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PATRICK NEMHARD v. COMMISSIONER

OF CORRECTION

(AC 35681)

Beach, Keller and Pellegrino, Js.

Argued January 21—officially released May 19, 2015

(Appeal from Superior Court, judicial district of

Tolland, Sferrazza, J.)

Cameron R. Dorman, assigned counsel, forthe appellant (petitioner).

Michele C. Lukban, senior assistant state’s attorney,

with whom, on the brief, were John C. Smriga, state’s

attorney, and Craig P. Nowak, senior assistant state’s

attorney, for the appellee (respondent).
Opinion

PELLEGRINO, J. The petitioner, Patrick Nemhard,

appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal,

the petitioner claims that the court improperly dismissed his claim on the ground that his witness in

support of his claim of duress1 does not constitute newly

discovered evidence.2 We disagree and, accordingly,

affirm the judgment of the court.

The petitioner was convicted of rioting in a correctional institution in violation of General Statutes § 53a179b (a),3

for which he was sentenced to twenty years

incarceration, execution suspended after fifteen years,

and five years of probation. On his direct appeal, the

judgment of conviction was affirmed by this court in a

per curiam decision; State v. Nemhard, 39 Conn. App.

930, 667 A.2d 571 (1995); and at least three habeas

petitions have been rejected regarding this conviction.

See, e.g., Nemhard v. Rodriguez, United States District

Court, Docket No. 3:01-cv-1700 (JCH) (D. Conn. September 20, 2004); Nemhard v. Commissioner of Correction, 63 Conn. App. 906, 773 A.2d 1002, cert. denied,

257 Conn. 906, 777 A.2d 193 (2001); Nemhard v. Commissioner of Correction, 56 Conn. App. 527, 745 A.2d

190 (2000).

This habeas petition, filed August 5, 2010, and

amended on June 11, 2012, claims actual innocence on

the basis of newly discovered evidence of a witness

who claimed the petitioner had acted under duress.4

The petitioner at the habeas trial called Raphael Ortiz,

an inmate in the same correctional institution as the

petitioner at the time of the incident, who testified that,

prior to the rioting, he observed some gang members,

one of whom was a person named Buddy, tell the petitioner that he had to do what he was told to do or

otherwise he would get hurt. Ortiz spoke with the petitioner at that time and advised him not to get involved.

Ortiz never mentioned what he saw because he feared

for his own safety and did not know the petitioner’s

name. Further, Ortiz testified that in the morning after

the riot, when prison staff members asked him if he

knew anything, he told them that he had ‘‘seen some

kid getting pressured earlier’’ and did not know if that

was part ‘‘of what was going on.’’ As a result of that

statement, Ortiz was placed in segregation and initially

suspected of having participated in a planned escape.

Sometime thereafter, at another correctional institution, Ortiz recognized the petitioner and passed him a

note about the events prior to the riot and regarding

the encounter with Buddy.

At the conclusion of Ortiz’ testimony and after the

petitioner rested his case, the respondent, the Commissioner of Correction, orally moved to dismiss the petition for failure of the petitioner to state a claim. Then,
the respondent, in elaborating on his oral motion,

focused on the evidence that the petitioner presented

at the habeas trial, namely, Ortiz’ testimony, and not

on the petitioner’s pleadings. Thereafter, the court dismissed the petitioner’s amended petition in an oral decision. Regarding the petitioner’s actual innocence claim,

the court stated the following with respect to the applicability of the newly discovered evidence standard: ‘‘I

have to apply the newly discovered evidence standard,

and newly discovered evidence is such that it couldn’t

have been discovered, despite the exercise of due diligence. . . .

‘‘And due diligence is reasonable. It doesn’t require

everything possible, but the question . . . to be

answered is, what evidence would have been discovered by a reasonable criminal defense attorney by persevering application and untiring efforts in good

earnest . . . .

‘‘[Y]ou can’t describe as newly discovered evidence

evidence which the petitioner had at the time of his

criminal trial. . . .

‘‘And I think that’s what we have in this case. The

petitioner knew that he was under duress. . . . He

would have been able to tell his attorneys and share

that information.

‘‘He would have known who . . . were witnesses to

that duress, including [Ortiz], who apparently had a

conversation with the petitioner at the time before the

events that occurred . . . and the only evidence I have

in front of me is that [Ortiz] recommended to the petitioner that he stay in his cell and not join in; and the

petitioner indicated that he was perhaps down with it

or he understood and everything would be okay.

‘‘So, under those circumstances, there’s no way to

characterize this evidence and this duress defense as

newly discovered . . . .’’ Thereafter, the court granted

the respondent’s motion to dismiss, and on April 25,

2013, the court granted the petition for certification to

appeal to this court.

On appeal, the petitioner claims that the court

improperly dismissed his claim on the ground that the

evidence to support his claim of duress, namely, Ortiz’

testimony, does not constitute newly discovered evidence. We disagree.

It is clear from the foregoing that the court based its

decision not on the petitioner’s failure to state a claim in

his petition, but on the basis of the evidence presented

during the petitioner’s case-in-chief. Therefore, despite

the respondent’s characterization that the petitioner

failed to state a claim, we believe this matter is before

us on the ground that the court granted the respondent’s

motion to dismiss on the basis of the petitioner’s failure

to present a prima facie case, which, under Practice

Book § 15-8,5

is appropriate given the timing of the
motion, which occurred after the petitioner rested his

case and before the respondent presented any evidence.

We set forth the applicable standard of review for a

motion to dismiss for failure to present a prima facie

case. ‘‘The conclusions reached by the trial court in its

decision to dismiss [a] habeas petition are matters of

law, subject to plenary review. . . . [When] the legal

conclusions of the court are challenged, [the reviewing

court] must determine whether they are legally and

logically correct . . . and whether they find support in

the facts that appear in the record.’’ (Internal quotation

marks omitted.) McMillion v. Commissioner of Correction, 151 Conn. App. 861, 869–70, 97 A.3d 32 (2014).

‘‘The legal principles governing a trial court’s decision

to dismiss a claim for failure to present a prima facie

case pursuant to Practice Book § 15-8 are well settled.

A prima facie case, in the sense in which that term is

relevant to this 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 fact or

facts which it is adduced to prove. . . . In evaluating

the [granting of] a motion to dismiss, [t]he evidence

offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and

every reasonable inference is to be drawn in [the plaintiff’s] favor. . . . Whether the plaintiff has established

a prima facie case entitling the plaintiff to submit a

claim to a trier of fact is a question of law over which

[this court’s] review is plenary.’’ (Citations omitted;

internal quotation marks omitted.) Id., 870–71.

To prove actual innocence the petitioner must be

able ‘‘to show that based on proffered newly discovered

evidence and the entire record before the jury that

convicted him, no rational trier of fact could [find] proof

of guilt beyond a reasonable doubt.’’ (Internal quotation

marks omitted.) Williams v. Commissioner of Correction, 240 Conn. 547, 548, 692 A.2d 1231 (1997). ‘‘Actual

innocence, also referred to as factual innocence . . .

is different than legal innocence. Actual innocence is

not demonstrated merely by showing that there was

insufficient evidence to prove guilt beyond a reasonable

doubt. . . . Rather, actual innocence is demonstrated

by affirmative proof that the petitioner did not commit

the crime. . . .

‘‘[T]he proper standard for evaluating a freestanding

claim of actual innocence . . . is twofold. First, the

petitioner must establish by clear and convincing evidence that, taking into account all of the evidence—

both the evidence adduced at the original criminal trial

and the evidence adduced at the habeas corpus trial—

he is actually innocent of the crime of which he stands

convicted. Second, the petitioner must also establish

that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no
reasonable fact finder would find the petitioner guilty of

the crime.’’ (Citation omitted; internal quotation marks

omitted.) Jackson v. Commissioner of Correction, 149

Conn. App. 681, 706, 89 A.3d 426, cert. granted on other

grounds, 313 Conn. 901, 96 A.3d 558 (2014).

Further, we note: ‘‘To permit a petitioner to bring a

substantial claim of actual innocence based on evidence

that is not newly discovered would be inconsistent with

our Supreme Court’s conclusion that the standard governing a claim of actual innocence should be more

demanding than the standard used for determining

whether a new trial should be granted because of newly

discovered evidence. . . . We view this holding as one

that balances the societal interests of finality, comity,

and conservation of scarce judicial resources, against

the benefit of ‘dispos[ing] of the case as law and justice

require.’ General Statutes § 52-470 (a). Entertaining

claims of actual innocence that are not based on newly

discovered evidence would have a disruptive effect on

the finality of judgments because it would permit a

petitioner to raise allegations that, absent proof of an

antecedent constitutional violation that affected the

result of his criminal trial, could have been raised at

the criminal trial.’’ (Citation omitted.) Williams v. Commissioner of Correction, 41 Conn. App. 515, 526–27,

677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692

A.2d 1231 (1997) (certification improvidently granted).

‘‘This evidentiary burden is satisfied if a petitioner can

demonstrate, by a preponderance of the evidence, that

the proffered evidence could not have been discovered

prior to the petitioner’s criminal trial by the exercise

of due diligence.’’ (Internal quotation marks omitted.)

Johnson v. Commissioner of Correction, 101 Conn.

App. 465, 471, 922 A.2d 221 (2007).

Here, the petitioner argues that what is newly discovered is the fact that Ortiz, now identified, overheard

the threats. Yet, according to Ortiz, he and the petitioner

conversed regarding the initial threats from ‘‘Buddy.’’

He did not only overhear them, but the petitioner also

told Ortiz to mind his own business. Therefore, the

evidence demonstrates that, despite perhaps not knowing the identity of Ortiz, the petitioner did know at the

time of his criminal trial that a fellow inmate with whom

he had conversed had overheard the alleged threats.

Given this undisputed factual background, the petitioner cannot refute the habeas court’s determination

that Ortiz’ identity was not newly discovered because

it could have been discovered prior to the criminal trial

by the exercise of due diligence. It is also undisputed

that the petitioner never advised his attorneys at the

time of his criminal trial that he had been under duress.

The consequence of his failure to raise this issue with

his trial attorneys is that no effort was made to explore

his theory of duress or discover the identity of Ortiz.

Therefore, the petitioner cannot succeed on his actual

innocence claim because actual innocence alleged in a
habeas petition must be premised on newly discovered

evidence that could not have been discovered by the

exercise of due diligence prior to his criminal trial.

Accordingly, we conclude that the court properly dismissed the petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Duress is a statutorily defined defense. ‘‘In any prosecution for an offense,

it shall be a defense that the defendant engaged in the proscribed conduct

because he was coerced by the use or threatened imminent use of physical

force upon him or a third person, which force or threatened force a person

of reasonable firmness in his situation would have been unable to resist.

The defense of duress as defined in this section shall not be available to a

person who intentionally or recklessly places himself in a situation in which

it is probable that he will be subjected to duress.’’ General Statutes § 53a-14.

2 The petitioner also asserts that the court improperly concluded that a

claim of actual innocence must be predicated on newly discovered evidence

and that we should overrule this court’s decision in Williams v. Commissioner of Correction, 41 Conn. App. 515, 677 A.2d 1 (1996), appeal dismissed,

240 Conn. 547, 692 A.2d 1231 (1997) (certification improvidently granted).

It is well established that ‘‘this court’s policy dictates that one panel should

not, on its own, [overrule] the ruling of a previous panel. The [overruling]

may be accomplished only if the appeal is heard en banc.’’(Internal quotation

marks omitted.) Diaz v. Commissioner of Correction, 125 Conn. App. 57,

68 n.9, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).

We decline to depart from Williams and, therefore, do not analyze this claim.

3 General Statutes § 53a-179b provides: ‘‘(a) A person is guilty of rioting

at a correctional institution when he incites, instigates, organizes, connives

at, causes, aids, abets, assists or takes part in any disorder, disturbance,

strike, riot or other organized disobedience to the rules and regulations of

such institution.

‘‘(b) Rioting at a correctional institution is a class B felony.’’

4 The petitioner also initially claimed ineffective assistance of trial counsel

and ineffective assistance of habeas counsel. The petitioner later sought

to withdraw these counts, whereas the respondent, the Commissioner of

Correction, asked that these counts be dismissed with prejudice. Thereafter,

the court dismissed these counts, and they are not the subject of this appeal.

5 Practice Book § 15-8 provides: ‘‘If, on the trial of any issue of fact in a

civil matter tried to the court, the plaintiff has produced evidence and rested,

a defendant may move for judgment of dismissal, and the judicial authority

may grant such motion if the plaintiff has failed to make out a prima facie

case. The defendant may offer evidence in the event the motion is not

granted, without having reserved the right to do so and to the same extent

as if the motion had not been made.’’