Kukucka v. Comm'r of Corr.

314 A.3d 631

225 Conn.App. 159

Dale KUKUCKA

v.COMMISSIONER OF CORRECTION

(AC 46059)

Appellate Court of Connecticut.

Argued November 13, 2023

Officially Released April 30, 2024

Vishal K. Garg, assigned counsel, for the appellant (petitioner).

Laurie N. Feldman, assistant state’s attorney, with whom, on the brief, was Angela Macchiarulo, supervisory assistant state’s attorney, for the appellee (respondent).

Elgo, Suarez and Clark, Js.

ELGO, J.

₁₆₁The petitioner, Dale Kukucka, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly denied his freestanding due process claim on the basis of procedural default. Specifically, he argues that the court erroneously concluded that the only way he could overcome procedural default was by showing ineffective assistance of appellate counsel, and, in so concluding, it improperly rejected his claim that he satisfied the cause and prejudice test set forth in Reed v. Ross, 468 U.S. 1, 13–15, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984). We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s claims. As a result of crimes that were committed on October 19, 2013, the petitioner was arrested, charged, and, following a jury trial, ultimately convicted of "strangulation in the first degree in violation of General Statutes § 53a-64aa (a) (1) (B), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1), and assault in the third degree in violation of General Statutes § 53a-61 (a) (1)."¹ State v. Kukucka, 181 Conn. App. ₁₆₂329, 331, 186 A.3d 1171, cert. denied, 329 Conn. 905, 184 A.3d 1216 (2018). On February 17, 2016, the petitioner was sentenced to a total effective sentence of fifteen years of incarceration, execution suspended after ten years, followed by fifteen years of probation. From that judgment of conviction, the petitioner filed a direct appeal with this court on March 28, 2016. In his direct appeal, the petitioner claimed, in part, that the court had improperly "denied his motion to suppress the in-court and out-of-court identifications of him made by a witness to the assault." Id. On August 9, 2016, the Supreme Court decided State v. Dickson, 322 Conn. 410, 141 A.3d 810 (2016), cert. denied, 582 U.S. 922, 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017), which held, inter alia, that, "in cases in which identity is an issue, in-court identifications that are not preceded by a successful identification in a nonsuggestive identification procedure implicate due process principles …." (Footnote omitted.) Id., at 415, 141 A.3d 810. On November 8, 2016, and July 10, 2017, respectively, the petitioner’s appellate counsel filed the principal and reply briefs in his direct appeal. Although counsel alleged due process violations associated with the identification procedure used by the police, they did not raise any claim predicated on Dickson. This court ultimately affirmed the petitioner’s conviction on April 24, 2018. State v. Kukucka, supra, at 356, 186 A.3d 1171.

On August 22, 2017, the petitioner filed a petition for a writ of habeas corpus. On February 2, 2021, the petitioner filed the operative amended petition, which asserted three counts. Count one alleged a due process violation under Dickson, count two alleged ineffective assistance of trial counsel, and count three alleged ineffective assistance of appellate counsel. On March 3, ₁₆₃2021, the respondent, the Commissioner of Correction, filed a return in which he claimed that count one of the operative petition was procedurally defaulted because the petitioner failed to raise the Dickson claim on direct appeal.² The respondent also relied on the fact that Dickson did not apply retroactively. In his reply to the return, the petitioner argued that "[a]ppellate counsel’s ineffective assistance of counsel … as described in count three … caused [the] petitioner not to raise this claim in his direct appeal," and that the timing of Dickson "caused [the petitioner] to forgo a viable suppression motion and appellate claim pursuant to Dickson in all prior litigation relating to the charges and conviction …."

On May 16, 2022, a trial on the petitioner’s operative amended petition for a writ of habeas corpus was held. The court heard testimony from the petitioner, the petitioner’s criminal trial counsel, and a legal expert. No other witnesses were presented. In its October 7, 2022 memorandum of decision, the court concluded, with respect to the alleged due process violation pursuant to Dickson, "the petitioner alleges ineffective assistance of appellate counsel as the cause and prejudice [excusing procedural default], a claim already alleged in count three …. The due process claim in count one need not be separately addressed because it is subsumed within the claim in count three." The court then held that the petitioner had failed to prove ineffective assistance of either trial or appellate counsel. Specifically, as to the claim of ineffective assistance of appellate counsel, the court stated that "the petitioner alleges that [appellate counsel] failed to: identify, raise, litigate, and/or brief a due pro- cess claim under State v. Dickson, [supra, 322 Conn. 410, 141 A.3d 810]," yet, "[n]either appellate counsel ₁₆₄testified and, therefore, it is unknown how they selected issues to raise on appeal. This court must presume in the absence of evidence to the contrary that counsel were … reasonably competent." Accordingly, the court denied the amended petition for a writ of habeas corpus and thereafter granted the petitioner’s petition for certification to appeal. This appeal followed.

On appeal, the petitioner does not challenge the court’s conclusion that he failed to establish ineffective assistance of trial or appellate counsel. Rather, the petitioner claims that the court improperly denied count one of his amended petition because the "court failed to realize that the petitioner had pleaded and argued a second form of cause and prejudice: the unavailability of the legal basis for the claim at the time of [the criminal] trial." Second, as to the failure to raise the Dickson claim during the direct appeal, the petitioner argues that, because Dickson was decided after the direct appeal was filed for his criminal conviction, and because Dickson implicated a due process violation applicable to his case,³ the timing of the release of the Dickson decision independently constituted cause and prejudice sufficient to overcome the defense of procedural default ₁₆₅for failing to raise the claim during the direct appeal. We are not persuaded.

[1] As an initial matter, a habeas court’s conclusion that a petitioner’s claim is barred by the procedural default doctrine involves a question of law over which we exercise plenary review. See Cranford v. Commissioner of Correction, 294 Conn. 165, 174, 982 A.2d 620 (2009); McCarthy v. Commissioner of Correction, 192 Conn. App. 797, 810, 218 A.3d 638 (2019).

[2–5] Under the procedural default doctrine, "a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on direct appeal in the original proceeding and that if the state, in response, alleges that a claimant should be procedurally defaulted from now making the claim, the claimant bears the burden of demonstrating good cause for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure." Hinds v. Commissioner of Correction, 151 Conn. App. 837, 852, 97 A.3d 986 (2014), aff’d, 321 Conn. 56, 136 A.3d 596 (2016). "Although ineffective assistance of counsel … is the most commonly asserted basis for cause to excuse procedural default … it is not the exclusive basis." (Citation omitted.) Saunders v. Commissioner of Correction, 343 Conn. 1, 26, 272 A.3d 169 (2022). "[T]he cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in pursuit of his client’s interests. … [T]he failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the requirement is met." Reed v. Ross, supra, 468 U.S. at 14,104 S.Ct. 2901.

[6] The petitioner is correct insofar that it is possible to show cause independent of an ineffective assistance of counsel claim. As highlighted in Reed, when a constitutional issue is not raised by competent counsel because ₁₆₆it is "reasonably unknown" to counsel, as opposed to being an intentional strategic decision to not raise the claim, then cause may exist to excuse the procedural default. Id. The two issues in this case thus may be distilled to whether (1) Dickson may be applied retroactively to allow a collateral review of claims where judgment has been rendered and (2) the timing of the Dickson decision—which was officially released after the petitioner filed his direct appeal but before any briefs were filed and before oral arguments—satisfies the cause requirement under Reed because the due process claim created by Dickson was "reasonably unknown" to appellate counsel.

I

[7] The petitioner claims that Dickson implicates a due process claim relevant to his conviction, and, because Dickson’s holding did not change the state of the law until after his conviction, there is cause and prejudice under Reed to excuse the procedural default for failing to raise the due process claim during his criminal trial. We disagree.

In Reed, Daniel Ross had been convicted following a jury trial in which the court had charged the jury with instructions that had been in place for more than 100 years, and, on appeal, Ross’ attorney did not contest the propriety of those instructions. Id., at 5-7, 104 S.Ct. 2901. Six years after the conclusion of Ross’ direct appeal, the United States Supreme Court, in Mullaney v. Wilbur, 421...