Jackson v. Commissioner of Correction, 14559

• Citation: 227 Conn. 124,629 A.2d 413
• Decision Date: 10 August 1993
• Docket Number: No. 14559,14559
• Court: Supreme Court of Connecticut
• Parties: Dennis JACKSON v. COMMISSIONER OF CORRECTION.

Page 413

629 A.2d 413

227 Conn. 124

Dennis JACKSON v. COMMISSIONER OF CORRECTION.

No. 14559.

Supreme Court of Connecticut.

Argued May 5, 1993.

Decided Aug. 10, 1993.

Conn. 1993.

Elizabeth M. Inkster, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (petitioner).

James A. Killen, Asst. State's Atty., for appellee (respondent).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

BORDEN, Associate Justice.

The petitioner, Dennis Jackson, appeals ¹ from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The habeas court concluded that the petitioner had failed to demonstrate good cause for his failure to pursue on direct appeal his claim of unconstitutional jury composition that was the basis of his habeas petition. We affirm the judgment of the habeas court.

The record sets forth the facts and lengthy procedural history of this case. At his criminal trial, conducted in May, 1982, the petitioner was represented by Attorney John Buckley. Prior to the trial, Buckley had reached an agreement with assistant state's attorney Patrick Clifford, who Buckley understood would be prosecuting the petitioner's case. Buckley had agreed with Clifford that, in challenging the jury array in the petitioner's case, the petitioner could rely on evidence presented in another case that Buckley and Clifford had tried together and in which a jury array challenge had been brought.

Clifford, however, did not try the petitioner's case, but instead was replaced by assistant state's attorney Robert Devlin. Devlin, unlike Clifford, was unwilling to stipulate to the jury array evidence that had been presented in the case that Buckley and Clifford had tried together. Devlin also argued to the trial court that the petitioner's motion challenging the array was untimely.

In response, the trial court asked Buckley whether he was ready to present evidence necessary to challenge the array. Buckley stated to the court that he would need additional time to subpoena the appropriate witnesses and that he was not prepared to present evidence at that time. ² Although Buckley informed the trial court that he needed additional time because he had relied on his prior agreement with Clifford, the trial court denied his request for a continuance. The petitioner, therefore, was unable to introduce evidence to support his challenge to the jury array.

The petitioner was subsequently convicted, after a jury trial, of first degree sexual assault, second degree kidnapping and first degree robbery. The petitioner appealed his conviction to this court and we affirmed the judgment of the trial court. State v. Jackson, 198 Conn. 314, 502 A.2d 865 (1986). In his direct appeal, the defendant did not raise a claim that the trial court had abused its discretion by denying his request for a continuance so that he could produce evidence to challenge the jury array.

In 1987, the petitioner filed a petition for a writ of habeas corpus claiming that the jury array from which his petit jury had been selected had been summoned in violation of his federal and state constitutional rights. ³ The habeas court denied the petition for habeas corpus ⁴ and the petitioner subsequently appealed. His appeal was consolidated with the appeals of thirty-three other habeas petitioners whose similar jury array claims had been rejected by the habeas court. See Johnson v. Commissioner of Correction, 218 Conn. 403, 406, 589 A.2d 1214 (1991).

In those consolidated appeals, the respondent, the commissioner of correction, asserted that, in each case, the habeas court had properly concluded that the composition of the jury array did not violate the petitioner's constitutional rights. As an alternative ground of affirmance, the respondent asserted that the proper standard by which to analyze the petitioners' failure to raise their jury array challenges at trial was the cause and prejudice standard as articulated in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), as opposed to the deliberate bypass rule; see Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); upon which the habeas court had relied.

We affirmed the judgment of the habeas court. In so doing, we concluded that the appropriate standard by which to analyze procedural defaults at trial was the Wainwright standard of cause and prejudice, and that the petitioner in each case had not demonstrated legally sufficient cause pursuant to that standard. Johnson v. Commissioner of Correction, supra, 218 Conn. at 409, 589 A.2d 1214.

The petitioner in this case then filed a motion for reargument or reconsideration, claiming that sufficient evidence had been presented in the habeas court to meet the cause and prejudice standard. We denied reargument but opened the judgment of affirmance and remanded "the case [to the habeas court] for further proceedings relating to whether there was good cause for [the petitioner's] failure to raise before trial the claim of unconstitutional jury composition that is the basis for his habeas petition." Jackson v. Commissioner of Correction, 219 Conn. 215, 217, 592 A.2d 910 (1991).

On the remand, the habeas court concluded that there was not adequate cause to excuse the petitioner's failure to pursue the jury array challenge on direct appeal. Specifically, the habeas court concluded "that the petitioner has failed to show that there was good cause for his failure to raise before trial the claim of unconstitutional jury composition as a result of having failed to pursue that claim on direct appeal." ⁵ This appeal followed.

In his original brief in this appeal, the petitioner contends that the habeas court improperly exceeded the scope of the remand by failing to answer the specific issue set forth in our order, and had instead, outside our mandate, predicated its decision on the petitioner's failure to pursue the jury array challenge on direct appeal. ⁶ We agree with the petitioner that the habeas court exceeded the scope of the remand by analyzing the petitioner's procedural default on appeal, rather than considering whether there was sufficient cause for his failure to challenge properly the composition of the jury array at trial. Because an unexcused procedural default either at trial or on appeal would preclude the habeas court's consideration of the petitioner's jury array claim, however, the habeas court's focus on his procedural default on appeal, rather than his trial default, is not dispositive in these circumstances.

In light of the habeas court's reliance on a legal ground outside the scope of the remand, and, after reviewing the record, including the history of the briefing in the first appeal from the habeas court's dismissal of the petition of habeas corpus, we concluded that the petitioner should be granted an opportunity to brief fully the issues relating to procedural default on direct appeal. Nevertheless, because no additional facts beyond those already found by the habeas court are necessary to analyze these legal issues, we concluded that an additional remand to the habeas court was not warranted. Instead, we ordered the parties to file simultaneous supplemental briefs on the following issues: "1. In a habeas corpus proceeding, is the cause and prejudice standard the appropriate standard by which to analyze a petitioner's failure to pursue a constitutional claim on direct appeal? 2. Did the habeas court properly conclude that there was insufficient cause for [the] petitioner's failure to pursue on direct appeal his claim that the composition of the jury array violated his constitutional rights?" These issues are dispositive of this appeal.

I

The petitioner first claims that the habeas court improperly adopted the cause and prejudice standard to analyze the petitioner's failure to pursue the jury array challenge on direct appeal. We disagree.

Prior to 1991, we employed the deliberate bypass rule, as articulated in Fay v. Noia, supra, in order to determine the reviewability of constitutional claims in habeas corpus proceedings that had not been properly raised at trial or pursued on direct appeal. See, e.g., Vena v. Warden, 154 Conn. 363, 366-67, 225 A.2d 802 (1966). "In Fay v. Noia, supra, [372 U.S. at] 438-39 , the United States Supreme Court held that federal habeas corpus jurisdiction was not affected by the procedural default, specifically a failure to appeal, of a petitioner during state court proceedings resulting in his conviction. The court recognized, however, a limited discretion in the federal habeas judge to deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.... This deliberate bypass standard for waiver required an intentional relinquishment or abandonment of a known right or privilege by the petitioner personally and depended on his considered choice.... A choice made by counsel not participated in by the petitioner does not automatically bar relief." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 218 Conn. at 411-12, 589 A.2d 1214.

In Wainwright v. Sykes, supra, however, the United States Supreme Court subsequently "rejected the sweeping language of Fay, which would make federal habeas review generally available to state convicts absent a knowing and deliberate waiver of the federal constitutional contention. The court upheld a state court's refusal to decide the merits of a claimed Miranda violation first raised in a posttrial motion and in state habeas corpus proceedings, contrary to a state contemporaneous objection rule. The court adopted as a new standard for federal habeas review ... that [i]n a collateral attack upon a conviction, the petitioner must make not only a showing of cause for the defendant's failure to challenge the composition of the grand jury before trial, but also...