Willis W. v. Office of Adult Probation ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
WILLIS W. v. OFFICE OF ADULT PROBATION*
(AC 44796)
Prescott, Moll and Suarez, Js.
Syllabus
The petitioner, who had been convicted, following a guilty plea, of two
counts of reckless endangerment in the first degree, sought a writ of
habeas corpus, claiming that his trial counsel had rendered ineffective
assistance. The petitioner had been sentenced, inter alia, to a period of
three years of probation, which ended on April 7, 2020. The habeas
court granted the respondent’s motion to dismiss the petition on the
basis that it lacked jurisdiction, as the court did not receive the petition
until April 24, 2020, at which point the petitioner was not in custody.
The habeas court granted the petition for certification to appeal, and
the petitioner appealed to this court. Held that the habeas court properly
dismissed the petition for lack of subject matter jurisdiction: although
the petitioner effected personal delivery of his petition to a state marshal
on the final day of his probation, the court declined to apply the savings
statute (§ 52-593a), as a habeas action, unlike other civil actions, is not
initiated until a petitioner files the petition with the clerk of the court
for review by a judge; moreover, this court declined to review the
petitioner’s claim that he met the ‘‘in custody’’ requirement of the statute
(§ 52-466) because he was being deprived of his liberty as a result of
two standing criminal protective orders, effective for ten years, which
were entered by the court at sentencing, as the petitioner failed to
distinctly raise this claim before the habeas court and the court did not
rule on this claim in a manner adverse to the petitioner.
Argued March 10—officially released May 24, 2022
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Bhatt, J., granted the respondent’s motion
to dismiss and rendered judgment thereon; thereafter,
the court granted the petition for certification to appeal,
and the petitioner appealed to this court. Affirmed.
Cameron L. Atkinson, with whom, on the brief, were
Norman A. Pattis, and Patrick Nugent, certified legal
intern, for the appellant (petitioner).
Linda F. Rubertone, senior assistant state’s attorney,
with whom, on the brief, were Paul J. Ferencek, state’s
attorney, and Kelly A. Masi, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
PER CURIAM. Following a grant of certification to
appeal, the petitioner, Willis W., appeals from the judg-
ment of the habeas court dismissing his petition for a
writ of habeas corpus for lack of subject matter jurisdic-
tion. The petitioner claims that the court erred by (1)
declining to apply General Statutes § 52-593a,1 a savings
statute that allows a plaintiff to avoid dismissal of a
civil action on statute of limitations grounds through
timely personal delivery of process to a proper officer
and (2) concluding that he did not meet the jurisdic-
tional ‘‘in custody’’ requirement of General Statutes
§ 52-466 (a),2 despite the fact that, at the time he filed
his habeas petition, his liberty was being deprived as
a result of two standing criminal protective orders. We
affirm the judgment of the habeas court.3
The relevant procedural history is not in dispute. On
April 7, 2017, pursuant to a plea agreement, the peti-
tioner pleaded guilty to two counts of reckless endan-
germent in the first degree in violation of General Stat-
utes § 53a-63. The trial court, Comerford, J., accepted
the plea and imposed a total effective sentence of one
year of incarceration, execution suspended, followed
by three years of probation. The court also entered
two standing criminal protective orders, which were
effective for ten years. These orders precluded the peti-
tioner from having any contact with his two minor chil-
dren and from owning any firearms.
With respect to the filing of the petition for a writ of
habeas corpus that is the subject of this appeal, the
habeas court, Bhatt, J., found in its memorandum of
decision dismissing the petition that, ‘‘[o]n April 6, 2020,
counsel for [the petitioner] gave [the habeas petition
filed in the present case] to a state marshal to serve on
the [Office of Adult Probation, the] named respondent.4
Service was effectuated on April 8, 2020, and the Supe-
rior Court received a copy of the petition on April 24,
2020, and the matter was thereafter assigned a docket
number. In that petition, [the petitioner] claim[ed] that
he received ineffective assistance of counsel because
trial counsel should not have advised him to accept a
plea deal given the evidence against [him]. Had trial coun-
sel adequately advised [the petitioner, the petitioner con-
tended], he would not have pleaded guilty and would
have received a more favorable outcome.
‘‘On October 23, 2020, the [respondent] filed a motion
to dismiss, arguing, inter alia, that the court lack[ed] juris-
diction because [the petitioner] was not in custody at the
time the habeas petition was filed with the court on April
24, 2020.5 On December 10, 2020, [the petitioner] filed a
memorandum of law in opposition to the [respondent’s]
motion to dismiss. In that [memorandum], he alleged that
his [trial] counsel mailed a copy of the petition to a state
marshal who received it on April 7, 2020, the last day of
his probationary period. He argues that this constitute[d]
compliance with . . . § 52-593a and, therefore, the peti-
tion was filed while he was still in custody.6 On January
12, 2021, the [respondent] filed a corrected memorandum
of law in support of [its] motion to dismiss . . . . The
court heard oral arguments on January 13, 2021.’’ (Foot-
notes added; footnote omitted.)
In its decision granting the motion to dismiss, the court
relied on the undisputed factual submissions of the peti-
tioner with respect to the steps he took to initiate the
habeas action. The court, however, agreed with the
respondent that it lacked subject matter jurisdiction over
the habeas petition because the petitioner was not in
custody—meaning in prison, on parole, or on probation—
at the time that the habeas petition was filed with the
court. In this regard, the court relied on § 52-466 and well
established case law related thereto. The habeas court,
referring primarily to this court’s analysis in Hastings v.
Commissioner of Correction, 82 Conn. App. 600, 847 A.2d
1009 (2004), appeal dismissed, 274 Conn. 555, 876 A.2d
1196 (2005), reasoned that the operative date for deter-
mining whether a petitioner in a habeas action is ‘‘ ‘in
custody’ ’’ is the date on which the petition is received in
court. The habeas court concluded that the petitioner
was not in custody on the date on which his petition
was received in court because his probationary period
ended on April 7, 2020, and he was ‘‘free of any restraints
on his liberty on April 24, 2020.’’
The habeas court rejected the petitioner’s reliance
on § 52-593a. As noted previously in this opinion, the
petitioner argued that he was entitled to the protection
afforded by this remedial statute and that the action
was filed while he was in custody because he was still
on probation on April 7, 2020, the date on which a
marshal, Alex J. Rodriguez, received the petition to
serve on the respondent. See footnote 6 of this opinion.
The court, relying on Gilchrist v. Commissioner of
Correction, 334 Conn. 548, 555–61, 223 A.3d 368 (2020),
noted that, unlike other civil actions, a habeas action
is initiated when a petitioner files the petition with the
clerk of the court for review by a judge who, pursuant
to Practice Book § 23-24, undertakes a preliminary review
of the petition and determines whether the writ shall
issue. As our Supreme Court explained in Gilchrist, in
a habeas action, service of process does not occur until
after a petition is filed in court for a preliminary review,
the court determines that the petition pleads a nonfrivo-
lous claim upon which relief can be granted and over
which the court has jurisdiction, and the writ issues.
Id., 556–57. The habeas court reasoned that, ‘‘[d]ue to
the difference in the manner in which a petition for a
writ of habeas corpus is to be filed [with the court],
§ 52-593a is not implicated.’’ Accordingly, the court dis-
missed the petition for lack of subject matter jurisdic-
tion under Practice Book § 23-29 (1).7 The court there-
after granted the petitioner’s petition for certification to
appeal, which was brought pursuant to General Statutes
§ 52-470.
‘‘The conclusions reached by the trial court in its
decision to dismiss [a] habeas petition are matters of
law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support in
the facts that appear in the record.’’ (Internal quotation
marks omitted.) Anderson v. Commissioner of Correc-
tion, 114 Conn. App. 778, 784, 971 A.2d 766, cert. denied,
293 Conn. 915, 979 A.2d 488 (2009).
‘‘A court has subject matter jurisdiction if it has the
authority to hear a particular type of legal controversy.
. . . Our Supreme Court has held that the party bring-
ing the action bears the burden of proving that the court
has subject matter jurisdiction. . . . [W]ith regard to
subject matter jurisdiction, jurisdictional facts are
[f]acts showing that the matter involved in a suit consti-
tutes a subject-matter consigned by law to the jurisdic-
tion of that court. . . .
‘‘Our state’s habeas proceedings are defined by Gen-
eral Statutes § 52-466 (a) (1), which provides in relevant
part that [a]n application for a writ of habeas corpus
. . . shall be made to the superior court, or to a judge
thereof, for the judicial district in which the person
whose custody is in question is claimed to be illegally
confined or deprived of such person’s liberty. . . . [O]ur
Supreme Court [has] held that the custody requirement
in § 52-466 is jurisdictional. . . . Accordingly, a habeas
court has subject matter jurisdiction to hear a petition
for a writ of habeas corpus only when the petitioner
remains in custody on that conviction. . . . [C]onsider-
ations relating to the need for finality of convictions
and ease of administration . . . generally preclude a
habeas petitioner from collaterally attacking expired
convictions. . . . Thus, once the sentence imposed for
a conviction has completely expired, the collateral con-
sequences of that conviction are not themselves suffi-
cient to render an individual in custody for the purposes
of a habeas attack upon it.’’ (Citations omitted; internal
quotation marks omitted.) Mourning v. Commissioner
of Correction, 120 Conn. App. 612, 619, 992 A.2d 1169,
cert. denied, 297 Conn. 919, 996 A.2d 1192 (2010); see
also Hickey v. Commissioner of Correction, 82 Conn.
App. 25, 31, 842 A.2d 606 (2004), appeal dismissed, 274
Conn. 553, 876 A.2d 1195 (2005).
The petitioner’s first claim pertains to the court’s deci-
sion not to rely on § 52-593a. As he did before the habeas
court, the petitioner argues that, when Rodriguez received
the habeas petition on April 7, 2020, his probationary
period had not yet expired and, therefore, he met the
jurisdictional ‘‘in custody’’ requirement of § 52-466. Under
our plenary standard of review, we conclude that the
court, in its memorandum of decision, properly ana-
lyzed this issue consistent with Gilchrist and concluded
that the petitioner was unable to avail himself of the
remedy provided by § 52-593a. We will not repeat that
analysis here.
The petitioner’s second claim is that the court erred
by concluding that he did not meet the jurisdictional
‘‘in custody’’ requirement of § 52-466 (a) because, at the
time he filed his habeas petition with the court, he was
being deprived of his liberty as a result of two standing
criminal protective orders that prevented him from hav-
ing any contact with his two minor children and from
possessing any firearms. The petitioner referred to ‘‘a
protective order’’ in his petition but only to the extent
that it prevented him from having contact with his chil-
dren. In his memorandum of law in opposition to the
motion to dismiss, however, the petitioner did not rely
on the standing criminal protective orders continued
effect as an alternative way of satisfying the jurisdic-
tional ‘‘in custody’’ requirement of § 52-466. In fact, the
petitioner in his memorandum of law did not refer to the
existence of the standing criminal protective orders.8
Instead, the petitioner expressly relied on his probation-
ary status by arguing that he was entitled to the remedy
provided by § 52-593a because ‘‘Rodriguez received the
process within the time allotted by law for filing this
action—namely, before [his] probation had expired.’’
(Emphasis added.) As we stated previously in this opin-
ion, the court did not consider in its memorandum of
decision whether the petitioner was in custody because
of the standing criminal protective orders. The court, in
its analysis of the ‘‘in custody’’ requirement, considered
only the petitioner’s probationary period that expired
on April 7, 2020. Following the court’s ruling on the
motion to dismiss, the petitioner did not file a motion
for articulation related to this distinct ground.
In light of the foregoing facts, which unambiguously
reflect that this ground was not distinctly raised before
and ruled on by the court in a manner adverse to the
petitioner, we decline to reach the merits of this claim.
‘‘It is well settled that this court is not bound to consider
any claimed error unless it appears on the record that
the question was distinctly raised at trial and was ruled
upon and decided by the court adversely to the appel-
lant’s claim. . . . It is equally well settled that a party
cannot submit a case to the trial court on one theory
and then seek a reversal in the reviewing court on
another.’’ (Citations omitted; internal quotation marks
omitted.) Mitchell v. Commissioner of Correction, 156
Conn. App. 402, 408–409, 114 A.3d 168, cert. denied,
317 Conn. 904, 114 A.3d 1220 (2015); see also Practice
Book § 60-5 (‘‘[t]he court shall not be bound to consider
a claim unless it was distinctly raised at the trial or
arose subsequent to the trial’’). Our review of newly
raised claims of this nature would amount to an ambus-
cade of the habeas judge. See, e.g., Eubanks v. Commis-
sioner of Correction, 329 Conn. 584, 598, 188 A.3d 702(2018); Gonzalez v. Commissioner of Correction, 211
Conn. App. 632, 655, A.3d (2022).9
The judgment is affirmed.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49; we decline to identify any party
protected or sought to be protected under a protection order, protective
order or a restraining order that was issued or applied for, or others through
whom that party’s identity may be ascertained.
1
General Statutes § 52-593a provides in relevant part: ‘‘(a) Except in the
case of an appeal from an administrative agency governed by section 4-183,
a cause or right of action shall not be lost because of the passage of the
time limited by law within which the action may be brought, if the process
to be served is personally delivered to a state marshal, constable or other
proper officer within such time and the process is served, as provided by
law, within thirty days of the delivery. . . .’’
2
General Statutes § 52-466 (a) provides in relevant part: ‘‘(1) An application
for a writ of habeas corpus . . . shall be made to the superior court, or to
a judge thereof, for the judicial district in which the person whose custody
is in question is claimed to be illegally confined or deprived of such person’s
liberty. . . .’’
3
In its brief, the respondent, the Office of Adult Probation, argued that
the form of the judgment is improper and that, rather than dismissing the
petition pursuant to Practice Book § 23-29 (1), which grants the court the
authority to dismiss a petition for a writ of habeas corpus at any time if it
determines that it lacks jurisdiction, the habeas court should have declined
to issue the writ of habeas corpus pursuant to Practice Book § 23-24 (a)
(1), which grants the court the authority to decline to issue a writ if, following
its preliminary review of the petition, it appears that the court lacks jurisdic-
tion. During oral argument before this court, however, the respondent’s
attorney acknowledged that it would be proper for this court to affirm the
court’s dismissal of the petition under § 23-29.
4
The court noted that ‘‘[the petitioner] initiated this petition by suing the
Office of Adult Probation. The proper respondent in a habeas corpus [action]
is the Commissioner of Correction. The Office of the Attorney General and
the Office of the State’s Attorney have filed appearances representing the
respondent in this matter.’’
5
The respondent filed a motion titled ‘‘Motion to Dismiss and/or to Strike
Petition’’ in which it argued, in part, that the petition should be stricken
because the petitioner brought the petition against an improper party and
because the petitioner failed to plead sufficient facts to establish a cause
of action. Alternatively, the respondent argued that the petition should be
dismissed because the petitioner was not in custody when the petition was
filed with the court. The court did not address or rule on the portion of the
motion in which the respondent asked it to strike the petition.
6
The court accurately noted that, ‘‘[i]n support of [the petitioner’s] memo-
randum of law in opposition to the motion to dismiss, he submitted an
affidavit from Donna Peat, an employee of [his] counsel’s law firm, which
states that, on April 6, 2020, she sent a copy of the petition by FedEx
overnight delivery to state marshal Alex J. Rodriguez with instructions to
make service as soon as possible. [The petitioner] also submitted an affidavit
from Alex J. Rodriguez, which states that, on April 7, 2020, the original writ,
summons and petition came with and in his hands for service. Rodriguez’
affidavit further states that, on April 8, 2020, he made due and legal service
on the [respondent].’’
7
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: (1) the court
lacks jurisdiction . . . .’’
8
Likewise, the respondent did not refer to the existence of the standing
criminal protective orders in its memorandum of law in support of the
motion to dismiss. Instead, the respondent argued that the petitioner was
not in custody when the petition was filed with the court on April 24, 2020,
because the petitioner’s period of probation had expired on April 7, 2020.
9
The petitioner raised a third claim in this appeal, that the respondent
erroneously had argued in its motion to dismiss and/or strike his petition
that his petition should be stricken because he brought the action against
the Office of Adult Probation, rather than the Commissioner of Correction.
The petitioner acknowledges that the court did not address, let alone base
its ruling on, this misjoinder argument. Because this ‘‘claim’’ does not chal-
lenge one or more of the grounds on which the court relied in rendering
its judgment, we do not consider its merits. See State v. Diaz, 109 Conn.
App. 519, 559, 952 A.2d 124 (‘‘[w]e need not review the issue raised because
in light of the court’s analysis, it is irrelevant to the judgment from which
the defendant appeals’’), cert. denied, 289 Conn. 930, 958 A.2d 161 (2008).