Gainey v. Commissioner of Correction

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LATUAN GAINEY v. COMMISSIONER OF
CORRECTION
(AC 39791)
Lavine, Prescott and Elgo, Js.
Syllabus
The petitioner, who had been convicted, on a guilty plea, of various crimes,
sought a writ of habeas corpus. Shortly after the petitioner was released
from incarceration and began serving his term of special parole, he was
arrested and charged with risk of injury to a child and assault in the
third degree. Thereafter, the petitioner was served with a notice of
parole violation by the parole board on the basis of his failure to register
with the state police deadly offender registry unit and his arrest while
on parole. The petitioner was found to have violated the conditions of
his release and the terms of his special parole, and was sentenced to
incarceration for two years and six months of his remaining seven year
term of special parole. The habeas court rendered judgment dismissing
the habeas petition on the basis of the prior pending action doctrine,
from which the petitioner, on the granting of certification, appealed to
this court. While the appeal was pending in this court but before oral
argument had occurred, the petitioner completed the term of imprison-
ment imposed by the parole board for the petitioner’s violation of special
parole. Held that the petitioner’s appeal was moot: although the peti-
tioner was still in the custody of the respondent Commissioner of Correc-
tion and his special parole would not expire for a number of years, the
petitioner, who had been released from incarceration and readmitted
to special parole, had obtained the relief he sought in his habeas petition,
and there was no practical relief that this court could afford him; more-
over, the petitioner’s claim did not fall within the capable of repetition,
yet evading review exception to the mootness doctrine, as it was unlikely,
given the range of possible sentences for a parole violation, that a
substantial majority of the appellate cases that contest a habeas court’s
dismissal, under the prior pending action doctrine, of a petition for a
writ of habeas corpus seeking release from incarceration following the
parole board’s revocation of special parole would become moot as a
result of the petitioner completing the term of reimprisonment before
the appeal was resolved.
Argued February 1—officially released April 24, 2018
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Oliver, J., rendered judgment dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Appeal dismissed.
Joseph Patten Brown III, with whom was Delena
Brown, for the appellant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, was Maureen Platt, state’s
attorney, for the appellee (respondent).
Opinion
LAVINE, J. Following the habeas court’s granting of
certification to appeal, the petitioner, Latuan Gainey,
appeals from the judgment of the habeas court sua
sponte dismissing his petition for a writ of habeas cor-
pus. On appeal, the petitioner claims that the habeas
court abused its discretion by dismissing his petition
for a writ of habeas corpus pursuant to the prior pending
action doctrine. We dismiss the appeal as moot.
The following procedural history is relevant to our
resolution of this appeal. On March 17, 2015, the peti-
tioner pleaded guilty to the charges pending against
him in two consolidated criminal files in Waterbury for
offenses he committed on March 20, 2014, and May 20,
2012.1 At that time, the petitioner was sentenced to
serve concurrent sentences of two and one-half years
incarceration and seven years of special parole.2
On April 7, 2015, the petitioner filed a self-represented
petition for a writ of habeas corpus (first petition).3 On
September 11, 2015, the petitioner was released from
incarceration and began serving his term of special
parole. On September 23, 2015, the petitioner was
arrested and charged with risk of injury to a child in
violation of General Statutes § 53-21 and assault in the
third degree in violation of General Statutes § 53a-61
for incidents that took place one day after he was
released from prison. In his brief on appeal, the peti-
tioner represents that on September 24, 2015, he was
served with a notice of parole violation by the Board
of Pardons and Paroles (parole board) on the basis of
his failure to register with the state police deadly
offender registry unit and his September 23, 2015 arrest.
On December 8, 2015, the petitioner pleaded guilty
to one count of breach of peace in the second degree
for incidents that occurred on September 20, 2015, and
received an unconditional discharge. The petitioner
appeared before the parole board for an evidentiary
hearing on December 28, 2015. The parole board found
that the petitioner had violated the conditions of his
release and the terms of his special parole. See footnote
1 of this opinion. The parole board, therefore, sentenced
the petitioner to incarceration for two years and six
months of his remaining seven year term of special
parole.
On September 26, 2016, the petitioner filed a self-
represented petition for a writ of habeas corpus (second
petition), which is the petition at issue in the present
appeal.4 On September 29, 2016, the habeas court sua
sponte dismissed the second petition on the basis of
the prior pending action doctrine.5 See Practice Book
§ 23-29 (5).6 The habeas court granted the petition for
certification to appeal from the judgment dismissing
the second petition.
court committed legal error by dismissing his second
petition under the prior pending action doctrine and
that he was entitled to a hearing on his second petition
before it could be dismissed. While the appeal was
pending in this court, but before oral argument had
occurred, the petitioner completed the term of impris-
onment imposed by the parole board for the petitioner’s
violation of special parole on September 11, 2015. Thus,
during oral argument, the respondent, the Commis-
sioner of Correction, suggested that the appeal was
moot. Following oral argument, we sua sponte ordered
the parties to provide certain information and submit
simultaneous supplemental briefs addressing whether
the petitioner’s appeal was moot.7
In their responses to our sua sponte order, the parties
agree that the petitioner has completed the term of his
reincarceration, has been readmitted to special parole,
and is now residing in a halfway house in Waterbury.8
In his supplemental brief, the respondent argues that
the appeal is moot because the remedy the petitioner
sought in his second petition was release from incarcer-
ation and to be readmitted to special parole, which
has taken place. Consequently, he asserts, there is no
practical relief that this court can grant the petitioner.
The respondent also argues that the issue on appeal is
not subject to the capable of repetition, yet evading
review exception to the mootness doctrine. See Loisel
v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995).
In his supplemental brief, the petitioner acknowl-
edges that he has been readmitted to special parole but
argues that the appeal is not moot because he is still
in the custody of the respondent and his special parole
will not end until September 9, 2022. Although the peti-
tioner is correct that he is still in the custody of the
respondent and his special parole will not expire for
some years, that is not the issue with respect to the
appeal. In his second petition, the petitioner challenged
the parole board’s finding that he had violated his spe-
cial parole and sentenced him to incarceration. The
relief he sought pursuant to the second petition was to
be released from incarceration and readmitted to spe-
cial parole. Due to the passage of time, the petitioner
has been released from incarceration and is now on
special parole, living in a halfway house. Therefore,
because the petitioner obtained the relief he sought,
there is no practical relief this court can afford him and
his appeal is moot.
‘‘Mootness implicates the subject matter jurisdiction
of this court. . . . We will not decide questions where
there exists no actual controversy or where no actual
or practical relief can follow from our determination.
. . . An actual controversy must exist not only at the
time the appeal is taken, but also throughout the pen-
dency of the appeal. . . . Moreover, [w]hen, during the
pendency of an appeal, events have occurred that pre-
clude an appellate court from granting any practical
relief through its disposition of the merits, a case has
become moot.’’ (Citations omitted; internal quotation
marks omitted.) Peart v. Psychiatric Security Review
Board, 41 Conn. App. 688, 691, 678 A.2d 488 (1996); see
also id. (relief originally sought by plaintiff was decision
transferring him to less restrictive hospital, and because
plaintiff since obtained requested relief, appeal was
moot).
In his supplemental brief, the petitioner argues that
the issue on appeal is subject to the capable of repeti-
tion, yet evading review exception to the mootness doc-
trine. We disagree.
‘‘To qualify under this exception, an otherwise moot
question must satisfy the following three requirements:
First, the challenged action, or the effect of the chal-
lenged action, by its very nature, must be of a limited
duration so that there is a strong likelihood that the
substantial majority of cases raising a question about
its validity will become moot before appellate litigation
can be concluded. Second, there must be a reasonable
likelihood that the question presented in the pending
case will arise again in the future, and that it will affect
either the same complaining party or a reasonably iden-
tifiable group for whom that party can be said to act
as surrogate. Third, the question must have some public
importance. Unless all three requirements are met, the
appeal must be dismissed as moot.’’ (Internal quotation
marks omitted.) We the People of Connecticut, Inc. v.
Malloy, 150 Conn. App. 576, 583, 92 A.3d 961, cert.
denied, 314 Conn. 919, 100 A.3d 850 (2014); see also
Loisel v. Rowe, supra, 233 Conn. 382–83.
‘‘The first element in the analysis pertains to the
length of the challenged action.’’ Loisel v. Rowe, supra,
233 Conn. 383. ‘‘If an action or its effects is not of
inherently limited duration, the action can be reviewed
the next time it arises, when it will present an ongoing
live controversy. Moreover, if the question presented
is not strongly likely to become moot in the substantial
majority of cases in which it arises, the urgency of
deciding the pending case is significantly reduced. . . .
[A] party typically satisfies this prong if there exists a
functionally insurmountable time [constraint] . . . .’’
(Citations omitted; internal quotation marks omitted.)
Patterson v. Commissioner of Correction, 112 Conn.
App. 826, 835–36, 964 A.2d 1234 (2009).
In the present appeal, the exception to the mootness
doctrine requires that there be a functionally insur-
mountable time constraint inherent in dismissing a peti-
tion for a writ of habeas corpus for a petitioner who
has been incarcerated for a portion of his term of special
parole; additionally, the time constraint must create a
strong likelihood that a substantial majority of cases
challenging the dismissal of the petition under the prior
pending action doctrine will become moot before the
appeal is resolved. A petitioner whose special parole
has been revoked faces imprisonment over the term of
special parole that may vary in length from a minimum
of one year to a maximum of ten years per offense. For
certain crimes, and under certain circumstances, the
term of special parole may be longer. See General Stat-
utes § 54-125e (c);9 see also State v. Brown, 310 Conn.
693, 710, 80 A.3d 878 (2013) (legislature has not
expressed intention to prevent trial court from imposing
sentences of special parole consecutively). Conse-
quently, given the range of possible sentences for a
parole violation, it is unlikely that a substantial majority
of the appellate cases that contest the habeas court’s
dismissal, under the prior pending action doctrine, of
a petition for a writ of habeas corpus seeking release
from incarceration following the parole board’s revoca-
tion of special parole will become moot as the result of
the petitioner’s completing the term of reimprisonment
before the appeal is resolved. The petitioner, therefore,
has failed to meet the first prong of Loisel. The petition-
er’s claim does not qualify for review under the capable
of repetition, yet evading review exception to the moot-
ness doctrine, because it cannot satisfy Loisel’s three
requirements required for review.10 See We the People
of Connecticut, Inc. v. Malloy, supra, 150 Conn. App.
583. For the foregoing reasons, we dismiss the appeal
as moot.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner was charged with two counts of carrying a pistol without
a permit in violation of General Statutes § 29-35, one count of reckless
endangerment in the first degree in violation of General Statutes § 53a-63,
and one count of possession of narcotics with intent to sell in violation of
General Statutes § 21a-277 (a).
2
The petitioner also was ordered to register as a deadly weapon offender.
3
In his first petition, the petitioner alleged that the plea agreement underly-
ing his guilty pleas was breached because he received only 619 days of jail
time credit rather than 734 days of jail time credit that he was promised.
The petitioner contended that he ‘‘agreed to plead guilty because [he] was
told that [he] would be granted all [his] jail credit from 6-12-12 to 6-20-13
and 3-21-14 to 3/17-15, which is a total of 734 days, not 619, not because
[he] was guilty.’’ He claimed, therefore, that he was entitled either to the
promised jail time credit or to withdraw his guilty plea. The first petition
is not at issue in this appeal.
4
The second petition concerns the parole board’s determination that the
petitioner had violated his special parole, its revocation of his special parole,
and its imposition of a sentence of incarceration of two years and six months.
The parole board’s determination was predicated in part on the petitioner’s
arrest for risk of injury to a child and assault in the third degree while on
parole, and his subsequent guilty plea to breach of peace. The petitioner
alleged that his renewed incarceration violated his right to due process
because he was not permitted to attend a preliminary hearing on the question
of whether he had violated his special parole and only was permitted to
attend the hearing on the question of whether his special parole should be
revoked. The petitioner, therefore, alleged that he was unable to cross-
examine witnesses who accused him of violating his special parole and to
present alibi evidence. Consequently, the petitioner alleged that the parole
board based its determination that he had violated his special parole on
‘‘incorrect’’ evidence and false documents.
5
‘‘The prior pending action doctrine permits the court to dismiss a second
case that raises issues currently pending before the court. The pendency
of a prior suit of the same character, between the same parties, brought to
obtain the same end or object, is, at common law, good cause for abatement.
It is so, because there cannot be any reason or necessity for bringing the
second, and, therefore, it must be oppressive and vexatious. This is a rule
of justice and equity, generally applicable, and always, where the two suits
are virtually alike, and in the same jurisdiction. . . . The policy behind the
prior pending action doctrine is to prevent unnecessary litigation that places
a burden on our state’s already crowded court dockets.’’ (Citation omitted;
internal quotation marks omitted.) Selimoglu v. Phimvongsa, 119 Conn.
App. 645, 649, 989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).
6
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 . . .
‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’
(Emphasis added.)
7
We sua sponte ordered ‘‘that both parties attempt to agree upon a stipula-
tion of facts regarding:
‘‘1. Where the petitioner presently resides;
‘‘2. The petitioner’s status, i.e., whether he is on special parole;
‘‘3. Is the petitioner subject to the custody of the commissioner of cor-
rection;
‘‘4. Whether the petitioner has a release date, and if so, what is that date;
‘‘The parties may stipulate to other facts that they believe will aid this
court in resolving the question of mootness. If the parties are able to stipulate
to some or all of the requested facts, they shall file a joint stipulation with
the Appellate Court clerk no later than February 16, 2018. If the parties are
unable to stipulate to all of the requested facts, each party shall separately
file with the Appellate Court clerk, on or before February 16, 2018, a letter,
with supporting documentation, setting forth the facts as they believe them
to be with respect to the question of mootness.
‘‘The parties are further ordered to file simultaneous supplemental briefs,
of no more than [five] pages, on or before February 16, 2018, addressing
the issue of whether the appeal is moot, and if so, whether it is capable of
repetition yet evading review. See Loisel v. Rowe, 233 Conn. 370, 378, 660
A.2d 323 (1995).’’
8
The petitioner was released from incarceration on November 22, 2017.
9
General Statutes § 54-125e (c) provides that ‘‘[t]he period of special
parole shall be not less than one year or more than ten years, except that
such period may be for more than ten years for a person convicted of a
violation of subdivision (2) of section 53-21 of the general statutes in effect
prior to October 1, 2000, subdivision (2) of subsection (a) of section 53-21
or section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b or sentenced
as a persistent dangerous felony offender pursuant to subsection (i) of
section 53a-40 or as a persistent serious felony offender pursuant to subsec-
tion (k) of section 53a-40.’’
10
Moreover, we conclude that the petitioner cannot serve as a surrogate
for a reasonably identifiable group, as the issue in the present case is one
of first impression and is not likely to arise again. See Loisel v. Rowe, supra,
233 Conn. 384–87. Because it is not likely to arise again and the issue is
limited to the petitioner, it, therefore, lacks public importance. See id., 387.