Marshall v. Comm'r of Corr.

• Decision Date: 03 August 2021
• Docket Number: AC 43693
• Citation: 261 A.3d 49,206 Conn.App. 461
• Parties: Kevin Lewis MARSHALL v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

206 Conn.App. 461

261 A.3d 49

Kevin Lewis MARSHALL

v.COMMISSIONER OF CORRECTION

AC 43693

Appellate Court of Connecticut.

Argued March 10, 2021

Officially released August 3, 2021

Naomi T. Fetterman, assigned counsel, for the appellant (petitioner).

Mitchell S. Brody, Rocky Hill, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Michael Proto, Washington, senior assistant state's attorney, for the appellee (respondent).

Elgo, Alexander and Sheldon, Js.

ALEXANDER, J.

The petitioner, Kevin Lewis Marshall, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly dismissed his habeas petition. We disagree, and, accordingly, dismiss the petitioner's appeal.

The following facts and procedural history are relevant to our discussion. The petitioner pleaded guilty to two counts of burglary in the third degree in violation of General Statutes § 53a-103. For each offense, the court imposed a sentence of two years and one day of incarceration and thirty-five months of special parole,¹ with the sentences to run concurrently.

In April, 2018, the self-represented petitioner commenced the present habeas action. He alleged that the court had imposed an illegal sentence. Specifically, he claimed that the imposition of a term of incarceration and a period of special parole constituted two distinct sentences for the same offense and, thus, violated his federal and state constitutional rights to be free from double jeopardy.

On June 6, 2019, the habeas court, Newson, J. , issued an order, pursuant to Practice Book § 23-29, that a hearing to determine why the habeas petition should not be dismissed would be held within thirty days.² In this order, the court noted that the petitioner had alleged "that a sentence imposed which includes special parole violates double jeopardy, which the [Appellate] Court explicitly rejected in State v. Farrar , 186 Conn. App. 220, 221, 199 A.3d 97 (2018)." The next day, the habeas court issued a scheduling order, setting a November 8, 2021 deadline for the filing of an amended petition.

At the July 16, 2019 hearing, the habeas court iterated that the petitioner essentially claimed that a sentence that includes a term of incarceration and a period of special parole constitutes a double jeopardy violation, and that this court's decision in State v. Farrar , supra, 186 Conn. App. 220, 199 A.3d 97, foreclosed that claim. Attorney Michael Stonoha, who had been appointed to represent the petitioner, argued that the petitioner would not begin his special parole until he completed a period of incarceration that was the result of a separate conviction, and therefore the petitioner would serve well over the maximum sentence permitted for his conviction of burglary in the third degree. The court responded that, in the context of a motion to dismiss, it was limited to the "four corners" of the petition for a writ of habeas corpus. Counsel for the respondent, the Commissioner of Correction, argued that State v. Farrar , supra, 186 Conn. App. 220, 199 A.3d 97, was controlling with respect to the claim alleged in the habeas petition and that he could not comment on any potential claims in the future. The petitioner's counsel further suggested the possibility of raising a claim of ineffective assistance of counsel.

After hearing further argument, the court dismissed the habeas petition, concluding that it failed to state a claim on which habeas relief could be granted. In the alternative, the court stated that it lacked jurisdiction because the allegation set forth in the habeas petition did not allege a constitutional violation. That same day, the petitioner filed a petition for certification to appeal the court's dismissal of his habeas petition. On July 17, 2019, the court denied the petition for certification to appeal. This appeal followed.

The petitioner first claims that the habeas court abused its discretion in denying his petition for certification to appeal the dismissal of his petition for a writ of habeas corpus. "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. ... To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling ... [and] [r]eversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ...

"In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... adopted by this court for determining the propriety of the habeas court's denial of the petition for certification. [In the absence of] such a showing by the petitioner, the judgment of the habeas court must be affirmed." (Citation omitted; internal quotation marks omitted.) Wright v. Commissioner of Correction , 201 Conn. App. 339, 344–45, 242 A.3d 756 (2020), cert. denied, 336 Conn. 905, 242 A.3d 1009 (2021) ; see also Moore v. Commissioner of Correction , 338 Conn. 330, 258 A.3d 40 (2021).

In order to determine whether the habeas court's denial of the petition for certification to appeal constituted an abuse of discretion, we must consider his substantive claim that the habeas court improperly dismissed his petition for a writ of habeas corpus pursuant to Practice Book § 23-29. See, e.g., Wright v. Commissioner of Correction , supra, 201 Conn. App. at 345, 242 A.3d 756. 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; (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted ...." (Emphasis added.) See also Gilchrist v. Commissioner of Correction , 334 Conn. 548, 554, 223 A.3d 368 (2020). Our Supreme Court has analogized Practice Book § 23-29 to Practice Book §§ 10-30 and 10-39. Id., at 561, 223 A.3d 368 ; see also Kobza v. Commissioner of Correction , 204 Conn. App. 547, 556, 253 A.3d 515 (2021) (habeas corpus action, as variant of civil actions, is subject to ordinary rules of civil procedure unless superseded by more specific rules pertaining to habeas actions).

The habeas court dismissed the petition based on its determination that it lacked jurisdiction and that the petitioner failed to state a claim on which habeas corpus relief could be granted. At the outset, we note that a determination regarding the habeas court's subject matter jurisdiction presents a question of law, and therefore our review is plenary. Byrd v. Commissioner of Correction , 177 Conn. App. 71, 79, 171 A.3d 1103 (2017) ; Petaway v. Commissioner of Correction , 160 Conn. App. 727, 731, 125 A.3d 1053 (2015), appeal dismissed, 324 Conn. 912, 153 A.3d 1288 (2017) ; see also Brewer v. Commissioner of Correction , 162 Conn. App. 8, 13, 130 A.3d 882 (2015) (conclusions reached by habeas court in its decision to dismiss habeas petition are matters of law subject to plenary review, while challenges to factual findings are subject to clearly erroneous standard).

The jurisdiction of the habeas court is well established in our jurisprudence. "With respect to the habeas court's jurisdiction, [t]he scope of relief available through a petition for habeas corpus is limited. In order to invoke the trial court's subject matter jurisdiction in a habeas action, a petitioner must allege that he is illegally confined or has been deprived of his liberty. ... In other words, a petitioner must allege an interest sufficient to give rise to habeas relief. ... In order to ... qualify as a constitutionally protected liberty [interest] ... the interest must be one that is assured either by statute, judicial decree, or regulation." (Citations omitted; internal quotation marks omitted.) Green v. Commissioner of Correction , 184 Conn. App. 76, 85, 194 A.3d 857, cert. denied, 330 Conn. 933, 195 A.3d 383 (2018) ; see also Byrd v. Commissioner of Correction , supra, 177 Conn. App. at 82, 171 A.3d 1103.

The habeas court concluded that this court's decision in State v. Farrar , supra, 186 Conn. App. 220, 199 A.3d 97, foreclosed the sole claim set forth in the habeas petition filed by the petitioner; namely, that the court imposed an illegal sentence that violated double jeopardy. A brief review of that case, therefore, will facilitate our discussion. In State v. Farrar , supra, at 221, 199 A.3d 97, the defendant appealed from the denial of his motion to correct an illegal sentence. The defendant...