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Kukucka v. Commissioner of Correction

DALE KUKUCKA v. COMMISSIONER

OF CORRECTION

(AC 46059)

Elgo, Suarez and Clark, Js.

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 conviction, the petitioner had claimed, inter alia, that the trial court had improperly denied his motion to suppress in-court and out-of-court identifications 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 principles. 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 improperly 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 on Dickson to demonstrate cause and

prejudice to overcome the respondent’s special defense of procedural

default, as our Supreme Court explicitly stated that Dickson may not

be applied retroactively on collateral review.

2. The habeas court properly denied the petitioner’s petition for a writ of

habeas corpus: because the Dickson decision was released while the

petitioner’s direct appeal was pending, a Dickson claim was neither

unknown nor sufficiently novel to excuse the petitioner’s procedural

default, and, in the absence of evidence to the contrary, this court

presumed that the petitioner’s appellate counsel made a tactical decision

in deciding to forgo a Dickson claim during the direct appeal; moreover,
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Kukucka v. Commissioner of Correction

although the Supreme Court’s decision in Dickson contained clear

instructions on how to apply the new rule in pending appeals, indicating

that the court anticipated the possibility of viable Dickson claims arising

in cases that were pending on appeal at the time that Dickson was

released, the petitioner failed to challenge the habeas court’s adverse

ruling on his claim of ineffective assistance of appellate counsel.

Argued November 13, 2023—officially released April 30, 2024

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland and tried to the court, M. Murphy, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court.

Affirmed.

Vishal K. Garg, assigned counsel, for the appellant

(petitioner).

Laurie N. Feldman, assistant state’s attorney, with

whom, on the brief, was Angela Macchiarulo, supervisory assistant state’s attorney, for the appellee (respondent).

Opinion

ELGO, J. The petitioner, Dale Kukucka, appeals from

the judgment of the habeas court denying his petition

for a writ of habeas corpus. On appeal, the petitioner

claims that the court improperly denied his freestanding

due process claim on the basis of procedural default.

Specifically, he argues that the court erroneously concluded that the only way he could overcome procedural

default was by showing ineffective assistance of appellate counsel, and, in so concluding, it improperly

rejected his claim that he satisfied the cause and prejudice test set forth in Reed v. Ross, 468 U.S. 1, 13–15,

104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984). We affirm the

judgment of the habeas court.
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Kukucka v. Commissioner of Correction

The following facts and procedural history are relevant to our resolution of the petitioner’s claims. As a

result of crimes that were committed on October 19,

2013, the petitioner was arrested, charged, and, following a jury trial, ultimately convicted of ‘‘strangulation

in the first degree in violation of General Statutes § 53a64aa (a) (1) (B), sexual assault in the third degree in

violation of General Statutes § 53a-72a (a) (1), and

assault in the third degree in violation of General Statutes § 53a-61 (a) (1).’’1 State v. Kukucka, 181 Conn. App.

329, 331, 186 A.3d 1171, cert. denied, 329 Conn. 905,

184 A.3d 1216 (2018). On February 17, 2016, the petitioner was sentenced to a total effective sentence of

fifteen years of incarceration, execution suspended

after ten years, followed by fifteen years of probation.

From that judgment of conviction, the petitioner filed

a direct appeal with this court on March 28, 2016. In

his direct appeal, the petitioner claimed, in part, that

the court had improperly ‘‘denied his motion to suppress the in-court and out-of-court identifications of

him made by a witness to the assault.’’ Id. On August

9, 2016, the Supreme Court decided State v. Dickson,

322 Conn. 410, 141 A.3d 810 (2016), cert. denied, 582

U.S. 922, 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017), which

held, inter alia, that, ‘‘in cases in which identity is an

issue, in-court identifications that are not preceded by

a successful identification in a nonsuggestive identification procedure implicate due process principles . . . .’’

(Footnote omitted.) Id., 415. On November 8, 2016, and

July 10, 2017, respectively, the petitioner’s appellate

counsel filed the principal and reply briefs in his direct

1 ‘‘Although the jury also found the defendant guilty of unlawful restraint

in the first degree in violation of General Statutes § 53a-95 (a) and assault

in the second degree in violation of General Statutes § 53a-60a (a) (1), the

trial court did not enter judgment on those charges because they arose from

the ‘same incident’ as the strangulation charge. See General Statutes § 53a64aa (b).’’ State v. Kukucka, 181 Conn. App. 329, 331 n.1, 186 A.3d 1171,

cert. denied, 329 Conn. 905, 184 A.3d 1216 (2018).
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Kukucka v. Commissioner of Correction

appeal. Although counsel alleged due process violations

associated with the identification procedure used by

the police, they did not raise any claim predicated on

Dickson. This court ultimately affirmed the petitioner’s

conviction on April 24, 2018. State v. Kukucka, supra,

356.

On August 22, 2017, the petitioner filed a petition

for a writ of habeas corpus. On February 2, 2021, the

petitioner filed the operative amended petition, which

asserted three counts. Count one alleged a due process

violation under Dickson, count two alleged ineffective

assistance of trial counsel, and count three alleged ineffective assistance of appellate counsel. On March 3,

2021, the respondent, the Commissioner of Correction,

filed a return in which he claimed that count one of

the operative petition was procedurally defaulted

because the petitioner failed to raise the Dickson claim

on direct appeal.2 The respondent also relied on the

fact that Dickson did not apply retroactively. In his reply

to the return, the petitioner argued that ‘‘[a]ppellate

counsel’s ineffective assistance of counsel . . . as

described in count three . . . caused [the] petitioner

not to raise this claim in his direct appeal,’’ and that

the timing of Dickson ‘‘caused [the petitioner] to forgo

a viable suppression motion and appellate claim pursuant to Dickson in all prior litigation relating to the

charges and conviction . . . .’’

On May 16, 2022, a trial on the petitioner’s operative

amended petition for a writ of habeas corpus was held.

The court heard testimony from the petitioner, the petitioner’s criminal trial counsel, and a legal expert. No

other witnesses were presented. In its October 7, 2022

memorandum of decision, the court concluded, with

2 In his return, the respondent additionally raised the issue of procedural

default for failure to raise the Dickson claim during trial. However, that

argument was abandoned in the respondent’s appellate brief.
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Kukucka v. Commissioner of Correction

respect to the alleged due process violation pursuant

to Dickson, ‘‘the petitioner alleges ineffective assistance

of appellate counsel as the cause and prejudice [excusing procedural default], a claim already alleged in count

three . . . . The due process claim in count one need

not be separately addressed because it is subsumed

within the claim in count three.’’ The court then held

that the petitioner had failed to prove ineffective assistance of either trial or appellate counsel. Specifically,

as to the claim of ineffective assistance of appellate

counsel, the court stated that ‘‘the petitioner alleges

that [appellate counsel] failed to: identify, raise, litigate,

and/or brief a due process claim under State v. Dickson,

[supra, 322 Conn. 410],’’ yet, ‘‘[n]either appellate counsel

testified and, therefore, it is unknown how they selected

issues to raise on appeal. This court must presume in

the absence of evidence to the contrary that counsel

were . . . reasonably competent.’’ Accordingly, the

court denied the amended petition for a writ of habeas

corpus and thereafter granted the petitioner’s petition

for certification to appeal. This appeal followed.

On appeal, the petitioner does not challenge the

court’s conclusion that he failed to establish ineffective

assistance of trial or appellate counsel. Rather, the petitioner claims that the court improperly denied count

one of his amended petition because the ‘‘court failed

to realize that the petitioner had pleaded and argued a

second form of cause and prejudice: the unavailability

of the legal basis for the claim at the time of [the criminal] trial.’’ Second, as to the failure to raise the Dickson

claim during the direct appeal, the petitioner argues

that, because Dickson was decided after the direct

appeal was filed for his criminal conviction, and

because Dickson implicated a due process violation

applicable to his case,3 the timing of the release of the

3 We do not reach the merits of whether Dickson applies to the petitioner’s

purported due process claim. We do note, however, that Dickson’s requirement for a prescreening procedure applies to ‘‘in-court identifications that
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Kukucka v. Commissioner of Correction

Dickson decision independently constituted cause and

prejudice sufficient to overcome the defense of procedural default for failing to raise the claim during the

direct appeal. We are not persuaded.

As an initial matter, a habeas court’s conclusion that

a petitioner’s claim is barred by the procedural default

doctrine involves a question of law over which we exercise plenary review. See Crawford v. Commissioner of

Correction, 294 Conn. 165, 174, 982 A.2d 620 (2009);

McCarthy v. Commissioner of Correction, 192 Conn.

App. 797, 810, 218 A.3d 638 (2019).

Under the procedural default doctrine, ‘‘a claimant

may not raise, in a collateral proceeding, claims that

he could have made at trial or on direct appeal in the

original proceeding and that if the state, in response,

alleges that a claimant should be procedurally defaulted

from now making the claim, the claimant bears the

burden of demonstrating good cause for having failed

to raise the claim directly, and he must show that he

suffered actual prejudice as a result of this excusable

failure.’’ Hinds v. Commissioner of Correction, 151

Conn. App. 837, 852, 97 A.3d 986 (2014), aff’d, 321 Conn.

56, 136 A.3d 596 (2016). ‘‘Although ineffective assistance

of counsel . . . is the most commonly asserted basis

for cause to excuse procedural default . . . it is not

are not preceded by a successful identification in a nonsuggestive identification procedure . . . .’’ State v. Dickson, supra, 322 Conn. 415. We also note

that, in resolving the petitioner’s direct appeal, in which he claimed a due

process violation based on the admission of out-of-court and in-court identification evidence, this court stated that, ‘‘[e]ven if we were to assume that

the identification procedure was suggestive, we conclude that given the

public safety concerns and the immediate need to apprehend the assailant,

the [trial] court properly found that the procedure was necessary due to

exigent circumstances.’’ State v. Kukucka, supra, 181 Conn. App. 355. Moreover, after a careful review of the evidence in the record, this court upheld

the trial court’s determination that the out-of-court identification of the

petitioner was reliable on the basis of the numerous instances in which the

witness had observed the petitioner on the day of the incident as well as

the face-to-face altercation between them. Id., 355–56.
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Kukucka v. Commissioner of Correction

the exclusive basis.’’ (Citation omitted.) Saunders v.

Commissioner of Correction, 343 Conn. 1, 26, 272 A.3d

169 (2022). ‘‘[T]he cause requirement may be satisfied

under certain circumstances when a procedural failure

is not attributable to an intentional decision by counsel

made in pursuit of his client’s interests. . . . [T]he failure of counsel to raise a constitutional issue reasonably

unknown to him is one situation in which the requirement is met.’’ Reed v. Ross, supra, 468 U.S. 14.

The petitioner is correct insofar that it is possible to

show cause independent of an ineffective assistance of

counsel claim. As highlighted in Reed, when a constitutional issue is not raised by competent counsel because

it is ‘‘reasonably unknown’’ to counsel, as opposed to

being an intentional strategic decision to not raise the

claim, then cause may exist to excuse the procedural

default. Id. The two issues in this case thus may be

distilled to whether (1) Dickson may be applied retroactively to allow a collateral review of claims where judgment has been rendered and (2) the timing of the Dickson decision—which was officially released after the

petitioner filed his direct appeal but before any briefs

were filed and before oral arguments—satisfies the

cause requirement under Reed because the due process

claim created by Dickson was ‘‘reasonably unknown’’

to appellate counsel.

I

The petitioner claims that Dickson implicates a due

process claim relevant to his conviction, and, because

Dickson’s holding did not change the state of the law

until after his conviction, there is cause and prejudice

under Reed to excuse the procedural default for failing

to raise the due process claim during his criminal trial.

We disagree.

In Reed, Daniel Ross had been convicted following

a jury trial in which the court had charged the jury with
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Kukucka v. Commissioner of Correction

instructions that had been in place for more than 100

years, and, on appeal, Ross’ attorney did not contest

the propriety of those instructions. Id., 5–7. Six years

after the conclusion of Ross’ direct appeal, the United

States Supreme Court, in Mullaney v. Wilbur, 421 U.S.

684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), overturned

its long-standing precedent, effectively ruling that the

jury instructions that were used during Ross’ trial were

unconstitutional. See Reed v. Ross, supra, 468 U.S. 3,

7. ‘‘Two years later, Hankerson v. North Carolina, 432

U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977), held that

Mullaney was to have retroactive application.’’ Reed v.

Ross, supra, 3. ‘‘Ross challenged the jury instructions

for the first time in 1977, shortly after [the United States

Supreme Court] decided Hankerson.’’ Id., 7. The court

noted that, prior to Ross’ direct appeal, only two cases

indirectly departed from the well settled legal precedent

that the then existing jury instructions were constitutional. Id., 18–19. The court stated that, ‘‘[b]ecause these

[two] cases provided only indirect support for Ross’

claim, and because they were the only cases that would

have supported Ross’ claim at all, we cannot conclude

that they provided a reasonable basis upon which Ross

could have realistically appealed his conviction.’’ Id.,

19. The court stated that it could ‘‘confidently assume’’

the reason Ross failed to challenge ‘‘the constitutionality of [the jury] instructions . . . [on appeal] was

because they were sanctioned by a century of North

Carolina law and because Mullaney was yet six years

away.’’ Id., 7. The court held that ‘‘Ross’ claim was

sufficiently novel . . . to excuse his attorney’s failure

to raise the . . . issue’’ during his direct appeal and

affirmed the decision of the United States Court of

Appeals for the Fourth Circuit to retroactively apply

Mullaney to Ross’ claim. Id., 20.

Relying on Reed, the petitioner argues that the due

process claim on which he relies—that later became
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Kukucka v. Commissioner of Correction

available under our Supreme Court’s decision in Dickson—was not legally available to counsel at the time

of his criminal trial. The petitioner argues that, ‘‘where

a jurisdiction’s highest court overrules its own prior

precedent on a constitutional matter, there is cause and

prejudice to excuse a procedural default.’’ However, in

Reed, it was not the change in the law contained in

Mullaney, alone, that permitted Ross to appeal his conviction. It was only after Hankerson, in which the

United States Supreme Court held that Mullaney could

be applied retroactively, that Ross was permitted to

challenge his conviction.

Our Supreme Court has made it clear that Dickson

is not to be applied retroactively. The court explicitly

stated that ‘‘[t]he new rule would not apply . . . on

collateral review.’’ State v. Dickson, supra, 322 Conn.

451 n.34; see also Tatum v. Commissioner of Correction, 211 Conn. App. 42, 60–61, 272 A.3d 218, cert.

granted, 343 Conn. 932, 276 A.3d 975 (2022).4 Because

Dickson may not be applied retroactively on collateral

review, the petitioner may not challenge his conviction

on the basis of the new law contained in the Dickson

decision. Accordingly, the petitioner is unable to rely

on Dickson to demonstrate cause and prejudice to overcome the respondent’s special defense of procedural

default.

II

The petitioner nevertheless claims that, because the

Dickson decision was released while his direct appeal

was pending, cause and prejudice exists to excuse the

procedural default for failure to raise the claim during

4 We note that the petitioner in Tatum v. Commissioner of Correction,

supra, 211 Conn. App. 42, has appealed this court’s decision, which is currently pending before our Supreme Court. The certified question in that

case is whether the habeas petition in question was properly dismissed on

the ground that Dickson ‘‘did not apply retroactively to the petitioner’s case

on collateral review?’’ Tatum v. Commissioner of Correction, 343 Conn.

932, 276 A.3d 975 (2022).
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Kukucka v. Commissioner of Correction

the appeal because the issue was ‘‘reasonably

unknown’’ and ‘‘sufficiently novel’’ to competent counsel. We disagree.

It is undisputed that the petitioner’s case was pending

on appeal at the time that the Dickson decision was

released. The court recognized that, ‘‘in pending appeals

involving this issue, the suggestive in-court identification has already occurred.’’ (Emphasis in original.) State

v. Dickson, supra, 322 Conn. 452. The court then carefully provided instruction on how to apply the new rule

to pending appeals in which the issue of suggestive incourt identifications has been raised. Id.; see also State

v. Collymore, 334 Conn. 431, 479, 223 A.3d 1 (‘‘[b]ecause

. . . it was too late to prescreen first time in-court

identifications that already occurred in pending cases,

we provided a road map for how pending appeals should

be handled’’), cert. denied, U.S. , 141 S. Ct. 433,

208 L. Ed. 2d 129 (2020). This clearly indicates that, in

its pronouncement that its holding must be applied

prospectively, the court anticipated the possibility of

viable Dickson claims arising in cases that were pending

on appeal at the time that Dickson was released.

Because the Dickson decision was released while the

petitioner’s appeal was pending, a Dickson claim was

neither unknown nor sufficiently novel to excuse the

petitioner’s procedural default.

Notwithstanding the clear instructions provided by

our Supreme Court in Dickson regarding pending

appeals, the petitioner relies on United States v. Garcia,

811 Fed. Appx. 472 (10th Cir. 2020), stating in his reply

brief that the case stands for the premise that ‘‘a change

in the law that occurs during a proceeding excuses

default at that same proceeding.’’5 Such a broad reading

5 The petitioner also cites a case from the United States District Court

for the District of Columbia for the same premise. That decision is not

binding on this court, and we find it unpersuasive because the change in

law in that case was followed by a subsequent United States Supreme Court

decision holding that the change was retroactive.
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Kukucka v. Commissioner of Correction

cannot reasonably be taken from the Garcia decision.

In Garcia, a change in law took place ‘‘only eighteen

days before [the] court issued its decision in [Pedro

Garcia’s] direct appeal . . . .’’ United States v. Garcia,

supra, 479. However, the court clearly stated that ‘‘the

source of the constitutional principle relevant to [Garcia’s argument] is not found in [that case] but in [a

more recent case], which was decided well after Garcia’s direct appeal was final. Indeed, given that it is

[the more recent case] that cements the viability of

Garcia’s legal theory . . . there is cause to excuse Garcia from not raising this claim at trial or on direct

appeal.’’ (Citation omitted; emphasis added.) Id., 480.

This is clearly in contrast with the present case. In

Dickson, our Supreme Court accounted for how potential Dickson claims can be viably raised in pending

The petitioner in Sorto v. United States, Docket No. 08-167-4 (RJL) (D.

D.C. February 24, 2022), appealed from his judgment of conviction rendered

in a consolidated appeal with his codefendants, with briefs filed on May 16,

2014, and March 3, 2015. The subsequent decision affirming the convictions

was issued on November 24, 2015. See United States v. Cordova, 806 F.3d

1085 (D.C. Cir. 2015) and related filings. On June 26, 2015, nearly five months

before Melvin Sorto’s direct appeal was affirmed, the United States Supreme

Court decided Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192

L. Ed. 2d 569 (2015), which adopted a new constitutional rule relevant to

Sorto’s conviction and appeal. Id.; Sorto v. United States, supra. The District

Court ultimately found cause to excuse Sorto’s procedural default. Id.

In the present case, the petitioner asserts that ‘‘Johnson constituted cause

for the procedural default’’ for Sorto ‘‘not rais[ing] a Johnson issue on direct

appeal . . . .’’ The petitioner fails to acknowledge, however, that ‘‘Sorto’s

argument was based on two Supreme Court decisions.’’ (Emphasis added.)

Sorto v. United States, supra, United States District Court, Docket No. 08-

167-4. The second case, Welch v. United States, 578 U.S. 120, 136 S. Ct. 1257,

194 L. Ed. 2d 387 (2016), was decided on April 18, 2016, almost five months

after Sorto’s conviction was affirmed on direct appeal. ‘‘[I]n Welch v. United

States, the Supreme Court held . . . that Johnson announced a substantive

rule that has retroactive effect in cases on collateral review.’’ (Internal

quotation marks omitted.) Sorto v. United States, supra. It was only after

Welch was decided that Johnson was applied retroactively on collateral

review of Sorto’s conviction. Thus, Johnson on its own did not establish

an independent basis to excuse Sorto’s procedural default. Sorto is therefore

inapposite to the present case.
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Kukucka v. Commissioner of Correction

appeals. Moreover, Dickson was decided after the direct

appeal was filed, but three months before the petitioner’s first brief was filed, eleven months before the petitioner’s reply brief was filed, fourteen months before

oral arguments, and more than one and one-half years

before the petitioner’s direct appeal was affirmed. For

that reason, the assertion that the constitutional issue

contained in Dickson was ‘‘reasonably unknown’’ and

‘‘sufficiently novel’’ to competent counsel during the

petitioner’s direct appeal is untenable. Even if we were

to assume that the petitioner’s appellate counsel would

have considered a Dickson claim strategically advantageous, he had ample time to raise it between August

9, 2016, when the Dickson decision was released, and

April 24, 2018, when the petitioner’s direct appeal was

affirmed. See State v. Dickson, supra, 322 Conn. 410;

State v. Kukucka, supra, 181 Conn. App. 329.

Mindful of the clear instructions contained in the

Dickson decision indicating that such claims could be

raised and litigated in those cases in which appeals

were pending, it bears repeating that the petitioner does

not challenge the habeas court’s adverse ruling on his

claim of ineffective assistance of appellate counsel. In

the absence of evidence to the contrary, this court must

presume that appellate counsel made a tactical decision

in deciding to forgo a Dickson claim during the direct

appeal. ‘‘[C]ounsel may not make a tactical decision to

forgo a procedural opportunity . . . to raise an issue

on appeal . . . and then, when he discovers that the

tactic has been unsuccessful, pursue an alternative

strategy . . . . Procedural defaults of this nature are,

therefore, ‘inexcusable’ . . . and cannot qualify as

‘cause’ for purposes of . . . habeas corpus review.’’

(Citation omitted.) Reed v. Ross, supra, 468 U.S. 14. We

therefore conclude that the court properly denied the

petitioner’s petition for a writ of habeas corpus.

The judgment is affirmed.

In this decision the other judges concurred.