Cookish v. Comm'r of Corr.
| Decision Date | 29 April 2020 |
| Docket Number | SC 20433 |
| Citation | 337 Conn. 348,253 A.3d 467 |
| Court | Connecticut Supreme Court |
| Parties | Dennis COOKISH v. COMMISSIONER OF CORRECTION |
Cheryl A. Juniewic, assigned counsel, for the appellant (petitioner).
James A. Killen, senior assistant state's attorney, with whom, on the brief, was Kevin T. Kane, former chief state's attorney, for the appellee (respondent).
Robinson, C. J., and Palmer, D'Auria, Mullins, Kahn, and Ecker, Js.*
The petitioner, Dennis Cookish, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus and from the denial of his petition for certification to appeal.1 The habeas court, acting sua sponte and without providing the petitioner with notice or a hearing, dismissed the habeas petition pursuant to Practice Book § 23-292 for lack of jurisdiction. The habeas court determined that dismissal pursuant to § 23-29 (1) was warranted and that the petition should be returned because it was apparent, on the face of the petition, that the petitioner was not in custody for the conviction being challenged. On appeal, the petitioner asserts that the habeas court improperly (1) dismissed the petition under § 23-29 without first appointing him counsel and providing him with notice and an opportunity to be heard, and (2) failed to construe the habeas petition as a petition for a writ of error coram nobis.
Consistent with this court's recent decision in Gilchrist v. Commissioner of Correction , 334 Conn. 548, 223 A.3d 368 (2020), we conclude that, although the habeas court correctly determined that it lacked subject matter jurisdiction in the present case because the petitioner was not in custody for the challenged conviction, it should have declined to issue the writ pursuant to Practice Book § 23-243 rather than dismissing the case pursuant to Practice Book § 23-29. See id., at 563, 223 A.3d 368. Accordingly, we conclude that the habeas court abused its discretion in denying the petitioner's petition for certification to appeal. As a result, we reverse the judgment of the habeas court and remand the case to that court with direction to decline to issue the writ.
The following undisputed facts and procedural history are relevant to this appeal. In approximately 1974, the petitioner, with the assistance of counsel, pleaded guilty to unlawful sexual contact in the first degree and was sentenced to one and one-half to six years incarceration. The petitioner's sentence therefore expired, at the latest, in approximately 1980. Then, on November 23, 2018, nearly forty years after his sentence expired, the self-represented petitioner filed a petition for a writ of habeas corpus seeking to have his guilty plea withdrawn or vacated.
The petitioner included with the petition a request for the appointment of counsel and an application for a waiver of fees. On December 3, 2018, a clerk of the court granted the waiver of fees but took no action on the petitioner's request for appointment of counsel.4 On December 5, 2018, the habeas court, in connection with its preliminary consideration of the writ, dismissed the petition and ordered the petition returned to the petitioner. The court reasoned that, pursuant to Practice Book § 23-29 (1), it lacked jurisdiction because the petition and the documents attached thereto demonstrated that the petitioner was not in custody for the conviction being challenged. On December 21, 2018, the petitioner filed a petition for certification to appeal from the judgment of the habeas court, which the court denied. This appeal followed.5
On appeal, the petitioner claims, inter alia, that the habeas court abused its discretion in denying the petition for certification to appeal because it is debatable among jurists of reason whether the habeas court properly dismissed the petition without providing the petitioner with assistance of counsel, notice and an opportunity to be heard. The respondent, the Commissioner of Correction, counters that the habeas court properly denied the petitioner's petition for certification to appeal because it is not debatable that the habeas court lacked jurisdiction to issue the writ.
(Citation omitted; internal quotation marks omitted.) Meletrich v. Commissioner of Correction , 332 Conn. 615, 626, 212 A.3d 678 (2019).
Accordingly, in order to determine whether the habeas court abused its discretion in denying the petitioner's petition for certification to appeal, we must first address the merits of his claim. To that end, we address the petitioner's claim that the habeas court improperly dismissed the self-represented petitioner's petition for a writ of habeas corpus without appointing him counsel and without providing him with notice and an opportunity to be heard.
We begin with the standard of review. Gilchrist v. Commissioner of Correction , supra, 334 Conn. at 553, 223 A.3d 368.
The petitioner asserts that, because the habeas court dismissed the petition under Practice Book § 23-29, it was obligated to appoint counsel for the petitioner and provide him with notice and an opportunity to be heard. We disagree.
We recently addressed a strikingly similar scenario in Gilchrist v. Commissioner of Correction , supra, 334 Conn. 548, 223 A.3d 368, and we find that the present case is controlled in all material respects by that recent decision. In Gilchrist , this court resolved the issue of whether a habeas court can dismiss a petition pursuant to Practice Book § 23-29 before issuing the writ. See id., at 553, 223 A.3d 368. The petitioner in that case had pleaded guilty to robbery in the third degree in 2013 and received a sentence of unconditional discharge. See id., at 551, 223 A.3d 368. Thereafter, in 2016, he filed a petition for a writ of habeas corpus, seeking to withdraw his guilty plea and to have his conviction vacated or dismissed. See id., at 550, 223 A.3d 368. The habeas court granted the petitioner's application for a waiver of fees but took no action as to his request for the appointment of counsel. Id., at 551, 223 A.3d 368. Shortly thereafter, however, the court, sua sponte and without providing the petitioner with notice or an opportunity to be heard, dismissed the petition pursuant to § 23-29 on the ground that the habeas court lacked jurisdiction because, at the time he filed the petition, the petitioner was not in custody for the conviction that he was challenging. See id., at 552, 223 A.3d 368.
We noted that there was "understandable confusion" in our courts regarding the proper procedure to be followed in the preliminary stages of review when a petitioner files a habeas petition in the habeas court. Id., at 553, 223 A.3d 368. We then clarified the appropriate procedure to be followed by explaining: "First, upon receipt of a habeas petition that is submitted under oath and is compliant with the requirements of Practice Book § 23-22 ... the judicial authority must review the petition to determine if it is patently defective because the court lacks jurisdiction, the petition is wholly frivolous on its face, or the relief sought is unavailable. Practice Book § 23-24 (a). If it is clear that any of those defects are present, then the judicial authority should issue an order declining to issue the writ, and the office of the clerk should return the petition to the petitioner explaining that the judicial authority has declined to issue the writ pursuant to § 23-24.6 Practice Book § 23-24 (a) and (b). If the judicial authority does not decline to issue the writ, then it must issue the writ, the effect of which will be to require the respondent to enter an appearance in the case and to proceed in accordance with applicable law.
At the time the writ is issued, the court should also take action on any request for the appointment of counsel and any application for the waiver of filing fees and costs of service. See Practice Book §§ 23-25 and 23-26. After the writ has issued, all further proceedings should continue in accordance with the procedures set forth in our rules of practice, including Practice Book § 23-29." (Citations omitted; footnote added.) Gilchrist v. Commissioner of Correction , supra, 334 Conn. at 562–63, 223 A.3d 368.
Ultimately, we reasoned that ...
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