256759 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS

The petitioner, Scott Pickles, alleges in his amended petition for a writ of habeas corpus, filed on September 11, 2009, that the statutes under which he was charged, convicted and sentenced were invalid at the time of the underlying offense.   The petitioner further asserts that the Public Acts, which created or amended the statutes at issue, were constitutionally defective because they lacked language required by Article Third, Section 1, of the state constitution.   A fair reading of the amended petition, prepared by the petitioner himself, alleges failures by Attorney Sebastian DeSantis.   Consequently, the amended petition also alleges ineffective assistance of counsel.

The respondent has filed a motion to dismiss, accompanied by a memorandum of law, seeking dismissal of the amended petition pursuant to Practice Book §§ 23-29(3) and 23-29(5).   The petitioner filed an objection to the motion to dismiss and a memorandum of law.   The motion to dismiss identifies two bases for dismissal:  first, that the allegations in the instant petition are identical to those raised in a prior petition, CV06-4000990 (prior petition), and fail to state new grounds or proffer new evidence not reasonably available at the time of the prior petition;  second, that the petitioner is procedurally defaulted because he did not appeal from the dismissal of the prior petition.   The court notes that in accordance with Practice Book § 23-29, the court on its own may also dismiss all or part of a habeas corpus petition.   For the reasons stated more fully below, the motion to dismiss is granted.

DISCUSSION

Practice Book § 23-29 provides that:  “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that:  (1) the court lacks jurisdiction;  (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted;  (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition;  (4) the claims asserted in the petition are moot or premature;  (5) any other legally sufficient ground for dismissal of the petition exists.”

“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.”  Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).  “In ruling upon whether a complaint survives a motion to dismiss, 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 ․” (Internal citations and quotation marks omitted.)  Young v. Commissioner of Correction, 104 Conn.App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008).   Nevertheless, the petitioner “․ bears the burden of proving that the court has subject matter jurisdiction.”  Id.

According to the pro se petition that initiated this case, the petitioner is convicted of three counts of capital felony murder, in violation of General Statutes § 53a-54, and is serving a sentence of life without the possibility of release.   Although the petitioner does not indicate an offense date, his petition states that he was arrested on June 22, 1997, pleaded guilty on October 21, 1999, and was sentenced on October 27, 1999.   The petitioner also indicated that the instant petition challenges the dismissal of the prior petition, as well as that the issues raised in the prior petition are central to the instant matter.

A court is permitted to take judicial notice of prior cases involving the identical parties.   The court hereby takes judicial notice of the prior petition and the well-reasoned memorandum of decision in the petitioner's prior habeas corpus.   The prior petition was dismissed after the court granted the respondent's motion to dismiss.   Pickles v. Warden, Superior Court, judicial district of Somers, Docket No. CV06-4000990 (April 20, 2009, Nazzaro, J.) (2009 Ct.Sup. 7092).¹

The petitioner is again seeking to challenge the identical statutes at issue in his prior petition, now under the additional guise of ineffective assistance by prior habeas counsel.   Since the dismissal of the prior petition, the Appellate Court released its decision in Figueroa v. Commissioner of Correction, 123 Conn.App. 862, 3 A.3d 202 (2010).   There, the habeas court had dismissed a habeas petition raising a challenge identical to the instant petitioner's, that certain criminal statutes were constitutionally defective due to missing enactment language.

The Appellate Court held “that the enactment of a law by the General Assembly transmitted to the secretary of the state with the governor's signature, or repassed by a two-thirds majority of each house after a gubernatorial veto, or which the governor allowed to become law without his or her signature, is compliant with the constitutionally mandated enactment clause if that law contains the required enactment clause.   The plain language of the constitution refers only to laws passed by the General Assembly, not to published compilations of all the laws passed by the legislature in a given session, which are required to be prepared and published by § 2-58.   Section 2-58 requires the legislative commissioners to prepare after each legislative session's adjournment ‘an edition of the public and special acts passed in the regular session in the form of engrossed bills ․’ The legislative commissioners are required to affix a certificate to the compilation indicating that their compilation contains correct copies of ‘those [public and special acts] engrossed and on file in the office of the Secretary of the State.’   General Statutes § 2-58.   This is a statutory mandate, apart from the . constitutional requirement of article third, § 1. Our state's constitutionally mandated enactment clause was present in both pertinent acts passed by the General Assembly, P.A. 92-260 and P.A. 88-128, and, therefore, neither public act is void for lack of it, nor should the petitioner's conviction be voided on that ground.”  Id., 868-69.

The Appellate Court further noted “[t]he petitioner's claim that the failure to include the enactment clause in the published public acts deprived him of notice of the nature of the charges against him is without merit.   The information submitted by the state provided the petitioner with notice that the state sought to prove he was guilty of murder in violation of § 53a-54a and of carrying a pistol or revolver without a permit in violation of § 29-35.   There can be no doubt but that the substance of those criminal statutes-the acts that the statutes prohibited-was widely available to the petitioner by virtue of their publication by the legislative commissioners under the authority of § 2-58.   This is so even without the inclusion of the enactment clause in the published volumes of the public acts.   The prefaces to those public act compilations referenced the enactment clause and explained its absence.   Further, the prefaces contained the certification of the legislative commissioners that the publication contained ‘a correct copy of the laws enacted by [the] General Assembly ․ as engrossed and on file in the office of the Secretary of the State.’   As has been stated, the original copies of the pertinent public acts on file with the secretary of the state's office contained the enactment clause in full.   A member of the public encountering the published public acts in question here and desiring confirmation that the publication reflected a duly enacted law of the General Assembly would therefore be directed by the prefaces to these original copies, where such confirmation would be evident.   To credit the petitioner's argument that the lack of the enactment clause in the published versions of the public acts here violated his ‘constitutional right to due process truly would be to elevate form over substance.   This we will not do.”  Id., 870-71.

Based upon the foregoing, the court concludes that the petitioner's claims in the instant matter, whether directed at the validity of the criminal statutes or counsel's purported failure to challenge them because they lack enabling language, are wholly frivolous.   The motion to dismiss is granted.   Judgment shall enter dismissing the petition for a writ of habeas corpus.

T. SANTOS, JUDGE

FOOTNOTES

FN1. A copy of Judge Nazzaro's decision is attached as an appendix A to the instant decision.   The petitioner appealed the dismissal of his first habeas corpus petition.   The appeal, which was assigned docket number A.C. 31204, was withdrawn by the petitioner.[Editor's Note:  Appendix A, which reproduced the trial court's April 28, 2009 and is already available, has not been reproduced here.].  FN1. A copy of Judge Nazzaro's decision is attached as an appendix A to the instant decision.   The petitioner appealed the dismissal of his first habeas corpus petition.   The appeal, which was assigned docket number A.C. 31204, was withdrawn by the petitioner.[Editor's Note:  Appendix A, which reproduced the trial court's April 28, 2009 and is already available, has not been reproduced here.]

Santos, Thelma A., J.