Small v. Commissioner of Correction
The habeas court properly could consider habeas counsel's oral amendment to the habeas petition and the petitioner's argument, unsupported by citation or analysis, was unavailing that the court should have canvassed him before permitting the amendment. Following a remand from the Supreme Court vacating capital felony convictions, Anthony Small was sentenced to serve concurrent terms of 45 years of incarceration on each of two felony murder counts and five years' incarceration on a conspiracy to commit robbery count. His first petition for a writ of habeas corpus was denied and the denial affirmed on appeal. He filed this second habeas action. Small's third amended petition contained three counts. The habeas court dismissed the first count alleging ineffective assistance of criminal trial and appellate counsel based on res judicata and Practice Book §23-29(3). The second count alleging ineffective assistance by his first habeas counsel was dismissed for procedural default. The third count alleging ineffective assistance by his first appellate habeas counsel for failing to argue that habeas trial counsel provided deficient performance, was dismissed for lack of subject matter jurisdiction. The court determined that it lacked subject matter jurisdiction after the petitioner's counsel specified that this claim related only to the conspiracy conviction. The petitioner had completed that sentence prior to filing this action. The court denied Small's petition for certification to appeal. On appeal, Small claimed that the court improperly denied certification to appeal and improperly determined that it lacked subject matter jurisdiction to consider the merits of his petition. The Appellate Court disagreed and dismissed the appeal. The petitioner agreed that the first two counts were properly dismissed. He challenged the third count's dismissal, contending that the process by which habeas counsel orally amended the count was improper and the court's determination regarding the scope of count three and corresponding lack of jurisdiction must be reversed. No citation or analysis supported Small's argument that the habeas court should have canvassed him before permitting the amendment. The court properly considered the statement of habeas counsel as an oral amendment to the petition and properly limited the count to the conspiracy conviction. It was undisputed that the five year sentence was completed when the petition was filed. Consequently, subject matter jurisdiction was properly found lacking.