Grant v. Commissioner of Correction

• Decision Date: 25 May 2010
• Docket Number: No. 30112.,30112.
• Citation: 121 Conn.App. 295,995 A.2d 641
• Court: Connecticut Court of Appeals
• Parties: Donnette GRANT v. COMMISSIONER OF CORRECTION.

995 A.2d 641

121 Conn.App. 295

Donnette GRANT v. COMMISSIONER OF CORRECTION.

No. 30112.

Appellate Court of Connecticut.

Argued January 4, 2010.

Decided May 25, 2010.

Mary H. Trainer, special public defender, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Dennis J. O'Connor, senior assistant state's attorney, for the appellee (respondent).

BISHOP, DiPENTIMA and TYMA, Js.^*

DiPENTIMA, J.

The petitioner, Donnette Grant, appeals from the judgment of the habeas court denying her petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) dismissed count two of the habeas petition for failure to state a cause of action and (2) denied her claim of ineffective assistance of counsel. We affirm the judgment of the habeas court.

The facts surrounding the underlying conviction were set forth in the decision of this court disposing of the petitioner's criminal appeal. "Lennox Walker, the victim's father, arranged for the petitioner to care for the victim, Lamar Walker, who was four months old. Kerry Ann Douglas, the victim's mother, took the victim to the petitioner's apartment on the morning of August 12, 1994. Approximately two hours after the victim was left in the petitioner's care, the victim required hospitalization because he was not breathing. At 11:18 a.m., a police certified dispatcher received a 911 call from 887 Asylum Avenue in Hartford, the location of the petitioner's apartment. Emergency personnel responded and found that the victim was not breathing, had no pulse, and was cold, pale and blue from lack of oxygen in his blood. The paramedics transported the victim to Saint Francis Hospital and Medical Center. Because of the victim's special needs at that time, he was taken by Life Star helicopter to Hartford Hospital, which has an intensive care unit specially designed for very young children. Medical examination of the victim revealed that he had sustained the following injuries: Severe swelling of the brain, bleeding in the head, retinal hemorrhage and fractures in five bones. On August 14, 1994, the victim died at the hospital from the injuries he had sustained." State v. Grant, 68 Conn. App. 351, 352-53, 789 A.2d 1135 (2002).

On December 13, 1999, the petitioner was charged with one count each of manslaughter in the first degree in violation of General Statutes § 53a-55 (a)(1) and (3), risk of injury to a child in violation of General Statutes § 53-21 and tampering with a witness in violation of General Statutes § 53a-151. Following a trial, a jury found the petitioner guilty of manslaughter in the first degree in violation of § 53a-55 (a)(3) and risk of injury to a child in violation of § 53-21. State v. Grant, supra, 68 Conn.App. at 351, 789 A.2d 1135. On February 28, 2000, the court imposed a total effective sentence of thirty years incarceration, suspended after twenty years, with five years of probation. The petitioner appealed from the judgment of conviction to this court, and we affirmed the judgment of the trial court. Id. On October 29, 2003, the petitioner filed a pro se petition for a writ of habeas corpus, which was amended twice, most recently through counsel on April 2, 2007. Only two counts of the second amended petition are subjects of this appeal: count two, alleging that postjudgment medical and scientific evidence contradicted the state's expert opinion, and count three, alleging ineffective assistance of her trial counsel, Sara Bernstein. The court dismissed count two during the habeas trial and, by memorandum of decision dated June 4, 2008, denied the habeas petition as to count three.¹ The court granted the petition for certification to appeal from the judgment denying the habeas petition. This appeal followed. Additional facts will be set forth as necessary.

We first set forth our standard of review for a denial of a petition for a writ of habeas corpus. "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.... A finding of fact is clearly erroneous when there is no evidence in the record to support it... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) Harris v. Commissioner of Correction, 107 Conn. App. 833, 838, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).

I

The petitioner first claims that the court improperly dismissed count two of the habeas petition for failure to state a cause of action. Specifically, the petitioner argues that because newly discovered medical and scientific evidence "undermines the validity and viability of the state's theory of criminal liability," she should be granted a new trial. We do not agree.

In the second count of her amended habeas petition, the petitioner alleged that studies published after her conviction contain medical and scientific evidence on shaken baby syndrome that contradict the opinions proffered at trial by the state's expert witness. Prior to trial, the respondent, the commissioner of correction, moved to dismiss this count on the ground that the petitioner had not pleaded actual innocence. On April 13, 2007, the court, Fuger, J., denied the motion without a memorandum of decision. On October 24, 2007, at the close of the petitioner's case-in-chief, the respondent orally moved for a directed verdict on count two.² The respondent argued that the petitioner had not offered any postjudgment medical or scientific evidence that contradicted the evidence that the state put forth in her criminal trial and that the petitioner had not made a claim of actual innocence. Thereafter, the court, Swords, J., dismissed count two, and stated in the memorandum of decision: "The court dismissed count two after the petitioner's case-in-chief because the count failed to state a cause of action. Count two is captioned `post-judgment medical and scientific evidence contradicts the state's `expert' opinions.' At best, this claim merely draws attention to the fact that medical and scientific reasoning evolve over time, a not too novel notion. This claim is not, however, a cognizable habeas corpus claim. Thus, the discussion in the court's decision is limited to counts one and three."

Practice Book § 23-29 provides in relevant part that "the judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted or (5) any other legally sufficient ground for dismissal of the petition exists." A petition for a writ of habeas corpus must set forth specific grounds for the issuance of the writ. Practice Book § 23-22(1) specifically provides that the petition shall state "the specific facts upon which each specific claim of illegal confinement is based and the relief requested...." See Fernandez v. Commissioner of Correction, 86 Conn.App. 42, 49, 859 A.2d 948 (2004). ("The petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action.... The principle that a plaintiff may rely only upon what he has alleged is basic.... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint." Internal quotation marks omitted.). "While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.... The purpose of the petition is to put the respondent on notice of the claims made, to limit the issues to be decided, and to prevent surprise." (Citations omitted; internal quotation marks omitted.) Holley v. Commissioner of Correction, 62 Conn.App. 170, 181, 774 A.2d 148 (2001).

Count two of the petitioner's amended petition for a writ of habeas corpus includes no allegation of actual innocence on which to premise her claims regarding newly available postjudgment scientific evidence. It simply alleges: "Notwithstanding whatever level of acceptance shaken baby syndrome may have enjoyed within the medical and scientific community at the time of trial, substantive independent scholarship has been produced since the trial court's judgment that undermines the validity and viability of the theory of criminal liability, as adduced and argued by the state." In her argument before this court, the petitioner claims that count two states a cause of action of actual innocence.³ From our review of the record, we conclude that it was never made clear to the habeas court that the petitioner was proceeding on an actual innocence claim.⁴ Id. Instead, the petitioner proceeded under the general theory that the evidence presented at the habeas trial showed that the state's evidence related to shaken baby syndrome that was presented at the criminal trial was not valid. The ambiguous pleadings that do not allege actual innocence and the failure of the petitioner to advise the court of her theory during the habeas trial provide a sufficient legal basis to affirm the court's dismissal of count two of the habeas petition.

The petitioner contends that we should interpret her claim as...