Marshall v. Commissioner of Correction ( 2021 )

***********************************************
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.
***********************************************
KEVIN LEWIS MARSHALL v. COMMISSIONER
OF CORRECTION
(AC 43693)
Elgo, Alexander and Sheldon, Js.
Syllabus
The petitioner, who had been convicted on a plea of guilty to the crime of
burglary in the third degree, sought a writ of habeas corpus, claiming
that the trial court had imposed an illegal sentence. The petitioner had
been sentenced to two years and one day of incarceration and thirty-
five months of special parole. The petitioner claimed that the imposition
of a term of incarceration and a period of special parole constituted
two distinct sentences for the same offense and, thus, violated his federal
and state constitutional rights to be free from double jeopardy. The
habeas court, sua sponte, ordered a hearing as to why the petition should
not be dismissed for lack of subject matter jurisdiction, pursuant to the
relevant rule of practice (§ 23-29), on the ground that the petitioner
failed to state a claim on which habeas relief could be granted, as this
court concluded in State v. Farrar (186 Conn. App. 220) that the statutory
framework explicitly authorized a defendant to be sentenced to a term
of imprisonment followed by a period of special parole, provided that
the combined term of the period of imprisonment and special parole
did not exceed the statutory maximum for the crime for which the
defendant was convicted. During the hearing, the petitioner’s counsel
argued that the petitioner would not begin his special parole until he
completed a period of incarceration that was the result of a separate
conviction and, therefore, the petitioner would serve more than the
maximum sentence permitted for his conviction of burglary. The habeas
court dismissed the petition and the petitioner, on the denial of his
petition for certification to appeal, appealed. Held that the habeas court
properly dismissed the habeas petition pursuant to § 23-29: although
the petitioner claimed that the court should have permitted the filing
of an amended habeas petition prior to rendering judgment, noting that
the court set the filing deadline for an amended petition many months
after the dismissal hearing, subject matter jurisdiction may be raised at
any time and, once it was raised, the court was required to address and
resolve it, the petition, as filed, limited the petitioner’s claim to an illegal
sentence that violated double jeopardy, and, although the representa-
tions made by habeas counsel at the hearing indicated the possibility
of filing an amended petition to include, inter alia, claims of ineffective
assistance of counsel, those representations did not have the effect of
changing or enlarging the claim set forth in the petition that actually
was before the habeas court, the petitioner did not claim that the com-
bined period of imprisonment and special parole exceeded the statutory
maximum for burglary in the third degree, and therefore the petitioner
failed to allege an unconstitutional violation of his liberty and the court
lacked subject jurisdiction; moreover, the habeas court did not abuse
its discretion in denying the petition for certification to appeal the
dismissal of the petition for a writ of habeas corpus.
Argued March 10—officially released August 3, 2021
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., rendered judgment dismissing
the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
Naomi T. Fetterman, assigned counsel, for the appel-
lant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Michael Proto, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
ALEXANDER, J. The petitioner, Kevin Lewis Mar-
shall, appeals from the judgment of the habeas court
dismissing his petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court (1)
abused its discretion in denying his petition for certifica-
tion to appeal and (2) improperly dismissed his habeas
petition. We disagree, and, accordingly, dismiss the peti-
tioner’s appeal.
The following facts and procedural history are rele-
vant to our discussion. The petitioner pleaded guilty to
two counts of burglary in the third degree in violation
of General Statutes § 53a-103. For each offense, the
court imposed a sentence of two years and one day of
incarceration and thirty-five months of special parole,1
with the sentences to run concurrently.
In April, 2018, the self-represented petitioner com-
menced the present habeas action. He alleged that the
court had imposed an illegal sentence. Specifically, he
claimed that the imposition of a term of incarceration
and a period of special parole constituted two distinct
sentences for the same offense and, thus, violated his
federal and state constitutional rights to be free from
double jeopardy.
On June 6, 2019, the habeas court, Newson, J., issued
an order, pursuant to Practice Book § 23-29, that a hear-
ing to determine why the habeas petition should not
be dismissed would be held within thirty days.2 In this
order, the court noted that the petitioner had alleged
‘‘that a sentence imposed which includes special parole
violates double jeopardy, which the [Appellate] Court
explicitly rejected in State v. Farrar, 186 Conn. App.
220, 221, 199 A.3d 97 (2018).’’ The next day, the habeas
court issued a scheduling order, setting a November 8,
2021 deadline for the filing of an amended petition.
At the July 16, 2019 hearing, the habeas court iterated
that the petitioner essentially claimed that a sentence
that includes a term of incarceration and a period of
special parole constitutes a double jeopardy violation,
and that this court’s decision in State v. Farrar, supra,
186 Conn. App. 220, foreclosed that claim. Attorney
Michael Stonoha, who had been appointed to represent
the petitioner, argued that the petitioner would not
begin his special parole until he completed a period of
incarceration that was the result of a separate convic-
tion, and therefore the petitioner would serve well over
the maximum sentence permitted for his conviction of
burglary in the third degree. The court responded that,
in the context of a motion to dismiss, it was limited to
the ‘‘four corners’’ of the petition for a writ of habeas
corpus. Counsel for the respondent, the Commissioner
of Correction, argued that State v. Farrar, supra, 186
Conn. App. 220, was controlling with respect to the
claim alleged in the habeas petition and that he could
not comment on any potential claims in the future. The
petitioner’s counsel further suggested the possibility of
raising a claim of ineffective assistance of counsel.
After hearing further argument, the court dismissed
the habeas petition, concluding that it failed to state a
claim on which habeas relief could be granted. In the
alternative, the court stated that it lacked jurisdiction
because the allegation set forth in the habeas petition
did not allege a constitutional violation. That same day,
the petitioner filed a petition for certification to appeal
the court’s dismissal of his habeas petition. On July 17,
2019, the court denied the petition for certification to
appeal. This appeal followed.
The petitioner first claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal the dismissal of his petition for a writ of
habeas corpus. ‘‘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 discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . . Second, 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 discretion, 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. [In the absence of] such
a showing by the petitioner, the judgment of the habeas
court must be affirmed.’’ (Citation omitted; internal quo-
tation marks omitted.) Wright v. Commissioner of Cor-
rection, 201 Conn. App. 339, 344–45, 242 A.3d 756 (2020),
cert. denied, 336 Conn. 905, 242 A.3d 1009 (2021); see
also Moore v. Commissioner of Correction, Conn.
, , A.3d (2021).
In order to determine whether the habeas court’s
denial of the petition for certification to appeal consti-
tuted an abuse of discretion, we must consider his sub-
stantive claim that the habeas court improperly dis-
missed his petition for a writ of habeas corpus pursuant
to Practice Book § 23-29. See, e.g., Wright v. Commis-
sioner of Correction, supra, 201 Conn. App. 345. Prac-
tice 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; (2) the petition, or a count thereof,
fails to state a claim upon which habeas corpus relief
can be granted . . . .’’ (Emphasis added.) See also
Gilchrist v. Commissioner of Correction, 334 Conn.
548, 554, 223 A.3d 368 (2020). Our Supreme Court has
analogized Practice Book § 23-29 to Practice Book
§§ 10-30 and 10-39. Id., 561; see also Kobza v. Commis-
sioner of Correction, 204 Conn. App. 547, 556, A.3d
(2021) (habeas corpus action, as variant of civil
actions, is subject to ordinary rules of civil procedure
unless superseded by more specific rules pertaining to
habeas actions).
The habeas court dismissed the petition based on its
determination that it lacked jurisdiction and that the
petitioner failed to state a claim on which habeas corpus
relief could be granted. At the outset, we note that
a determination regarding the habeas court’s subject
matter jurisdiction presents a question of law, and
therefore our review is plenary. Byrd v. Commissioner
of Correction, 177 Conn. App. 71, 79, 171 A.3d 1103(2017); Petaway v. Commissioner of Correction, 160
Conn. App. 727, 731, 125 A.3d 1053 (2015), appeal dis-
missed, 324 Conn. 912, 153 A.3d 1288 (2017); see also
Brewer v. Commissioner of Correction, 162 Conn. App.
8, 13, 130 A.3d 882 (2015) (conclusions reached by
habeas court in its decision to dismiss habeas petition
are matters of law subject to plenary review, while
challenges to factual findings are subject to clearly erro-
neous standard).
The jurisdiction of the habeas court is well estab-
lished in our jurisprudence. ‘‘With respect to the habeas
court’s jurisdiction, [t]he scope of relief available
through a petition for habeas corpus is limited. In order
to invoke the trial court’s subject matter jurisdiction in
a habeas action, a petitioner must allege that he is
illegally confined or has been deprived of his liberty.
. . . In other words, a petitioner must allege an interest
sufficient to give rise to habeas relief. . . . In order to
. . . qualify as a constitutionally protected liberty
[interest] . . . the interest must be one that is assured
either by statute, judicial decree, or regulation.’’ (Cita-
tions omitted; internal quotation marks omitted.) Green
v. Commissioner of Correction, 184 Conn. App. 76, 85,
194 A.3d 857, cert. denied, 330 Conn. 933, 195 A.3d 383(2018); see also Byrd v. Commissioner of Correction,
supra, 177 Conn. App. 82.
The habeas court concluded that this court’s decision
in State v. Farrar, supra, 186 Conn. App. 220, foreclosed
the sole claim set forth in the habeas petition filed by
the petitioner; namely, that the court imposed an illegal
sentence that violated double jeopardy. A brief review
of that case, therefore, will facilitate our discussion. In
State v. Farrar, supra, 221, the defendant appealed from
the denial of his motion to correct an illegal sentence.
The defendant had pleaded guilty to possession of a
controlled substance with intent to sell and criminal
possession of a firearm. Id., 222. The court imposed a
total effective sentence of seven years of incarceration,
followed by eight years of special parole. Id. Thereafter,
the defendant challenged his sentence, arguing that a
term of imprisonment followed by a period of special
parole was not statutorily authorized and thus violated
his constitutional right against double jeopardy. Id. The
trial court denied the defendant’s motion to correct an
illegal sentence. Id.
On appeal, the defendant argued that special parole
was not a definite term of imprisonment and, thus,
was in violation of General Statutes § 53a-35a. Id. He
claimed, therefore, ‘‘that the court illegally sentenced
him to both a definite term of imprisonment and a
period of special parole . . . .’’ Id., 222–23. In rejecting
this claim, we determined that the controlling statutory
framework ‘‘explicitly [authorizes] a defendant to be
sentenced to a term of imprisonment followed by a
period of special parole, provided that the combined
term of the period of imprisonment and special parole
does not exceed the statutory maximum for the crime
for which the defendant was convicted.’’ (Emphasis
added.) Id., 223.
In his petition for a writ of habeas corpus, the peti-
tioner claimed that his sentence was illegal because it
included both a period of incarceration and special
parole. He further argued that a definite sentence fol-
lowed by special parole constituted two distinct senten-
ces for the same offense and therefore violated double
jeopardy. He did not claim, however, that the combined
period of imprisonment and special parole exceeded
the statutory maximum for burglary in the third degree.
Thus, we agree with the habeas court’s conclusion that,
as a result of this court’s decision in State v. Farrar,
supra, 186 Conn. App. 220, the petitioner had failed to
allege an unconstitutional violation of his liberty, and
therefore it lacked subject matter jurisdiction.
In his appellate brief, the petitioner contends that
the court should have considered the representations
made by his habeas counsel enhancing the allegations
contained in the habeas petition filed by the petitioner
himself. Specifically, he directs us to the following state-
ments made at the July 16, 2019 hearing: ‘‘I believe [the
petitioner] has a colorable claim that, based on the
special parole statute, that as soon as his maximum
term of 731 days ended, he was to be automatically
transferred to the Board of Pardons and Parole for a
period of special parole and that he should be credited
on that special parole while he is still incarcerated [on
a separate conviction and sentence].’’ Habeas counsel
also noted the possible existence of a colorable claim of
ineffective assistance of counsel. As a result of habeas
counsel’s representations, the petitioner maintains that
the court should have permitted the filing of an
amended habeas petition prior to rendering a judgment
of dismissal. In further support of this contention, the
petitioner notes that the habeas court’s scheduling
order did not require the filing of an amended petition
until November 8, 2021.
The petitioner’s arguments, however, fail to account
for several well established principles. First, the issue
of subject matter jurisdiction may be raised at any time.
‘‘This court has often stated that the question of subject
matter jurisdiction, because it addresses the basic com-
petency of the court, can be raised by any of the parties,
or by the court sua sponte, at any time.’’ (Emphasis
added; internal quotation marks omitted.) Pentland v.
Commissioner of Correction, 200 Conn. App. 296, 302,
238 A.3d 778, cert. denied, 335 Conn. 973, 241 A.3d 129(2020); see Johnson v. Rell, 119 Conn. App. 730, 736,
990 A.2d 354 (2010); see also Practice Book § 23-29 (1)
(court may, at any time, dismiss habeas petition for
lack of subject matter jurisdiction).
Second, the habeas petition filed by the petitioner
limited his claim to an illegal sentence that violated
double jeopardy. The representations of habeas coun-
sel3 made at the July 16, 2019 hearing indicated the
possibility of filing an amended petition, but did not
have the effect of changing or enlarging the claim set
forth in the petition that actually was before the habeas
court. See, e.g., Nelson v. Commissioner of Correction,
326 Conn. 772, 781, 167 A.3d 952 (2017) (habeas court
properly declined to consider issues raised only in mem-
orandum of law in opposition to motion to dismiss and
not in habeas petition). ‘‘[I]t is the established policy
of the Connecticut courts to be solicitous of pro se
litigants and when it does not interfere with the rights
of other parties to construe the rules of practice liberally
in favor of the pro se party. . . . However, [t]he peti-
tion for a writ of habeas corpus is essentially a plead-
ing and, as such, it should conform generally to a
complaint in a civil action. . . . The principle that a
plaintiff may rely only upon what he [or she] has
alleged is basic. . . . It is fundamental in our law
that the right of a plaintiff to recover is limited to the
allegations of his [or her] complaint. . . . While the
habeas court has considerable discretion to frame a
remedy that is commensurate with the scope of the
established constitutional violations . . . it does not
have the discretion to look beyond the pleadings . . .
to decide claims not raised. . . . In addition, while
courts should not construe pleadings narrowly and
technically, courts also cannot contort pleadings in
such a way so as to strain the bounds of rational compre-
hension.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Stephenson v. Commis-
sioner of Correction, 203 Conn. App. 314, 325–26, 248
A.3d 34, cert. denied, 336 Conn. 944, 249 A.3d 737 (2021);
see also Kobza v. Commissioner of Correction, supra,
204 Conn. App. 553.
Third, once the issue regarding the lack of subject
matter jurisdiction is brought to the court’s attention,
the court must address and resolve it. This court has
stated: ‘‘A possible absence of subject matter jurisdic-
tion must be addressed and decided whenever the issue
is raised. . . . It is axiomatic that once the issue of
subject matter jurisdiction is raised, it must be immedi-
ately acted upon by the court. . . . Our Supreme Court
has explained that once raised . . . the question [of
subject matter jurisdiction] must be answered before
the court may decide the case.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Igersheim v. Bezrutczyk, 197 Conn. App. 412, 419, 231
A.3d 1276 (2020); see also Federal Deposit Ins. Corp.
v. Peabody, N.E., Inc., 239 Conn. 93, 99–100, 680 A.2d
1321 (1996); Burton v. Connecticut Siting Council, 161
Conn. App. 329, 347–48, 127 A.3d 1066 (2015), cert.
denied, 320 Conn. 925, 133 A.3d 459 (2016).
For these reasons, we conclude that the court prop-
erly dismissed the habeas petition pursuant to Practice
Book § 23-29 (1), despite the representations of habeas
counsel and the court’s scheduling order. We also con-
clude that the habeas court did not abuse its discretion
in denying the petition for certification to appeal the
dismissal of the petition for a writ of habeas corpus.
The appeal is dismissed.
In this case the other judges concurred.
1
‘‘Our Supreme Court has explained the difference between probation
and special parole. Pursuant to [General Statutes] § 54-128 (c), when a
defendant violates special parole, he is subject to incarceration only for a
period equal to the unexpired portion of the period of special parole. Thus,
for a violation that occurs on the final day of the defendant’s special parole
term, the defendant would be exposed to one day of incarceration. Special
parole, therefore, exposes a defendant to a decreasing period of incarcera-
tion as the term of special parole is served.’’ (Emphasis in original; internal
quotation marks omitted.) State v. Battle, 192 Conn. App. 128, 140–41, 217
A.3d 637 (2019), aff’d, Conn. , A.3d (2021).
2
See, e.g., Boria v. Commissioner of Correction, 186 Conn. App. 332,
353, 199 A.3d 1127 (2018) (Bishop, J., concurring) (noting that prior to
dismissal of habeas petition pursuant to Practice Book § 23-29, petitioner
should be given notice of court’s inclination to dismiss, sua sponte, and
opportunity to be heard on whether dismissal is warranted), cert. granted,
335 Conn. 901, 225 A.3d 685 (2020).
3
Counsel entered his appearance on October 31, 2018, approximately
eight months before the court issued its notice pursuant to Practice Book
§ 23-29 and did not file an amended petition during that time period.