Arriaga v. Commissioner of Correction

• Decision Date: 30 March 2010
• Docket Number: No. 30272.,30272.
• Citation: 990 A.2d 910,120 Conn. App. 258
• Court: Connecticut Supreme Court
• Parties: Nelson E. ARRIAGA v. COMMISSIONER OF CORRECTION.

990 A.2d 910

120 Conn.App. 258

Nelson E. ARRIAGA v. COMMISSIONER OF CORRECTION.

No. 30272.

Appellate Court of Connecticut.

Argued November 30, 2009.

Decided March 30, 2010.

David J. Reich, special public defender, for the appellant (petitioner).

Sarah Hanna, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James R. Turcotte, supervisory assistant state's attorney, for the appellee (respondent).

GRUENDEL, ROBINSON and SCHALLER, Js.

SCHALLER, J.

The petitioner, Nelson E. Arriaga, 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 concluded that it lacked subject matter jurisdiction over his petition and, in the alternative, that he was denied his due process rights as a result of the court's failure to appoint counsel to review his petition prior to the court's dismissal of his petition for lack of subject matter jurisdiction. We affirm the judgment of the habeas court.

Our review of the record reveals the following facts and procedural history. On July 10, 2008, the petitioner, representing himself, filed a petition for a writ of habeas corpus. The petitioner alleged in his petition that his counsel provided ineffective assistance by reason of counsel's failure to advise him properly of the immigration consequences of pleading guilty. At the same time, the petitioner filed a request for an appointment of habeas counsel. In his petition, the petitioner alleges that on October 27, 2004, he was sentenced to eighteen months in prison after pleading guilty to driving under the influence of intoxicating liquor or drugs and domestic assault.¹ The petitioner also alleged that he received a total effective sentence of eighteen months in the custody of the respondent, the commissioner of correction, and received one month of credit for presentence confinement.² On July 22, 2008, the court, sua sponte, issued a judgment of dismissal pursuant to Practice Book § 23-29(1). The court found that the petitioner was discharged from his sentence for the challenged conviction no later than March 27, 2006. The petitioner sought as relief that the court vacate his guilty plea so that the conviction could not provide a basis for his deportation. The court determined that it had no jurisdiction over the matter pursuant to Ajadi v. Commissioner of Correction, 280 Conn. 514, 541, 911 A.2d 712 (2006) ("collateral consequences of the petitioner's expired convictions, although severe, are insufficient to render the petitioner in custody on those convictions and, therefore, to invoke the jurisdiction of the habeas court"). Thereafter, the court granted the petition for certification to appeal.

On appeal, the petitioner claims that the court improperly concluded that it lacked subject matter jurisdiction over his petition. Specifically, the petitioner argues that he was on probation for the underlying charges at the time he filed his petition with the habeas court.³ The petitioner argues that we liberally should construe the rules of practice and not require him to allege in his petition that he was in custody or on probation at the time he filed his petition because he represented himself before the habeas court. The petitioner argues further that we can take judicial notice of his criminal record of the underlying convictions, which demonstrates that he was on probation at the time of his sentence. The respondent counters that the petitioner was required to allege in his petition that he was in custody and that this court, on review, is limited to the record before the habeas court in determining the subject matter jurisdiction of the habeas court. The respondent argues, therefore, that we cannot properly take judicial notice of the petitioner's underlying criminal record. We agree with the respondent that the petitioner was required to allege in his petition that he was in custody. We decline to take judicial notice of any documents not before the habeas court in this matter.

To resolve the petitioner's claim, we begin by setting forth the standard of review as well as the relevant legal principles. "Our Supreme Court has long held that because a determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.... Moreover, it is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... A court lacks discretion to consider the merits of a case over which it is without jurisdiction.... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 107 Conn.App. 507, 511, 946 A.2d 252, cert. denied, 289 Conn. 902, 957 A.2d 870 (2008).

"A habeas court has subject matter jurisdiction to hear a petition for habeas corpus when the petitioner is in custody at the time that the habeas petition is filed." Young v. Commissioner of Correction, 104 Conn.App. 188, 191, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). Practice Book § 23-29 provides in relevant part: "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...."

"It is well settled that the petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action.... The principle that a plaintiff may rely only upon what he has alleged is basic.... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.... While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised." (Internal quotation marks omitted.) Young v. Commissioner of Correction, supra, 104 Conn.App. at 194, 932 A.2d 467.

"In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... The conclusions reached by the habeas court in its decision to dismiss the habeas petition are matters of law, subject to plenary review.... Thus, where 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." (Citation omitted; internal quotation marks omitted.) Id., at 193, 932 A.2d 467.

It is undisputed that the petitioner failed to allege in his petition that he was in custody, either actual confinement or on probation. The petitioner argues that we liberally should construe the rules of practice because he represented himself in the habeas court. "Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.... A habeas court does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.... In addition, while courts should not construe pleadings narrowly and technically, courts also cannot contort pleadings in such a way so as to strain the bounds of rational comprehension." (Citations omitted; internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 274 Conn. 563, 570, 877 A.2d 761 (2005). Even under a broad and liberal reading of his petition, nothing in the record suggests that the petitioner was in custody, including probation.⁴

The petitioner also argues that we should take judicial notice on appeal of his criminal record of the underlying criminal convictions he is challenging.⁵ "The doctrine of judicial notice is not a hard and fast one. It is modified by judicial discretion.... Courts are not bound to take judicial notice of matters of fact. Whether they will do so or not depends on the nature of the subject, the issue involved and the apparent justice of the case." (Emphasis added; internal quotation marks omitted.) McCleave v. John J. Flanagan Co., 115 Conn. 36, 39, 160 A. 305 (1932). We decline to take judicial notice of the underlying criminal record because the petitioner had the burden of alleging facts in his petition that...