Background
Victor Jordan, Sr., was convicted of aggravated sexual assault in the first degree and received a twenty-year sentence consecutive to his existing sentence, plus lifetime sex-offender registration. While representing himself before trial, Jordan repeatedly asked the trial court to provide funds for a private investigator. The court instead offered him the free services of the public defender’s investigators, which he declined. He later received appointed counsel.
After this court affirmed his conviction on June 17, 2014, the Connecticut Supreme Court decided State v. Wang the same day. Wang recognized that an indigent self-represented defendant may have a due process right to public funds for reasonably necessary expert or investigative assistance. Jordan did not seek reconsideration or raise a Wang-based claim in his subsequent petition for certification to appeal. In this habeas action, he alleged that the denial of funding violated due process.
The Court’s Holding
The Appellate Court affirmed the denial of habeas relief because Jordan’s Wang due process claim was procedurally defaulted. The Commissioner adequately raised procedural default in the return to the habeas petition. Although the Commissioner did not argue the defense in a posttrial brief, the issue remained squarely before the habeas court: Jordan addressed it in his filings, and both parties elicited related testimony at trial. The Commissioner therefore had not abandoned the defense.
Jordan did not establish cause and prejudice to excuse the default. His direct appeal was still pending when Wang was issued: he could have sought reconsideration in the Appellate Court or presented the issue in his petition for certification to the Supreme Court. His appellate counsel also knew of the potential claim and chose not to raise it. The court did not decide whether Wang applied retroactively or whether Jordan’s underlying due process claim had merit.
Key Takeaways
- In Connecticut habeas cases, pleading procedural default in the return shifts the burden to the petitioner to prove cause and prejudice.
- The respondent does not necessarily abandon procedural default by omitting it from a posttrial brief when the defense was properly pleaded and litigated.
- A new constitutional decision issued while direct review remains available must be raised through available appellate procedures before collateral review.
Why It Matters
The decision emphasizes that defendants must promptly pursue newly available constitutional arguments while their direct appeals remain open. A claim may be defaulted even when the pertinent precedent is released after an intermediate appellate decision, if reconsideration or further appellate review remains available.