Paulino v. Comm'r of Corr.

• Decision Date: 27 January 2015
• Docket Number: No. 35691.,35691.
• Citation: 109 A.3d 516,155 Conn.App. 154
• Court: Connecticut Court of Appeals
• Parties: Jose PAULINO v. COMMISSIONER OF CORRECTION.

155 Conn.App. 154

109 A.3d 516

Jose PAULINO

v.COMMISSIONER OF CORRECTION.

No. 35691.

Appellate Court of Connecticut.

Argued Oct. 9, 2014.

Decided Jan. 27, 2015.

Neal Cone, senior assistant public defender, for the appellant (petitioner).

Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Richard K. Greenalch, Jr., special deputy assistant state's attorney, for the appellee (respondent).

GRUENDEL, LAVINE and DUPONT, Js.

Opinion

DUPONT, J.

The petitioner, Jose Paulino, appeals from the denial of his petition for certification to appeal from the judgment of the habeas court dismissing without prejudice his petition for a writ of habeas corpus. The underlying basic question for our resolution is whether the habeas court properly denied the petitioner's certification to appeal because of a lack of subject matter jurisdiction due to the fact that the court could not provide any relief to the petitioner and the issue was, therefore, moot. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal and, accordingly, we dismiss the appeal.

The following facts and procedural history are relevant to our decision. The petitioner is a citizen of the Dominican Republic who had visited the United States periodically and had married a woman who lived in Hartford. In 2008, following a trial to the court, the petitioner was convicted of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b) and possession of narcotics with intent to sell within 1500 feet of a public school in violation of General Statutes § 21a–278a (b). The trial court then sentenced the petitioner to three year terms of incarceration on each charge, to be served consecutively, for a total effective sentence of six years of imprisonment. The petitioner appealed the convictions to this court, claiming that the trial court had abused its discretion by failing to order a competency hearing for him and by depriving him of the right to a fair trial. State v. Paulino, 127 Conn.App. 51, 52, 12 A.3d 628 (2011). This court affirmed the convictions on March 1, 2011. Id., at 70, 12 A.3d 628.

On December 14, 2011, while incarcerated at Osborn Correctional Institute in Somers, the petitioner filed a handwritten pro se petition for writ of habeas corpus. In his petition, the petitioner claimed that the attorney representing him at the criminal trial had provided ineffective assistance of counsel. The petitioner also alleged that the government unlawfully entered his home, without a warrant or probable cause, where he kept large sums of money legally earned, and unlawfully intercepted and monitored telephone conversations with a man known to the petitioner as a heroin dealer. Finally, the petitioner made a claim of actual innocence and asked the court to order a new trial or release him.

On June 21, 2012, the United States Immigration Court issued an oral decision finding the petitioner removable as charged. In particular, the immigration court first found that “removability has been established by clear and convincing evidence as a non-immigrant overstay.” The immigration court then found that the petitioner's “conviction for possession with intent to sell narcotics is both an aggravated felony and an offense relating to a controlled substance.” Accordingly, the immigration court ordered that the petitioner be “removed to the Dominican Republic.” The petitioner then filed an appeal from that decision, noting his pending habeas corpus action in state court. The Board of Immigration Appeals (board) affirmed the decision and dismissed his appeal on October 18, 2012, reasoning that “the fact that the respondent may be pursuing post-conviction relief in the form of a collateral attack on his conviction in state criminal court does not affect its finality for federal immigration purposes.” The petitioner appealed that dismissal to the United States Court of Appeals for the Second Circuit on December 14, 2012, which subsequently dismissed the appeal on May 14, 2013.

On January 11, 2013, while the immigration appeal was still pending in the Second Circuit, the habeas court held a status conference at which the petitioner's habeas counsel informed the court that the petitioner had been deported.¹ On the basis of this information, the habeas court dismissed the petitioner's habeas petition without prejudice.² On January 17, 2013, the petitioner's habeas counsel filed a petition for certification to appeal. The habeas court denied the petition for certification to appeal on March 13, 2013. This appeal followed.³

On appeal, the petitioner claims that the habeas court abused its discretion by denying certification to appeal.

In response, the respondent, the Commissioner of Correction, argues that this court does not need to reach that issue because there is a threshold issue that is dispositive of the appeal. Specifically, the respondent argues that the Second Circuit's dismissal of the immigration appeal, together with the petitioner's failure to show a reasonable possibility that further habeas proceedings would provide practical relief, render this appeal moot. While we agree with the respondent that the petitioner has failed to show a reasonable possibility that further habeas proceedings would provide practical relief, we disagree with the respondent's argument and instead conclude that the habeas court did not abuse its discretion in denying certification to appeal.

“We begin by setting forth the applicable standard of review and procedural hurdles that a petitioner must surmount to obtain appellate review of the merits of a habeas court's denial of a habeas petition following denial of certification to appeal. In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that ... [General Statutes] § 52–470(b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues 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.... A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits.... 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....

“The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review.... [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) McMillion v. Commissioner of Correction, 151 Conn.App. 861, 868–70, 97 A.3d 32 (2014).

As noted previously, the habeas court dismissed the petition for a writ of habeas corpus without prejudice, noting that the court lacked jurisdiction to hear the petition because of the petitioner's deportation. “Mootness ... implicates subject matter jurisdiction, which imposes a duty on the [trial] court to dismiss a case if the court can no longer grant practical relief to the parties.... Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties.... A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.” (Citations omitted; internal quotation marks omitted.) We The People of Connecticut, Inc. v. Malloy, 150 Conn.App. 576, 581, 92 A.3d 961, cert. denied, 314 Conn. 919, 100 A.3d 850 (2014).

“Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable.... Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant.... A case is considered moot if [the trial] court cannot grant the appellant any practical relief through its disposition of the merits....” (Internal quotation marks omitted.) Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 308 Conn. 719, 736, 66 A.3d 848 (2013).

This court addressed the issue of whether a petitioner's deportation renders a case moot in Quiroga v. Commissioner of Correction, 149 Conn.App. 168, 87 A.3d 1171, cert. denied, 311 Conn. 950, 91 A.3d 462 (2014). In Quiroga, the petitioner, a citizen of Uruguay, was convicted of possession of narcotics and larceny in the first degree. Id., at 170, 87 A.3d 1171. The petitioner in that case filed a petition for a writ of habeas corpus, alleging that his representation regarding the larceny conviction was ineffective. Id., at...