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Nemhard v. Commissioner of Correction

Appellate Court of Connecticut

May 19, 2015

PATRICK NEMHARD
v.
COMMISSIONER OF CORRECTION

Argued: January 21, 2015

Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Sferrazza, J., dismissed the petition in part; thereafter, the court granted the respondent's motion to dismiss, from which the petitioner, on the granting of certification, appealed to this court.

Affirmed.

SYLLABUS

The petitioner, who had been convicted of rioting in a correctional institution, sought a writ of habeas corpus, claiming that he was actually innocent of the crime of which he had been convicted on the basis of newly discovered evidence of the identity of a witness, O, who testified in the habeas trial that the petitioner had acted under duress as a result of threats made to him during the rioting. The petitioner claimed that the habeas court improperly dismissed his petition for a writ of habeas corpus on the ground that the identity of O did not constitute newly discovered evidence. After the court granted the motion by the respondent Commissioner of Correction to dismiss the other counts of the petition alleging ineffective assistance by trial counsel and appellate counsel, and following a trial on the remaining count pertaining to O, the court then granted the respondent's motion to dismiss the petition and rendered judgment for the respondent, from which the petitioner, on the granting of certification, appealed to this court. Held that the habeas court properly dismissed the petition for a writ of habeas corpus, the petitioner having failed to present a prima facie case of his actual innocence claim alleged in the habeas petition because it was not premised on newly discovered evidence that could not have been discovered by the exercise of due diligence prior to his criminal trial; the evidence showed that despite perhaps not knowing O's identity, the petitioner knew at the time of his criminal trial that a fellow inmate he had conversed with had overheard the threats and that he never advised his trial counsel that he had been under duress during the rioting, and, thus, the identity of O was not newly discovered evidence because it could have been discovered prior to the criminal trial by the exercise of due diligence.

Cameron R. Dorman, assigned counsel, for the appellant (petitioner).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Craig P. Nowak, senior assistant state's attorney, for the appellee (respondent).

Beach, Keller and Pellegrino, Js. PELLEGRINO, J. In this opinion the other judges concurred.

OPINION

Page 916

[157 Conn.App. 369] PELLEGRINO, J.

The petitioner, Patrick Nemhard, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly dismissed his claim on the ground that his witness in support of his claim of duress[1] does not constitute newly discovered evidence.[2] We disagree and, accordingly, affirm the judgment of the court.

[157 Conn.App. 370] The petitioner was convicted of rioting in a correctional institution in violation of General Statutes § 53a-179b (a),[3] for

Page 917

which he was sentenced to twenty years incarceration, execution suspended after fifteen years, and five years of probation. On his direct appeal, the judgment of conviction was affirmed by this court in a per curiam decision; State v. Nemhard, 39 Conn.App. 930, 667 A.2d 571 (1995); and at least three habeas petitions have been rejected regarding this conviction. See, e.g., Nemhard v. Rodriguez, United States District Court, Docket No. 3:01-cv-1700 (JCH), (D. Conn. September 20, 2004); Nemhard v. Commissioner of Correction, 63 Conn.App. 906, 773 ...


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