Judicial District of Tolland at G.A. 19


     Habeas; Due Process; Whether Practice Book (2009) §§ 23-41 and 23-42 are Unconstitutional in that They Permit a Court to Dismiss a Habeas Petition Without an Evidentiary Hearing.  The petitioner was convicted on a guilty plea of murder.  He filed several habeas petitions alleging that his trial counsel provided ineffective assistance and that his guilty plea was not voluntary.  The petitioner's attorney sought to withdraw from the cases pursuant to Practice Book (2009) § 23-41 (a), which provides that when appointed habeas counsel "after conscientious investigation and examination of the case"  concludes that the case is "wholly frivolous," counsel shall advise the court by filing a motion to withdraw.  Subsection (b) of § 23-41 provided the petitioner an opportunity to respond in writing to the motion to withdraw, and he filed a twenty-three page memorandum in opposition, asserting that his claims were not frivolous.  The habeas court granted counsel's motion to withdraw and dismissed the habeas petitions pursuant to Practice Book (2009) § 23-42 (a), which provides that, if the court finds that the case is "wholly without merit," it should allow counsel to withdraw and consider whether to dismiss the habeas petition.  The petitioner appealed, claiming that Practice Book (2009) §§ 23-41 and 23-42 are unconstitutional insofar as they permit a habeas court to dismiss a habeas petition without a full evidentiary hearing.  The Appellate Court (134 Conn. App. 405) disagreed and, applying the three-factor balancing test for evaluating procedural due process claims set out in Mathews v. Eldridge, 424 U.S. 319 (1976), concluded that the Practice Book provisions, as applied to the petitioner, did not violate his procedural due process rights under the federal constitution.  It reasoned that the procedural safeguards set forth in §§ 23-41 and 23-42—including the opportunity to rebut in writing an attorney's conclusion that a petitioner's claims are frivolous—protected the petitioner against an unreasonable risk of an erroneous deprivation of his liberty.  It also determined that, although the state has an interest in the proper adjudication of a habeas petitioner's claims, the imposition of additional procedural safeguards that would require the state to litigate a case that had been judicially determined to be wholly without merit would be of little value and place an unnecessary burden on the state.  The Supreme Court will now consider whether the Appellate Court properly concluded that the habeas court correctly dismissed the habeas petitions without an evidentiary hearing.