Brown v. Commissioner of Correction

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JUDSON BROWN v. COMMISSIONER
OF CORRECTION
(SC 20474)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to the rules of practice (§ 23-24), once a petition for a writ of
habeas corpus is filed in the Superior Court, ‘‘[t]he judicial authority
shall promptly review [the] petition . . . to determine whether the writ
should issue. The judicial authority shall issue the writ unless it appears
that . . . the court lacks jurisdiction . . . the petition is wholly frivo-
lous on its face . . . or . . . the relief sought is not available,’’ and
‘‘[t]he judicial authority shall notify the petitioner if it declines to issue
the writ pursuant to this rule.’’
Pursuant further to the rules of practice (§ 23-29 (3)), ‘‘[t]he judicial authority
may, at any time, upon its own motion . . . dismiss the petition, or any
count thereof, if it determines that . . . the petition presents the same
ground as a prior petition previously denied and fails to state new facts
or to proffer new evidence not reasonably available at the time of the
prior petition . . . .’’
The petitioner, who had been convicted of arson in the first degree and
conspiracy to commit arson in the first degree, filed a successive habeas
petition, claiming that he was not canvassed properly about his right
to appeal when the public defender assigned to represent him withdrew
from representation before the start of the defendant’s criminal trial.
The habeas court, acting on its own motion and without notifying the
parties, dismissed the petition as repetitious pursuant to Practice Book
§ 23-29 (3). Thereafter, the petitioner filed a petition for certification to
appeal, which the habeas court denied, and the petitioner appealed to
the Appellate Court, which summarily dismissed the petitioner’s appeal.
On the granting of certification, the petitioner appealed to this court,
claiming that the habeas court improperly had dismissed his petition
pursuant to § 23-29 without providing him with prior notice and an
opportunity to be heard.
Held that, prior to dismissing a habeas petition on its own motion under
Practice Book § 23-29, a habeas court is required to provide the petitioner
with notice of the court’s intention to dismiss the petition, and the
petitioner has the right to be heard on the papers, either by way of a
brief or a written response, the habeas court thus improperly dismissed
the petitioner’s habeas petition pursuant to § 23-29 (3) without providing
the petitioner with prior notice and an opportunity to submit a brief or
a written response, and, accordingly, this court reversed the Appellate
Court’s judgment dismissing the petitioner’s appeal and remanded the
case for further proceedings:
Because Practice Book § 23-29 was ambiguous with respect to whether
a habeas court is required, once it issues the writ after applying the
criteria set forth in Practice Book § 23-24, to provide notice and an
opportunity to be heard before dismissing a petition pursuant to § 23-
29 on its own motion, this court reviewed the historical development of
those rules, including the wholesale revision of the provisions governing
habeas proceedings (§ 23-21 et seq.) by the Rules Committee of the
Superior Court and a predecessor rule that previously had expressly
authorized habeas courts to dismiss repetitive petitions without a hear-
ing, as well as the differences and interplay between §§ 23-29 and 23-
24, the latter of which acts as a gatekeeping mechanism and requires
the court only to provide notice after it has declined to issue the writ, and
these considerations led this court to conclude that the Rules Committee
intended that dismissal under § 23-29 requires additional procedural safe-
guards beyond those that are required for a decision not to issue the
writ under § 23-24.
Although those additional safeguards required, at the least, prior notice
to the petitioner or the petitioner’s counsel and the opportunity to file
a written response, it would be overly burdensome and inefficient to
require the habeas court to conduct a full hearing on every petition that
survives the court’s initial review under Practice Book § 23-24, especially
in light of the public policy underlying the legislature’s comprehensive
habeas reform in 2012, which was intended to improve and expedite the
habeas process by efficiently disposing of frivolous petitions.
This interpretation was consistent with the intent of the Rules Committee
in revising the rules, drew a proper balance between the competing
interests of affording petitioners due process and the need for expedi-
tious resolution of habeas petitions in an effort to reach the meritorious
cases, and permitted habeas courts to conduct full hearings when they
deem them appropriate.
Insofar as the habeas court in the present case did not have the opportu-
nity to first determine whether any grounds existed for it to decline to
issue the writ pursuant to Practice Book § 23-24, the case was remanded
to the habeas court to first make that determination; if it opts to issue
the writ and again elects to exercise its discretion to dismiss the petition
on its own motion pursuant to Practice Book § 23-29, it must provide
the petitioner with prior notice and an opportunity to file a brief or a
written response addressing the proposed basis for dismissal pursuant
to § 23-29.
(One justice concurring separately)
Argued September 15, 2021—officially released October 4, 2022
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 the Appellate Court, Elgo, Moll and Bishop, Js., which
dismissed the appeal, and the petitioner, on the granting
of certification, appealed to this court. Reversed; fur-
ther proceedings.
Michael W. Brown, for the appellant (petitioner).
Laurie N. Feldman, deputy assistant state’s attorney,
with whom, on the brief, was Patrick J. Griffin, chief
state’s attorney, for the appellee (respondent).
Opinion
KAHN, J. This appeal requires us to consider the
proper procedure that a habeas court is required to
follow before dismissing a petition for a writ of habeas
corpus, on its own motion, under Practice Book § 23-
29. This court previously reviewed the interplay between
§ 23-29 and Practice Book § 23-24, and established that
§ 23-24 allows a habeas court to review and dismiss
clearly defective petitions by sending notice to the par-
ties after it declines to issue the writ. See Gilchrist v.
Commissioner of Correction, 334 Conn. 548, 561, 223
A.3d 368 (2020). In Gilchrist, we did not address the
issue we confront today: whether § 23-29 allows a
habeas court to dismiss a petition, on its own motion,
without prior notice and an opportunity to be heard.
The petitioner, Judson Brown, argues that a dismissal
under that section entitles him to prior notice and a
hearing. The respondent, the Commissioner of Correc-
tion, argues that, as with § 23-24, no prior notice or an
opportunity to be heard is required. This issue, to our
knowledge, has not been taken up by the Rules Commit-
tee of the Superior Court, even after this court’s deci-
sion in Gilchrist. As in Gilchrist, our task in the present
case is merely to ascertain the meaning of our rules of
practice.1 After reviewing the language of §§ 23-24 and
23-29, and their relationship to the provisions generally
governing habeas corpus proceedings; see Practice
Book § 23-21 et seq.; the historical development of the
writ of habeas corpus and the public policy underlying
the legislature’s comprehensive habeas reform; see
Public Acts 2012, No. 12-115, § 1 (P.A. 12-115); we con-
clude that § 23-29 requires the habeas court to provide
prior notice of the court’s intention to dismiss, on its
own motion, a petition that it deems legally deficient
and an opportunity to be heard on the papers by filing
a written response. The habeas court may, in its discre-
tion, grant oral argument or a hearing, but one is not
mandated. We believe this interpretation draws a proper
balance between the competing interests of affording
petitioners due process while addressing the need for
the expeditious resolution of habeas petitions in an
effort to reach the meritorious cases. We observe that
the Rules Committee remains free to amend the text
of the relevant rules as it deems appropriate.
The present case arises out of a petition for a writ of
habeas corpus filed by the self-represented petitioner,
relating to the withdrawal of his public defender’s
appearance during the course of his underlying criminal
trial. The habeas court, acting on its own motion and
without prior notice, dismissed the petition as repeti-
tious pursuant to Practice Book § 23-29 (3) and subse-
quently denied the petition for certification to appeal.
The Appellate Court summarily dismissed the petition-
er’s appeal; Brown v. Commissioner of Correction, 196
Conn. App. 902, 225 A.3d 980 (2020); and this court
subsequently granted the petitioner’s petition for certifi-
cation to appeal from the judgment of the Appellate
Court. Brown v. Commissioner of Correction, 335
Conn. 920, 231 A.3d 1169 (2020). On appeal, the peti-
tioner claims that he was entitled to both prior notice
and an opportunity to be heard, and that, as a result,
the Appellate Court improperly dismissed his appeal
from the habeas court’s judgment of dismissal and the
denial of his petition for certification to appeal. We
agree, in part, with the petitioner that a dismissal under
§ 23-29, which occurs after the writ has issued and the
action has commenced, requires some procedural safe-
guards, specifically, prior notice and an opportunity to
submit a brief or a written response, but not a full
hearing. We therefore reverse the judgment of the
Appellate Court and remand the case for further pro-
ceedings before the habeas court consistent with this
opinion.
The following undisputed facts and procedural his-
tory are relevant to the present appeal. The petitioner
was convicted in 1999, following a jury trial, of arson
in the first degree and conspiracy to commit arson in
the first degree, and sentenced to twenty-five years of
imprisonment. State v. Brown, 256 Conn. 291, 293, 772
A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670,
151 L. Ed. 2d 584 (2001). Although the petitioner was
originally provided counsel by the public defender’s
office, counsel later withdrew because the petitioner
was found to possess significant assets. Id., 297 n.6.2
The petitioner waived his right to appeal the withdrawal
of the public defender and proceeded to represent him-
self at his criminal trial. Id., 297. The petitioner appealed
his conviction to the Appellate Court on the sole ground
of prosecutorial impropriety. See id., 293. After transfer-
ring the appeal to this court, we rejected that claim and
affirmed the judgment of conviction. Id., 293, 313.
The petitioner, represented by assigned counsel, filed
his first amended habeas petition in 2002, challenging
his conviction on the following four grounds: improper
withdrawal by trial counsel, ineffective assistance of
trial counsel, judicial misconduct by the trial judge,
and ineffective assistance by his appellate counsel. The
habeas court denied his habeas petition, and the Appel-
late Court affirmed the habeas court’s judgment. Brown
v. Commissioner of Correction, 92 Conn. App. 382, 383,
389, 885 A.2d 761 (2005), appeal dismissed, 281 Conn.
466, 915 A.2d 870 (2007).
The petitioner filed a second amended habeas peti-
tion in 2009, claiming that his first habeas counsel had
rendered ineffective assistance by failing to allege that
(1) he was deprived of his constitutional right to counsel
at his criminal trial, and (2) defense counsel in his direct
appeal had improperly failed to raise this issue before
the Appellate Court. The habeas court denied this sec-
ond petition as well, finding that it was ‘‘clear that the
petitioner was provided all of his due process rights
when the court made its initial determination to allow
the public defenders to withdraw.’’ Once again, the
Appellate Court affirmed the habeas court’s judgment.
See Brown v. Commissioner of Correction, 141 Conn.
App. 251, 253, 263, 61 A.3d 554, cert. denied, 308 Conn.
941, 66 A.3d 883 (2013).3
The petitioner, representing himself, then filed a third
habeas petition in 2014, which he amended in 2015 with
the assistance of counsel, claiming ‘‘ineffective waiver
of counsel in violation of [his] sixth amendment right
to counsel.’’ The habeas court, Fuger, J., issued an oral
decision in which he denied that petition, concluding
that any claim challenging the trial court’s ruling permit-
ting the withdrawal of the public defender during the
criminal trial was barred by res judicata. Judge Fuger
advised the petitioner: ‘‘I’m sorry to say to you that the
issue is over and done with. I understand how you feel,
but the matter has been litigated. And, at this point, I
see no further relief . . . . [I]t would be, I think, very
difficult for [the petitioner] to be able to find something
unique to be able to proceed on [another] habeas peti-
tion. I think [the petitioner has] sort of had all the bites
at the apple that [he] can [have].’’ The Appellate Court
summarily dismissed the appeal that followed. See
Brown v. Commissioner of Correction, 181 Conn. App.
901, 182 A.3d 112, cert. denied, 329 Conn. 901, 184 A.3d
1215 (2018).
The petitioner, representing himself, then filed the
fourth and present habeas petition on October 29, 2018.
In this petition, the petitioner claims that he was not
canvassed properly about his right to appeal from the
withdrawal of his public defender before the start of
his criminal trial. That petition contains the following
assertion: ‘‘[The] petitioner is claim[ing] only being ‘not
constitutionally canvassed’ at the time [he] waived [his]
rights . . . to appeal [his] public defender’s with-
drawal . . . [and] [n]othing [else], so ther[e] [are] no
res judicata issues.’’ (Emphasis omitted.) On November
15, 2018, the habeas court granted the petitioner’s
request for appointment of counsel and his application
for a waiver of fees. On November 19, 2018, the habeas
court, Newson, J., acting on its own motion and without
prior notice to the parties, issued an order dismissing
this fourth petition as repetitious pursuant to Practice
Book § 23-29 (3). The petitioner requested certification
to appeal from that dismissal, which the habeas court
denied. The petitioner then appealed to the Appellate
Court from the dismissal of the fourth petition and the
denial of the petition for certification to appeal.
Following oral argument, the Appellate Court sum-
marily dismissed the petitioner’s appeal. Brown v. Com-
missioner of Correction, supra, 196 Conn. App. 902.
We subsequently granted the petitioner’s petition for
certification to appeal to this court in order to determine
whether the Appellate Court properly dismissed the
petitioner’s appeal challenging the propriety of the
habeas court’s dismissal of the fourth habeas petition
under Practice Book § 23-29. See Brown v. Commis-
sioner of Correction, supra, 335 Conn. 920. In the pres-
ent appeal, the petitioner renews his claim that the
habeas court should not have dismissed his petition
under § 23-29 without first providing him with prior
notice and an opportunity to be heard. In response, the
respondent claims that the habeas court’s dismissal
was proper.
The appropriate standard of review is undisputed.
‘‘Plenary review . . . is appropriate because this
appeal requires us to interpret the rules of practice.’’
Gilchrist v. Commissioner of Correction, supra, 334
Conn. 553. ‘‘The interpretive construction of the rules
of practice is to be governed by the same principles as
those regulating statutory interpretation. . . . [P]rinci-
ples of statutory construction apply with equal force
to . . . [the] rules [of practice] . . . . The interpreta-
tion and application of a statute, and thus a rule of
practice, presents questions of law over which our
review is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Heredia, 310 Conn. 742,
755, 81 A.3d 1163 (2013). ‘‘[When] the meaning of a
statute [or rule] is plain and unambiguous, the enact-
ment speaks for itself and there is no occasion to con-
strue it. Its unequivocal meaning is not subject to
modification by way of construction. . . . If a statute
or rule is ambiguous, however, we construe it with due
regard for the authors’ purpose and the circumstances
surrounding its enactment or adoption.’’ (Citations
omitted; internal quotation marks omitted.) Grievance
Committee for the Hartford-New Britain Judicial Dis-
trict v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984).
We therefore begin with the text of the applicable
provisions. Practice Book § 23-24 (a) provides: ‘‘The
judicial authority shall promptly review any petition for
a writ of habeas corpus to determine whether the writ
should issue. The judicial authority shall issue the writ
unless it appears that (1) the court lacks jurisdiction;
(2) the petition is wholly frivolous on its face; or (3) the
relief sought is not available.’’ If the judicial authority
declines to issue the writ under this rule, it ‘‘shall notify
the petitioner’’ of its decision. Practice Book § 23-24 (b).
Practice Book § 23-29 provides: ‘‘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 jurisdic-
tion; (2) the petition, or a count thereof, fails to state
a claim upon which habeas corpus relief can be granted;
(3) the petition presents the same ground as a prior
petition previously denied and fails to state new facts
or to proffer new evidence not reasonably available at
the time of the prior petition; (4) the claims asserted
in the petition are moot or premature; [or] (5) any other
legally sufficient ground for dismissal of the petition
exists.’’
This court recently analyzed the interplay between
these two provisions in Gilchrist v. Commissioner of
Correction, supra, 334 Conn. 548. In that case, we con-
cluded that Practice Book § 23-24 requires the habeas
court to review petitions before issuing a writ. See id.,
561, 562. If the habeas court declines to issue the writ
on the basis of any of the three grounds enumerated
in § 23-24, the filing is rejected and ‘‘there is no service
of process, no civil action and, accordingly, no need
for the appointment of counsel.’’ Id., 561. If the petition
is rejected under § 23-24, the judicial authority acts
without giving the petitioner prior notice or an opportu-
nity to be heard. See id., 563. Because the petitioner in
Gilchrist was not actually in custody for the conviction
being challenged when the petition was filed; id., 550;
the matter was remanded to the habeas court with
direction to decline to issue the writ pursuant to § 23-
24 (1) for lack of jurisdiction. See id., 563. In Gilchrist,
we observed that, once the habeas court issues the writ
and the action commences, Practice Book § 23-29 is
the applicable provision that allows a habeas court to
dismiss a petition. See id., 561, 563.
Gilchrist firmly established that Practice Book § 23-
24 acts as a gatekeeping mechanism that allows a
habeas court to review and dispose of a clearly defective
petition by simply providing the petitioner with notice
of its decision to decline to issue the writ. As a result
of that conclusion in Gilchrist, however, we did not
address the separate question of whether, once a writ
has issued, a petition may be dismissed by a habeas
court, on its own motion,4 under Practice Book § 23-29
without prior notice or an opportunity to be heard. This
court is now asked to determine what, if any, procedure
is required prior to a habeas court’s dismissal of a peti-
tion under § 23-29. See footnote 1 of this opinion. We
conclude that prior notice and an opportunity to submit
a brief or written response are required before a habeas
court may dismiss a petition pursuant to § 23-29.
Practice Book 23-29 has at least two plausible inter-
pretations—one that requires notice and an opportunity
to be heard before dismissal, and one that does not.
Compare Boria v. Commissioner of Correction, 186
Conn. App. 332, 341, 199 A.3d 1127 (2018) (concluding
that hearing is not required before habeas petition is
dismissed under § 23-29), rev’d, 345 Conn. 39, A.3d
(2022), with id., 353 (Bishop, J., concurring) (con-
cluding that § 23-29 should require notice and opportu-
nity to be heard prior to dismissal). ‘‘The test to
determine ambiguity is whether the statute [or rule],
when read in context, is susceptible to more than one
reasonable interpretation.’’ (Internal quotation marks
omitted.) Not Another Power Plant v. Connecticut Sit-
ing Council, 340 Conn. 762, 779, 265 A.3d 900 (2021);
see also Thomas v. Dept. of Developmental Services,
297 Conn. 391, 400, 999 A.2d 682 (2010) (‘‘Although
[statutory] silence does not . . . necessarily equate to
ambiguity . . . [the] silence [in the lien provision at
issue] renders [that] provision ambiguous with respect
to its scope because there is more than one plausible
interpretation of its meaning. . . . Accordingly, we
may consider the full panoply of available materials
with which to interpret the statute.’’ (Citations omitted;
internal quotation marks omitted.)). Because both of
these interpretations of § 23-29 are plausible, the text
is ambiguous.
Although ‘‘statute and case law evince a strong pre-
sumption that a [habeas] petitioner . . . is entitled to
present evidence in support of his claims’’; Mercer v.
Commissioner of Correction, 230 Conn. 88, 93, 644 A.2d
340 (1994); our rules of practice once allowed for the
dismissal of habeas petitions without a hearing under
specified circumstances. Specifically, Practice Book
(1995) § 531 provided: ‘‘If the petitioner has filed a previ-
ous application, it and the action taken thereon shall
be summarily described in the pending application. If
a previous application brought on the same grounds
was denied, the pending application may be dismissed
without hearing, unless it states new facts or proffers
new evidence not reasonably available at the previous
hearing.’’ This provision expressly authorized habeas
courts to dismiss repetitive petitions ‘‘without [a] hear-
ing . . . .’’ See Boria v. Commissioner of Correction,
supra, 186 Conn. App. 355 (Bishop, J., concurring).
This text was subsequently eliminated from the rules
of practice as part of a wholesale revision of the Practice
Book provisions regarding habeas proceedings. See id.,358–59 (Bishop, J., concurring).
In crafting the new language governing dismissals,
the Rules Committee expanded the bases on which a
habeas court may dismiss a habeas proceeding, after
the issuance of the writ, beyond mere repetition. See
Practice Book § 23-29. The Rules Committee, however,
chose to omit language previously contained in Practice
Book (1995) § 531 that authorized the judicial authority
to dismiss a petition without a hearing. These newly
created provisions also included, among other provi-
sions, Practice Book § 23-24, which allows the habeas
court to decline to issue the writ in the first instance
without either prior notice or an opportunity to be
heard.
The progression of these rules, read in light of our
decision in Gilchrist and their relationship to the gen-
eral rules governing habeas procedures; see Practice
Book § 23-21 et. seq.; guides us to the conclusion that
the Rules Committee intended for a habeas court to
have the authority under Practice Book § 23-24 to
decline to issue the writ without providing prior notice
or an opportunity to be heard if the court lacks jurisdic-
tion over the claim, the petition is wholly frivolous on
its face, or the relief requested in the petition is not
available. The same considerations, however, lead us
naturally to infer that the Rules Committee intended to
require something more under Practice Book § 23-29
when it chose to abandon the language previously per-
mitting a habeas court to dismiss a petition ‘‘without [a]
hearing . . . .’’5 Practice Book (1995) § 531; cf. Boria
v. Commissioner of Correction, supra, 186 Conn. App.
359 n.7 (Bishop, J., concurring) (‘‘the provisions of . . .
§§ 23-24 and 23-29, authorizing [a] habeas court to sum-
marily dispose of a writ or petition for certain enumer-
ated grounds, are complementary and not mere
duplications of the same judicial authority’’).
We likewise observe that, under Practice Book § 23-
24, a habeas court is required to provide notice to the
petitioner only after it has already declined to issue
the writ. The Rules Committee, however, chose not to
include a similar provision in Practice Book § 23-29.
This textual difference between these two provisions
provides us with yet another reason to conclude that
dismissal under § 23-29 requires additional procedural
safeguards beyond those required for a decision not to
issue the writ under § 23-24. Those procedural safe-
guards, we conclude, must include at least prior notice
to the petitioner or the petitioner’s counsel and an
opportunity to file a written response.6
It does not, however, necessarily follow from this
premise that a habeas court’s dismissal on its own
motion pursuant to Practice Book § 23-29 requires a
full hearing, particularly when both provisions contain
similar bases for dismissal. See, e.g., Practice Book § 23-
24 (a) (1); Practice Book § 23-29 (1). In reaching this
conclusion, we are guided by the public policy underly-
ing the legislature’s comprehensive habeas reform in
2012. See P.A. 12-115, § 1. As this court has previously
recognized, those amendments were ‘‘intended to sup-
plement [the] efficacy [of General Statutes § 52-470] in
averting frivolous habeas petitions and appeals.’’ Kad-
dah v. Commissioner of Correction, 324 Conn. 548,
567, 153 A.3d 1233 (2017). Although ‘‘the 2012 habeas
reform did not limit the right to counsel under [General
Statutes] § 51-296 (a) or otherwise render habeas relief
unavailable in broad categories of cases’’; id.; the pri-
mary goal underlying the legislature’s amendments was,
clearly, to address the increase in habeas petitions and
to efficiently dispose of frivolous petitions. See 55 H.R.
Proc., Pt. 5, 2012 Sess., p. 1601, remarks of Representa-
tive Arthur O’Neill (‘‘[The 2012 amendments were] the
first real progress we have made in trying to improve the
habeas corpus process in Connecticut and [to] expedite
things so that the legitimate habeas . . . petitions get
heard as quickly as possible. And what’s blocking the
system up are a lot of cases where there’s not much
merit, it seems, to the claims, but there they keep on
coming.’’). Indeed, in crafting the rules governing
habeas proceedings, the Rules Committee itself
expressly provided that ‘‘[t]he judicial authority may
establish such additional procedures as it determines
will aid in the fair and summary disposition of habeas
. . . petitions, including, but not limited to, scheduling
orders.’’ (Emphasis added.) Practice Book § 23-34.7
In ascertaining the meaning of Practice Book § 23-
29 or its interplay with Practice Book § 23-24, we need
not look to the general rules of civil procedure or the
specific provisions dealing with motions to dismiss,
such as Practice Book §§ 11-10 and 11-18. Although we
acknowledge that habeas actions are civil proceedings
in nature, the introductory provision to the general rules
governing habeas proceedings makes it clear that,
‘‘[e]xcept as otherwise provided herein, the procedures
set forth in Sections 23-22 through 23-42 shall apply
to any petition for a writ of habeas corpus which sets
forth a claim of illegal confinement.’’ (Emphasis added.)
Practice Book § 23-21. The same provision goes on to
exclude habeas petitions brought to determine the cus-
tody and visitation of children or those filed on behalf
of a person confined to a hospital on the basis of a
mental illness. Practice Book § 23-21. It is clear from
this language that the Rules Committee did not intend
for the general provisions governing civil cases to
resolve the question before us.
It would be both overly burdensome and inefficient
to require habeas courts to give full hearings on every
petition that survives the habeas court’s initial gate-
keeping review8 under Practice Book § 23-24 but that
thereafter appears to warrant dismissal under Practice
Book § 23-29. Instead, on the basis of our interpretation
of the rules as established by the Rules Committee, we
conclude that petitioners, after receiving notice of the
court’s intention to consider dismissal of the petition,
have a right to be heard on the papers by filing a brief
or a written response.9 This interpretation, we believe,
satisfies the intent of the Rules Committee’s omission
of the phrase ‘‘without [a] hearing’’ from § 23-29 and
its express allowance of postdecisional notice in § 23-
24. This reading not only maintains a meaningful distinc-
tion between §§ 23-24 and 23-29, but also prevents over-
burdening an already strained habeas docket by
requiring a full hearing for legally deficient petitions
under § 23-29. We note that a habeas court may, of
course, still hold a full hearing when it deems it appro-
priate.10
Because the habeas court in the present case did not
have the benefit of this court’s decision in Gilchrist,
the case must be remanded to the habeas court for it
to first determine whether any grounds exist for it to
decline to issue the writ pursuant to Practice Book § 23-
24.11 If the writ is issued, and the habeas court again
elects to exercise its discretion to dismiss the petition-
er’s habeas petition on its own motion pursuant to Prac-
tice Book § 23-29, it must, in accordance with the
foregoing, provide the petitioner with prior notice and
an opportunity to submit a brief or a written response
to the proposed basis for dismissal.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the habeas court’s judgment and to remand the
case to that court for further proceedings consistent
with this opinion.
In this opinion ROBINSON, C. J., and D’AURIA, MUL-
LINS, ECKER and KELLER, Js., concurred.
1
We take judicial notice of the fact that there are several other pending
appeals that raise this same issue. See Pierce v. Commissioner of Correction
(AC 44188); Howard v. Commissioner of Correction (AC 42824); Leffingwell
v. Commissioner of Correction (AC 41663); Horak v. Commissioner of
Correction (AC 41662); Brewer v. Commissioner of Correction (AC 41635).
2
The state asserted that, since 1996, the petitioner ‘‘had been the owner
of several properties, namely, a nightclub, other businesses and an airplane,
among other assets.’’ State v. Brown, supra, 256 Conn. 297 n.6. The petitioner
did not contest these assertions at trial and, indeed, still does not contest
them in the present appeal.
3
In 2013, the petitioner filed a habeas petition in federal court, challenging
his conviction on the ground that he was denied his constitutional right to
be represented by counsel at his criminal trial. Brown v. Commissioner of
Correction, Docket No. 3:13-CV-1133 JCH, 2014 WL 1820642, *3 (D. Conn.
April 4, 2014). The United States District Court for the District of Connecticut
ultimately denied the petition. See Brown v. Commissioner of Correction,
Docket No. 3:18-cv-1125 (MPS), 2018 WL 3715279, *2 (D. Conn. August 3, 2018).
The petitioner later filed a second federal habeas petition in 2018, claiming,
inter alia, that he was not canvassed before he waived his right to contest
the withdrawal of the public defender and that all of his prior counsel were
ineffective for not raising that issue. Id. The District Court transferred the
petition to the United States Court of Appeals for the Second Circuit to
determine whether it would authorize the successive petition; id., *3; and
the Second Circuit denied such authorization.
4
Practice Book § 23-29 does permit the judicial authority to dismiss a
petition ‘‘at any time, upon its own motion or upon the motion of the
respondent . . . .’’ Thus, this section allows the court to act on its own
motion, even after the writ has issued. The question remains what, if any,
process is due the petitioner before the court issues such a dismissal. As
Judge Bishop noted in his concurrence in Boria, if the respondent files a
motion to dismiss, then the petitioner would receive notice. See Boria v.
Commissioner of Correction, 186 Conn. App. 332, 363, 199 A.3d 1127 (2018)
(Bishop, J., concurring) (‘‘[when] the respondent properly serves the peti-
tioner with notice of [a] motion and the grounds therefor, and the petitioner
simply fails to exercise his right to file a brief or [to] make oral argument,
it is clear that the habeas court may properly decide the motion without
having heard from the petitioner’’), rev’d on other grounds, 345 Conn. 39,
A.3d (2022).
5
The respondent argues that the language in Practice Book § 23-29
allowing the court to dismiss a petition ‘‘at any time’’ necessarily means
that the court may dismiss a petition before giving prior notice or an opportu-
nity to respond. We disagree. As this court’s decision in Gilchrist makes
clear, that particular phrase is, itself, necessarily limited to the period of
time following issuance of the writ pursuant to Practice Book § 23-24. See
Gilchrist v. Commissioner of Correction, supra, 334 Conn. 561 (‘‘[i]t is true
that § 23-29 states that the judicial authority may take action under its
authority ‘at any time,’ but the ‘time’ it references necessarily is defined by
the time at which the rule itself becomes operative, which is after the habeas
court issues the writ and the action has commenced’’). Although the plain
text of the rule indicates that the habeas court, on its own motion or that
of the respondent, may dismiss a petition once the writ has issued, it does
not purport to eliminate procedural requirements. Simply put, the use of
the phrase ‘‘at any time’’ in § 23-29 appears to govern when, and not how,
a dismissal can occur.
6
We can discern no principled reason for concluding that the Rules Com-
mittee would implicitly require notice to a petitioner before a dismissal
under Practice Book § 23-29 without also providing the petitioner with some
means of response. Further, in cases in which counsel has already been
appointed and there is an appearance on file, counsel should receive the
notice and the date by which counsel should file a brief or a response.
7
Because this provision contemplates the creation of additional rules
specifically applicable to habeas proceedings, we respectfully disagree with
the concurrence that we must consider the relationship of Practice Book
§ 23-29 to the broader scheme of the rules for civil actions ‘‘to ensure the
coherency of our construction.’’ (Internal quotation marks omitted.) Indeed,
Practice Book § 23-21 provides in relevant part that, ‘‘[e]xcept as otherwise
provided herein, the procedures set forth in Sections 23-22 through 23-42
shall apply to any petition for a writ of habeas corpus which sets forth a
claim of illegal confinement. . . .’’
We also disagree that Practice Book § 23-34 is mirrored by Practice Book
§ 23-14, as the latter specifically limits complex litigation judges to orders
facilitating ‘‘the management of . . . complex litigation cases.’’ (Emphasis
added.) The authority vested by § 23-34 is broader. It contains no such
limitation and, in fact, expressly emphasizes that the habeas court’s discre-
tion is not limited to mere scheduling orders.
8
Although we agree with Judge Bishop that, ‘‘in the long run, a more
fulsome use of the court’s authority pursuant to [Practice Book] § 23-24
would maximize judicial efficiency’’ by ‘‘weed[ing] out inappropriate [habeas
petitions] as a preliminary matter pursuant to its gatekeeping function’’;
Boria v. Commissioner of Correction, supra, 186 Conn. App. 359 n.7 (Bishop,
J., concurring); we recognize that, in some cases, the habeas court may not
have all of the necessary information required at the time of the initial
review to make that determination.
9
As we noted at the outset, and particularly in light of Gilchrist and the
majority and concurring opinions in the present case, we expressly welcome
the Rules Committee to address the interplay between these rules and to
amend the text of the relevant rules to the extent it deems necessary.
10
Although Practice Book § 23-40 (a) affords a habeas petitioner the right
to be present at ‘‘any evidentiary hearing and at any hearing or oral argument
on a question of law which may be dispositive of the case,’’ this rule speaks
to when a petitioner’s presence is necessary and not when a hearing is
required. This rule does not require the habeas court to conduct a hearing
prior to the dismissal of the petition pursuant to Practice Book § 23-29. This
interpretation does not render the petitioner’s right to be present illusory.
Section 23-29 still serves to ensure that a petitioner has a right to be at
any hearing or oral argument that the habeas court, in its discretion, grants
on its own motion to dismiss pursuant to that section. As we noted pre-
viously, the habeas court is well within its right to hold oral argument or
to conduct a hearing when it deems it necessary.
11
We are aware that there are other cases pending before this court and
the Appellate Court that were decided without the benefit of this court’s
decision in Gilchrist. See footnote 1 of this opinion. In cases decided prior
to Gilchrist, the most efficient process to resolve those cases is to remand
them to the habeas court to determine first whether grounds exist to decline
the issuance of the writ.