Charles Tyson v. The Warden, State Prison (2013)

MOTION TO DISMISS

THE COURT:  Good afternoon, everyone.

This is the habeas trial of Tyson v. Warden.   If the parties could please identify yourselves for the record.

ATTY. PATEL:  Attorney Laljeebhai Patel representing the petitioner, Mr. Tyson.

ATTY. CLIFTON:  Good morning, Your Honor.   David Clifton for the Respondent–Warden.

THE COURT:  Attorney Clifton.

ATTY. PATEL:  Your Honor, I request if you can please—

THE COURT:  Any issues with him?

THE MARSHAL:  No, sir.

THE COURT:  Okay. Please, you can remove them.   Thank you very much.

ATTY. PATEL:  Thank you.

THE COURT:  Okay. And there's a Motion to Dismiss filed by the Respondent.   Are you ready to address that matter?

ATTY. PATEL:  Your Honor, respondent—sorry.   Petitioner agrees that the case is the Janulawicz, which was released by Supreme Court on October 8, applies to the petitioner's claim, which is 6–A, and therefore petitioner withdraws that claim.

THE COURT:  Okay.

ATTY. PATEL:  6–A.

THE COURT:  6–A is withdrawn.

ATTY. PATEL:  Yeah.

Petitioner believes that 6–B should remain there because that case really doesn't apply to the situation of the petitioner, in particular, if you read Footnote 10 of that decision, and the articulation that Supreme Court creates are going from the paragraph, which I believe moreover where the—now see the change, it really Supreme Court examines its own process how this process works.

And as an appellate lawyer sometimes I do appeal and file late appeals to the Supreme Court, so I think that's a situation which is unique under the circumstances, and the court specifically addressed that this issues are different than when you are applying to the Appellate Court, and I think Footnote 10 asks also there are other aspects of the—of the situation which—which petitioner case presence which is that it's a two-part.   One, he has to get—he will be assigned another lawyer, he'll be reviewing the files, as the Supreme Courts says, so respectfully petitioner submits that this case that—that applies to 6–A, petitioner petition 6–A, which we have agreed to withdraw as then applied to 6–B.

THE COURT:  Thank you.

ATTY. CLIFTON:  First, I'd just like to address the withdrawal of 6–A. I'd actually object to that, given that we're here to start trial, and if the petitioner agrees that case law is controlling, it should, in fact, be a dismissal pursuant to that case.

THE COURT:  Okay.

ATTY. CLIFTON:  Turning to the claim on appeal, I would agree that Footnote 10 does raise a distinction in terms of the difference between a petition for certification versus a late petition to file the actual appeal itself.   However, the analysis is still the same.   There's nothing—there's nothing jurisdictional about the time limits of filing the appeal.   So, despite the fact that whatever analysis the trial court would or—excuse me—the Appellate Court would undertake in deciding whether or not to grant that motion for a late appeal, it is still conditioned on this hypothetical injury, which is that whether or not they would, in fact, deny that motion.

I tried to alert the petitioner to this issue in my return.   It was actually substantively in the response.   It was going to be a defense at the trial.   However, the new case law allows it to be dismissed because it says it's not right for adjudication.   So, I would—I would instead argue that because the same analysis controls that it is not a grant of jurisdiction, it is, in fact, a procedural mechanism and no motion to file a late certification to appeal the habeas corpus trial has been filed even to this day, we are dealing with a hypothetical injury, and the court should not adjudicate an unripe petition.

Thank you.

THE COURT:  Attorney Patel, has your client or anybody representing him filed a motion to file a late petition with either the—well, the Supreme Court or the Appellate Court?

Did you understand my question, sir?

ATTY. PATEL:  Can I have one second to talk to my client?

THE COURT:  Okay.

ATTY. PATEL:  Your Honor, my client would have no problem if—if his rights are restored by this court.

THE COURT:  I have—did you read the—the Supreme Court case cited by the respondent?   The Janulawicz versus Commissioner of Correction?   The one we just cited?

ATTY. PATEL:  Yes.

THE COURT:  If you read that, the habeas court was reversed because they did that exactly, and this court does not have jurisdiction to hear this case because your client has—according to the case, client has failed to file a motion to file a late petition for certification.

ATTY. PATEL:  Your Honor, when I read the case Iovieno, which was decided by the Supreme Court in 1997.

THE COURT:  Okay. This is a more recent case—or this is 2013.

ATTY. PATEL:  But what—but there's no reference to this case being overruled by the—by the Janulawicz case, as I read the Janulawicz case.   There's no reference to Iovieno, which was decided by also the Supreme Court.   And the reason I'm referring to that case is that in that case what happened is that Supreme Court then send the case back to the—to the habeas court, and I believe as I interpret it, asking the habeas court to—to consider on merits the petition for certification to appeal in somewhere restoring the right.

THE COURT:  Okay. Attorney Clifton, anything else?

ATTY. CLIFTON:  No, Your Honor.

THE COURT:  All right.   The way I read this case, Mr. Patel, you pointed out Footnote 10.   There is a distinction between a petition to certify a case to the Appellate Court and to the Supreme Court.   The Supreme Court does not take—look at the merits at all.   Footnote 10 merely points out that the Appellate Court will actually look at the merits of the case, even if you file the motion to file a late petition for certification, but the analysis is the same.

Your client has not filed a motion to file late petition for certification and that could be done through Practice Book Section 60–2(c)—excuse me—(6) or 60–3, which allows either the Appellate Court or Supreme Court to consider a motion to file a late petition, and since your client has not done that, this court has no jurisdiction.   There no (indiscernible) here because matter is not ripe yet for adjudication.

I know you asked to withdraw 6–A, but I'm going to dismiss both counts 6–A and 6–B, pursuant to the Supreme Court holding in Janulawicz v. Commissioner of Correction 310 Conn. 265 (2013).

Your client can still file a motion to file late petition for certification to either of those courts and he hasn't done that.   And there's nothing that says he can't do that nor that his motion will be denied, and until that's done, this court has no jurisdiction, so I'm going to dismiss, again, 6–A and 6–B pursuant to Practice Book Section 23–29(1)(2)(4).

Is there anything else?

Okay. Court's adjourned.   Thank you.

Kwak, J.

(The hearing concluded and court adjourned.)

Kwak, Hunchu, J.