Respondents have an opportunity to contend a Connecticut habeas corpus claim. One way they might do this is through a successive petition. Learn more here.

The respondent, in its return, may contend that the habeas petition constitutes a successive petition, see Practice Book § 23- 29(3), in that the petition presents a ground for relief that was denied in an earlier petition. As a result, the petition should get dismissed pursuant to Practice Book §§ 23-22(2)(3), 23-29(3)(4)(5), 23-30(b), 23-34 and/or 23-37. See McClendon v. Commissioner, 93 Conn. App. 228, 231 (“[W]here successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition”), cert. denied, 277 Conn. 917 (2006).

Successive Petition Defense

A “‘ground” [is] defined as sufficient legal basis for granting the relief sought.’” McClendon v. Commissioner, 93 Conn. App. at 231(quoting Tirado v. Commissioner, 24 Conn. App. 152, 156 (1991)). If the defense of successive petition is raised in the return, habeas counsel must answer the defense in the reply. See Practice Book §§ 23-31 and 23-35(c).

When the respondent raises the successive petition defense, the habeas court need not hold an evidentiary hearing. See Negron v. Warden, 180 Conn. 153, 158 (1980); see also Carter v. Commissioner, 109 Conn. App. 300, 305-06 (2008). Instead, the habeas court can decide the issue on the pleadings. See Zollo v. Commissioner, 133 Conn. App. 266, 272, cert. granted on other grounds, 304 Conn. 910 (2012)(“We agree that a motion to dismiss may be decided on the pleadings…and we do not conclude that the second habeas court erred in granting the respondent’s motion to dismiss on that basis.” (Emphasis in original; citation omitted)).

“In ruling upon whether a complaint survives a motion to dismiss, [the habeas] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader…” Zollo v. Commissioner, 133 Conn. App. at 276; see generally Id. at 276-80.

Ground for Relief

Accordingly, in any case where there existed a prior habeas petition, habeas counsel must ensure that the same ground for relief does not advance, or, if it does advance, that it rests on, “new facts or…evidence not reasonably available at the time of the prior petition.” Practice Book § 23-29(3); see also Practice Book § 23-22(2)(3). Additionally, where actual innocence is a real possibility, habeas counsel must ensure that actual innocence is plead, as it will enable the petition to overcome the successive petition defense. See Schlup v. Delo, 513 U.S. 298, 316 (1995); Herrera v. Collins, 506 U.S. 390, 404 (1993).

And in the reply, see Practice Book §§ 23-31 and 23-35(c), to the respondent’s return, habeas counsel must emphasize the distinction between the grounds for relief, or, alternatively, the newly discovered facts or evidence that permits the ground for relief to be entertained. When actual innocence is alleged, habeas counsel must also emphasize that it would be a fundamental miscarriage of justice to dismiss the petition of a factually innocent person on the basis of the successive petition defense. See Schlup v. Delo, 513 U.S. at 316.