Opinion
No. CV-05-4000471
October 8, 2009
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS
The petitioner, pro se, on June 3, 2005 filed this petition for a writ of habeas corpus. The petitioner was sentenced on February 25, 2000 by the court, Clifford, J., upon conviction of manslaughter in the first degree with a firearm, in violation of General Statutes § 53a-55a, conspiracy to commit assault in the first degree, in violation of General Statutes §§ 53a-48 and 53a-59, and possession of a weapon in a motor vehicle, in violation of General Statutes § 29-38. The petitioner was sentenced to an agreed-upon sentence of twenty-five years to serve.
On January 26, 2001, the petitioner filed his first petition for a writ of habeas corpus, claiming both of his trial counsel were ineffective. After a trial, the court, Fuger, J., dismissed the petition. The petitioner unsuccessfully appealed the dismissal to the Appellate Court. Frank v. Commissioner, 90 Conn.App. 326, 877 A.2d 884 (per curiam), cert. denied, 275 Conn. 929, 883 A.2d 1243 (2005). This second petition followed in June 2005. On September 7, 2009, the petitioner filed an amended petition again pleading ineffective assistance of his trial counsel. On September 9, 2009 the respondent filed a motion to dismiss the petition and a memorandum in support of same. The parties appeared on September 16, 2009, for hearing on the motion to dismiss. After argument, this court granted the motion to dismiss.
Legal Discussion
Practice Book § 23-29(3) provides that a judicial authority may dismiss a petition if it determines "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." Section 23-29(2) provides further that dismissal may enter if the "petitioner . . . fails to state a claim upon which habeas corpus relief can be granted."
Petitioner's petition here is an abuse of the writ, and the court expressly so holds. In January 2001, the petitioner claimed both his trial attorneys John Watson and Todd Fernow were ineffective in that, they "failed to assure that it was taken into account that petitioner had not fired at the victim with the intent to cause death or serious bodily harm." Respondent's Memorandum in Support of Motion to Dismiss, at pg. 3, citing First Amended Petition, 11/1/03 Count One, paragraph 2a and Count Two, paragraph 2a., Exhibit A. Here, the instant petition advances the same claim without articulating any new facts or evidence which was not available at the time of the prior writ. The court here would be within its powers to dismiss such a claim, if the respondent had raised the affirmative defense of procedural default, where the petitioner cannot satisfy the cause and prejudice standard set forth in McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). See Iasiello v. Manson, 12 Conn.App. 268, 271-72, 530 A.2d 1075, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). Many clear policy concerns support dismissal where, as here, the petitioner had a full and fair opportunity to litigate his claim previously and ought not be given a second opportunity to advance the same claim. The significant costs of habeas review, the desirability of final judgments, the burden on scarce judicial reserves, the effect on the passage of time and the prospect of successive petitions are but a few of the concerns which the court in McClesky noted. McCleskey v. Zant, supra, 499 U.S. 489-92. The petitioner here virtually admits that the claim is the same as the one previously ruled upon.
In James L. v. Commissioner of Correction, 245 Conn. 132, 140 n. 8, 712 A.2d 947 (1998), the Supreme Court noted that it ". . . [did] not assume that a successive petition necessarily constitutes abuse of the writ. Because [the court] decide[d] . . . that the present petition [was] not successive, [the court did] not delineate how these two habeas doctrines differ or overlap." The United States Supreme Court at length analyzed the abuse of the writ doctrine in McCleskey v. Zant, 499 U.S. 467, 477-89, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). After this lengthy discussion the court indicated that its ". . . discussion demonstrates that the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions. Because of historical changes and the complexity of the subject, the Court has not `always followed an unwavering line in its conclusions as to the availability of the Great Writ.' Fay v. Noia, 372 U.S., at 411-12. Today we attempt to define the doctrine of abuse of the writ with more precision. Although our decisions on the subject do not all admit of ready synthesis, one point emerges with clarity: abuse of the writ is not confined to instances of deliberate abandonment." Id., at pg. 489.
The McCleskey court stressed that its ". . . recent decisions confirm that a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice." Id. "In habeas, equity recognizes that `a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks.' . . . For these reasons, both the abuse-of-the-writ doctrine and our procedural default jurisprudence concentrate on a petitioner's acts to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time." (Citation omitted.) Id., at pg. 490.
The court is aware that the Supreme and Appellate Courts have not addressed this issue. "Neither our Supreme Court nor this court has adopted the rule set forth in McCleskey [applying procedural default to a prior habeas] for state habeas proceedings. Even if we were to assume arguendo that McCleskey applied to our state habeas proceedings, the respondent in the present case failed to comply with the explicit requirement of pleading abuse of the writ. When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ." (Emphasis in original.) (Citation and quotation marks omitted.) Mejia v. Commissioner of Correction, 98 Conn.App. 180, 195, 192, 908 A.2d 581 (2006), appeal dismissed after remand, 112 Conn.App. 137, 962 A.2d 148 (2009).
Here, however, the respondent's return does not raise the affirmative defense of procedural default.
The petitioner objected to the motion to dismiss at the time of oral argument; the court heard argument on the motion to dismiss, notwithstanding a written formal objection or memorandum of law in opposition to dismissal.
It is equally clear the petition here fails to state a claim upon which habeas relief may be granted. The petitioner here claims ineffective assistance of counsel based on a theory that the fatal shot in this case was not fired from his gun, but from a second gun used by another individual, thus, he did not cause the death of the victim and could not, goes the argument, have been convicted of murder. Here, however, the petitioner pleaded guilty to conspiracy to commit murder pursuant to General Statutes §§ 53a-54a and 53a-48. In its memorandum of decision on the prior habeas trial, the court, Fuger, J., found the following facts:
On December 20, 1997, the petitioner conspired with Michael Spike and Torian Williams-Bey to cause serious physical injury to the victim Malik Shannon. The petitioner came into possession of a stolen motor vehicle and armed himself and his co-conspirators with revolvers. Mr. Williams-Bey was in possession of an assault rifle. While being driven in the van, the trio sighted the victim at a pizza shop on Blue Hills Avenue in the city of Hartford. They pulled on to a side street, waited for the victim to turn the corner and then all three exited the van and commenced firing at the victim. The petitioner fired the first shot and struck the victim in the pelvis. Williams-Bey fired the fatal shot from the assault rifle. The victim died as a result of the injuries inflicted upon him from these shootings.
Frank v. Warden, Superior Court, judicial district of Tolland, Docket No. CV01-0805097 (February 18, 2004) ( 2004 Ct.Sup. 2489).
Here, the petitioner claims the fatal shot to the victim was caused by a bullet fired from another's gun and not by his bullet that struck the victim's pelvis. And so he could not, says the petitioner, be guilty of murder. But the record reveals the petitioner pleaded guilty to conspiracy to commit murder. The respondent correctly argues that it is irrelevant whether the petitioner's gun or that of the co-conspirator fired the fatal shot. A conspirator, indeed, may be held liable for the reasonably foreseeable criminal offenses committed by a co-conspirator within the scope of the conspiracy. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct 1180, 90 L.Ed. 1489 (1946). Here, the petitioner is attempting to reframe the same issue with different facts, to wit, his attorney did not adequately convey to him that he could have been convicted of a lesser included offense because his gunshot did not kill the victim and therefore, he did not possess the requisite specific intent to cause the death of the victim. The petitioner previously litigated ineffective assistance of counsel on the theory that his gun did not propel the bullet which killed the victim. This petition is successive and under these circumstances, constitutes an abuse of the writ. The petitioner already had a full and fair hearing on the merits of such a claim.
For the foregoing reasons, the petition is dismissed.