Opinion
No. CV00-0003239
October 8, 2003
Memorandum of Decision On the Respondent's Motion to Dismiss
On October 17, 2000, the petitioner, Daniel Webb, filed his pro se petition for a writ of habeas corpus seeking, inter alia, to challenge the sentence of death that was imposed upon him on September 12, 1991. The petition was amended first on March 19, 2003, again on April 1, 2003 and for a third time on May 16, 2003.
The petitioner was convicted after a trial to a jury in the Hartford Superior Court of capital felony, murder, felony murder, kidnapping in the 1st degree, attempted sexual assault in the 1st degree and criminal possession of a handgun. In addition to the sentence of death, the petitioner was sentenced to a total effective sentence of fifty years for the non-capital offenses.
On June 13, 2003, the Respondent filed a Motion to Dismiss portions of the instant Petition for Habeas Corpus on the grounds that the petitioner failed to state grounds upon which relief could be granted, the petitioner failed to satisfy the cause and prejudice test, and the claims are barred by the doctrine of res judicata or collateral estoppel. The Motion came on for argument before this Court, Fuger, J. on September 29th, 2003.
The respondent has moved to dismiss 27 separate paragraphs and subparagraphs of the complaint, specifically: the entirety of Count II; subparagraphs 9a, b, c, d, m, and n of Count III; and, subparagraphs 12a, b, c, d, f, g, h, and n of Count IV.
The amended petition is essentially a three-count complaint alleging that the petitioner's detention is illegal and that his convictions are illegal because he was deprived of his constitutional right to counsel under the 6th Amendment to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. Without in any way addressing the merits of the Petitioner's claim, it is clear that his Amended Petition does, at least on its face, state some grounds upon which relief could be granted. To say that the Petitioner has properly raised the issues does not, in any way, say that the Petitioner is, therefore, entitled to relief. However, when considering the question as to whether the Petitioner should be denied the opportunity to even attempt to present his case to the Court through a dismissal of all or part of the proceedings, it is enough to permit the case to move forward so long as adequate grounds upon which such relief could be granted have been alleged.
The amended petition is divided into four sections, each headed by a Roman Numeral. Section I is captioned the "History of Petitioner's Conviction and Sentencing." As such, it does not state any claim from which relief may be granted and is essentially prefatory information. Section II (referred to as Count II by the Respondent) claims that the detention is illegal. Section III (referred to as Count III by the Respondent) claims that the petitioner was deprived of the effective assistance of his trial defense counsel. Section IV (referred to as Count IV by the Respondent) claims that the petitioner was deprived of the effective assistance of his appellate counsel.
When adjudicating a Motion to Dismiss, "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." (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11 (1999). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Barde v. Board of Trustees, 207 Conn. 59 at 62 (1988).
The writ of habeas corpus is an ancient and time-honored component of our Anglo-American jurisprudence. One of its earliest recorded appearances was in England during the late 13th century, during the reign of King Edward I. "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: `the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is `a writ antecedent to statute, and throwing its root deep into the genius of our common law . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I." Fay v. Noia, 372 U.S. 391 at 399 (1963). When the United States achieved independence from England, the writ was embodied into our new nation's law as well. "Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat. 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a `great constitutional privilege.' Ex parte Bollman and Swartwout, 4 Cranch 75, 95." Fay v. Noia, infra at 400 (1963).
Our Supreme Court has recently reiterated its recognition of the importance of the writ of habeas corpus:
We [next take] note of the basic purpose underlying what is one of the most extraordinary and unique legal remedies in the procedural armory of our law Although it is true that the United States Supreme Court has not always followed an unwavering line in its conclusions as to the availability of [t]he [writ of habeas corpus] . . . from the time the writ originated in seventeenth century England, its central purpose has been to test the legality of detention. English legislation and common law have been recognized by the United States Supreme Court as authoritative guides in applying the writ in the federal courts. McNally v. Hill, 293 U.S. 131, 136-37, 55 S.Ct. 24, 79 L.Ed. 238 (1934), overruled on other grounds, Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968).
In applying federal habeas statutes, the United States Supreme Court has said that [t]he purpose of the proceeding defined by the statute was to inquire into the legality of the detention . . . There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention, and no suggestion of such a use has been found in the commentaries on the English common law. McNally v. Hill; [ supra, 293 U.S. 136-37]; see also Engle v. Isaac, 456 U.S. 107, 136, [ 102 S.Ct. 1558, 71 L.Ed.2d 783] (1982) (Stevens, J., concurring in part and dissenting in part) (relief available to a prisoner only if he is held in custody in violation of the constitution or laws or treaties of the United States); Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ([i]t is clear, not only from the language of [the federal habeas statutes], but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody); Fay v. Noia, [ 372 U.S. 391, 402, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)] (writ's root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment; if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release); [H. Hart H. Wechsler, The Federal Courts and the Federal System (3d Ed. 1988) p. 1468] (Great Writ always serves the function of precipitating a judicial inquiry into a claim of illegality in the petitioner's detention for the purpose of commanding his release, or other appropriate disposition.); P. Bator, `Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,' 76 Harv.L.Rev. 441, 444-45 (1963) ([i]ts function, in the great phrase, is to test "the legality of the detention of one in the custody of another") . . .
The history of our own jurisprudence is wholly in accord with these principles. Habeas corpus provides a special and extraordinary legal remedy for illegal detention . . . The deprivation of legal rights is essential before the writ may be issued . . . Questions which do not concern the lawfulness of the detention cannot properly be reviewed on habeas corpus . . . When a habeas petition is properly before a court, the remedies it may award depend on the constitutional rights being vindicated Further, any remedy must be commensurate with the scope of the constitutional violations that have been established.
Johnson v. Commissioner of Correction, 258 Conn. 804 at 813 (2002).
Notwithstanding the venerable history of the writ and the gravity of the punishment in this case, there are definite limitations upon the right of a person to obtain relief pursuant to a petition for a writ of habeas corpus. At common law, one could file multiple and repeated petitions for a writ of habeas corpus, the doctrine of res judicata being inapplicable. "[A] renewed application could be made to every other judge or court in the realm, and each court or judge was bound to consider the question of the prisoner's right to a discharge independently, and not to be influenced by the previous decisions refusing discharge." W. Church, Writ of Habeas Corpus § 386, p. 570 (2nd edition 1893). This was permissible because, at common law, there was no right to appellate review of a denial of a petition for a writ of habeas corpus; consequently, successive writs served as a substitute for the right of a petitioner to appeal.
The petitioner in the instant case has been condemned to death by lethal injection. Of all of the punishments authorized by our state constitution and enacted by the legislature, this is the only punishment that is neither compensable nor restorable should it be imposed erroneously.
The development of appellate review of the decisions on habeas corpus petitions caused some courts during the early part of the 20th century to question the viability of the common-law rule. In fact some states, notably Georgia [see Perry v. McLendon, 62 Ga. 598 (1879)], South Dakota [see McMahon v. Mead, 30 S.D. 515 (1912)], and Wisconsin [see ex parte Heller, 146 Wis. 517 (1911)], completely rejected the common-law rule and applied the doctrine of res judicata to denials of habeas petitions. The federal courts reaffirmed that while the doctrine of res judicata did not apply to habeas petitions, with the advent of the right to appeal adverse decisions on habeas petitions, the common-law rule of endless petitions was modified. Salinger v. Loisel, 265 U.S. 224 (1924). Thus began a long series of cases and legislative changes culminating in the decision of the Supreme Court in McCleskey v. Zant, 499 U.S. 467 (1991).
Now, at least in the federal arena, while the actual doctrine of res judicata does not really apply, successive and abusive petitions for writs of habeas corpus may nonetheless be dismissed. The determination as to whether the petitioner is abusing the right to file a petition for a writ of habeas corpus lies within the trial court. "[T]he State must plead an abuse of the writ with particularity, and [thereafter] the burden then shifts to petitioner to show that presentation of the new claim does not constitute abuse. [ Price v. Johnston, 334 U.S. 266 at 292 (1948)]." See McCleskey v. Zant, infra. at 482.
Here in Connecticut as in the federal courts, "decisions concerning abuse of the writ are addressed to the sound discretion of the trial court." Iasiello v. Manson, 12 Conn. App. 268 at 271 (1987). We require that the "applicant must, in other words, show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground." Williams v. United States, 731 F.2d 138 at 141 (2nd Circ. 1984). Finally, the "petitioner bears a heavy burden on appeal to show that the trial court abused its discretion" in finding an abuse of the writ. State v. Morra, 195 Conn. 421 at 437 (1985).
It is clear in the instant case that the petitioner has not filed a previous petition for a writ of habeas corpus. It cannot, therefore, be said that he is abusing the right to file a petition for a writ of habeas corpus. Nevertheless, there is another principle of law, specifically, the concept of collateral estoppel, that does come into play in regard to the petitioner's instant action in this court. He has already had the benefit of a direct appeal of his convictions, see State v. Webb, 238 Conn. 389 (1996). As will be further articulated, to the extent that the petitioner seeks to have this habeas court review legal issues that have already been determined in the direct appeal, then the doctrine of collateral estoppel must be applied. In that circumstance, pretrial dismissal of the affected paragraph would be the appropriate remedy.
This Court has absolutely no right, privilege, or authority to declare any final decision of an appellate court, whether it be state or federal, to be in error. "It is axiomatic that a trial court is bound by Supreme Court precedent. See Martin v. Plainville, 40 Conn. App. 179, 669 A.2d 1242 (1996) (Appellate Court, as intermediate court, is prevented from reexamining or reevaluating Supreme Court precedent)[.] . . . This principle is inherent in a hierarchical judicial system. [R]evision of Supreme Court precedent is not the trial court's function." (internal citations omitted) Jolly Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195 (1996). "Lower courts are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them." State v. Johnson, 71 Conn. App. 272 (2001), quoting State v. Thomas, 62 Conn. App. 356 at 364, cert. den. 256 Conn. 912 (2001). Therefore, this court is precluded, to the extent that an issue raised in this habeas petition has already been addressed by the Supreme Court in the direct appeal, from reaching a contrary conclusion. Moreover, this court lacks authority to take action to the extent that the petitioner is asking this court to find other binding precedent to have been incorrectly decided by a higher court. Keeping these points in mind, the court will now turn to the specific points raised by the respondent in his motion to dismiss.
Arguably, since the interpretation of state law is a matter that is determined by the state courts, to the extent that a federal court decided a case solely on the basis of an interpretation of state law that is at odds with our state courts' interpretation, a trial court could find that federal decision to be in error under state law. That, however, is not the case presented in the instant petition.
As previously noted, the respondent seeks to dismiss the entirety of what he calls Count II. Nevertheless, it must be noted that per this court's order of August 19, 2003 (134.00) paragraph II(8)(a) has been bifurcated from the habeas petition pending before this court and transferred to the authority of the Special Master, Judge Trial Referee Robert J. Callahan, pursuant to an Order of the Supreme Court dated June 20, 2003. See also, State v. Reynolds, 264 Conn. 1 at 233-34 (2003). Consequently, this decision on the respondent's motion to dismiss does not apply to that particular section of the petition.
In part, the respondent is seeking to have this court dismiss certain portions of the petition because the petitioner did not plead sufficient facts establishing "cause and prejudice" as to why some of the issues were not raised on the direct appeal. The petitioner responds that the "cause and prejudice" issue, more appropriately, an allegation of procedural default by the petitioner, is an affirmative defense that is properly raised by the respondent in his return, not by use of the motion to dismiss. At oral argument, counsel for the respondent all but conceded the validity of the petitioner's position in this regard. This affirmative defense is properly raised in the return. See P.B. § 23-30(b). While it is true, as noted by the respondent, that the Practice Book does not expressly prohibit a claim of procedural default being raised in a motion to dismiss, applicable case law makes it clear that it is an affirmative defense that must be raised in the Return. "Practice Book § 23-30(b) requires the state to raise the affirmative defense of procedural default in its return." Milner v. Commissioner of Correction, 63 Conn. App. 726 at 733 (2001). The procedural default claim and the petitioner's failure to plead sufficient facts to establish "cause and prejudice" to excuse that procedural default are the sole bases upon which the respondent seeks to dismiss paragraphs 8(f) and 8(n). Consequently, the respondent's motion to dismiss as to paragraphs 8(f) and 8(n) is denied.
The court notes that as of the date of this memorandum of decision the respondent has not yet filed a Return. Under the applicable provisions of the Practice Book, a petitioner is free to amend a petition at will and without any prior approval from the court until such time as the respondent files a Return to the petition. See P.B. § 23-32.
Paragraph 8(b) is a general challenge to Connecticut's capital punishment scheme as being unconstitutional in that it constitutes cruel and unusual punishment and is violative of due process. This paragraph, in essence, asks the habeas court to set aside binding precedent of the Supreme Court and order relief for the petitioner. As previously noted, a Superior Court Judge has no authority to overrule a Supreme Court case. To the contrary, a Superior Court Judge is bound to follow the case. Insofar as the habeas proceeding before this court, it is an unavailing argument to complain that the cases decided by our Supreme Court were wrongly decided. It simply is not something about which this court has any authority to take action. Moreover, this very issue has in fact been addressed and decided adversely to him in the petitioner's direct appeal. "The imposition of the death penalty does not violate the prohibition against cruel and unusual punishment derived from the due process clauses of article first, sections 8 and 9 of the state constitution." State v. Webb, 238 Conn. 389 at 406 (1996). As a result, the petitioner is prohibited from attempting to raise the issue again in this habeas petition. Consequently, the respondent's motion to dismiss as to paragraph 8(b) is granted.
In Paragraph 8(c), the petitioner has argued that his conviction is constitutionally defective because the "racially motivated supplementation of the jury panel" violates Equal Protection. In his motion to dismiss, the respondent has argued that the issue has already been determined adversely to the petitioner and points to the section of the petitioner's direct appeal in which the Supreme Court concludes "that the defendant's constitutional right to a venire panel drawn from a fair cross section of the community was not violated." State v. Webb, supra at 450. There is a minute, but important, difference between what was argued on appeal and what is alleged in this petition. On appeal, the Supreme Court considered whether the venire panel was selected in a random, non-racial manner and, based upon the findings of fact by the trial court concluded that the selection was appropriately so. Here, the petitioner alleges that the use of the supplemental venire panel, even if selected in a random, non-racial manner, was unconstitutional because it was racially motivated. Consequently, at this stage of the proceedings, it is premature to dismiss this paragraph; the petitioner's allegation that his jury selection was tainted by unconstitutional racial discrimination does differ, albeit subtly, from the issue decided by the Supreme Court in the direct appeal. Consequently, the respondent's motion to dismiss as to paragraph 8(c) is denied.
The petitioner has raised a challenge to the unanimity of the decision on the penalty phase. In paragraphs 8(d) and 8(e), the petitioner alleges that there were deficiencies in the jury form and that there was not a unanimous verdict. The respondent's motion to dismiss alleges that these paragraphs are insufficient as a matter of law because the pleading does not expressly allege that there was not a unanimous verdict. Here in Connecticut, P.B. § 10-1 requires that "each pleading shall contain a plain and concise statement of the material facts on which the pleader relies." It is clear to this court what is being alleged and it is clear that, if true, could constitute a ground upon which relief could be granted. Consequently, the pleading is legally sufficient and shall not be dismissed at the pretrial phase. The respondent's motion to dismiss as to paragraphs 8(d) and 8(e) is denied. The petitioner has argued in paragraphs 8(g) and 8(h) that he is entitled to relief because the trial court failed to grant the petitioner's motion for a judgment of acquittal as to the kidnapping charge and the attempted sexual assault charge. This issue has been considered and resolved by the Supreme Court. First, this court notes that the jury has, in fact, found, beyond all reasonable doubt, the petitioner guilty of both of these offenses. Second, while the exact question as to whether Judge Corrigan should have granted a motion to acquit on these charges was not specifically addressed on the direct appeal, the Supreme Court has noted, in connection with its discussion of the sentencing that the victim "experienced a prolonged abduction during which she was held at gunpoint while the defendant drove, for approximately twelve minutes, to a park nearly four miles from the point of abduction . . . Once they arrived at the park, the defendant either forcibly or forced the victim to remove her shoes, pantyhose and panties and he attempted to assault her sexually." (Emphasis added) State v. Webb, supra at 485-87. As a result, it is clear, and binding upon this court, that there was a kidnapping and an attempted sexual assault. Consequently, respondent's motion to dismiss will be granted as to paragraphs 8(g) and 8(h).
It is important to note in this regard, however, that there is no claim of actual innocence pending before this habeas court. Had there been a claim of actual innocence, the petitioner would have been free to show that, as a result of newly discovered evidence, he did not commit the crimes alleged and that considering all of the evidence at the original trial and the habeas trial that no reasonable jury would have concluded otherwise. Miller v. Commissioner of Correction, 242 Conn. 745 at 791-92 (1997).
As previously noted, this court has no authority to issue a ruling contrary to that of a higher court. In paragraph 8(i), the petitioner seeks to challenge the legal sufficiency of Judge Corrigan's instructions on the concept of reasonable doubt. It must be noted that in the direct appeal, the Supreme Court stated that the "jury was fully and correctly instructed as to the principles of the defendant's presumption of innocence and the state's burden of proof beyond a reasonable doubt at final instructions." State v. Webb, supra at 458. Since the only way in which this habeas court could grant relief on this paragraph would be to reach the impermissible conclusion that our Supreme Court was in error, this paragraph does not state a claim upon which relief may be granted. Consequently, respondent's motion to dismiss will be granted as to paragraph 8(i).
At one point in his trial, the petitioner waived his right to counsel. The petitioner now alleges that he is entitled to habeas relief because the trial court failed to properly determine whether this waiver was knowing, voluntary, and intelligent. The respondent moves to dismiss on the ground that the issue is res judicata. This court agrees. To be completely accurate, the decision of the Supreme Court on direct appeal went only to the question of the canvass of the petitioner when he informed the trial court that he wanted to represent himself. The Supreme Court noted that there was no constitutional infirmity "as long as the court's canvass, whatever its form, is sufficient to establish that the defendant's waiver was voluntary and knowing." Webb, supra at 429. Later in the decision, the Supreme Court notes that the trial court's inquiry "was adequate to assure the court that the defendant's waiver of his right to counsel was voluntary and knowing." Webb, supra at 430. Since the Supreme Court has already held that his waiver of counsel was knowing, intelligent, and voluntary, this factual issue has already been adversely determined to the petitioner in prior proceedings. Consequently, the respondent's motion to dismiss is granted as to both paragraphs 8(k) and 8(l).
As an aside, the court notes that during the brief period in which the petitioner represented himself without benefit of counsel, the only business conducted by the trial court was some questioning of a potential juror, Laura C. by Judge Corrigan. After a brief recess and further canvass, the petitioner reasserted his right to counsel. Moreover, this particular venire person was not seated on the jury.
The petitioner has alleged that the trial court's instructions on the penalty phase were constitutionally deficient, because the jury was not instructed that it could find that mercy was an independent mitigating factor. The respondent correctly points out that this issue has already been decided by the Connecticut Supreme Court. In State v. Reynolds, 264 Conn. 1 at 147 (2003), the Court held that a "defendant cannot prevail on his claim that he has a constitutional right to have the jury determine considerations of mercy, unrelated to any evidence, to warrant a sentence of life imprisonment without the possibility of release as opposed to a death sentence." Given that this habeas court must follow Supreme Court precedent, this paragraph does not state a claim upon which relief can be granted. Consequently, the respondent's motion to dismiss as to paragraph 8(o) must be granted.
The petitioner has alleged that both his trial defense counsel and appellate counsel were ineffective in several different ways. The respondent has moved to dismiss certain paragraphs of those claims. In so doing, the respondent has made numerous arguments as to why the petitioner is not entitled to relief on those challenged paragraphs. In determining a motion to dismiss it is vital to keep in mind that "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." (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11 (1999). While the respondent's arguments may ultimately be effective after all of the evidence has been presented to the court, it is premature to attempt to foreclose the petitioner from even trying to prove his case. Consequently, the respondent's motion to dismiss as to paragraphs 9(a), 9(b), 9(c), 9(d), 9(g), 9(m), 9(n), 12(a), 12(b), 12(c), 12(d), 12(f), 12(g), 12(h), and 12(n) is denied.
This court recognizes that it may appear to be facially inconsistent to grant the motion to dismiss as to paragraph 8(o), yet deny the motion to dismiss as to paragraph 12(n). It is important to note that there is a critical distinction between these two paragraphs.
Paragraph 8(o) essentially asks this habeas court to overrule a decision of the Connecticut Supreme Court and clearly, as previously noted this court has no authority to do so. On the other hand, Paragraph 12(n) asks this court to find that the appellate counsel was ineffective in his representation of the petitioner. This, of course, does state a claim upon which relief could be granted. Given the Supreme Court's holding in State v. Reynolds, 264 Conn. 1 (2003), it may well be nigh unto impossible for the petitioner to prove both prongs of the Strickland test, nevertheless, it is improper to deny him the opportunity to attempt to do so through granting a motion to dismiss.
Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984).
As specifically noted, the Respondent's Motion to Dismiss is, therefore, granted as to Paragraphs 8(b), 8(g), 8(h), 8(i), 8(k), 8(l), and 8(o); and denied as to paragraphs 8(c) 8(d), 8(e), 8(f), 8(n), 9(a), 9(b), 9(c), 9(d), 9(g), 9(m), 9(n), 12(a), 12(b), 12(c), 12(d), 12(f), 12(g), 12(h), and 12(n).
S.T. Fuger, Jr., Judge