McCarthy v. Commissioner of Correction, (AC 23665)

• Decision Date: 13 April 2004
• Docket Number: (AC 23665)
• Citation: 82 Conn. App. 480,844 A.2d 920
• Court: Connecticut Court of Appeals
• Parties: AEDAN McCARTHY v. COMMISSIONER OF CORRECTION

82 Conn. App. 480

844 A.2d 920

AEDAN McCARTHY v. COMMISSIONER OF CORRECTION

(AC 23665)

Court of Appeals of Connecticut.

Argued January 13, 2004.

Officially released April 13, 2004.

Schaller, Bishop and McLachlan, JS. Sandra J. Crowell, assistant public defender, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Linda N. Howe, senior assistant state's attorney, for the appellee (respondent).

Opinion

McLACHLAN, J.

The petitioner, Aedan McCarthy, appeals from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus. The petitioner's sole claim on appeal is that the court improperly dismissed his petition on the ground that it lacked subject matter jurisdiction after concluding that he did not satisfy the "in custody" requirement of General Statutes § 52-466. On the basis of the reasoning set forth in Lebron v. Commissioner of Correction, 82 Conn. App. 475, 844 A.2d 946 (2004), also released on the same date, following the precedent of Ford v. Commissioner of Correction, 59 Conn. App. 823, 758 A.2d 853 (2000), we disagree and affirm the judgment of the habeas court. In February, 1958, the petitioner was convicted of ten counts of burglary in violation of General Statutes (Cum. Sup. 1955) § 3277d and sentenced to a term of five years and one day incarceration on each count, to be served concurrently, for a total effective sentence of five years and one day incarceration. It is not disputed that the petitioner served the sentence and was released from custody.

In January, 1995, more than thirty years after being released from custody for the 1958 conviction, the petitioner was convicted in United States District Court for the District of Maine on various charges stemming from three bank robberies. At sentencing, the government introduced evidence of the 1958 conviction and sought enhanced penalties in accordance with the Armed Career Criminal Act of 1984 (act), 18 U.S.C. §§ 922 (g) (1) and 924 (e) (1) and (2). The District Court determined that the petitioner's 1958 conviction qualified him as an armed career criminal and accordingly sentenced him, pursuant to the provisions of the act, to a term of thirty-two years incarceration.

On August 21, 2000,¹ the petitioner filed a second amended petition for a writ of habeas corpus, challenging the 1958 conviction. The petitioner alleged that the 1958 conviction had been utilized to enhance his federal sentence pursuant to the act. On September 27, 2000, the respondent, the commissioner of correction, filed a motion to dismiss the petition on the ground that the petitioner had served the sentence imposed for the 1958 conviction fully before filing the petition and, therefore, was not "in custody" for that conviction, as required by § 52-466. Relying on our decision in Ford v. Commissioner of Correction, supra, 59 Conn. App. 823, the court determined that the petitioner was not "in custody" for the 1958 conviction and granted the motion to dismiss. The court then granted the petitioner's ...