Fine v. Comm'r of Corr., 34683.

• Decision Date: 17 December 2013
• Docket Number: No. 34683.,34683.
• Citation: 147 Conn.App. 136,81 A.3d 1209
• Court: Connecticut Court of Appeals
• Parties: Paul FINE v. COMMISSIONER OF CORRECTION.

147 Conn.App. 136

81 A.3d 1209

Paul FINE

v.COMMISSIONER OF CORRECTION.

No. 34683.

Appellate Court of Connecticut.

Argued Sept. 26, 2013.

Decided Dec. 17, 2013.

Ilana Ofgang, assigned counsel, for the appellant (petitioner).

Lawrence J. Tytla, supervisory assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Marcia A. Pillsbury, deputy assistant state's attorney, for the appellee (respondent).

SHELDON, KELLER and WEST, Js.

KELLER, J.

Following a grant of certification to appeal pursuant to General Statutes § 52–470(g), the petitioner, Paul Fine, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. The petitioner claims that the court, in dismissing his petition, improperly concluded that he intentionally and knowingly withdrew a prior habeas petition with prejudice, thereby waiving his right to bring the present petition. We agree with the petitioner and reverse the judgment of the habeas court.

The record reveals the following relevant procedural history. On December 23, 2011, the petitioner, through counsel, filed an amended petition for a writ of habeas corpus. In part, he alleged therein that, on June 9, 1992, pursuant to a plea agreement reached with the state, he was sentenced to a fifty year term of incarceration after pleading guilty to the crimes of murder and assault in the first degree. He alleged that, in a variety of ways, his trial counsel, Attorney Gail Heller and one or more successor attorneys, rendered ineffective assistance and that his guilty pleas were not knowing, intelligent or voluntary. Also, he alleged that, but for the inadequate representation of his trial counsel, he would not have entered the guilty pleas.

In his return, the respondent, the Commissioner of Correction, denied some of the petitioner's allegations related to ineffective assistance of counsel and, as to others, left the petitioner to his proof. Additionally, the respondent alleged in relevant part that in a prior habeas petition filed in the judicial district of Danbury in 1997, the petitioner, represented by Attorney Vicki Hutchinson, had raised a claim of ineffective assistance of trial counsel under docket number CV–96–0325409–S. The respondent alleged: “That [the prior] habeas matter was scheduled for trial on May 4, 1998, before the Honorable Judge [Dale W.] Radcliffe. On that date, the petition was withdrawn with prejudice.” (Emphasis in original.) The respondent raised a special defense of “waiver,” and asserted that the petitioner, by withdrawing his prior habeas petition with prejudice in 1998, was precluded from raising a claim of ineffective assistance of trial counsel in the present petition. In reply to the special defense raised in the return, the petitioner left the respondent to his proof.

Thereafter, pursuant to Practice Book § 23–29(5), the respondent filed a motion to dismiss the petition on the ground that the petitioner withdrew the prior petition with prejudice on May 4, 1998. In his memorandum of law in support of the motion, the respondent asserted that the petitioner, by withdrawing the prior petition with prejudice, waived his right to advance the claim raised in the present petition. Also, the respondent argued that the petitioner's conduct constituted “abuse of the writ.” Finally, the respondent asserted an argument grounded in the concept of “deliberate bypass.” In this regard, the respondent argued that the petitioner had a full and fair opportunity to litigate the claim raised in the present petition, but that he forfeited his right to advance such claim because he voluntarily chose to withdraw his prior petition with prejudice at a time when the respondent was prepared to defend against the claim. The petitioner objected to the motion.

On April 25, 2012, the court held an evidentiary hearing on the motion to dismiss. By way of exhibits, the court had before it transcripts from court proceedings in 1992 related to the petitioner's criminal charges, a copy of the petitioner's prior revised amended petition for a writ of habeas corpus filed on July 16, 1997, and a copy of a withdrawal, dated May 4, 1998, filed in connection with that earlier petition. The court heard testimony from John Gravalec–Pannone who, in his capacity as an assistant state's attorney, represented the state in connection with the petitioner's underlying criminal trial and represented the respondent in connection with the petitioner's prior habeas petition. The court also heard testimony from the petitioner. After hearing argument from counsel, the court rendered an oral decision in which it granted the respondent's motion to dismiss.¹

In its decision, the court observed that the present petition and the prior petition, both alleging ineffective assistance of trial counsel, were “virtually identical,” and that the petitioner had conceded that this was accurate. The court found that on May 4, 1998, the petitioner “intentionally and knowingly” withdrew his prior petition with prejudice. The court observed that, although there was no transcript admitted into evidence reflecting what occurred in connection with the withdrawal on May 4, 1998, there was evidence about the proceeding, including the fact that the petitioner had raised a motion to replace his counsel and that, following questioning of the petitioner by the court, the petitioner withdrew the petition. The court found the testimony of Gravalec–Pannone to be credible with regard to the events at issue, namely, that the petitioner was questioned by Judge Radcliffe and that he withdrew his petition with prejudice. For his part, the petitioner testified, in essence, that he merely had followed the instructions of his attorney, Hutchinson, in connection with the withdrawal, but the court found that such testimony was not credible and only supported the conclusion that the petitioner later may have regretted his decision to withdraw the petition. Deeming the petitioner's actions to be a form of “deliberate bypass,” the court granted the motion to dismiss. This appeal followed the habeas court's grant of certification to appeal.

“The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review.... [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous....” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 121 Conn.App. 295, 298, 995 A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).

On appeal, the petitioner argues that the court's finding that he intentionally and knowingly withdrew his prior petition with prejudice was clearly erroneous. Also, the petitioner argues that (1) the fact that he withdrew the prior petition before the commencement of a hearing on its merits did not bar the court from considering the merits of the present petition, (2) the doctrine of res judicata does not apply because the claim in his prior petition was not actually litigated, and (3) the present case does not implicate the deliberate bypass doctrine because the sole claim raised in the prior and present petitions was based on ineffective assistance of trial counsel.

It is necessary that we accurately characterize the basis of the court's dismissal. As set forth previously, the habeas court based its decision on a critical factual determination, namely, that the petitioner intentionally and knowingly withdrew his prior petition with prejudice, thereby waiving his right thereafter to pursue the claim raised therein. Although the court reasoned that “[the petitioner's] actions constitute deliberate bypass,” that doctrine does not apply to the case at hand, for it historically has arisen in the context of habeas petitions involving claims procedurally defaulted at trial and on appeal. See Crawford v. Commissioner of Correction, 294 Conn. 165, 186, 982 A.2d 620 (2009) (observing that since Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993), our Supreme Court “consistently and broadly has applied the cause and prejudice standard to trial level and appellate level procedural defaults in habeas corpus petitions”). Here, the respondent invoked the doctrine of deliberate bypass insofar as he argued that the petitioner, by his conduct related to the prior habeas proceeding, voluntarily “ ‘forfeited’ his right to have a hearing on the merits and, thus, forfeited his right to prosecute these claims.” In light of the arguments advanced before the habeas court and the court's fleeting reference to “deliberate bypass” in its memorandum of decision, we interpret the court's decision to be based generally on the respondent's central argument that, in connection with the prior habeas petition, the petitioner validly waived his right to raise the ineffective assistance of counsel claim in the present petition.

In evaluating the propriety of the court's finding, that an intentional and knowing waiver occurred, we are mindful that “[t]he habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed [on appeal] unless they are clearly erroneous.... Thus, [t]his court does not retry the case or evaluate the credibility of the witnesses.... Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.... The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.... Thus, the court's factual findings are entitled...