Nelson v. Commissioner of Correction, 167 A.3d 952

Background

Nelson was convicted after two criminal trials for serious offenses; he received an 18-year sentence after the first trial and a concurrent 55-year sentence after the second (later partially reversed on double-jeopardy grounds).
He filed consolidated habeas petitions alleging ineffective assistance of trial counsel; those petitions were resolved by a stipulated judgment in which the Commissioner reinstated Nelson’s right to apply to the sentence review division for review of the 55-year term, and Nelson agreed to be foreclosed from further civil litigation challenging the convictions and to have the remaining habeas counts struck with prejudice.
Nelson filed a sentence-review application seeking credit for cooperating as a state’s witness; the review division declined to consider post-sentencing cooperation and denied relief.
Nelson filed a new habeas petition alleging continued defects in the convictions; the Commissioner moved to dismiss under Practice Book § 23-29(5) on the ground the stipulated judgment barred this petition.
Nelson, for the first time in opposition to the dismissal motion, argued the stipulated judgment was invalid because counsel had not advised him that (1) sentence review could not consider post-sentencing cooperation and (2) seeking sentence review would cause the state to rescind a promise to support a 30-year sentence — he blamed ineffective assistance of counsel for those omissions.
The habeas court dismissed the petition; the Connecticut Supreme Court affirmed, holding Nelson failed to plead the challenge to the stipulated judgment in the petition (a memorandum of law cannot supply new factual allegations) and the stipulated judgment was a legally sufficient ground for dismissal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the habeas court erred by dismissing Nelson’s petition as barred by the prior stipulated judgment	Nelson: the stipulated judgment was not knowing and voluntary because counsel failed to advise him about the consequences; thus dismissal should not have been allowed	Commissioner: the stipulated judgment plainly barred future habeas claims about these convictions and Nelson didn’t plead any challenge to it in the petition	Held: Affirmed. Stipulated judgment was a legally sufficient ground for dismissal; Nelson failed to plead the challenge in the petition
Whether factual assertions in Nelson’s memorandum of law could be treated as amendments to the habeas petition	Nelson: the memorandum’s factual allegations should be considered like pleadings	Commissioner: memoranda of law are not pleadings and cannot supply new factual allegations	Held: Memorandum of law is not a proper vehicle to supplement petition; court properly declined to consider those assertions
Whether Nelson had the opportunity / obligation to amend his petition to allege ineffective assistance re: the stipulation	Nelson: contends Fine requires an affirmative showing by the respondent that waiver was knowing and voluntary	Commissioner: Nelson could have amended the petition (as of right prior to the return) to include the claim but did not	Held: Nelson had the procedural opportunity to amend and did not; amendment would have raised factual issues preventing dismissal—because he failed to amend dismissal was proper
Whether habeas rights are categorically non-waivable	Nelson: argued habeas rights should not be subject to waiver	Commissioner: habeas/collateral rights may be waived if the waiver is knowing and voluntary; other courts and jurisdictions enforce collateral-attack waivers	Held: Rejected Nelson. Habeas rights can be waived if waiver is intentional and knowing; Fine is distinguishable on its facts

Key Cases Cited

Ham v. Commissioner of Correction, 152 Conn. App. 212 (standard that allegations in habeas petition are taken as true on motion to dismiss)
Orcutt v. Commissioner of Correction, 284 Conn. 724 (principle of construing habeas pleadings in petitioner’s favor)
Thiersaint v. Commissioner of Correction, 316 Conn. 89 (petition as a pleading; limited to allegations made)
Newland v. Commissioner of Correction, 322 Conn. 664 (habeas court may not decide claims not raised in pleadings)
Fine v. Commissioner of Correction, 147 Conn. App. 136 (requirement to show waiver was knowing and voluntary where record is unclear)
Mozell v. Commissioner of Correction, 291 Conn. 62 (recognition that constitutional and certain collateral rights may be waived)
Molinas v. Commissioner of Correction, 231 Conn. 514 (appellate rights may be waived when knowing and voluntary)
Doe v. Roe, 246 Conn. 652 (stipulated judgment is a binding contract and treated as a judgment)
United States v. Lemaster, 403 F.3d 216 (federal authority recognizing enforceability of collateral-attack waivers)
Frederick v. Warden, 308 F.3d 192 (federal authority that plea agreements can include waiver of collateral attack rights)