Vena v. Warden, State Prison

• Decision Date: 21 December 1966
• Citation: 225 A.2d 802,154 Conn. 363
• Parties: Louis VENA v. WARDEN, STATE PRISON.
• Court: Connecticut Supreme Court

Page 802

225 A.2d 802

154 Conn. 363

Louis VENA v. WARDEN, STATE PRISON.

Supreme Court of Connecticut.

Dec. 21, 1966.

Igor I. Sikorsky, Jr., Hartford, for appellant (plaintiff).

David B. Salzman, Asst. State's Atty., with whom, on the brief, were George R. Tiernan, State's Atty., and Richard P. Sperandeo, Asst. State's Atty., for appellee (defendant).

Before KING, C.J., and ALCORN, COTTER, THIM and RYAN, JJ.

THIM, Associate Justice.

On July 10, 1964, the plaintiff was convicted of the crimes of burglary and of being a third offender. The plaintiff made no attempt, timely or otherwise, to appeal his conviction.

On May 18, 1965, the plaintiff filed a petition for a writ of habeas corpus. Counsel was appointed to represent him. Practice Book § 472D. On June 21, 1965, an amended petition was filed. This amended petition alleges (1) that trial counsel was forced, over objection, to defend the case with only one day's notice, (2) that the principal evidence admitted at the trial was the product of an illegal search and seizure, and (3) that both the prosecuting attorney and the court commented adversely on the plaintiff's failure to testify. ¹ Affixed to the amended petition were 'exhibits' which consisted of excerpts from the transcripts of the arraignment proceedings and of the trial. There is no indication in the record before us that the plaintiff sought to avail himself of the right to testify at a hearing on his petition. Rather, he apparently relied entirely on the allegations contained in his amended petition and the supporting exhibits. The trial court, however, never reached the merits of the plaintiff's federal constitutional claims. Rather it dismissed the petition, stating that, since there was nothing in the entire record which would explain why the plaintiff had not filed in appeal to this court, habeas corpus could not be used as a substitute for an appeal.

Our cases have enunciated the general proposition that habeas corpus cannot be used as an alternative to an appeal. Perell v. Warden, 113 Conn. 339, 344, 155 A. 221; In re Bion, 59 Conn. 372, 386, 20 A. 662, 11 L.R.A. 694. In Wojculewicz v. Cummings, 143 Conn. 624, 628, 124 A.2d 886, however, although we reaffirmed this traditional common-law limitation on the scope of habeas corpus relief, we pointed out that an exception to this limitation should be made when the conviction which gave rise to the challenged detention was obtained in violation of the petitioner's rights under the federal constitution. Id., 143 Conn. 629, 124 A.2d 886. This exception is in complete harmony with the statutory directive to the court or judge on the habeas corpus proceeding to 'dispose of the case as law and justice require.' General Statutes § 52-470.

It is for the trial court to determine the circumstances under which a judgment may be attacked collaterally on federal constitutional grounds under General Statutes §§ 52-466-52-470 and whether the petitioner, by having failed to assert these claims in accordance with our rules of procedure, has forfeited his right to raise them in a habeas corpus proceeding. In re Shipp, 62 Cal.2d 547, 554, 43 Cal.Rptr. 3, 399 [154 Conn. 366] P.2d 571, cert. denied, Shipp v. Wilson, 382 U.S. 1012, 86 S.Ct. 623, 15 L.Ed.2d 528; Sewell v. Warden, 235 Md 615, 619, 200 A.2d 648. In making this determination, the trial court has 'the obligation to guard, enforce, and protect every right granted or secured by the constitution of the United States.' Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542.

The United States Supreme Court has held that, under 28 U.S.C. § 2254 (1964 Ed.), a judgment of conviction by a state court of a defendant in a case involving a federal constitutional claim may be collaterally attacked in a federal habeas corpus proceeding despite the fact that the defendant failed to pursue his claim by state appellate review. Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 9 L.Ed.2d 837. The court, however, also recognized the authority of a federal judge to deny relief to a prisoner who had deliberately bypassed state procedures. Id., 372 U.S. 439, 83 S.Ct. 822.

We are not compelled, of course, to conform our post-conviction procedure to that of the federal jurisdiction. In re Shipp, supra; Sewell v. Warden, supra. But we reiterate our adherence to our policy which has allowed federal constitutional claims arising our of state court convictions to be presented and determined in our courts. This policy is supported by Fay v. Noia, supra, so far as it relates the circumstances under which a prisoner, who has not appealed his conviction, can still have his federal constitutional claims considered on habeas corpus. We hold, therefore, that a petitioner may collaterally raise federal constitutional claims in a habeas corpus proceeding even though he has failed to appeal his federal constitutional claims directly to us if he alleges and proves, by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal. To be more precise, he must both allege in his petition and prove at the hebeas corpus hearing that he did not 'after consultation with competent counsel or otheriwse, understandingly and knowingly * * * (forego) the privilege of seeking to vindicate...