Kaddah v. Comm'r of Corr.

• Decision Date: 31 January 2017
• Docket Number: SC 19512
• Court: Connecticut Supreme Court
• Parties: Nabeel KADDAH v. COMMISSIONER OF CORRECTION

324 Conn. 548

153 A.3d 1233

Nabeel KADDAH

v.COMMISSIONER OF CORRECTION

SC 19512

Supreme Court of Connecticut.

Argued October 11, 2016

Officially released January 31, 2017

Andrew P. O'Shea, with whom was Damon A. R. Kirschbaum, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Craig P. Nowak, senior assistant state's attorney, for the appellee (respondent).

Rogers, C.J., and Palmer, Eveleigh, McDonald and Robinson, Js.^*

ROBINSON, J.

The sole issue in this appeal is whether Connecticut law permits a third petition for a writ of habeas corpus (third habeas) to vindicate a claim of ineffective assistance of counsel during what is commonly known as a "habeas on a habeas," namely, a second petition for a writ of habeas corpus (second habeas) challenging the performance of counsel in litigating an initial petition for a writ of habeas corpus (first habeas), which had claimed ineffective assistance of counsel at the petitioner's underlying criminal trial or on direct appeal. See Lozada v. Warden , 223 Conn. 834, 843, 613 A.2d 818 (1992). The petitioner, Nabeel Kaddah,¹ appeals² from the judgment of the habeas court dismissing his third habeas petition alleging, inter alia, ineffective assistance of habeas counsel during litigation of his second habeas petition. On appeal, the petitioner claims that the habeas court improperly determined that the statutory right of indigent habeas petitioners to counsel under General Statutes § 51–296 (a)³ is limited to "effective representation by ... first habeas counsel," thus rendering the third habeas petition challenging counsel's performance in the second habeas proceeding not cognizable as a matter of law. Given the concession by the respondent, the Commissioner of Correction (commissioner), that § 51–296 (a) provides a statutory right to assigned counsel in a second habeas proceeding that necessarily includes the right to competent counsel, we conclude that our common law authorizes a third habeas petition as a proper vehicle to vindicate that right. Accordingly, we reverse the judgment of the habeas court dismissing the counts of the third habeas petition that claimed ineffective assistance of prior habeas counsel.⁴

The record reveals the following relevant facts and procedural history. Following a jury trial, the petitioner was convicted of murder, attempted murder, and unlawful restraint in the first degree. See State v. Kaddah , 250 Conn. 563, 564, 736 A.2d 902 (1999). This court subsequently affirmed the petitioner's conviction on direct appeal. Id., at 581, 736 A.2d 902. The petitioner, then represented by Attorney Salvatore Adamo, filed his first habeas petition alleging ineffective assistance of counsel at his trial and on direct appeal. See Kaddah v. Commissioner of Correction , 105 Conn.App. 430, 433–34, 939 A.2d 1185, cert. denied, 286 Conn. 903, 943 A.2d 1101 (2008) (Kaddah I ). The habeas court, White, J. , denied the first habeas petition, along with the petitioner's petition for certification to appeal. See Kaddah v. Commissioner of Correction , 299 Conn. 129, 132, 7 A.3d 911 (2010) (Kaddah II ). The petitioner appealed from Judge White's denial of the first habeas petition to the Appellate Court, but withdrew that appeal before that court rendered judgment. Id., at 132–33, 7 A.3d 911.

The petitioner, represented by Attorney Joseph Visone, then filed a second habeas petition alleging ineffective assistance of habeas counsel by Attorney Adamo in the first habeas proceeding.⁵ Kaddah I , supra, 105 Conn.App. at 434, 939 A.2d 1185. The habeas court, Fuger, J. , denied this petition, along with the petitioner's petition for certification to appeal. Id. The Appellate Court subsequently dismissed the petitioner's appeal from the denial of the second habeas petition, concluding that Judge Fuger had not abused his discretion by denying the petitioner's petition for certification to appeal. Id., at 446, 939 A.2d 1185.

The petitioner later filed the third habeas petition⁶ alleging, inter alia,⁷ that Attorney Visone had rendered ineffective assistance during litigation of his second habeas petition by failing to raise certain claims relating to the jury instructions used at his criminal trial. After a three day habeas trial, the habeas court, sua sponte, asked the parties to brief "the question of whether the petition's allegations assert a cognizable habeas corpus claim for which this court can provide relief." See Practice Book § 23–29 (2). Specifically, the habeas court questioned whether this court's decision in Lozada v. Warden , supra, 223 Conn. at 834, 613 A.2d 818, "which recognized the viability of a habeas corpus claim of ineffective assistance of first habeas counsel, [should] be extended ad infinitum." (Emphasis omitted.) The petitioner and the commissioner subsequently filed posttrial briefs in which they agreed that the petitioner's claim in his third habeas petition was cognizable under Lozada .⁸ Despite the parties' agreement on this point, the habeas court nevertheless concluded that the petitioner had failed to state a cognizable claim and dismissed the remaining counts of the third habeas petition. See footnote 4 of this opinion.

In its memorandum of decision, the habeas court began its analysis with this court's decision in Lozada v. Warden , supra, 223 Conn. at 834, 613 A.2d 818, which authorized habeas on habeas petitions, and the Appellate Court's decision in Sinchak v. Commissioner of Correction , 126 Conn.App. 684, 692, 14 A.3d 343 (2011), which held that § 51–296 (a) requires the appointment of counsel for such petitions. The habeas court declined, however, "to apply the same rubric used by the Supreme Court in Lozada to the [Appellate Court's] holding in Sinchak and conclude, therefore, because a [second habeas] petitioner has a right to appointment of habeas counsel under § 51–296 (a), that the petitioner must also have the companion right to habeas corpus relief based on the poor performance of second habeas counsel through a third habeas [proceeding]." The habeas court determined that this "syllogistic reasoning" would have the "absurd result" of fostering infinite habeas claims, which would defy "concepts of certainty, finality, and judicial economy." The habeas court determined that "it would stretch the meaning of the phrase ‘arising from a criminal matter’ [as used in § 51–296 (a) ] beyond all linguistic boundaries to interpret that phrase to mean ‘arising from a habeas proceeding which arose from a habeas proceeding ... which arose from a criminal matter,’ ad infinitum. The more rational and plausible construction of that ambiguous phrase is that the legislature only had a first level habeas claim in mind when it created the statutory right to counsel and never intended to create a system of ineffective assistance claims in habeas cases [that] resembles the Russian Matryoshka dolls, each embraced within a more expansive one, without end." (Emphasis omitted.) Accordingly, the habeas court concluded that the petitioner's allegations did not raise a cognizable habeas corpus claim for which the court could provide relief, and rendered judgment dismissing the remaining counts of the third habeas petition. The habeas court subsequently granted the petitioner's petition for certification to appeal, and this appeal followed. See footnote 2 of this opinion.

On appeal, the petitioner, relying primarily on Lozada v. Warden , supra, 223 Conn. at 834, 613 A.2d 818, and Sinchak v. Commissioner of Correction , supra, 126 Conn.App. at 684, 14 A.3d 343, claims that the habeas court improperly determined that § 51–296 (a) did not afford him a right to competent counsel for his second habeas petition that could be vindicated by a third habeas petition. The petitioner argues that any other reading of the broad statutory language of § 51–296 (a), namely, "any habeas corpus proceeding arising from a criminal matter," would render the right to counsel in the second habeas proceeding illusory and foster the absurd result of allowing the appointment of incompetent counsel to represent petitioners in that proceeding. The petitioner contends that the habeas court's concern of infinite habeas on habeas petitions is addressed by existing procedures, such as dismissals under the doctrines of collateral estoppel, successive petitions, and for frivolous pleading, along with the amendments to General Statutes § 52–470⁹ via the 2012 habeas reform legislation. See Public Acts 2012, No. 12–115, § 1. The petitioner further emphasizes that the legislature took no action to limit the right to counsel under § 51–296 (a) when it enacted the 2012 habeas reform measures subsequent to the Appellate Court's decision in Sinchak .

In response, the commissioner concedes the correctness of Sinchak v. Commissioner of Correction , supra, 126 Conn.App. at 684, 14 A.3d 343, in which the Appellate Court held that § 51–296 (a) provides a right to counsel in a second habeas proceeding. The commissioner also acknowledges that the Appellate Court's holding in Sinchak necessarily encompasses the right to assistance by competent counsel in the second habeas proceeding. Retreating from the concession made before the habeas court; see footnote 8 of this opinion; the commissioner contends, however, that a claim of ineffective assistance of second habeas counsel is not a cognizable basis for habeas relief under Connecticut law. Specifically, the commissioner argues that nothing in the text or legislative history of § 51–296 (a) indicates that the legislature intended to authorize a third habeas petition to vindicate such a right.¹⁰ The commissioner also relies on In re Jonathan M. , 255 Conn. 208, 209, 764 A.2d 739 (2001), a termination of parental rights case, in support of the proposition that the existence of a right to counsel in a given situation does not mean that a habeas corpus petition is available to...