Milner v. Commissioner of Correction

• Decision Date: 19 June 2001
• Docket Number: (AC 19130)
• Citation: 63 Conn. App. 726,779 A.2d 156
• Court: Connecticut Court of Appeals
• Parties: CLINTON MILNER v. COMMISSIONER OF CORRECTION

63 Conn. App. 726

779 A.2d 156

CLINTON MILNER v. COMMISSIONER OF CORRECTION

(AC 19130)

Appellate Court of Connecticut.

Argued October 24, 2000.

Officially released June 19, 2001.

Mihalakos, Pellegrino and Peters, Js. Adam A. Laben, special public defender, with whom, on the brief, was Denise Ansell, special public defender, for the appellant (petitioner).

Margaret Gaffney Radionovas, assistant state's attorney, with whom, on the brief, were Patricia A. Swords, state's attorney, and Carl E. Taylor, supervisory assistant state's attorney, for the appellee (respondent).

Opinion

PELLEGRINO, J.

The petitioner, Clinton Milner, appeals from the judgment dismissing his petition for a writ of habeas corpus following his conviction, after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the petitioner claims that the habeas court improperly concluded that (1) his right to due process was not violated by the state's failure to conduct more specific and timely testing of blood evidence and (2) he was not denied effective assistance of counsel.¹ We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of this appeal. In 1984, at the murder trial, the state presented circumstantial evidence that the petitioner had murdered Susan Kennedy. Susie Jackson testified that she saw the petitioner, who was wearing a red T-shirt and blue jeans, and who had been carrying a knife, during the hours immediately preceding Kennedy's murder. Paul Cooper, Laurie Philbrick and William Campbell testified that they had witnessed a man, fitting the petitioner's description, wearing a red T-shirt, blue jeans and sneakers at the scene of the crime or in its immediate vicinity. Furthermore, Barbara Floyd, Santo Biondo, Felix Acevedo, Carolyn Hatchett and Henry Ellis testified that they had observed the petitioner, who was wearing a red T-shirt, blue pants and sneakers, running away from the murder scene shortly after the crime was committed. Subsequent to the murder, while the petitioner was being held at the Hartford Correctional Center, he told fellow inmates Carl Blair and Edward Watts that he had committed the murder.

The petitioner was convicted of having murdered Kennedy. The judgment of conviction was affirmed on direct appeal. State v. Milner, 206 Conn. 512, 539 A.2d 80 (1988). In his direct appeal to our Supreme Court, the petitioner did not challenge the sufficiency of the evidence against him. The petitioner commenced this habeas corpus proceeding on February 27, 1991.

The following additional findings of fact by the habeas court are relevant to our disposition of this appeal. Both the victim and Robert Torres, an initial suspect, have type O blood.² The petitioner has type B blood. The knife used to commit the murder was covered with type O blood. Water taken from the kitchen sink trap in Torres' apartment indicated the presence of blood and other human body fluids. The blood type, however, could not be identified because the blood was mixed with water. Both type O and type B blood were found on the victim's clothing. Scrapings under the victim's unbroken fingernails indicated the presence of type O blood. The court also found that isoenzyme testing was not performed until approximately eleven months after the crime was committed and, therefore, the results were inconclusive.³

Testimony given at the habeas hearing indicated that in 1984, ABO typing and isoenzyme testing were the only tests available to analyze blood samples. Unlike isoenzyme testing, ABO typing can differentiate between types of blood, but cannot distinguish between donors. The habeas court also found that isoenzyme testing is of value only on fresh bloodstains and that dried blood samples may provide no useful information or, in some cases, misinformation. Enzyme testing of blood samples will not pinpoint the actual donor of blood, but it can exclude a certain percentage of the population. Furthermore, the accuracy of isoenzyme testing deteriorates according to the age and the conditions of the storage of the sample. Therefore, the habeas court concluded that "it is possible that, if the testing had been done at a time shortly after the samples were collected at the scene, they may have excluded the petitioner as the donor. Equally possible, however, is that such testing may have yielded no results or even misinformation."

On November 25, 1998, the court filed a memorandum of decision, rejecting the petitioner's claims and denying his petition for a writ of corpus. In its well reasoned memorandum of decision, the court concluded that the strong and persuasive circumstantial evidence presented at the criminal trial precluded the unlikely possibility that had isoenzyme blood testing been performed in August, 1984, it would have produced exculpatory evidence. The court on December 10, 1998, granted the petitioner's petition for certification to appeal. Thereafter, the petitioner timely filed this appeal.

I

Before we address the merits of the petitioner's claims, we must first determine whether the habeas court properly found that the state failed to raise the defense of procedural default in a timely manner, which eliminated the petitioner's obligation in the present habeas action to prove cause and prejudice before pursuing claims that were not raised on direct appeal. The petitioner has raised, in the present appeal, a constitutional claim that he did not bring in his direct appeal from the judgment of conviction. See id. Generally, "[b]ecause habeas corpus proceedings are not an additional forum for asserting claims that should properly be raised at trial or in a direct appeal, a petitioner must meet the `cause and prejudice' standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), for determining the reviewability of habeas claims that were not properly pursued on direct appeal. See Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993)." Tillman v. Commissioner of Correction, 54 Conn. App. 749, 755, 738 A.2d 208, cert. denied, 251 Conn. 913, 739 A.2d 1250 (1999).

It is clear that the petitioner bears the burden of proof to establish cause and prejudice. "Unless the petitioners can satisfy that standard, they are not entitled to review of their claims on the merits." Johnson v. Commissioner of Correction, 218 Conn. 403, 419, 589 A.2d 1214 (1991). It is not so clear, however, as to which party has the burden of raising the issue of the petitioner's procedural default and as to how the issue should properly be raised.⁴

In the present case, the habeas court found that the petitioner was relieved of his burden of showing cause and prejudice because the state had failed to raise the petitioner's procedural default as a defense. The court based its decision on Practice Book § 23-30 (b), which requires the respondent to raise as a defense any procedural default in its return.⁵ After finding that the state had failed to raise the defense of procedural default, the court concluded that the petitioner was not required to show cause and prejudice. Accordingly, the court considered the petitioner's constitutional claims.

We first note that there is no Connecticut appellate authority that has squarely determined which party bears the initial burden of raising procedural default in a habeas action before the petitioner must establish cause and prejudice. Accordingly, we look to the case law of our federal and sister jurisdictions for guidance. In Trest v. Cain, 522 U.S. 87, 89, 118 S. Ct. 478, 139 L. Ed. 2d 444 (1997), the United States Supreme Court stated⁶ that "procedural default is normally a defense that the State is obligated to raise and preserv[e] if it is not to lose the right to assert the defense thereafter. Gray v. Netherland, 518 U.S. 152, 166 [116 S. Ct. 2074, 135 L. Ed. 2d 457] (1996); see Jenkins v. Anderson, 447 U.S. 231, 234 n.1 [100 S. Ct. 2124, 65 L. Ed. 2d 86] (1980). We are not aware of any precedent stating that a habeas court must raise such a matter where the State itself does not do so." (Emphasis in original; internal quotation marks omitted.) Furthermore, in Gray v. Netherland, supra, 166, the court stated that, had the petitioner's claim been heard in a previous appeal, "the [state] would have been obligated to raise procedural default as a defense, or lose the right to assert the defense thereafter." In United States v. Canady, 126 F.3d 352, 359-60 (2d Cir. 1997), cert. denied, 522 U.S. 1134, 118 S. Ct. 1092, 140 L. Ed. 2d 148 (1998), the United States Court of Appeals for the Second Circuit refused to consider the government's defense of procedural default because the government had failed to raise it originally in the United States District Court. Although none of the previously cited cases held that the state must first plead the petitioner's procedural default before the petitioner is required to show cause and prejudice, the principles they advance, albeit in dicta, are instructive to our analysis.

Commentators on federal habeas practice have stated that petitioners "generally need not raise waiver and procedural default matter in their initial pleading and briefs, because the burden to raise and prove those defenses is on the state." 1 J. Liebman, Federal Habeas Corpus Practice & Procedure (1988) § 24.5 (e), p. 361. "If the state fails to apprise the federal courts in a timely fashion of a state procedural bar, the procedural default rule does not bar federal habeas corpus relief." 2 J. Liebman & R. Hertz, Federal Habeas Corpus Practice & Procedure (3d Ed. 1998) § 26.2 (a), pp. 1043-44 & n.2.

That view also is supported by Engle v. Isaac, 456 U.S. 107, 124-25 n.26, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982), in which the United States Supreme Court stated that "[i]n some cases a State's plea of default may come too late to bar consideration of the prisoner's constitutional...