Jobe v. Commissioner of Correction ( 2018 )

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MOMODOU LAMIN JOBE v. COMMISSIONER OF
CORRECTION
(AC 39760)
Lavine, Bright and Pellegrino, Js.
Syllabus
The petitioner, who had been convicted on a guilty plea of illegal possession
of less than four ounces of marijuana and illegal sale of a record or tape,
sought a writ of habeas corpus. The habeas court rendered judgment
dismissing the habeas petition, concluding that it lacked jurisdiction to
consider the merits of the petition pursuant to Padilla v. Kentucky (559
U.S. 356). Thereafter, the petitioner, on the granting of certification,
appealed to this court. The respondent Commissioner of Correction
conceded that the habeas court improperly dismissed the petition pursu-
ant to Padilla but claimed that the judgment of dismissal could be
affirmed on the alternate ground that the petitioner had failed to allege
that he was in custody at the time he filed his petition. Held that the
habeas court properly dismissed the habeas petition for lack of jurisdic-
tion; the petitioner was no longer in custody at the time the petition
was filed, and there was no evidence that a warrant had been issued
for violation of his conditional discharge, which would have been the
only way that the petitioner could have been in custody at the time he
filed his petition.
Argued February 15—officially released April 17, 2018
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 this court. Affirmed.
Vishal K. Garg, 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).
Opinion
PER CURIAM. General Statutes § 52-466 (a) (1) pro-
vides in relevant part that ‘‘[a]n 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.’’1 (Emphasis added.) Our
Supreme Court has concluded ‘‘that the custody require-
ment of § 52-466 is jurisdictional because the history
and purpose of the writ of habeas corpus establish that
the habeas court lacks the power to act on a habeas
petition absent the petitioner’s allegedly unlawful cus-
tody.’’ (Internal quotation marks omitted.) Richardson
v. Commissioner of Correction, 298 Conn. 690, 697, 6
A.3d 52 (2010).
The petitioner, Momodou Lamin Jobe, appeals from
the judgment of the habeas court dismissing his petition
for a writ of habeas corpus,2 following the court’s grant-
ing his petition for certification to appeal. On appeal,
the petitioner claims that the habeas court improperly
determined that it lacked jurisdiction to consider the
merits of his claim under Padilla v. Kentucky, 559 U.S.
356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). The
respondent, the Commissioner of Correction, concedes
that the habeas court improperly dismissed the petition
for a writ of habeas corpus pursuant to Padilla, but
contends that the judgment of dismissal may be
affirmed on the alternate ground that the petitioner
failed to allege that he was in custody at the time he
filed his petition. We affirm the judgment of dismissal
on the basis of the respondent’s alternate ground.3
‘‘[A] court lacks discretion to consider the merits of
a case over which it is without jurisdiction . . . . The
subject 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 proceed-
ings, including on appeal.’’ (Internal quotation marks
omitted.) Ajadi v. Commissioner of Correction, 280
Conn. 514, 533, 911 A.2d 712 (2006). The determination
of whether the habeas court had subject matter jurisdic-
tion is a question of law and this court’s review is
plenary. Richardson v. Commissioner of Correction,
supra, 298 Conn. 696.
In his petition for a writ of habeas corpus, the peti-
tioner alleged that he was arrested on September 10,
2009, and that he pleaded guilty to the crimes charged
on January 5, 2010.4 He also alleged that on January 5,
2010, he received a total effective sentence of eleven
months incarceration, execution suspended, and two
years of conditional discharge. The petitioner filed a
petition for a writ of habeas corpus on August 12, 2016.
The petition, therefore, was filed more than two years
after he was sentenced and was not in custody at
that time.
During 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. Counsel conceded that absent
such a warrant, the habeas court would not have subject
matter jurisdiction over his petition. We asked counsel
for the parties if they knew whether a warrant had been
issued for the petitioner for violation of his conditional
discharge. 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 dis-
charge. The 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. The
habeas court, therefore, lacked jurisdiction to adjudi-
cate the merits of the petition for a writ of habeas
corpus.5
The judgment is affirmed.
1
General Statutes § 52-466 (a) (2) pertains to an application for a writ of
habeas corpus ‘‘made by or on behalf of an inmate or prisoner confined in
a correctional facility as a result of a conviction of a crime . . . .’’
2
The habeas court dismissed the petition pursuant to Practice Book § 23-
29 (1), which provides in relevant part that ‘‘[t]he 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 . . . .’’
3
An appellate court may affirm the judgment of the trial court although
it may have been grounded on a wrong reason. See Geremia v. Geremia,
159 Conn. App. 751, 779, 125 A.3d 549 (2015); see also Practice Book § 10-
33. Because we conclude that the habeas court lacked subject matter jurisdic-
tion, we need not reach the merits of the petitioner’s claim on appeal.
4
The record discloses that the petitioner pleaded guilty to one count of
illegal possession of less than four ounces of marijuana in violation of
General Statutes (Rev. to 2009) § 21a-279 (c) and one count of illegal sale
of a record or tape in violation of General Statutes § 53-142c.
5
In his reply brief, the petitioner asks us to adopt an expansive definition
of the word custody. We decline to review claims raised for the first time
in a reply brief. See State v. Myers, 178 Conn. App. 102, 107, 174 A.3d
197 (2017).