2007 Ct. Sup. 3981
No. TSR CV04 4000215-SConnecticut Superior Court Judicial District of Tolland at Rockville
February 27, 2007
MEMORANDUM OF DECISION ON RESPONDENT’S MOTION TO DISMISS (#110.00)
PATRICIA A. SWORDS, J.
Respondent’s motion to dismiss asks the court to dismiss paragraph three of the second amended petition based on the principles of res judicata and collateral estoppel. Paragraph three is one of three bases upon which petitioner alleges he received ineffective assistance of trial defense counsel. Paragraph three specifically alleges that “[t]rial counsel failed to object to the misleading and confusing wording of the jury instruction on defense of another where the court included in the instruction both defense of another and self-defense; . . .” Second Amended Petition. Petitioner filed an objection to the motion to dismiss. The objection attempts to rephrase or possibly plead differently the allegation in paragraph three as being directed at trial counsel’s failure to object to a charge on self-defense.
The standard this court must apply is well-established. Practice Book § 23-29 permits “[t]he judicial authority . . ., at any time, upon its own motion or upon motion of the respondent, [to] dismiss the petition, or any count thereof, if it determines that: . . . (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted . . .” “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . .” Pedro v. Miller, 281 Conn. 112, 116 (2007). “When a . . . court decides a jurisdictional question raised by a pre-trial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . .” Lagassey v. State, 268 Conn. 723, 736 (2004).
Respondent relies on the principles of res judicata and collateral estoppel as the basis for dismissing paragraph three. Petitioner has CT Page 3982 never previously raised and litigated a claim of ineffective assistance of counsel. Thus, neither res judicata nor collateral estoppel prevent petitioner from litigating a claim premised on counsel’s alleged deficient performance. See, e.g., Thorpe v. Commissioner of Correction, 73 Conn.App. 773, 778-79 n. 7 (2002) (res judicata) State v. Joyner, 255 Conn. 477, 489-90 (2001) (collateral estoppel). Respondent’s motion to dismiss premised on these two doctrines shall be denied. Nevertheless, the court itself has the authority under Practice Book § 23-29
to dismiss all or part of a petition for a writ of habeas corpus for the grounds enumerated in § 23-29(1) — (5).
A careful review of the Appellate Court’s decision on petitioner’s direct appeal from the criminal conviction, State v. Abraham, 84 Conn.App. 551, cert. denied, 271 Conn. 938 (2004), shows that petitioner on appeal claimed the trial court improperly instructed the jury on the combat by agreement exception to self-defense. “The court gave verbatim the defendant’s request to charge on self-defense, but added a charge on the combat by agreement exception to self-defense . . . The defendant did not object to the court’s instruction on the combat by agreement exception to self-defense. He [then sought] review of this unpreserved claim under State v. Golding, 213 Conn. 223, 239-40 (1989).”[1] State v. Abraham, supra, 84 Conn.App. 557-58.
The Appellate Court restated the applicable standard, namely that “[a] charge to the jury is not to be critically dissected for possible inaccuracies. It should be tested instead to determine its probable effect on the jury in guiding it to the correct verdict . . . As long as the instructions are correct in law, adapted to the issues and sufficient for the guidance of the jury, they are proper . . .”Id., citing and quoting State v. Crudup, 81 Conn.App. 248, 257-58, cert, denied, 268 Conn. 913 (2004). The Appellate Court then “. . . reviewed the charge in its entirety . . . [and] . . . conclude[d] that the court’s instructions were not misleading to the jury. The court had ample evidence before it to charge the jury on the combat by agreement exception to self-defense.” (Emphasis added.) Id., at 559. Further, “. . . the court’s instructions were correct in law, adapted to the issues and sufficiently guided the jury on the combat by agreement exception to self defense. Accordingly, . . . the defendant’s claim fails to satisfy the third prong of Golding because it fails to establish that a constitutional violation clearly existed and clearly deprived him of a fair trial.” Id., at 560.
Paragraph three of the Second Amended Petition claims that trial defense counsel was ineffective because he failed to object to the misleading and confusing wording of the jury instruction on defense of CT Page 3983 another where the court included in the instruction both defense of another and self-defense. “A claim of ineffective assistance of counsel consists of two components: a `performance prong’ and a `prejudice prong.’ To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel’ guaranteed . . . by the Sixth Amendment . . . To satisfy the `prejudice prong,’ a claimant must demonstrate that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied.” (Internal citations and quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458 (2005).
The Appellate Court reviewed the trial court’s charge in its entirety and concluded that the instructions were not misleading. Assuming arguendo that petitioner would be able to show trial counsel rendered deficient performance by failing to object to confusing or misleading wording in the jury instruction, the test that a habeas court must apply to determine whether petitioner was somehow prejudiced by counsel’s deficient performance would be whether the entire charge, considered as a whole, presented the case to the jury so that no injustice will result.[2] This is the very same test already applied by the Appellate Court to the identical charge in its entirety. It is not the province of this court to conduct what is tantamount to a review of the Appellate Court’s review of the jury instructions. The petitioner simply cannot demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
Based on the foregoing, petitioner cannot as a matter of law and fact state a cause of action premised on trial counsel’s failure to object to confusing or misleading wording in the jury instruction that should be heard by the court. Taking the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, and construing them in a manner most favorable to petitioner, the court finds that the claim in paragraph three fails to state a claim upon which habeas corpus relief can be granted. Consequently, paragraph three of the Second Amended Petition is dismissed in accordance with Practice Book § 23-29(2).
(1991).
CT Page 3985