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Diaz v. Commissioner of Correction

Appellate Court of Connecticut

June 9, 2015

IVAN DIAZ
v.
COMMISSIONER OF CORRECTION

Argued: March 3, 2015

Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the petition was withdrawn in part; thereafter, the matter was tried to the court, Sferrazza, J.; judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed to this court.

Reversed; further proceedings.

SYLLABUS

The petitioner, who previously had filed three petitions for a writ of habeas corpus, sought a writ of habeas corpus claiming that he had received ineffective assistance from his trial counsel, his appellate counsel, and the counsel who had represented him in prior habeas matters. At the start of the habeas trial, the petitioner withdrew his claims regarding his prior habeas counsel. The habeas court, sua sponte, dismissed the petition on the ground that it lacked subject matter jurisdiction because the petition consisted of claims that were deliberately bypassed. The court reasoned that once the petitioner withdrew the claims against his prior habeas counsel, there remained only claims that he previously had raised and withdrawn in the third habeas petition, and that he was barred from raising those same claims in a future habeas petition on the ground of deliberate bypass. The court rendered judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed to this court. He claimed that the habeas court improperly raised and acted sua sponte on the affirmative defense of deliberate bypass, which was not pleaded by the respondent Commissioner of Correction. Held that the habeas court improperly dismissed the habeas petition sua sponte, that court having improperly concluded that the deliberate bypass doctrine implicated its subject matter jurisdiction; our Supreme Court previously determined that the cause and prejudice requirement, like the deliberate bypass standard that preceded it, is not jurisdictional in nature, and given that the respondent did not assert in his return an affirmative defense of procedural default or otherwise indicate that he wanted to assert a defense of deliberate bypass, and that the respondent did not make any attempt after the withdrawal of certain claims to raise the defense by seeking to amend the return or otherwise, the defense was waived by the respondent and the habeas court, therefore, improperly raised it sua sponte.

John J. Duguay, with whom, on the brief, was Michael D. Day, for the appellant (petitioner).

Michael Proto, assistant state's attorney, with whom, on the brief, was John C. Smriga, state's attorney, for the appellee (respondent).

Gruendel, Mullins and Dupont, Js. MULLINS, J. In this opinion the other judges concurred.

OPINION

Page 1004

[157 Conn.App. 702] MULLINS, J.

The petitioner, Ivan Diaz, appeals from the judgment of the habeas court dismissing, sua sponte, his petition for a writ of habeas corpus on the basis of deliberate bypass.[1] The petitioner claims that the court improperly dismissed his petition sua sponte. We agree. Accordingly, we reverse the judgment of the habeas court and remand the matter for further proceedings.

The facts underlying the petitioner's conviction can be found in our Supreme Court's decision, affirming the judgment of conviction, in his direct appeal; see [157 Conn.App. 703] State v. Diaz, 237 Conn. 518, 679 A.2d 902 (1996); and need not be repeated for purposes of this appeal. In February, 1997, the petitioner filed his first petition for a writ of habeas corpus, alleging that his trial attorney and his appellate attorney rendered ineffective assistance. That petition was not successful. See Diaz v. Commissioner of Correction, 92 Conn.App. 533, 886 A.2d 460 (2005), cert. denied, 277 Conn. 905, 894 A.2d 986 (2006). In February, 2004, the petitioner filed his second petition for a writ of habeas corpus, alleging that his attorney in his first habeas proceeding was ineffective. That petition also was unsuccessful. In May, 2007, the petitioner filed his third petition for a writ of habeas corpus. Attorney Cheryl Juniewic was assigned to represent the petitioner in this third petition, in which the petitioner alleged, among other things, that his attorney in his second habeas proceeding, Genevieve Salvatore, was ineffective. The third petition was assigned for trial on July 8, 2010, but, on July 2, 2010, the petitioner withdrew the third petition. The withdrawal form was signed by both Attorney Juniewic and the petitioner.

Page 1005

On February 4, 2011, the petitioner filed his fourth petition for a writ of habeas corpus, alleging claims of ineffective assistance of counsel as to each of the petitioner's previous attorneys, in addition to due process claims. Following the appointment of counsel, the petitioner filed an amended petition on March 13, 2013. The respondent, the Commissioner of Correction, filed his return on ...


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