Jason Behmlander v. Warden, State Prison (2013)

HABEAS TRIAL VIDEO CONFERENCE, Includes Memorandum of Decision

THE COURT:  Good morning everybody.   All right, we're here this morning in the matter of Behmlander versus Warden.   That is docket number CV13–4005192.   And we're here today for a hearing on the respondent's motion to dismiss, number 106.   All parties please identify themselves for the record.

ATTY. NOWAK:  Good morning, Your Honor.   Craig Nowak for the respondent.

THE PETITIONER:  Good morning, Your Honor.   Jason Behmlander, petitioner.

THE COURT:  Okay. The record will reflect that at Mr. Behmlander's request in his objection to this motion—although this is a motion that could potentially result in a disposition of dismissal of his case—when he filed his objection to this motion—that would be number 109—he specifically requested that oral argument be set via teleconference or videoconference.

And so, again, we're here.   Attorney Nowak, this is your motion.   And so unless there's anything preliminarily, I'll allow you to proceed.

ATTY. NOWAK:  Yes, Your Honor.   This is respondent's motion to dismiss.   Procedurally, Mr. Behmlander filed his amended petition in this case.   I was going to wait for the status conference, which the respondent normally does.   Mr. Behmlander, however, filed another motion indicating that his petition would not be amended, so I filed the return and indicating that Mr. Behmlander wanted to proceed on his petition that he originally filed.

Reading the petition, according to Mr. Behmlander, he should not have been found guilty of the crimes of sexual assault because Mr. Behmlander and the victim were still married at the time.   However—which is noted in the appellate court decision State versus Behmlander, 11 (as spoken) Conn.App. at 359, and also in Mr. Behmlander's petition, the facts stated by him.   And additionally, he attaches his dissolution of marriage judgment to his objection to my motion, which sets forth the facts that Mr. Behmlander, who filed an appearance in the dissolution of marriage between himself and the victim, indicates that they were married on September 2, 2000, in Norwalk Connecticut, and the court—Judge Novack entered the divorce decree on February 9, 2006.   The crime occurred in this matter on February 21, 2006.

So if you look at the facts in the light most favorable to the non-moving party, assuming all the facts that are true, Mr. Behmlander has failed to state a claim upon which any relief can be granted because it's already been established—and he has—himself has established that they were not married.   The victim and Mr. Behmlander were clearly not married on the date of the crime of February 21, 2006, since the divorce decree was entered prior to that time—early February.

THE COURT:  Okay. Mr. Behmlander?

THE PETITIONER:  Yes, Your Honor.   The state's attorney misconstrued my petition in general.   As I stated in my petition that a dissolution of marriage judgment was in place at the time, I also stated in my petition that it did not dissolve the marriage between Ms. Goodman and I—Ms.   Goodman being the victim—at the time.   So therefore, since it did not dissolve the marriage of Ms. Goodman and I, Ms. Goodman and I were still married at the time of the crime in this case.   And so, therefore, his motion to dismiss should be denied and it should move forward—

THE COURT:  Well, let me ask you this, sir.   What—what's your claim that—I mean, what law or what information do you have to support your claim that—although I've got a document you attached as an exhibit to your motion—that the—Judge Novack on February 9th of 2006 makes findings that there is jurisdictions, that there are appearances of the parties, and enters a judgment of dissolution, what's your claim that that dissolution isn't a valid judgment—that this court—another superior court of the State of Connecticut and/or the trial courts don't have to respect?

THE PETITIONER:  Um, as I've shown in my objection to the motion to dismiss, the—the victim and I were married on September 2nd of 1999 in Las Vegas, Nevada.

THE COURT:  Right.

THE PETITIONER:  And according to the judge's—I'm sorry, Your Honor?

THE COURT:  Yeah, okay.

THE PETITIONER:  All right.   And the dissolution of marriage judgment was based upon the fact that we were married in September 3, 2000, in Norwalk, Connecticut.   So the judgment did not address or dissolve the marriage at all.   So that's my contention today is that because the marriage was not even addressed during the dissolution of marriage judgment, so therefore, how can it be dissolved?

THE COURT:  When did you move to Connecticut?

THE PETITIONER:  I'm sorry.

THE COURT:  When did you move to Connecticut?

THE PETITIONER:  We moved to Connecticut in 2003.

THE COURT:  Okay. And have you ever to this day sought to challenge the validity of this dissolution of marriage judgment?

THE PETITIONER:  Uh, not until this petition, Your Honor, because—

THE COURT:  No, no, no.

THE PETITIONER:—unfortunately, nobody—

THE COURT:  I'm not talking about the petition.   I'm asking you if you have ever sought to challenge the validity of the Connecticut dissolution of marriage judgment?

THE PETITIONER:  No, Your Honor.

THE COURT:  So you accepted the judgment.

THE PETITIONER:  Of—uh, yes, I accepted that judgment up until recently.

THE COURT:  Okay. So—and just so I'm clear, where is this you're claiming in the dissolution of marriage judgment that the court indicates that the marriage was in Norwalk, Connecticut.

THE PETITIONER:  It is my Attachment 1, Your Honor?   It's in my objection to the motion to dismiss.   It's Attachment 1 and it is under Section 3.

THE COURT:  Okay. So you're saying because there's a scrivener's error—what we call a scrivener's error in the court's judgment, it's got the correct date.   It just notes that it says Norwalk, Connecticut as opposed to—as opposed to Las Vegas, Nevada.   Are you aware that there are laws and rules in the State of Connecticut that say that scrivener' s errors that don't go to the court's jurisdiction or the substance of the court's ability to rule or their jurisdiction over the parties are not a valid challenge to the court ruling or court judgment?

THE PETITIONER:  Yes, Your Honor.   I'm well aware about scrivener's errors.

THE COURT:  Okay.

THE PETITIONER:  And I believe this goes past the scope of that decision simply by the fact that there was an actual—the marriage between the two parties—Ms.   Goodman and myself—took place in Las Vegas, Nevada on a separate day and a separate place.   So those are—and—and the September 3, 2000, there was actually a religious ceremony that took place that day.   So it wasn't the fact that it was just a clerical error.   It was—they—she—well, essentially the court dissolved a religious ceremony that had no bearing—

THE COURT:  Well, let me ask you this.

THE PETITIONER:—to  what—

THE COURT:—why—let  me ask you this.   thEn you and your wife voluntarily submitted yourselves to the jurisdiction of the State of Connecticut.   Right?  Who filed this action, you or her?

THE PETITIONER:  Uh, Ms. Goodman.

THE COURT:  Okay. And you filed an appearance and submitted yourself to the jurisdiction of the court.

THE PETITIONER:  Yes, Your Honor.

THE COURT:  Okay. And you accepted the judgment of the court.

THE PETITIONER:  Uh, yes.

THE COURT:  Up until today.

THE PETITIONER:  I'm sorry, Your Honor?

THE COURT:  Anything else, sir?

THE PETITIONER:  Well, I would just like to say, Your Honor, that—that just moving forward with—I mean, obviously this is just a motion to dismiss the petition, but, like I said, I believe I can actually prove my claim if you look at the totality of the evidence that I presented in my objection.   And so, therefore, I believe we can at least go forward past the motion to dismiss.

THE COURT:  Okay. Anything else, Attorney Nowak?

ATTY. NOWAK:  The only thing I have, Your Honor, is that all we have right in front of us is the dissolution of marriage signed by Judge Novack in Stamford, Connecticut February 9, 2006.   Mr. Behmlander filed an appearance in that action.   What he's attempting to do now is attack the dissolution of marriage judgment which he already filed an appearance on in this court.   The court in Stamford, Connecticut had jurisdiction over the marriage.   If Mr. Behmlander had any issues with the date, place, and time of the marriage, he should have made so in the divorce court in Stamford, Connecticut.   However, the fact remains the court had jurisdiction over the marriage itself regardless of where they married.   Thank you.

THE COURT:  Hold on one second.   Okay. Anything else, sir?

THE PETITIONER:  Um, yeah.   Just in reply to the state's attorney's statement there.   I don't know—I don't know if it reflects on the record, but Ms. Goodman and I were both pro se at the time.   And she is the one who, during—as you will see in Attachment—Attachment 2, Ms. Goodman was the one who wrote down the date which the dissolution of marriage judgment was based off of on the complaint—the divorce complaint.   She's the one who—who wrote down that incorrect date.   I myself, I wish I would have caught it at the time.   That way this wouldn't be an issue right now.   But I did not catch it at the time and nor did anyone else.   So it's not like I'm benefitting from my own mistake.   I just—it was just—it was an oversight on my part and Ms. Goodman's unfortunately.   So that's just a reply to what the state was saying that, yes, I filed an appearance and unfortunately we didn't have representation at the time, so this mistake could have been obviously caught earlier.

THE COURT:  Okay. All right.

Having heard the motion, the Court is going to grant the respondent's motion to dismiss.   The Court notes, reviewing the appellate court findings of fact—and that's State versus Jason B., 111 Conn.App. 359 at page 360—that court makes a finding that the criminal act alleged occurred on February 21st of 2006.   That would have been after the dissolution of marriage judgment.   It was rendered here in the State of Connecticut.   The Court finds that, again, regardless of what issues the petitioner may claim now, that stands as a valid judgment of the Superior Court of the State of Connecticut, which the defendant has neither challenged nor sought to challenge.   And at this point in time unlikely he would have the ability to challenge at this time.

And as the respondent correctly cites, Mr. Behmlander's theory is that since there is somehow some alleged deficiency in the Connecticut judgment, that the State of Nevada still or does recognize them as married, the issue is—or likely the issue is that there has been no filing or no request for a full faith and credit recognition in the State of Nevada.   That does not challenge the fact that until and unless the judgment in the State of Connecticut is, in fact, challenged, that stands as a valid judgment that for all legal purposes if there were some dispute in the State of Nevada, that Nevada would have to recognize the claim based on the evidence and affidavits and facts.

So, therefore, even if accepted as a hundred percent true, fails to state a claim upon which relief can be granted because the evidence is that Mr. Behmlander's claim is that he was married at the time of the criminal acts and, therefore, could not have been convicted under the statute for which he is now incarcerated.   And again, the findings of fact show that that, being the superior court dissolution of marriage judgment which was on February 2nd of 2006, and the appellate court finding that the criminal act happened some three weeks later on February 21st of 2006, show that there is no dispute of fact that he was not, in fact, married.

Alternatively, even if Mr. Behmlander's claims in here were accurate and true, what he presents, frankly, are appellate issues.   The claim would be that there was either insufficient evidence to convict him or that there was some mis-application of the law by the state and/or the trial court.   And, frankly, those were issues that are appropriately appellate issues, not issues that generally would come before the habeas court.

But the finding is based on the petitioner's claim that the allegations and, with the additional affidavits and undisputed findings of fact, show that Mr. Behmlander was not, in fact, married at the time that the crimes were committed.   And so he's has failed to state a claim upon which relief can be granted.   So again, for all those reasons, the petition is dismissed.

The court will order a transcript of the entire hearing, which will stand in lieu of a written memorandum of decision, for my signature.

The clerk is ordered to send Mr. Behmlander notice of his rights to appeal.   Mr. Behmlander, you're on notice that the Court, again, has dismissed your complaint.   You will get your appellate paperwork in the mail.   You're on notice that as a self-represented party that you will be required to adhere to and to file all—any and all appellate paperwork that you intend to file within the time frames required by our statutes and Practice Book rules.

I will also direct the clerk to prepare and to file a judgment file for the record.

Anything additional?

ATTY. NOWAK:  No, Your Honor.   Thank you.

THE COURT:  All right.   Good luck, sir.

THE PETITIONER:  Your Honor.

THE COURT:  Yes.

THE PETITIONER:  Can I get an exception, Your Honor, to the report?

THE COURT:  Obviously you've filed an objection so your exception is noted.

THE PETITIONER:  All right.   Thank you, Your Honor.   And can I request, Your Honor, that I may—may I amend the petition to reflect ineffective assistance of trial counsel, then?   Or appellate counsel?

THE COURT:  This petition is dismissed.   So if you want to file something else, you're gonna have to file a new petition, sir.

THE PETITIONER:  Okay, Your Honor.   Thank you.

THE COURT:  Okay? All right.   Stand adjourned until 10 a.m. tomorrow morning.

Newson, J.

Newson, John M., J.