Opinion
No. TSR CV07-4001816 S
May 12, 2009
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
The petitioner initiated this matter by way of a petition for a writ of habeas corpus filed by and through counsel on June 28, 2007. The petition alleges that the petitioner's confinement is illegal because no court has ever set the minimum term of his confinement, as well as that the respondent has arbitrarily determined that he is serving six consecutive terms of not less than twenty-five years nor more than life. As a result of these defects, the petitioner will never be eligible for parole consideration. The petitioner further asserts that the respondent's determination of his sentences usurps the Superior Court's exclusive power to impose sentences. The foregoing has resulted in the petitioner being confined in violation of both the due process clause of the Fourteenth Amendment to the United States Constitution and General Statutes § 53a-35.
The respondent's return denies that the petitioner is somehow illegally confined. The return specifically denies that the Commissioner of Correction either has "arbitrarily" determined the petitioner's sentences or "arbitrarily" determined his parole eligibility. The respondent denies that she has determined the petitioner will never be eligible for parole. Instead, according to the return, the respondent has determined that the petitioner will be eligible for parole after he has served 150 years less all applicable good time credits. Lastly, the return asserts as defenses that the petitioner is lawfully confined, as well as that he is barred by both res judicata and collateral estoppel from raising the claims asserted in the petition because he raised, or should have raised, such claims in prior state and federal courts. The petitioner filed a reply denying all defenses asserted in the return.
The respondent then filed a motion for summary judgment, accompanied by a supporting memorandum of law and the following: 1) an affidavit from Michele Deveau, a Department of Correction Records Specialist II; 2) docket sheet, State of Connecticut v. Arthur Davis, Docket No. 13861; 3) the petitioner's time sheet as maintained by the Department of Correction; 4) decision in Davis v. Bryan, 889 F.2d 445 (2d Cir. 1989); 5) decision in Davis v. Bryan, 810 F.2d 42 (2d Cir. 1987); 6) decision in Davis v. Bryan, et al., Docket No. 89-2101, U.S. District Court, Nov. 14, 1989; 7) decision in Davis v. Warden, Docket No. CV85-0000050, Superior Court (Axelrod, J.), Aug. 14, 1992; and 8) General Statutes § 54-125 (Rev. to 1968). The respondent posits that summary judgment is appropriate because the petitioner's sentences have been properly calculated and because the Second Circuit Court of Appeals has addressed the same claim in Davis v. Bryan, 889 F.2d 445 (2d Cir. 1989), precluding the present action under the doctrine of res judicata.
The petitioner filed a brief in opposition to the motion for summary judgment. The brief argues that the summary judgment motion "evades the point of this habeas corpus petition by assuming that the petitioner is asking for more than he really is seeking." Brief, at pg. 1. The petitioner states that the motion for summary judgment ". . . makes the assumption that through this petition the petitioner seeks a court order to the effect that he should be parole eligible after sixty years minus good time credits. That is not correct. The petitioner asks only that this case be returned to a three-judge panel so that a proper resentencing can take place. What that resentencing should be would lie exclusively within the discretion of that three-judge panel." Brief, at pg. 2. "The only ground of the instant petition is that the determination of what shall be the minimum term of the petitioner's six consecutive life sentences must be made by the sentencing court and not by an administrative official. The respondent has violated the law not by selecting twenty-five years rather than some other number, but by selecting any number at all. Only the sentencing court is permitted to do that." Id.
The matter then came before this court on January 18, 2009, for a hearing on the motion for summary judgment and the objection thereto. For the reasons stated below, the motion for summary judgment is denied without prejudice.
APPLICABLE LEGAL STANDARD
Practice Book § 23-37 provides that "[a]t 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."
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . ." (Citation omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
FINDINGS OF FACT
The parties do not disagree on the underlying facts. On November 16, 1966, in the Superior Court at New Haven, the petitioner was found guilty by a three-judge court of six counts of murder. On November 17, 1966, the three-judge panel sentenced the petitioner to death. The three-judge panel stayed the imposition of the death penalty several days later, on November 22, 1966, pending the appeal. The petitioner appealed from the judgment of conviction, which was affirmed in State v. Davis, 158 Conn. 341, 260 A.2d 587 (1969).
The underlying facts, which are not relevant to this matter, are restated in State v. Davis, 158 Conn. 341, 346-50, 260 A.2d 587 (1969). The offense date was August 26, 1966. Id., at pg. 348.
On July 29, 1972, the United States Supreme Court vacated the petitioner's sentence of death. On November 16, 1972, in compliance with the United States Supreme Court order, a different three-judge court at New Haven resentenced the petitioner to "life imprisonment . . . on each of said six counts, said sentences to run consecutively."
Pursuant to General Statutes § 53a-35, the sentence for any felony committed prior to July 1, 1981, shall be indeterminate. For any felony for which the maximum term of imprisonment is life, the minimum must be not less than ten nor more than twenty-five years.
Additional facts will be discussed as necessary.
DISCUSSION
The first issue the court will address is precisely how to interpret and understand the petitioner's habeas corpus claim. "The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise . . . The complaint is required only to fairly put the defendant on notice of the claims against him . . . [T]he interpretation of pleadings is always a question of law for the court . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery . . ." (Citation omitted.) Data-Flow Technologies, LLC v. Harte Nissan, Inc., 111 Conn.App. 118, 132-33, 958 A.2d 195 (2008).
The habeas corpus petition filed by and through counsel asserts that only the court can set the term of imprisonment. The petition further asserts that the respondent, through her agents, has arbitrarily determined that the petitioner is serving six consecutive terms of not less than twenty-five years nor more than life. According to the petitioner, no court ever has imposed the minimum, term of the petitioner's imprisonment. The petitioner will never, as a result of this allegedly arbitrary and illegal action by the respondent, be eligible for parole consideration. The petitioner further posits that he could become eligible for parole consideration if the court, in the exercise of its sentencing power under General Statutes § 53-35, imposed minimum terms of ten years rather than the twenty-five years imposed arbitrarily and unlawfully by the respondent. The respondent's determinations have, according to the petitioner, usurped the exclusive sentencing power of the Superior Court.
While the petition avers that the respondent has done things that have resulted in his illegal confinement, it also is evident that the gravamen of the petitioner's allegations is that he claims that he was illegally sentenced. While the petition does not explicitly allege an illegal sentence, this is more than implicit in the petition itself and, in fact, becomes indisputable from a review of the brief filed in opposition to the motion for summary judgment. To wit the following from said brief: "In her motion for summary judgment, [the respondent] makes the assumption that through this petition the petitioner seeks a court order to the effect that he should be parole eligible after sixty years minus good time credits. That is not correct. The petitioner asks only that this case be returned to a three-judge panel at New Haven so that a proper resentencing can take place. What that resentencing should be would lie exclusively within the discretion of that three-judge panel." (Emphasis added.) Brief, at pg. 2.
Undeniably, then, the petitioner's claim in the petition is that he was illegally sentenced because the three-judge panel in 1972 did not impose a minimum sentence for each of the six individual life sentences.
In Cobham v. Commissioner of Correction, 258 Conn. 30, 779 A.2d 80 (2001), the Supreme Court ". . . conclude[d] that, in order to challenge an illegal sentence, a defendant either must appeal the sentence directly or file a motion to correct the sentence pursuant to § 43-22 with the trial court before raising a challenge for the first time in a petition for a writ of habeas corpus." The Supreme Court noted that "[t]he petitioner [in Cobham] first challenged his sentence through this habeas petition. He did not file an appeal challenging his sentence nor has he filed, pursuant to § 43-22, a motion to correct the sentence with the trial court. The petitioner could have filed such a motion `at any time,' including the present time. Practice Book § 43-22 . . . Because the petitioner has failed to follow the proper procedures by which to correct his sentence or to preserve his challenge to the sentence before having filed this petition for a writ of habeas corpus, his petition is procedurally defaulted and, therefore, [a court] will review the petitioner's claims . . . only if he can satisfy the `cause and prejudice' standard of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993); Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991)." Cobham v. Commissioner of Correction, supra, 258 Conn. 39-40.
In Cobham, the respondent had properly raised procedural default as a defense to the illegal sentence claim. Id., at 36. The petitioner in turn denied that procedural default did not apply to his claim. Id. The habeas court dismissed the petition after a hearing and after concluding that it properly could hear the petition. Id. The petitioner on appeal raised several claims, although the Supreme Court ultimately ". . . decline[d] to reach the merits of any of the petitioner's claims . . . due to a procedural default, in that the petitioner prematurely has challenged his sentence before the habeas court." Id., at 37.
"[The Cobham court noted that it had] held that the jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act . . . Practice Book § 43-29 which provides the trial court with such authority, provides that [t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner. An `illegal sentence' is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory . . . We previously have noted that a defendant may challenge his or her criminal sentence on the ground that it is illegal by raising the issue on direct appeal or by filing a motion pursuant to § 43-22 with the judicial authority, namely, the trial court . . . We have not, however, had the occasion to express an opinion as to whether habeas corpus is an appropriate vehicle by which to challenge the legality of a sentence . . . We now conclude that before seeking to correct an illegal sentence in the habeas court, a defendant either must raise the issue on direct appeal or file a motion pursuant to § 43-22 with the trial court.
"As [the Supreme Court had previously] noted . . . it is to a defendant's advantage to move in the trial court, pursuant to [§ 43-22], to correct a purportedly illegal sentence after the sentence is imposed. This method would ordinarily yield a more prompt consideration of [a] defendant's challenge to the sentence than would the filing of a petition for habeas corpus, which usually entails considerably more delay than does a motion pursuant to [§ 43-22] . . . By filing a motion with the trial court, a defendant not only can be heard more expediently, but he also has access to certain remedies with regard to sentencing that the habeas court, the Appellate Court, and this court do not have the authority to order. For example, to correct an illegal sentence, only the trial court can: reconstruct the sentence to conform to its original intent or the plea agreement; eliminate a sentence reconstruct the sentence to conform to its original intent or the plea agreement; eliminate a sentence previously imposed for a vacated conviction; or resentence a defendant if it is determined that the original sentence was illegal . . . We therefore conclude that, in order to challenge an illegal sentence, a defendant either must appeal the sentence directly or file a motion to correct the sentence pursuant to § 43-22 with the trial court before raising a challenge for the first time in a petition for a writ of habeas corpus." (Internal citations and quotation marks omitted.) Id., at 37-39.
See, e.g. Orcutt v. Commissioner of Correction, 284 Conn. 724, 743-44, 937 A.2d 656 (2007): Brooks v. Commissioner of Correction, 105 Conn App. 149, 163, 937 A.2d 699, cert. denied, 286 Conn. 904, 943 A.2d 1101 (2008).
In Orcutt v. Commissioner of Correction, 284 Conn. 724, 937 A.2d 656 (2007), the Supreme Court affirmed the judgment of the habeas court insofar as it pertained to granting habeas corpus relief, but reversed the habeas court's order that the Commissioner of Correction establish the petitioner's new release date. The Orcutt court stressed that the sentencing court should be afforded the opportunity to determine which sentence should be imposed as a result of the granted habeas corpus petition. See also Brooks v. Commissioner of Correction, 105 Conn.App. 149, 163, 937 A.2d 699, cert. denied, 286 Conn. 904, 943 A.2d 1101 (2008). The Supreme Court in Orcutt went so far as to indicate that it "[saw] no reason why the habeas court in the present case could not have stayed the proceedings in that court to allow for an expedited resolution of the petitioner's motion to correct an illegal sentence in the trial court." Orcutt v. Commissioner of Correction, supra, 284 Conn. 741 n. 27. Aside from providing the sentencing court with the first opportunity to address an allegedly illegal sentence, such a referral to the sentencing court is eventually necessary to effectuate the habeas corpus relief, if such relief is warranted.
From its review of Orcutt and Brooks, this court concludes that the following orders are both proper and warranted: first, the motion for summary judgment is denied without prejudice; second, the proceedings in this habeas corpus matter are stayed to permit the petitioner to file in the sentencing court a motion to correct an illegal sentence; and third, the parties are to immediately report back to this court upon the sentencing court resolving the motion to correct an illegal sentence.
It is so ordered.