Summary
concluding that hearing is not required before habeas petition is dismissed under § 23-29
Summary of this case from Brown v. Comm'r of Corr.Opinion
AC 39715
12-04-2018
Peter BORIA v. COMMISSIONER OF CORRECTION
Nicholas A. Marolda, assigned counsel, with whom, on the brief, was Temmy Ann Miller, assigned counsel, for the appellant (petitioner). Kathryn W. Bare, assistant state's attorney, and Stephen R. Finucane, assistant attorney general, with whom, on the brief, was Maureen Platt, state's attorney, for the appellee (respondent).
Nicholas A. Marolda, assigned counsel, with whom, on the brief, was Temmy Ann Miller, assigned counsel, for the appellant (petitioner).
Kathryn W. Bare, assistant state's attorney, and Stephen R. Finucane, assistant attorney general, with whom, on the brief, was Maureen Platt, state's attorney, for the appellee (respondent).
Prescott, Moll and Bishop, Js.
PRESCOTT, J.The petitioner, Peter Boria, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court dismissing his petition for a writ of habeas corpus pursuant to Practice Book § 23-29. The petitioner claims that the habeas court improperly dismissed his claim (1) that amendments to the risk reduction earned credits statute in 2013 and 2015 violated the ex post facto clause of the United States constitution and (2) that his right to due process had been violated because his guilty plea in his underlying criminal case was not knowingly and voluntarily made. As to the first claim, we disagree and, accordingly, affirm that aspect of the judgment of the habeas court. As to the second claim, although we agree with the petitioner that the habeas court should not have dismissed that claim as an improper successive petition under Practice Book § 23-29, we affirm that aspect of the judgment on the alternative ground that it was barred by collateral estoppel.
Practice Book § 23-29 provides: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that:
"(1) the court lacks jurisdiction;
"(2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted;
"(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition;
"(4) the claims asserted in the petition are moot or premature;
"(5) any other legally sufficient ground for dismissal of the petition exists."
The constitution of the United States, article one, § 10, provides in relevant part: "No State shall ... pass any ... ex post facto Law ...."
"[I]t is axiomatic that [w]e may affirm a proper result of the trial court for a different reason." (Internal quotation marks omitted.) Coleman v. Commissioner of Correction , 111 Conn. App. 138, 140 n.1, 958 A.2d 790 (2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009).
The following undisputed facts and procedural history are relevant to our resolution of this appeal. The petitioner currently is serving a sentence of twenty years of incarceration after pleading guilty on October 6, 2009, to the charges of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and to being a persistent dangerous felony offender in violation of General Statutes § 53a-40.
On July 18, 2011, the petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States constitution (first petition). Among other things, the first petition specifically alleged that, prior to his election to plead guilty, "[d]efense counsel failed to inform the petitioner of the applicable [charges] against him," including that the petitioner was being charged as a persistent dangerous felony offender. On July 13, 2013, the habeas court issued an oral ruling denying the first petition, and the petitioner did not appeal therefrom.
On February 8, 2016, the petitioner filed two additional habeas petitions. One petition, docketed as TSR-CV-16-4007851-S (second petition), was filed pro se and sought the restoration of good time credits that the petitioner claimed he was eligible for and had been receiving. The habeas court, Oliver, J. , dismissed the second petition for lack of jurisdiction pursuant to Practice Book § 23-24 (a) (1). The petitioner filed a petition for certification to appeal, which was granted by the habeas court. The petitioner's appeal from the dismissal of the second petition was heard alongside this appeal, and the judgment of the habeas court was summarily affirmed by this court in a memorandum decision (AC 39028).
Practice Book § 23-24 (a) provides in relevant part: "The judicial authority shall promptly review any petition for a writ of habeas corpus to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that:
"(1) the court lacks jurisdiction ...."
The petitioner, through appellate counsel, filed a motion for rectification and articulation asking the habeas court to articulate the legal and factual bases for its dismissal of the second petition, including, "what the [c]ourt understands the petitioner's claim(s) to be." The habeas court denied the motion for articulation and rectification, and the petitioner filed a motion for review of the habeas court's denial of that motion. This court granted the motion for review but denied the relief requested therein.
Although the second petition appears to have significant overlap with the first claim of the underlying petition in the present appeal, the respondent, the Commissioner of Correction, did not move for the habeas court to dismiss the claim under the prior pending action doctrine; see Gainey v. Commissioner of Correction , 181 Conn. App. 377, 380 n.5, 186 A.3d 784 (2018) ; or for being an improper successive petition.
The other petition was docketed as TSR-CV-16-4008315-S (third petition), and it is that petition that underlies the present appeal. In the third petition, the petitioner raised several claims, including an ex post facto challenge to legislative amendments to the risk reduction earned credit statutes and that his guilty plea was not voluntarily made. The risk reduction earned credit statutes provide that certain prisoners convicted of crimes committed after October 1, 1994, "may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction" for certain positive behaviors while incarcerated. General Statutes § 18-98e (a). Number 13-3, § 59, of the 2013 Public Acts, effective July 1, 2013, eliminated statutory language that previously permitted a prisoner's parole eligibility date to be advanced by the application of risk reduction earned credits. Number 15-216, § 9, of the 2015 Public Acts, effective October 1, 2015, amended General Statutes § 18-98e to exclude inmates convicted of being a persistent dangerous felony offender from earning risk reduction credits.
Public Acts 2013, No. 13-3, § 59, amended subsections (b) (2), (c) and (e) of General Statutes § 54-125a to delete provisions permitting the reduction of time off of a prisoner's parole eligibility date for risk reduction credit earned under § 18-98e.
On September 7, 2016, the habeas court, Oliver , J., sua sponte dismissed the third petition pursuant to Practice Book § 23-29. With respect to the petitioner's ex post facto claim regarding risk reduction earned credits, the court dismissed that claim for lack of jurisdiction because it concluded that there was no cognizable liberty interest in such credits. See Practice Book § 23-29 (1).
Additionally, the habeas court dismissed the petitioner's challenge to the voluntariness of his guilty plea as an improper successive claim. See Practice Book § 23-29 (3). Regarding that claim, the court stated in its judgment of dismissal that "the instant petition presents the same ground as a prior petition previously denied (TSR-CV-11-4004269-S) and fails to state new facts or proof of new evidence reasonably available at the time of the prior petition." The habeas court also concluded that, in a prior habeas proceeding, the habeas court found that the "petitioner was made aware of his persistent felony offender status and the prosecuting authority's filing of a ‘part B’ information." The court granted certification to appeal, and this appeal followed.
We begin by setting forth our standard of review for a challenge to the dismissal of a petition for a writ of habeas corpus. "The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review.... [If] the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous." (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction , 168 Conn. App. 294, 301–302, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d 385 (2016).
I
We first address the petitioner's claim that the habeas court improperly dismissed that portion of the third petition alleging an ex post facto violation regarding statutory amendments to the earned risk reduction credit program. There are two aspects to this claim. The petitioner argues that the court improperly (1) failed to hold a hearing before dismissing the petition, and (2) dismissed the claim for lack of jurisdiction. We are not persuaded by the petitioner's contentions.A
For purposes of clarity, we address these claims in a different order than they were presented by the petitioner in his principal appellate brief.
The petitioner first argues that the habeas court improperly dismissed the third petition on its own motion without holding a hearing. Specifically, the petitioner argues that the court's failure to hold a hearing on the third petition violated Practice Book § 23-40 and deprived him of his right to such a hearing under Mercer v. Commissioner of Correction , 230 Conn. 88, 644 A.2d 340 (1994), General Statutes § 52-470, and Practice Book § 23-29. We disagree that a hearing was required in this case.
Whether the habeas court was required to hold a hearing prior to dismissing a habeas petition presents a question of law subject to plenary review. Green v. Commissioner of Correction , 184 Conn. App. 76, 82, 194 A.3d 857, cert. denied, 330 Conn. 933, 195 A.3d 383 (2018). "Pursuant to Practice Book § 23-29, the habeas court may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (1) the court lacks jurisdiction ...." (Internal quotation marks omitted.) Holliday v. Commissioner of Correction , 184 Conn. App. 228, 234, 194 A.3d 867 (2018) ; see also Gilchrist v. Commissioner of Correction , 180 Conn. App. 56, 182 A.3d 690 (habeas court had no obligation to conduct hearing before dismissing petition pursuant to Practice Book § 23-29 ), cert. granted, 329 Conn. 908, 186 A.3d 13 (2018).
In Holliday , the petitioner filed a petition for a writ of habeas corpus in which he alleged that legislative changes to the risk reduction earned credit statute violated the ex post facto clause of the United States constitution. Holliday v. Commissioner of Correction , supra, 184 Conn. App. at 232, 194 A.3d 867. The habeas court dismissed the petition pursuant to Practice Book § 23-29, and the petitioner appealed from the judgment claiming that the court erred in dismissing his petition (1) for lack of jurisdiction and (2) without notice or a hearing. Id., at 230, 194 A.3d 867. This court held that, for purposes of the habeas court's subject matter jurisdiction, which is predicated on the deprivation of a recognized liberty interest, there is no liberty interest in the application of risk reduction earned credit toward an inmate's parole eligibility. Id., at 233–34, 194 A.3d 867. Additionally, this court held that the habeas court was not required to provide notice or a hearing before dismissing the petition. Id., at 236, 194 A.3d 867.
Although, under Practice Book § 23-40, "[h]abeas petitioners generally have the right to be present at any evidentiary hearing and at any hearing or oral argument on a question of law which may be dispositive of the case ... Practice Book § 23-40 speaks only to the petitioner's right to be present at an evidentiary hearing when such a hearing is held. Such hearings are not always required, as Practice Book § 23-29 authorizes the court to dismiss a habeas petition on its own motion. ...
"[A] petitioner's right to a hearing before a habeas court is not absolute.... [T]his court [has] held that the habeas court acted properly in dismissing a habeas petition pursuant to Practice Book § 23-29 without first holding a hearing because it could be determined from a review of the petition [that] the petitioner had not satisfied his obligation to allege sufficient facts in his pleading to establish jurisdiction." (Citations omitted; footnote omitted; internal quotation marks omitted.) Holliday v. Commissioner of Correction , supra, 184 Conn. App. at 236–37, 194 A.3d 867. Here, as in Holliday , the habeas court could determine from a review of the third petition that the petitioner had failed to allege sufficient facts to establish jurisdiction. The third petition alleged only the deprivation of risk reduction earned credit, which our Supreme Court and this court have held is insufficient to invoke the habeas court's jurisdiction. See Perez v. Commissioner of Correction , 326 Conn. 357, 373–74, 163 A.3d 597 (2017) ; Holliday v. Commissioner of Correction , supra, at 237–38, 194 A.3d 867. Therefore, in light of binding precedent establishing the habeas court's lack of subject matter jurisdiction, we find that the habeas court was not obligated to grant the petitioner a hearing before dismissing the petition and acted properly in dismissing this portion of the third petition.
As we indicated in Holliday , "we urge the habeas court to exercise [the] authority [to dispose of a petition without a hearing] sparingly and limit its use to those instances in which it is plain and obvious that the court lacks jurisdiction over the habeas petition." (Internal quotation marks omitted.) Holliday v. Commissioner of Correction , supra, 184 Conn. App. at 237, 194 A.3d 867.
Although the analysis contained in Judge Bishop's concurrence has some appeal, we note that our Supreme Court has granted the petition for certification to appeal from this court's decision in Gilchrist v. Commissioner of Correction , supra, 180 Conn. App. 56, 182 A.3d 690, in order to decide whether a habeas petition may be disposed of pursuant to Practice Book § 23-29 by the habeas court without a hearing. Under these circumstances, and in light of the fact that we are bound by Holliday , we believe it is more prudent not to weigh in further with respect to this issue.
B
The petitioner next argues that the habeas court improperly dismissed for lack of jurisdiction that portion of the third petition alleging an ex post facto violation regarding statutory amendments to the earned risk reduction credit program. Although the petitioner recognizes that ordinarily the habeas court's subject matter jurisdiction is predicated on the deprivation of a recognized liberty interest, the petitioner argues that "no liberty interest is required for the petitioner to raise a cognizable ex post facto claim," and that being excluded from earning risk reduction credits guarantees that the petitioner will be incarcerated longer, violating the ex post facto clause. We disagree.The following additional facts are relevant to this claim. In 2011, while the petitioner was incarcerated, the legislature enacted General Statutes § 18-98e. Section 18-98e authorizes the Commissioner of Correction to award, in his or her discretion, risk reduction earned credits. The risk reduction earned credit program allows an eligible convicted prisoner to earn credit toward a reduction of his or her sentence. In 2015, the General Assembly amended § 18-98e, rendering persistent dangerous felony offenders, such as the petitioner, ineligible to earn risk reduction credits. See Public Acts 2015, No. 15-216, § 9 (a).
We turn to our standard of review and applicable legal principles for this claim. "It is well settled that [a] determination regarding a trial court's subject matter jurisdiction is a question of law and, therefore, we employ the plenary standard of review and decide whether the court's conclusions are legally and logically correct and supported by the facts in the record." (Internal quotation marks omitted.) Petaway v. Commissioner of Correction , 160 Conn. App. 727, 731, 125 A.3d 1053 (2015), cert. dismissed, 324 Conn. 912, 153 A.3d 1288 (2017).
"With respect to the habeas court's jurisdiction, [t]he scope of relief available through a petition for habeas corpus is limited. In order to invoke the trial court's subject matter jurisdiction in a habeas action, a petitioner must allege that he is illegally confined or has been deprived of his liberty.... In other words, a petitioner must allege an interest sufficient to give rise to habeas relief.... In order to ... qualify as a constitutionally protected liberty [interest] ... the interest must be one that is assured either by statute, judicial decree, or regulation." (Citations omitted; internal quotation marks omitted.) Green v. Commissioner of Correction , supra, 184 Conn. App. at 85, 194 A.3d 857. Our Supreme Court and this court have held that there is no liberty interest in the application of risk reduction eligibility credit toward an inmate's parole eligibility. Perez v. Commissioner of Correction , supra, 326 Conn. at 371, 163 A.3d 597 ; Green v. Commissioner of Correction , supra, at 85, 194 A.3d 857.
In the present case, the petitioner argues that "[t]he court's basis for concluding that it lacked jurisdiction—that there [is] no recognized liberty interest in parole eligibility ... cannot support the court's dismissal." (Internal quotation marks omitted.) The petitioner states that "parole eligibility is irrelevant" and that the statutory changes at issue "do not affect when the petitioner will become eligible for parole" but rather, "they affect only his end of sentence date." In other words, the petitioner attempts to draw a distinction between circumstances in which the loss of risk reduction credit affects a prisoner's end of sentence date from those in which it affects a prisoner's parole eligibility date. Specifically, the petitioner argues that "by excluding [him] from the opportunity to earn [risk reduction credits] ... the probability that his sentence will increase, and that he will be incarcerated longer ... is guaranteed," and that this is a violation of the ex post facto clause.
"Pursuant to § 18-98e... an inmate is not guaranteed a certain amount of risk reduction credits per month—or, in fact, any credits at all." Green v. Commissioner of Correction , supra, 184 Conn. App. at 86, 194 A.3d 857. As we stated in Green , "[t]he fact that the commissioner is vested with such broad discretion in implementing the [risk reduction earned credit] program is significant. Our appellate courts have concluded, consistently, that an inmate does not have a constitutionally protected liberty interest in certain benefits—such as good time credits, risk reduction credits, and early parole consideration—if the statutory scheme pursuant to which the commissioner is authorized to award those benefits is discretionary in nature." Id., at 86–87, 194 A.3d 857."[T]he plain language of § 18-98e (a)... provides that an inmate may be eligible to earn risk reduction credit at the discretion of the [respondent] ... [who] may, in his or her discretion, cause the loss of all or a portion of such earned risk reduction credit for any act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause. Although the legislature has provided guidance to the respondent as to how to exercise his discretion, the respondent still has broad discretion to award or revoke risk reduction credit. As such, the statute does not support an expectation that an inmate will automatically earn risk reduction credit or will necessarily retain such credit once it has been awarded." (Citations omitted; internal quotation marks omitted.) Perez v. Commissioner of Correction , supra, 326 Conn. at 372, 163 A.3d 597.
Like parole eligibility, there is no cognizable liberty interest in earning risk reduction credits in order to obtain an earlier end of sentence date. In Green , we held that, although the petitioner argued that the loss of risk reduction credit "[bore] directly on the duration of his sentence," the court did not have jurisdiction over the claim. Green v. Commissioner of Correction , supra, 184 Conn. App. at 84, 194 A.3d 857. Moreover, the claim fails to implicate the ex post facto clause. The traditional approach in determining whether a colorable ex post facto claim exists requires us to compare the statute that was in effect at the time of the petitioner's offense to the challenged statute. See Perez v. Commissioner of Correction , supra, 326 Conn. at 378–80, 163 A.3d 597. In the present case, the petitioner committed the robbery underlying his conviction in 2009, prior to the enactment of the risk reduction earned credits statutes. Therefore, the statutory amendment excluding persistent dangerous felony offenders for risk reduction earned credit eligibility simply put the petitioner in the same position that he was in when he committed the offense for which he was sentenced. The fact that the claimed liberty interest in the present matter pertains to the petitioner's maximum release date, rather than his date of parole eligibility, is immaterial because the sentence that the petitioner received based on the statutory scheme in effect at the time he committed the offense has not been changed. No ex post facto violation occurred, and no cognizable liberty interest is implicated by the petitioner's loss of risk reduction earned credits. Accordingly, the habeas court properly dismissed this portion of the third petition.
II
We next address the petitioner's claim that the habeas court improperly dismissed that portion of the third petition alleging that his guilty plea was not voluntary on the ground that the claim constituted an improper successive petition pursuant to Practice Book § 23-29 (3). Specifically, the petitioner argues that the third petition presents new grounds that were neither raised in the first petition nor litigated at the habeas trial in that case. According to the petitioner, because the first petition alleged ineffective assistance of counsel, and not a freestanding due process claim challenging the voluntariness of his plea, the claim raised in the third petition was not improperly successive. Although the respondent, the Commissioner of Correction (commissioner), concedes that the habeas court improperly dismissed the third petition for being improperly successive, it contends that the judgment of dismissal nonetheless should be affirmed because the factual basis for the petitioner's claim was fully and fairly litigated and decided adversely to him in the first habeas action. We agree with the commissioner and, therefore, affirm the habeas court's judgment dismissing this count on the alternative ground that the claim is barred by collateral estoppel.
"That the court relied on a wrong theory does not render the judgment erroneous. We can sustain a right decision although it may have been placed on a wrong ground." (Internal quotation marks omitted.) Tyson v. Commissioner of Correction , 155 Conn. App. 96, 105 n.4, 109 A.3d 510, cert. denied, 315 Conn. 931, 110 A.3d 432 (2015).
We begin our analysis by reviewing the doctrines of res judicata and collateral estoppel in habeas corpus proceedings. Pursuant to Practice Book § 23-29, "[i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing." (Footnote omitted; internal quotation marks omitted.) Zollo v. Commissioner of Correction , 133 Conn. App. 266, 277, 35 A.3d 337, cert. granted, 304 Conn. 910, 39 A.3d 1120 (2012) (appeal dismissed May 1, 2013). "[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief.... But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition." (Emphasis omitted; internal quotation marks omitted.) Id., at 278, 35 A.3d 337.
"Our courts have repeatedly applied the doctrine of res judicata to claims duplicated in successive habeas petitions filed by the same petitioner.... In fact, the ability to dismiss a petition [if] it presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition is memorialized in Practice Book § 23-29 (3)." (Citations omitted; internal quotation marks omitted.) Diaz v. Commissioner of Correction , 125 Conn. App. 57, 64–65, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).
"[T]he application of the doctrine of res judicata is limited in habeas actions to claims that actually have been raised and litigated in an earlier proceeding." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction , supra, 168 Conn. App. at 310, 145 A.3d 416. This court has held that "the principle of claim preclusion applie[s] when identical claims [are] argued on direct appeal and habeas review." (Emphasis omitted.) Diaz v. Commissioner of Correction , supra, 125 Conn. App. at 66, 6 A.3d 213.
The first petition and the third petition do not present identical claims. The first petition asserted a claim of ineffective assistance of counsel. The third petition asserts a freestanding due process claim that the petitioner's plea was involuntary. Therefore, the habeas court in the present case, as the commissioner concedes, incorrectly concluded that the petitioner's claim involving the voluntariness of his plea was an improper successive claim because it was precluded by the doctrine of res judicata. Simply put, the petitioner had not raised the instant claim in any of the prior habeas petitions.
We nonetheless agree with the commissioner that we should affirm the habeas court's judgment on the alternative ground of collateral estoppel. "Under [ Practice Book § 23-29 (5) ], the court may dismiss [a habeas] petition or any count thereof if it determines that any other legally sufficient ground for dismissal of the petition exists." (Internal quotation marks omitted.) Mozell v. Commissioner of Correction , 147 Conn. App. 748, 758 n.8, 83 A.3d 1174, cert. denied, 311 Conn. 928, 86 A.3d 1057 (2014).
"The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality.... Collateral estoppel ... is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim.... For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined.... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.... [C]ollateral estoppel [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.... Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest." (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction , supra, 168 Conn. App. at 310–11, 145 A.3d 416.
We previously have affirmed judgments of the habeas court on the alternative ground of collateral estoppel. In Johnson , the petitioner alleged that his third habeas counsel was ineffective because she did not raise the issue of whether trial counsel was ineffective for failing to file a motion for a competency evaluation. Id., at 308, 145 A.3d 416. The habeas court dismissed the claim as an improper successive claim under the doctrine of res judicata. Id. This court held that the claim was dismissed on improper grounds because the petitioner had not raised the identical claim in any of his prior habeas petitions. Id., at 309, 145 A.3d 416. This court, however, affirmed the dismissal of the petitioner's claim on the alternative ground of collateral estoppel under Practice Book § 23-29 (5). Id., at 312, 145 A.3d 416.
In Johnson , we stated that "[t]o establish that third habeas counsel was ineffective for failing to allege a claim that trial counsel was ineffective for failing to move for a competency evaluation, the petitioner would be required to prove that trial counsel was ineffective for failing to move for a competency evaluation. This already was decided, after a full evidentiary hearing, by the fifth habeas court ...." Johnson v. Commissioner of Correction , supra, 168 Conn. App. at 311–12, 145 A.3d 416. Therefore, the petitioner's claim involving third habeas counsel "[was] barred by collateral estoppel because litigation of that claim necessarily required relitigation of an issue that already [had] been fully and fairly decided in the fifth habeas action, specifically, whether trial counsel was ineffective for failing to move for a competency evaluation;" id., at 311, 145 A.3d 416 ; and an earlier habeas proceeding "necessarily resolved an issue that would need relitigation if the claim involving third habeas counsel were to proceed ...." Id.
We agree with the commissioner that the central factual allegation necessary to sustain the petitioner's claim of an involuntary plea was fully and fairly litigated and decided adversely to the petitioner in the first habeas action. In the first petition, the petitioner set forth a claim of ineffective assistance of counsel premised on an allegation that his counsel failed to inform him of the applicable charges against him. In adjudicating that claim of ineffective assistance of counsel, the first habeas court was required to decide whether his defense counsel had failed to inform him of all of the charges, including the persistent dangerous felony offender charge. In the third petition, the petitioner claims that his plea was involuntary because he was not aware that he was pleading guilty to being a persistent dangerous felony offender. Therefore, although the first and third petitions present different claims, they are predicated on the same underlying factual allegation, namely, that the petitioner was not aware of the charges pending against him. The claim presented in the third petition depends on this factual allegation, which was fully and fairly litigated in the previous habeas proceeding and was decided adversely to him in that case by the habeas court.Specifically, in its memorandum of decision denying the first habeas petition, the habeas court, Newson, J. , found that counsel credibly testified that the petitioner was informed that he was being charged as a persistent dangerous felony offender. The memorandum of decision stated that the court credited defense counsel's testimony that defense counsel had properly discussed and advised the petitioner of the facts and circumstances of the case. The court found that the petitioner had admitted that he understood the fact that he was facing a part B information as a persistent dangerous felony offender and that he was exposed to a sixty year sentence.
Further, Judge Newson stated, "[a]nd so again, the substance and the length of the visits is not necessarily a correlation to the quality or the information that's delivered in those visits and the court credits counsel's testimony that the petitioner was aware. Additionally, there's a plea canvass which the petitioner appears to have made it through without any significant issues, any questions, any lack of understanding, and the law indicates that the court is allowed to rely on those answers and responses as credible and accurate when given. And when an individual is asked if he or she has any questions or lacks any understanding during the plea canvass and can answer that in the negative, then the court is allowed to accept that as accurate and truthful when given and that again presents issues when a petitioner later comes in a habeas and claims that he did not or does not understand."
Finally, the court stated, "[a]nd again, so the record is clear ... I found in general that counsel appeared to be competent and knowledgeable ... I credit her testimony that she provided the petitioner with all of the information necessary for him to make a knowing, intelligent, and voluntary guilty plea ." (Emphasis added.) Therefore, whether the petitioner entered his plea knowing that he was pleading guilty to being a persistent dangerous felony offender was a fact that was fairly litigated and actually decided by the habeas court.
Because the habeas court necessarily decided adversely to the petitioner the underlying issue of whether he knew that he was pleading guilty to being a persistent dangerous felony offender in a previous habeas hearing, the petitioner is precluded by collateral estoppel from litigating the same issue in regard to his claim of an involuntary plea. The habeas court thus properly dismissed the third petition pursuant to Practice Book § 23-29.
The judgment is affirmed.
In this opinion MOLL, J., concurred.
BISHOP, J., concurring.The record in the present case reflects that the petitioner filed the underlying petition for a writ of habeas corpus, his third, on August 8, 2016, and that, when the petition was received by the Superior Court, it was assigned a docket number. In his filing, the petitioner claimed, inter alia, that his confinement was illegal because (1) his guilty plea to the underlying criminal offense was not voluntary, and (2) the 2013 and 2015 amendments to the earned risk reduction credit statute, General Statutes § 18-98e, which bore on his parole eligibility and were enacted subsequent to his conviction, violated the ex post facto clause of the United States constitution. In conjunction with his petition, the petitioner filed an application for a waiver of fees and payment of costs and a request for the appointment of counsel, which the court clerk granted on August 26, 2016. The record further reflects that, notwithstanding the docketing of the petition and the granting of the petitioner's request for counsel, the court, sua sponte, dismissed the petition pursuant to Practice Book § 23-29 without having actually appointed counsel and without having provided the petitioner notice and an opportunity to be heard on the motion to dismiss.
The petition was docketed as TSR-CV16-4008315-S. "At common law habeas corpus was a formalistic proceeding. The application played no role in framing the issues, its only purpose being to secure the issuance of the writ.... The return, whose truth could not be contested ... limited the proceeding to the determination of a question of law. Early on the legislature corrected this deficiency by permitting the statements in the return to be contested... At that point and until fairly recently the issues on which a subsequent trial was to be held were framed by the return and the pleadings subsequent thereto.... In recent years the application has come to be regarded as a pleading in the nature of a complaint ... and the return in the nature of an answer." (Citations omitted.) Arey v. Warden , 187 Conn. 324, 331–32, 445 A.2d 916 (1982) ; see also Carpenter v. Commissioner of Correction , 274 Conn. 834, 842 n.7, 878 A.2d 1088 (2005). Translating the old into newer procedure, one can fairly say that once a habeas petition has been docketed, the writ has effectively issued, and once a return has been filed, the issues have been joined for judicial determination. Overlying this procedure are various Practice Book provisions providing for the summary disposition of the petition.
My colleagues affirm the habeas court's dismissal on the substantive grounds that the petitioner has no liberty interest in the receipt of earned risk reduction credit and that his claim regarding his guilty plea is barred by the doctrine of collateral estoppel. On the basis of this court's recent decision in Holliday v. Commissioner of Correction , 184 Conn. App. 228, 194 A.3d 867 (2018), my colleagues also affirm the habeas court's reliance on Practice Book § 23-29 to dispose of the petitioner's claims without affording him or his counsel notice or an opportunity to be heard before the court sua sponte dismissed his petition. Although I am bound by Holliday to concur with the outcome of this appeal, I write separately because I am concerned that, through this and prior opinions, this court has eroded the process rights of habeas petitioners contrary to the over-arching purpose of habeas corpus, contrary to the decisional law of our Supreme Court, and contrary to the applicable provisions of the Practice Book. Specifically, I believe that, before a petition for a writ of habeas corpus can be dismissed pursuant to Practice Book § 23-29, the petitioner should be given notice of the court's inclination to dismiss, sua sponte, his petition and an opportunity to be heard on the question of whether dismissal is warranted. Our recent decisional law, however, including the majority's opinion in the present case, has condoned the growing habit of trial judges to dismiss petitions sua sponte pursuant to § 23-29 without prior notice to the petitioner that the court is considering dismissal and without affording the petitioner an opportunity to be heard on the propriety of such dismissal. Respectfully, I believe this to be a wrong-minded trend that represents the elevation of judicial efficiency over fair process, relevant decisional law, and applicable rules of practice.
As a matter of policy, one panel of this court may not reverse the ruling of a previous panel. See Consiglio v. Transamerica Ins. Group , 55 Conn. App. 134, 138 n.2, 737 A.2d 969 (1999). Indeed, this rule is not merely an axiom of appellate collegiality; a prior ruling by one panel is binding precedent on a subsequent panel. See Samuel v. Hartford , 154 Conn. App. 138, 144, 105 A.3d 333 (2014) ("[w]e are bound by [our prior] precedent, as it is axiomatic that one panel of this court cannot overrule the precedent established by a previous panel's holding").
See Holliday v. Commissioner of Correction , supra, 184 Conn. App. at 235–38, 194 A.3d 867 ; Gilchrist v. Commissioner of Correction , 180 Conn. App. 56, 62–63, 182 A.3d 690, cert. granted, 329 Conn. 908, 186 A.3d 13 (2018) ; Pentland v. Commissioner of Correction , 176 Conn. App. 779, 787–88, 169 A.3d 851, cert. denied, 327 Conn. 978, 174 A.3d 800 (2017) ; Coleman v. Commissioner of Correction , 137 Conn. App. 51, 57–58, 46 A.3d 1050 (2012) ; but see Boyd v. Commissioner of Correction , 157 Conn. App. 122, 125–27, 115 A.3d 1123 (2015) ; see also Perez v. Commissioner of Correction , 326 Conn. 357, 366, 163 A.3d 597 (2017) (habeas court afforded petitioner notice and hearing before dismissing petition).
The starting point for my analysis is the seminal case of Mercer v. Commissioner of Correction , 230 Conn. 88, 93, 644 A.2d 340 (1994), in which our Supreme Court opined: "Both statute and case law evince a strong presumption that a petitioner for a writ of habeas corpus is entitled to present evidence in support of his claims. General Statutes § 52-470 (a) provides that ‘[t]he court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments [in the case], and [shall] inquire fully into the cause of imprisonment, and ... thereupon dispose of the case as law and justice require.’ In Negron v. Warden , 180 Conn. 153, 158 n.2, 429 A.2d 841 (1980), we noted that whenever a court is ‘legally required’ to hear a habeas petition, § 52-470 (a) ‘delineate[s] the proper scope of [the] hearing ....’ The statute explicitly directs the habeas court to ‘dispose of the case’ only after ‘hearing the testimony and arguments therein.’ " (Emphasis in original.) Mercer v. Commissioner of Correction , supra, at 93, 644 A.2d 340.
The Mercer court continued: "In our case law, we have recognized only one situation in which a court is not legally required to hear a habeas petition. In Negron v. Warden , supra, 180 Conn. at 158, 429 A.2d 841, we observed that, pursuant to Practice Book § 531, [i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing. We emphasized the narrowness of our construction of Practice Book § 531 by holding that dismissal of a second habeas petition without an evidentiary hearing is improper if the petitioner either raises new claims or offers new facts or evidence. Id., at 158 and n.2, 429 A.2d 841. Negron therefore strengthens the presumption that, absent an explicit exception, an evidentiary hearing is always required before a habeas petition may be dismissed." (Emphasis in original; internal quotation marks omitted.) Mercer v. Commissioner of Correction , supra, 230 Conn. at 93, 644 A.2d 340. As noted in Mercer , at the time that decision was issued, our rules of practice provided only one basis for a habeas petition to be dismissed without an evidentiary hearing. That provision, Practice Book (1995) § 531, provided: "If the petitioner has filed a previous application, it and the action taken thereon shall be summarily described in the pending application. If a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing."
The presumption espoused in Negron and affirmed in Mercer , that a habeas petitioner is entitled to an evidentiary hearing unless a rule explicitly provides to the contrary, was acknowledged by this court in 2009 in Riddick v. Commissioner of Correction , 113 Conn. App. 456, 966 A.2d 762 (2009), appeal dismissed, 301 Conn. 51, 19 A.3d 174 (2011). Riddick concerned the application of Practice Book (2009) § 23-42 (a), which provided in relevant part: "If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed , with the petitioner pro se...." (Emphasis added.) In affirming the habeas court's then-existent authority to dismiss a petition under this rule, the Riddick court opined: "[Practice Book (2009) § 23-42 ] provides an explicit exception to the general rule requiring an evidentiary hearing before a habeas petition may be dismissed. See Mercer v. Commissioner of Correction , [supra, 230 Conn. at 93, 644 A.2d 340 ]." Riddick v. Commissioner of Correction , supra, at 467, 966 A.2d 762.
It is noteworthy that, not long after the issuance of the decision in Riddick , Practice Book (2009) § 23-42 was amended to eliminate the court's authority to dismiss a petition when granting the motion of the petitioner's counsel for leave to withdraw. Section 23-42 now provides that a petitioner whose counsel has been permitted to withdraw may, nevertheless, proceed on a self-represented basis. Thus, the exception noted in Negron for circumstances in which the habeas court need not hold a hearing before dismissing a petition no longer pertains, with the result that Practice Book § 23-24 now provides the sole avenue for summarily disposing of a petition without a hearing of any kind.
In 1995, the Practice Book provisions regarding habeas corpus were substantially amended. Notably, Practice Book (1995) § 531 was eliminated, thereby excising from the rules of practice the only explicit circumstance in which a petition for a writ of habeas corpus could be dismissed without an evidentiary hearing on the merits. At the same time, however, three new pertinent sections, Practice Book (1996) §§ 529C, 529H, and 529S (now §§ 23-24, 23-29, and § 23-40, respectively), were adopted, which provide the court with alternative vehicles for summary disposition of habeas matters. Understanding the import of these changes is key to resolving the question of whether a petition may be dismissed under § 23-29 without providing the petitioner notice and an opportunity to be heard.
The 1995 amendments to the Practice Book established two distinct procedural opportunities for the habeas court to summarily dispose of a habeas corpus petition without an evidentiary hearing. Practice Book § 23-24 effectively vests the court with a new gatekeeping function, authorizing the court to dispose of a case before it has been docketed by declining to "issue the writ" for certain enumerated grounds. Practice Book § 23-29 provides for the summary disposition of a petition once the writ has already been issued. Respectfully, I believe this court has blurred the important distinctions between the habeas court's gatekeeping function pursuant to § 23-24 and its authority to dismiss a pending matter for the reasons enumerated in § 23-29. Conflation of these two rules by this court has eroded the process rights of petitioners whose writs have been issued and for whom counsel has been appointed.Pursuant to Practice Book § 23-24, when the habeas court exercises its gatekeeping function to decline to issue a writ, the matter is returned to the petitioner with a notation from the court setting forth the basis on which the court has declined to issue the writ. This rule reflects the historical distinction between the issuance of the writ and the adjudication of the petitioner's claims for relief, which this court explained in its opinion in Green v. Commissioner of Correction , 184 Conn. App. 76, 194 A.3d 857, cert. denied, 330 Conn. 933, 195 A.3d 383 (2018) : "The meaning of [the] phrase [issue the writ] can be ascertained by reference to historical practices regarding the service and issuance of writs of habeas corpus in our state. At one point in time, a habeas petition was filed with the court prior to it being served on the [respondent] Commissioner [of Correction (commissioner) ]. General Statutes (1918 Rev.) § 6033. The court would then determine whether to issue the writ. General Statutes (1918 Rev.) § 6033. It was only if the court decided to issue the writ that the petition would be served on the commissioner by an officer of the court and a subsequent habeas trial be held. General Statutes (1918 Rev.) § 6033; see also Adamsen v. Adamsen , 151 Conn. 172, 176, 195 A.2d 418 (1963) (Our statute requires that the application for a writ of habeas corpus shall be verified by the affidavit of the applicant for the writ alleging that he verily believes the person on whose account such writ is sought is illegally confined or deprived of his liberty.... The only purpose served by the application is to secure the issuance of the writ in the discretion of the court. The issues on which any subsequent trial is held are framed by the return and the pleadings subsequent thereto.... Put differently, [t]he issuance of the writ did not determine the validity of the [petition] .... On the contrary, it served only to bring the parties before the court in order that the issue of the alleged illegal restraint might be solved. Adamsen v. Adamsen , supra, at 177, 195 A.2d 418." (Internal quotation marks omitted.) Green v. Commissioner of Correction , supra, 184 Conn. App. at 80–81 n.3, 194 A.3d 857.
Practice Book § 23-24 provides: "(a) The judicial authority shall promptly review any petition for a writ of habeas corpus to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that:
"(1) the court lacks jurisdiction;
"(2) the petition is wholly frivolous on its face; or
"(3) the relief sought is not available.
"(b) The judicial authority shall notify the petitioner if it declines to issue the writ pursuant to this rule."
See, e.g., Fuller v. Commissioner of Correction , 144 Conn. App. 375, 377, 71 A.3d 689 (when confronted with application for issuance of writ of habeas corpus claiming that parole board had acted unreasonably in denying parole, habeas court, after reviewing petition, sent petitioner letter indicating that "[t]he [h]abeas [c]orpus petition is declined and is being returned because the court lacks jurisdiction per ... Practice Book § 23-24 [a] [1]"), cert. denied, 310 Conn. 946, 80 A.3d 907 (2013).
As noted, Practice Book § 23-29 was adopted in 1995 at the same time Practice § 23-24 was adopted. In my view, these sections, which are still in effect, provide procedurally different bases for the court to summarily dispose of a habeas corpus case. Section 23-24 provides a vehicle for the court to exercise a gatekeeping function to bar entry to the court of those cases in which it is patent that the court lacks jurisdiction over the claim, the petition is wholly frivolous on its face, or the relief requested in the petition is not available. Section 23-29 also provides a basis for the summary disposition of the case, but, in this instance, because § 23-29 is applicable only once the writ has been issued, the petition may not then be dismissed without affording the petitioner notice and a hearing on the motion to dismiss.
Although Practice Book § 23-29 has been characterized as the successor rule to Practice Book (1995) § 531, there is a significant distinction between the two regarding a petitioner's right to a hearing. Section 531 expressly authorized the court to dismiss a successive petition "without hearing unless it states new facts or proffers new evidence not reasonably available at the previous hearing"; (emphasis added); the successor rule, § 23-29, however, contains no parallel provision. To be sure, the new rule, § 23-29, did expand the bases on which a court is authorized to summarily dispose of a petition and now includes those in which (1) the court has no jurisdiction, (2) the petition fails to state a claim upon which habeas corpus relief can be granted, (3) the petition presents the same ground as a previously denied petition and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition, (4) the claims asserted in the petition are moot or premature, and (5) any other legally sufficient ground for dismissal of the petition. See Practice Book § 23-29. Significantly, however, § 23-29 contains no provision authorizing the court to dismiss a pending petition without affording the petitioner a hearing and an opportunity to be heard on the motion to dismiss. Consequently, in my view, the 1995 revision to the Practice Book effectuated two complementary changes. On one hand, it eliminated the one basis on which a writ, once issued, could be dismissed without affording a petitioner notice and the right to be heard, while at the same time creating a vehicle, § 23-24, through which the court, in the exercise of its gatekeeping function, may turn a petition away from the court-house door by declining to issue the writ.
Respectfully, I believe that the provisions of Practice Book §§ 23-24 and 23-29, authorizing the habeas court to summarily dispose of a writ or petition for certain enumerated grounds, are complementary and not mere duplications of the same judicial authority. To the extent the court mindfully fulfills its gatekeeping function pursuant to § 23-24, it may simply return the writ to the petitioner with a note indicating the basis for its decision to decline to issue the writ. If, however, a writ escapes preliminary review, the court's responsibility is more burdensome. In my view, the resolution of this conundrum does not lie in eroding the process rights of a petitioner whose writ has been issued; rather, it suggests that the court should develop a more mindful process to weed out inappropriate writs as a preliminary matter pursuant to its gatekeeping function. Although this suggestion may entail some administrative changes in the Superior Court regarding the docketing of petitions, I believe that, in the long run, a more fulsome use of the court's authority pursuant to § 23-24 would maximize judicial efficiency without the unnecessary dilution of the petitioner's process rights that attach once the writ has been issued.
My understanding of the interplay between Practice Book §§ 23-24 and 23-29 is buttressed by the simultaneous adoption in 1995 of Practice Book § 23-40, which newly provided, inter alia, for the right of the petitioner to be present at "any evidentiary hearing and at any hearing or oral argument on a question of law which may be dispositive of the case ...." Although I recognize that this rule does not explicitly require the court to conduct a hearing before dismissing a petition pursuant to § 23-29, its provisions entitling a petitioner to be present at any dispositive hearing would be rendered illusionary if a petitioner had no right to a hearing at all. My view finds support, as well, in the general Practice Book rules regarding civil actions. At the outset, it is well established that "[h]abeas corpus is a civil proceeding." Collins v. York , 159 Conn. 150, 153, 267 A.2d 668 (1970). Consequently, "[a] habeas corpus action, as a variant of civil actions, is subject to the ordinary rules of civil procedure, unless superseded by the more specific rules pertaining to habeas actions." (Internal quotation marks omitted.) Kendall v. Commissioner of Correction , 162 Conn. App. 23, 45, 130 A.3d 268 (2015). Chapter 11 of the Practice Book, which relates to civil matters generally, provides for notice and an opportunity to be heard before a matter may be summarily dismissed. Pursuant to Practice Book § 11-1, "[e]very motion ... directed to pleading or procedure ... shall be in writing"; Practice Book § 11-1 (a) ; and "such motion ... shall be served on all parties as provided in [Practice Book §§] 10-12 through 10-17." Practice Book § 11-1 (c). "The purpose of requiring written motions is not only the orderly administration of justice ... but the fundamental requirement of due process of law"; (citation omitted) Connolly v. Connolly , 191 Conn. 468, 475, 464 A.2d 837 (1983) ; specifically, the requirement of adequate notice. See Herrmann v. Summer Plaza Corp. , 201 Conn. 263, 273, 513 A.2d 1211 (1986) ("[t]he requirement that parties file their motions in writing is to ensure that the opposing party has written notice of the motion to dismiss"). As will be made clear in the following paragraph, receipt of adequate notice is essential in order for the nonmoving party to exercise its right under the Practice Book to be heard.
In coming to this view, I am mindful of this court's contrary conclusion in Holliday : "[T]he rules of practice were promulgated to create one harmonious and consistent body of law.... If courts can by any fair interpretation find a reasonable field of operation for two [rules of practice] without destroying their evident meaning, it is the duty of the courts to do so, thus reconciling them and according to them concurrent effect.... To give effect to both Practice Book §§ 23-29 and 23-40, the latter section should be read to give a petitioner the right to be present at an evidentiary hearing if one is held, not to give a petitioner the absolute right to an evidentiary hearing itself." (Citation omitted; internal quotation marks omitted.) Holliday v. Commissioner of Correction , supra, 184 Conn. App. at 236 n.10, 194 A.3d 867. With all respect to my colleagues in the Holliday decision, the panel's view, if it endures, would eviscerate any fair process rights that § 23-40 confers on habeas petitioners whose writs have eluded disposition pursuant to Practice Book § 23-24. In my view, the clearer route to harmonizing § 23-29 with § 23-40 is to conclude that the latter rules entitle a habeas petitioner to notice and an opportunity to be heard before dismissal pursuant to § 23-29. Achieving harmony in the habeas rules, a value Holliday exhorts, is fully in accord with the presumption of a hearing entitlement embodied in Mercer , whereas the view espoused in Holliday negates by implication the overarching and enduring admonition of Mercer .
See, e.g., Turner v. Commissioner of Correction , 163 Conn. App. 556, 563, 134 A.3d 1253 (applying General Statutes § 52-212a and Practice Book § 17-4, which govern motions to open and set aside civil judgments), cert. denied, 323 Conn. 909, 149 A.3d 980 (2016) ; Kendall v. Commissioner of Correction , supra, 162 Conn. at 46, 130 A.3d 268 (applying Practice Book § 15-6, which allows for opening argument in civil trials before court or jury); Carmon v. Commissioner of Correction , 148 Conn. App. 780, 785–86, 87 A.3d 595 (2014) (holding that General Statutes § 52-119 and Practice Book § 10-18, which apply generally to civil actions, give habeas court authority to render default judgment or nonsuit against party who fails to comply with pleading requirements); Fuller v. Commissioner of Correction , 75 Conn. App. 814, 817–19, 817 A.2d 1274 (holding that dismissal for lack of due diligence in prosecuting civil case pursuant to Practice Book § 14-31 was legally sufficient ground for dismissal of habeas corpus action and fell under catchall "other legally sufficient ground" provision of Practice Book § 23-29 [5] ), cert. denied, 263 Conn. 926, 823 A.2d 1217 (2003).
Our rules of practice grant the nonmoving party to a motion to dismiss two opportunities to be heard. First, Practice Book § 11-10 (a) provides the adverse party to a motion to dismiss (as well as certain other specifically enumerated motions) with the opportunity to file a memorandum of law in opposition to the motion. The rules also provide the nonmovant with the right to present oral argument on the motion to dismiss at the court's short calendar. Pursuant to Practice Book § 11-18 (a), "[o]ral argument is at the discretion of the judicial authority except as to motions to dismiss" and certain other motions. (Emphasis added.) "For those motions, oral argument shall be a matter of right , provided: (1) the motion has been marked ready in accordance with the procedure that appears on the short calendar on which the motion appears, or (2) a nonmoving party files and serves on all parties ... a written notice stating the party's intention to argue the motion or present testimony." (Emphasis added.) Practice Book § 11-18 (a).
Practice Book § 11-10 (a) provides in relevant part: "A memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions and requests ... (2) motions to dismiss except those filed pursuant to [Practice Book §] 14-3 .... Memoranda of law may be filed by other parties on or before the time the matter appears on the short calendar."
Pursuant to Practice Book § 11-13 (a), all motions must be placed on the short calendar list, and, as per Practice Book § 11-15, they are to be assigned automatically by the clerk without written claim.
Application of the foregoing rules in the context of a motion to dismiss under Practice Book § 23-29 is most straightforward when it is the respondent who makes the motion. In such circumstances, it is clear that the respondent must file a written motion and a memorandum of law and serve the same on the petitioner, thus satisfying the requirements of Practice Book § 11-1. The effect of the service of the motion and brief is to provide the petitioner with the notice necessary for the petitioner to be able to (1) exercise his rights to file a memorandum of law in opposition to the motion pursuant to Practice Book § 11-10 and (2) claim the matter for oral argument pursuant to Practice Book § 11-18. Thus, where the respondent properly serves the petitioner with notice of its motion and the grounds there-for, and the petitioner simply fails to exercise his right to file a brief or make oral argument, it is clear that the habeas court may properly decide the motion without having heard from the petitioner.
Moreover, a cursory review of the habeas corpus short calendar of the Superior Court for the judicial district of Tolland, geographical area number nineteen, reveals that motions to dismiss are routinely marked "arguable." See, e.g., TSR – Short Calendar 01 – Civil Arguable Matters, October 29, 2018 (TSR SC 01), available at http://civilinquiry.jud.ct.gov/Calendars/SCByLocDetail.aspx?ccid=94517 (last visited November 1, 2018).
I recognize, of course, that Practice Book § 23-29, unlike its parallel provision, Practice Book § 10-30, contemplates that a court may dismiss a petition sua sponte even where the ground for dismissal does not implicate subject matter jurisdiction. Nowhere in § 23-29, however, is there a provision for the court to act without providing notice to the petitioner and an opportunity to be heard on the court's sua sponte motion. Thus, I conclude that, because § 23-29 does not explicitly provide for the court to act sua sponte without providing notice and an opportunity for the petitioner to be heard on the motion, it is unreasonable and contrary to the rules pertaining to civil matters generally for the court to import such a provision into § 23-29.
Practice Book § 10-30 provides in relevant part: "(a) A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process...."
A review of the decisional history of this court regarding Practice Book § 23-29 reveals our inconsistent treatment of this issue. In Mitchell v. Commissioner of Correction , 93 Conn. App. 719, 725–26, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006), a panel of this court held that the habeas court had improperly dismissed a petition pursuant to § 23-29 without providing notice and a hearing to the petitioner. In Boyd v. Commissioner of Correction , 157 Conn. App. 122, 125–27, 115 A.3d 1123 (2015), this court explicitly relied on Mitchell in holding that it was improper for the habeas court to have dismissed a petition pursuant to § 23-29 without affording the petitioner notice and an opportunity for a hearing. The language of Boyd is instructive. There, this court stated: "Our Supreme Court has noted that ‘[b]oth statute and case law evince a strong presumption that a petitioner for a writ of habeas corpus is entitled to present evidence in support of his claims.’ Mercer v. Commissioner of Correction , [supra, 230 Conn. at 93, 644 A.2d 340 ]. This court previously has held that it is an abuse of discretion by the habeas court to dismiss a habeas petition sua sponte under Practice Book § 23-29 without fair notice to the petitioner and a hearing on the court's own motion to dismiss . Mitchell v. Commissioner of Correction , [supra, 93 Conn. at 725–26, 891 A.2d 25]." (Emphasis added.) Boyd v. Commissioner of Correction , supra, at 125, 115 A.3d 1123. The court further noted: "It is of particular importance that the petitioner had requested the appointment of counsel when filing his second habeas petition. By sua sponte dismissing the petition before any counsel was appointed, the habeas court prevented the petitioner from accessing the legal services needed to help clarify the grounds presented and to ensure that they were not duplicative of the petitioner's prior habeas petition.
The issue presented in the present case has been raised in our Supreme Court on multiple occasions, but the court has each time declined to address it. See Kaddah v. Commissioner of Correction , 299 Conn. 129, 133–34, 141 n.13, 135, 7 A.3d 911 (2010) (affirming habeas court's dismissal of petition pursuant to § 23-29 where petitioner failed to state valid claim for relief and declining to address petitioner's claim on appeal that he should have been afforded notice and opportunity to be heard before habeas court dismissed his petition because, "even if [it] were to agree with [that claim], that conclusion still would not lead to the relief that the petitioner requested"); Oliphant v. Commissioner of Correction , 274 Conn. 563, 568, 877 A.2d 761 (2005) (declining to address petitioner's claim that Appellate Court improperly affirmed habeas court's dismissal of his habeas petition sua sponte without notice or a hearing, as claim was outside scope of question certified for review by Supreme Court). This may soon change, however. Our Supreme Court recently granted a habeas petitioner's petition for certification to appeal from this court's decision in Gilchrist v. Commissioner of Correction , supra, 180 Conn. App. 56, 182 A.3d 690, in which this court affirmed the habeas court's sua sponte dismissal of the habeas petition under § 23-29 without affording the petitioner notice and an opportunity to be heard on the motion. The court certified the following question: "Did the Appellate Court properly affirm the habeas court's dismissal of the petition when the habeas court took no action on the petitioner's request for counsel and did not give the petitioner notice and an opportunity to be heard on the court's own motion to dismiss the petition pursuant to Practice Book § 23-29 ?" Gilchrist v. Commissioner of Correction , supra, 329 Conn. 908, 186 A.3d 13.
"The respondent concedes, and we agree, that the petitioner should have been afforded fair notice and a hearing before the court sua sponte dismissed the second habeas petition, and agrees with the petitioner that the proper course of action is to remand this case to the habeas court for a hearing. The respondent argues, however, that the hearing should be limited to whether the new claims of prosecutorial impropriety should be dismissed under Practice Book § 23-29. We agree with the respondent to the extent that the second habeas petition in its current form contains a duplicative claim of ineffective assistance of counsel predicated upon the same facts and evidence as alleged in the first amended petition for a writ of habeas corpus. We caution, however, that nothing in this opinion should be read as foreclosing the opportunity for the petitioner, or his counsel if one is appointed for him, to amend the current petition to articulate any new facts or evidence he wants to proffer or to state new grounds upon which he believes habeas relief should be granted, including the opportunity to clarify whether his claim of ineffective assistance of counsel is founded upon new facts or evidence not reasonable available at the time of his prior petition." Id., at 126–27, 115 A.3d 1123.
Notwithstanding the history of Practice Book §§ 23-24, 23-29, and 23-40, the general Practice Book rules regarding civil actions, and this court's strong admonition in Boyd , this court has now issued decisions, including the majority's opinion in the present case, that appear to violate the thrust of Mercer and contradict Boyd's admonition that a habeas petitioner is entitled to notice and an opportunity to be heard before his or her petition is dismissed pursuant to § 23-29. I recognize, of course, that the habeas corpus workload has become burdensome to the judiciary. Respectfully, however, I do not believe that we should participate, for the sake of judicial efficiency, in the erosion of the rights of habeas petitioners established by time-tested jurisprudence and the rules adopted by the Superior Court. Rather, I believe that the proper exercise of the court's gatekeeping function pursuant to § 23-24 offers the greatest pathway to the swift disposal of frivolous, wasteful, and repetitious petitions without sacrificing the very purpose for which this enshrined writ exists.
Indeed, data from the Judicial Branch reveal that the tide of incoming habeas petitions appears to be outpacing the rate at which the habeas court is able to dispose of them. For example, during the fiscal year of 2016–2017, 762 habeas cases were added to the docket of the Superior Court for the judicial district of Tolland, whereas only 678 were disposed of. Civil Case Movement: July 1, 2016 to June 30, 2017, available at https://www.jud.ct.gov/statistics/civil/CaseDoc1617.pdf (last visited November 1, 2018). This unbalanced flow of habeas cases is reflected in the steadily increasing number of cases pending at the end of each fiscal year. For example, at the end of the 2014–2015 fiscal year, there were 1451 habeas cases then pending, up from 1128 at the beginning of that year. Civil Case Movement: July 1, 2014 to June 30, 2015, available at https://www.jud.ct.gov/statistics/civil/CaseDoc1415.pdf (last visited November 1, 2018). By the end of the following fiscal year, the number of pending cases had increased to 1562; Civil Case Movement: July 1, 2015 to June 30, 2016, available at https://www.jud.ct.gov/statistics/civil/CaseDoc1516.pdf (last visited November 1, 2018); and, by the end of the 2016–2017 fiscal year, that figure had risen again, to 1637. Civil Case Movement: July 1, 2016 to June 30, 2017, supra.
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For the reasons stated, I respectfully concur.