondent's motion to dismiss is granted. In accordance with Practice Book 23-29(1), judgment of dismissal shall enter.