Smith v. Comm'r of Corr.

187 Conn.App. 857

204 A.3d 55

Devon SMITH

v.COMMISSIONER OF CORRECTION

AC 40747

Appellate Court of Connecticut.

Argued November 13, 2018

Officially released February 19, 2019

Justine F. Miller, assigned counsel, for the appellant (petitioner).

Michele C. Lukban, senior assistant state's attorney, Rocky Hill, with whom, on the brief, were Gail P. Hardy, state's attorney, and Tamara Grosso, assistant state's attorney, for the appellee (respondent).

Keller, Prescott and Pellegrino, Js.

PELLEGRINO, J.

The petitioner, Devon Smith, appeals from the judgment of the habeas court, Prats, J. , rendered when it granted the petitioner's motion to withdraw his petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion because it conditioned the petitioner's withdrawal of his petition to be with prejudice. We disagree and, accordingly, affirm the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. In 1993, following a jury trial, the petitioner was found guilty of murder in violation of General Statutes § 53a-54a and sentenced to sixty years incarceration. State v. Smith , 46 Conn. App. 285, 298, 699 A.2d 250, cert. denied, 243 Conn. 930, 701 A.2d 662 (1997). This court affirmed the petitioner's conviction on direct appeal. Id.

In January, 2011, the petitioner, who was self-represented at the time, filed a habeas petition, which is the subject of this appeal. In the petition, the petitioner alleged, inter alia, that his criminal trial counsel, Kevin Randolph, provided ineffective assistance due to his failure to call a "number of witnesses."¹ The petitioner also represented that he had previously not filed a habeas petition.

On November 21, 2011, the habeas court, Newson, J. , granted the petitioner's motion for the appointment of counsel and appointed Dante Gallucci to represent the petitioner. Gallucci appeared before the habeas court on November 2, 2012, at which time he stated that it was his understanding that the petitioner had "filed a couple of [prior habeas petitions], but he withdrew them." Gallucci also stated: "[The petitioner] hasn't had any kind of substantive habeas on [the 1993] murder [conviction]. He's been involved in other habeas[es] with other cases." In response to Galluci's statements, the clerk of court identified several habeas petitions that the petitioner previously had filed.

On January 11, 2013, the petitioner appeared before the habeas court, Solomon, J. , by videoconference. During that conference, the court asked the petitioner whether he had previously filed habeas petitions and noted that court records indicated that he had filed seven prior habeas petitions. The petitioner then admitted to having filed other petitions involving his 1993 murder conviction but maintained that the issues in the current petition were different from those in the earlier petitions. Ultimately, in a filing dated September 10, 2013, the petitioner acknowledged previously having filed eight habeas actions, seven of which related to the petitioner's 1993 conviction.²

On April 3, 2013, the habeas court issued a scheduling order, in which it set the first day of trial for October 7, 2013. On September 13, 2013, less than a month before trial was scheduled to begin, the petitioner filed a motion requesting a continuance. The habeas court, Newson, J. , granted this motion on September 19, 2013. On September 17, 2013, Gallucci filed a motion to withdraw as the petitioner's counsel, which the habeas court, Bright, J. , granted on September 23, 2013. In October, 2013, Wade Luckett entered an appearance as the petitioner's counsel.

On June 6, 2014, the habeas court issued a new scheduling order, which postponed the start of trial until June 18, 2015. On January 2, 2015, the petitioner, through counsel, filed an amended habeas petition. On June 4, 2015, two weeks before trial, the petitioner again filed a motion to continue the trial date. In support of this motion, the petitioner identified four potential witnesses that he had yet to interview. The habeas court, Oliver, J. , granted the petitioner's motion on June 9, 2015, and subsequently rescheduled the trial for May 26, 2016.

On May 3, 2016, approximately three weeks before the trial was scheduled to begin, the petitioner filed a motion to amend his habeas petition because he had become aware that another witness, "Jesus Rodriguez, would have provided favorable, if not outright exculpatory, testimony on [the petitioner's] behalf ... and was available to testify if he [were] called as a witness." The habeas court granted the petitioner's motion to amend and marked off the trial that had been scheduled to begin on May 26, 2016. The start of trial was then postponed to March 20, 2017. The petitioner filed a third amended habeas petition on March 8, 2017.

On March 15, 2017, five days before trial was scheduled to begin, the petitioner again asked that trial be continued, this time to accommodate two of his witnesses. The habeas court granted this request and rescheduled trial for July 17, 2017. On July 7, 2017, the respondent, the Commissioner of Correction, submitted a witness list for the trial. On July 17, 2017, the petitioner submitted an exhibit, which was marked for identification.

Prior to the commencement of trial on July 17, 2017, Luckett informed the habeas court, Prats, J. , that he was not ready to proceed because the petitioner wanted to withdraw his petition. The habeas court canvassed the petitioner regarding his desire to withdraw and informed him that if he withdrew his petition, it would be with prejudice, meaning he would be unable to raise the same claims in a subsequent habeas petition. In response, the petitioner stated that he had made the decision to withdraw the pending petition freely and voluntarily.

The petitioner also stated that it was his understanding that he "could withdraw the habeas at any time prior to a hearing" without consequence. The court explained that the petitioner could withdraw his petition, but also stated: "[I]f you try to raise a new habeas in the future, there will be objection from the respondent in this case ... we're on the eve of trial today. We have witnesses who have been subpoenaed for today. This case goes back six years .... [Present] [c]ounsel has been involved ... since 2013. It's been scheduled for trial. There [have] been continuances.

"All of what has been done between now and then with a full opportunity to be heard. So just withdrawing it with the hope that later on you're going to file another [petition] with the same claims would not be appropriate. Do you understand? And it's going to meet objection, and if the court accepts your withdrawal today, it would be with prejudice, meaning that it would bar you from raising these claims [in the future]."

Luckett acknowledged that exhibits had been marked and witnesses had been subpoenaed and were present. He argued, however, that the petitioner should be permitted to withdraw his petition without prejudice because evidence had not yet been presented and because the petitioner's claims in the petition at issue had never been fully litigated. Additionally, Luckett asserted that a withdrawal without prejudice was warranted because there were potential witnesses whom the petitioner had been unable to locate, including Rodriguez. Luckett argued that Rodriguez was expected to provide exculpatory testimony and that he had hired several investigators to find Rodriguez, but that they had been unable to do so.

The habeas court told the petitioner that if he started trial that day it would grant the petitioner another day of trial in the future, which would allow the petitioner to continue to search for Rodriguez and the other witnesses whom the petitioner had been unable to locate. The habeas court reiterated that if the petitioner withdrew his petition, it would be with prejudice. Luckett stated that he was ready to begin trial that day but that he would let the petitioner make the ultimate decision regarding withdrawal.

The habeas court again canvassed the petitioner, stating: "[I]f I grant the withdrawal, just for the record, I want to be very clear that the court is going to do it with prejudice, and that later on, if you try to raise the same basis, there's going to be a very strong objection, and you're possibly going to be barred from raising this claim again. You understand that?" The petitioner responded: "I'll take my chances. Rather [not] have a hearing today and lose with certainty." The petitioner subsequently signed a withdrawal form that contained the notation, "withdrawal w[ith] prejudice accepted ... after canvass on the record." Thereafter, the petitioner filed a motion to reconsider, which the habeas court denied on July 28, 2017. The petitioner then filed a petition for certification to appeal the decision, which the habeas court granted on July 28, 2017. This appeal followed.

On appeal, the petitioner claims that the habeas court abused its discretion by stating that it would permit him to withdraw his petition only if it was with prejudice to filing a later petition raising the same claims. Specifically, the petitioner claims that the circumstances of the present case are not similar to those in which a court may order that a petition be withdrawn with prejudice. The respondent argues that the habeas court did not abuse its discretion because "the matter had been pending since 2011; counsel had made diligent efforts to locate desired witnesses; trial had been continued at least three times ... trial was scheduled to begin that day; subpoenaed witnesses were present ... exhibits had been marked; [the] petitioner's counsel was ready to proceed; the habeas court informed the petitioner that if he proceeded with trial as scheduled, it would schedule a second trial day; and, a withdrawal with prejudice is entirely consistent with our habeas jurisprudence." We agree with the...