failure to preserve claim in Connecticut

2001As for the special defense to Count Two, Johnson v. Commissioner , 218 Conn. 403 , 412-13 (1991) has established the "cause and prejudice requirement" which, in effect, states that the habeas court should not entertain claims which should have been raised on direct appeal unless the Petitioner demonstrates good cause for the failure to preserve the claim at trial and actual prejudice resulting from the alleged constitutional violation.

1997In Johnson v. Commissioner , 218 Conn. 403 (1991), the Connecticut Supreme Court explicitly adopted the Wainwright "cause and prejudice" rule in stating, "The appropriate standard for reviewability in a habeas corpus proceeding of a constitutional claim not adequately preserved at trial because of procedural default is the federal "cause and prejudice" standard, which requires that a petitioner make a showing of cause for the failure to preserve the claim and a showing of prejudice." Thus, the Johnson court declined to review the petitioners' equal protection challenges to their criminal trial

1997Respondent cites Johnson v. Commissioner, CT Page 8531 218 Conn. 403 , 417 (1991) to the effect that the court "adopted the federal `cause and prejudice' standard from Wainwright v. Sykes, 433 U.S. 72 (1977)." "The Wainwright standard requires that the Petitioner show good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation." See Giannotti v. Warden, 26 Conn. App. 125 , 129 (1991).

1994Therefore, we will review the claim only where the petitioner demonstrates “good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. . . .” (Citations omitted.) McIver v. Warden, 28 Conn. App. 195, 198 , 612 A.2d 108 , cert. denied, 224 Conn. 906 , 615 A.2d 1048 (1992), quoting Giannotti v. Warden, 26 Conn. App. 125, 129 , 599 A.2d 26 (1991), cert. denied, 221 Conn. 905 , 600 A.2d 1359 (1992).

2021The court in Youngblood explained that it was unwilling to read the fundamental fairness requirement of the [d]ue [p]rocess [c]lause . . . as imposing on the police an undifferentiated and absolute duty to retain and to pre- serve all material that might be of conceivable eviden- tiary significance in a particular prosecution. . . . ‘‘In [State v. Morales, 232 Conn. 707, 723 , 657 A.2d 585 (1995)], [our Supreme Court] rejected the federal bad faith requirement for claims alleging a failure to preserve in violation of our state constitution.

2021The court in Youngblood explained that it was unwilling to read the fundamental fairness requirement of the [d]ue [p]rocess [c]lause . . . as imposing on the police an undifferentiated and absolute duty to retain and to pre- serve all material that might be of conceivable eviden- tiary significance in a particular prosecution. . . . ‘‘In [State v. Morales, 232 Conn. 707, 723 , 657 A.2d 585 (1995)], [our Supreme Court] rejected the federal bad faith requirement for claims alleging a failure to preserve in violation of our state constitution.

1994Therefore, we will review the claim only where the petitioner demonstrates “good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. . . .” (Citations omitted.) McIver v. Warden, 28 Conn. App. 195, 198 , 612 A.2d 108 , cert. denied, 224 Conn. 906 , 615 A.2d 1048 (1992), quoting Giannotti v. Warden, 26 Conn. App. 125, 129 , 599 A.2d 26 (1991), cert. denied, 221 Conn. 905 , 600 A.2d 1359 (1992).

1992The petitioner must establish both elements to obtain relief. . . .” (Citations omitted.) Id.

2017Rather, we maintained that, in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the ... balancing test [laid out in State v. Asherman , 193 Conn. 695 , 724, 478 A.2d 227 (1984) ], weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused.

2017Rather, we maintained that, in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the ... balancing test [laid out in State v. Asherman , 193 Conn. 695 , 724, 478 A.2d 227 (1984) ], weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused.

2014When the consti- tutional claim is one that is especially fact dependent, such as a suppression matter, the failure to preserve the claim before the trial court often results in an inade- quate factual record for review, thus leading to the claim’s failure on the merits.16 See, e.g., id., 721–22 (under first prong of Golding, record inadequate to review unpreserved claim that traffic stop was unconsti- tutionally based on pretextual seat belt violation because of failure to raise issue, and obtain factual findings, at suppression hearing); State v. Brunetti, supra, 279 Conn. 63–64 (under first

2002Therefore, we will review the claim only where the petitioner demonstrates good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation.” (Citation omitted; internal quotation marks omitted.) Bowers v. Commissioner of Correction, 33 Conn. App. 449, 451 , 636 A.2d 388 , cert. denied, 228 Conn. 929 , 640 A.2d 115 (1994).

2002Therefore, we will review the claim only where the petitioner demonstrates good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation.” (Citation omitted; internal quotation marks omitted.) Bowers v. Commissioner of Correction, 33 Conn. App. 449, 451 , 636 A.2d 388 , cert. denied, 228 Conn. 929 , 640 A.2d 115 (1994).

2002“Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition.” Cobham v. Commissioner of Correction, 258 Conn. 30, 40 , 779 A.2d 80 (2001).

2002“Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition.” Cobham v. Commissioner of Correction, 258 Conn. 30, 40 , 779 A.2d 80 (2001).

2002Therefore, we will review the claim only where the petitioner demonstrates good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation.” (Citation omitted; internal quotation marks omitted.) Bowers v. Commissioner of Correction, 33 Conn. App. 449, 451 , 636 A.2d 388 , cert. denied, 228 Conn. 929 , 640 A.2d 115 (1994).

2002Therefore, we will review the claim only where the petitioner demonstrates good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation.” (Citation omitted; internal quotation marks omitted.) Bowers v. Commissioner of Correction, 33 Conn. App. 449, 451 , 636 A.2d 388 , cert. denied, 228 Conn. 929 , 640 A.2d 115 (1994).

1997Respondent cites Johnson v. Commissioner, CT Page 8531 218 Conn. 403 , 417 (1991) to the effect that the court "adopted the federal `cause and prejudice' standard from Wainwright v. Sykes, 433 U.S. 72 (1977)." "The Wainwright standard requires that the Petitioner show good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation." See Giannotti v. Warden, 26 Conn. App. 125 , 129 (1991).

1994Therefore, we will review the claim only where the petitioner demonstrates “good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. . . .” (Citations omitted.) McIver v. Warden, 28 Conn. App. 195, 198 , 612 A.2d 108 , cert. denied, 224 Conn. 906 , 615 A.2d 1048 (1992), quoting Giannotti v. Warden, 26 Conn. App. 125, 129 , 599 A.2d 26 (1991), cert. denied, 221 Conn. 905 , 600 A.2d 1359 (1992).

1994Therefore, we will review the claim only where the petitioner demonstrates “good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. . . .” (Citations omitted.) McIver v. Warden, 28 Conn. App. 195, 198 , 612 A.2d 108 , cert. denied, 224 Conn. 906 , 615 A.2d 1048 (1992), quoting Giannotti v. Warden, 26 Conn. App. 125, 129 , 599 A.2d 26 (1991), cert. denied, 221 Conn. 905 , 600 A.2d 1359 (1992).

1994Therefore, we will review the claim only where the petitioner demonstrates “good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. . . .” (Citations omitted.) McIver v. Warden, 28 Conn. App. 195, 198 , 612 A.2d 108 , cert. denied, 224 Conn. 906 , 615 A.2d 1048 (1992), quoting Giannotti v. Warden, 26 Conn. App. 125, 129 , 599 A.2d 26 (1991), cert. denied, 221 Conn. 905 , 600 A.2d 1359 (1992).

1994Cause turns on “whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. . . . [For example,] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . would constitute cause under this standard.” Jackson v. Commissioner of Correction, 227 Conn. 124, 137 , 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 488 , 106 S. Ct. 2639 , 91 L.

1994Cause turns on “whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. . . . [For example,] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . would constitute cause under this standard.” Jackson v. Commissioner of Correction, 227 Conn. 124, 137 , 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 488 , 106 S. Ct. 2639 , 91 L.

1994Therefore, we will review the claim only where the petitioner demonstrates “good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation. . . .” (Citations omitted.) McIver v. Warden, 28 Conn. App. 195, 198 , 612 A.2d 108 , cert. denied, 224 Conn. 906 , 615 A.2d 1048 (1992), quoting Giannotti v. Warden, 26 Conn. App. 125, 129 , 599 A.2d 26 (1991), cert. denied, 221 Conn. 905 , 600 A.2d 1359 (1992).

1994Cause turns on “whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. . . . [For example,] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . would constitute cause under this standard.” Jackson v. Commissioner of Correction, 227 Conn. 124, 137 , 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 488 , 106 S. Ct. 2639 , 91 L.

1994Cause turns on “whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. . . . [For example,] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . would constitute cause under this standard.” Jackson v. Commissioner of Correction, 227 Conn. 124, 137 , 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 488 , 106 S. Ct. 2639 , 91 L.