Boria v. Commissioner of Correction

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PETER BORIA v. COMMISSIONER OF CORRECTION
(AC 39715)
Prescott, Moll and Bishop, Js.
Syllabus
The petitioner, who previously had been convicted, on a guilty plea, of
robbery in the first degree and of being a persistent dangerous felony
offender, filed a third petition for a writ of habeas corpus, claiming,
inter alia, that amendments to the risk reduction earned credits statute
(§ 18-98e) violated the ex post facto clause of the federal constitution
and that his guilty plea was not knowingly and voluntarily made. The
habeas court, sua sponte, dismissed the third petition without a hearing.
With respect to the petitioner’s ex post facto claim regarding risk reduc-
tion earned credits, the court concluded that it lacked jurisdiction
because there was no cognizable liberty interest to such credit. The
court also dismissed the petitioner’s challenge to the voluntariness of
his guilty plea as an improper successive claim. From the judgment
rendered thereon, the petitioner, on the granting of certification,
appealed to this court. Held:
1. The petitioner could not prevail on his claim that the habeas court improp-
erly dismissed the portion of his third habeas petition alleging an ex
post facto violation regarding statutory amendments to the risk reduc-
tion earned credit program: the petitioner’s claim that the habeas court’s
dismissal of his petition without holding a hearing violated the applicable
rule of practice (§ 23-40) was unavailing, as the third petition alleged
only the deprivation of risk reduction earned credit, which our Supreme
Court and this court previously have held is insufficient to invoke the
habeas court’s jurisdiction, and, thus, in light of that binding precedent
establishing the habeas court’s lack of jurisdiction, the habeas court
was not obligated to grant the petitioner a hearing before dismissing
the habeas petition and acted properly in dismissing this portion of the
petitioner’s third habeas petition; moreover, the habeas court’s dismissal
for lack of jurisdiction was proper, as § 18-98e, which provides that an
inmate made by eligible to earn risk reduction credit at the discretion
of the respondent Commissioner of Correction, does not support an
expectation that an inmate will automatically earn risk reduction credit
or will necessarily retain such credit once it has been awarded, like
parole eligibility, there is no cognizable liberty interest in earning risk
reduction credits in order to obtain an earlier end of sentence date, and
the claim did not implicate the ex post facto clause given that the
petitioner committed the underlying robbery in 2009, prior to the enact-
ment of the risk reduction earned credit statutes, and, thus, that the
statutory amendment excluding persistent dangerous felony offenders
for risk reduction earned credit eligibility simply put the petitioner in
the same position that he was in when he committed the offense for
which he was sentenced.
2. The habeas court properly dismissed the third habeas petition pursuant
to the rule of practice (§ 23-29) that allows for the dismissal of a pending
habeas petition without a hearing if a previous petition was brought on
the same grounds and the new petition did not state new facts or proffer
new evidence not reasonably available at the pervious hearing; although
the habeas court incorrectly concluded that the petitioner’s claim involv-
ing the voluntariness of his plea was an improper successive claim, as
it had not been raised in any prior habeas petition, the dismissal was
nonetheless proper under the doctrine of collateral estoppel, as the
first and third habeas petitions, which alleged different claims, were
predicated on the same underlying factual allegation, namely, that the
petitioner was not aware of the charges pending against him, that central
factual allegation necessary to sustain the petitioner’s claim of an invol-
untary plea was fully and fairly litigated and decided adversely to the
petitioner in the first habeas action, and, therefore, the petitioner was
precluded by collateral estoppel from litigating the same issue in regard
to his claim of an involuntary plea.
(One judge concurring separately)
Argued September 14—officially released December 4, 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
habeas petition, from which the petitioner, on the grant-
ing of certification, appealed to this court. Affirmed.
Nicholas A. Marolda, assigned counsel, with whom,
on the brief, was Temmy Ann Miller, assigned counsel,
for the appellant (petitioner).
Kathryn W. Bare, assistant state’s attorney, and Ste-
phen R. Finucane, assistant attorney general, with
whom, on the brief, was Maureen Platt, state’s attorney,
for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Peter Boria, appeals,
following the granting of his petition for certification
to appeal, from the judgment of the habeas court dis-
missing his petition for a writ of habeas corpus pursuant
to Practice Book § 23-29.1 The petitioner claims that
the habeas court improperly dismissed his claim (1)
that amendments to the risk reduction earned credits
statute in 2013 and 2015 violated the ex post facto clause
of the United States constitution2 and (2) that his right
to due process had been violated because his guilty
plea in his underlying criminal case was not knowingly
and voluntarily made. As to the first claim, we disagree
and, accordingly, affirm that aspect of the judgment of
the habeas court. As to the second claim, although we
agree with the petitioner that the habeas court should
not have dismissed that claim as an improper successive
petition under Practice Book § 23-29, we affirm that
aspect of the judgment on the alternative ground that
it was barred by collateral estoppel.3
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. The
petitioner currently is serving a sentence of twenty
years of incarceration after pleading guilty on October
6, 2009, to the charges of robbery in the first degree in
violation of General Statutes § 53a-134 (a) (4) and to
being a persistent dangerous felony offender in viola-
tion of General Statutes § 53a-40.
On July 18, 2011, the petitioner filed a petition for a
writ of habeas corpus alleging ineffective assistance of
trial counsel in violation of the sixth and fourteenth
amendments to the United States constitution (first
petition). Among other things, the first petition specifi-
cally alleged that, prior to his election to plead guilty,
‘‘[d]efense counsel failed to inform the petitioner of the
applicable [charges] against him,’’ including that the
petitioner was being charged as a persistent dangerous
felony offender. On July 13, 2013, the habeas court
issued an oral ruling denying the first petition, and the
petitioner did not appeal therefrom.
On February 8, 2016, the petitioner filed two addi-
tional habeas petitions. One petition, docketed as TSR-
CV-XX-XXXXXXX-S (second petition), was filed pro se and
sought the restoration of good time credits that the
petitioner claimed he was eligible for and had been
receiving. The habeas court, Oliver, J., dismissed the
second petition for lack of jurisdiction pursuant to Prac-
tice Book § 23-24 (a) (1).4 The petitioner filed a petition
for certification to appeal, which was granted by the
habeas court. The petitioner’s appeal from the dismissal
of the second petition was heard alongside this appeal,
and the judgment of the habeas court was summarily
affirmed by this court in a memorandum decision
(AC 39028).5
The other petition was docketed as TSR-CV-16-
4008315-S (third petition), and it is that petition that
underlies the present appeal. In the third petition, the
petitioner raised several claims, including an ex post
facto challenge to legislative amendments to the risk
reduction earned credit statutes and that his guilty plea
was not voluntarily made. The risk reduction earned
credit statutes provide that certain prisoners convicted
of crimes committed after October 1, 1994, ‘‘may be
eligible to earn risk reduction credit toward a reduction
of such person’s sentence, in an amount not to exceed
five days per month, at the discretion of the Commis-
sioner of Correction’’ for certain positive behaviors
while incarcerated. General Statutes § 18-98e (a). Num-
ber 13-3, § 59, of the 2013 Public Acts, effective July
1, 2013, eliminated statutory language that previously
permitted a prisoner’s parole eligibility date to be
advanced by the application of risk reduction earned
credits.6 Number 15-216, § 9, of the 2015 Public Acts,
effective October 1, 2015, amended General Statutes
§ 18-98e to exclude inmates convicted of being a persis-
tent dangerous felony offender from earning risk reduc-
tion credits.
On September 7, 2016, the habeas court, Oliver, J.,
sua sponte dismissed the third petition pursuant to
Practice Book § 23-29. With respect to the petitioner’s
ex post facto claim regarding risk reduction earned
credits, the court dismissed that claim for lack of juris-
diction because it concluded that there was no cogniza-
ble liberty interest in such credits. See Practice Book
§ 23-29 (1).
Additionally, the habeas court dismissed the petition-
er’s challenge to the voluntariness of his guilty plea as
an improper successive claim. See Practice Book § 23-
29 (3). Regarding that claim, the court stated in its
judgment of dismissal that ‘‘the instant petition presents
the same ground as a prior petition previously denied
(TSR-CV-XX-XXXXXXX-S) and fails to state new facts or
proof of new evidence reasonably available at the time
of the prior petition.’’ The habeas court also concluded
that, in a prior habeas proceeding, the habeas court
found that the ‘‘petitioner was made aware of his persis-
tent felony offender status and the prosecuting author-
ity’s filing of a ‘part B’ information.’’ The court granted
certification to appeal, and this appeal followed.
We begin by setting forth our standard of review for
a challenge to the dismissal of a petition for a writ of
habeas corpus. ‘‘The conclusions reached by the trial
court in its decision to dismiss [a] habeas petition are
matters of law, subject to plenary review. . . . [If] the
legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct
. . . and whether they find support in the facts that
appear in the record. . . . To the extent that factual
findings are challenged, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous.’’ (Citation omitted; internal quo-
tation marks omitted.) Johnson v. Commissioner of
Correction, 168 Conn. App. 294, 301–302, 145 A.3d 416,
cert. denied, 323 Conn. 937, 151 A.3d 385 (2016).
I
We first address the petitioner’s claim that the habeas
court improperly dismissed that portion of the third
petition alleging an ex post facto violation regarding
statutory amendments to the earned risk reduction
credit program. There are two aspects to this claim. The
petitioner argues that the court improperly (1) failed
to hold a hearing before dismissing the petition, and
(2) dismissed the claim for lack of jurisdiction.7 We are
not persuaded by the petitioner’s contentions.
A
The petitioner first argues that the habeas court
improperly dismissed the third petition on its own
motion without holding a hearing. Specifically, the peti-
tioner argues that the court’s failure to hold a hearing
on the third petition violated Practice Book § 23-40 and
deprived him of his right to such a hearing under Mercer
v. Commissioner of Correction, 230 Conn. 88, 644 A.2d
340 (1994), General Statutes § 52-470, and Practice
Book § 23-29. We disagree that a hearing was required
in this case.
Whether the habeas court was required to hold a
hearing prior to dismissing a habeas petition presents
a question of law subject to plenary review. Green v.
Commissioner of Correction, 184 Conn. App. 76, 82,
A.3d , cert. denied, 330 Conn. 933, A.3d
(2018). ‘‘Pursuant to Practice Book § 23-29, the habeas
court 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 . . . .’’ (Internal quotation marks
omitted.) Holliday v. Commissioner of Correction, 184
Conn. App. 228, 234, A.3d (2018); see also Gilchrist
v. Commissioner of Correction, 180 Conn. App. 56, 182
A.3d 690 (habeas court had no obligation to conduct
hearing before dismissing petition pursuant to Practice
Book § 23-29), cert. granted, 329 Conn. 908, 186 A.3d
13 (2018).
In Holliday, the petitioner filed a petition for a writ
of habeas corpus in which he alleged that legislative
changes to the risk reduction earned credit statute vio-
lated the ex post facto clause of the United States consti-
tution. Holliday v. Commissioner of Correction, supra,
184 Conn. App. 232. The habeas court dismissed the
petition pursuant to Practice Book § 23-29, and the peti-
tioner appealed from the judgment claiming that the
court erred in dismissing his petition (1) for lack of
jurisdiction and (2) without notice or a hearing. Id.,
230. This court held that, for purposes of the habeas
court’s subject matter jurisdiction, which is predicated
on the deprivation of a recognized liberty interest, there
is no liberty interest in the application of risk reduction
earned credit toward an inmate’s parole eligibility. Id.,
233–34. Additionally, this court held that the habeas
court was not required to provide notice or a hearing
before dismissing the petition. Id., 236.
Although, under Practice Book § 23-40, ‘‘[h]abeas
petitioners generally have 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 . . . Practice Book § 23-40 speaks only to the peti-
tioner’s right to be present at an evidentiary hearing
when such a hearing is held. Such hearings are not
always required, as Practice Book § 23-29 authorizes
the court to dismiss a habeas petition on its own
motion. . . .
‘‘[A] petitioner’s right to a hearing before a habeas
court is not absolute. . . . [T]his court [has] held that
the habeas court acted properly in dismissing a habeas
petition pursuant to Practice Book § 23-29 without first
holding a hearing because it could be determined from
a review of the petition [that] the petitioner had not
satisfied his obligation to allege sufficient facts in his
pleading to establish jurisdiction.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Holliday v. Commissioner of Correction, supra, 184
Conn. App. 236–37.8
Here, as in Holliday, the habeas court could deter-
mine from a review of the third petition that the peti-
tioner had failed to allege sufficient facts to establish
jurisdiction. The third petition alleged only the depriva-
tion of risk reduction earned credit, which our Supreme
Court and this court have held is insufficient to invoke
the habeas court’s jurisdiction. See Perez v. Commis-
sioner of Correction, 326 Conn. 357, 373–74, 163 A.3d
597 (2017); Holliday v. Commissioner of Correction,
supra, 237–38. Therefore, in light of binding precedent
establishing the habeas court’s lack of subject matter
jurisdiction,9 we find that the habeas court was not
obligated to grant the petitioner a hearing before dis-
missing the petition and acted properly in dismissing
this portion of the third petition.
B
The petitioner next argues that the habeas court
improperly dismissed for lack of jurisdiction that por-
tion of the third petition alleging an ex post facto viola-
tion regarding statutory amendments to the earned risk
reduction credit program. Although the petitioner rec-
ognizes that ordinarily the habeas court’s subject matter
jurisdiction is predicated on the deprivation of a recog-
nized liberty interest, the petitioner argues that ‘‘no
liberty interest is required for the petitioner to raise a
cognizable ex post facto claim,’’ and that being excluded
from earning risk reduction credits guarantees that the
petitioner will be incarcerated longer, violating the ex
post facto clause. We disagree.
The following additional facts are relevant to this
claim. In 2011, while the petitioner was incarcerated,
the legislature enacted General Statutes § 18-98e. Sec-
tion 18-98e authorizes the Commissioner of Correction
to award, in his or her discretion, risk reduction earned
credits. The risk reduction earned credit program
allows an eligible convicted prisoner to earn credit
toward a reduction of his or her sentence. In 2015, the
General Assembly amended § 18-98e, rendering persis-
tent dangerous felony offenders, such as the petitioner,
ineligible to earn risk reduction credits. See Public Acts
2015, No. 15-216, § 9 (a).
We turn to our standard of review and applicable
legal principles for this claim. ‘‘It is well settled that [a]
determination regarding a trial court’s subject matter
jurisdiction is a question of law and, therefore, we
employ the plenary standard of review and decide
whether the court’s conclusions are legally and logically
correct and supported by the facts in the record.’’ (Inter-
nal quotation marks omitted.) Petaway v. Commis-
sioner of Correction, 160 Conn. App. 727, 731, 125 A.3d
1053 (2015), cert. dismissed, 324 Conn. 912, 153 A.3d
1288 (2017).
‘‘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 peti-
tioner 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 con-
stitutionally protected liberty [interest] . . . the inter-
est must be one that is assured either by statute, judicial
decree, or regulation.’’ (Citations omitted; internal quo-
tation marks omitted.) Green v. Commissioner of Cor-
rection, supra, 184 Conn. App. 85. Our Supreme Court
and this court have held that there is no liberty interest
in the application of risk reduction eligibility credit
toward an inmate’s parole eligibility. Perez v. Commis-
sioner of Correction, supra, 326 Conn. 371; Green v.
Commissioner of Correction, supra, 85.
In the present case, the petitioner argues that ‘‘[t]he
court’s basis for concluding that it lacked jurisdiction—
that there [is] no recognized liberty interest in parole
eligibility . . . cannot support the court’s dismissal.’’
(Internal quotation marks omitted.) The petitioner
states that ‘‘parole eligibility is irrelevant’’ and that the
statutory changes at issue ‘‘do not affect when the peti-
tioner will become eligible for parole’’ but rather, ‘‘they
affect only his end of sentence date.’’ In other words,
the petitioner attempts to draw a distinction between
circumstances in which the loss of risk reduction credit
affects a prisoner’s end of sentence date from those
in which it affects a prisoner’s parole eligibility date.
Specifically, the petitioner argues that ‘‘by excluding
[him] from the opportunity to earn [risk reduction cred-
its] . . . the probability that his sentence will increase,
and that he will be incarcerated longer . . . is guaran-
teed,’’ and that this is a violation of the ex post facto
clause.
‘‘Pursuant to § 18-98e . . . an inmate is not guaran-
teed a certain amount of risk reduction credits per
month—or, in fact, any credits at all.’’ Green v. Commis-
sioner of Correction, supra, 184 Conn. App. 86. As we
stated in Green, ‘‘[t]he fact that the commissioner is
vested with such broad discretion in implementing the
[risk reduction earned credit] program is significant.
Our appellate courts have concluded, consistently, that
an inmate does not have a constitutionally protected
liberty interest in certain benefits—such as good time
credits, risk reduction credits, and early parole consid-
eration—if the statutory scheme pursuant to which the
commissioner is authorized to award those benefits is
discretionary in nature.’’ Id., 86–87.
‘‘[T]he plain language of § 18-98e (a) . . . provides
that an inmate may be eligible to earn risk reduction
credit at the discretion of the [respondent] . . . [who]
may, in his or her discretion, cause the loss of all or a
portion of such earned risk reduction credit for any act
of misconduct or insubordination or refusal to conform
to recommended programs or activities or institutional
rules occurring at any time during the service of the
sentence or for other good cause. Although the legisla-
ture has provided guidance to the respondent as to how
to exercise his discretion, the respondent still has broad
discretion to award or revoke risk reduction credit. As
such, the statute does not support an expectation that
an inmate will automatically earn risk reduction credit
or will necessarily retain such credit once it has been
awarded.’’ (Citations omitted; internal quotation marks
omitted.) Perez v. Commissioner of Correction, supra,
326 Conn. 372.
Like parole eligibility, there is no cognizable liberty
interest in earning risk reduction credits in order to
obtain an earlier end of sentence date. In Green, we
held that, although the petitioner argued that the loss
of risk reduction credit ‘‘[bore] directly on the duration
of his sentence,’’ the court did not have jurisdiction
over the claim. Green v. Commissioner of Correction,
supra, 184 Conn. App. 84. Moreover, the claim fails
to implicate the ex post facto clause. The traditional
approach in determining whether a colorable ex post
facto claim exists requires us to compare the statute
that was in effect at the time of the petitioner’s offense
to the challenged statute. See Perez v. Commissioner
of Correction, supra, 326 Conn. 378–80. In the present
case, the petitioner committed the robbery underlying
his conviction in 2009, prior to the enactment of the
risk reduction earned credits statutes. Therefore, the
statutory amendment excluding persistent dangerous
felony offenders for risk reduction earned credit eligi-
bility simply put the petitioner in the same position that
he was in when he committed the offense for which
he was sentenced. The fact that the claimed liberty
interest in the present matter pertains to the petitioner’s
maximum release date, rather than his date of parole
eligibility, is immaterial because the sentence that the
petitioner received based on the statutory scheme in
effect at the time he committed the offense has not
been changed. No ex post facto violation occurred,
and no cognizable liberty interest is implicated by the
petitioner’s loss of risk reduction earned credits.
Accordingly, the habeas court properly dismissed this
portion of the third petition.
II
We next address the petitioner’s claim that the habeas
court improperly dismissed that portion of the third
petition alleging that his guilty plea was not voluntary
on the ground that the claim constituted an improper
successive petition pursuant to Practice Book § 23-29
(3). Specifically, the petitioner argues that the third
petition presents new grounds that were neither raised
in the first petition nor litigated at the habeas trial in
that case. According to the petitioner, because the first
petition alleged ineffective assistance of counsel, and
not a freestanding due process claim challenging the
voluntariness of his plea, the claim raised in the third
petition was not improperly successive. Although the
respondent, the Commissioner of Correction (commis-
sioner), concedes that the habeas court improperly dis-
missed the third petition for being improperly
successive, it contends that the judgment of dismissal
nonetheless should be affirmed because the factual
basis for the petitioner’s claim was fully and fairly liti-
gated and decided adversely to him in the first habeas
action. We agree with the commissioner and, therefore,
affirm the habeas court’s judgment dismissing this
count on the alternative ground that the claim is barred
by collateral estoppel.10
We begin our analysis by reviewing the doctrines of
res judicata and collateral estoppel in habeas corpus
proceedings. Pursuant to Practice Book § 23-29, ‘‘[i]f a
previous application brought on the same grounds was
denied, the pending application may be dismissed with-
out hearing, unless it states new facts or proffers new
evidence not reasonably available at the previous hear-
ing.’’ (Footnote omitted; internal quotation marks omit-
ted.) Zollo v. Commissioner of Correction, 133 Conn.
App. 266, 277, 35 A.3d 337, cert. granted, 304 Conn. 910,
39 A.3d 1120 (2012) (appeal dismissed May 1, 2013).
‘‘[A] petitioner may bring successive petitions on the
same legal grounds if the petitions seek different relief.
. . . But where successive petitions are premised on
the same legal grounds and seek the same relief, the
second petition will not survive a motion to dismiss
unless the petition is supported by allegations and facts
not reasonably available to the petitioner at the time
of the original petition.’’ (Emphasis omitted; internal
quotation marks omitted.) Id., 278.
‘‘Our courts have repeatedly applied the doctrine of
res judicata to claims duplicated in successive habeas
petitions filed by the same petitioner. . . . In fact, the
ability to dismiss a petition [if] it presents the same
ground as a prior petition previously denied and fails
to state new facts or to proffer new evidence not reason-
ably available at the time of the prior petition is memori-
alized in Practice Book § 23-29 (3).’’ (Citations omitted;
internal quotation marks omitted.) Diaz v. Commis-
sioner of Correction, 125 Conn. App. 57, 64–65, 6 A.3d
213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150
(2011).
‘‘[T]he application of the doctrine of res judicata is
limited in habeas actions to claims that actually have
been raised and litigated in an earlier proceeding.’’
(Internal quotation marks omitted.) Johnson v. Com-
missioner of Correction, supra, 168 Conn. App. 310.
This court has held that ‘‘the principle of claim preclu-
sion applie[s] when identical claims [are] argued on
direct appeal and habeas review.’’ (Emphasis omitted.)
Diaz v. Commissioner of Correction, supra, 125 Conn.
App. 66.
The first petition and the third petition do not present
identical claims. The first petition asserted a claim of
ineffective assistance of counsel. The third petition
asserts a freestanding due process claim that the peti-
tioner’s plea was involuntary. Therefore, the habeas
court in the present case, as the commissioner con-
cedes, incorrectly concluded that the petitioner’s claim
involving the voluntariness of his plea was an improper
successive claim because it was precluded by the doc-
trine of res judicata. Simply put, the petitioner had not
raised the instant claim in any of the prior habeas
petitions.
We nonetheless agree with the commissioner that
we should affirm the habeas court’s judgment on the
alternative ground of collateral estoppel. ‘‘Under [Prac-
tice Book § 23-29 (5)], the court may dismiss [a habeas]
petition or any count thereof if it determines that any
other legally sufficient ground for dismissal of the peti-
tion exists.’’ (Internal quotation marks omitted.) Mozell
v. Commissioner of Correction, 147 Conn. App. 748,
758 n.8, 83 A.3d 1174, cert. denied, 311 Conn. 928, 86
A.3d 1057 (2014).
‘‘The common-law doctrine of collateral estoppel, or
issue preclusion, embodies a judicial policy in favor of
judicial economy, the stability of former judgments and
finality. . . . Collateral estoppel . . . is that aspect of
res judicata which prohibits the relitigation of an issue
when that issue was actually litigated and necessarily
determined in a prior action between the same parties
upon a different claim. . . . For an issue to be subject
to collateral estoppel, it must have been fully and fairly
litigated in the first action. It also must have been actu-
ally decided and the decision must have been necessary
to the judgment. . . . An issue is actually litigated if it
is properly raised in the pleadings or otherwise, submit-
ted for determination, and in fact determined. . . . An
issue is necessarily determined if, in the absence of a
determination of the issue, the judgment could not have
been validly rendered. . . . [C]ollateral estoppel [is]
based on the public policy that a party should not be
able to relitigate a matter which it already has had an
opportunity to litigate. . . . Stability in judgments
grants to parties and others the certainty in the manage-
ment of their affairs which results when a controversy is
finally laid to rest.’’ (Citation omitted; internal quotation
marks omitted.) Johnson v. Commissioner of Correc-
tion, supra, 168 Conn. App. 310–11.
We previously have affirmed judgments of the habeas
court on the alternative ground of collateral estoppel.
In Johnson, the petitioner alleged that his third habeas
counsel was ineffective because she did not raise the
issue of whether trial counsel was ineffective for failing
to file a motion for a competency evaluation. Id., 308.
The habeas court dismissed the claim as an improper
successive claim under the doctrine of res judicata. Id.
This court held that the claim was dismissed on
improper grounds because the petitioner had not raised
the identical claim in any of his prior habeas petitions.
Id., 309. This court, however, affirmed the dismissal
of the petitioner’s claim on the alternative ground of
collateral estoppel under Practice Book § 23-29 (5).11
Id., 312.
We agree with the commissioner that the central fac-
tual allegation necessary to sustain the petitioner’s
claim of an involuntary plea was fully and fairly litigated
and decided adversely to the petitioner in the first
habeas action. In the first petition, the petitioner set
forth a claim of ineffective assistance of counsel prem-
ised on an allegation that his counsel failed to inform
him of the applicable charges against him. In adjudicat-
ing that claim of ineffective assistance of counsel, the
first habeas court was required to decide whether his
defense counsel had failed to inform him of all of the
charges, including the persistent dangerous felony
offender charge. In the third petition, the petitioner
claims that his plea was involuntary because he was not
aware that he was pleading guilty to being a persistent
dangerous felony offender. Therefore, although the first
and third petitions present different claims, they are
predicated on the same underlying factual allegation,
namely, that the petitioner was not aware of the charges
pending against him. The claim presented in the third
petition depends on this factual allegation, which was
fully and fairly litigated in the previous habeas proceed-
ing and was decided adversely to him in that case by
the habeas court.
Specifically, in its memorandum of decision denying
the first habeas petition, the habeas court, Newson, J.,
found that counsel credibly testified that the petitioner
was informed that he was being charged as a persistent
dangerous felony offender. The memorandum of deci-
sion stated that the court credited defense counsel’s
testimony that defense counsel had properly discussed
and advised the petitioner of the facts and circum-
stances of the case. The court found that the petitioner
had admitted that he understood the fact that he was
facing a part B information as a persistent dangerous
felony offender and that he was exposed to a sixty
year sentence.
Further, Judge Newson stated, ‘‘[a]nd so again, the
substance and the length of the visits is not necessarily
a correlation to the quality or the information that’s
delivered in those visits and the court credits counsel’s
testimony that the petitioner was aware. Additionally,
there’s a plea canvass which the petitioner appears to
have made it through without any significant issues,
any questions, any lack of understanding, and the law
indicates that the court is allowed to rely on those
answers and responses as credible and accurate when
given. And when an individual is asked if he or she has
any questions or lacks any understanding during the
plea canvass and can answer that in the negative, then
the court is allowed to accept that as accurate and
truthful when given and that again presents issues when
a petitioner later comes in a habeas and claims that he
did not or does not understand.’’
Finally, the court stated, ‘‘[a]nd again, so the record
is clear . . . I found in general that counsel appeared
to be competent and knowledgeable . . . I credit her
testimony that she provided the petitioner with all of
the information necessary for him to make a knowing,
intelligent, and voluntary guilty plea.’’ (Emphasis
added.) Therefore, whether the petitioner entered his
plea knowing that he was pleading guilty to being a
persistent dangerous felony offender was a fact that was
fairly litigated and actually decided by the habeas court.
Because the habeas court necessarily decided
adversely to the petitioner the underlying issue of
whether he knew that he was pleading guilty to being
a persistent dangerous felony offender in a previous
habeas hearing, the petitioner is precluded by collateral
estoppel from litigating the same issue in regard to his
claim of an involuntary plea. The habeas court thus
properly dismissed the third petition pursuant to Prac-
tice Book § 23-29.
The judgment is affirmed.
In this opinion MOLL, J., concurred.
1
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 jurisdiction;
‘‘(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;
‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’
2
The constitution of the United States, article one, § 10, provides in rele-
vant part: ‘‘No State shall . . . pass any . . . ex post facto Law . . . .’’
3
‘‘[I]t is axiomatic that [w]e may affirm a proper result of the trial court
for a different reason.’’ (Internal quotation marks omitted.) Coleman v.
Commissioner of Correction, 111 Conn. App. 138, 140 n.1, 958 A.2d 790
(2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009).
4
Practice Book § 23-24 (a) provides in relevant part: ‘‘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 . . . .’’
The petitioner, through appellate counsel, filed a motion for rectification
and articulation asking the habeas court to articulate the legal and factual
bases for its dismissal of the second petition, including, ‘‘what the [c]ourt
understands the petitioner’s claim(s) to be.’’ The habeas court denied the
motion for articulation and rectification, and the petitioner filed a motion
for review of the habeas court’s denial of that motion. This court granted
the motion for review but denied the relief requested therein.
5
Although the second petition appears to have significant overlap with
the first claim of the underlying petition in the present appeal, the respon-
dent, the Commissioner of Correction, did not move for the habeas court
to dismiss the claim under the prior pending action doctrine; see Gainey
v. Commissioner of Correction, 181 Conn. App. 377, 380 n.5, 186 A.3d 784
(2018); or for being an improper successive petition.
6
Public Acts 2013, No. 13-3, § 59, amended subsections (b) (2), (c) and (e)
of General Statutes § 54-125a to delete provisions permitting the reduction
of time off of a prisoner’s parole eligibility date for risk reduction credit
earned under § 18-98e.
7
For purposes of clarity, we address these claims in a different order
than they were presented by the petitioner in his principal appellate brief.
8
As we indicated in Holliday, ‘‘we urge the habeas court to exercise [the]
authority [to dispose of a petition without a hearing] sparingly and limit its
use to those instances in which it is plain and obvious that the court lacks
jurisdiction over the habeas petition.’’ (Internal quotation marks omitted.)
Holliday v. Commissioner of Correction, supra, 184 Conn. App. 237.
9
Although the analysis contained in Judge Bishop’s concurrence has some
appeal, we note that our Supreme Court has granted the petition for certifica-
tion to appeal from this court’s decision in Gilchrist v. Commissioner of
Correction, supra, 180 Conn. App. 56, in order to decide whether a habeas
petition may be disposed of pursuant to Practice Book § 23-29 by the habeas
court without a hearing. Under these circumstances, and in light of the fact
that we are bound by Holliday, we believe it is more prudent not to weigh
in further with respect to this issue.
10
‘‘That the court relied on a wrong theory does not render the judgment
erroneous. We can sustain a right decision although it may have been placed
on a wrong ground.’’ (Internal quotation marks omitted.) Tyson v. Commis-
sioner of Correction, 155 Conn. App. 96, 105 n.4, 109 A.3d 510, cert. denied,
315 Conn. 931, 110 A.3d 432 (2015).
11
In Johnson, we stated that ‘‘[t]o establish that third habeas counsel was
ineffective for failing to allege a claim that trial counsel was ineffective for
failing to move for a competency evaluation, the petitioner would be required
to prove that trial counsel was ineffective for failing to move for a compe-
tency evaluation. This already was decided, after a full evidentiary hearing,
by the fifth habeas court . . . .’’ Johnson v. Commissioner of Correction,
supra, 168 Conn. App. 311–12. Therefore, the petitioner’s claim involving
third habeas counsel ‘‘[was] barred by collateral estoppel because litigation
of that claim necessarily required relitigation of an issue that already [had]
been fully and fairly decided in the fifth habeas action, specifically, whether
trial counsel was ineffective for failing to move for a competency evaluation;’’
id., 311; and an earlier habeas proceeding ‘‘necessarily resolved an issue
that would need relitigation if the claim involving third habeas counsel were
to proceed . . . .’’ Id.