STEPHEN D. NELSON v. COMMISSIONER OF CORRECTION
(SC 19830)
Supreme Court of Connecticut
September 19, 2017
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.*
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The petitioner, who had been convicted of various crimes, including kidnapping, in connection with his role in the abduction of an individual from his home, sought a writ of habeas corpus, claiming that he had received ineffective assistance of counsel at his two criminal trials. At the petitioner‘s first criminal trial, he was convicted of certain charges and sentenced to eighteen years. After the Appellate Court affirmed the judgment of conviction, the petitioner sought a reduction of his sentence with the sentence review division of the Superior Court pursuant to statute (
Argued February 23—officially released September 19, 2017
Procedural History
Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Oliver, J., granted the respondent‘s motion to dismiss and rendered judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed. Affirmed.
Peter G. Billings, for the appellant (petitioner).
Jonathan M. Sousa, special deputy assistant state‘s attorney, with whom, on the brief, were Brian Preleski, state‘s attorney, and Michael Proto, assistant state‘s attorney, for the appellee (respondent).
PALMER, J. The petitioner, Stephen D. Nelson, filed this habeas action alleging that he had received ineffective assistance of counsel at two criminal jury trials, both of which resulted in convictions and lengthy prison sentences.1 The respondent, the Commissioner of Correction, moved to dismiss the action pursuant to
The record reveals the following undisputed facts and procedural history. The petitioner was charged with two counts each of kidnapping in the first degree, robbery in the first degree, and burglary in the first degree, and with one count each of conspiracy to commit robbery in the first degree, assault in the first degree, and larceny in the first degree after he and an accomplice allegedly broke into a Wethersfield home and proceeded to assault, rob and kidnap the occupant. Following a jury trial, the petitioner was found guilty of conspiracy to commit robbery in the first degree and not guilty of larceny in the first degree. The jury was unable to reach a verdict on the remaining charges, however, and the trial court, Vitale, J., declared a mistrial with respect to those charges. The court thereafter rendered judgment of conviction and sentenced the petitioner to a term of imprisonment of eighteen years, and, on appeal, the Appellate Court affirmed the judgment of the trial court. See State v. Nelson, 105 Conn. App. 393, 418, 937 A.2d 1249, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008). The petitioner then filed a timely application under
The petitioner subsequently was retried on certain of the charges for which a mistrial had been declared in his first trial, and the jury found him guilty of the kidnapping, assault, and burglary charges.6 The trial
In addition to his direct appeals from the judgments of conviction that were rendered following his two trials, the petitioner filed two separate habeas petitions as a self-represented party, one on August 6, 2007, and a second petition on April 16, 2008. The two actions were consolidated, and, on April 8, 2011, the petitioner‘s then newly appointed counsel filed an amended petition alleging ineffective assistance of counsel at both of the underlying criminal trials. Thereafter, the petitioner and the respondent jointly moved for a stipulated judgment, and the habeas court granted the parties’ motion. Under that stipulated judgment, the respondent agreed to the reinstatement of the petitioner‘s right to file an application with the sentence review division for a reduction of the fifty-five year term of imprisonment that the petitioner received following his second trial. For his part, the petitioner agreed to be foreclosed from filing any future civil actions challenging the judgments of conviction arising out of his first and second trials and, further, that the remaining counts of the then pending habeas petition were to be stricken with prejudice.7
Thereafter, consistent with the terms of the stipulated judgment, the petitioner filed an application for sentence review pursuant to
Several months later, on February 14, 2013, the petitioner brought the present habeas action, once again alleging various deficiencies in the underlying judgments of conviction. Subsequently, on August 26, 2015, the respondent moved to dismiss the action under
In that memorandum of law, the petitioner explained that, while his previous habeas petitions were pending, he had testified as a state‘s witness in a murder trial in exchange for the state‘s promise to support a modification of his sentence from a fifty-five year term of imprisonment to one of thirty years. See
The petitioner further claimed that he would not have agreed to the stipulated judgment if he had known either (1) that seeking a sentence modification in the sentence review division, rather than a reduction of his sentence in the trial court, would cause the state to rescind its promise to him, or (2) that the sentence review division would be unable to consider his cooperation with the state as a witness in the murder trial. He blamed his ignorance of these facts on the allegedly ineffective assistance that he received from the two attorneys working simultaneously on his case—one representing him in pursuing a sentence reduction under
Notwithstanding these assertions, the habeas court, Oliver, J., granted the respondent‘s motion to dismiss the present action, explaining, in response to the peti-
On appeal, the petitioner claims that the habeas court, in ruling on the respondent‘s motion to dismiss, should have construed his memorandum of law and the facts asserted therein in the light most favorable to the petitioner, just as it would have construed the facts alleged in the habeas petition. The respondent contends that the habeas court properly dismissed the action in accordance with the express terms of the stipulated judgment because the petitioner‘s challenge to the validity of that judgment, which the petitioner raised for the first and only time in his memorandum of law, should have been raised in the petition itself and, therefore, was not properly before the habeas court on the respondent‘s motion to dismiss. We agree with the respondent.
It is well established that, when a habeas court considers a motion to dismiss a petition for a writ of habeas corpus, “[t]he evidence offered by the [petitioner] is to be taken as true and interpreted in the light most favorable to [the petitioner], and every reasonable inference is to be drawn in [the petitioner‘s] favor.” (Internal quotation marks omitted.) Ham v. Commissioner of Correction, 152 Conn. App. 212, 223–24, 98 A.2d 81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014); see also Orcutt v. Commissioner of Correction, 284 Conn. 724, 739, 937 A.2d 656 (2007). It is equally well settled that “[t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action . . . [and it] is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” (Internal quotation marks omitted.) Thiersaint v. Commissioner of Correction, 316 Conn. 89, 125, 111 A.3d 829 (2015). Thus, “[w]hile the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised. . . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.” (Internal quotation marks omitted.) Newland v. Commissioner of Correc-tion, 322 Conn. 664, 678, 142 A.3d 1095 (2016). In the present case, it is undisputed that the petitioner‘s habeas petition did not allege ineffective assistance predicated on counsel‘s failure to properly advise the petitioner regarding the waiver of his habeas rights under the stipulated judgment, nor did the petition allege any other defect in the stipulated judgment. As a result, the habeas court properly declined to consider those issues in connection with the respondent‘s motion to dismiss.
We disagree with the petitioner that the assertions contained in his memorandum of law were on equal footing with the allegations contained in the habeas petition and, therefore, should have been taken as true and viewed in the light most favorable to the petitioner. It is clear that a memorandum of law is not a proper vehicle for supplementing the factual allegations in a complaint; see, e.g.,
In reaching our decision, we are mindful that, although the petitioner filed the present habeas petition as a self-represented party on February 14, 2013, he was represented by counsel as of June 14, 2013, more than two years before the respondent, on August 26, 2015, filed the motion to dismiss that is the subject of this appeal. Furthermore, under
The petitioner nonetheless contends that, under Fine v. Commissioner of Correction, 147 Conn. App. 136, 81 A.3d 1209 (2013), the respondent was required to make an affirmative showing that the petitioner knowingly and voluntarily waived his right to future habeas relief under the stipulated judgment and that the respondent failed to make such a showing in the present case. In light of the plain terms of the stipulated judgment, however, we disagree that Fine imposes such a burden in this case.
In Fine, the respondent moved to dismiss a petition for a writ of habeas corpus on the ground that the petitioner, Paul Fine, had withdrawn a prior petition involving identical allegations of ineffective assistance of counsel “with prejudice,” thereby waiving his right to pursue the claims contained in the petition in any future habeas action. Id., 137–38, 141. The habeas court granted the motion, but the Appellate Court reversed, concluding that the respondent had failed to make “an affirmative showing that, at the time of the withdrawal, the petitioner was apprised of and understood the right being waived and the consequences of his waiver.” Id., 147–48. The court noted that the respondent had failed to introduce a transcript of the relevant proceedings, that the petitioner‘s prior counsel was not called as a witness, that the parties offered conflicting testimony regarding the proceedings, and, crucially, that even the withdrawal form did not indicate that a withdrawal with prejudice had occurred. Id., 146–47. Thus, the court in Fine was required to determine, on the basis of a murky record and in the face of contradictory testimony, whether there was sufficient evidence of record to support even a prima facie showing that the petitioner had knowingly and voluntarily waived his right to future habeas relief in a prior proceeding. By contrast, the nature of the decision of the prior habeas court in the present case was clearly set forth in the stipulated judgment and is not disputed: the parties agree that the prior judgment by its terms barred further habeas actions relating to the petitioner‘s two trials. See Doe v. Roe, 246 Conn. 652, 664–65 n.22, 717 A.2d 706 (1998) (stipulated judgment is “a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction . . . [and] is binding to the same degree as a judgment obtained through litigation” [citation omitted; internal quotation marks omitted]). Consequently, Fine, a case involving a purported agreement of highly uncertain terms, is readily distinguishable from the present case.13
Finally, we reject the petitioner‘s argument that habeas rights simply are not subject to waiver at all. This court has concluded that both constitutional rights; see Mozell v. Commissioner of Correction, 291 Conn. 62, 71, 967 A.2d 41 (2009); and appellate rights; see Molinas v. Commissioner of Correction, 231 Conn. 514, 523–24, 652 A.2d 481 (1994); may be waived, if the waiver represents the intentional relinquishment of a known right. Furthermore, the Appellate Court has held that a habeas court may accept the withdrawal of a habeas petition “with prejudice,” allowing the petitioner to waive any future habeas rights, as long as the withdrawal is knowing, voluntary, and intelligent. See Mozell v. Commissioner of Correction, 147 Conn. App. 748, 758 and n.10, 83 A.3d 1174, cert. denied, 311 Conn. 928, 86 A.3d 1057 (2014); see also Fine v. Commissioner of Correction, supra, 147 Conn. App. 147 n.2 (“we see no need to foreclose the possibility that, prior to trial, a petitioner may withdraw a habeas petition with prejudice, perhaps after having reached a mutually satisfactory agreement with the respondent“). Indeed, in other jurisdictions, such collateral attack waivers are enforceable as a general rule. See, e.g., United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005) (“a criminal defendant may waive his right to attack his conviction and sentence collaterally, so long as the waiver is knowing and voluntary“); Frederick v. Warden, 308 F.3d 192, 195 (2d Cir. 2002) (” [t]here is no general bar to a waiver of collateral attack rights in a plea agreement“), cert. denied sub nom. Frederick v. Romine, 537 U.S. 1146, 123 S. Ct. 946, 154 L. Ed. 2d 847 (2003); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) (waivers of collateral attack rights are generally enforceable, except with respect to claims relating directly to negotiation of waiver in question). The undisputed importance of the writ of habeas corpus notwithstanding; see Lozada v. Warden, 223 Conn. 834, 840, 613 A.2d 818 (1992) (“the principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness” [internal quotation marks omitted]); the petitioner has not persuaded us that a different rule should apply to such writs in this state.
In sum, in order to forestall dismissal of his habeas petition on the basis of the prior stipulated judgment, the petitioner, at any time before the filing of the return on September 11, 2015, or by permission of the court thereafter; see
The judgment is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of the date of oral argument.