162 Conn.App. 23
Conn. App. Ct.2015Background
- Petitioner Michael Kendall, serving life plus a consecutive term after convictions affirmed on direct appeal, filed a habeas petition alleging ineffective assistance, Confrontation Clause and jury instruction defects.
- The habeas trial was scheduled for December 10, 2013; counsel was appointed and multiple amended petitions had been filed; no pretrial §23-29 or §23-37 motions were pending.
- On the morning of trial, Kendall told the court he believed counsel had a conflict and sought new counsel or a continuance; the court denied that request.
- Immediately after, Kendall (through counsel) sought to withdraw his habeas petition; the court allowed withdrawal only "with prejudice" and explained consequences, despite no evidence or merits argument having yet been presented.
- The habeas court later denied the amended petition and held the hearing had "commenced" when the judge took the bench, requiring leave to withdraw without prejudice; Kendall appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a petitioner may unilaterally withdraw a habeas petition without prejudice once the judge takes the bench on the trial date | Kendall: §52-80 allows unconditional withdrawal before commencement of a hearing on the merits; no evidence or merits argument had been presented, so withdrawal without prejudice was allowed | Commissioner: A commonsense view applies; the hearing "commenced" when the judge took the bench on the scheduled trial date, so withdrawal required court permission and could be conditioned | Court reversed: "commencement" requires initiation of a proceeding to decide substantive legal or factual issues (e.g., presentation of evidence/arguments); taking the bench alone is insufficient, so withdrawal without prejudice should have been allowed |
| Proper statutory construction of "commencement of a hearing on the merits" under §52-80 | Kendall: The phrase means when substantive evidence or arguments on the merits begin | Commissioner: Statute ambiguous; commencement can be when court begins the scheduled proceeding (judge taking the bench) | Court (plenary review): The statute is read according to contemporaneous/legal definitions; commencement means initiating a proceeding to decide substantive rights—i.e., presentation of evidence/arguments |
| Whether habeas courts may condition a withdrawal on it being "with prejudice" | Kendall: He sought unconditional withdrawal; conditioning was improper here because merits had not begun | Commissioner: Courts have discretion to impose prejudice when appropriate (scheduling, costs, prior petitions, evidence already taken) | Court: Habeas courts may condition withdrawal with prejudice in proper circumstances, but here the condition rested on an erroneous view that the hearing had commenced; reversal required |
| Applicability of prior case law (Melendez, Mozell) to when §52-80's protection ends | Kendall: Precedents show focus on whether evidence or substantive proceedings began, not merely court presence | Commissioner: Prior cases leave ambiguity; a practical test is warranted | Court: Distinguished Melendez and Mozell; those cases do not support the view that taking the bench alone starts the merits; focus remains on substantive acts (evidence/argument) |
Key Cases Cited
- State v. Kendall, 123 Conn. App. 625 (affirming the underlying criminal convictions) (context of petitioner's direct appeal)
- Mozell v. Commissioner of Correction, 147 Conn. App. 748 (habeas court may impose "with prejudice" condition in appropriate circumstances)
- Melendez v. Commissioner of Correction, 141 Conn. App. 836 (discussing clarity of when hearing on merits commenced; facts created uncertainty)
- Spears v. Kerars Realty Co., 171 Conn. 699 (defining when appraisal proceedings constitute a hearing on an issue of fact)
- Grimm v. Grimm, 74 Conn. App. 406 (testimony on day assigned for trial can commence a hearing on the merits)
- Krawiec v. Kraft, 163 Conn. 445 (interpretation of "before trial" as meaning before commencement addressing substantive aspects)
- Mercer v. Commissioner of Correction, 230 Conn. 88 (scope of habeas hearing requires hearing testimony and arguments before disposing of the case)