Hodge v. Comm'r of Corr.
| Decision Date | 22 November 2022 |
| Docket Number | AC 41627 |
| Citation | 216 Conn.App. 616,285 A.3d 1194 |
| Parties | Marcus HODGE v. COMMISSIONER OF CORRECTION |
| Court | Connecticut Court of Appeals |
Vishal K. Garg, assigned counsel, for the appellant (petitioner).
Steven R. Strom, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Clare Kindall, solicitor general, for the appellee (respondent).
Elgo, Moll and Clark, Js.
The petitioner, Marcus Hodge, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court dismissing, on its own motion, his amended petition for a writ of habeas corpus pursuant to Practice Book § 23-29. On appeal, the dispositive claim raised by the petitioner is that the court improperly dismissed his amended habeas petition under § 23-29 without notice and a hearing.1 In light of our Supreme Court's recent decisions in Brown v. Commissioner of Correction , 345 Conn. 1, 282 A.3d 959 (2022), and in Brown ’s companion case, Boria v. Commissioner of Correction , 345 Conn. 39, 282 A.3d 433 (2022), we conclude that the habeas court committed error in dismissing the amended habeas petition pursuant to § 23-29 without providing to the petitioner prior notice of its intention to dismiss, on its own motion, the amended habeas petition and an opportunity to submit a brief or a written response addressing the proposed basis for dismissal. Accordingly, we reverse the judgment of the habeas court.
The following procedural history is relevant to our resolution of this appeal. On June 29, 2015, the petitioner, representing himself, filed a petition for a writ of habeas corpus. The same day, the petitioner filed a request for appointment of counsel and an application for a waiver of fees, which were granted on July 2, 2015. On November 15, 2017, after counsel had appeared on his behalf, the petitioner filed an amended eighteen count petition for a writ of habeas corpus (amended petition). The petitioner alleged that, on December 16, 2011, he was sentenced to a total effective sentence of fifteen years of incarceration after being convicted of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1) and evading responsibility in the operation of a motor vehicle in violation of General Statutes (Rev. to 2009) § 14-224 (a), stemming from an incident that had occurred in March, 2010. The petitioner's substantive allegations implicated "the risk reduction earned credit program that was established in 2011, by No. 11-51 of the 2011 Public Acts ... as codified in General Statutes (Supp. 2012) §§ 18-98e and 54-125a, [and] which was eliminated in 2013, following the enactment of No. 13-3, § 59, of the 2013 Public Acts ...." Johnson v. Commissioner of Correction , 208 Conn. App. 204, 207, 264 A.3d 121, cert. denied, 340 Conn. 911, 264 A.3d 1001 (2021). Only counts two, six, and twelve of the amended petition are relevant to this appeal.2 In count two, the petitioner alleged that the respondent, the Commissioner of Correction, improperly applied No. 13-247 of the 2013 Public Acts, § 376, which amended subsections (d) and (e) of General Statutes (Rev. to 2013) § 54-125a, to him retroactively. In count six, the petitioner alleged that the respondent improperly applied No. 13-3 of the 2013 Public Acts, § 59, which amended subsections (b) (2), (c), and (e) of General Statutes (Rev. to 2013) § 54-125a, to him retroactively. In count twelve, the petitioner alleged that "[t]he respondent's interpretation and application of [General Statutes] § 54-125a, as amended in 2013, deprives the petitioner of his right to rely upon governmental representations, protected by the due process clauses of the state and federal constitutions, as explained in Santobello v. New York , 404 U.S. 257, [92 S. Ct. 495, 30 L. Ed. 2d 427] (1971)."
On March 19, 2018, the habeas court, Hon. Edward J. Mullarkey , judge trial referee, dismissed, on its own motion, the amended petition pursuant to Practice Book § 23-29.3 The court concluded that, "[b]ecause the petitioner has no right to earn and receive discretionary [risk reduction earned credit], and any changes, alterations, and even the total elimination of [risk reduction earned credit] at most can only revert the petitioner to the precise measure of punishment in place at the time of the offense, the court concludes that it lacks subject matter jurisdiction over the [amended] habeas corpus petition and that the [amended] petition fails to state a claim for which habeas corpus relief can be granted." The court continued: Thereafter, the petitioner filed a petition for certification to appeal, which the court granted on April 12, 2018. This appeal followed.
While this appeal was pending,4 our Supreme Court released its decisions in Brown v. Commissioner of Correction , supra, 345 Conn. 1, 282 A.3d 959, and in Brown ’s companion case, Boria v. Commissioner of Correction , supra, 345 Conn. 39, 282 A.3d 433. In those cases, our Supreme Court concluded that, before dismissing, on its own motion, a habeas petition pursuant to Practice Book § 23-29, a habeas court must provide to the petitioner prior notice of its intention to dismiss the habeas petition and an opportunity to file a brief or a written response to the proposed basis for dismissal. Brown v. Commissioner of Correction , supra, at 11, 282 A.3d 959 ; Boria v. Commissioner of Correction , supra, at 41, 282 A.3d 433. Our Supreme Court further concluded that a habeas court is not obligated to hold a full hearing prior to dismissing, on its own motion, a habeas petition pursuant to § 23-29, but it may exercise its discretion to "hold a full hearing when it deems it appropriate." Brown v. Commissioner of Correction , supra, at 17, 282 A.3d 959 ; see also Boria v. Commissioner of Correction , supra, at 42–43, 282 A.3d 433.
Brown and Boria govern our resolution of this appeal.5 The petitioner's dispositive claim is that the court improperly dismissed the amended petition pursuant to Practice Book § 23-29 without notice and a hearing. Pursuant to Brown and Boria , the court was not obligated to conduct a hearing before dismissing the amended petition; however, it was required to provide to the petitioner prior notice of its intention to dismiss, on its own motion, the amended petition and an opportunity to submit a brief or a written response vis-à-vis the proposed basis for dismissal, which the court did not do.6 Accordingly, under the binding precedent of Brown and Boria , we must reverse the court's dismissal of the amended petition pursuant to § 23-29 and remand the case to the habeas court.7
We next consider the appropriate course for the habeas court to take on remand. In Brown , notwithstanding that the habeas court in that case had issued the writ to commence the habeas proceeding, our Supreme Court remanded the case to the habeas court (Footnote omitted.) Brown v. Commissioner of Correction , supra, 345 Conn. at 17–18, 282 A.3d 959 ; see also Boria v. Commissioner of Correction , supra, 345 Conn. at 43, 282 A.3d 433. Our Supreme Court reasoned that such a remand order was proper in Brown , as well as in Boria , because, at the time of the respective judgments of dismissal, the habeas courts had not had the benefit of our Supreme Court's decision in Gilchrist v. Commissioner of Correction , 334 Conn. 548, 223 A.3d 368 (2020). Brown v. Commissioner of Correction , supra, at 17, 282 A.3d 959 ; Boria v. Commissioner of Correction , supra, at 43, 282 A.3d 433. In Gilchrist , the habeas court dismissed a habeas petition for lack of subject matter jurisdiction pursuant to Practice Book § 23-29 (1), notwithstanding that the habeas court had not issued the writ. Gilchrist v. Commissioner of Correction , supra, at 552, 223 A.3d 368. Our Supreme Court reversed this court's judgment, which had affirmed the judgment of dismissal, concluding that, rather than dismissing the habeas petition for lack of subject matter jurisdiction under § 23-29 (1), the habeas court should have declined to issue the writ for lack of subject matter jurisdiction pursuant to Practice Book § 23-24 (a) (1). Id., at 563, 223 A.3d 368. In Brown , our Supreme Court explained that " Gilchrist firmly established that ... § 23-24 acts as a gatekeeping mechanism that allows a habeas court to review and dispose of a clearly defective petition by simply providing the petitioner with notice of its decision to decline to issue the writ." Brown v. Commissioner of Correction , supra, at 10–11, 282 A.3d 959. In footnote 11 of Brown , our Supreme Court advised that, "[i]n cases decided prior to Gilchrist , the most efficient process to resolve those cases is to remand them to the habeas court to determine first whether grounds exist to decline the issuance of the writ." Id., at 17 n.11, 282 A.3d 959.
We observe that footnote 11 of Brown may create some unintended difficulties. This case presents one such occasion. Footnote 11 of Brown contemplates, at least in some cases decided prior to Gilchrist , a remand to the habeas court to determine whether grounds exist to decline the issuance of the writ pursuant to Practice Book § 23-24, notwithstanding the fact that the writ had already issued. See id. In Brown , however, the original habeas petition filed by the self-represented petitioner was the...
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