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Smith v. Commissioner of Correction

Court of Appeals of Connecticut

February 19, 2019

DEVON SMITH
v.
COMMISSIONER OF CORRECTION

          Argued November 13, 2018

         Procedural History

         Amended petition for writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Sferrazza, J., granted the respondent's motion to dismiss as to the third count of the amended petition and rendered partial judgment thereon; thereafter, the petitioner filed a withdrawal of the remaining counts of the amended petition, which the court, Prats, J., accepted with prejudice; subsequently, the court, Prats, J., denied the petitioner's motion for reconsideration and granted the petition for certification to appeal, and the petitioner appealed to this court. Affirmed.

          Justine F. Miller, assigned counsel, for the appellant (petitioner).

          Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Tamara Grosso, assistant state's attorney, for the appellee (respondent).

          Keller, Prescott and Pellegrino, Js.

          OPINION

          PELLEGRINO, J.

         The petitioner, Devon Smith, appeals from the judgment of the habeas court, Prats, J., rendered when it granted the petitioner's motion to withdraw his petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion because it conditioned the petitioner's withdrawal of his petition to be with prejudice. We disagree and, accordingly, affirm the judgment of the habeas court.

         The record reveals the following relevant facts and procedural history. In 1993, following a jury trial, the petitioner was found guilty of murder in violation of General Statutes § 53a-54a and sentenced to sixty years incarceration. State v. Smith, 46 Conn.App. 285, 298, 699 A.2d 250, cert. denied, 243 Conn. 930, 701 A.2d 662 (1997). This court affirmed the petitioner's conviction on direct appeal. Id.

         In January, 2011, the petitioner, who was self-represented at the time, filed a habeas petition, which is the subject of this appeal. In the petition, the petitioner alleged, inter alia, that his criminal trial counsel, Kevin Randolph, provided ineffective assistance due to his failure to call a ‘‘number of witnesses.''[1] The petitioner also represented that he had previously not filed a habeas petition.

         On November 21, 2011, the habeas court, Newson, J., granted the petitioner's motion for the appointment of counsel and appointed Dante Gallucci to represent the petitioner. Gallucci appeared before the habeas court on November 2, 2012, at which time he stated that it was his understanding that the petitioner had ‘‘filed a couple of [prior habeas petitions], but he withdrew them.'' Gallucci also stated: ‘‘[The petitioner] hasn't had any kind of substantive habeas on [the 1993] murder [conviction]. He's been involved in other habeas[es] with other cases.'' In response to Galluci's statements, the clerk of court identified several habeas petitions that the petitioner previously had filed.

         On January 11, 2013, the petitioner appeared before the habeas court, Solomon, J., by video conference. During that conference, the court asked the petitioner whether he had previously filed habeas petitions and noted that court records indicated that he had filed seven prior habeas petitions. The petitioner then admitted to having filed other petitions involving his 1993 murder conviction but maintained that the issues in the current petition were different from those in the earlier petitions. Ultimately, in a filing dated September 10, 2013, the petitioner acknowledged previously having filed eight habeas actions, seven of which related to the petitioner's 1993 conviction.[2]

         On April 3, 2013, the habeas court issued a scheduling order, in which it set the first day of trial for October 7, 2013. On September 13, 2013, less than a month before trial was scheduled to begin, the petitioner filed a motion requesting a continuance. The habeas court, Newson, J., granted this motion on September 19, 2013. On September 17, 2013, Gallucci filed a motion to withdraw as the petitioner's counsel, which the habeas court, Bright, J., granted on September 23, 2013. In October, 2013, Wade Luckett entered an appearance as the petitioner's counsel.

         On June 6, 2014, the habeas court issued a new scheduling order, which postponed the start of trial until June 18, 2015. On January 2, 2015, the petitioner, through counsel, filed an amended habeas petition. On June 4, 2015, two weeks before trial, the petitioner again filed a motion to continue the trial date. In support of this motion, the petitioner identified four potential witnesses that he had yet to interview. The habeas court, O ...


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