Opinion
CV124004982S
08-13-2018
Chauncey WATTS (Inmate #228158) v. WARDEN
UNPUBLISHED OPINION
OPINION
Mullarkey, J.T.R.
The petitioner, Chauncey Watts, initiated the present matter by way of a petition for a writ of habeas corpus filed on September 26, 2012, and which was amended by counsel on August 18, 2017. The amended petition raises claims in two counts: first, ineffective assistance of trial counsel, attorney Avery Chapman; and second, cruel and unusual punishment. The respondent’s return denies the petitioner’s material allegations and that he is entitled to habeas corpus relief. The return also asserts as defenses to the claim in count two that the petitioner has procedurally defaulted and that he is not entitled to review of the claim. The petitioner filed a reply that is responsive to the return.
The parties appeared before the court on February 27 and 28, 2018, for a trial on the merits. The petitioner testified and presented the testimony of the prosecutor, Assistant State’s Attorney John Fahey, his former trial counsel, attorney Avery Chapman, and his expert witness, attorney Michael Sheehan. Both the petitioner and the respondent entered documents into evidence, consisting primarily of transcripts plus several other documents. The parties filed post-trial briefs. For the reasons articulated more fully below, the petitioner’s claims are either denied or dismissed.
UNDERLYING CRIMINAL TRIAL AND DIRECT APPEAL
The Appellate Court’s decision on direct appeal summarized the underlying facts as reasonably found by the jury. "At the time of the incident giving rise to the conviction at issue in this appeal, the [petitioner] was a member of the ‘20 Love’ street gang, along with Charlie Ray Logan. At that time, there was strife between the Love organization and the ‘Latin Kings,’ a competing street gang. In the [petitioner’s] words: ‘Back then, it was like a war on the streets. The Latin Kings shot at us and we shot back.’
"In the evening of September 29, 1995, the [petitioner] and Logan were riding bicycles on the streets of Hartford. At approximately 8 p.m., they rode past four young women at the corner of Alden and Dean Streets, where one of the women, Darlene Cardona, resided. At the time, the women had known the [petitioner] for roughly two years through the local school system.
"Shortly thereafter, Cardona’s boyfriend, who was apparently not involved in any way in the crime or in the [petitioner’s] subsequent trial, arrived and the three other women, Arlene Reyes, Madeline Rodriguez and Jessica Rodriguez, left the residence to visit a local grocery store on Franklin Avenue. After visiting the grocery store, the women walked to a friend’s house, at 53-55 Franklin Avenue.
"At trial, Jessica Rodriguez used her married name, Jessica Lebron."
"At roughly 8:30 p.m., the three women were sitting on a blue Cadillac parked in the driveway at the residence, facing the street. Four young men, Javier Mateo, Carlos Santiago, Jose Roldan and Jose Ortiz, were standing around the car. Jessica Rodriguez heard some noise and stood up, observing the street. As the [petitioner] and Logan rode their bicycles past the residence on Franklin Avenue, each brandished a handgun and each fired four rounds at the group gathered by the car. Carlos Santiago felt a bullet graze his neck. He ducked to avoid further gunfire and crawled away. Jose Ortiz was shot through the left thigh. Jose Roldan caught a round in the left knee, where it lodged. He managed to stagger away, onto Maple Avenue, where he entered a building and called an ambulance. Javier Mateo’s flank was turned to the street during the shooting. One bullet passed through his left thigh. Another bullet entered his right flank, passed through his abdomen and chest, and exited from his left armpit. The [petitioner] and Logan fled the scene on their bicycles.
"Four casings from a .380 caliber weapon and four casings from a nine millimeter caliber weapon were recovered. The witnesses testified that each defendant carried only one weapon and that each fired on them."
"Meanwhile, Cardona and her boyfriend heard the shots from her porch on Dean Street, followed by screams. In a matter of seconds, she observed the [petitioner] and Logan fleeing from the scene on Dean Street, ‘cuffing something’ in their sweatshirts. Cardona heard someone scream ‘Javi,’ the name of her friend. To avoid danger, she waited until the [petitioner] and Logan passed by before rushing to the scene on Franklin Avenue.
"Javier Mateo was rushed to Hartford Hospital. The bullet had perforated his heart, leading to cardiac arrest. Although briefly resuscitated, he died after roughly one hour in the operating room.
"After seeing his own picture in the news the following day, the [petitioner] fled to Florida. Approximately three years later, the [petitioner] returned to Hartford and surrendered himself to the police on an outstanding warrant. He gave a statement to the police implicating himself as one of the shooters. The state then brought the charges leading to the convictions at issue in this appeal." State v. Watts, 71 Conn.App. 27, 28-30, 36, 800 A.2d 619 (2002).
The jury convicted the petitioner "of manslaughter in the first degree with a firearm in violation of General Statutes § § 53a-55a(a) and 53a-8(a), and three counts of assault in the first degree in violation of General Statutes § 53a-59(a)(5) and 53a-8(a)." Id., 28. The court, Dewey, J. sentenced the petitioner to a total effective sentence of one-hundred years to serve, which was later reduced to ninety-five years to serve. On appeal, the petitioner claimed "(1) that there was insufficient evidence to support each of his convictions, (2) that the trial court improperly denied his motion for a judgment of acquittal after the state’s case-in-chief, (3) that the jury’s verdict was legally inconsistent, (4) that the trial court improperly admitted evidence of uncharged misconduct by the [petitioner], and (5) that the court improperly admitted certain out-of-court statements made by the [petitioner]." Id. The Appellate Court affirmed the judgment of conviction. Id., 40. The petitioner then brought the present habeas corpus matter.
DISCUSSION
The petitioner’s amended petition for a writ of habeas corpus, dated August 18, 2017, makes two basic claims. The first claim is that trial counsel, Avery Chapman, was ineffective regarding a pre-trial plea offer. " ‘It is well established that the failure to adequately advise a client regarding a plea offer from the state can form the basis for a sixth amendment claim of ineffective assistance of counsel.’ (Citations omitted; internal quotation marks omitted.) Duncan v. Commissioner of Correction, 171 Conn.App. 635, 646-47, 157 A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017). ‘As enunciated in Strickland v. Washington, [ 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] ... [i]t is axiomatic that the right to counsel is the right to the effective assistance of counsel ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.’ (Internal quotation marks omitted.) Thomas v. Commissioner of Correction, 141 Conn.App. 465, 471, 62 A.3d 534, cert. denied, 308 Conn. 939, 66 A.3d 881 (2013).
" ‘To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time: Missouri v. Frye, 566 U.S. 134, 147, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); see also Padilla v. Kentucky, 559 U.S. 356, 364, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ...’ (Internal quotation marks omitted.) Kellman v. Commissioner of Correction, 178 Conn.App. 63, 71, 174 A.3d 206 (2017). The court, however, ‘can find against a petitioner ... on either the performance prong or the prejudice prong, whichever is easier.’ Thomas v. Commissioner of Correction, supra, 141 Conn.App. at 471, 62 A.3d 534." Silver v. Commissioner of Correction, 180 Conn.App. 592, 596-98, 184 A.3d 329, cert. denied, 328 Conn. 940, 184 A.3d 759 (2018).
The petitioner has completely failed to meet his burden of proof on this claim. The underlying criminal facts are summarized in the Appellate Court’s decision as restated above. The petitioner and a companion on bicycles rode by a group containing rivals. Each fired four shots. Four persons were wounded. One died. At least two eyewitnesses identified the petitioner as one of the shooters. At least a third eyewitness identified the petitioner leaving the scene. The petitioner fled the state and then returned with false identification. The petitioner then shot another person in East Hartford, turned himself in on the present case and confessed. The habeas trial had four witnesses over two days.
At the habeas trial the petitioner testified that attorney Chapman had conveyed the pretrial court’s offer of thirty-eight years and said that the decision was up to the petitioner, who did not understand his exposure. Habeas Trial Transcript (February 27, 2018), pp. 10-16. He testified that he accepted a partial plea bargain for nine years on his East Hartford assault in the first degree with a firearm charge.
Attorney Chapman testified via video conference. After eighteen years he had no present recollection of the petitioner’s case. He was able to verify his signature on the respondent’s exhibit B. This is a letter sent to the petitioner before trial outlining the attorney’s thoughts and concerns. The petitioner acknowledged receiving the letter.
While attorney Chapman did not recall the petitioner’s case he did recall his standard operating procedures concerning plea offers in serious cases. Attorney Chapman testified to his usual practices in dealing with a defendant. He would describe the "good and bads" concerning the cases. With a young undereducated client like the petitioner he would take more time and repeat his description of "all the moving pieces of a trial." Unless asked he not recommend the offer be accepted. Attorney Chapman would also discuss "all the moving pieces that make up the plea offer and make up the exposure" as well as the risks and rewards of going to trial. Habeas Trial Transcript (February 28, 2018), pp. 7-10. On cross examination attorney Chapman testified that he would go through the charges and the statutory exposure with a client as well as the mitigating and aggravating factors. He would also go through the police reports and whether the defendant had any defenses. Id., pp. 15-16. On redirect examination attorney Chapman testified that he would have likely discussed the cumulative potential exposure and the possibility of consecutive sentences. If the client asked what he should do about the offer, the attorney would have offered an opinion after giving the client all the information. Id., p. 23.
Attorney Michael Sheehan was called by the petitioner as an expert on the duties of defense counsel. He agreed with all of attorney Chapman’s standard practices except one. Id., p. 29-36. Attorney Sheehan testified in the circumstances of the petitioner’s criminal trial, defense counsel should recommend that he take the offer. Id., p. 40. Attorney Chapman testified he would give his opinion as to whether or not to take the plea offer only if his client asked for it. Id., p. 23.
The petitioner’s testimony at the habeas trial is contradicted by respondent’s exhibit B and petitioner’s exhibit 9. Exhibit B is a letter sent to the petitioner by attorney Chapman three days after the petitioner rejected the court’s offer of thirty-eight years on the third accept/reject date. Petitioner’s Exhibit 7. Three days later attorney Chapman sent a letter to the petitioner. Respondent’s Exhibit B. The letter contains a dire assessment of the likely outcome of the petitioner’s trials. While not specifically using the term "recommend" and specifically rejecting an attempt to force a plea, the only rational interpretation of the letter is that the petitioner should plead guilty with a bargain.
At the habeas trial only one witness was asked about the petitioner’s plea in the East Hartford case. While denying that attorney Chapman ever explained the possible consequences after trial, the petitioner did enter a plea on the assault first degree with a firearm charge in the East Hartford case, docket number CR98-0163222-S. At his habeas trial the petitioner did not mention having a second attorney named Thomas Paul Chapman. Petitioner’s Exhibit 9. This is probably a scrivener’s error. Neither attorney Avery Chapman nor attorney Sheehan was asked about this apparent error on the transcript or the plea entered before Judge Clifford. At the habeas trial on February 27, 2018, the petitioner testified that he took a nine-year sentence in his East Hartford shooting case: "Cause it was a low sentence." Habeas Trial Transcript (February 27, 2018), p. 16. The context from the transcript indicates that attorney Chapman was present representing the petitioner. The canvass of the plea shows that the maximum and minimum sentences for assault in the first degree with a firearm were thoroughly covered. Since the petitioner was facing three exactly similar charges in the underlying trial here, there is further proof that his testimony concerning being uninformed of the possible consequences of a trial that also included murder, conspiracy to commit murder, and a weapons charge is not credible. Four people were shot and one of them died in the 1995 Hartford case. After being canvassed on assault in the first degree with a firearm, the petitioner knew from that alone that his exposure exceeded sixty years. What he has now is non-buyer’s remorse.
Attorney Chapman in no way mislead the petitioner or acted in a cavalier manner as did counsel in Ebron v. Commissioner of Correction, 307 Conn. 342, 53 A.3d 983 (2012), cert. denied sub nom. Arnone v. Ebron, 569 U.S. 913, 133 S.Ct. 1726, 185 L.Ed.2d (2013). While no testimony concerning his guilty plea was offered by his trial counsel or his expert, the petitioner demonstrated the ability to make an informed decision and enter a guilty plea. While counsel is not required to "recommend" that a defendant accept a sentence, he did everything required of competent counsel over several meetings with the petitioner, on extensive review of the evidence, possible defenses and realistic chances. Particularly telling is the dire assessment of the petitioner’s chances at trial contained in respondent’s exhibit B, which was accompanied with the police reports, witness statement and the petitioner’s confessions, and included an offer to again get a plea offer. The petitioner had been thoroughly made aware of the charges on numerous occasions including when he waived his right to a probable cause hearing back in October 1998. Petitioner’s Exhibit 3. His current claim that counsel did not inform his of his lengthy exposure after trial is not credible. This court finds that attorney Chapman "meaningfully explained" the plea offer and that his performance was not deficient. Vazquez v. Commissioner of Correction, 123 Conn.App. 424, 432-34, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011).
" ‘Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered. Determining whether an accused is guilty or innocent of the charges in a complex legal indictment is seldom a simple and easy task for a layman, even though acutely intelligent ... A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable ...
" ‘On the one hand, defense counsel must give the client the benefit of counsel’s professional advice on this crucial decision of whether to plead guilty ... As part of this advice, counsel must communicate to the defendant the terms of the plea offer ... and should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed ... On the other hand, the ultimate decision whether to plead guilty must be made by the defendant ... And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer ... Counsel’s conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness because [r]epresentation is an art ... and [t]here are countless ways to provide effective assistance in any given case ... Counsel rendering advice in this critical area may take into account, among other factors, the defendant’s chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether defendant has maintained his innocence, and the defendant’s comprehension of the various factors that will inform his plea decision.’ (Citations omitted; emphasis omitted; internal quotation marks omitted.)" Silver v. Commissioner of Correction, supra, 180 Conn.App. 600-01, citing and quoting Vazquez v. Commissioner of Correction, supra, 123 Conn.App. 437-38; see also Sanders v. Commissioner of Correction, 169 Conn.App. 813, 830-31, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).
If this court’s determination that attorney Chapman rendered proper professional advice to the petitioner regarding the plea offer is deemed incorrect, this court finds that the petitioner has failed to prove the required prejudice. As stated in Barlow v. Commissioner of Correction, 150 Conn.App. 781, 803-04, 93 A.3d 165 (2014):
The respondent argues that we cannot make the credibility determinations that are necessary in determining whether the petitioner was prejudiced. He argues: "In applying the three-pronged test for determining whether [counsel’s] failure to make a specific recommendation regarding [the trial court’s] plea offer prejudiced the petitioner for Sixth Amendment purposes, the [respondent] does not dispute that the record is sufficient for this court to consider the prong that concerns whether [the trial court] would have continued to extend the offer after it was initially rejected by the petitioner; Ebron [v. Commissioner of Correction, 307 Conn. 342, 352, 53 A.3d 983 (2012), cert. denied sub nom. Arnone v. Ebron, [ 569 U.S. 913], 133 S.Ct. 1726, 185 L.Ed.2d 802 (2013)]; given [counsel’s] uncontested testimony that the judge held the offer open until the start of trial ... The [respondent] also does not dispute that the record is adequate for this court to find, pursuant to another prong of the test, that the offer[ed] sentence of nine years to serve would have been less severe than the thirty-five-year total effective sentence that the petitioner received as a result of his convictions at trial. However, the record is lacking regarding the final prong of the test, which is whether the petitioner would have accepted the offer had [counsel] recommended that he do so. The petitioner asserts that he would have accepted the offer ... [b]ut only the habeas court, as the trier of fact, is in a position to assess the petitioner’s believability on this matter and make the necessary credibility determination ..." (Citations omitted.)
The petitioner contends that we can presume prejudice on the basis of the record because it is uncontested that he was willing to take a plea deal because he asked [counsel] to try to negotiate a deal that required him to serve a term of six years, and he was not insisting on going to trial. Citing Missouri v. Frye, [ 566 U.S. 134, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012),] he argues that in this case there is no need for a credibility determination because he need not prove that he would have accepted the court’s offer because the standard set forth in Frye requires only that he demonstrate a reasonable probability that he would have accepted such offer. We agree with the respondent that the habeas court is in the best position to determine whether it is reasonably likely that the petitioner would have accepted the offer had he received adequate advice from [counsel].
The court finds that the petitioner did not prove that there was a reasonable probability that he would have accepted the offer of thirty-eight years even if attorney Chapman had "recommended" it. Remarkably no evidence except one answer from the petitioner explains the nine-year sentence he accepted in the East Hartford shooting. Habeas Trial Transcript (February 27, 2018), p. 16. No evidence was offered through the petitioner about the circumstances surrounding this plea (see Petitioner’s Exhibit 9) some nine and one-half months after the offer on both cases had been withdrawn. Petitioner’s Exhibit 8, p. 2. Judge Clifford indicated to the petitioner when he entered his plea on March 7, 2000, that the East Hartford assault case "... has nothing to do with the other matter [i.e., the murder charge] and that’s going to begin jury selection and whatever happens with that happens." Petitioner’s Exhibit 9, p. 8. No mention is made by attorney Chapman, the petitioner or the judge of any remnant of the original plea offer existing.
While attorney Chapman’s lack of memory about the cases limited the petitioner’s counsel to essentially asking about his standard operating procedures, Assistant State’s Attorney John Fahey suffered from no such lack of recall. At the habeas trial on February 28, 2018, he testified that he and attorney Chapman went back to see Judge Clifford on March 7, 2000, to get a trial judge assigned. Attorney Chapman told them that the petitioner wanted to resolve only his East Hartford case. This was done with a nine-year sentence, imposed immediately prior to the murder case proceeding to trial, even though Judge Clifford had previously withdrawn the court-indicated sentence of thirty-eight years for a global resolution of both cases. The petitioner’s counsel failed to get testimony from Assistant State’s Attorney Fahey about Judge Clifford’s practices, operating procedures or history on plea offers rejected months earlier and failed to establish that the original offer was available after it was rejected on March 24, 1999. Petitioner’s Exhibit 8. See, e.g., Silver v. Commissioner of Correction, supra, 180 Conn.App. 597 (petitioner "must demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law"); Kellman v. Commissioner of Correction, supra, 178 Conn.App. 71.
In count two the petitioner claims a right to remain free from cruel and unusual punishment. The claim in count two essentially is a purely legal argument to this court. This claim is premised on the fact that the petitioner was seventeen years old when he committed the offenses for which he eventually received a total effective sentence of ninety-five years to serve. That sentence, both on its own and considered with the nine-year sentence running consecutively, qualifies as a life sentence in Connecticut. See, e.g., Casiano v. Commissioner of Correction, 317 Conn. 52, 75-76, 115 A.3d 1031 (2015), cert. denied sub nom. Semple v. Casiano, 136 S.Ct. 1364, 194 L.Ed.2d 376 (2016) ("our legislature defines life imprisonment as including a ‘definite sentence of sixty years ...’ General Statutes § 53a-35b. The law in Connecticut, therefore, presumes that, at a minimum, a sixty-year term of imprisonment is the functional equivalent of a life sentence"). The petitioner alleges that his sentence was not individualized or proportionate, and does not account for his age and youth related mitigation, because the sentencing court did not consider his age and the mitigating characteristics of youth. The petitioner acknowledges that the Supreme Courts have resolved federal constitutional claims in this area, but the state Supreme Court has yet to address similar claims premised on state constitutional grounds.
The respondent’s return asserts that the petitioner has procedurally defaulted on the claim in count two because he has not filed a motion to correct an illegal sentence and appealed therefrom if it were denied. The return also avers that the petitioner is not entitled to review of this claim because it would require, in contravention to established case law, the habeas court to apply retroactively a new state constitutional rule of criminal procedure. The petitioner’s reply to the return argues that he has not procedurally defaulted because the sentencing court lacks subject matter jurisdiction. The reply also argues that a state constitutional claim, by analogy, should be treated similar to the already recognized retroactivity of the federal rule and applied retroactively on collateral review.
"In essence, the procedural default doctrine holds that a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on direct appeal in the original proceeding and that if the state, in response, alleges that a claimant should be procedurally defaulted from now making the claim, the claimant bears the burden of demonstrating good cause for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure." Hinds v. Commissioner of Correction, 151 Conn.App. 837, 852, 97 A.3d 986 (2014), affirmed on other grounds, 321 Conn. 56, 136 A.3d 596 (2016).
‘The appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal ... because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ... [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance ... Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure.’ (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001); see also Correia v. Rowland, 263 Conn. 453, 462, 820 A.2d 1009 (2003)." Brunetti v. Commissioner of Correction, 134 Conn.App. 160, 168, 37 A.3d 811, cert. denied, 305 Conn. 903, 44 A.3d 180 (2012).
" ‘[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule ... [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel ... or ... some interference by officials ... would constitute cause under this standard ... A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing.’ (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, [ 285 Conn. 556, 568, 941 A.2d 248 (2008) ]." Anderson v. Commissioner of Correction, 114 Conn.App. 778, 788, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).
It is clear from the Supreme Court’s decision in State v. Delgado, 323 Conn. 801, 151 A.3d 345 (2016), that the criminal trial court no longer has jurisdiction over a motion to correct an illegal sentence as a result of Public Act 15-84. The Supreme Court in Delgado "emphasize[d] that the defendant is not entitled to resentencing under P.A. 15-84, § 2, codified as amended at General Statutes (Sup. 2016) § 54-91g[.]" State v. Delgado, supra, 323 Conn. 814. "Following the enactment of P.A. 15-84, however, the [petitioner] is now eligible for parole and can no longer claim that he is serving a sentence of life imprisonment, or its equivalent, without parole ... As a result, the [petitioner’s] sentence no longer ... require[s] consideration of youth related mitigating factors[, which] only [need to be considered] if the sentencing court imposes a sentence of life without parole." Id., 810-11.
Consequently, this court concludes that the petitioner has not procedurally defaulted. Post-Delgado a motion to correct an illegal sentence premised on the petitioner’s grounds would be a meaningless exercise in futility, at least given the case law as it presently stands. The petitioner’s second count is premised on state constitutional grounds, which are under consideration presently in State v. Williams-Bey, 167 Conn.App. 744, 763-64, 144 A.3d 467 (2016), modified in part on other grounds after reconsideration, 173 Conn.App. 64, 164 A.3d 31, cert. granted on other grounds, 326 Conn. 920, 921, 169 A.3d 793 (2017). The Supreme Court granted certification limited to the following two questions:
1. Under the Connecticut Constitution, article first, § § 8 and 9, are all juveniles entitled to a sentencing proceeding at which the court expressly considers the youth related factors required by the United States Constitution for cases involving juveniles who have been sentenced to life imprisonment without possibility of release? See Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ]?
2. If the answer to the first question is in the affirmative and a sentencing court does not comply with the sentencing requirements under the Connecticut constitution, does parole eligibility under General Statutes § 54-125a(f) adequately remedy any state constitutional violation?
The appeal pending in the Supreme Court, assigned docket number SC 19954, has been fully briefed and is ready to be assigned for oral arguments, but was not assigned to the first term in September of 2018.
Should the Supreme Court answer the first certified question in the negative, then the petitioner will not be entitled to a new sentencing proceeding. If the first certified question is answered in the affirmative, then the Supreme Court will address the second certified question and determine if parole eligibility and consideration under our state statutes adequately remedies any state constitutional violation. If the Supreme Court ultimately concludes that our statutory scheme adequately remedies any constitutional violation, then the petitioner’s remedy is realized through General Statutes § 54-125a(f). However, if the Supreme Court concludes that our statutory scheme does not adequately remedy any constitutional violation, then that court’s decision would provide guidance as to an adequate remedy.
Given that the Supreme Court’s decision in Williams-Bey will be dispositive of the petitioner’s claim in count two, including issues of retroactivity of relevant statutes and case law, this court will dismiss the claim in count two without prejudice. The petitioner may, if the Supreme Court’s decision in Williams-Bey provides support for his claim and any relief he is seeking, whether in the sentencing court or the habeas court, pursue any such relief he may be entitled to as a result of Williams-Bey.
CONCLUSION
Based upon the foregoing, the court denies count one of the amended petition for a writ of habeas corpus. Count two is dismissed without prejudice. Judgment shall enter for the respondent.
It is so ordered.