242 Conn. 689 | Conn. | 1997
Lead Opinion
Opinion
The dispositive issues in this certified appeal are: (1) whether the ten day limitation period applicable to petitions for certification to appeal from judgments in habeas corpus proceedings, set forth in General Statutes § 52-470 (b),
The petitioner’s claim arises out of his second petition for a writ of habeas corpus. Following the dismissal of his first habeas petition on its merits, the petitioner filed for certification to appeal from the judgment. The petition for certification to appeal was filed after the expiration of the ten day statutory limitation period provided for by § 52-470 (b), and the first habeas court dismissed it as untimely, holding that the court lacked subject matter jurisdiction to consider a petition not timely filed. The petitioner then sought a second writ of habeas corpus based upon the ineffective assistance of appellate counsel in pursuing the appeal of the first habeas court’s judgment, and requested a reinstatement of the limitation period to enable him to petition again for certification to appeal the fust habeas court’s judgment. Although the second habeas court concluded that the limitation period within which certifications must be requested was not jurisdictional, it dismissed the petition, finding that the petitioner failed to establish, under the second prong of the analysis outlined in Strickland, that he was prejudiced by counsel’s ineffectiveness. The Appellate Court affirmed the dismissal by the second habeas court without reaching the merits, holding that once the ten day period in which to file a petition under § 52-470 (b) expired, the court lacked subject matter jurisdiction. . We granted the petitioner’s request for certification to appeal from the decision of the Appellate Court.
“Thereafter, the petitioner filed a petition for a writ of habeas corpus claiming that his trial counsel was ineffective by failing to move to suppress evidence wrongfully seized. The habeas court dismissed the habeas petition, finding that trial counsel’s incompetence did not prejudice the petitioner in the manner defined by Strickland v. Washington, [supra, 466 U.S. 668]. The habeas court’s memorandum of decision dismissing the petition was dated February 15, 1991, and was filed on February 22, 1991.
“On March 8, 1991, the petitioner’s habeas counsel filed a petition for certification to appeal. This petition was filed four days beyond the time limitation set forth in General Statutes § 52-470 (b). The habeas court concluded that it did not have the discretion to consider a petition that was not timely filed [and denied the petition for certification to appeal]. [On appeal, this court], ruling on a writ of error brought by the petitioner, affirmed the habeas court’s decision. Iovieno v.
“The petitioner filed a second habeas petition claiming that he was denied his right to effective assistance of counsel in his appeal of the dismissal of his first habeas petition. In the second petition, he requested (1) that a writ of habeas corpus be issued to bring him before [the Appellate Court] in order that justice may be done, (2) that the conviction and sentence be vacated and the matter returned to the trial court docket for further proceedings, (3) that his right to appeal from the original habeas court decision be restored provided that a petition for certification be filed within ten days from the date of this decision, and (4) such other relief as deemed equitable and just.
“The [second] habeas court, in addressing the merits of the petition, first found that a statutory right to effective assistance of counsel exists in appeals from adverse habeas corpus decisions. The court then found that the conduct of the petitioner’s counsel in failing to file the petition for certification in a timely manner fell below an objective standard of reasonable representation. The court concluded, however, that the petitioner had not proven that such deficient representation had prejudiced him and, therefore, dismissed the petition.
“The petitioner claim[ed] that his [appellate] counsel’s conduct constituted per se prejudice, and, therefore, he was not required to prove prejudice. In rejecting this claim, the [second] habeas court stated that the petitioner failed to prove that ‘there exists a reasonable probability that, but for the lack of timely filing, his petition for certification would have been granted.’ The [second] habeas court granted a timely filed petition for certification to appeal its decision.
“[On appeal, the petitioner asserted] that the [second] habeas court had the authority to remedy his counsel’s
“The [second] habeas court, in addressing the petitioner’s second habeas petition, conducted a thorough analysis regarding the petitioner’s ineffective assistance of counsel claim. The court applied the two-prong test enunciated in Strickland v. Washington, supra, 466 U.S. 668. The court found that the petitioner had satisfied the first prong of Strickland by proving that his habeas counsel’s performance fell below an objective standard of reasonableness. In examining the second prong of Strickland, often termed the prejudice prong, the court applied the criteria established in Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), to determine whether the petitioner had proven, by a preponderance of the evidence, that there existed a reasonable probability that the petition for certification for appeal would have been granted. The court concluded that the petitioner did not satisfy this second prong and, thus, dismissed the habeas petition.” Iovieno v. Commissioner of Correction, 40 Conn. App. 553, 554-57, 672 A.2d 530 (1996) [Iovieno III].
I
The petitioner’s first claim is that § 52-470 (b), in specifying a ten day limitation period in which a petition for certification to appeal from a judgment of a habeas court must be filed, does not limit the subject matter jurisdiction of a habeas court, but merely defines the scope of review on appeal. The Appellate Court concluded that “because the time limitation contained in
In order to determine whether § 52-470 (b), in specifying a ten day limitation period for appealing a judgment of a habeas court, creates a jurisdictional bar preventing the court from entertaining an untimely petition for certification to appeal, we must discern what result the legislature intended when it enacted § 52-470 (b). “There is no more elementary rule of statutory construction than that the intention which the legislature has expressed must govern.” State ex rel. Rourke v. Barbieri, 139 Conn. 203, 207, 91 A.2d 773 (1952). The question of whether a statutory time limitation is subject matter jurisdictional is a question of statutory interpretation. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). In interpreting statutory provisions, we have held that legislative intent is to be determined by reference to the language of the statute, its legislative history and surrounding circumstances, the policy the limitation was intended to implement, and the statute’s “relationship to existing legislation and common law principles governing the same general subject matter.” Id. We have also held that “ ‘eveiy presumption is to be indulged in favor of jurisdiction.’ ” Id., 765.
The respondent relies on our interpretation of § 52-470 (b) in Iovieno II in arguing that the limitation period implicates the subject matter jurisdiction of the habeas court. Although we did not specifically state that the untimely petition for certification to appeal under § 52-470 (b) deprived the habeas court of subject matter jurisdiction in Iovieno II, we held that “the habeas court was correct in concluding that it had no discretion to consider an untimely petition for certification to appeal.” Iovieno II, supra, 222 Conn. 258. The Appellate
In Iovieno II, this court held that neither the plain language of § 52-470, nor its legislative history, support the conclusion that the legislature intended to make the time limitation under § 52-470 (b) discretionary, rather than mandatory. Iovieno II, supra, 222 Conn. 261. The court noted that, although under § 52-470 (a) a habeas court has considerable discretion to “dispose of the case as law and justice require,” the legislature specifically declined to include similar language in § 52-470 (b), evidencing an intent not to provide habeas courts with discretion in considering petitions filed under that section. Id., 258. The court in Iovieno II also noted that statements made on the floor of the legislature, during the process of amending § 52-470 in 1957 to include a provision regarding certification to appeal a habeas decision, indicated a desire by the legislature to reduce the number of appeals in criminal matters and hasten ultimate justice without repetitive recourse to appeals. Id., 259. The court therefore interpreted the ten day limitation period of § 52-470 (b) to be nondiscretionary.
Since Iovieno II, we have had occasion to examine § 52-470 (b) in further detail. In Simms v. Warden, 230 Conn. 608, 646 A.2d 126 (1994), we were asked to interpret § 52-470 (b) in order to decide whether a denial of certification to appeal under that section implicated the subject matter jurisdiction of the appellate tribunal. The question raised in Simms was whether the language in § 52-470 (b) providing that “[n]o appeal from the judgment rendered in a habeas corpus proceeding . . . may be taken,” unless the appeal is certified, was
The limiting language of § 52-470 (b), which we reviewed in Simms, is the same language we are asked to review in this case with respect to the ten day limitation period prescribed by that section, namely, “[n]o appeal from the judgment rendered in a habeas coipus proceeding . . . may be taken unless the appellant, within ten days after the case is decided, petitions the judge . . . and the judge so certifies.”
Further support for our conclusion that the limitation period prescribed by § 52-470 (b) is not jurisdictional may be found by applying our analysis set forth in Banks v. Thomas, 241 Conn. 569, 698 A.2d 268 (1997). In Banks, we considered whether the two week limitation period
Anumber of factors compelled our decision in Ban/cs. First, we noted that “§ 52-273 contains no language expressly invalidating a writ of error not filed within two weeks from the rendition of the judgment or decree.” Id., 583. Second, we observed that “the legislative history of § 52-273 contains no indication that the legislature intended to deprive [appellate courts] of the authority to entertain an untimely writ of error”; id.; such that “noncompliance with [the] filing period would serve as a complete and automatic bar to appellate review of the writ.” Id., 584. Third, we recognized that such a result “would constitute a dramatic departure” from the jurisdictional authority for the writ of error historically vested under the common law. Id., 585. Finally, we considered the harsh result that would ensue if the statute were- interpreted as embodying a jurisdictional requirement. To interpret the statute as creating a jurisdictional bar to an untimely filed writ of error would have left the plaintiff in Banks without any recourse to appellate review to challenge the trial court’s summary criminal contempt finding against him and its imposition of a sentence of nine months imprisonment. Id. For all of these reasons, we concluded in Banks that neither the statutory language nor the statute’s legislative history provided persuasive support
An examination of § 52-470 (b) for the purpose of determining legislative intent in light of the Simms interpretation and the Banks analysis leads us to the conclusion that noncompliance with the limitation period of § 52-470 (b) was not intended to deprive a habeas court of subject matter jurisdiction to consider an untimely appeal. First, § 52-470 (b) contains no language expressly invalidating a court’s jurisdiction to entertain a petition filed after the expiration of the limitation period. “A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision.” Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995). Second, the legislative history, while indicative of a desire to limit the number of appeals filed in criminal cases and hasten the final conclusion of the criminal justice process, is not explicit about intending to achieve its goal by limiting the subject matter jurisdiction of habeas courts in considering an untimely petition for certification to appeal.
Third, although no right to appeal in habeas cases existed originally at common law, such a right has existed in our jurisprudence since 1882. Simms v. Warden, supra, 230 Conn. 614. Thus, as we noted in Simms, there is good reason for this court to be hesitant to attribute to the legislature an intent to substantially limit that right, without an explicit expression of such an intent. When changes have been introduced by amendment to a statute, “the presumed change does not go any further than that which is expressly declared or necessarily implied.” King v. Board of Education, 203 Conn. 324, 335-36, 524 A.2d 1131 (1987). “We cannot impute to the legislature ... in the absence of an
Fourth, the harsh result that would follow if § 52-470 (b) was interpreted to create an absolute bar to appellate review for petitioners who file outside the limitation period provides additional support for our conclusion that § 52-470 (b) does not embody a jurisdictional requirement. Depriving a habeas petitioner of the opportunity to seek certification to appeal amounts to a deprivation of a remedy that could result in the petitioner’s release from wrongful incarceration. We recognize that the vicissitudes of the practice of law, as well as the practical incapacity of certain pro se petitioners who are incarcerated, may lead to occasional untimely filings in exceptional circumstances. Thus, habeas courts, in the interests of justice, should have the discretion to grant an untimely filed petition.
For all of these reasons, and particularly in light of our decision in Simms, we conclude that the time limitation in § 52-470 (b) does not implicate subject matter jurisdiction. To the extent that the result in Iovieno II conflicts with this decision, that case is expressly overruled. Thus, noncompliance with the ten day limitation period of § 52-470 (b) does not deprive a habeas court of subject matter jurisdiction over such an appeal, and whether to entertain an untimely filed appeal is a decision to be left to the sound discretion of the habeas court. In exercising that discretion, a habeas court should take into account the reasons for the delay.
The petitioner next asserts that he was deprived of his right to the effective assistance of counsel in pursuing an appeal from the first habeas court’s judgment. The Appellate Court, in Iovieno III, found it unnecessary to address the issue, because it concluded that the courts lack subject matter jurisdiction under § 52-470 (b) to consider an untimely filed petition. Because we disagree with the Appellate Court on the issue of subject matter jurisdiction, we address the petitioner’s claim.
A
As a preliminary matter, the respondent argues that, because there is no right to counsel for the purpose of pursuing an appeal from a habeas corpus judgment, there is consequently no right to the effective assistance of counsel in pursuing such an appeal. The petitioner, on the other hand, contends that there is no basis for the state’s argument, because Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), and Franko v. Bronson, 19 Conn. App. 686, 563 A.2d 1036 (1989), establish that, under Connecticut law, there is a right to the effective assistance of counsel in habeas appeals. We agree with the petitioner.
In Lozada v. Warden, supra, 223 Conn. 839 n.8, this court recognized that, although there is no federal constitutional right to counsel in habeas corpus proceedings; see Pennsylvania v. Finley, 481 U.S. 551, 559, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); under Connecticut law there is a statutory right to counsel in habeas proceedings arising out of a criminal matter under General
B
We turn next to the merits of the petitioner’s ineffective assistance of counsel claim. The substance of the
Ordinarily, in order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel in the trial context, Strickland requires that the defendant establish both that his counsel’s performance was deficient, and that as a result of that performance he suffered actual prejudice. Strickland v. Washington, supra, 466 U.S. 687. In the context of a claim of ineffective assistance of appellate counsel, this court has adopted the two part Strickland analysis. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992); see also Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995).
The first prong of the Strickland analysis requires a petitioner to establish that his attorney’s performance was deficient, in “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, supra, 466 U.S. 687. The proper standard for attorney performance under Strickland is one of “reasonably effective assistance.” Id. A petitioner must demonstrate “that counsel’s representation fell below an objective standard of reasonableness . . . [as measured by] prevailing professional norms.” (Citation omitted; internal quotation marks omitted.) Johnsons. Commissioner of Correction, 218 Conn. 403, 425, 589 A.2d 1214 (1991).
The second habeas court, which considered the merits of the petitioner’s second habeas petition, concluded that he had successfully established that his appellate
The second habeas court next considered the issue of prejudice under the second prong of Strickland. The second habeas court concluded that, although Strickland normally requires a petitioner raising an ineffective assistance of counsel claim to establish prejudice by demonstrating that counsel's deficiencies undermined confidence in the reliability of the verdict, when the deficiency deprives a defendant of his entire right to appeal, a different standard should apply. In that situation, it held that a petitioner need prove only that, if his petition had been timely filed, there exists a reasonable probability that the petition for certification to appeal would have been granted.
We noted in Bunkley, however, that an exceptional situation exists with regard to establishing prejudice “where the prejudice claimed by a habeas corpus petitioner is that he was deprived of his entire [first] appeal because his appellate counsel failed to file papers timely . . . .” Id., 459 n.16. In that situation, we stated that the same standard of prejudice would not apply. Id. Under such circumstances, we recognized that “it would be impossible to determine whether the verdict was unreliable until the appeal had been heard. In such a case . . . prejudice would be established by the absence of [the] appeal.” Id.
Similarly, a number of decisions from other jurisdictions hold that when the ineffective assistance of counsel entirely deprives a defendant of his direct appeal of right, a showing of prejudice or likely success on appeal is not required. See Penson v. Ohio, 488 U.S. 75, 88-89, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988) (where direct appeal of right is involved, showing of prejudice not required when counsel’s errors deprive client of appeal altogether); Rodriguez v. United States, 395 U.S. 327, 330, 89 S. Ct. 1715, 23 L. Ed. 2d 340 (1969) (“[t]hose
In the present case, as in the case where a direct appeal has been foreclosed, there are exceptional circumstances that require us to dispense with the prejudice analysis ordinarily required under Strickland. Here, the result of counsel’s failure to file the petition for certification to appeal within the statutorily prescribed limitation period was to deprive the petitioner of the opportunity to seek appellate review of the dismissal of his first habeas petition. Although the petitioner was not deprived of his first habeas appeal as of right because the right depended upon the granting of certification, he was deprived of a significant, statutorily created right that otherwise would have afforded him an opportunity to seek plenary review of the first habeas court’s judgment. Review of this issue by the second habeas court, during the process of evaluating the petitioner’s ineffective assistance of appellate counsel claim by performing the Strickland analysis to determine whether the procedural default prejudiced the petitioner, is simply not an adequate substitute for the
Furthermore, in cases such as this one involving a procedural default at the appellate level, the prejudice requirement serves a substantially less significant purpose than in other ineffective assistance of counsel cases. In the ordinary case of ineffective assistance of counsel, Strickland requires a showing of prejudice because the consequences of the attorney’s substandard performance lead to a new trial. In this case, as a result of the ineffective assistance of counsel, we merely return the petitioner to the same position that he occupied at the time of counsel’s deficient performance; that is, back before the first habeas court for the opportunity to convince that court that it should grant certification to appeal.
In summary, it serves no useful purpose to require the petitioner, who has been deprived of the opportunity to seek review of a habeas judgment due solely to the ineffective assistance of appellate counsel, to prove actual prejudice. The prejudice that results by virtue of being barred from the right to seek certification to appeal is obvious.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the second habeas court and to remand the case to the first habeas court for consideration of the merits of the petitioner’s petition for certification to appeal from the judgment on his first habeas coipus petition.
In this opinion BORDEN, NORCOTT, KATZ and PALMER, Js., concurred.
General Statutes § 52-470 provides: “Summary disposal of the case. Appeal by person convicted of crime, (a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and . inquire fully into .the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.
“(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”
We granted the polition for certification, limited to the following questions: '‘(1) Did the Appellate Court properly conclude that the second habeas court lacked subject matter jurisdiction to grant a new ten day period to appeal from the judgment of the first habeas court?
See footnote 2 of this opinion.
General Statutes § 52-273 provides: “Writ of error; limitations. No writ of error may be brought in any civil or criminal proceeding, unless allowed and signed within two weeks after the rendition of the judgment or decree complained of. No writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal.”
Once a court has decided to exercise its discretion and consider an untimely petition, it should proceed in the usual manner to consider the merits of the petition. In that regard, we find it relevant that in Simms we adopted the criteria set forth in Lozada v. Deeds, supra, 498 U.S. 431-32, as guidance for determining whether a habeas appeal is meritorious or frivolous. Simms v. Warden, supra, 230 Conn. 616. In Lozada, the United States Supreme Court held that, in order to obtain a certificate of probable
General Statutes § 51-296 provides in relevantpárt: “Designation of public defender for indigent defendant, codefendant, (a) In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant, unless, in a misdemeanor case, at the time of the application for appointment of counsel, the court decides to dispose of the pending charge without subjecting the defendant to a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation or the court believes that the disposition of the pending case at a later date will not result in a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation and malees a statement to that effect on the record. If it appears to the court at a later date that, if convicted, the sentence of an indigent defendant for whom counsel has not been appointed will involve immediate incarceration or a suspended sentence of incarceration with a period of probation, counsel shall be appointed prior to trial or the entry of a plea of guilty or nolo contendere. . . .
“(c) Prior to a defendant’s appearance in court in any matter specified in subsection (a) of this section, a public defender, assistant public defender or deputy assistant public defender, upon a determination that the defendant is indigent pursuant to subsection (a) of section 51-297, shall be authorized to represent the defendant until the court appoints counsel for such defendant. ” (Emphasis added.)
Moreover, in this case the record indicates the likely success of his petition for certification to appeal. Judge Scheinblum, the trial judge at the first habeas proceeding, in dismissing the untimely filed petition for certification to appeal, stated: “I would grant you this, that at least as to maybe one of the issues you raised for appeal ... it might be something that an appellate court, would want to deal with. But I’ve got the first hurdle, and that’s the statute [limiting the time in which certification to appeal may be sought].” He also stated: “Now, whether this is going to be a judicially economical decision on this court’s part or not, I don’t know for sure. I do feel, however, bound by the language of the statute. And even though I may feel that there is merit, at least in part, to some of the issues being raised, I simply find that the language in the statute is compelling, and for that reason, I find that I must deny the petition for certification . . . .”
Dissenting Opinion
dissenting. I respectfully dissent. I do not agree with the majority that the present appeal warrants reconsideration of our conclusion in Iovieno v. Commissioner of Correction, 222 Conn. 254, 608 A.2d 1174 (1992) (Iovieno II). It seems incongruous for us to conclude today that the petitioner’s petition for permission to appeal now can be heard by the habeas court when we concluded five years ago that the exact same petition could not be heard because it was not filed within the time specified by General Statutes § 52-470 (b). Moreover, I disagree with the majority’s conclusion that whenever a petitioner alleges ineffective assistance of appellate habeas counsel in a second habeas petition, he need only to demonstrate to the second habeas court that his petition for permission to appeal the first habeas court’s decision was not filed within the statutory time
I
“[T]he proper analysis of a statutory time limitation on the right to appeal devolves into a question of statutory construction: did the legislature, in imposing the time limitation, intend to impose a subject matter jurisdictional requirement on the right to appeal? ‘We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987) .... Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987).” Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993).
In Iovieno II, we considered at length whether the first habeas court properly concluded that it had no discretion to consider the petitioner’s late petition for permission to appeal.
“ ‘[I]f the “statutory language ... is clear and unambiguous . . . courts cannot, by construction, read into such statutes provisions which are not clearly stated.” Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979).’ Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991). Furthermore, ‘[w]hen construing a statute, we do not
“Furthermore, even if it is assumed that § 52-470 is ambiguous, and therefore needs to be construed, this result remains unchanged. ‘The factors that this court looks to in construing a statute include “its legislative history, its language, the purpose it is to serve, and the circumstances surrounding its enactment.” ’ Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982). In 1957, the legislature amended § 52-470; see Public Acts 1957, No. 482; to include a provision regarding certification to appeal a habeas decision. The legislative history of Public Acts 1957, No. 482 indicates that the portion of Senate Bill 1100 that added this provision was intended, as noted by Senator John H. Filer, ‘to reduce successive frivolous appeals in criminal matters and hasten ultimate justice without repetitive trips to the Supreme Court of Errors.’ 7 S. Proc., Pt. 5, 1957 Sess., p. 2936. ‘ “Although statements made on the floor
“During discussion on the Senate floor concerning the amendment, Senator Elmer S. Watson read into the record a letter from former Chief Justice William M. Maltbie expressing concern over the delay in the executions for first degree murder. The letter stated, inter alia: ‘There are . . . two means which have been used to delay the execution of the death sentence and which . . . may properly be subjected to more regulation than now exists. One of these is the petition for a new trial for . . . newly discovered evidence, with an appeal to the Supreme Court, if it is denied. It has seemed to me that such petitions have been used in certain instances, not because they had any merit, but in a calculated effort to delay the imposition of the penalty. . . . The other means by which, I feel, unjustifiable delay has been caused is through the use of the writ of habeas corpus. Of course both the constitution of Connecticut and the constitution of the United States . . . contain guarantees . . . the effect of which is that any person may at any time bring the writ claiming an illegal confinement. An appeal from the decision of the court or judge on such a writ is not, however, within the constitutional guarantees. Very much the same considerations apply to the limitation of appeals in habeas corpus proceedings in criminal cases as I have sug
“To remedy the problem, Chief Justice Maltbie suggested an amendment to the effect that no such appeal ‘shall be taken unless the judge before whom the case was tried or a justice of the supreme court of errors shall, within one week after the case was decided, certify that a question was involved in the decision which ought to be reviewed by the supreme court of errors.’ Id., pp. 2939-40. The amendment was adopted, modified only to the extent of allowing ten days rather than one week for certification.
“Section 52-470 was thereafter amended again. Public Acts 1967, No. 182 amended the section to require the appellant to petition for certification within ten days after the case is decided rather than requiring the judge to certify within that period. The statute was again amended in 1982; see Public Acts 1982, No. 82-160, § 171; changing the word ‘shall’ to ‘may’ in § 52-470 (b), so that the statute now provides that ‘[n]o appeal . . . may be taken unless the appellant, within ten days . . . petitions the judge . . . .’ (Emphasis added.) The plaintiff contends that the 1982 change evinces the intent of the legislature to make this section discretionary rather than mandatory. A review of the legislative history of this amendment, however, reveals no such intent. On the contrary, the history is silent as to why the word ‘shall’ was changed to ‘may.’
‘In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.’ ” King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987); Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985).’ Ford Motor Credit Co. v. B. W. Beardsley, Inc., 208 Conn. 13, 20, 542 A.2d 1159 (1988). We conclude that the 1982 amendment was
“Neither the plain language of § 52-470, nor its legislative history, supports the plaintiffs claim that the court has discretion to consider an untimely petition for certification to appeal. We therefore conclude that the court was correct in denying the petition for certification to appeal. . . . Given the circumstances of this case, we hold that the habeas court was correct in concluding that it lacked the discretion to consider the untimely petition for certification to appeal.”
Since our decision in Iovieno II five years ago, we have twice cited that decision for the proposition that the ten day time limit of § 52-470 does not give habeas
Contrary to the majority, I am unpersuaded that our decisions subsequent to Iovieno II, in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I), and Simms v. Warden, 230 Conn. 608, 646 A.2d 126 (1994) (Simms II),
If there is an inconsistency between the Simms cases and Iovieno II,
II
Even assuming that a habeas court has discretion to hear a late appeal, I believe it is a misuse of our limited judicial resources
The following facts are relevant to this issue. The petitioner petitioned the first habeas court for relief alleging ineffective assistance of trial counsel. He claimed that counsel was ineffective because he had failed to move to suppress certain physical evidence seized by the police at his parent’s home
The petitioner then filed a second habeas petition, alleging that his first habeas counsel had been ineffective by failing to file the petition for permission to appeal in a timely manner. The second habeas court enter
Now, on the petitioner’s second trip to this court since the institution of his first habeas petition, the
I respectfully dissent.
Although we never used the term “subject matter jurisdiction” in Iovieno II, our determination that a habeas court has no discretion to consider late petitions must mean that late filing implicates subject matter jurisdiction. See Iovieno v. Commissioner of Correction, 40 Conn. App. 553, 559, 672 A.2d 530 (1996) (“no practical difference between a court’s having no subject matter jurisdiction and a court’s having no discretion”). The majority does not offer an alternative reading of Iovieno II, and I can conceive of none.
“Further support for this conclusion may be found in the title of the amendment, ‘An Act Adopting a Technical Revision of Title 52.’ Public Acts 1982, No. 82-160.” Iovieno II, supra, 222 Conn. 261 n.3.
“In view of this holding, it is unnecessary to consider the plaintiffs additional claim that, pursuant to Practice Book §§ 6 and 4187, under which the rules of court are to be interpreted liberally, the habeas court had discretion to consider an untimely filed petition for certification to appeal. For the same reason, we need not consider the plaintiffs claim that we use our supervisory authority under Practice Book § 4183 to reinstate the plaintiffs right to appeal. ‘ “[T]he conditions required by statute as precedent to taking and perfecting an appeal cannot ... be modified or extended by any judge or court without express statutory authority.” ’ Etchells v. Wainwright, 76 Conn. 534, 538, 57 A. 121 (1904). We note, however, that our decision is in accord with Practice Book § [4166c], which provides that a petition for certification to appeal to the Appellate Court ‘shall be made within ten days after the case is decided ....’” Iovieno II, supra, 222 Conn. 262 n.5.
I recognize that the majority also relies upon our recent decision in Banks v. Thomas, 241 Conn. 569, 698 A.2d 268 (1997), wherein the court concluded that the failure to file a writ of error within the two week limitation period provided in General Statutes § 52-273 does not implicate our subject matter jurisdiction to hear the late appeal. Because the question of whether a time limitation implicates our subject matter jurisdiction is a question of legislative intent, I am unpersuaded that our interpretation of the legislative intent behind § 52-273 in Banks is more persuasive than our interpretation in Iovieno II of the legislative intent behind tire time limitation of § 52-470 (b).
Although an argument can be made that the legislature rationally drew a distinction between late petitions and timely petitions that are simply not
The alleged crimes in this case occurred on November 13, 1984, exactly one week after Ronald Reagan was elected to serve a second term as President. The defendant was sentenced on December 13, 1985, and he has been appealing and filing habeas petitions since that time. See footnote 11 of this dissent.
The evidence was seized pursuant to a warrant. The petitioner claimed that it nonetheless should have been suppressed because the items were not described in the warrant affidavit with sufficient particularity.
The defendant claimed that his pubic hair, which matched a hair found at the victim’s apartment, was taken without his consent even though a principal part of his defense at trial was that he had cooperated with the police and that the jury should infer his innocence from his willingness to cooperate.
The first habeas court decided the prejudice prong of the ineffective assistance of counsel claim as follows: “Aside from the items that may have been suppressed, the jury had sufficient additional evidence from which to conclude beyond a reasonable doubt that the petitioner committed the
“The victim’s residence was described as being one-half block from the petitioner’s, about fifty (50) feet away. The victim and her husband owned two cars, both of which were always parked in the driveway. They were never garaged. The victim’s husband was away on business and his car was gone. The victim described the perpetrator as being 5’7” to 5’9” tall, stockyish, but not big-boned, hard and muscular, sporting a clipped beard and mustache, having thick, wavy hair, wearing a jogging suit, consisting of a hooded sweatshirt, with a drawstring and sweat pants, wearing soft-soled shoes or sneakers, weighing 170 to 180 [pounds], wearing no jewelry and smelling of beer and smoke as though he had been in a bar. The jury had the opportunity to observe the petitioner. The victim had seen the peril ioner about two months prior to the crime when he helped her with items she had purchased and delivered them to her home. The petitioner then knew the victim’s first name, ‘Marge.’ The petitioner was a smoker. Five to ten minutes before the perpetrator entered the victim’s house at about 3:30 a.m., the victim received a phone call from a person who identified himself as ‘Billings’ and who asked for the victim’s husband by name. Fie also called the victim by name. A latent print of the petitioner’s left thumb was lifted from the rear door to the victim’s house. The rear door was the point of entry by the perpetrator. The petitioner gave a statement to the police officers after he was advised of his rights in which he admitted frequenting a bar the night before and the early morning hours of the day of the incident and drank beer. A K-9 officer with a specially trained dog tracked the perpetrator’s scent from the rear door of the victim’s house to the petitioner’s property.
“Accordingly, the court cannot conclude that even if the questionable evidence were suppressed the outcome of the trial would have been any different.”
I reach no conclusion about whether the focus of the second habeas court’s prejudice analysis should have been: (1) whether there is areasonable probability that the first habeas court would have granted a timely filed petition; or (2) whether there is a probability sufficient to undermine confidence in the verdict that he ultimately seeks to overturn. See Bunkley v. Commissioner of Correction, 222 Conn. 444, 459, 610 A.2d 598 (1992) (in order to prevail on claim of ineffective assistance of appellate counsel, habeas petitioner must demonstrate that “it is reasonably probable that he
I am unpersuaded by the majority’s reliance on the per se prejudice analysis adopted in cases where a criminal defendant has been denied his first appeal as of right altogether. See Bunkley v. Commissioner of Correction, supra, 222 Conn. 465 n. 16. The reason that we have assumed prejudice when a petitioner has been denied his initial appeal from a judgment of guilt is that in those instances it is “impossible to determine whether the verdict was unreliable.” In this case, the petitioner: (1) had his appeal as
I disagree with the majority’s assertion in footnote 8 of the majority opinion that “in this case the record indicates the likely success of [the petitioner’s] petition for certification to appeal.” In support of this assertion, the majority points to the first habeas court’s statement to the petitioner as follows: “I would grant you this, that at least as to maybe one of the issues you raised for appeal ... it might be something that an appellate court would want to deal with.” It appears plain from reading the first habeas court’s memorandum of decision that of the two issues raised by the habeas petition, the one that gave the court pause was the petitioner’s claim that his incarceration was illegal because his conviction was based upon evidence that was seized in violation of the fourth amendment to the federal constitution and article first, § 7, of the state constitution. At the time of the petitioner’s habeas, it had been established as a matter of federal constitutional law “that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). In 1988, in Payne v. Robinson, 207 Conn. 565, 569 n.1, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988), we specifically declined to address “the question whether the holding in Stone v. Powell, [supra, 465], that claims under the exclusionary rule of the fourth amendment may not normally be raised in federal habeas corpus proceedings applies equally to state habeas corpus proceedings. This issue must await proper briefing in another case.” Thus, in the present habeas proceedings, the habeas court was faced with the precise issue that we had highlighted for future review in Payne. After rejecting the state constitutional claim, the habeas court wrote: “Perhaps the case at bar raises the issues alluded
Dissenting Opinion
dissenting. I agree with the conclusion reached by Chief Justice Callahan in his dissent. Accordingly, I concur in the result that the dissent would reach.
