Simms v. Warden, 14681

CourtSupreme Court of Connecticut
Writing for the CourtBefore PETERS; PETERS; BORDEN; BERDON
Citation229 Conn. 178,640 A.2d 601
PartiesFloyd SIMMS v. WARDEN.
Docket NumberNo. 14681,14681
Decision Date18 March 1994

Louis S. Avitabile, Sp. Public Defender, with whom, on the brief, was Meryl Anne Spat, for plaintiff in error.

Carolyn K. Longstreth, Asst. State's Atty., with whom were Patricia Swords, State's Atty., and, on the brief, Jacqueline J. Footman, Asst. State's Atty., for defendant in error.


PETERS, Chief Justice.

The dispositive issue in this case is whether the governing statutes give this court subject matter jurisdiction over a writ of error brought to review the denial of a petition for a writ of habeas corpus after the habeas court has denied certification to appeal. 1 The plaintiff in error, Floyd Simms (plaintiff), filed an amended petition for a writ of habeas corpus to challenge the legality of his detention by the defendant in error, the warden of the Connecticut correctional institution at Somers (state). In his petition for a writ of habeas corpus, the plaintiff maintained that his 1983 conviction of accessory to assault of a person sixty years of age or older in the first degree pursuant to General Statutes §§ 53a-59(a)(3) and 53a-8 and robbery in the second degree pursuant to General Statutes § 53a-135(a)(1) should be set aside or that he should be resentenced. 2 His three count petition alleged ineffective assistance of trial counsel, ineffective assistance of appellate counsel and impairment of his rights to due process under the federal and state constitutions. 3 The habeas court dismissed the count of the petition claiming a constitutional deprivation of due process 4 and, after an evidentiary hearing, 5 ] denied the counts of the petition claiming ineffective assistance of counsel. The habeas court thereafter denied the plaintiff's petition for certification to appeal. Without attempting to appeal from this denial, the plaintiff filed this writ of error. We conclude that the writ of error must be dismissed.

In this court, the plaintiff's contentions in support of his writ of error mirror the substantive and the procedural arguments that he presented to the habeas court. The state maintains, however, that we lack subject matter jurisdiction to review the merits of the plaintiff's case because, under General Statutes § 52-273, "[n]o writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal." We agree with the state.

Once an issue of subject matter jurisdiction has come to our attention, we cannot adjudicate a case on its merits without first determining whether we have the authority to proceed. Gagnon v. Planning Commission, 222 Conn. 294, 297, 608 A.2d 1181 (1992); Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987). "[J]urisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here." Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993). "[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear." Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985); Tomlinson v. Board of Education, 226 Conn. 704, 718, 629 A.2d 333 (1993).

The subject matter jurisdiction of this court is defined by statute. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 759-60, 628 A.2d 1303 (1993); Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993); State v. Ayala, 222 Conn. 331, 338-41, 610 A.2d 1162 (1992); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983); Chipman v. Waterbury, 59 Conn. 496, 497, 22 A. 289 (1890). The central issue before us, therefore, is whether § 52-273 confers jurisdiction on this court to review the disposition of a petition for a writ of habeas corpus after denial of certification to appeal. This issue can usefully be divided into the following subparts: (1) Does § 52-273 permit writs of error for review of judgments rendered in habeas corpus proceedings? (2) If § 52-273 does not permit such a writ of error, does Practice Book § 4143 nevertheless provide authority for such a writ of error? (3) If neither the statute nor the Practice Book permits a writ of error to be brought, what avenues of appellate review are available to challenge an adverse judgment in a habeas corpus proceeding?


On its face, the text of § 52-273 strongly suggests that the plaintiff may not bring a writ of error in the circumstances of this case. The statute disallows a writ of error "for the correction of any error which might have been reviewed by process of appeal." (Emphasis added.) Although the plaintiff does not have an unqualified right to appeal from the denial of his petition for a writ of habeas corpus, he would have had such a right if, in accordance with the provisions of General Statutes § 52-470(b), 6 either the habeas court or an appellate judge had certified that "a question is involved in the decision which ought to be reviewed...." The availability of this qualified right of appeal is sufficient to deny the plaintiff access to a statutory right to a writ of error. See C. Tait, Connecticut Appellate Practice and Procedure (2d Ed.1993) § 8.3. This case is one example of a request for a review of errors that, in the language of § 52-273, "might have been reviewed by process of appeal."

As a matter of statutory construction, this result is entirely consistent with the manifest intention of the legislature, when it enacted § 52-470(b), to limit the opportunity for plenary appellate review of decisions in cases seeking postconviction review of criminal convictions. The legislature amended the predecessor statute to § 52-470(b) for this specific purpose. 7 See Iovieno v. Commissioner of Correction, 222 Conn. 254, 259-60, 608 A.2d 1174 (1992). At the same time, it also amended the statute governing a petition for a new trial in a criminal case, now General Statutes § 54-95(a), 8 to require a similar certification as a condition on the right to appeal. Having restricted the right to appeal, under both statutes, to cases in which a judge or justice has specifically determined that further review is appropriate, the legislature could not have intended a writ of error to serve as an alternate, unrestricted route for appellate review. 9


Despite this consistent and unambiguous manifestation of legislative intent, the plaintiff maintains that court rules of procedure and judicial precedents entitle him to bring a writ of error. We are unpersuaded.

The Practice Book provision on which the plaintiff principally relies is § 4143(b)(1). Subsection (b)(1) provides: "No writ of error may be brought in any civil or criminal proceeding for the correction of any error where (1) the error might have been reviewed by process of appeal, or by way of certification, except that the state may bring a writ of error where it has been denied certification to appeal in a habeas corpus proceeding pursuant to Gen.Stat. § 52-470(b) and a petitioner may bring a writ of error in a habeas corpus proceeding requiring certification to appeal where petitioner has been denied certification to appeal and the issues sought to be raised do not present any federal question cognizable by the federal district court."

The plaintiff contends that he may invoke the provisions of § 4143(b) because, in his view, its provisions are consistent with the provisions of § 52-273. We disagree. A textual comparison of the two provisions ineluctably demonstrates that, after a denial by the habeas court of certification to appeal that is not an abuse of discretion, the statute precludes access to a writ of error, while the Practice Book authorizes its use. To the extent that § 4143(b)(1) is inconsistent with the provisions of the General Statutes, our jurisdiction to consider a writ of error is governed by the applicable statutes. Provisions of the Practice Book cannot confer jurisdiction on this court. See General Statutes § 51-14; 10 Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. at 759-60, 628 A.2d 1303; Grieco v. Zoning Commission, supra, 226 Conn. at 231, 627 A.2d 432; State v. Ayala, supra, 222 Conn. at 338-41, 610 A.2d 1162; State v. Curcio, supra, 191 Conn. at 30, 463 A.2d 566.

The stark textual contrast between the statute and the Practice Book is heightened by the fact that, since the 1986 amendments to the Practice Book, the scope of review afforded by a writ of error is no longer limited to errors of law "apparent on the face of the record." Practice Book, 1963, § 3090 (now § 4143). Instead, Practice Book § 4144 now provides that procedures for a writ of error "shall be in accordance with the rules for appeals." See Bergeron v. Mackler, 225 Conn. 391, 393 n. 3, 623 A.2d 489 (1993); C. Tait, supra, § 8.6. Permitting a writ of error in accordance with § 4143 of the Practice Book would therefore authorize a plenary review that is the functional equivalent of an ordinary appeal. Such a use of the writ of error would effectively write the certification requirement out of § 52-470(b). 11 A litigant disappointed by the outcome of a habeas corpus proceeding could always obtain plenary review of its merits, either on appeal if certification to appeal were granted, or through a writ of error if certification to appeal were denied.

Even if such inconsistency would normally require the provisions of the Practice Book to give way to the governing provisions of the jurisdictional statutes, the plaintiff contends that this court's past practice of reviewing habeas corpus decisions on writs of error establishes the legitimacy of this procedural route. In essence, this argument suggests that decisions of this court estop the state from insistence on compliance with the governing statutes. To state this argument is to...

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