Lozada v. Warden, State Prison

Decision Date01 September 1992
Docket NumberNo. 14359,14359
Citation223 Conn. 834,613 A.2d 818
CourtConnecticut Supreme Court
PartiesAnthony LOZADA v. WARDEN, STATE PRISON.

James M. Ralls, Asst. State's Atty., with whom, on the brief, was Edward Ricciardi, Asst. State's Atty., for appellant (respondent).

James J. Ruane, Special Public Defender, for appellee (petitioner).

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

BERDON, Associate Justice.

The sole issue certified in this appeal is whether the Appellate Court was correct in concluding that the petitioner, Anthony Lozada, who had been convicted of a crime, was entitled to seek a writ of habeas corpus on the ground that his court appointed attorney in a previous habeas corpus proceeding had rendered ineffective assistance of counsel. Lozada v. Warden, 24 Conn.App. 723, 591 A.2d 1272 (1991). Addressing this issue, the respondent, the warden of the state prison, raises the following arguments: (1) there is no statutory right to effective assistance of habeas counsel; (2) the writ of habeas corpus is not an available remedy for ineffective assistance of habeas counsel; and (3) relitigation is barred on the grounds of res judicata. We affirm the judgment of the Appellate Court.

The petitioner pleaded guilty to the crime of felony murder in violation of General Statutes § 53a-54c 1 and, on December 9, 1983, the trial court, DeMayo, J., sentenced him to imprisonment for a term of twenty-five years. On October 1, 1984, the petitioner filed his first petition for habeas corpus claiming ineffective assistance of trial counsel. He alleged that his trial counsel had been ineffective because he had failed: (1) to conduct an adequate investigation in order to establish the defense of intoxication; (2) to file a motion challenging the validity of the petitioner's confession; and (3) to consult with the petitioner and advise him of his rights. After a hearing, the habeas court, Kaplan, J., dismissed the petition because the petitioner had failed to prove his allegations. An appeal from that dismissal was taken to the Appellate Court, which was dismissed on June 2, 1988, due to the petitioner's failure to file his pro se brief.

On September 22, 1989, the petitioner filed a second petition for habeas corpus claiming ineffective assistance of habeas counsel. 2 The petitioner, in that petition, alleged that counsel at his first habeas hearing was ineffective because he had failed: (1) to depose or interview trial counsel; (2) to examine adequately trial counsel at the habeas hearing; (3) to develop adequately the facts at his trial; and (4) to develop his case and to interview witnesses regarding his criminal case. 3 The court, acting on a motion filed by the respondent, 4 quashed the petition pursuant to Practice Book § 532 5 because, the court concluded, the petitioner could not challenge the effectiveness of habeas counsel through a second writ of habeas corpus. In the alternative, the court dismissed the petition pursuant to Practice Book § 531 6 because the petition was based on the same grounds as the first habeas petition.

The Appellate Court reversed, concluding that the petitioner could seek a writ of habeas corpus on the grounds of ineffective assistance of habeas counsel. Lozada v. Warden, supra, at 729, 591 A.2d 1272. We granted certification to appeal on the following question: "Was the Appellate Court correct in concluding that the petitioner was entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance of counsel?" Lozada v. Warden, 220 Conn. 907, 597 A.2d 334 (1992). We agree with the Appellate Court.

I

The crux of the respondent's appeal is that there is no right to effective assistance of habeas counsel because there is no statutory reference to the qualifications of counsel and, therefore, no remedy is available should counsel prove ineffective. We disagree.

The right to effective assistance of counsel is predicated on the statutory right to habeas counsel pursuant to General Statutes § 51-296, 7 which provides for the appointment of counsel for an indigent person "in any habeas corpus proceeding arising from a criminal matter...." It would be absurd to have the right to appointed counsel who is not required to be competent. "[C]ounsel should be appointed in post conviction matters.... When counsel is so appointed he must be effective and competent. Otherwise, the appointment is a useless formality." Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir.1965); see United States v. Wren, 682 F.Supp. 1237, 1241-42 (S.D.Ga.1988) (an indigent federal probationer's statutory right to appointed counsel at a probation revocation hearing under 18 U.S.C. § 3006A(a)(1)(C) "would be meaningless if it did not embody a requirement that counsel be effective as well as merely present"). Indeed, § 51-296 would become an empty shell if it did not embrace the right to have the assistance of a competent attorney.

Although cloaked in constitutional garb, the reasoning and logic of State v. Anonymous, 179 Conn. 155, 425 A.2d 939 (1979), is persuasive. In that case, which involved the termination of parental rights, we held that "[w]here, however, as here, a statute ... or practice book rule ... mandates the assistance of counsel, it is implicit that this means competent counsel." Id., at 160, 425 A.2d 939; see In re Alexander V., 223 Conn. 557, 569-70, 613 A.2d 780 (1992). Accordingly, we agree with the Appellate Court and reject this claim by the respondent.

II

The respondent next argues that because the petitioner predicates his claim solely on the statutory right to counsel, the remedy of habeas corpus is not available. 8 In other words, the respondent claims that the writ of habeas corpus is reserved solely for claims arising under the constitution. We disagree.

We have held that the writ of habeas corpus is available as a remedy for a "miscarriage of justice or other prejudice." D'Amico v. Manson, 193 Conn. 144, 156, 476 A.2d 543 (1984); see Delevieleuse v. Manson, 184 Conn. 434, 439 A.2d 1055 (1981) (review through a petition for habeas corpus the statutory right to appropriate "jail credit"). As this court stated in Bunkley v. Commissioner of Correction, 222 Conn. 444, 460-61, 610 A.2d 598 (1992), the "principal purpose of the writ of habeas corpus is to serve as 'a bulwark against convictions that violate "fundamental fairness." ' Engle v. Isaac, 456 U.S. 107, 126, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783 [reh. denied, 456 U.S. 1001, 102 S.Ct. 2286, 73 L.Ed.2d 1296] (1982), quoting Wainwright v. Sykes, 433 U.S. 72, 97, 97 S.Ct. 2497, 2511-12, 53 L.Ed.2d 594 (1977) (Stevens, J., concurring). This court has taken the same view. 'To mount a successful collateral attack on his conviction a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962).' D'Amico v. Manson, [supra, 193 Conn. at 156-57, 476 A.2d 543]; see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989)." Indeed, just recently this court, in Safford v. Warden, 223 Conn. 180, 191 n. 13, 612 A.2d 1161 (1992), put the issue to rest when it recognized that the great writ of liberty is not a remedy for constitutional violations exclusively, albeit most cases in which the remedy has been applied involve issues of fundamental fairness that implicate constitutional rights. Surely, fundamental fairness opens the door for relief by habeas corpus when the state, in discharging its statutory duty, appoints incompetent counsel.

Furthermore, the statutory right to competent trial counsel; Aillon v. Meachum, 211 Conn. 352, 559 A.2d 206 (1989); and appellate counsel; Valeriano v. Bronson, 209 Conn. 75, 546 A.2d 1380 (1988); under § 51-296, has been the subject of habeas corpus proceedings on numerous occasions. See, e.g., Bunkley v. Commissioner of Correction, supra; Fair v. Warden, 211 Conn. 398, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct. 512, 107 L.Ed.2d 514 (1989). The procedure for testing the competency of appointed counsel under § 51-296--whether it be trial or appellate- --by way of habeas corpus proceedings is so embedded in our jurisprudence that its availability is now beyond debate. Indeed, in State v. Leecan, 198 Conn. 517, 542, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986), we held that the claim of ineffective assistance of counsel must be resolved in a habeas corpus proceeding. Accordingly, we reject the respondent's argument that nonconstitutional claims cannot be raised and remedied by way of habeas corpus proceedings.

The respondent also argues that the writ is available only to attack the validity of the underlying criminal judgment or to challenge a wrongful confinement. See 1 Z. Swift, A Digest of the Laws of Connecticut (1862) c. XI, § IV, p. 581 (a writ of habeas corpus could be granted "in all cases where any person is restrained of his liberty by imprisonment ... by any process or way not warranted by law; or when he is unlawfully confined, or wrongly deprived of his liberty by a private person"); 3 W. Blackstone, Commentaries on the Laws of England (1898) § 4, p. 1127 (writ of habeas corpus remedy for "all manner of illegal confinement"). The writ of habeas corpus, as it is employed in the twentieth century, however, does not focus solely upon a direct attack on the underlying judgment or upon release from confinement. See, e.g., Gaines v. Manson, 94 Conn. 510, 481 A.2d 1084 (1984) (undue appellate delay); Arey v. Warden, 187 Conn. 324, 445 A.2d 916 (1982) (conditions of confinement); Roque v. Warden, 181 Conn. 85, 434 A.2d 348 (1980) (first amendment issues); Negron v....

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