Kaddah v. Comm'r of Correction

• Decision Date: 30 November 2010
• Docket Number: No. 18565.,18565.
• Citation: 7 A.3d 911,299 Conn. 129
• Court: Connecticut Supreme Court
• Parties: Nabil KADDAH v. COMMISSIONER OF CORRECTION.

7 A.3d 911

299 Conn. 129

Nabil KADDAH

v.COMMISSIONER OF CORRECTION.

No. 18565.

Supreme Court of Connecticut.

Argued Sept. 10, 2010.

Decided Nov. 30, 2010.

Deren Manasevit, special public defender, for the appellant (petitioner).

Susann E. Gill, supervisory assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, former state's attorney, for the appellee (respondent).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.

VERTEFEUILLE, J.

The petitioner, Nabil Kaddah, appeals ¹ from the denial of his petition for certification to appeal from the judgment of the habeas court, whichsummarily dismissed his petition for a writ of habeas corpus as successive to a prior habeas petition that the petitioner had filed. ² The petitioner claims that the habeas court abused its discretion in denying certification to appeal because it is debatable among jurists of reason whether: (1) the present petition presented the same grounds and request for relief as a prior petition; and (2) the state and federal constitutional guarantees of due process afford the petitioner a right to notice and an opportunity to be heard before a court summarily dismisses a habeas petition under Practice Book § 23-29.³ The relief that the petitioner requested in his habeas petition was an order reinstating his appeal from the denial of a prior habeas petition, which the petitioner withdrew while it was pending in the Appellate Court. We agree with the habeas court's decision on the alternate ground that the allegations of the habeas petition are insufficient to state a claim for the relief that the petitioner sought pursuant to § 23-29(2). Accordingly, we dismiss the appeal.

The record reveals the following procedural facts relevant to this appeal. On November 22, 1996, the petitioner was convicted of murder inviolation of General Statutes § 53a-54a (a), attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a), and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The trial court sentenced the petitioner to a total effective term of incarceration of seventy-five years.⁴ Attorney James Ruane represented the petitioner during his trial. Following his conviction, the petitioner, represented by Attorney Glenn Falk, filed a direct appeal from his conviction, and this court affirmed the judgment of the trial court. State v. Kaddah, 250 Conn. 563, 736 A.2d 902 (1999).

On May 1, 2001, the petitioner, represented by Attorney Salvatore Adamo, filedhis first petition for writ of habeas corpus in state court ⁵ and, in an amended petition, alleged ineffective assistance of his trial counsel, Attorney Ruane, and his counsel on the direct appeal, Attorney Falk (first petition). Following a trial, the habeas court determined that neither trial counsel nor appellate counsel had rendered ineffective assistance and, further, even if the petitioner had proven that counsel had rendered ineffective assistance, any deficiency in the representation would not have prejudiced the result of the petitioner's trial or direct appeal. The habeas court therefore dismissed the first petition, and, on March 8, 2004, denied the petitioner's request for certification to appeal from the dismissal.⁶ The petitionerfiled an appeal from the denial of certification in the Appellate Court. On September 30, 2004, however, the petitioner, represented by Attorney Joseph Visone, withdrew that appeal (withdrawn appeal) before the Appellate Court could hear the case.

Thereafter, on March 14, 2008, the petitioner filed a federal habeas petition in the United States District Court for the District of Connecticut, again claiming ineffective assistance of both trial counsel and counsel on direct appeal. Kaddah v. Lee, United States District Court, Docket No. 3:08CV519 (SRU), 2008 WL 4534264, *1 (D.Conn. October 7, 2008). The District Court thereafter dismissed the petition for failure to exhaust state court remedies, concluding that the petitioner had failed to exhaust his state court remedies because he had withdrawn his appeal before any state appellate court could review his claims. Id., at *2-3.

Following the dismissal of his federal habeas petition, the petitioner filed the state habeas petition that is the subject of this appeal (present petition). In the present petition, the petitioner again alleged ineffective assistance by both his criminal trial counsel and his counsel on direct appeal. The relief the petitioner sought was reinstatement of the withdrawn appeal ⁷ sothat he couldexhaust his state court remedies, and then file a habeas corpus petition in federal court.⁸ The habeas court reviewed the present petition and concluded that it presented the same ground that had been presented in the first petition and "fail[ed] to state new facts or proffer new evidence not reasonably available at the time of the [first] petition." Thus, pursuant to Practice Book § 23-29(3), the habeas court summarily dismissed the petition as successive. This appeal followed after the habeas court denied certification to appeal. Further facts will be set forth as necessary.

On appeal, the petitioner makes two claims in support of his assertion that the habeas court abused its discretion in denying certification to appeal from the dismissal of his present petition. First, the petitioner claims that his present petition was not successive to the first petition because he sought a different remedy than that requested in his first petition. Second, the petitioner claims that Practice Book § 23-29 does not permit summary dismissals of habeas petitions without prior notice and an opportunity to be heard, which he was not given in the present case. Alternatively, the petitioner claims that, to the extent § 23-29 allows for summary dismissal of habeas petitions without prior notice and an opportunity to be heard, it violates his state and federal constitutional rights to due process. Additionally, the petitioner claims that the habeas court should have granted relief by reinstating the withdrawn appeal.

The respondent, the commissioner of correction, disagrees, contending that the habeas court did not abuseits discretion in denying certification to appeal because the present petition was successive on its face. The respondent also argues that Practice Book § 23-29 permits summary dismissal of a habeas petition and that such a dismissal does not offend state and federal constitutional rights to due process. The respondent further contends that, although the petitioner may have sought different relief from that requested in the first petition, the appeal nevertheless should be dismissed because the remedy that the petitioner seeks, reinstatement of the withdrawn appeal, is not available on the basis of the allegations in the present petition. We agree with the respondent with regard to the last claim and conclude that the petitioner cannot obtain reinstatement of his appeal on the basis of the allegations in the present petition. We therefore dismiss the appeal.

We begin by setting forth the applicable standard of review and procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court's denial of the habeas petition following denial of certification to appeal. In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), we concluded that General Statutes § 52-470(b) ⁹ preventsa reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615-16, 646 A.2d 126 (1994), we incorporated the factors adopted by theUnited States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate "that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (Emphasis in original; internal quotation marks omitted.) Simms v. Warden, supra, 230 Conn. at 616, 646 A.2d 126. A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits. Id. In reaching our decision in the present case, however, we need not decide whether the habeas court abused its discretion in denying certification to appeal because, even if the present petition does not restate the same claim for relief previously rejected in the petitioner's first petition, we nevertheless must conclude, as an alternate ground for affirming the decision of the habeas court, that the petitioner failed to allege a sufficient claim for reinstatement of the withdrawn appeal and, therefore, cannot obtain the relief he requested in the present petition. ¹⁰

We begin with the legal principles that will guide our analysis of the sufficiency of the allegations in the present petition. To obtain relief through a habeas petition,the petitioner must plead facts that, if proven, establish that the petitioner is entitled to relief. "In a writ of habeas corpus alleging illegal confinement the application must set forth specific grounds for the issuance of the writ including the basis for the claim of illegal confinement." Macri v. Hayes, 189 Conn. 566, 568, 456 A.2d 1186 (1983). "[T]he 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.... 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.)...