In re Application for Writ of Habeas Corpus by Dan Ross

Citation866 A.2d 554,272 Conn. 676
CourtSupreme Court of Connecticut
Decision Date27 January 2005

Officially released January 27, 2005.*

Sullivan, C. J., and Norcott, Vertefeuille, Zarella, Lavery, Foti and Dranginis, Js.

Jon L. Schoenhorn, for the plaintiff in error (petitioner Dan Ross).

Temmy Ann Pieszak, chief of habeas corpus services, with whom was Adele V. Patterson, assistant public defender, for the plaintiff in error (petitioner office of the chief public defender).

Harry Weller, supervisory assistant state's attorney, with whom were Kevin T. Kane, state's attorney, and Michael O'Hare, supervisory assistant state's attorney, and, on the brief, Robert J. Scheinblum, assistant state's attorney, and Jessica Probolus, special deputy assistant state's attorney, for defendant in error (respondent commissioner of correction).

Edward J. Gavin filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.



This opinion relates to the orders of this court dated January 25, 2005, dismissing the motions to stay the execution of Michael B. Ross1 filed by the plaintiff in error, Dan Ross, and the plaintiff in error, the office of the chief public defender.2 See In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 674, 675, A.2d (2005) (In re Application II). The motions were filed in connection with two separate writs of error brought by the plaintiffs in error challenging the orders of the habeas court dismissing their respective petitions for a writ of habeas corpus on behalf of Michael Ross. In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 655, A.2d (2005) (In re Application I). We affirmed the orders of the habeas court and dismissed the writs of error on the ground that the plaintiffs in error lacked standing to bring the habeas petitions. Id., 667, 673. Accordingly, we dismissed the motions to stay as moot. In re Application II, supra, 675. In our opinion dismissing the motions to stay as moot, we indicated that this opinion explaining in greater detail the reasons for the dismissal of the motions would follow. Id.

The underlying facts and procedural history of this case are set forth in our decisions in In re Application I, supra, 272 Conn. 653, and State v. Ross, 272 Conn. 577, A.2d (2005). In summary, these cases involve attempts by the plaintiffs in error to obtain next friend status in the underlying criminal proceeding against Michael Ross in order to pursue postconviction relief on his behalf, including participation in the ongoing consolidated habeas litigation3 on behalf of several defendants who have been sentenced to death. We have concluded that they have no standing to do so. See In re Application I, supra, 272 Conn. 667; State v. Ross, supra, 611. The plaintiffs in error have argued in their briefs in these proceedings that Michael Ross cannot waive his right to pursue further postconviction remedies and, therefore, his execution must be stayed. We disagree. As we have noted, we have concluded, and the dissenting justices agree, that the plaintiffs in error have no standing to bring habeas proceedings on behalf of Michael Ross and, therefore, the habeas petitions properly were dismissed. See In re Application I, supra, 663, 667. The motions for stay were filed in conjunction with the writs of error that have been dismissed. Accordingly, the motions to stay must be dismissed as moot.

The dissenting justices conclude, however, that: (1) General Statutes (Rev. to 1987) § 53a-46b4 creates a nonwaivable right to reap the benefit of litigation raised by others claiming that their sentences of death were the result of "passion, prejudice or any other arbitrary factor";5 and (2) this court has an independent institutional duty to exercise its supervisory powers to prevent the execution of a death sentence that may be the product of an arbitrary factor. We disagree. It simply is unprecedented for this court to conclude that, although it has no jurisdiction over the case before it, it may act in that case to enter a stay in a separate proceeding. Moreover, the dissenting justices misconstrue § 53a-46b as providing for mandatory review of postconviction proceedings in death penalty cases. That statute provides only for mandatory sentence review, which already has taken place in the criminal proceeding against Michael Ross and has resulted in the affirmance of his death sentences. See generally State v. Ross, 269 Conn. 213, 849 A.2d 648 (2004). In addition, the dissenting justices' conclusions are inconsistent with our cases indicating that participation in the consolidated litigation is voluntary; see, e.g., State v. Colon, 272 Conn. 106, 377-79, A.2d (2004); State v. Reynolds, 264 Conn. 1, 226-34, 836 A.2d 224 (2003), cert. denied, U.S., 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004); State v. Breton, 264 Conn. 327, 405, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L. Ed. 2d 798 (2003); State v. Cobb, 251 Conn. 285, 499, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000) (Cobb II); State v. Cobb, 234 Conn. 735, 761-63, 663 A.2d 948 (1995) (Cobb I); and with the well established principle that, even in death penalty cases, constitutional claims and claims raising the specter that the death sentence was the result of an arbitrary factor are waivable. See, e.g., State v. Colon, supra, 154 n.26.

Whether § 53a-46b (b) creates a nonwaivable right to reap the benefit of litigation brought by others claiming that their sentences of death were the result of "passion, prejudice or any other arbitrary factor" is a question of law over which our review is plenary. See, e.g., State v. Ross, supra, 272 Conn. 598.

To provide context for our discussion of the statute, we begin our analysis with a history of the consolidated habeas litigation. The issue of racial disparity in the administration of the death penalty statute in Connecticut was first raised in Cobb I, supra, 234 Conn. 735. The defendant in that case, Sedrick Cobb, "had moved for enlargement of the class of similar cases that [this court would] consider in determining whether his death sentence [was] justified in light of the prohibition against disproportionality provided by . . . § 53a-46b (b) (3)." Id., 737. Specifically, Cobb requested that we consider "all cases prosecuted in Connecticut after October 1, 1973, in which a capital felony could have been charged pursuant to . . . § 53a-46b and which resulted in a homicide conviction, following a plea or trial." (Emphasis in original; internal quotation marks omitted.) Id., 738. Cobb argued that this expanded universe of cases was "necessary to enable this court to evaluate his claim that race has an impermissible effect on capital sentencing decisions in Connecticut . . . ." Id. We rejected Cobb's claim, concluding that "the legislature did not intend proportionality review to encompass a comparison [of] all homicide cases prosecuted since 1973 in which a capital felony could have been charged." Id., 747.

We also concluded, however, that Cobb could have raised his racial disparity claim under § 53a-46b (b) (1). Id., 761. Under § 53a-46b (b) (1), however, "it would have been necessary for [Cobb] to have made his statistical record in the trial court, and to have subjected it to a full evidentiary hearing, as in [McCleskey v. Zant, 580 F. Sup. 338 (N.D. Ga. 1984), aff'd sub nom. McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987)], before presenting it on appeal. To hold that [Cobb] could raise this claim on appeal under § 53a-46b (b) (1), without having first created an adequate factual basis in the trial court, would be incorrect for many of the same reasons that we reject [Cobb's] claim under § 53a-46b (b) (3), because it would assume, without any clear indication, that the legislature intended this court to engage in the same extraordinary process of data gathering and fact-finding. Thus, both subdivision (1) and subdivision (3) of § 53a-46b (b) ordinarily contemplate not data gathering and fact-finding by or under the aegis of this court from disputed evidence, which [Cobb's] claim would require, but evaluation by this court of the trial court record of the case on appeal, and with respect to subdivision (3), of the trial court records of similar cases." Cobb I, supra, 234 Conn. 762.

We also concluded in Cobb I that, "even though [Cobb] has not created a trial record . . . that would permit him to present, in his direct appeal, his statistical claim under § 53a-46b (b) (1) . . . he should be permitted to do so by way of a postappeal habeas corpus petition . . . . Although ordinarily habeas corpus cannot serve as a surrogate for a claim that could have been presented on direct appeal . . . we conclude that, with respect to the claim that [Cobb] seeks to present by this motion, he should not be bound by that principle because the scope and meaning of § 53a-46b (b) have remained uncertain and, until [1995], have been the subject of only one published decision of this court. . . . Furthermore, the nature of [Cobb's] claim of systemic racial bias, and the seriousness and finality of the death penalty, counsel against raising any undue procedural barriers to review of such a claim." (Citations omitted.) Id., 762-63.

"In Cobb II [supra, 251 Conn. 285], we reaffirmed our holding in Cobb I that a racial disparity claim `was cognizable under § 53a-46b (b) (1), but must [be] based on a full evidentiary hearing made at trial in the trial court.' [Id.], 499. Because [Cobb] had not made such a record [in] the trial court, he was required to proceed by way of a habeas petition. Id. In...

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