Kukucka v. Commissioner of Correction

Citations

• 225 Conn. App. 159

Syllabus

The petitioner, who had been convicted, after a jury trial, of the crimes of strangulation in the first degree, sexual assault in the third degree, and assault in the third degree, sought a writ of habeas corpus, claiming that, pursuant to State v. Dickson (322 Conn. 410), his due process rights had been violated and that his trial and appellate counsel had rendered ineffective assistance. On his direct appeal from his underlying convic- tion, the petitioner had claimed, inter alia, that the trial court had improp- erly denied his motion to suppress in-court and out-of-court identifica- tions of him made by a witness to the assault. Dickson, which was decided by our Supreme Court more than four months after the petitioner had filed his direct appeal, held, inter alia, that, in cases in which identity is an issue, in-court identifications that are not preceeded by a successful identification in a nonsuggestive procedure implicate due process princi- ples. The petitioner's appellate counsel did not raise any claim predicated on Dickson in either his principal or reply briefs in the direct appeal. The respondent, the Commissioner of Correction, filed a return to the petition in which he raised a special defense of procedural default because the petitioner had failed to raise the Dickson claim on direct appeal. At the habeas trial in the present case, the habeas court heard testimony from the petitioner, his trial counsel, and a legal expert but not from the petitioner's appellate counsel. The court rendered judgment denying the petition for a writ of habeas corpus, and, on the granting of certification, the petitioner appealed to this court. Held: 1. The petitioner could not prevail on his claim that the habeas court improp- erly determined that he failed to satisfy the cause and prejudice test set forth in Reed v. Ross (468 U.S. 1) to excuse his procedural default for failing to raise the due process claim during his criminal trial; the petitioner was unable to rely o