Khuth v. State

Channy Nee KHUTH v. STATE of Connecticut et al.

No. DBDCV195014581S

Superior Court of Connecticut, Judicial District of Danbury, Danbury

October 10, 2019

UNPUBLISHED OPINION

OPINION

D’Andrea, Robert A., Judge.

The plaintiff, Channy Nee Khuth ("plaintiff"), filed a petition for new trial, pursuant to General Statutes § § 52-270 and 52-582(b), and Practice Book § 42-55, dated November 21, 2018, based on newly discovered scientific evidence and social science evidence, which plaintiff claims recognizes that eighteen-year-old individual should be treated differently from mature adults. The plaintiff also requests that the court appoint counsel to represent him in his petition for a new trial, which this court has issued a separate memorandum of decision. The defendants here are the State of Connecticut State’s Attorney for the Judicial District of Danbury, the Chief State’s Attorney’s Office, and the Attorney General Office State of Connecticut ("defendants"). Pursuant to Practice Book § 10-30 the defendants filed a motion to dismiss the petition for a new trial dated April 2, 2019, moving to dismiss the complaint against them, as the defendants claim that the court lacks subject matter jurisdiction because the petition is untimely, as it was filed beyond the three-year statute of limitations, and the petition fails to state a claim upon which relief may be granted. The plaintiff filed no response to defendants’ motion to dismiss, however, as the defendant is a self-represented incarcerated individual, the court will draw whatever favorable inferences it can in favor of the plaintiff in response to the motion to dismiss.

FACTS

On November 21, 2018, the plaintiff filed a petition for a new trial, pursuant to General Statutes § § 52-270 and 52-582(b) and Practice Book § 42-55, regarding what he alleges is newly discovered "scientific" evidence, including "scientific knowledge," which he alleges includes knowledge of the general scientific community and fields of scientific knowledge upon which those fields or disciplines rely. Plaintiff further alleges that § 52-582 and Senate Bill 504 allows for additional exceptions to the three-year statute of limitation for petitioning for a new trial, and in addition, to allow for appointment of counsel pursuant to § 51-296. As part of his service of the summons and complaint, the plaintiff served the State of Connecticut State’s Attorney for the Judicial District of Danbury, the Chief State’s Attorney’s Office, and the Attorney General Office State of Connecticut.

By way of background, the plaintiff is a sentenced prisoner, serving a long sentence for several charges. On August 4, 2004, the plaintiff and others were involved in an attack on two young men, causing serious injuries to both. In 2005, the plaintiff was convicted after trial of assault in the first degree, in violation of General Statutes § 53a-59(a)(4), conspiracy to commit assault in the first degree in violation of General Statutes § § 53a-48 and 53a-59(a)(4) and two counts of assault in the first degree as an accessory, in violation of General Statutes § § 53a-8 and 53a-59(a)(4). The plaintiff was sentenced by the trial court, Schuman, J., to a net effective sentence of thirty years’ incarceration followed by five years of probation. The matter was heard by the court on two occasions, where the defendant participated on said occasions via video conferencing from the corrections center where he is serving his sentence.

LEGAL STANDARD

Any defendant wishing to contest the court’s jurisdiction may do so by filing a motion to dismiss. Practice Book. § 10-30. The determination of whether a trial court has subject matter jurisdiction is a question of law. Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003); Martinez v. Dept. of Public Safety, 263 Conn. 74, 81, 818 A.2d 758 (2003). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ..." (Internal quotation marks omitted; citations omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).

Ordinarily, a statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, "[when] ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation ... but rather is a limitation on the liability itself, and not of the remedy alone ... [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time ... and may not be waived." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).

Occasionally, our Appellate Court has stated that in the context of statutes that create rights of action that are unavailable at common law, it is proper for parties to raise a statute of limitations issue in a motion to strike. See, e.g., Greco v. United Technologies Corp., 277 Conn. 337, 344-45 n.12, 890 A.2d 1269 ("It is undisputed that the defendants properly raised the limitation period of § 52-555 in a motion to strike."); Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (citing this circumstance as one of "two limited circumstances" in which it would "allow the use of a motion to strike"). It is permissible to raise this issue in a motion to strike, but because it is an issue of subject matter jurisdiction, courts should apply the procedural law applicable to motions to dismiss. See, e.g., Ecker v. West Hartford, 205 Conn. 219, 231-32, 245, 530 A.2d 1056 (1987) (court erred by refusing to dismiss action for lack of subject matter jurisdiction); Diamond National Corp. v. Dwelle, 164 Conn. 540, 545-47, 325 A.2d 259 (1973) (court properly raised issue sua sponte as issue of subject matter jurisdiction).

DEFENDANTS’ POSITION

Pursuant to Practice Book § 10-30, the defendants respectfully move to dismiss the complaint against them on the ground that the court lacks subject matter jurisdiction because the petition is untimely, as it was filed beyond the three-year statute of limitations, and the petition fails to state a claim upon which relief may be granted. The petitioner points to a 2018 ruling by the Honorable Janet C. Hall, United States District Judge in the matter of Luis Noel Cruz v. United States of America, Docket No. 3:11-CV-00787-JCH (D.Conn.). The petitioner in that case argued that his sentence of life imprisonment without the possibility of parole for a gang-related murder violates the rule announced in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Miller examined sentencing schemes that "requir[ed] that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and nature of their crimes." Id., 489. The Supreme Court thus held that "the mandatory sentencing schemes before us violate [the] principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment." Each offender in Miller was fourteen years old. Here the plaintiff was eighteen. Judge Hall concluded that: "[T]he hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds. As such, the penological rationales for imposing mandatory life imprisonment without the possibility of parole cannot be used as justification when applied to an 18-year-old." Miller at 4. The plaintiff at bar asks this Court for a new trial because, he claims, when viewed through this same lens, "the outcome of [his] trial and sentence would [have] been different."

A petition for new trial filed beyond the time prescribed by statute must be dismissed. The instant petition was filed beyond General Statutes § 52-270(a) provides that the court may grant a new trial in any case due to the discovery of new evidence. However, General Statutes § 52-582(a) provides that: "No petition for a new trial in ... criminal proceeding shall be brought but within three years next after rending of the judgment ... except that a petition for a new trial based on ... newly discovered evidence ... that was not ... available at the time of the original trial or at the time of any previous petition ... may be brought at any time...