Kendall v. Comm'r of Corr.

CourtAppellate Court of Connecticut
Citation162 Conn.App. 23,130 A.3d 268
Decision Date22 December 2015
Docket NumberNo. 36698.,36698.

162 Conn.App. 23
130 A.3d 268


No. 36698.

Appellate Court of Connecticut.

Argued Sept. 11, 2015.
Decided Dec. 22, 2015.

130 A.3d 270

Stephanie L. Evans, assigned counsel, for the appellant (petitioner).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Susann E. Gill, supervisory assistant state's attorney, and Erika L. Brookman, assistant state's attorney, for the appellee (respondent).


130 A.3d 271


162 Conn.App. 24

The petitioner, Michael Kendall, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On

162 Conn.App. 25

appeal, the petitioner claims that the court erred when it denied his request to withdraw his petition without prejudice. We agree with the petitioner and, accordingly, reverse the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. Following a jury trial, the petitioner was found guilty of two counts of capital felony, three counts of murder, and one count of arson in the first degree. He was sentenced to life imprisonment without the possibility of release and a consecutive twenty-five year term on the arson charge. This court affirmed the petitioner's conviction on direct appeal. See State v. Kendall, 123 Conn.App. 625, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).

On December 13, 2010, the petitioner filed an application for a writ of habeas corpus. On September 22, 2011, the petitioner moved for appointment of counsel, which was granted on October 11, 2011. Subsequent to the appointment of counsel, the petitioner amended his petition on several occasions, with the most recent petition filed on November 29, 2013. The grounds asserted in the operative petition are ineffective assistance of trial counsel, a violation of the petitioner's constitutional right to confrontation, and the trial court's failure to instruct the jury on the petitioner's mental capacity. The respondent, the Commissioner of Correction (commissioner), filed a return to this amended petition on December 9, 2013, to which the petitioner replied on December 10, 2013. No motion to dismiss pursuant to Practice Book § 23–29 or motion for summary judgment pursuant to Practice Book § 23–37 was filed prior to the commencement of the habeas trial.

This case originally was scheduled for trial on January 23, 2013. On October 2, 2012, the petitioner moved for a continuance, which was granted on October 11, 2012. Subsequently, the case was rescheduled for

162 Conn.App. 26

December 10 and 11, 2013. Each scheduling order contained language warning that any withdrawals should be filed no later than one week before the trial date and that any party attempting to withdraw after that date would be required to show cause why his case should not be "dismissed with prejudice."

On December 10, 2013, the day that the habeas court, Sferrazza, J., was scheduled to hear this matter, but prior to Judge Sferrazza's taking the bench, the habeas counsel for the petitioner, Peter Tsimbidaros, informed the court in chambers that the petitioner wished to address the court directly. After Judge Sferrazza took the bench, habeas counsel explained that the particular matter concerned "a typewritten pro se motion" that the petitioner purportedly had mailed to the court.1 Addressing the court, the petitioner argued that he believed a conflict of interest existed between

130 A.3d 272

habeas counsel and himself; therefore, he requested that the court appoint different counsel for him and grant him a continuance. After allowing habeas counsel to respond to the petitioner's accusations, which counsel denied, the trial court denied the oral motion.

Immediately following the denial of his oral motion, habeas counsel informed the court that the petitioner did not want to proceed. When the court inquired if the petitioner wanted to withdraw his petition, the petitioner responded: "I prefer to go on the record and

162 Conn.App. 27

continue with the petition on the conflict, but you said there's no conflict of interest." The court restated that there was no conflict of interest. It also stated, both on its own and in a subsequent response to the petitioner's direct question, that it would allow a withdrawal of the petition, but only with prejudice, and explained the consequences of such a withdrawal. The petitioner's habeas counsel then proceeded to call the petitioner as his first witness, and the petitioner indicated prior to being placed under oath that he did not "want to go forward with this at all."

After being placed under oath, the petitioner was asked two questions concerning the identity of the attorneys who had represented him during his criminal trial, which he answered. The petitioner then restated that he was uncomfortable proceeding with his petition. The court responded: "Well, your only options are to go forward with the trial today, or withdraw it with prejudice...." At this point, habeas counsel objected to a withdrawal being entered with prejudice. The court inquired further whether the petitioner wished to proceed with this matter, reiterated a final time that any withdrawal would be with prejudice, and informed him of the consequences of not testifying at the hearing. Habeas counsel again interjected, seeking to state more clearly the basis for his objection. Noting that the record had been made, the court articulated its position as to why it would only grant a withdrawal with prejudice and stated, "that's the ruling of the court." After inquiring one last time whether the petitioner intended to testify, to which the petitioner responded that he did not, the court excused the petitioner from the witness stand.

Following the court's excusal of the petitioner from the witness stand, habeas counsel moved to admit a number of exhibits, all of which were admitted, and called to the witness stand one of the attorneys who

162 Conn.App. 28

represented the petitioner. No additional witnesses were called by either side.

On March 11, 2014, the trial court issued its memorandum of decision denying the amended petition. In relevant part, the court addressed in greater depth its ruling on the petitioner's request to withdraw his petition. After briefly recounting the facts concerning the hearing, including that the attorneys for both parties were ready to proceed and that there already had been a delay of eleven months, the court held that it did not permit the withdrawal without prejudice because "the petitioner's habeas hearing [had] commenced for purposes of [General Statutes] § 52–80 when the court took the bench to hear evidence on the date and time assigned." Certification was granted for this appeal on March 19, 2014, and this appeal followed.

We begin by setting out the standards of review governing this appeal. The decision by a habeas court to condition a withdrawal of a habeas petition on that withdrawal being "with prejudice" is, when authorized, a decision left to that court's discretion. See Mozell v. Commissioner of Correction, 147 Conn.App. 748, 759–60, 83 A.3d 1174, cert. denied,

130 A.3d 273

311 Conn. 928, 86 A.3d 1057 (2014). The determination of when § 52–80 requires the permission of the court before a petitioner may withdraw his petition, however, involves a question of statutory construction. "[I]ssues of statutory construction raise questions of law, over which we exercise plenary review." (Internal quotation marks omitted.) Cruz v. Montanez, 294 Conn. 357, 367, 984 A.2d 705 (2009) ; see also Crawford v. Commissioner of Correction, 294 Conn. 165, 174, 982 A.2d 620 (2009) (determinations of law in habeas proceedings receive plenary review).

Section 52–80 provides in relevant part: "The plaintiff may withdraw any action ... before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such

162 Conn.App. 29

action, the plaintiff may withdraw such action ... only by leave of court for cause shown." "If the requisite hearing has not commenced, then the plaintiff's right to withdraw is absolute and unconditional.... If, however, a hearing on an issue of fact has commenced, then, the action can not be withdrawn without the court's permission." (Citation omitted; internal quotation marks omitted.) Melendez v. Commissioner of Correction, 141 Conn.App. 836, 843, 62 A.3d 629, cert. denied, 310 Conn. 921, 77 A.3d 143 (2013). Similarly, although "[a] plaintiff is generally empowered, though not without limitation, to withdraw a complaint before commencement of a hearing on the merits ... [a] plaintiff is not entitled to withdraw a...

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  • Boria v. Comm'r of Corr., AC 39715
    • United States
    • Appellate Court of Connecticut
    • 4 Diciembre 2018 the more specific rules pertaining to habeas actions." (Internal quotation marks omitted.) Kendall v. Commissioner of Correction , 162 Conn. App. 23, 45, 130 A.3d 268 (2015).9 186 Conn.App. 361Chapter 11 of the Practice Book, which relates to civil matters generally, provides for notice ......
  • Marra v. Comm'r of Corr., AC 38033
    • United States
    • Appellate Court of Connecticut
    • 4 Julio 2017 hearing on the merits had commenced pursuant to General Statutes § 52–80 as interpreted by Kendall v. Commissioner of Correction , 162 Conn.App. 23, 130 A.3d 268 (2015). In response, the respondent contends that the previous ruling in the CV–05 action was permissible because Kendall is d......
  • Bowens v. Warden, State Prison, CV144006577S
    • United States
    • Superior Court of Connecticut
    • 7 Septiembre 2017
    ...a withdrawal of a habeas claim, before the taking of evidence begins, is with prejudice or otherwise. In Kendall v. Commissioner, 162 Conn.App. 23, 130 A.3d 268 (2015), the Appellate Court held that General Statutes § 52-80 applies and that a habeas petitioner has the right to withdraw a cl......
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    • United States
    • Supreme Court of Connecticut
    • 4 Octubre 2022 the more specific rules pertaining to habeas actions." (Internal quotation marks omitted.) Kendall v. Commissioner of Correction , 162 Conn. App. 23, 45, 130 A.3d 268 (2015). Because the rules pertaining to habeas actions do not provide a more specific rule, I look to the broader Practic......
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