Brown v. Commissioner of Correction

• Citation: 345 Conn. 1,282 A.3d 959
• Decision Date: 04 October 2022
• Docket Number: SC 20474
• Parties: Judson BROWN v. COMMISSIONER OF CORRECTION
• Court: Supreme Court of Connecticut

345 Conn. 1

282 A.3d 959

Judson BROWN

v.COMMISSIONER OF CORRECTION

SC 20474

Supreme Court of Connecticut.

Argued September 15, 2021

Officially Released October 4, 2022

Michael W. Brown, for the appellant (petitioner).

Laurie N. Feldman, deputy assistant state's attorney, with whom, on the brief, was Patrick J. Griffin, chief state's attorney, for the appellee (respondent).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

KAHN, J.

This appeal requires us to consider the proper procedure that a habeas court is required to follow before dismissing a petition for a writ of habeas corpus, on its own motion, under Practice Book § 23-29. This court previously reviewed the interplay between § 23-29 and Practice Book § 23-24, and established that § 23-24 allows a habeas court to review and dismiss clearly defective petitions by sending notice to the parties after it declines to issue the writ. See Gilchrist v. Commissioner of Correction , 334 Conn. 548, 561, 223 A.3d 368 (2020). In Gilchrist , we did not address the issue we confront today: whether § 23-29 allows a habeas court to dismiss a petition, on its own motion, without prior notice and an opportunity to be heard. The petitioner, Judson Brown, argues that a dismissal under that section entitles him to prior notice and a hearing. The respondent, the Commissioner of Correction, argues that, as with § 23-24, no prior notice or an opportunity to be heard is required. This issue, to our knowledge, has not been taken up by the Rules Committee of the Superior Court, even after this court's decision in Gilchrist . As in Gilchrist , our task in the present case is merely to ascertain the meaning of our rules of practice.¹ After reviewing the language of §§ 23-24 and 23-29, and their relationship to the provisions generally governing habeas corpus proceedings; see Practice Book § 23-21 et seq. ; the historical development of the writ of habeas corpus and the public policy underlying the legislature's comprehensive habeas reform; see Public Acts 2012, No. 12-115, § 1 (P.A. 12-115); we conclude that § 23-29 requires the habeas court to provide prior notice of the court's intention to dismiss, on its own motion, a petition that it deems legally deficient and an opportunity to be heard on the papers by filing a written response. The habeas court may, in its discretion, grant oral argument or a hearing, but one is not mandated. We believe this interpretation draws a proper balance between the competing interests of affording petitioners due process while addressing the need for the expeditious resolution of habeas petitions in an effort to reach the meritorious cases. We observe that the Rules Committee remains free to amend the text of the relevant rules as it deems appropriate.

The present case arises out of a petition for a writ of habeas corpus filed by the self-represented petitioner, relating to the withdrawal of his public defender's appearance during the course of his underlying criminal trial. The habeas court, acting on its own motion and without prior notice, dismissed the petition as repetitious pursuant to Practice Book § 23-29 (3) and subsequently denied the petition for certification to appeal. The Appellate Court summarily dismissed the petitioner's appeal; Brown v. Commissioner of Correction , 196 Conn. App. 902, 225 A.3d 980 (2020) ; and this court subsequently granted the petitioner's petition for certification to appeal from the judgment of the Appellate Court. Brown v. Commissioner of Correction , 335 Conn. 920, 231 A.3d 1169 (2020). On appeal, the petitioner claims that he was entitled to both prior notice and an opportunity to be heard, and that, as a result, the Appellate Court improperly dismissed his appeal from the habeas court's judgment of dismissal and the denial of his petition for certification to appeal. We agree, in part, with the petitioner that a dismissal under § 23-29, which occurs after the writ has issued and the action has commenced, requires some procedural safeguards, specifically, prior notice and an opportunity to submit a brief or a written response, but not a full hearing. We therefore reverse the judgment of the Appellate Court and remand the case for further proceedings before the habeas court consistent with this opinion.

The following undisputed facts and procedural history are relevant to the present appeal. The petitioner was convicted in 1999, following a jury trial, of arson in the first degree and conspiracy to commit arson in the first degree, and sentenced to twenty-five years of imprisonment. State v. Brown , 256 Conn. 291, 293, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001). Although the petitioner was originally provided counsel by the public defender's office, counsel later withdrew because the petitioner was found to possess significant assets. Id., at 297 n.6, 772 A.2d 1107.² The petitioner waived his right to appeal the withdrawal of the public defender and proceeded to represent himself at his criminal trial. Id., at 297, 772 A.2d 1107. The petitioner appealed his conviction to the Appellate Court on the sole ground of prosecutorial impropriety. See id., at 293, 772 A.2d 1107. After transferring the appeal to this court, we rejected that claim and affirmed the judgment of conviction. Id., at 293, 313, 772 A.2d 1107.

The petitioner, represented by assigned counsel, filed his first amended habeas petition in 2002, challenging his conviction on the following four grounds: improper withdrawal by trial counsel, ineffective assistance of trial counsel, judicial misconduct by the trial judge, and ineffective assistance by his appellate counsel. The habeas court denied his habeas petition, and the Appellate Court affirmed the habeas court's judgment. Brown v. Commissioner of Correction , 92 Conn. App. 382, 383, 389, 885 A.2d 761 (2005), appeal dismissed, 281 Conn. 466, 915 A.2d 870 (2007).

The petitioner filed a second amended habeas petition in 2009, claiming that his first habeas counsel had rendered ineffective assistance by failing to allege that (1) he was deprived of his constitutional right to counsel at his criminal trial, and (2) defense counsel in his direct appeal had improperly failed to raise this issue before the Appellate Court. The habeas court denied this second petition as well, finding that it was "clear that the petitioner was provided all of his due process rights when the court made its initial determination to allow the public defenders to withdraw." Once again, the Appellate Court affirmed the habeas court's judgment. See Brown v. Commissioner of Correction , 141 Conn. App. 251, 253, 263, 61 A.3d 554, cert. denied, 308 Conn. 941, 66 A.3d 883 (2013).³

The petitioner, representing himself, then filed a third habeas petition in 2014, which he amended in 2015 with the assistance of counsel, claiming "ineffective waiver of counsel in violation of [his] sixth amendment right to counsel." The habeas court, Fuger , J. , issued an oral decision in which he denied that petition, concluding that any claim challenging the trial court's ruling permitting the withdrawal of the public defender during the criminal trial was barred by res judicata. Judge Fuger advised the petitioner: "I'm sorry to say to you that the issue is over and done with. I understand how you feel, but the matter has been litigated. And, at this point, I see no further relief .... [I]t would be, I think, very difficult for [the petitioner] to be able to find something unique to be able to proceed on [another] habeas petition. I think [the petitioner has] sort of had all the bites at the apple that [he] can [have]." The Appellate Court summarily dismissed the appeal that followed. See Brown v. Commissioner of Correction , 181 Conn. App. 901, 182 A.3d 112, cert. denied, 329 Conn. 901, 184 A.3d 1215 (2018).

The petitioner, representing himself, then filed the fourth and present habeas petition on October 29, 2018. In this petition, the petitioner claims that he was not canvassed properly about his right to appeal from the withdrawal of his public defender before the start of his criminal trial. That petition contains the following assertion: "[The] petitioner is claim[ing] only being ‘not constitutionally canvassed’ at the time [he] waived [his] rights ... to appeal [his] public defender's withdrawal ... [and] [n]othing [else], so ther[e] [are] no res judicata issues." (Emphasis omitted.) On November 15, 2018, the habeas court granted the petitioner's request for appointment of counsel and his application for a waiver of fees. On November 19, 2018, the habeas court, Newson , J. , acting on its own motion and without prior notice to the parties, issued an order dismissing this fourth petition as repetitious pursuant to Practice Book § 23-29 (3). The petitioner requested certification to appeal from that dismissal, which the habeas court denied. The petitioner then appealed to the Appellate Court from the dismissal of the fourth petition and the denial of the petition for certification to appeal.

Following oral argument, the Appellate Court summarily dismissed the petitioner's appeal.

Brown v. Commissioner of Correction , supra, 196 Conn. App. 902, 225 A.3d 980. We subsequently granted the petitioner's petition for certification to appeal to this court in order to determine whether the Appellate Court properly dismissed the petitioner's appeal challenging the propriety of the habeas court's dismissal of the fourth habeas petition under Practice Book § 23-29. See Brown v. Commissioner of Correction , supra, 335 Conn. 920, 231 A.3d 1169. In the present appeal, the petitioner renews his claim that the habeas court should not have dismissed his petition under § 23-29 without first providing him with prior notice and an opportunity to be heard. In response, the respondent claims that the habeas court's dismissal was proper.

The appropriate standard of review is undisputed. "Plenary...