Julio Diaz Marrero v. Warden (2014)

MEMORANDUM OF DECISION

Pursuant to the Supreme Court's recent decision in Janulawicz v. Commissioner of Correction, 310 Conn. 265, 77 A.3d 113 (2013), this habeas case is not ripe for review and is, therefore, dismissed.

The following procedural background is relevant to this decision.

The petitioner, Julio Diaz Marrero, was convicted after a jury trial of capitol felony, murder, felony murder, and other charges.   On March 11, 1997, the court sentenced the petitioner to life without parole plus forty years.   The petitioner appealed his conviction to the Supreme Court, which affirmed it, except that it ordered that the petitioner's three conspiracy convictions to be combined.  State v. Ortiz, 252 Conn. 533, 747 A.2d 487 (2000).¹

On September 7, 2006, the petitioner filed his first petition for a writ of habeas corpus claiming that his trial attorneys were ineffective at his criminal trial.   In particular, the petitioner claimed that his trial attorneys failed to properly advise him as to his right to testify in his own defense and that they “refused to permit” him to testify.   After a trial, the habeas court denied the petition as well as the petitioner's petition for certification to appeal.

The petitioner appealed the decision of the habeas court to the Appellate Court, which dismissed it summarily, without decision.  Marrero v. Commissioner of Correction, 114 Conn.App. 901, 969 A.2d 880 (2009).   The petitioner's appellate attorney, Joseph Visone, did not file a petition for certification to the Supreme Court because he did not believe that there were any nonfrivolous issues to appeal.   Attorney Visone notified the petitioner of this fact in a letter.

On January 28, 2010, the petitioner brought this second habeas petition claiming that Attorney Visone was ineffective in failing to file a petition for certification to the Supreme Court from the Appellate Court's decision dismissing his habeas appeal.   This court held a trial in this matter on August 22, 2012.   The parties agreed to stay post-trial briefs and the court's decision until after the Supreme Court issued its decision in Janulawicz v. Commissioner of Correction, supra, because the certified issue in that case was the same as the issue presented in this case.   The Supreme Court issued its decision in Janulawicz v. Commissioner, supra, on October 8, 2013 and the parties filed post-trial briefs.

In Janulawicz v. Commissioner, supra, the Supreme Court held that it lacked subject matter jurisdiction over the appeal because the matter was not ripe for review.   In particular, the petitioner asserted that his appellate counsel in his direct appeal from his conviction was ineffective for failing to file a petition to the Supreme Court.   The court found that the appeal was not ripe because the petitioner had not filed, and the court had not acted on, a motion to file a late petition for certification to appeal.   The court explained:  “The petitioner's claim is contingent on our denial of his motion to file a late petition for certification to appeal, an event that may never occur, thereby obviating any need for a resolution of the issues presented in this appeal.”  Id., 275 (footnote omitted).

This case is in the same posture as the Janulawicz case.   The evidence at trial revealed that the petitioner has not filed a motion in the Supreme Court to file a late petition for certification.   Accordingly, like Janulawicz, the petitioner's claim is contingent upon the petitioner filing a motion to file a late petition for certification to the Supreme Court and the Supreme Court's denial of that motion, an event that may never occur, thereby obviating any need for a resolution of the issues presented in this case.

Thus, the petition is dismissed.

So ordered.

Cobb, J.

FOOTNOTES

FN1. The petitioner was tried with a codefendant and the codefendant is the first named defendant..  FN1. The petitioner was tried with a codefendant and the codefendant is the first named defendant.

Cobb, Susan Quinn, J.