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Nelson v. Commissioner of Correction

Supreme Court of Connecticut

September 19, 2017

STEPHEN D. NELSON
v.
COMMISSIONER OF CORRECTION

          Argued February 23, 2017

         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).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js. [*]

         Syllabus

         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 (§ 51-195), but the request was denied and his sentence was upheld. A second trial was held with respect to certain of the charges for which a mistrial had been declared in his first trial, and, after his conviction, he was sentenced to fifty-five years imprisonment, to be served concurrently with his eighteen year sentence. On appeal, the Appellate Court reversed in part the second judgment of conviction on double jeopardy grounds but affirmed the judgment in all other respects. The petitioner did not apply for sentence review in connection with the fifty-five year sentence. The petitioner then filed a petition for a writ of habeas corpus, alleging ineffective assistance of counsel at each of his underlying criminal trials. Thereafter, the habeas court granted the parties' joint motion for a stipulated judgment, pursuant to which 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 sentence and the petitioner agreed to be foreclosed from filing any future civil actions challenging the judgments of conviction from his first and second criminal trials. Pursuant tothe stipulated judgment, the remaining counts of the petitioner's pending habeas petition were to be stricken with prejudice. The petitioner thereafter filed an application for sentence review, in which he sought credit for his cooperation as a state's witness in a murder case. The sentence review division declined to modify the petitioner's fifty-five year sentence, explaining that it could not consider the petitioner's cooperation with the state because that cooperation did not occur until after the petitioner's sentencing in his second trial. The petitioner then brought the habeas action that is the subject of this appeal. The respondent moved to dismiss the action on the ground that it was barred by the terms of the stipulated judgment. The petitioner objected to the motion and filed a memorandum of law in which he challenged, for the first time, the validity of the stipulated judgment, claiming that it was invalid because the waiver of his rights was not knowing and voluntary due to the failure of counsel to inform him that the sentence review division would be unable to consider his cooperation with the state as a witness and that, as a result of seeking sentence review, the state would rescind its offer to promise to support a reduction in his fifty-five year sentence. The habeas court granted the respondent's motion to dismiss, and the petitioner, on the granting of certification, appealed. Held that the habeas court properly granted the respondent's motion to dismiss the habeas petition, the stipulated judgment having been a legally sufficient ground for dismissal: because 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, or allege any other defect in the stipulated judgment, the habeas court properly declined to consider those issues in connection with the respondent's motion to dismiss; moreover, because a memorandum of law is not a proper vehicle for supplementing the factual allegations in a habeas petition, the habeas court was not required to consider the assertions contained in his memorandum of law in deciding the respondent's motion to dismiss, and this court rejected the petitioner's claim that habeas rights are not subject to waiver, the petitioner having failed to persuade this court that a different rule applied to writs of habeas corpus than that which applied to both constitutional rights and appellate rights, both of which may be waived if the waiver represents the intentional relinquishment of a known right.

         Procedural History

          OPINION

          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 Practice Book § 23-29 (5), [2] based on the terms of a stipulated judgment, filed by the petitioner and the respondent in connection with a previous habeas action concerning the same two trials, that barred the petitioner from filing any further such actions pertaining to those trials. The habeas court granted that motion, and the petitioner appeals, [3] claiming that he did not knowingly and voluntarily enter into the stipulated judgment and, therefore, that the habeas court improperly granted the respondent's motion to dismiss. We conclude that the petitioner did not properly raise his challenge to the enforceability of the stipulated judgment in the habeas court and, further, that the stipulated judgment was a legally sufficient ground for dismissal of the present habeas action. We therefore affirm the judgment of the habeas court.

         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 General Statutes § 51-195[4] with the sentence review division of the Superior Court, [5]seeking a reduction of his sentence. The sentence review division, however, denied the petitioner's request and upheld his sentence. See State v. Nelson, Superior Court, judicial district of New Britain, Docket No. CR-05-220383-A, 2008 WL 2746485 (June 24, 2008).

         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 court, D'Addabbo, J., sentenced the petitioner to fifty-five years incarceration, to run concurrently with the eighteen year sentence that had been imposed following the petitioner's first trial. On appeal, the Appellate Court reversed the trial court's judgment in part on double jeopardy grounds, remanding the case to the trial court with direction to merge the petitioner's two kidnapping convictions and to vacate the sentence imposed for the conviction of one of those counts. See State v. Nelson, 118 Conn.App. 831, 853-54, 862, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010). The Appellate Court affirmed the judgment in all other respects. Id., 833-34. The petitioner failed to apply for sentence review within thirty days, as required by § 51-195.

         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 § 51-195, seeking a reduction of his fifty-five year term of imprisonment. In his application, the petitioner sought credit for his cooperation as a state's witness in a murder case, cooperation that had occurred following the imposition of the fifty-five year sentence. Again, however, the sentence review division declined to modify the petitioner's sentence. See State v.Nelson, Superior Court, judicial district of New Britain, Docket No. CR-05-220383-A (November 2, 2012) (54 Conn. L. Rptr. 904). In reaching its decision, the sentence review division explained that it could not lawfully consider the petitioner's cooperation with the state because that cooperation did not take place until after the petitioner's sentencing, and, therefore, the sentencing court could not have known about it. State v.Nelson, supra, 54 Conn. L. Rptr. 905; see General ...


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