Judicial District of Tolland at Somers


      Habeas; Successive Petitions; Due Process; Whether the Habeas Court Properly Dismissed the Habeas Petition Pursuant to Practice Book § 23-29 (3) on the Ground that it Raised Claims that were Previously Litigated; Whether Practice Book § 23-29 is Unconstitutional to the Extent that it Permits a Court to Dismiss a Habeas Petition Without Providing the Petitioner with Notice and an Opportunity to be Heard.  In 1996, the petitioner was convicted of murder, attempted murder and unlawful restraint in the first degree.  After the Supreme Court affirmed his convictions, the petitioner filed a petition for a writ of habeas corpus, alleging ineffective assistance of trial and appellate counsel.  The habeas court denied the petition, and, thereafter, the petitioner filed an appeal in the Appellate Court, but he withdrew the appeal before the court issued a decision.  In 2004, the petitioner filed a second habeas petition, alleging ineffective assistance of habeas counsel.  The habeas court denied the second petition, and the Appellate Court subsequently dismissed the petitioner's appeal from the habeas court's judgment.  The petitioner then filed a habeas petition in the United States District Court for Connecticut, which, like his first state habeas petition, asserted claims of ineffective assistance of trial and appellate counsel.  The District Court dismissed the petition on the ground that the petitioner had not exhausted his state court remedies as to the denial of his first state habeas petition because he had withdrawn his appeal before the Appellate Court had the opportunity to render a decision.  Thereafter, the petitioner filed a third state habeas petition in which he again alleged that his trial and appellate counsel were ineffective.  He further requested that the habeas court restore his appellate rights so that he could exhaust his state court remedies and then file another habeas petition in federal court.  The habeas court dismissed this petition pursuant to Practice Book § 23-29 (3), which provides that a court may, at any time, dismiss a habeas petition on its own motion if it determines that "the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition."  The petitioner now appeals, arguing that, in filing his third state habeas petition, he did not seek to relitigate any of the claims that were advanced in either the first or second petition, but that he instead merely sought to obtain the restoration of his appellate rights with respect to his first petition so that he could pursue a habeas action in federal court.  He further contends that Practice Book § 23-29 is unconstitutional to the extent that it permits a court to dismiss a habeas petition without providing the petitioner with notice and an opportunity to be heard.