Gilchrist v. Comm'r of Corr.
| Decision Date | 28 January 2020 |
| Docket Number | SC 20141 |
| Citation | 223 A.3d 368,334 Conn. 548 |
| Parties | Anthony GILCHRIST v. COMMISSIONER OF CORRECTION |
| Court | Connecticut Supreme Court |
Adele V. Patterson, senior assistant public defender, for the appellant (petitioner).
James A. Killen, senior assistant state's attorney, with whom, on the brief, was John C. Smriga, state's attorney, for the appellee (respondent).
Robinson, C.J., and Palmer, McDonald, D'Auria, Kahn and Ecker, Js.
This appeal requires us to clarify the proper procedure to be used by the habeas court in its preliminary consideration of a petition for a writ of habeas corpus under Practice Book §§ 23-241 and 23-29.2 In 2016, the petitioner, Anthony Gilchrist, filed a pro se petition for a writ of habeas corpus, seeking to withdraw the guilty plea he entered in September, 2013, to a charge of robbery in the third degree and to have the corresponding judgment of conviction "vacate[d] and/or dismiss[ed]." The habeas court, acting sua sponte and without providing the petitioner with notice or a hearing, dismissed the petition pursuant to § 23-29 (1) for lack of jurisdiction on the ground that it was apparent, on the face of the petition, that the petitioner was not in custody for the conviction being challenged. The Appellate Court affirmed the habeas court's judgment. Gilchrist v. Commissioner of Correction , 180 Conn. App. 56, 58, 182 A.3d 690 (2018). On appeal, the petitioner claims that the habeas court improperly dismissed the petition without first acting on his request for the appointment of counsel and providing him with notice and an opportunity to be heard. Although we agree with the Appellate Court that the petitioner was not entitled to the appointment of counsel, notice or a hearing under the circumstances, we disagree with the analysis that it used to arrive at that conclusion and, therefore, reverse the judgment of the Appellate Court and remand the case to that court with direction to render judgment in accordance with this opinion.
The following facts and procedural history are relevant to this appeal. On June 24, 2016, the self-represented petitioner filed a petition for a writ of habeas corpus. He included with the petition a request for the appointment of counsel and an application for a waiver of fees. The petition states that he had pleaded guilty to robbery in the third degree in September, 2013, and received a sentence of unconditional discharge. The petition and the attachments thereto also indicate that the petitioner was not incarcerated on the robbery conviction challenged in his habeas petition but that he remains incarcerated on other charges, the nature of which is not clear from the record. It appears from the petition that the petitioner's effort to obtain habeas relief stemmed from the fact that his expired robbery conviction made him ineligible for parole until he serves 85 percent of his definite sentences for the "other" charges pursuant to General Statutes § 54-125a (b) (2) (B).3
On July 21, 2016, the habeas court assigned a docket number to the petition and granted the petitioner's application for a waiver of fees but took no action on his request for the appointment of counsel. One week later, on July 28, 2016, the habeas court, sua sponte and without providing the petitioner with notice or an opportunity to be heard, rendered a judgment of dismissal, stating: "The habeas corpus petition is dismissed because the court lacks jurisdiction pursuant to ... Practice Book § 23-29 (1), as the petitioner was no longer in custody for the conviction being challenged at the time the petition was filed."4 For the reasons that soon will become apparent, it is significant that the habeas court disposed of the petition pursuant to Practice Book § 23-29 rather than Practice Book § 23-24 and did so prior to issuing the writ that would have operated to commence the habeas action.
Following the judgment of dismissal, the petitioner filed a motion to reconsider, which the habeas court summarily denied on August 18, 2016. The habeas court thereafter granted the petitioner's petition for certification to appeal. The Appellate Court affirmed the habeas court's judgment. Gilchrist v. Commissioner of Correction , supra, 180 Conn. App. at 58, 182 A.3d 690. We granted the petitioner's petition for certification to appeal to determine whether the Appellate Court properly affirmed the judgment of the habeas court dismissing the petition pursuant to Practice Book § 23-29 (1), without the habeas court's taking any action on the petitioner's request for the appointment of counsel or providing the petitioner with notice and an opportunity to be heard on the court's own motion to dismiss. Gilchrist v. Commissioner of Correction , 329 Conn. 908, 186 A.3d 13 (2018).
Upon review of the record, we now conclude that the certified question is not an accurate statement of the issue presently before us. See, e.g., Rosado v. Bridgeport Roman Catholic Diocesan Corp. , 276 Conn. 168, 191–92, 884 A.2d 981 (2005) (). Because it is clear from the record that the habeas court dismissed the petition before ordering the issuance of the writ, a more fundamental issue controls our review, namely, whether dismissal under Practice Book § 23-29 can precede the habeas court's determination to issue the writ under Practice Book § 23-24. Accordingly, we revise the certified question as follows: "Did the Appellate Court properly affirm the habeas court's dismissal of the petition under ... § 23-29 when that dismissal occurred before the habeas court ordered the issuance of the writ pursuant to ... § 23-24 ?" We answer the question in the negative.
Whether a habeas court properly dismissed a petition for a writ of habeas corpus presents a question of law over which our review is plenary. See Kaddah v. Commissioner of Correction , 324 Conn. 548, 559, 153 A.3d 1233 (2017) (); Johnson v. Commissioner of Correction , 285 Conn. 556, 566, 941 A.2d 248 (2008) (). Plenary review also is appropriate because this appeal requires us to interpret the rules of practice. See, e.g., Wiseman v. Armstrong , 295 Conn. 94, 99, 989 A.2d 1027 (2010).
There is understandable confusion in our courts regarding the proper procedure to be followed in the preliminary stages of review once a petition for a writ of habeas corpus is filed in the habeas court. The immediate source of the confusion is the apparent similarity and overlap between Practice Book §§ 23-24 and 23-29, each of which permits the habeas court to dispose of the habeas petition on the basis of various pleading deficiencies. Practice Book § 23-24 (a) allows the court to "[decline to] issue the writ" if 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." Practice Book § 23-29, using similar but not identical terms, allows the court to "dismiss the petition," on the court's own motion or the motion of the respondent, if the court 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; [or] (5) any other legally sufficient ground for dismissal of the petition exists."
Although the existence of different provisions normally indicates an intention to address different concerns or circumstances; see Hatt v. Burlington Coat Factory , 263 Conn. 279, 315–16, 819 A.2d 260 (2003) ; the common ground covered by these two rules of practice makes it difficult to identify precisely their respective spheres of operation. A number of recent cases demonstrate the confusion. See Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc. , 192 Conn. App. 36, 38 n.1, 216 A.3d 839 (), cert. denied, 333 Conn. 920, 217 A.3d 635 (2019) ; Boria v. Commissioner of Correction , 186 Conn. App. 332, 336, 199 A.3d 1127 (2018) (), petition for cert. filed (Conn. January 4, 2019) (No. 180305); Green v. Commissioner of Correction , 184 Conn. App. 76, 80 n.3, 194 A.3d 857 (), cert. denied, 330 Conn. 933, 195 A.3d 383 (2018) ; see also Boria v. Commissioner of Correction , supra, at 356–64, 199 A.3d 1127 (Bishop , J. , concurring) ().
The present case provides an occasion to clarify the proper application of these two rules of practice. The confusion is not merely a function of the overlapping terms and proximate spheres of operation. At a deeper level, it emerges out of the combined effect of the unusual procedure used to initiate a habeas proceeding and the somewhat antiquated terminology used to describe aspects of that procedure. Our understanding is not made any easier by the ancient origin and protean nature of the " ‘great writ ....’ " Luurtsema v. Commissioner of Correction , 299 Conn. 740, 757, 12 A.3d 817 (2011) ; see id. (); G. Longsdorf, " Habeas Corpus: A Protean Writ and Remedy," 8 F.R.D. 179, 180–90 (1948) (...
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