Jobe v. Commissioner of Correction ( 2020 )

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MOMODOU LAMIN JOBE v. COMMISSIONER
OF CORRECTION
(SC 20124)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The petitioner, who is not a United States citizen, filed a petition for a
writ of habeas corpus, challenging, inter alia, his conviction of illegal
possession of less than four ounces of marijuana. At some point after his
release from custody in connection with that conviction, the petitioner
traveled outside of the United States. When he attempted to return, he
was denied reentry to and ordered removed from the United States on
the basis of his conviction. At the time he filed his habeas petition, the
petitioner was in federal immigration detention pending deportation.
The habeas court, sua sponte, rendered judgment dismissing the petition,
concluding that it lacked jurisdiction to consider the merits of that
petition on the ground that the protections afforded in Padilla v. Ken-
tucky (559 U.S. 356), which was decided after the petitioner was con-
victed, did not apply retroactively to the petitioner’s case. Thereafter,
the petitioner, on the granting of certification, appealed to the Appellate
Court. After the petitioner filed his initial brief with that court, the
respondent, the Commissioner of Correction, filed an amended prelimi-
nary statement of the issues in which he raised, for the first time, as
an alternative ground for affirmance, the issue of whether the habeas
court had subject matter jurisdiction when the petitioner failed to allege
that he was in custody at the time he filed his habeas petition within
the meaning of the statute (§ 52-466) governing applications for a writ of
habeas corpus. In his initial brief to the Appellate Court, the respondent
conceded that the habeas court improperly dismissed the petition on
the basis of the nonretroactive application of Padilla but claimed that
the judgment of dismissal should be affirmed on the alternative ground
that the conviction challenged in the habeas petition had expired and
the collateral consequences of that conviction were insufficient to estab-
lish that the petitioner was in custody when he filed his petition. In his
reply brief, the petitioner addressed the custody issue and argued that,
although detention in a federal immigration facility as a result of an
expired state conviction is insufficient to establish that he was in custody
within the meaning of § 52-466 under this court’s precedent, the Appel-
late Court nonetheless should construe custody expansively to include
individuals, such as the petitioner, who are in federal immigration deten-
tion pending deportation as a consequence of an expired state convic-
tion. The Appellate Court affirmed the judgment of the habeas court on
the alternative ground advanced by the respondent, concluding that
the habeas court lacked jurisdiction because the petitioner was not in
custody when he filed his habeas petition, but declined to review the
petitioner’s argument that custody should be construed expansively,
citing the fact that he had raised that claim for the first time in his reply
brief. Thereafter, the petitioner, on the granting of certification, appealed
to this court. Held:
1. The Appellate Court improperly declined to review the petitioner’s argu-
ment that it should have construed custody expansively on the ground
that it was contained in his reply brief, this court having concluded that
the petitioner was not raising a new claim but, rather, merely was
responding at his first opportunity to the jurisdictional issue that the
respondent raised as an alternative ground for affirmance after the
petitioner already had filed his initial appellate brief, and the Appellate
Court was obligated to dispose of the issue of subject matter jurisdiction
once the respondent raised it; nonetheless, the Appellate Court’s refusal
to consider the petitioner’s argument was harmless because the issue
was properly before this court in the petitioner’s certified appeal and
the Appellate Court was bound by this court’s precedent construing
the custody requirement, which the petitioner conceded required the
Appellate Court to reject his request for an expansive construction
of custody.
2. The petitioner could not prevail on his claim that the habeas court had
subject matter jurisdiction over his habeas petition because the custody
requirement of § 52-466 was satisfied by his detention in a federal immi-
gration facility pending deportation as a result of his expired state
conviction: this court previously has rejected claims that the custody
requirement in § 52-466 be interpreted more expansively and concluded
that, in order to satisfy the custody requirement, a petitioner must be
in custody for the conviction being challenged when the habeas petition
is filed, and collateral consequences flowing from an expired conviction,
including deportation proceedings, are insufficient to render a petitioner
in custody within the meaning of § 52-466, and it was undisputed that
the petitioner was not in the custody of the respondent for the state
conviction he was challenging when he filed his petition; moreover, an
examination of the legislative history of a 2006 amendment to § 52-466
(P.A. 06-152, § 5) clearly indicated, contrary to the petitioner’s claim,
that that amendment was not a substantive modification to the statutory
custody requirement intended to overrule this court’s precedent but,
rather, was enacted as a technical amendment to court operations
through which the legislature intended to centralize in the judicial district
of Tolland the filing of habeas petitions brought by and on behalf of
inmates or prisoners claiming illegal confinement or a deprivation of
liberty, and any challenge to the legality of the petitioner’s federal immi-
gration detention could have been pursued, if at all, only by way of a
habeas petition in federal court directed against that detention.
Argued October 24, 2019—officially released February 18, 2020
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland and
tried to the court, Oliver, J.; judgment dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to the Appellate Court, Lavine,
Bright and Pellegrino, Js., which affirmed the judgment
of the habeas court; thereafter, the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, was Matthew C. Gedansky, state’s
attorney, for the appellee (respondent).
Temmy Ann Miller filed a brief for the Connecticut
Criminal Defense Lawyers Association as amicus
curiae.
Opinion
ECKER, J. The petitioner, Momodou Lamin Jobe,
appeals from the judgment of the Appellate Court
affirming the judgment of the habeas court, which dis-
missed his petition for a writ of habeas corpus for lack
of jurisdiction. On appeal, the petitioner contends that
the Appellate Court (1) improperly declined to review
his response, contained in his reply brief, to the alterna-
tive ground for affirmance advanced by the respondent,
the Commissioner of Correction, and (2) incorrectly
concluded that his federal immigration detention did
not satisfy the ‘‘custody’’ requirement of General Stat-
utes § 52-466 (a), as amended in 2006. See Public Acts
2006, No. 06-152, § 5 (P.A. 06-152). We agree with the
petitioner’s first claim but disagree with his second
claim and, therefore, affirm the judgment of the Appel-
late Court.
The record reveals the following undisputed facts
and procedural history. On September 10, 2009, the
petitioner, who is not a citizen of the United States,
was arrested and charged with illegal possession of less
than four ounces of marijuana in violation of General
Statutes (Rev. to 2009) § 21a-279 (c) and illegal sale of
a record or tape without identification marks in viola-
tion of General Statutes § 53-142c. The petitioner
pleaded guilty and was sentenced on January 5, 2010,
to a total effective sentence of eleven months of impris-
onment, execution suspended, and two years of condi-
tional discharge.
At some point after his release from custody, the
petitioner traveled outside of the United States. When
he returned, he was denied reentry and ordered
removed on July 13, 2016, on the basis of the 2010
possession of marijuana conviction. See Jobe v. Whi-
taker, 758 Fed. Appx. 144, 146 (2d Cir. 2018), petition
for cert. filed, U.S.L.W. (U.S. April 19, 2019)
(No. 18-1329). In August, 2016, the petitioner filed a pro
se petition for a writ of habeas corpus challenging his
2010 Connecticut conviction. In his petition, the peti-
tioner alleged that his guilty plea was involuntary
because his ‘‘lawyer told [him] to plead guilty’’ and
that his conviction was unconstitutional because he
received ineffective assistance of counsel. Specifically,
the petitioner averred that the ‘‘Vernon police arrested
[him] with less than [thirty] grams of marijuana and
when I went to see [an] immigration judge on July 13,
2016, they said that I had [four] ounces of marijuana
and I didn’t. When I pleaded [guilty] for possession of
marijuana, they did not tell me the amount of marijuana
I had. And I know for [a] fact that I had less than a[n]
ounce. Therefore, I am asking the court to please let
me withdraw my guilty plea.’’ The petitioner also filed
a request for the appointment of counsel and an applica-
tion for a waiver of fees, which the habeas court
granted.
On September 20, 2016, before counsel had entered
an appearance on behalf of either the petitioner or the
respondent, the habeas court sua sponte dismissed the
petition pursuant to Practice Book § 23-29 (1) on the
ground that ‘‘[t]he challenged conviction is a pre-Padilla
plea and sentencing, and the protections afforded in
Padilla v. Kentucky, [559 U.S. 356, 130 S. Ct. 1473, 176
L. Ed. 2d 284 (2010)] do not apply retroactively. Chaidez
v. [United States, 568 U.S. 342, 133 S. Ct. 1103, 185 L.
Ed. 2d 149 (2013)].’’ The petitioner filed a petition for
certification to appeal, which the habeas court granted.
On appeal to the Appellate Court, the petitioner
argued that the habeas court improperly dismissed his
petition because ‘‘the nonretroactivity of Padilla had
no bearing on the issue of whether the habeas court
had jurisdiction to entertain the . . . petition for a writ
of habeas corpus.’’ After the petitioner filed his initial
brief, the respondent filed an amended preliminary
statement of the issues in which the respondent raised,
for the first time, the following alternative ground for
affirmance of the habeas court’s judgment: ‘‘Whether
the habeas court had subject matter jurisdiction over
the petitioner’s petition for a writ of habeas corpus in
light of the fact that the petitioner did not plead facts
supporting a claim that, at the time he filed his habeas
petition, he was in custody [on] the conviction that his
habeas petition challenges.’’ In its brief, the respondent
agreed with the petitioner that the habeas court improp-
erly dismissed the petition on the basis of the nonretro-
active application of Padilla v. Kentucky but argued
that the judgment of dismissal should be affirmed on
the alternative ground that the conviction challenged
in the petition had expired and the collateral conse-
quences of that conviction were insufficient to satisfy
the jurisdictional custody requirement. The petitioner
filed a reply brief addressing the custody issue that had
just been raised by the respondent for the first time.
In his reply brief, the petitioner acknowledged that the
habeas court lacked jurisdiction over his petition
because, under current law, his federal immigration
detention was insufficient to establish that he was ‘‘in
custody, as that term is defined by . . . § 52-466,’’ but
he argued that the ‘‘court should adopt an expansive
definition of the word ‘custody’ that permits individuals
in the petitioner’s situation to pursue a petition for a
writ of habeas corpus.’’ At oral argument before the
Appellate Court, the petitioner’s counsel ‘‘conceded
that the [habeas] court, based on the face of the petition
. . . probably could have chosen to dismiss the peti-
tion’’ for lack of jurisdiction and that the Appellate
Court lacked the authority to overrule the binding prec-
edent of this court holding that the petitioner’s federal
immigration detention was insufficient to satisfy the
custody requirement of § 52-466, but he nonetheless
asked the Appellate Court to ‘‘include a footnote or a
mention of the fact that this issue was raised and that it
could not be addressed’’ due to that binding precedent.
The Appellate Court affirmed the judgment of the
habeas court on the alternative ground advanced by
the respondent, namely, that ‘‘[t]he petitioner, as his
counsel conceded, was not in custody pursuant to § 52-
466 (a) (1) at the time he filed his petition for a writ of
habeas corpus’’ and that ‘‘[t]he habeas court, therefore,
lacked jurisdiction to adjudicate the merits of the peti-
tion . . . .’’1 Jobe v. Commissioner of Correction, 181
Conn. App. 236, 239, 186 A.3d 1219 (2018). Although
the petitioner had asked the Appellate Court ‘‘to adopt
an expansive definition of the word custody’’ that
includes individuals in federal immigration detention
as a result of an expired state conviction, the Appellate
Court declined to review the petitioner’s argument
because it was ‘‘raised for the first time in a reply brief.’’
(Emphasis in original.) Id., 239 n.5. We subsequently
granted the petitioner’s petition for certification to
appeal, limited to determining (1) whether ‘‘the Appel-
late Court properly decline[d] to review the petitioner’s
claim that the definition of ‘custody’ in . . . § 52-466
should include individuals in the petitioner’s circum-
stances, when the first opportunity to raise that claim
was in the petitioner’s reply brief because the petitioner
had no notice that the respondent would raise an unpre-
served alternative ground to affirm the habeas court’s
judgment,’’ and (2) whether ‘‘§ 52-466 include[s] habeas
petitioners whose sentences have been fully served,
who are in the custody of federal immigration authori-
ties, and who could not have been aware of the need
to challenge the constitutionality of their convictions
until after serving their sentences . . . .’’ Jobe v. Com-
missioner of Correction, 329 Conn. 906, 185 A.3d 594
(2018).
I
We first address whether the Appellate Court prop-
erly declined to review the petitioner’s argument, made
for the first time in his reply brief, that the custody
requirement of § 52-466 should be construed expan-
sively to include individuals, like the petitioner, who are
in federal immigration detention pending deportation
as a consequence of an expired state conviction. ‘‘It is
well settled that [o]ur case law and rules of practice
generally limit [an appellate] court’s review to issues
that are distinctly raised at trial,’’ and ‘‘[o]nly in [the]
most exceptional circumstances can and will [an appel-
late] court consider a claim, constitutional or otherwise,
that has not been raised and decided in the trial court.’’
(Internal quotation marks omitted.) Blumberg Associ-
ates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 142, 84 A.3d 840 (2014). One of
those ‘‘exceptional circumstances’’ is a claim that the
trial court lacked subject matter jurisdiction, ‘‘which
the reviewing court not only can but is obligated to
exercise its power to review . . . .’’ Id., 149. ‘‘The sub-
ject matter jurisdiction requirement may not be waived
by any party, and also may be raised by a party, or by
the court sua sponte, at any stage of the proceedings,
including on appeal.’’ (Internal quotation marks omit-
ted.) Ajadi v. Commissioner of Correction, 280 Conn.
514, 533, 911 A.2d 712 (2006). ‘‘[T]he question of subject
matter jurisdiction is a question of law . . . and, once
raised, either by a party or by the court itself, the ques-
tion must be answered before the court may decide the
case. . . . We have long held that because [a] determi-
nation regarding a trial court’s subject matter jurisdic-
tion is a question of law, our review is plenary.’’ (Internal
quotation marks omitted.) State v. Richardson, 291
Conn. 426, 429, 969 A.2d 166 (2009).
‘‘[T]he custody requirement in § 52-466 is jurisdic-
tional’’; Lebron v. Commissioner of Correction, 274
Conn. 507, 526, 876 A.2d 1178 (2005), overruled in part
on other grounds by State v. Elson, 311 Conn. 726, 91
A.3d 862 (2014); and, therefore, once the issue of the
petitioner’s custody was raised by the respondent in
the present case, the Appellate Court was ‘‘obligated
to determine whether the habeas court lacked subject
matter jurisdiction.’’ Ajadi v. Commissioner of Correc-
tion, supra, 280 Conn. 535. Although the jurisdictional
issue properly was before the Appellate Court, the peti-
tioner was not afforded an opportunity to address this
issue until he filed his reply brief because it was raised
for the first time in the respondent’s amended prelimi-
nary statement of the issues and initial appellee’s brief,
both of which were filed after the petitioner’s initial
brief. Thus, at the time the petitioner’s initial brief was
filed, he did not have notice of the alleged jurisdictional
defect or an opportunity to articulate an argument as
to how his federal immigration detention satisfied the
jurisdictional custody requirement. Because the peti-
tioner was not raising a new claim2 but merely
responding at the first opportunity to the respondent’s
newly raised alternative ground for affirmance, we con-
clude that the Appellate Court improperly declined to
address the petitioner’s argument on the ground that
it was contained in his reply brief. See Curry v. Burns,
225 Conn. 782, 789 n.2, 626 A.2d 719 (1993) (addressing
argument raised for first time in reply brief because it
was first opportunity to join argument raised by amicus
curiae); 37 Huntington Street, H, LLC v. Hartford, 62
Conn. App. 586, 597 n.17, 772 A.2d 633 (addressing
argument ‘‘first presented in a reply brief,’’ even though
such arguments are ‘‘disfavor[ed],’’ because ‘‘the plain-
tiff had no earlier opportunity to respond to issues
raised in briefs filed by amici curiae’’), cert. denied,
256 Conn. 914, 772 A.2d 1127 (2001); see also State v.
Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997) (‘‘the
function of the appellant’s reply brief is to respond to
the arguments and authority presented in the appellee’s
brief’’ (internal quotation marks omitted)).
Nonetheless, we perceive no harm in the Appellate
Court’s failure to address the merits of the petitioner’s
argument because, as the petitioner conceded before
the Appellate Court, that court was bound by our prece-
dent in Lebron v. Commissioner of Correction, supra,
274 Conn. 530, holding that ‘‘a petitioner whose convic-
tion has expired fully prior to the filing of a habeas
petition is not in ‘custody’ on that conviction within the
meaning of § 52-466, despite the alleged existence of
collateral consequences flowing from that conviction.’’
Thus, the Appellate Court was required by binding prec-
edent to reject the petitioner’s request for an expansive
definition of the term custody within the meaning of
§ 52-466. See Stuart v. Stuart, 297 Conn. 26, 45–46,
996 A.2d 259 (2010) (‘‘it is manifest to our hierarchical
judicial system that this court has the final say on mat-
ters of Connecticut law and that the Appellate Court
and Superior Court are bound by our precedent’’); State
v. Montanez, 185 Conn. App. 589, 605 n.5, 197 A.3d
959 (2018) (‘‘[i]t is axiomatic that, [a]s an intermediate
appellate court, [the Appellate Court is] bound by
Supreme Court precedent and [is] unable to modify it’’
(internal quotation marks omitted)), cert. denied, 332
Conn. 907, 209 A.3d 643 (2019). Indeed, the petitioner
explicitly acknowledged the futility of his argument in
the Appellate Court, which explains why he asked that
court simply to ‘‘include a footnote or a mention of the
fact that this issue was raised and that it could not be
addressed.’’ That is exactly what the Appellate Court
did, albeit for the wrong reason.
The record reflects that the petitioner raised his juris-
dictional custody argument at the first opportunity
before the Appellate Court, and, therefore, the issue
properly is before this court in this certified appeal.
See State v. Fauci, 282 Conn. 23, 26 n.1, 917 A.2d 978
(2007) (recognizing that, in certified appeals, appellants
must raise their claims ‘‘before the Appellate Court or
in the petition for certification to appeal’’); see also
Ulbrich v. Groth, 310 Conn. 375, 428, 78 A.3d 76 (2013)
(futility of asking lower court ‘‘to overrule a decision
of this court’’ does not ‘‘automatically [excuse] the fail-
ure to preserve the claim’’).
II
The petitioner contends that his federal immigration
detention is sufficient to satisfy the custody require-
ment of § 52-466 because the sole reason for his deten-
tion was his expired state conviction, and he had no
reason to know that his state conviction was unconstitu-
tional until after it had expired.3 The petitioner acknowl-
edges that, under Lebron v. Commissioner of Correc-
tion, supra, 274 Conn. 507, and its progeny, a habeas
petitioner whose sentence completely has expired is
not in custody within the meaning of § 52-466, despite
the existence of collateral consequences like deporta-
tion. The petitioner argues, however, that a 2006 amend-
ment to § 52-466 plainly overruled this precedent and
made it easier to satisfy the statutory custody require-
ment by permitting any inmate or prisoner confined in
any ‘‘correctional facility as a result of a conviction of
a crime’’ to file a habeas petition. See P.A. 06-152, § 5,
codified at General Statutes § 52-466 (a). The respon-
dent counters that the purpose of the 2006 amendment
was not to alter the definition of custody within the
meaning of § 52-466 but, rather, to ‘‘centralize the filing
of habeas petitions by incarcerated petitioners’’ in the
judicial district of Tolland. We agree with the respon-
dent.
As we previously explained, ‘‘because [a] determina-
tion regarding a trial court’s subject matter jurisdiction
is a question of law, our review is plenary.’’ (Internal
quotation marks omitted.) Ajadi v. Commissioner of
Correction, supra, 280 Conn. 532. Additionally, ‘‘[i]ssues
of statutory construction raise questions of law, over
which we exercise plenary review. . . . The process
of statutory interpretation involves the determination
of the meaning of the statutory language as applied to
the facts of the case, including the question of whether
the language does so apply. . . . When construing a
statute, [o]ur fundamental objective is to ascertain and
give effect to the apparent intent of the legislature. . . .
In other words, we seek to determine, in a reasoned
manner, the meaning of the statutory language as
applied to the facts of [the] case, including the question
of whether the language actually does apply. . . . In
seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered.’’ (Internal quotation marks omitted.)
Boisvert v. Gavis, 332 Conn. 115, 141–42, 210 A.3d 1
(2019).
We begin our analysis with the language of § 52-466
(a), which provides: ‘‘(1) An application for a writ of
habeas corpus, other than an application pursuant to
subdivision (2) of this subsection, shall be made to the
superior court, or to a judge thereof, for the judicial
district in which the person whose custody is in ques-
tion is claimed to be illegally confined or deprived of
such person’s liberty.
‘‘(2) An application for a writ of habeas corpus claim-
ing illegal confinement or deprivation of liberty, made
by or on behalf of an inmate or prisoner confined in a
correctional facility as a result of a conviction of a
crime, shall be made to the superior court, or to a judge
thereof, for the judicial district of Tolland.’’
The present appeal requires us to construe subdivi-
sion (2) of § 52-466 (a), which was enacted in 2006 as
part of P.A. 06-152, entitled ‘‘An Act Concerning Court
Operations.’’ P.A. 06-152, § 5. Public Act 06-152 amended
various statutes that impact the function and operation
of the courts of this state, such as General Statutes § 51-
36, which governs the retention, reproduction, disposal,
and transfer of court records; see P.A. 06-152, § 3; and
General Statutes § 46a-70a, which requires the Judicial
Branch to develop and implement an equal employment
opportunities plan pursuant to federal law. See P.A. 06-
152, § 11. As relevant to this appeal, § 5 of P.A. 06-152
changed the place of filing for habeas petitions ‘‘made
by or on behalf of an inmate or prisoner confined in a
correctional facility as a result of a conviction of a crime’’
from the judicial district of the inmate’s confinement to
the judicial district of Tolland.
The issue presented by this appeal is whether this
statutory amendment was intended to overrule this
court’s precedent construing § 52-466 to require, as a
matter of subject matter jurisdiction, ‘‘a petitioner [to]
be in custody on the conviction under attack at the
time the habeas petition is filed . . . .’’ McCarthy v.
Commissioner of Correction, 274 Conn. 557, 562, 877
A.2d 758 (2005). Because the plain language of § 52-466
is ambiguous with respect to whether the statutory
amendment was intended to expand the definition of
custody to include individuals who are civilly detained
in a federal immigration detention facility pending
deportation,4 as the petitioner contends, or whether it
was intended to centralize the filing of inmate or pris-
oner petitions in the judicial district of Tolland, as the
respondent contends, we turn to extratextual sources
to aid in our interpretation of the statute.
We begin our analysis with the history and purpose
of the writ of habeas corpus. ‘‘[F]rom the time the writ
originated in seventeenth century England, its central
purpose has been to test the legality of detention.’’
(Internal quotation marks omitted.) Lebron v. Commis-
sioner of Correction, supra, 274 Conn. 523. The history
of the writ in the United States, both in federal court and
in our own state courts, reveals that ‘‘[h]abeas corpus
provides a special and extraordinary legal remedy for
illegal detention. . . . The deprivation of legal rights
is essential before the writ may be issued. . . . Ques-
tions which do not concern the lawfulness of the deten-
tion cannot properly be reviewed on habeas corpus.
. . . When a habeas petition is properly before a court,
the remedies it may award depend on the constitutional
rights being vindicated. . . . Further, any remedy must
be commensurate with the scope of the constitutional
violations that have been established.’’ (Internal quota-
tion marks omitted.) Id., 525; see also Summerville v.
Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994) (‘‘[t]he
principal purpose of the writ of habeas corpus is to
serve as a bulwark against convictions that violate fun-
damental fairness’’ (internal quotation marks omitted)).
‘‘Although the writ of habeas corpus has a long com-
mon-law history, the legislature has enacted numerous
statutes shaping its use, such as . . . § 52-466, which
governs the litigation of the writ as a civil matter.’’
(Footnote omitted.) Kaddah v. Commissioner of Cor-
rection, 324 Conn. 548, 565–66, 153 A.3d 1233 (2017).
In Lebron, we considered whether, under the version
of § 52-466 in effect prior to the passage of P.A. 06-152,
§ 5, the statutory requirement that applications for writs
of habeas corpus be filed in ‘‘the [S]uperior [C]ourt or
[with] 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 his liberty’’ was a
prerequisite to the court’s exercise of subject matter
jurisdiction or, instead, a venue provision designating
the place of filing. (Emphasis in original; internal quota-
tion marks omitted.) Lebron v. Commissioner of Cor-
rection, supra, 274 Conn. 523. After reviewing the his-
tory and purpose of the common-law writ of habeas
corpus, we determined that ‘‘the custody requirement
in [General Statutes (Rev. to 2001)] § 52-466 is jurisdic-
tional,’’ and, therefore, ‘‘the habeas court lacks the
power to act on a habeas petition absent the petitioner’s
allegedly unlawful custody.’’ Id., 526.
Having determined that the custody requirement in
General Statutes (Rev. to 2001) § 52-466 was jurisdic-
tional, we proceeded to consider whether the collateral
consequences of an expired conviction are sufficient
to render a habeas petitioner in custody within the
meaning of the statute. The petitioner, Luis A. Lebron,
filed a habeas petition challenging an expired convic-
tion, which he claimed was being used to enhance his
current sentence and his inmate security classification.
Id., 510. We concluded that Lebron was not in custody
on his expired conviction, ‘‘despite the alleged exis-
tence of collateral consequences flowing from that con-
viction’’; id., 530; because the custody requirement ‘‘has
never been extended to the situation where a habeas
petitioner suffers no present restraint from a convic-
tion.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 531. Lebron’s alleged ‘‘loss of liberty
[stemmed] solely from his current conviction’’ and,
therefore, was insufficient to ‘‘[render] him in custody’’
within the meaning of General Statutes (Rev. to 2001)
§ 52-466. (Emphasis added.) Id. To construe the statute
otherwise ‘‘would mean that a petitioner whose sen-
tence has completely expired could nonetheless chal-
lenge the conviction for which it was imposed at any
time through a state petition for habeas corpus and
would read the in custody requirement out of the stat-
ute.’’ (Internal quotation marks omitted.) Id.; see also
McCarthy v. Commissioner of Correction, supra, 274
Conn. 563 (holding that petitioner was not in custody
on expired state conviction, even though expired con-
viction had been used to enhance petitioner’s current
federal sentence, because ‘‘his loss of liberty stems
solely from his current federal conviction’’).
One year later, in Ajadi v. Commissioner of Correc-
tion, supra, 280 Conn. 517–19, we considered whether
the petitioner, Rafiu Abimbola Ajadi, who was paroled
directly into the physical custody of federal immigration
officials and detained by those officials pending depor-
tation as a collateral consequence of his expired state
convictions, was in custody on those convictions under
General Statutes (Rev. to 2001) § 52-466. Although
Ajadi’s deportation proceedings were a ‘‘severe’’ and
‘‘virtually automatic’’ collateral consequence of his
expired state convictions, we reasoned that, pursuant
to Lebron, ‘‘the collateral consequences of [Ajadi’s]
expired convictions . . . [were] insufficient to render
[Ajadi] in custody on those convictions and, therefore,
to invoke the jurisdiction of the habeas court.’’ Id., 539
n.28, 541. Accordingly, we held that the ‘‘the habeas
court lacked subject matter jurisdiction over [Ajadi’s]
habeas petition because [he] was not in custody on his
expired . . . convictions when his petition was filed.’’
Id., 548.
In Richardson v. Commissioner of Correction, 298
Conn. 690, 695, 6 A.3d 52 (2010), we rejected the claim
of the petitioner, Kenneth Richardson, that ‘‘the custody
requirement embodied in § 52-466 is satisfied by con-
finement alone’’ such that ‘‘custody or confinement
under a specific sentence is not required.’’5 At the time
he filed his petition for a writ of habeas corpus, Richard-
son was serving a mandatory term of life imprisonment
for a federal drug offense pursuant to a sentence
enhancement based on his expired state conviction. Id.,
692–93. We held that Richardson was not in custody
on his expired state conviction because (1) ‘‘in order
to satisfy the custody requirement of § 52-466, the ‘peti-
tioner [must] be in custody on the conviction under
attack at the time the habeas petition is filed,’ ’’ and
(2) ‘‘collateral consequences flowing from an expired
conviction do not render a petitioner in ‘custody’ under
§ 52-466; rather such a claim of confinement or custody
and any accompanying ‘loss of liberty [stem] solely from
[a petitioner’s] current conviction.’ ’’ (Emphasis in origi-
nal.) Id., 698. We therefore ‘‘decline[d] [Richardson’s]
invitation to stretch the language of § 52-466 so far
that custody qua custody satisfie[s] the jurisdictional
requirement [regardless of any] reference to the [sen-
tence] then being served.’’ (Internal quotation marks
omitted.) Id., 699.
The foregoing case law reflects both that this court
consistently has construed the custody requirement in
§ 52-466 to require ‘‘a petitioner [to] be in custody on
the conviction under attack at the time the habeas peti-
tion is filed,’’6 and ‘‘that the collateral consequences
of an expired conviction,’’ such as deportation, ‘‘are
insufficient to render a petitioner in ‘custody’ within
the meaning of the statute.’’ McCarthy v. Commissioner
of Correction, supra, 274 Conn. 562; see also Oliphant
v. Commissioner of Correction, 274 Conn. 563, 581,
877 A.2d 761 (2005) (habeas court lacked jurisdiction
over habeas petition because petitioner was not in cus-
tody on conviction under attack at time petition was
filed); Guerra v. State, 150 Conn. App. 68, 78, 89 A.3d
1028 (same), cert. denied, 314 Conn. 903, 99 A.3d 1168
(2014); Fernandez v. Commissioner of Correction, 139
Conn. App. 173, 178–82, 55 A.3d 588 (2012) (same),
cert. granted, 307 Conn. 947, 60 A.3d 960 (2013) (appeal
withdrawn May 28, 2013); Parker v. Commissioner of
Correction, 117 Conn. App. 727, 730–32, 980 A.2d 930
(same), cert. denied, 294 Conn. 917, 983 A.2d 851 (2009);
Young v. Commissioner of Correction, 104 Conn. App.
188, 194, 932 A.2d 467 (2007) (same), cert. denied, 285
Conn. 907, 942 A.2d 416 (2008).
The petitioner contends that the 2006 amendment to
§ 52-466 (a) was intended to overrule this case law and
expand the jurisdiction of the habeas court to include
petitions for writs of habeas corpus filed by individuals,
like the petitioner, ‘‘whose sentences have been fully
served, [who] are in the custody of federal immigration
authorities, and [who] could not have been aware of
the need to challenge the constitutionality of their con-
victions until after serving their sentences.’’ The legisla-
tive history of P.A. 06-152 belies the petitioner’s con-
tention. The express intent of the 2006 amendment was
to implement a ‘‘fairly technical series of amendments
to core [judicial] operations.’’ 49 S. Proc., Pt. 8, 2006
Sess., p. 2438, remarks of Senator Andrew J. McDonald.
Deborah Fuller, a representative of the External Affairs
Division of the Judicial Branch, confirmed in her written
testimony submitted to the Judiciary Committee that
the purpose of the provision at issue was technical in
nature, explaining that it ‘‘streamlines the consolidation
of those habeas cases where the claim is illegal confine-
ment or deprivation of liberty, resulting from a criminal
conviction, by requiring that these cases be filed in the
Tolland [j]udicial [d]istrict, where they are currently
being heard.’’ Conn. Joint Standing Committee Hear-
ings, Judiciary, Pt. 2, 2006 Sess., p. 359.
The legislative record reflects that a prior version
of the 2006 amendment was submitted to the General
Assembly in 2005, prior to the release of this court’s
decisions construing the custody requirement in
Lebron, McCarthy, Ajadi, and Richardson. See Raised
Bill No. 1263, January, 2005 Sess., § 7. The purpose of
the bill was to ‘‘allow the Judicial Branch to operate
more efficiently and effectively’’ by ‘‘requiring that all
habeas petitions be filed in the [j]udicial [d]istrict of
Tolland . . . .’’ Conn. Joint Standing Committee Hear-
ings, Judiciary, Pt. 12, 2005 Sess., p. 3569, written testi-
mony of Fuller. Concern was expressed, however, that
the language of the bill would have the unintended
consequence of ‘‘delet[ing] the right to other types of
habeases.’’7 Conn. Joint Standing Committee Hearings,
Judiciary, Pt. 2, 2006 Sess., p. 359, written testimony of
Fuller; see also Conn. Joint Standing Committee Hear-
ings, Judiciary, Pt. 12, 2005 Sess., pp. 3566–67, written
testimony of Deborah Del Prete Sullivan, Legal Counsel,
Office of the Chief Public Defender (objecting to
breadth of certain language in bill). The 2005 amend-
ment to § 52-466 did not make it out of the Judiciary
Committee but was reintroduced a year later in the
2006 amendment with language intended to clarify that
the consolidation of prisoner petitions in the judicial
district of Tolland was not intended to eliminate the
right of habeas corpus in nonprisoner cases.
On the basis of the foregoing, we conclude that the
2006 amendment did not expand the definition of cus-
tody and overrule this court’s precedent holding that
‘‘a petitioner whose conviction has expired fully prior
to the filing of a habeas petition is not in ‘custody’ on
that conviction within the meaning of § 52-466, despite
the alleged existence of collateral consequences flow-
ing from that conviction.’’ Lebron v. Commissioner of
Correction, supra, 274 Conn. 530. Instead, the legislative
history of the 2006 amendment shows that the purpose
of subdivision (2) of § 52-466 (a) was to consolidate
and centralize the filing of prisoner and inmate habeas
petitions in the judicial district of Tolland in order to
better allow for the efficient and effective disposition
of such petitions. Because the 2006 amendment did not
change the scope of the habeas court’s jurisdiction or
the statutory custody requirement, and it is undisputed
that the state conviction challenged in the petitioner’s
habeas petition fully had expired when the petition
was filed, we conclude that the habeas court properly
dismissed the petition for lack of jurisdiction pursuant
to Practice Book § 23-29 (1).8
At the time he filed his habeas petition, the petitioner
was in federal immigration detention as a result of fed-
eral immigration law; see footnote 3 of this opinion;
and, therefore, he ‘‘[could] pursue his claim, if at all,
only by way of a [federal] petition for a writ of habeas
corpus attacking his current federal’’ detention. McCar-
thy v. Commissioner of Correction, supra, 274 Conn.
563; see also Ajadi v. Commissioner of Correction,
supra, 280 Conn. 547 n.32 (noting that a ‘‘petitioner
cannot challenge . . . federal custody in the courts of
this state under § 52-466’’). The petitioner points out,
however, that federal law affords him no relief because
the United States Circuit Courts of Appeals uniformly
‘‘have determined that one held in immigration deten-
tion is not in custody for the purpose of challenging a
state conviction under [28 U.S.C.] § 2254,’’ reasoning,
as we did in Ajadi, that ‘‘[r]emoval proceedings are at
best a collateral consequence of conviction,’’ and they
‘‘are not themselves sufficient to render an individual
in custody for the purpose[s] of a habeas attack upon
it.’’ (Internal quotation marks omitted.) Ogunwomoju
v. United States, 512 F.3d 69, 75 (2d Cir. 2008). In light
of the ‘‘severe’’ and ‘‘virtually automatic’’ collateral con-
sequences of a criminal conviction under federal immi-
gration law; Ajadi v. Commissioner of Correction,
supra, 280 Conn. 539 n.28, 541; the petitioner points
out that some states have expanded the definition of
custody in their habeas statutes, either by judicial con-
struction or legislative amendment, to include federal
immigration detention. See, e.g., Cal. Penal Code
§ 1473.7 (a) and (b) (2) (A) (Deering Supp. 2019)
(allowing ‘‘[a] person who is no longer in criminal cus-
tody [to] file a motion to vacate a conviction or sen-
tence’’ if, among other things, ‘‘[t]he moving party
receives a notice to appear in immigration court or
other notice from immigration authorities that asserts
the conviction or sentence as a basis for removal or
the denial of an application for an immigration benefit,
lawful status, or naturalization’’); Me. Rev. Stat. Ann. tit.
15, § 2124 (3) (E) (2016) (providing that postconviction
proceeding may be brought by individual suffering
‘‘[p]resent restraint or impediment resulting indirectly
from the challenged criminal judgment of [Maine],’’
including from ‘‘[a] criminal judgment in [Maine] pursu-
ant to a plea of guilty or nolo contendere accepted by
a trial court on or after March 31, 2010 by a represented
defendant who is not a United States citizen and who
under federal immigration law, as a consequence of
the particular plea, is subject to a pending deportation
proceeding’’); Parris v. State, 232 Ga. 687, 690, 208
S.E.2d 493 (1974) (holding that collateral consequences
of expired conviction are sufficient to satisfy custody
requirement of Georgia’s habeas statute); Ex parte De
Los Reyes, 350 S.W.3d 723, 728 (Tex. App. 2011) (holding
that petitioner in federal immigration detention was in
custody on expired state conviction because petitioner
did not seek release from federal custody but, rather,
‘‘reversal of his state court conviction and a new trial’’),
rev’d on other grounds, 392 S.W.3d 675 (Tex. Crim. App.
2013); Le v. State, 300 S.W.3d 324, 326–27 (Tex. App.
2009) (holding that collateral consequences flowing
from expired state conviction were sufficient to satisfy
custody requirement of Texas’ habeas statute); In re
Stewart, 140 Vt. 351, 359–60, 438 A.2d 1106 (1981)
(rejecting ‘‘a narrow construction of ‘in custody’ ’’ and
holding that ‘‘a person is ‘in custody’ ’’ under Vermont’s
habeas statute ‘‘if he suffers a significant restraint on
personal liberty as a direct result of the challenged
Vermont conviction’’). The petitioner and the amicus
curiae, the Connecticut Criminal Defense Lawyers
Association, urge this court to follow the lead of these
states and adopt an expansive definition of the term
custody for purposes of § 52-466.
We acknowledge that individuals in federal immigra-
tion detention facing deportation as a consequence of
an expired Connecticut conviction are unable under
existing law to challenge the constitutionality of that
conviction in either a federal or state forum, despite
the existence of grave and life altering collateral conse-
quences. The custody requirement in § 52-466 was not
changed by the 2006 amendment, however, and our
case law construing the statute and the scope of the
habeas court’s jurisdiction remains unaffected by the
amendment.9 At this point in time, the question of
whether to expand the custody requirement in § 52-466
to include individuals in federal immigration detention
pending deportation as a result of an allegedly unconsti-
tutional expired state conviction is one of public policy,
and, ‘‘[i]n areas where the legislature has spoken. . .
the primary responsibility for formulating public policy
must remain with the legislature.’’ State v. Whiteman,
204 Conn. 98, 103, 526 A.2d 869 (1987); see also Burn-
ham v. Administrator, 184 Conn. 317, 325, 439 A.2d
1008 (1981) (emphasizing ‘‘[t]he wisdom of deferring
questions of public policy to the legislature’’ in order
to avoid ‘‘the problems that judicial intervention would
create’’). This means that it is up to the legislature,
not the courts, to determine whether the scope of the
custody requirement in § 52-466 should be expanded in
light of the draconian consequences that a state convic-
tion triggers under federal immigration law.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The Appellate Court noted that, ‘‘[d]uring oral argument, counsel for the
petitioner acknowledged that the only way the petitioner could have been
in custody at the time that he filed his petition was if a warrant had been
issued for violation of his conditional discharge,’’ and, in the absence of
‘‘such a warrant, the habeas court would not have subject matter jurisdiction
over his petition.’’ Jobe v. Commissioner of Correction, 181 Conn. App. 236,
238, 186 A.3d 1219 (2018). ‘‘Following oral argument, counsel for the parties
signed and submitted a letter to the court stating that they had searched
relevant bases of information and found no evidence that a warrant had
been issued for the petitioner for violation of his conditional discharge.’’
Id., 239. Therefore, it was undisputed that the petitioner was not in custody
under § 52-466 in the absence of the adoption of a new and expanded
definition of ‘‘the word custody.’’ (Emphasis in original.) Id., 239 n.5.
2
A claim is an entirely new legal issue, whereas, ‘‘[g]enerally speaking,
an argument is a point or line of reasoning made in support of’’ or in
opposition to ‘‘a particular claim.’’ (Internal quotation marks omitted.)
Michael T. v. Commissioner of Correction, 319 Conn. 623, 635 n.7, 126 A.3d
558 (2015), quoting State v. Fernando A., 294 Conn. 1, 116 n.32, 981 A.2d
427 (2009) (Palmer, J., dissenting in part). Our rules of preservation apply
to claims, but they do not apply to legal arguments, and, therefore, ‘‘[w]e
may . . . review legal arguments that differ from those raised’’ below ‘‘if
they are subsumed within or intertwined with arguments related to the legal
claim’’ before the court. (Internal quotation marks omitted.) Michael T. v.
Commissioner of Correction, supra, 635 n.7. In the present case, the claim
raised by the respondent was that the petitioner was not in custody within
the meaning of § 52-466; in response to this claim, the petitioner proffered
an argument that he was in custody under an expansive definition of that
term. For this reason, we find no merit in the respondent’s contention that
the petitioner raised ‘‘a wholly new claim’’ in his reply brief.
3
After filing his petition, the petitioner was deported to his native country
of Gambia and, therefore, no longer is in the custody of federal immigration
authorities. At oral argument before this court, we questioned whether the
appeal was moot in light of the petitioner’s subsequent deportation. See
State v. Aquino, 279 Conn. 293, 298, 901 A.2d 1194 (2006) (dismissing appeal
as moot because ‘‘[t]here is no evidence in the record as to the reason for
[the petitioner’s] deportation,’’ and, ‘‘[i]f it was not the result of his guilty
plea alone, then this court can grant no practical relief’’). The petitioner’s
counsel argued that the appeal is not moot because this court can afford
the petitioner practical relief in that the reversal of his expired state convic-
very least, apply for readmission. The record reflects that the petitioner was
denied reentry to the United States and deported as a consequence of his
conviction of ‘‘a single drug offense involving a small amount of marijuana’’
pursuant to the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), 8 U.S.C. § 1101 et seq. Jobe v. Whitaker, supra, 758 Fed.
Appx. 146. Because ‘‘the record establishes the reason for the [petitioner’s]
deportation,’’ and ‘‘there is a reasonable possibility of prejudicial collateral
consequences’’ from the expired state conviction, namely, the denial of
readmission to the United States under the IIRIRA, we conclude that the
appeal is not moot. State v. Jerzy G., 326 Conn. 206, 223, 162 A.3d 692
(2017); see also St. Juste v. Commissioner of Correction, 328 Conn. 198,
218, 177 A.3d 1144 (2018) (holding that appeal from denial of petition for writ
of habeas corpus was not moot, despite petitioner’s subsequent deportation,
because challenged conviction gave ‘‘rise to a reasonable possibility of
prejudicial collateral consequences—namely, his deportation and a barrier
to reentry’’).
4
See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690, 121 S. Ct. 2491, 150 L.
Ed. 2d 653 (2001) (recognizing that federal immigration detention pending
deportation generally is ‘‘civil, not criminal’’ and, therefore, ‘‘nonpunitive in
purpose and effect’’).
5
Although the habeas petition at issue in Richardson was filed after the
effective date of the 2006 amendment to § 52-466, Richardson did not rely
on the amendment in support of his jurisdictional argument, and we therefore
did not consider what impact, if any, the 2006 amendment has on the
jurisdiction of the habeas court.
6
We have recognized a ‘‘limited exception’’ to the custody requirement
when a petitioner is challenging an expired sentence imposed consecutive
to the petitioner’s current sentence because consecutive sentences are
viewed ‘‘as a ‘continuous stream’ of custody for purposes of the habeas
court’s subject matter jurisdiction.’’ Oliphant v. Commissioner of Correc-
tion, 274 Conn. 563, 573, 877 A.2d 761 (2005), quoting Garlotte v. Fordice,
515 U.S. 39, 41, 115 S. Ct. 1948, 132 L. Ed. 2d 36 (1995). The petitioner in
the present case does not allege and cannot establish that he was subject
to a continuous stream of custody. See Ajadi v. Commissioner of Correction,
supra, 280 Conn. 543 (rejecting claim that ‘‘a criminal conviction followed
by the commencement of deportation proceedings, like the imposition of
consecutive sentences, should be treated as a continuous stream of
custody’’).
7
Section 7 of Raised Bill No. 1263 proposed repealing subsection (a) of
General Statutes (Rev. to 2005) § 52-466 and substituting the following in
its place: ‘‘(a) An application for a writ of habeas corpus made by or on
behalf of a person in custody who claims to be illegally confined or deprived
of his liberty 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 his liberty, provided any
application made by or on behalf of a person confined in the Connecticut
Correctional Institution, Enfield-Medium or the Carl Robinson Correctional
Institution, Enfield, shall be made to the superior court or a judge thereof
for the judicial district] of Tolland.’’ Language that was proposed to be
amended is indicated by italics, and language that was proposed to be
deleted is indicated by brackets.
8
We recognize that, in Gilchrist v. Commissioner of Correction, 334
Conn. 548, A.3d (2020), we recently held that, prior to the issuance
of the writ and service of process, a lack of jurisdiction apparent on the
face of a habeas petition should result in an order declining to issue the
writ under Practice Book § 23-24 (a) (1) rather than an order of dismissal
under Practice Book § 23-29 (1). See id., 562–63. Although it appears that
the petition at issue in the present case was dismissed by the habeas court
under Practice Book § 23-29 (1) prior to the issuance of the writ or service
of process, contrary to Gilchrist, the petitioner does not challenge the
dismissal of his petition on this procedural ground, and, therefore, we do
not address the issue. See, e.g., State v. Connor, 321 Conn. 350, 362, 138
A.3d 265 (2016) (‘‘[o]ur appellate courts generally do not consider issues
that were not raised by the parties’’).
9
The petitioner’s claim on appeal is predicated entirely on the 2006 amend-
ment to § 52-466; the petitioner does not otherwise contend that our case
law construing the statutory custody requirement wrongly was decided and
should be overruled. The amicus curiae, by contrast, suggests that our
holding in Ajadi no longer is good law due to, among other reasons, Padilla
v. Kentucky, supra, 559 U.S. 366, in which the United States Supreme Court
determined that ‘‘[d]eportation as a consequence of a criminal conviction
is, because of its close connection to the criminal process, uniquely difficult
to classify as either a direct or a collateral consequence.’’ We decline to
address this argument because it was not raised by the petitioner. See, e.g.,
Rockstone Capital, LLC v. Sanzo, 332 Conn. 306, 324 n.7, 210 A.3d 554
(2019) (declining to ‘‘consider the other arguments advanced by the amicus
because they were not raised by the parties’’).