Kobza v. Commissioner of Correction ( 2021 )

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ANDREW T. KOBZA v. COMMISSIONER
OF CORRECTION
(AC 43396)
Bright, C. J., and Moll and Young, Js.
Syllabus
The petitioner, who had been convicted on a plea of guilty to the crime of
felony murder, sought a writ of habeas corpus, claiming that his sentence
was illegal because the Department of Correction improperly failed to
calculate certain job credits that amounted to a reduction of sixty-three
days in his sentence. The petitioner alleged that he had had a seven day
job that allowed him to earn one day off his sentence for every week
he worked while he was incarcerated in Connecticut but that the sixty-
three days in sentence reduction he claimed to have earned were taken
away from him when he was transferred to a correctional facility in
Virginia. The habeas court, without prior notice to the petitioner or a
hearing, sua sponte rendered judgment dismissing his habeas petition
pursuant to the applicable rule of practice (§ 23-29), concluding that
the court lacked jurisdiction because there was no cognizable liberty
interest in prison jobs or credits that have not yet been applied to a
sentence. The court thereafter denied the petitioner certification to
appeal, and the petitioner appealed to this court. Held:
1. The habeas court abused its discretion in denying the petitioner certifica-
tion to appeal from the dismissal of his habeas petition, the court having
erred in concluding that it lacked jurisdiction over the petitioner’s job
credits claim as pleaded.
2. The habeas court erred as a matter of law when it dismissed the habeas
petition for lack of jurisdiction: the court improperly concluded that it
lacked jurisdiction because no cognizable liberty interest existed in
prison employment or credits that have not been applied to a sentence,
the petitioner’s claim having been that his job credits were earned
and credited but then removed without due process, and the court
misconstrued the job credits claim as having asserted that the petitioner
was denied the right to receive those credits while he was incarcerated
in Virginia; moreover, contrary to the claim by the respondent Commis-
sioner of Correction that dismissal of the habeas petition was proper
because a certain timesheet constituted undisputed evidence that the
petitioner never earned the job credits, at the time of the dismissal,
the only information the court properly could have relied on was that
contained in the allegations of the habeas petition, as it was not at all
clear that the facts in the timesheet were undisputed; furthermore,
Practice Book § 23-29 did not provide that the court may dismiss a
habeas petition on its own motion without notice to the petitioner
and an opportunity to be heard when a jurisdictional determination is
dependent on the resolution of a critical factual dispute; accordingly,
the judgment was reversed and the case was remanded for further
proceedings.
Argued February 9—officially released May, 11, 2021
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Newson, J., dismissed the
petition and rendered judgment thereon; thereafter, the
court denied the petition for certification to appeal, and
the petitioner appealed to this court. Reversed; further
proceedings.
Deborah G. Stevenson, assigned counsel, for the
appellant (petitioner).
James W. Donohue, assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellee (respondent).
Opinion
BRIGHT, C. J. The petitioner, Andrew T. Kobza,
appeals following the habeas court’s denial of his peti-
tion for certification to appeal from the judgment of
dismissal rendered by the court with respect to his
petition for a writ of habeas corpus. The petitioner
claims that the habeas court (1) abused its discretion
in denying his petition for certification to appeal and
(2) erred by dismissing his habeas petition, sua sponte,
pursuant to Practice Book § 23-29.1 For the reasons set
forth herein, we conclude that the habeas court abused
its discretion in denying the petition for certification
to appeal. We further conclude that the habeas court
erred in its sua sponte dismissal of the habeas petition.
Accordingly, we reverse the judgment of the habeas
court and remand the case for further proceedings
according to law.
The following facts and procedural history are rele-
vant to this appeal. On October 4, 1990, the petitioner
was arrested and charged with numerous crimes,
including felony murder in violation of General Statutes
§ 53a-54c. In January, 1992, following a guilty plea, the
petitioner was sentenced by the court to a total effective
term of forty-five years of imprisonment.2
On August 2, 2018, the petitioner filed a pro se petition
for a writ of habeas corpus, claiming that his sentence
is illegal because the Department of Correction (depart-
ment) improperly failed to calculate ‘‘seven day job
credits’’3 that were applicable to his sentence. The peti-
tioner claims that he had earned seven day job credits
amounting to a reduction of sixty-three days from his
sentence prior to his transfer from MacDougall-Walker
Correctional Institution to a correctional facility in Jar-
ratt, Virginia, on August 30, 2001.
On July 12, 2019, without prior notice or a hearing,
the habeas court, Newson, J., sua sponte, dismissed the
petitioner’s habeas petition, pursuant to Practice Book
§ 23-29, on the ground that the court lacked jurisdiction.
Specifically, the court stated that ‘‘[t]he petitioner
asserts that [he] was denied and/or that the respondent
[the Commissioner of Correction] inaccurately calcu-
lated his entitlement to receive ‘[seven] day job credits’
while the petitioner was incarcerated in another state
pursuant to an interstate transfer.’’ The court held that
there is no cognizable liberty interest in prison jobs or
to credits that have not yet been applied to a sentence.
Following the habeas court’s dismissal of his habeas
petition, the petitioner filed a petition for certification
to appeal from the dismissal, which the habeas court
denied. On September 16, 2019, the petitioner filed the
present appeal.4 Additional facts will be set forth as
necessary.
I
The petitioner claims that the court erred in denying
his petition for certification to appeal from the court’s
dismissal of his habeas petition for lack of jurisdiction.
We agree.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . Sec-
ond, if the petitioner can show an abuse of discretion,
he must then prove that the decision of the habeas
court should be reversed on the merits. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling . . . [and]
[r]eversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court
must be affirmed.’’ (Citation omitted; internal quotation
marks omitted.) Wright v. Commissioner of Correc-
tion, 201 Conn. App. 339, 344–45, 242 A.3d 756 (2020),
cert. denied, 336 Conn. 905, 242 A.3d 1009 (2021). On
the basis of our review of the habeas petition, we agree
that the habeas court erred in concluding that it lacked
jurisdiction over the petitioner’s job credits claim as
pleaded and, therefore, we conclude that the habeas
court abused its discretion in denying the petition for
certification to appeal.
II
The petitioner argues that the habeas court miscon-
strued his seven day job credits claim and based its
jurisdictional ruling on its misreading of the habeas
petition as having asserted that the seven day job credits
had not yet been applied to his sentence. The petitioner
argues that his petition, as pleaded, alleges that he had
earned the seven day job credits and, after they were
applied to his sentence, the respondent wrongfully
removed them. The respondent contends, in response,
that ‘‘[t]he facts of this case clearly indicate that the
petitioner did not earn [sixty-three] [seven day] job
credits while serving a portion of his sentence in Vir-
ginia,’’ and he argues further that the habeas court prop-
erly dismissed the habeas petition because the peti-
tioner has no cognizable liberty interest in unearned
credits. In making this argument, the respondent relies
not on the allegations of the habeas petition but on a
document purportedly from the department. The docu-
ment purports to show that sixty-three days of credit,
to which the petitioner claims an entitlement, were
credited to the petitioner’s account in error and then
removed. We disagree with the respondent that the
court could rely on such a document in sua sponte
dismissing the habeas petition, and we conclude that
the habeas court misconstrued the petitioner’s claim
as it was pleaded in the habeas petition. Consequently,
we further conclude that the court erred in holding that
it lacked jurisdiction over the petitioner’s claim.
We begin with our standard of review. ‘‘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.’’ Gilchrist v. Commissioner of
Correction, 334 Conn. 548, 553, 223 A.3d 368 (2020).
Resolving the petitioner’s claim requires us to review
the allegations contained in his petition, which he filed
as a self-represented party. Accordingly, we are mindful
of the petitioner’s self-represented status at the time
he drafted the habeas petition. ‘‘This court has always
been solicitous of the rights of [self-represented] liti-
gants and, like the trial court, will endeavor to see that
such a litigant shall have the opportunity to have his
case fully and fairly heard so far as such latitude is
consistent with the just rights of any adverse party.
. . . Although we will not entirely disregard our rules of
practice, we do give great latitude to [self-represented]
litigants in order that justice may both be done and be
seen to be done. . . . For justice to be done, however,
any latitude given to [self-represented] litigants cannot
interfere with the rights of other parties, nor can we
disregard completely our rules of practice.’’ (Emphasis
omitted; internal quotation marks omitted.) Gonzalez
v. Commissioner of Correction, 107 Conn. App. 507,
512–13, 946 A.2d 252, cert. denied, 289 Conn. 902, 957
A.2d 870 (2008).
‘‘It is well settled that [t]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil
action. . . . It is fundamental in our law that the right
of [the petitioner] to recover is limited to the allegations
of his complaint. . . . While the habeas court has con-
siderable discretion to frame a remedy that is commen-
surate with the scope of the established constitutional
violations . . . it does not have the discretion to look
beyond the pleadings and trial evidence to decide claims
not raised. . . . [T]he [petition] must be read in its
entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded, and do substantial justice between the parties.
. . . Our reading of pleadings in a manner that
advances substantial justice means that a pleading must
be construed reasonably, to contain all that it fairly
means, but carries with it the related proposition that
it must not be contorted in such a way so as to strain the
bounds of rational comprehension.’’ (Citation omitted;
internal quotation marks omitted.) Davis v. Commis-
sioner of Correction, 198 Conn. App. 345, 376–77, 233
A.3d 1106, cert. denied, 335 Conn. 948, 238 A.3d 18(2020).
In his habeas petition, the petitioner claimed that his
sentence is illegal because certain seven day job credits
were taken away from him after they were earned.
Specifically, the petitioner alleged that, on August 30,
2001, the department transferred him to a correctional
facility in Jarratt, Virginia, to continue serving his sen-
tence at that facility. He claimed that, ‘‘[b]efore leaving
[the MacDougall-Walker Correctional Institution], [the
petitioner] had a [seven] day job earning a day off his
sentence for every week he worked. Without any hear-
ing or notice, [the petitioner] was sent to [Virginia] and
on [February 1, 2002] [the petitioner’s seven day job]
credit of [sixty-three] days given to him was taken
away.’’5 Additionally, the petitioner alleged that he was
unable to earn seven day job credits during his incarcer-
ation at the Virginia correctional facility because his
prison employment at that facility was only a five day
per week job. The petitioner alleged that ‘‘because it
was only a [five day] job, [the petitioner] was not given
a day off his sentence.’’ (Emphasis omitted.) The peti-
tioner stated further: ‘‘All issues like this should have
been [dealt] with prior to inmates going to [the Virginia
correctional facility]. But [the petitioner] should have
never went. [The petitioner’s sentence] has been
extended by 106 days. Other inmates have been credited
their [seven] day credit.’’6
The habeas court, in its notice of dismissal pursuant
to Practice Book § 23-29, apparently focused on the
allegations regarding the petitioner’s not being able to
earn additional credits in Virginia and stated that the
court lacked jurisdiction on the following basis: ‘‘The
petitioner asserts that [he] was denied and/or that the
respondent inaccurately calculated his entitlement to
receive ‘[seven] day job credits’ while the petitioner was
incarcerated in another state pursuant to an interstate
transfer. The habeas court lacks jurisdiction because
there is no recognized liberty interest in prison jobs;
Santiago v. Commissioner of Correction, 39 Conn. App.
674, 680, 667 A.2d 304 (1995); or to credits that have
not yet been applied to a sentence. Abed v. Commis-
sioner of Correction, 43 Conn. App. 176, 180, 682 A.2d
558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996).’’
In the present case, a fair reading of the habeas peti-
tion indicates that the petitioner asserted that his seven
day job credits were earned before he was transferred
to the Virginia correctional facility, applied to his sen-
tence, and then improperly removed. The habeas court,
however, misconstrued the petitioner’s claim as
asserting that the petitioner was denied the right to
receive the alleged seven day job credits while he was
incarcerated in the Virginia correctional facility pursu-
ant to an interstate transfer. On the basis of its misread-
ing of the petitioner’s claim, the court concluded that
it lacked jurisdiction because the credits had not yet
been applied to the sentence, and it sua sponte dis-
missed the habeas petition. The court dismissed the
habeas petition without providing the petitioner with
notice or an opportunity to be heard on the nature of
his claim. Thus, in its dismissal of the habeas petition,
the court deprived the petitioner of fair notice and an
opportunity to be heard on a jurisdictional issue arising
from the court’s reading of the claim asserted in the
habeas petition.
In his brief, the respondent argues that the habeas
court properly dismissed the habeas petition because
there were ‘‘undisputed’’ facts before the court demon-
strating that the court lacked jurisdiction over the peti-
tioner’s claim. The respondent contends that ‘‘the facts
clearly show that [the alleged seven day job credits]
were not earned’’ by the petitioner on the ground that
the habeas court had evidence of a timesheet7 when it
dismissed the habeas petition, which indicated that the
purported sixty-three days of credits claimed by the
petitioner were never earned, were applied to the peti-
tioner’s account in error, and, subsequently, were prop-
erly removed. Citing to Cuozzo v. Orange, 315 Conn.
606, 109 A.3d 903 (2015), the respondent argues further
that, ‘‘[i]n light of the undisputed evidence presented
to the court,’’ the habeas petition properly was dis-
missed for lack of jurisdiction. We find the respondent’s
argument unavailing.
‘‘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.)
Betancourt v. Commissioner of Correction, 132 Conn.
App. 806, 812, 35 A.3d 293, cert. denied, 303 Conn. 937,
36 A.3d 695 (2012).
Practice Book § 23-29 provides in relevant part: ‘‘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 . . . the
court lacks jurisdiction . . . .’’ Section 23-29 ‘‘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.’’ Gilchrist
v. Commissioner of Correction, supra, 334 Conn. 561.
In Cuozzo, our Supreme Court recognized that ‘‘[t]rial
courts addressing motions to dismiss for lack of subject
matter jurisdiction pursuant to [Practice Book § 10-30]
may encounter different situations, depending on the
status of the record in the case. . . . [L]ack of subject
matter jurisdiction may be found in any one of three
instances: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undis-
puted facts plus the court’s resolution of disputed
facts.’’ (Internal quotation marks omitted.) Cuozzo v.
Orange, supra, 315 Conn. 615. Our Supreme Court has
instructed further that, ‘‘where a jurisdictional determi-
nation is dependent on the resolution of a critical factual
dispute, it cannot be decided on a motion to dismiss
in the absence of an evidentiary hearing to establish
jurisdictional facts.’’ Conboy v. State, 292 Conn. 642,
652, 974 A.2d 669 (2009).
Although Practice Book § 23-29 authorizes the habeas
court to dismiss a habeas petition on its own motion,
§ 23-29 does not provide that the court may dismiss a
habeas petition, on its own motion, in the absence of
notice and an opportunity to be heard in circumstances
in which a jurisdictional determination is dependent on
the resolution of a critical factual dispute.
At oral argument before this court, the respondent’s
counsel acknowledged that there was a factual dispute
as to whether the seven day job credits were earned
and applied to the petitioner’s sentence. Nevertheless,
the respondent’s counsel argued that the habeas court
properly dismissed, sua sponte, the habeas petition
because the petitioner failed to produce evidence to
support his claim and the habeas court was familiar
with the timesheet that showed that the seven day job
credits were not earned by the petitioner. We disagree.
It is not at all clear that, at the time the habeas court
dismissed the habeas petition that the facts in the pur-
ported document were undisputed and that the court
could have relied on the document in its determination
that it lacked jurisdiction. First, the document was not
admitted as an exhibit, and the petitioner never stipu-
lated to its authenticity or contents. Second, the respon-
dent fails to explain how the petitioner could have pro-
duced evidence to support his claim when the court
dismissed the habeas petition without giving him an
opportunity to present such evidence. Third, the peti-
tioner’s counsel argued before this court that the accu-
racy of the document is disputed. Consequently, the
timesheet was not ‘‘undisputed evidence’’ as contem-
plated by the court in Cuozzo v. Orange, supra, 315
Conn. 606, and could not be the basis for the habeas
court, sua sponte, to dismiss the habeas petition.
Instead, when the habeas court dismissed the habeas
petition the only information the court properly could
have relied on was that contained in the allegations of
the habeas petition.
Furthermore, on the basis of its misreading of the
petitioner’s claim, the habeas court relied on this court’s
holding in Abed v. Commissioner of Correction, supra,
43 Conn. App. 176, to conclude that it lacked jurisdiction
on the ground that there is no cognizable liberty interest
in credits that have not yet been applied to a sentence.
Abed involved a petitioner’s appeal from a habeas
court’s granting of the respondent’s motion to quash
and the court’s dismissal of a habeas petition. Id., 177. In
Abed, the petitioner claimed, inter alia, that the habeas
court improperly concluded that the prospective denial
of good time credits did not deprive him of a liberty
interest in his monthly accrual of good time credits and
that the denial of statutory good time credits did not
constitute an improper prospective denial. Id. This
court affirmed the judgment of the habeas court and
concluded that the petitioner did not have a liberty
interest in unearned statutory good time credits. Id.,
180–82.
The habeas court’s reliance on Abed, here, was misdi-
rected because the petitioner, in the present case,
claimed that the job credits were actually earned and
credited but then removed without due process.
Similarly, the habeas court’s reliance on Santiago v.
Commissioner of Correction, supra, 39 Conn. App. 674,
on the basis of its reading of the petitioner’s claim, also
is misguided. In Santiago, five inmates appealed from
the judgment of the habeas court dismissing their peti-
tions for writs of habeas corpus. Id., 676. In their consol-
idated appeal, the inmates claimed, inter alia, that the
court improperly granted a motion to quash their habeas
petitions because it failed to find a legally cognizable
liberty interest on the face of the petitions. Id. The
inmates alleged that they had suffered a loss of recre-
ation, school, and work privileges due to their designa-
tion as security risk group members. Id., 676–77. This
court held that the inmates’ allegations failed to impli-
cate a protected liberty interest because a prisoner does
not have a property or liberty interest in prison employ-
ment, increased recreation, educational courses, or
access to visitors. Id., 680. This court, however, con-
cluded that an inmate’s allegation that he had suffered
a loss of earned good time credits that would have
reduced his term of confinement was legally sufficient
to implicate a liberty interest to support a constitutional
due process claim. Id., 682. We held that, ‘‘when a state
creates a right to good time credits, it is required by
the [d]ue [p]rocess [c]lause to insure that the state-
created right is not arbitrarily abrogated.’’ (Internal quo-
tation marks omitted.) Id.
In the present case, the habeas court relied on Santi-
ago in concluding that it lacked jurisdiction on the
ground that there is no cognizable liberty interest in
prison employment. Unlike the inmates in Santiago,
however, the petitioner, in the present case, did not
claim in his habeas petition that his constitutional rights
to due process were violated because he had suffered
a loss of work privileges. Akin to the inmate in Santiago,
who alleged that he had suffered a loss of earned good
time credits that would have reduced his term of con-
finement, the petitioner here claims that he has suffered
a loss of his seven day job credits that he had earned
during his employment at the MacDougall-Walker Cor-
rectional Institution. Thus, the habeas court’s reliance
on Santiago also was misplaced.
Accordingly, we conclude that the habeas court erred
as a matter of law when it sua sponte dismissed the
habeas petition on jurisdictional grounds.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
In his brief, the petitioner sets forth an assortment of claims challenging
the propriety of the habeas court’s sua sponte dismissal of the habeas
petition pursuant to Practice Book § 23-29, and the denial of his motion for
articulation. The petitioner also claims that the habeas court committed
structural error. Because we conclude that the habeas court erred in dismiss-
ing the habeas petition, we need not reach the petitioner’s additional claims.
2
Counsel for the respondent, the Commissioner of Correction, stated at
oral argument before this court that the petitioner is presently on parole,
but is not fully discharged from the respondent’s custody.
3
General Statutes § 18-98a provides: ‘‘Each person committed to the cus-
tody of the Commissioner of Correction who is employed within the institu-
tion to which he was sentenced, or outside as provided by section 18-100,
for a period of seven consecutive days, except for temporary interruption
of such period as excused by the commissioner for valid reasons, may have
one day deducted from his sentence for such period, in addition to any
other earned time, at the discretion of the Commissioner of Correction.’’
4
On January 27, 2020, the petitioner filed a motion for articulation of the
habeas court’s dismissal of the petition for a writ of habeas corpus and the
habeas court’s denial of the petition for certification to appeal from the
dismissal of the habeas petition. On January 28, 2020, the court, Newson,
J., denied the petitioner’s motion for articulation. On February 3, 2020, the
petitioner filed a motion for review with this court of the habeas court’s
denial of his motion for articulation. This court, on May 14, 2020, granted
the motion for review but denied the relief requested therein.
5
The habeas petition filed before the habeas court on August 2, 2018,
states that his seven day job credits were taken away on February 1, 2002.
On July 29, 2019, the petitioner filed an application for appointment of
counsel and waiver of fees on appeal. Attached to the July 29, 2019 applica-
tion is a copy of the addendum to the operative habeas petition, wherein
the petitioner crossed out that his job credits were taken away on February
1, 2002, and replaced the date with August 1, 2001.
6
The habeas petition does not state the reason for the alleged 106 day
extension of his sentence.
7
In addition to the filing of his habeas petition, the petitioner requested
a waiver of fees and appointment of counsel. After the waiver of fees was
granted, the habeas petition was referred to the Office of the Chief Public
Defender for investigation of indigence. In January, 2019, a notice was filed
with the habeas court in which the Connecticut Innocence Project requested
that the habeas court vacate its referral to the Office of the Chief Public
Defender for counsel because the petitioner’s claim was not a matter in
which the Connecticut Innocence Project could be appointed. Attached to
the notice is the purported timesheet. The document purports to show that
the respondent erroneously applied sixty-three seven day job credits to the
petitioner’s sentence, while he was incarcerated at the Virginia correctional
facility. The dates on the timesheet purporting to show the erroneous seven
day job credits range from August 1, 2002, to November 1, 2002.
In February, 2019, the petitioner filed a motion to request a hearing
regarding the denial of representation by the Office of the Chief Public
Defender. In March, 2019, the Office of the Chief Public Defender, upon
further review of the petitioner’s self-represented petition, appointed counsel
for the petitioner after making a finding of eligibility.