151 Conn.App. 754
Conn. App. Ct.2014Background
- Jason Day filed a sixth self-represented state habeas petition (Mar. 19, 2012) challenging his convictions for capital felony murder, multiple counts of murder, and assault, asserting prosecutorial improprieties and ineffective assistance of trial counsel.
- The habeas court (Newson, J.) held a § 23-29 hearing and dismissed the petition, ruling prosecutorial-impropriety claims were procedurally defaulted and the ineffective-assistance claims were successive.
- The respondent never filed a return to the sixth petition and therefore did not plead procedural default as an affirmative defense in the return.
- Day sought certification to appeal; the habeas court denied certification and Day appealed the denial to the Appellate Court.
- The Appellate Court reviewed (1) whether denial of certification was an abuse of discretion regarding prosecutorial-impropriety claims (procedural default not pleaded), and (2) whether ineffective-assistance claims were properly dismissed as successive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held | |
|---|---|---|---|---|
| Whether prosecutorial-impropriety claims were properly dismissed as procedurally defaulted | Day: respondent never pleaded procedural default in its return; claims should not be dismissed on that basis | Commissioner: claims were defaulted because not raised earlier | Held: Reversed dismissal as to these claims; respondent waived procedural default by failing to file a return and Day is entitled to an evidentiary hearing | |
| Whether habeas court abused discretion by denying certification to appeal on prosecutorial-impropriety claims | Day: resolution is debatable among jurists; should get review | Commissioner: procedural default barred review | Held: Court found abuse of discretion in denying certification on these claims because procedural default defense was not raised in a return | |
| Whether ineffective-assistance claims were successive and dismissible under Practice Book § 23-29 | Day: claims re: counsel not calling witnesses are new or require hearing to comply with federal exhaustion ruling | Day (conceded in colloquy): primarily raising prosecutorial-misconduct claims in sixth petition | Commissioner: claims repeat prior grounds and no new facts were alleged | Held: Affirmed dismissal as to ineffective-assistance claims — they were successive and not supported by new facts or evidence |
| Whether a prior federal court ruling (dismissal for lack of exhaustion) constitutes new fact/evidence to overcome successive-petition bar | Day: federal ruling requires opportunity to exhaust state remedies; supports hearing | Commissioner: federal ruling is not new fact/evidence under § 23-29 | Held: Rejected — a judicial opinion is not a new fact/evidence to justify successive petition dismissal |
Key Cases Cited
- Simms v. Warden, 229 Conn. 178 (1994) (two-pronged test for appellate review after denial of certification to appeal from habeas dismissal)
- Mejia v. Commissioner of Correction, 98 Conn. App. 180 (2006) (standards on ineffective-assistance review and requirement for evidentiary hearing where state fails to plead procedural default)
- Ankerman v. Commissioner of Correction, 104 Conn. App. 649 (2007) (state must plead procedural default in its return or relinquishes the defense)
- Negron v. Warden, 180 Conn. 153 (1980) (successive petitions that merely reformulate prior claims may be dismissed)