Gilchrist v. Commissioner of Correction ( 2020 )

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ANTHONY GILCHRIST v. COMMISSIONER
OF CORRECTION
(SC 20141)
Robinson, C. J., and Palmer, McDonald,
D’Auria, Kahn and Ecker, Js.
Syllabus
Pursuant to the rules of practice (§ 23-24), once a petition for a writ of
habeas corpus is filed in the Superior Court, ‘‘[t]he judicial authority
shall promptly review [the] petition . . . to determine whether the writ
should issue. The judicial authority shall issue the writ unless it appears
that . . . the court lacks jurisdiction . . . the petition is wholly frivo-
lous on its face . . . or . . . the relief sought is not available.’’
Pursuant further to the rules of practice (§ 23-29), ‘‘[t]he judicial authority
may, at any time, upon its own motion or upon motion of the respondent,
dismiss the petition . . . if it determines [inter alia] that . . . the court
lacks jurisdiction . . . [or] the petition . . . fails to state a claim upon
which habeas corpus relief can be granted . . . .’’
The petitioner, who had been convicted, on a guilty plea, of the crime of
robbery in the third degree, filed a petition for a writ of habeas corpus,
seeking to withdraw his guilty plea and to have his conviction vacated
or dismissed. The petitioner alleged that he had received a sentence of
unconditional discharge in connection with the robbery conviction but
that he remained incarcerated on unspecified other charges and that
the robbery conviction was adversely affecting his eligibility for parole
on the other charges. The habeas court granted the petitioner’s applica-
tion for a waiver of fees but took no action as to his request for the
appointment of counsel. Shortly thereafter, however, the court, sua
sponte and without providing the petitioner with notice or an opportunity
to be heard, dismissed the petition pursuant to Practice Book § 23-29
on the ground that the habeas court lacked jurisdiction because the
petitioner was not in custody for the conviction that he was challenging
at the time he filed the petition. On the granting of certification, the
petitioner appealed to the Appellate Court, which affirmed the habeas
court’s judgment, and the petitioner, on the granting of certification,
appealed to this court, claiming that the habeas court improperly dis-
missed the petition without first acting on his request for the appoint-
ment of counsel and providing him with notice and an opportunity to
be heard. Held that, although the Appellate Court correctly concluded
that the petitioner was not entitled to the appointment of counsel, notice
or a hearing under the circumstances, that court improperly upheld the
habeas court’s dismissal of the habeas petition under § 23-29 because
that dismissal occurred before the habeas court ordered the issuance
of the writ pursuant to § 23-24, and the habeas court, upon preliminary
review of the petition, should have declined to issue the writ under § 23-
24 for lack of jurisdiction rather than dismissing the petition pursuant
to § 23-29: upon review of the historical development of the writ of
habeas corpus, the language of §§ 23-24 and 23-29, and the relationship
of those sections to the provisions generally governing habeas corpus
procedure (§ 23-21 et seq.) set forth in the Practice Book, this court
concluded that a dismissal under § 23-29 may not precede the habeas
court’s determination to issue the writ of habeas corpus under § 23-24,
as that rule dictates the procedure by which the judicial authority must
conduct a preliminary review of the petition, prior to commencement
of the habeas action through issuance of the writ, to determine whether
the petition is patently defective because the court lacks jurisdiction,
the petition is wholly frivolous on its face, or the relief sought is not
available, and § 23-24 expressly requires the court to issue the writ if
its initial review does not result in a decision to decline to issue the
writ on the basis of one or more grounds enumerated in § 23-24, whereas
§ 23-29 contemplates the dismissal of a habeas petition only after the
writ has issued and the habeas action has commenced; accordingly,
because the habeas court dismissed the habeas petition for lack of
jurisdiction under § 23-29, even though it did so in its preliminary consid-
eration of the petition under § 23-24 and before issuing the writ of habeas
corpus initiating the habeas proceeding, and, because it was undisputed
that the petitioner would not have been entitled to the appointment of
counsel, notice or an opportunity to be heard in connection with the
habeas court’s decision to decline to issue the writ, the judgment of the
Appellate Court was reversed and the case was remanded to that court
for remand to the trial court with direction to decline to issue the writ
of habeas corpus.
Argued September 16, 2019—officially released January 28, 2020
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Oliver, J., dismissed the petition and rendered
judgment thereon, from which the petitioner, on the
granting of certification, appealed to the Appellate
Court, Prescott, Elgo and Harper, Js., which affirmed
the judgment of the habeas court, and the petitioner,
on the granting of certification, appealed to this court.
Reversed; judgment directed.
Adele V. Patterson, senior assistant public defender,
for the appellant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, was John C. Smriga, state’s
attorney, for the appellee (respondent).
Opinion
ECKER, J. This appeal requires us to clarify the
proper procedure to be used by the habeas court in its
preliminary consideration of a petition for a writ of
habeas corpus under Practice Book §§ 23-241 and 23-
29.2 In 2016, the petitioner, Anthony Gilchrist, filed a
pro se petition for a writ of habeas corpus, seeking to
withdraw the guilty plea he entered in September, 2013,
to a charge of robbery in the third degree and to have
the corresponding judgment of conviction ‘‘vacate[d]
and/or dismiss[ed].’’ The habeas court, acting sua
sponte and without providing the petitioner with notice
or a hearing, dismissed the petition pursuant to § 23-
29 (1) for lack of jurisdiction on the ground that it was
apparent, on the face of the petition, that the petitioner
was not in custody for the conviction being challenged.
The Appellate Court affirmed the habeas court’s judg-
ment. Gilchrist v. Commissioner of Correction, 180
Conn. App. 56, 58, 182 A.3d 690 (2018). On appeal,
the petitioner claims that the habeas court improperly
dismissed the petition without first acting on his request
for the appointment of counsel and providing him with
notice and an opportunity to be heard. Although we
agree with the Appellate Court that the petitioner was
not entitled to the appointment of counsel, notice or a
hearing under the circumstances, we disagree with the
analysis that it used to arrive at that conclusion and,
therefore, reverse the judgment of the Appellate Court
and remand the case to that court with direction to
render judgment in accordance with this opinion.
The following facts and procedural history are rele-
vant to this appeal. On June 24, 2016, the self-repre-
sented petitioner filed a petition for a writ of habeas
corpus. He included with the petition a request for the
appointment of counsel and an application for a waiver
of fees. The petition states that he had pleaded guilty
to robbery in the third degree in September, 2013, and
received a sentence of unconditional discharge. The
petition and the attachments thereto also indicate that
the petitioner was not incarcerated on the robbery con-
viction challenged in his habeas petition but that he
remains incarcerated on other charges, the nature of
which is not clear from the record. It appears from the
petition that the petitioner’s effort to obtain habeas
relief stemmed from the fact that his expired robbery
conviction made him ineligible for parole until he serves
85 percent of his definite sentences for the ‘‘other’’
charges pursuant to General Statutes § 54-125a (b)
(2) (B).3
On July 21, 2016, the habeas court assigned a docket
number to the petition and granted the petitioner’s
application for a waiver of fees but took no action on
his request for the appointment of counsel. One week
later, on July 28, 2016, the habeas court, sua sponte
and without providing the petitioner with notice or an
opportunity to be heard, rendered a judgment of dis-
missal, stating: ‘‘The habeas corpus petition is dismissed
because the court lacks jurisdiction pursuant to . . .
Practice Book § 23-29 (1), as the petitioner was no
longer in custody for the conviction being challenged
at the time the petition was filed.’’4 For the reasons that
soon will become apparent, it is significant that the
habeas court disposed of the petition pursuant to Prac-
tice Book § 23-29 rather than Practice Book § 23-24 and
did so prior to issuing the writ that would have operated
to commence the habeas action.
Following the judgment of dismissal, the petitioner
filed a motion to reconsider, which the habeas court
summarily denied on August 18, 2016. The habeas court
thereafter granted the petitioner’s petition for certifica-
tion to appeal. The Appellate Court affirmed the habeas
court’s judgment. Gilchrist v. Commissioner of Correc-
tion, supra, 180 Conn. App. 58. We granted the petition-
er’s petition for certification to appeal to determine
whether the Appellate Court properly affirmed the judg-
ment of the habeas court dismissing the petition pursu-
ant to Practice Book § 23-29 (1), without the habeas
court’s taking any action on the petitioner’s request for
the appointment of counsel or providing the petitioner
with notice and an opportunity to be heard on the
court’s own motion to dismiss. Gilchrist v. Commis-
sioner of Correction, 329 Conn. 908, 186 A.3d 13 (2018).
Upon review of the record, we now conclude that
the certified question is not an accurate statement of
the issue presently before us. See, e.g., Rosado v.
Bridgeport Roman Catholic Diocesan Corp., 276 Conn.
168, 191–92, 884 A.2d 981 (2005) (court may reframe
certified question to more accurately reflect issues pre-
sented). Because it is clear from the record that the
habeas court dismissed the petition before ordering the
issuance of the writ, a more fundamental issue controls
our review, namely, whether dismissal under Practice
Book § 23-29 can precede the habeas court’s determina-
tion to issue the writ under Practice Book § 23-24.
Accordingly, we revise the certified question as follows:
‘‘Did the Appellate Court properly affirm the habeas
court’s dismissal of the petition under . . . § 23-29
when that dismissal occurred before the habeas court
ordered the issuance of the writ pursuant to . . . § 23-
24?’’ We answer the question in the negative.
Whether a habeas court properly dismissed a petition
for a writ of habeas corpus presents a question of law
over which our review is plenary. See Kaddah v. Com-
missioner of Correction, 324 Conn. 548, 559, 153 A.3d
1233 (2017) (plenary review of dismissal under Practice
Book § 23-29 [2]); Johnson v. Commissioner of Correc-
tion, 285 Conn. 556, 566, 941 A.2d 248 (2008) (conclu-
sions reached by habeas court in dismissing habeas
petition are matters of law subject to plenary review).
Plenary review also is appropriate because this appeal
requires us to interpret the rules of practice. See, e.g.,
Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d
1027 (2010).
There is understandable confusion in our courts
regarding the proper procedure to be followed in the
preliminary stages of review once a petition for a writ
of habeas corpus is filed in the habeas court. The imme-
diate source of the confusion is the apparent similarity
and overlap between Practice Book §§ 23-24 and 23-29,
each of which permits the habeas court to dispose of
the habeas petition on the basis of various pleading
deficiencies. Practice Book § 23-24 (a) allows the court
to ‘‘[decline to] issue the writ’’ if it appears that ‘‘(1)
the court lacks jurisdiction; (2) the petition is wholly
frivolous on its face; or (3) the relief sought is not
available.’’ Practice Book § 23-29, using similar but not
identical terms, allows the court to ‘‘dismiss the peti-
tion,’’ on the court’s own motion or the motion of the
respondent, if the court 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; (3) the petition presents the same
ground as a prior petition previously denied and fails
to state new facts or to proffer new evidence not reason-
ably available at the time of the prior petition; (4) the
claims asserted in the petition are moot or premature;
[or] (5) any other legally sufficient ground for dismissal
of the petition exists.’’
Although the existence of different provisions nor-
mally indicates an intention to address different con-
cerns or circumstances; see Hatt v. Burlington Coat
Factory, 263 Conn. 279, 315–16, 819 A.2d 260 (2003); the
common ground covered by these two rules of practice
makes it difficult to identify precisely their respective
spheres of operation. A number of recent cases demon-
strate the confusion. See Nonhuman Rights Project,
Inc. v. R.W. Commerford & Sons, Inc., 192 Conn. App.
36, 38 n.1, 216 A.3d 839 (construing habeas court’s ‘‘dis-
miss[al]’’ of petition for writ of habeas corpus under
Practice Book § 23-24 [a] [1] as decision to decline to
issue writ under that provision), cert. denied, 330 Conn.
920, 217 A.3d 635 (2019); Boria v. Commissioner of
Correction, 186 Conn. App. 332, 336, 199 A.3d 1127
(2018) (stating that habeas court ‘‘dismissed’’ petition
for writ of habeas corpus under § 23-24 [a] [1]), petition
for cert. filed (Conn. January 4, 2019) (No. 180305);
Green v. Commissioner of Correction, 184 Conn. App.
76, 80 n.3, 194 A.3d 857 (construing ‘‘dismiss[al]’’ under
§ 23-24 as decision to decline to issue writ), cert. denied,
330 Conn. 933, 195 A.3d 383 (2018); see also Boria v.
Commissioner of Correction, supra, 356–64 (Bishop,
J., concurring) (summarizing confusion surrounding,
and inconsistent treatment of, Practice Book §§ 23-24
and 23-29 and citing illustrative cases).
The present case provides an occasion to clarify the
proper application of these two rules of practice. The
confusion is not merely a function of the overlapping
terms and proximate spheres of operation. At a deeper
level, it emerges out of the combined effect of the
unusual procedure used to initiate a habeas proceeding
and the somewhat antiquated terminology used to
describe aspects of that procedure. Our understanding
is not made any easier by the ancient origin and protean
nature of the ‘‘ ‘great writ . . . .’ ’’ Luurtsema v. Com-
missioner of Correction, 299 Conn. 740, 757, 12 A.3d
817 (2011); see id. (tracing origins of ‘‘[t]he ‘great writ’ ’’
to thirteenth century England); G. Longsdorf, ‘‘Habeas
Corpus: A Protean Writ and Remedy,’’ 8 F.R.D. 179,
180–90 (1948) (describing numerous substantive and
procedural changes to writ of habeas corpus over time).
One of the significant procedural differences between
an ordinary civil action and a habeas corpus action
involves the manner by which the case is commenced.
Generally, ‘‘[a] habeas corpus action, as a variant of
civil actions, is subject to the ordinary rules of civil
procedure, unless superseded by the more specific rules
pertaining to habeas actions’’; (internal quotation marks
omitted) Nelson v. Commissioner of Correction, 326
Conn. 772, 782, 167 A.3d 952 (2017); but specialized
procedural rules accompany numerous aspects of a
habeas case. See Practice Book § 23-21 et seq. These
specialized procedures include the steps necessary to
commence a habeas action in Connecticut. In an ordi-
nary civil lawsuit, the writ of summons5 and complaint
are signed by an attorney (or, in the case of an unrepre-
sented nonattorney litigant, by a court clerk) without
any preliminary review by a judge, and the action is
considered commenced under Connecticut law when
a defendant is duly served, before the process is ever
filed with the court.6
Habeas actions work differently. Before the petition
is served on the respondent, the petitioner is required
to file the petition in court for review by a judge. The
current review procedure is set forth in Practice Book
§ 23-24 (a), which requires the judicial authority to
‘‘promptly review any petition for a writ of habeas cor-
pus to determine whether the writ should issue.’’
(Emphasis added.) The rule goes on to instruct that
‘‘[t]he judicial authority shall issue the writ unless it
appears that: (1) the court lacks jurisdiction; (2) the
petition is wholly frivolous on its face; or (3) the relief
sought is not available.’’ Practice Book § 23-24 (a). If any
of these three enumerated circumstances exist, then
the writ never issues in the first place, and the judicial
authority is required to ‘‘notify the petitioner [that] it
declines to issue the writ.’’ Practice Book § 23-24 (b).
Section 23-24 thus reverses the usual sequence followed
in the ordinary civil case; the habeas petition first is
filed with the court, and the writ issues and service of
process occurs only if the court determines, after a
preliminary review of the petition, that the petition
pleads a nonfrivolous claim within the court’s jurisdic-
tion upon which relief can be granted.7
The preliminary review of the habeas petition by a
judge pursuant to Practice Book § 23-24, prior to the
issuance of the writ, is a procedure with deep common-
law roots. See 1 Z. Swift, A Digest of the Laws of the
State of Connecticut (1822) p. 569 (‘‘[i]n England th[e]
writ may be issued by the courts of Westminster [H]all,
or any of the judges in vacation, and is considered as
demandable ex debito justitiae,8 with this limitation, if
on the face of the application, or facts stated, there
appears to be no ground for interference, it may be
denied’’ [footnote added]); see also 2 R. Bollier & S.
Busby, Stephenson’s Connecticut Civil Procedure (3d
Ed. 2002) § 221 (b), p. 548. (‘‘As with all of the extraordi-
nary writs, the essence of the procedure is that the writ
does not issue ‘[as a matter] of course.’ Application
must be made and cause must be shown for the issuance
of the writ.’’); 2 R. Bollier & S. Busby, supra, § 221 (d),
p. 550 (‘‘[t]he petition is essentially a pleading, the only
purpose of which is to secure the issuance of the writ;
the confinement itself will be tested on issues raised by
subsequent pleadings’’ [footnote omitted]). An earlier
version of Stephenson’s Connecticut Civil Procedure
puts the matter even more clearly: ‘‘An application for
a writ of habeas corpus is presented to the court or a
judge thereof. Since no notice of the application is given
[to] the [respondent], the hearing9 is ex parte. The
[respondent] is not prejudiced by this absence of notice.
In other actions, the writ can be issued by the [petition-
er’s] attorney. In habeas corpus, the [respondent] is
better protected by requiring the petitioner to satisfy a
judge that the writ should issue. Notice is given there-
after.’’ (Footnote added; footnote omitted.) 2 E. Ste-
phenson, Connecticut Civil Procedure (2d Ed. Cum.
Supp. 1981) § 259 (f), p. 1066.
The decisional law is in accord, in Connecticut and
elsewhere. See, e.g., Adamsen v. Adamsen, 151 Conn.
172, 176, 195 A.2d 418 (1963) (‘‘The only purpose served
by the application is to secure the issuance of the writ
in the discretion10 of the court. The issues on which
any subsequent trial is held are framed by the return and
the pleadings subsequent thereto.’’ [Footnote added.]);
McPheters v. Pollard, 146 Conn. 509, 510, 152 A.2d 632
(1959) (when ‘‘[a]ffirmative allegations showing the
deprivation of the [petitioner’s] legal rights in this state,
essential to the issuance of a writ, are lacking,’’ this
‘‘raises considerable doubt that the writ should have
issued’’); Green v. Commissioner of Correction, supra,
184 Conn. App. 80 n.3 (historically, ‘‘[i]t was only if the
court decided to issue the writ that the petition would
be served on the [C]ommissioner [of Correction] by an
officer of the court and a subsequent habeas trial be
held’’); see also Walker v. Johnston, 312 U.S. 275, 284,
61 S. Ct. 574, 85 L. Ed. 830 (1941) (‘‘[I]f, upon the face
of the petition, it appears that the party is not entitled
to the writ, the court may refuse to issue it. Since the
allegations of such petitions are often inconclusive, the
practice has grown up of issuing an order to show
cause, which the respondent may answer. By this proce-
dure the facts on which the opposing parties rely may
be exhibited, and the court may find that no issue of
fact is involved. In this way useless grant of the writ with
consequent production of the prisoner and of witnesses
may be avoided . . . .’’); In re Durrant, 169 U.S. 39,
43, 18 S. Ct. 291, 42 L. Ed. 653 (1898) (‘‘the writ of habeas
corpus . . . must be denied . . . if it [is] apparent that
the only result, if the writ were issued, would be the
remanding of the petitioner to custody’’); Ex parte Wat-
kins, 28 U.S. (3 Peters) 193, 201, 7 L. Ed. 650 (1830)
(refusing to issue writ of habeas corpus when it ‘‘is
shown as fully by the petitioner as it could appear on
the return of the writ’’ that court lacked jurisdiction);
Engels v. Amrine, 125 P.2d 379, 380 (Kan. 1942) (‘‘[i]t
is the practice in this state to make a preliminary deter-
mination as to the propriety of issuing the writ of habeas
corpus’’); In re Thompson, 85 N.J. Eq. 221, 249, 96 A.
102 (1915) (‘‘[H]abeas corpus falls strictly within the
definition of a prerogative writ, namely, one that does
not issue as of right but at the discretion of the court,
that is, one that has to be allowed by the court or a
judge thereof in the exercise of a sound judicial, and
not an arbitrary, discretion. Of course habeas corpus
is a writ of right when cause appears for its issuance,
but cause must always be shown.’’).
To be clear, the screening function of Practice Book
§ 23-24 plays an important role in habeas corpus pro-
ceedings, but it is intended only to weed out obviously
and unequivocally defective petitions, and we empha-
size that ‘‘[b]oth statute and case law evince a strong
presumption that a petitioner for a writ of habeas cor-
pus is entitled to present evidence in support of his
claims.’’ Mercer v. Commissioner of Correction, 230
Conn. 88, 93, 644 A.2d 340 (1994). Screening petitions
prior to the issuance of the writ is intended to conserve
judicial resources by eliminating obviously defective
petitions; it is not meant to close the doors of the habeas
court to justiciable claims. ‘‘Special considerations ordi-
narily obtain when a petitioner has proceeded pro se.
. . . [I]n such a case, courts should review habeas peti-
tions with a lenient eye, allowing borderline cases to
proceed. . . . The justification for this policy is appar-
ent. If the writ of habeas corpus is to continue to have
meaningful purpose, it must be accessible not only to
those with a strong legal background or the financial
means to retain counsel, but also to the mass of unedu-
cated, unrepresented prisoners.’’ (Internal quotation
marks omitted.) Galland v. Bronson, 204 Conn. 330,
334, 527 A.2d 1192 (1987). Thus, when borderline cases
are detected in the preliminary review under § 23-24,
the habeas court should issue the writ and appoint
counsel so that any potential deficiencies can be
addressed in the regular course after the proceeding
has commenced.
With this background in mind, we now are better
equipped to discern the differences between Practice
Book §§ 23-24 and 23-29. The former rule applies to the
court’s preliminary review of the petition prior to the
issuance of the writ of habeas corpus and before com-
mencement of a habeas action. Pursuant to Practice
Book § 23-24 (a), the habeas court must ‘‘promptly
review any petition for a writ of habeas corpus to deter-
mine whether the writ should issue.’’ The habeas court
may decline to issue the writ if—and only if—it deter-
mines that ‘‘(1) the court lacks jurisdiction; (2) the peti-
tion is wholly frivolous on its face; or (3) the relief
sought is not available.’’ Practice Book § 23-24 (a). If
the court declines to issue the writ, no further action
is necessary beyond notifying the petitioner because
there is no service of process, no civil action and,
accordingly, no need for the appointment of counsel.
In contrast, Practice Book § 23-29 contemplates the
dismissal of a habeas petition after the writ has issued
on any of the enumerated grounds. It serves, roughly
speaking, as the analog to Practice Book §§ 10-30 and
10-39, which, respectively, govern motions to dismiss
and motions to strike in civil actions. It is true that § 23-
29 states that the judicial authority may take action
under its authority ‘‘at any time,’’ but the ‘‘time’’ it refer-
ences necessarily is defined by the time at which the
rule itself becomes operative, which is after the habeas
court issues the writ and the action has commenced.
The rules of practice were promulgated to create a
harmonious body of law, and we are required to ‘‘read
statutes [and rules] together when they relate to the
same subject matter . . . . Accordingly, [i]n determin-
ing the meaning of a statute [or rule] . . . we look not
only at the provision at issue, but also to the broader
statutory [or Practice Book] scheme to ensure the
coherency of our construction.’’ (Internal quotation
marks omitted.) Felician Sisters of St. Francis of Con-
necticut, Inc. v. Historic District Commission, 284
Conn. 838, 850, 937 A.2d 39 (2008). The rules of practice
governing habeas corpus proceedings; see Practice
Book § 23-21 et seq.; clearly evince an order of opera-
tions, providing for procedures and motions in the
sequence in which they generally occur in a typical
habeas case.11 Practice Book § 23-24 is situated at the
beginning of the sequence, preceded only by two sub-
stantive sections addressing the required contents of a
habeas petition, because that section addresses the very
first step in any habeas case, which is the preliminary
review of the petition undertaken prior to the issuance
of the writ. In contrast, § 23-29 comes later, after provi-
sions governing the waiver of fees and costs of service,
the appointment of counsel, venue, and change of
venue. See Practice Book §§ 23-25 through 23-28.
To summarize, when a petition for a writ of habeas
corpus alleging a claim of illegal confinement is submit-
ted to the court, the following procedures should be
followed. First, upon receipt of a habeas petition that
is submitted under oath and is compliant with the
requirements of Practice Book § 23-22; see Practice
Book §§ 23-22 and 23-23; the judicial authority must
review the petition to determine if it is patently defec-
tive because the court lacks jurisdiction, the petition
is wholly frivolous on its face, or the relief sought is
unavailable. Practice Book § 23-24 (a). If it is clear that
any of those defects are present, then the judicial
authority should issue an order declining to issue the
writ, and the office of the clerk should return the peti-
tion to the petitioner explaining that the judicial author-
ity has declined to issue the writ pursuant to § 23-24.
Practice Book § 23-24 (a) and (b). If the judicial author-
ity does not decline to issue the writ, then it must
issue the writ, the effect of which will be to require the
respondent to enter an appearance in the case and to
proceed in accordance with applicable law. At the time
the writ is issued, the court should also take action on
any request for the appointment of counsel and any
application for the waiver of filing fees and costs of
service. See Practice Book §§ 23-25 and 23-26. After the
writ has issued, all further proceedings should continue
in accordance with the procedures set forth in our rules
of practice, including Practice Book § 23-29.
The record in the present case reflects that the habeas
court dismissed the petition for lack of jurisdiction
under Practice Book § 23-29 (1), even though the court
did so in its preliminary consideration of the petition
under Practice Book § 23-24, prior to the issuance of
the writ. For this reason, the habeas court should have
declined to issue the writ pursuant to § 23-24 (a) (1)
rather than dismissing the case pursuant to § 23-29 (1).
Because it is undisputed that the petitioner is not enti-
tled to the appointment of counsel or notice and an
opportunity to be heard in connection with the court’s
decision to decline to issue the writ, this concludes
our review.12
The judgment of the Appellate Court is reversed, and
the case is remanded to that court with direction to
remand the case to the habeas court with direction to
decline to issue the writ of habeas corpus.
1
Practice Book § 23-24 provides: ‘‘(a) The judicial authority shall promptly
review any petition for a writ of habeas corpus to determine whether the writ
should issue. The judicial authority shall issue the writ unless it appears that:
‘‘(1) the court lacks jurisdiction;
‘‘(2) the petition is wholly frivolous on its face; or
‘‘(3) the relief sought is not available.
‘‘(b) The judicial authority shall notify the petitioner if it declines to issue
the writ pursuant to this rule.’’
2
Practice Book § 23-29 provides: ‘‘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;
‘‘(3) the petition presents the same ground as a prior petition previously
denied and fails to state new facts or to proffer new evidence not reasonably
available at the time of the prior petition;
‘‘(4) the claims asserted in the petition are moot or premature;
‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’
3
General Statutes § 54-125a (b) (2) provides in relevant part that ‘‘[a]
person convicted of . . . (B) an offense . . . where the underlying facts
and circumstances of the offense involve the use, attempted use or threat-
ened use of physical force against another person shall be ineligible for
parole . . . until such person has served not less than eighty-five per cent
of the definite sentence imposed.’’
4
The petitioner does not challenge the merits of the habeas court’s ruling.
See, e.g., Lebron v. Commissioner of Correction, 274 Conn. 507, 532, 876
A.2d 1178 (2005) (habeas court lacked jurisdiction over petition challenging
conviction for which petitioner was no longer in custody), overruled in part
on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014).
5
The writ of summons used to commence a civil action in Connecticut
commands the officer to whom it is directed, typically a state marshal, to
(1) summon the defendant(s) to appear in the designated Superior Court
within the designated time period, (2) make service on the defendant(s) of
a true copy of the writ and accompanying complaint and/or other process,
and (3) return the original process with the process server’s ‘‘actions
thereon’’ to the issuing party for return to the court. See General Statutes
§ 52-45b (providing usual forms of legal process for commencement of civil
actions); see also Hartley v. Vitiello, 113 Conn. 74, 79, 154 A. 255 (1931)
(‘‘[u]nder our law, with very limited exceptions, process in civil actions can
. . . be served [only] by certain designated officers to whom it must be
addressed . . . [and] the officer making the service must [e]ndorse his
doings upon the writ and complaint and return it to court a certain number
of days before the return day’’); 1 R. Bollier et al., Stephenson’s Connecticut
Civil Procedure (3d Ed. 1997) §§ 15 through 17, pp. 26–35 (explaining service
of process in civil actions).
6
See, e.g., Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004)
(‘‘under the law of our state, an action is commenced not when the writ is
returned but when it is served upon the defendant’’ [footnote omitted; inter-
nal quotation marks omitted]); Rana v. Ritacco, 236 Conn. 330, 337, 672
A.2d 946 (1996) (‘‘[t]his court has long held that an action is brought once
the writ, summons and complaint have been served upon a defendant’’);
see also General Statutes § 52-45a (‘‘[c]ivil actions shall be commenced by
legal process consisting of a writ of summons or attachment’’); General
Statutes § 52-50 (entitled ‘‘Persons to whom process shall be directed’’);
Practice Book § 8-1 (entitled ‘‘Process’’). In the usual course, an attorney
will sign and issue the writ of summons and complaint without any court
involvement. If the plaintiff is not an attorney and not represented by counsel,
a court clerk must sign the writ of summons, but the clerk conducts no
jurisdictional or merits related review and has no discretion to refuse to
sign the writ ‘‘unless it is defective as to form . . . .’’ Practice Book § 8-1
(a). A different procedure, sometimes requiring preliminary review by a
judicial authority prior to the service of process, may be necessary in actions
initiated by an order to show cause.
7
The terminological confusion mentioned previously derives in part from
the unusual procedure just described. The ‘‘petition’’ submitted to the court
for preliminary review is more accurately described as an application for
issuance of the writ. Indeed, General Statutes § 52-466, which governs the
litigation of the writ as a civil matter, though otherwise unhelpful in resolving
the particular procedural issue presently before this court, refers to an
‘‘application for a writ of habeas corpus’’ rather than a ‘‘petition.’’ The
confusion also may result from the fact that the ‘‘writ’’ sought by the applica-
tion, although called a ‘‘writ of habeas corpus,’’ functions essentially as a
writ of summons in that it commands the marshal to summon the respondent,
who has custody of the petitioner, to appear and show cause why the petition
should not be granted. Unless otherwise indicated, we use the term ‘‘writ’’
in this opinion to refer to the writ issued by the court to initiate the habeas
proceeding rather than the ultimate relief sought by the great writ, i.e., the
release of the prisoner from custody.
8
Ex debito justitiae means ‘‘[f]rom or as a debt of justice; in accordance
with the requirement of justice; of right; as a matter of right.’’ Black’s Law
Dictionary (11th Ed. 2019) p. 713.
9
Although the term ‘‘hearing’’ is used here, the author undoubtedly refers
to the judge’s preliminary review, conducted ex parte.
10
Use of the word ‘‘discretion’’ in this context should not be misunder-
stood. Historically, courts and commentators, in Connecticut and elsewhere,
sometimes referred to the court’s ‘‘discretion’’ to issue the writ as a means
of describing the preliminary review of the petition for defects apparent on
its face. In the absence of such a defect, the court is required to issue the
writ as of right. In his treatise on habeas corpus law and remedies, Judge
William F. Bailey gives the following explanation: ‘‘The rule is that a person
restrained of his liberty is entitled as a matter of right to the writ, upon
presentation to the proper officer or tribunal of his petition showing proper
ground therefor. The expression has been used that the officer or tribunal
has a discretion which he may exercise in the matter. With the exception
that the federal courts in cases of application to them to inquire into the
legality of the custody of a person held under state authority, where such
courts may . . . await the final action of the state court before issuing the
writ . . . the duty to issue the writ where there appears sufficient grounds
therefor, is absolute.’’ (Emphasis added; footnote omitted.) 1 W. Bailey, A
Treatise on the Law of Habeas Corpus and Special Remedies (1913) § 5, p. 13.
11
The rules of practice demonstrate a similar order of operations for
ordinary civil actions. The provisions in chapter 10, ‘‘Pleadings,’’ deal serially
with general rules for pleading, service of process, the plaintiff’s complaint,
motions to dismiss, requests to revise, motions to strike, the defendant’s
answer, subsequent pleadings, and amendments to pleadings. Although not
dispositive of our interpretation of the rules of practice, we see no reason
to read this ordering as inadvertent, either in the case of habeas proceedings
or ordinary civil actions.
12
The immediate significance of our holding is purely a matter of form
and may appear hypertechnical. Technical matters of form, however, will
sometimes have meaningful consequences, and it is important to employ
the correct terminology and procedures when disposing of a writ of
habeas corpus.