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 ...