James L. v. Commissioner of Correction

• Decision Date: 23 June 1998
• Docket Number: No. 15847,15847
• Court: Connecticut Supreme Court
• Parties: JAMES L. 1 v. COMMISSIONER OF CORRECTION.

Page 947

712 A.2d 947

245 Conn. 132

JAMES L. ¹ v. COMMISSIONER OF CORRECTION.

No. 15847.

Supreme Court of Connecticut.

Argued April 23, 1998.

Decided June 23, 1998.

Jo Anne Sulik, Assistant State's Attorney, for appellant (respondent).

Adele V. Patterson, Deputy Assistant Public Defender, for appellee (petitioner).

Before BORDEN, BERDON, PALMER, McDONALD and PETERS, JJ.

PETERS, Associate Justice.

The principal issue in this appeal is whether, after a finding of ineffective assistance of counsel, a habeas court has the authority to restore a petitioner's right to sentence review under General Statutes § 51-195, ² after the statute's thirty day time limit has passed. We conclude that the habeas court has such authority, and, therefore, affirm the judgment restoring the petitioner's right to file for sentence review.

The petitioner, James L., was convicted of two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1989) § 53a-70, ³ and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1989) § 53-21. ⁴ He was sentenced to twenty-five years in prison, suspended after fifteen years. The Appellate Court affirmed his conviction. State v. James L., 26 Conn.App. 81, 598 A.2d 663 (1991).

The petitioner was represented at trial by Attorney Richard Perry, and at sentencing and on appeal by Attorney Kenneth Leary. The petitioner first brought a habeas petition against the respondent, the commissioner of correction (commissioner), alleging that Perry's representation had been ineffective. Following an evidentiary hearing, that petition was dismissed by the court, Sferrazza, J., on May 23, 1995. The merits of that decision are not before us.

The petitioner then brought a second habeas petition, which is the subject of this appeal, alleging that Leary's representation had been ineffective because he had failed to file an application for sentence review within the statutory time limit. Following an evidentiary hearing on January 10, 1997, the habeas court, Bishop, J., granted the petition and restored the petitioner's right to apply for sentence review.

The commissioner sought certification to appeal, which the habeas court granted pursuant to General Statutes § 52-470(b). ⁵ In his statement of the issue on appeal, filed thereafter pursuant to Practice Book § 4013, now Practice Book (1998 Rev.) § 63-4, the commissioner asked: "Whether the habeas court erred in granting the petition for writ of habeas corpus?" We affirm the judgment of the habeas court.

On appeal to this court, the commissioner raises two issues. ⁶ He claims that: (1) the habeas court should have dismissed the petition because it is successive to the petitioner's earlier habeas challenge to the competence of Perry and, therefore, constitutes an abuse of the writ; and (2) the habeas court had no authority to provide relief because the thirty day filing period for applications for sentence review under § 51-195 implicates the sentence review division's subject matter jurisdiction.

The petitioner asks us either to reject the commissioner's appeal on jurisdictional grounds or to affirm, on its merits, the judgment of the habeas court. As a threshold matter, he alleges that this court should not consider the commissioner's claim that the petitioner abused the writ by filing successive petitions. That issue, according to the petitioner, is foreclosed from appellate review because it was not one of the issues that the commissioner raised in the habeas court in his motion for certification to appeal. We disagree with this threshold contention, but affirm the judgment of the habeas court on its merits.

I

We first address the petitioner's threshold question of whether the commissioner can raise an appellate claim of abuse of the writ, even though the commissioner did not include that claim in the request for certification to appeal that was granted by the habeas court. The petitioner claims that the commissioner cannot now raise any issue not properly certified under § 52-470(b).

We disagree with the petitioner's claim for two reasons. First, it finds no support in the text or the legislative history of § 52-470(b). Second, it is inconsistent with our habeas corpus jurisprudence and our prior interpretations of the statute.

The certification requirement contained in § 52-470(b) provides that no appeal may be taken from the habeas court unless that court first certifies "that a question is involved in the decision which ought to be reviewed...." The statute was enacted in order "to reduce successive frivolous appeals in criminal matters and hasten ultimate justice without repetitive [appeals]" to this court. 7 S. Proc., Pt. 5, 1957 Sess., p. 2936, remarks of Senator John H. Filer. The issue before us is the proper construction of the term "question" in light of this legislative purpose. Neither the text of the statute nor its avowed legislative purpose sheds significant light on this issue.

Our recent habeas corpus jurisprudence has construed § 52-470(b) narrowly so as to preserve the commitment to justice that the writ of habeas corpus embodies. We have stated that, "the principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness." (Internal quotation marks omitted.) Lozada v. Warden, 223 Conn. 834, 840, 613 A.2d 818 (1992); see also Bunkley v. Commissioner of Correction, 222 Conn. 444, 460-61, 610 A.2d 598 (1992). In Simms v. Warden, 230 Conn. 608, 614-15, 646 A.2d 126 (1994), we held that the statute did not impose a jurisdictional constraint on appellate review but was designed only to limit the scope of such review. As we noted in that case, "when the legislature enacted § 52-470(b), it limited a statutory right to appeal that had existed, unconditionally, since 1882." Id., at 614, 646 A.2d 126. Presumably, the legislature crafted that limitation with due respect for "the significant role of the writ of habeas corpus in our jurisprudence ... and the strong presumption in favor of appellate jurisdiction" existing under our current law. (Citation omitted.) Id., at 614-15, 646 A.2d 126. Only last year, in Iovieno v. Commissioner of Correction, 242 Conn. 689, 696-97, 699 A.2d 1003 (1997), we reiterated this interpretation of § 52-470(b).

We have construed § 52-470(b) to limit the scope of our review in the face of a denial of certification by the habeas court. See Copas v. Commissioner of Correction, 234 Conn. 139, 150, 662 A.2d 718 (1995) ("if either the petitioner or the respondent is denied a timely request for certification to appeal from a habeas court's judgment, such review may subsequently be obtained only if the appellant can demonstrate that the denial constituted an abuse of discretion"). We have not specifically addressed, however, a limitation that possibly might flow from the terms of the grant of certification. ⁷ We are persuaded that we should not infer such a limitation from the language of the statute. Although in this case the terms of the grant of certification clearly did not include the issue of abuse of the writ, in other cases the terms of the grant might be ambiguous. Close linguistic parsing of such texts would clutter habeas appeals for no good purpose. Furthermore, appellate scrutiny of habeas proceedings might bring to light new issues whose reviewability should not turn on the terms of the grant of certification. In light of the considerations adduced in Simms v. Warden, supra, 230 Conn. at 614-15, 646 A.2d 126, and related habeas corpus cases, we conclude that, at least in the absence of demonstrable prejudice, the legislature did not intend the terms of the habeas court's grant of certification to be a limitation on the specific issues subject to appellate review.

In this respect, the habeas court's certification to appeal under § 52-470(b) differs from a petition for certification to appeal to this court. See Practice Book 1998 Rev.) §§ 84-1 through 84-6, formerly §§ 4126 through 4131. If a party appeals to this court in a petition for certification, we "will ordinarily consider only those questions squarely raised" in that petition. Practice Book (1998 Rev.) § 84-5(a)(1), formerly § 4130; but cf. Nardini v. Manson, 207 Conn. 118, 119, 540 A.2d 69 (1988) (addressing due process claim beyond scope of certified ineffective assistance of counsel claim because proper analysis of certified issue required consideration of due process argument).

By contrast, once a party has received the habeas court's certification to appeal under § 52-470(b), that party still must file a preliminary statement of the issues on appeal. Practice Book (1998 Rev.) § 63-4, formerly § 4013. The commissioner's preliminary statement of the issue on appeal was broad. As stated above, it asked: "Whether the habeas court erred in granting the petition for writ of habeas corpus?"

"Whenever the failure to identify an issue in a preliminary statement of issues prejudices an opposing party, the court may refuse to consider such issue." Practice Book (1998 Rev.) § 63-4(a)(1). The record in this case demonstrates conclusively that the commissioner's failure to identify explicitly the abuse of the writ claim in his statement of the issues did not prejudice the petitioner. The petitioner had notice of this claim because it was one of the issues previously litigated and decided in the commissioner's motion to dismiss and motion for summary judgment, and he had an opportunity to respond to this argument in his appellate brief. Accordingly, we reject the petitioner's threshold challenge to the scope of this appeal and will consider the merits of the commissioner's argument that the petitioner abused the writ in this case by filing a new claim of ineffective assistance of counsel after rejection of a similar claim against another trial attorney.

II

We now turn to the merits of the commissioner's claim that the habeas ...