The petitioner has the right under Article First, § 12 of the Connecticut Constitution and General Statutes § 52-470(a) to have the habeas court hear the testimony and arguments related to the claims contained in the petition. Also see General Statutes § 52- 470(a). (“The court or judge hearing any habeas shall proceed in a summary way to determine the facts and issues in the case, by hearing the testimony and arguments in the case…” (emphasis added)). In Mercer v. Commissioner, 230 Conn. 88 (1994), the Connecticut Supreme Court re-affirmed that “absent an explicit exception, an evidentiary hearing is always required before a habeas petition may be dismissed.” Mercer, 230 Conn. at 93.

Case Law

Under the case law, the only recognized exception is that contained in Practice Book § 23-29. So, where the petitioner brought a previous habeas petition and the current petition fails, “‘to state new facts or proffer[] new evidence not reasonably available at the previous hearing.’” Id. (quoting Negron v. Warden, 180 Conn. 153, 158 (1980)); but see Practice Book § 23- 24 Habeas Corpus—Preliminary Consideration of Judicial Authority and § 23-37 Habeas Corpus—Summary Judgment.

Also, the petitioner bears the burden of proof at the trial. In addition, the standard of proof is a fair preponderance of the evidence. See Gaines v. Commissioner, 306 Conn. 664, 666 (2012).

In addition, at any stage of the trial, if there exists a material variance between the amended petition and the proof, habeas counsel should request permission to amend the petition, citing Practice Book § 10-62. See Zollo v. Commissioner, 133 Conn. App. 266, 280 (noting the petitioner’s failure to utilize the remedy of requesting permission to amend the petition to conform to the proof under Practice Book § 10-62), cert. granted on other grounds, 304 Conn. 910 (2012); Reddick v. Commissioner, 51 Conn. App. 474, 476 (1999)(petitioner received permission to amend petition to conform to proof at hearing).

Evidence

If, at the close of the petitioner’s case-in-chief, the petitioner has failed to make out a prima facie case, the respondent can move to dismiss the petition under Practice Book §§ 15-8 and 23 -29(5). See McMillion v. Commissioner, 151 Conn. App. 861, 862 -81 (2014). “A prima facie case…is one sufficient to raise an issue to go to the trier of fact…In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the facts or facts which it is adduced to prove.” Id. at 870.

“At the time a court is considering a motion for dismissal for failure to make out a prima facie case, a petitioner is not required to overcome any of the respondent’s defenses. Although a determination of the truthfulness of a statement is a question of fact for the trier, a trial court would act improperly [if] it made findings of fact at this stage instead of taking the plaintiff’s evidence…as true.” (Internal quotation marks omitted; citation omitted) Id. at 880.

Also, when the petition alleges ineffective assistance of counsel, the petitioner is under no legal obligation to call counsel as a witness at the habeas trial. Cf. D’Amico v. Warden, 193 Conn. 144, 153 (1984)(“We have serious reservations as to whether…an [adverse] inference can be justified, because an attorney, whose competence is implicitly under attack in a habeas corpus proceeding…is hardly a witness whom a disgruntled client would ‘naturally’ have produced”).