133 Conn. App. 845
Conn. App. Ct.2012Background
- Mish was arrested in 2004 on narcotics charges; during this time he was on probation for burglary; special public defender appointed.
- On May 20, 2004, Mish was arrested again and charged with probation violation based on the March and April 2004 arrests.
- During probation-violation proceedings, Mish admitted violating probation; on December 13, 2004, he was sentenced to thirteen and one-half years.
- In the narcotics trial, the jury found Mish guilty; the court sentenced him to fifteen years, consecutive to the probation-violation sentence, for a total of 28.5 years.
- Mish appealed the narcotics conviction; this court affirmed, and the Supreme Court denied certiorari.
- On September 8, 2009, Mish filed an amended habeas petition with four counts; respondent asserted procedural default for counts 1 and 2; Mish did not file a reply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counts 1–2 were properly dismissed for procedural default | Mish argues the reply rule did not apply as amended petition disputed default. | Commissioner asserts failure to reply mandates dismissal. | Counts 1–2 properly dismissed for procedural default |
| Whether a reply was required under Practice Book § 23-31 | Section 23-31(a) not required to reply if amended petition disputes default. | Reply required if the return's defenses are not put in dispute by the petition. | Even assuming no reply required, failure to show good cause defeats review |
| Whether Mish showed good cause for raising counts 1–2 in the habeas petition | Count 4 alleged ineffective assistance and could excuse the default for counts 1–2. | Attorney error short of ineffective assistance does not excuse procedural default. | No good cause shown; counts 1–2 properly dismissed |
Key Cases Cited
- Phillips v. Warden, 220 Conn. 112 (1991) (mixed standard for review in habeas matters)
- Chaparro v. Commissioner of Correction, 120 Conn.App. 41 (2010) (cause and prejudice standard for procedurally defaulted claims)
- Crawford v. Commissioner of Correction, 294 Conn. 165 (2009) (attorney error short of ineffective assistance cannot excuse default)
- State v. Mish, 110 Conn.App. 245 (2008) (appellate review of conviction and related issues)
- State v. Mish, 289 Conn. 941 (2008) (denial of petition for certiorari)