6 Conn. App. 518 | Conn. App. Ct. | 1986
The petitioner, who is incarcerated because of his convictions of sexual assault, kidnapping and threatening, appeals from the judgment of the trial court quashing his petition for a writ of habeas corpus.
The petitioner was sentenced for his convictions on October 5,1982, and filed a direct appeal in the Supreme Court. On November 21, 1983, while that appeal was pending, he filed this petition for a writ of habeas corpus, specifying assorted omissions by his trial counsel which, he claimed, rendered the counsel’s aid constitutionally ineffective. The claimed omissions clearly raised factual issues the significance of which could not be resolved solely from the trial transcript.
His petition also alleged as follows: “The petitioner has not deliberately bypassed a direct appeal to the Connecticut Supreme Court in that: (1) the petitioner has a pending appeal from the judgment in State v. Sutton, CR7-57467, before the Connecticut Supreme Court; (2) the appeal does not raise the issue of ineffective assistance of counsel in State v. Sutton in that the record does not reflect a sufficient factual basis, and, lacking that basis, the claim ‘is more properly pursued . . . on a petition for a writ of habeas corpus rather than on direct appeal.’ State v. Mason, 186 Conn. 574, [578-79, 442 A.2d 1335] (1982).” The trial court granted the respondent’s motion to quash the petitioner’s petition for failure to state a claim upon which relief can be granted, which motion was filed pursuant to Practice Book § 532.
The petitioner claims that the court erred in quashing the petition because the petition made clear that his ineffective assistance of counsel claim could only be developed by evidence produced in a habeas corpus setting, and because his petition included the required allegation that he did not deliberately bypass a direct appeal. Thus, he argues, taking his allegations as true, as the court must do pursuant to Practice Book § 532, his petition was legally sufficient. We agree.
It is by now fundamental that a habeas corpus petitioner asserting a claim not raised on direct appeal must allege and prove that he did not deliberately bypass a direct appeal. Staples v. Robinson, 193 Conn. 439, 441, 476 A.2d 580 (1984).
On the basis of “this modification of our procedure in regard to ineffective assistance claims”; id., 542; we hold that the trial court erred in quashing the petitioner’s petition.
There is error, the judgment quashing the petition is set aside and the case is remanded for further proceedings in accordance with law.
The trial court permitted this appeal by certifying that a question is involved in the decision which ought to be reviewed by this court. General Statutes § 52-470 (b).
Practice Book § 532 provides: “The sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash. On such a motion, the allegations of the petition are deemed admitted. The motion to quash is not a means by which to test the legal sufficiency of the facts alleged in a return or the answer to the return.”
The petitioner’s direct appeal was decided by the Supreme Court while his habeas corpus appeal was pending in this court. See State v. Sutton, 197 Conn. 485, 498 A.2d 65 (1985).