Willis W. v. Office of Adult Prob.

• Citation: 212 Conn.App. 628,275 A.3d 1242
• Decision Date: 24 May 2022
• Docket Number: AC 44796
• Parties: WILLIS W. v. OFFICE OF ADULT PROBATION
• Court: Appellate Court of Connecticut

212 Conn.App. 628

275 A.3d 1242

WILLIS W.

v.OFFICE OF ADULT PROBATION^*

AC 44796

Appellate Court of Connecticut.

Argued March 10, 2022

Officially released May 24, 2022

Cameron L. Atkinson, with whom, on the brief, were Norman A. Pattis, Bethany, and Patrick Nugent, certified legal intern, for the appellant (petitioner).

Linda F. Rubertone, senior assistant state's attorney, with whom, on the brief, were Paul J. Ferencek, state's attorney, and Kelly A. Masi, senior assistant state's attorney, for the appellee (respondent).

Prescott, Moll and Suarez, Js.

PER CURIAM.

Following a grant of certification to appeal, the petitioner, Willis W., appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus for lack of subject matter jurisdiction. The petitioner claims that the court erred by (1) declining to apply General Statutes § 52-593a,¹ a savings statute that allows a plaintiff to avoid dismissal of a civil action on statute of limitations grounds through timely personal delivery of process to a proper officer and (2) concluding that he did not meet the jurisdictional "in custody" requirement of General Statutes § 52-466 (a),² despite the fact that, at the time he filed his habeas petition, his liberty was being deprived as a result of two standing criminal protective orders. We affirm the judgment of the habeas court.³

The relevant procedural history is not in dispute. On April 7, 2017, pursuant to a plea agreement, the petitioner pleaded guilty to two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63. The trial court, Comerford, J ., accepted the plea and imposed a total effective sentence of one year of incarceration, execution suspended, followed by three years of probation. The court also entered two standing criminal protective orders, which were effective for ten years. These orders precluded the petitioner from having any contact with his two minor children and from owning any firearms.

With respect to the filing of the petition for a writ of habeas corpus that is the subject of this appeal, the habeas court, Bhatt, J ., found in its memorandum of decision dismissing the petition that, "[o]n April 6, 2020, counsel for [the petitioner] gave [the habeas petition filed in the present case] to a state marshal to serve on the [Office of Adult Probation, the] named respondent.⁴ Service was effectuated on April 8, 2020, and the Superior Court received a copy of the petition on April 24, 2020, and the matter was thereafter assigned a docket number. In that petition, [the petitioner] claim[ed] that he received ineffective assistance of counsel because trial counsel should not have advised him to accept a plea deal given the evidence against [him]. Had trial counsel adequately advised [the petitioner, the petitioner contended], he would not have pleaded guilty and would have received a more favorable outcome.

"On October 23, 2020, the [respondent] filed a motion to dismiss, arguing, inter alia, that the court lack[ed] jurisdiction because [the petitioner] was not in custody at the time the habeas petition was filed with the court on April 24, 2020.⁵ On December 10, 2020, [the petitioner] filed a memorandum of law in opposition to the [respondent's] motion to dismiss. In that [memorandum], he alleged that his [trial] counsel mailed a copy of the petition to a state marshal who received it on April 7, 2020, the last day of his probationary period. He argues that this constitute[d] compliance with ... § 52-593a and, therefore, the petition was filed while he was still in custody.⁶ On January 12, 2021, the [respondent] filed a corrected memorandum of law in support of [its] motion to dismiss .... The court heard oral arguments on January 13, 2021." (Footnotes added; footnote omitted.)

In its decision granting the motion to dismiss, the court relied on the undisputed factual submissions of the petitioner with respect to the steps he took to initiate the habeas action. The court, however, agreed with the respondent that it lacked subject matter jurisdiction over the habeas petition because the petitioner was not in custody—meaning in prison, on parole, or on probation—at the time that the habeas petition was filed with the court. In this regard, the court relied on § 52-466 and well established case law related thereto. The habeas court, referring primarily to this court's analysis in Hastings v. Commissioner of Correction , 82 Conn. App. 600, 847 A.2d 1009 (2004), appeal dismissed, 274 Conn. 555, 876 A.2d 1196 (2005), reasoned that the operative date for determining whether a petitioner in a habeas action is " ‘in custody’ " is the date on which the petition is received in court. The habeas court concluded that the petitioner was not in custody on the date on which his petition was received in court because his probationary period ended on April 7, 2020, and he was "free of any restraints on his liberty on April 24, 2020."

The habeas court rejected the petitioner's reliance on § 52-593a. As noted previously in this opinion, the petitioner argued that he was entitled to the protection afforded by this remedial statute and that the action was filed while he was in custody because he was still on probation on April 7, 2020, the date on which a marshal, Alex J. Rodriguez, received the petition to serve on the respondent. See footnote 6 of this opinion. The court, relying on Gilchrist v. Commissioner of Correction , 334 Conn. 548, 555–61, 223 A.3d 368 (2020), noted that, unlike other civil actions, a habeas action is initiated when a petitioner files the petition with the clerk of the court for review by a judge who, pursuant to Practice Book § 23-24, undertakes a preliminary review of the petition and determines whether the writ shall issue. As our Supreme Court explained in Gilchrist , in a habeas action, service of process does not occur until after a petition is filed in court for a preliminary review, the court determines that the petition pleads a nonfrivolous claim upon which relief can be granted and over which the court has jurisdiction, and the writ issues. Id., at 556–57, 223 A.3d 368. The habeas court reasoned that, "[d]ue to the difference in the manner in which a petition for a writ of habeas corpus is to be filed [with the court], § 52-593a is not implicated." Accordingly, the court dismissed the petition for lack of subject matter jurisdiction under Practice Book § 23-29 (1).⁷ The court thereafter granted the petitioner's petition for certification to appeal, which was brought pursuant to General Statutes § 52-470.

"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." (Internal quotation marks omitted.) Anderson v. Commissioner of Correction , 114 Conn. App. 778, 784, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).

"A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy. ... Our Supreme Court has held that the party bringing the action bears the burden of proving that the court has subject matter jurisdiction. ... [W]ith regard to subject matter jurisdiction, jurisdictional facts are [f]acts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court. ...

"Our state's habeas proceedings are defined by General Statutes § 52-466 (a) (1), which provides in relevant part that [a]n application for a writ of habeas corpus ... shall be made to the superior court, or to a judge thereof, for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person's liberty. ... [O]ur Supreme Court [has] held that the custody requirement in § 52-466 is jurisdictional. ... Accordingly, a habeas court has subject matter jurisdiction to hear a petition for a writ of habeas corpus only when the petitioner remains in custody on that conviction. ... [C]onsiderations relating to the need for finality of convictions and ease of administration ... generally preclude a habeas petitioner from collaterally attacking expired convictions. ... Thus, once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack upon it." (Citations omitted; internal quotation marks omitted.) Mourning v. Commissioner of Correction , 120 Conn. App. 612, 619, 992 A.2d 1169, cert. denied, 297 Conn. 919, 996 A.2d 1192 (2010) ; see also Hickey v. Commissioner of Correction , 82 Conn. App. 25, 31, 842 A.2d 606 (2004), appeal dismissed, 274 Conn. 553, 876 A.2d 1195 (2005).

The petitioner's first claim pertains to the court's decision not to rely on § 52-593a. As he did before the habeas court, the petitioner argues that, when Rodriguez received the habeas petition on April 7, 2020, his probationary period had not yet expired and, therefore, he met the jurisdictional "in custody" requirement of § 52-466. Under our plenary standard of review, we conclude that the court, in its memorandum of decision, properly analyzed this issue consistent with Gilchrist and concluded that the petitioner was unable to avail himself of the remedy provided by § 52-593a. We will not repeat that analysis here.

The petitioner's second claim is that the court erred by concluding that he did not meet the jurisdictional "in custody" requirement of § 52-466 (a) because, at the time he filed his habeas petition with the court, he was being deprived of his liberty as a result of two standing criminal protective orders that prevented him from having any contact with his...