Howard v. Commissioner of Correction

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ISSCHAR HOWARD v. COMMISSIONER
OF CORRECTION
(AC 42824)
Prescott, Alexander and Suarez, Js.
Syllabus
The petitioner, who had been convicted, after a jury trial, of, inter alia,
capital felony, sought a writ of habeas corpus. The habeas court, on its
own motion and without providing the petitioner with prior notice or
an opportunity to be heard, dismissed the petitioner’s petition pursuant
to the rule of practice (§ 23-29), finding that the court lacked jurisdiction
because the petition failed to challenge the petitioner’s conviction or
the conditions of confinement. Thereafter, the habeas court denied the
petition for certification to appeal, and the petitioner appealed to this
court. Held:
1. The trial court abused its discretion in denying the petition for certification
to appeal: in light of our Supreme Court’s recent decisions in Brown v.
Commissioner of Correction (345 Conn. 1), and Boria v. Commissioner
of Correction (345 Conn. 39), the resolution of the underlying claim of
procedural error concerning the right to notice and an opportunity to
respond in writing prior to a dismissal under Practice Book § 23-29
involved issues that were debatable among jurists of reason, a court
could resolve the issues in a different manner, and the questions were
adequate to deserve encouragement to proceed further.
2. This court concluded that, although the habeas court was not required
to hold a full hearing, the petitioner was entitled to notice of that court’s
intention to dismiss his petition and an opportunity to file a brief or a
written response concerning the proposed basis for dismissal, which it
did not do; accordingly, on remand, the habeas court may elect to dismiss
the petition, or any amended petition properly filed by the petitioner,
on its own motion pursuant to Practice Book § 23-29, but it must comply
with the procedure set forth in Brown and Boria by providing the
petitioner with prior notice of its proposed basis for dismissal and an
opportunity to submit a brief or written response addressing the issue.
Argued September 16, 2021—officially released December 27, 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 this court. Reversed; further proceedings.
Mary Boehlert, assigned counsel, for the appellant
(petitioner).
Thadius L. Bochain, deputy assistant state’s attor-
ney, with whom, on the brief, were Patrick J. Griffin,
former state’s attorney, Laurie N. Feldman, assistant
state’s attorney, John P. Doyle, Jr., state’s attorney, and
Adrienne Russo, senior assistant state’s attorney, for
the appellee (respondent).
Opinion
SUAREZ, J. The petitioner, Isschar Howard, appeals,
following the denial of his petition for certification to
appeal, from the judgment of the habeas court dismiss-
ing his petition for a writ of habeas corpus pursuant to
Practice Book § 23-29.1 The petitioner argues that the
court abused its discretion in denying certification to
appeal because the court improperly (1) dismissed the
petition for a writ of habeas corpus sua sponte under
§ 23-29 without first providing him fair notice and an
opportunity to be heard with respect to the proposed
basis for dismissal and (2) concluded that it lacked
jurisdiction over the petition for a writ of habeas corpus.
We agree with the petitioner that the court abused its
discretion in denying his petition for certification to
appeal. Furthermore, in light of our Supreme Court’s
recent decisions in Brown v. Commissioner of Correc-
tion, 345 Conn. 1, 282 A.3d 959 (2022), and in Brown’s
companion case, Boria v. Commissioner of Correction,
345 Conn. 39, 282 A.3d 433 (2022), we agree with the
petitioner that the habeas court committed error in
dismissing the habeas petition pursuant to § 23-29 with-
out first providing him with prior notice of its intention
to dismiss, on its own motion, the habeas petition and
an opportunity to submit a brief or a written response
addressing the proposed basis for dismissal. Accord-
ingly, we reverse the judgment of the habeas court.2
The following procedural history is relevant to this
appeal. Following a jury trial, the petitioner was con-
victed of capital felony in violation of General Statutes
(Rev. to 1999) § 53a-54b (8), two counts of murder in
violation of General Statutes § 53a-54a (a), criminal pos-
session of a firearm in violation of General Statutes
(Rev. to 1999) § 53a-217 (a), carrying a pistol or revolver
without a permit in violation of General Statutes (Rev.
to 1999) § 29-35, and possession of narcotics in violation
of General Statutes (Rev. to 1999) § 21a-279 (a). The
trial court, Harper, J., sentenced the petitioner to a total
effective term of life in prison without the possibility
of release, plus seventeen years of imprisonment. In
2005, following a direct appeal, this court affirmed the
judgment of conviction. State v. Howard, 88 Conn. App.
404, 870 A.2d 8, cert. denied, 275 Conn. 917, 883 A.2d
1250 (2005).
On October 14, 2016, the petitioner, who was self-
represented at the time, filed a petition for a writ of
habeas corpus on a state supplied form.3 On the same
day, the petitioner filed a request for appointment of
counsel and an application for waiver of fees, which
the court granted on October 31, 2016. On October 31,
2016, the court also assigned a docket number to the
habeas action and, in response to the petitioner’s
request for appointment of counsel, referred the peti-
tioner to the Office of the Chief Public Defender for an
investigation into whether he was indigent. On Decem-
ber 2, 2016, the State’s Attorney’s Office for the New
Haven judicial district appeared on behalf of the respon-
dent, the Commissioner of Correction. On December
6, 2016, the law firm of Zingaro & Cretella, LLC,
appeared on behalf of the petitioner as assigned coun-
sel.
No further activity is reflected on the habeas court
docket until September 7, 2018, when the court, New-
son, J., issued a scheduling order. The order, bearing
the signatures of counsel for the petitioner and the
respondent, provided that an amended petition was to
be filed, if at all, by January 1, 2020, that the case was
to be claimed to the trial list on January 20, 2021, and
that a certificate of closed pleadings was to be filed no
later than March 30, 2020.
On January 24, 2019, counsel for the petitioner, Zin-
garo & Cretella, LLC, filed a motion to withdraw appear-
ance. The attorney who submitted the motion, Eugene
J. Zingaro, represented that he was unable to devote
the time necessary to represent the petitioner in this
matter or, for that matter, to manage any other
‘‘assigned counsel appointments.’’ Zingaro requested
that the court permit the withdrawal in this case, and
he requested that ‘‘new assigned counsel be appointed
[for the petitioner] by the Chief Public Defender’s
office.’’
Nothing in the record reflects that the court either
considered or ruled on the motion to withdraw appear-
ance. Instead, by order dated February 1, 2019, the
court, Newson, J., sua sponte dismissed the action ‘‘pur-
suant to Practice Book § 23-39.’’4 Prior to dismissing
the action, the court did not notify the parties that it
was considering dismissing the action and did not pro-
vide the petitioner an opportunity to respond to the
proposed basis for dismissal. The court’s order stated:
‘‘Upon review, the petition is dismissed for lack of juris-
diction. More specifically, the petition does not chal-
lenge the conviction but alleged constitutional viola-
tions that preceded trial. As such, giving the [petition]
the most reasonable reading possible, it fails to chal-
lenge the conviction or the conditions of confinement.’’
On March 5, 2019, pursuant to General Statutes § 52-
470 (g), the petitioner, in a self-represented capacity,
filed a petition for certification to appeal from the
court’s ruling.5 The petitioner also filed an application
for waiver of fees, costs and expenses and appointment
of counsel on appeal. In the portion of the petition
for certification in which the petitioner set forth the
grounds for which certification was being sought, the
petitioner incorporated by reference the grounds set
forth in his application for waiver of fees, costs and
expenses and appointment of counsel on appeal. There,
the petitioner set forth those grounds as follows: ‘‘Dis-
satisfied with decision.’’ On March 8, 2019, the court
denied the petition for certification to appeal. On March
27, 2019, the court granted the petitioner’s application
for waiver of fees, costs and expenses and appointment
of counsel on appeal. This appeal followed.
On September 16, 2021, this court heard oral argu-
ment in this appeal. On February 22, 2022, this court, sua
sponte, stayed the appeal pending the final resolution
of the appeals in Brown and Boria, which involved
similar claims and, at that time, were pending before
our Supreme Court. After our Supreme Court officially
released its decisions in Brown and Boria, we ordered
the parties to file supplemental briefs ‘‘addressing the
effect, if any, of Brown v. Commissioner of Correction,
[supra, 345 Conn. 1], and Boria v. Commissioner of
Correction, [supra, 345 Conn. 39], on this appeal, includ-
ing whether, if the judgment of dismissal is reversed,
the habeas court should be directed on remand ‘to first
determine whether any grounds exist for it to decline
to issue the writ pursuant to Practice Book § 23-24.’
Brown v. Commissioner of Correction, supra, 17 and
n.11; Boria v. Commissioner of Correction, supra, 43.’’
The parties have complied with our supplemental brief-
ing order.
In this appeal, we focus on the dispositive claim
advanced by the petitioner, that the court improperly
dismissed the petition for a writ of habeas corpus sua
sponte under Practice Book § 23-29 without first provid-
ing him fair notice and an opportunity to be heard
with respect to the proposed basis for dismissal. As a
threshold consideration, however, we must address the
issue of whether the court abused its discretion in deny-
ing the petition for certification to appeal. ‘‘Faced with
a habeas court’s denial of a petition for certification to
appeal, a petitioner can obtain appellate review of the
dismissal of his petition for habeas corpus only by satis-
fying the two-pronged test enunciated by our Supreme
Court in Simms v. Warden, 229 Conn. 178, 640 A.2d
601 (1994), and adopted in Simms v. Warden, 230 Conn.
608, 612, 646 A.2d 126 (1994). First, he must demonstrate
that the denial of his petition for certification consti-
tuted an abuse of discretion. . . . To prove an abuse
of discretion, the petitioner must demonstrate that the
[resolution of the underlying claim involves issues that]
are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . . Second, if the petitioner can
show an abuse of discretion, he must then prove that
the decision of the habeas court should be reversed on
the merits. . . . In determining whether there has been
an abuse of discretion, every reasonable presumption
should be given in favor of the correctness of the court’s
ruling . . . [and] [r]eversal is required only where an
abuse of discretion is manifest or where injustice
appears to have been done. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court
must be affirmed.’’ (Citation omitted; internal quotation
marks omitted.) Wright v. Commissioner of Correc-
tion, 201 Conn. App. 339, 344–45, 242 A.3d 756 (2020),
cert. denied, 336 Conn. 905, 242 A.3d 1009 (2021).
The petitioner argues that the habeas court’s denial
of the petition for certification to appeal reflected an
abuse of its discretion. The respondent argues that the
petitioner is unable to demonstrate that the court
abused its discretion in denying his petition for certifica-
tion to appeal because the petition for certification to
appeal was untimely. The respondent also argues that,
beyond expressing the petitioner’s dissatisfaction with
the court’s decision, the petition for certification to
appeal did not set forth any precise legal grounds, let
alone the grounds on which he relies in this appeal. We
reject those contentions.6 We conclude, in light of our
Supreme Court’s recent decisions in Brown and Boria,
that the resolution of the underlying claim of procedural
error involves issues that are debatable among jurists
of reason, that a court could resolve the issues in a
different manner, and that the questions are adequate
to deserve encouragement to proceed further. Accord-
ingly, we agree with the petitioner that the habeas
court’s denial of the petitioner’s petition for certifica-
tion to appeal reflected an abuse of its discretion.
We now turn to the merits of the appeal. The peti-
tioner argues that the court ‘‘should not have dismissed
the petition sua sponte, at its current state in the pro-
ceedings, without affording [him] fair notice and a hear-
ing.’’ The petitioner argues that ‘‘[t]he court was
required to and should have read the petition broadly
to allow [him] to have the opportunity to have his case
fully and fairly heard.’’ The petitioner also argues that,
when the court dismissed the petition, the only petition
that had been filed was the petition that he filed in a
self-represented capacity, the time in which to file an
amended petition had not yet passed,7 and ‘‘[he had not
been] provided with the services of his assigned counsel
to assist him in clarifying his [self-represented], hand-
written petition to better express or fine tune his claims,
arguments, and supporting facts.’’ The petitioner relies
on the fact that the court’s dismissal did not occur
pursuant to Practice Book § 23-24, incident to a prelimi-
nary review of his petition by the judicial authority
before it issued the writ.8 Instead, the court dismissed
the petition on jurisdictional grounds nearly two years
after the writ had issued. The petitioner argues that
‘‘[o]nce the habeas court reviewed the petition and
issued the writ . . . [it] should have provided [him]
and his assigned counsel with fair notice and a hearing,
in the event the court questioned subject matter juris-
diction.’’
‘‘Whether a habeas court properly dismissed a peti-
tion for a writ of habeas corpus presents a question of
law over which our review is plenary. See Kaddah v.
Commissioner of Correction, 324 Conn. 548, 559, 153
A.3d 1233 (2017) (plenary review of dismissal under
Practice Book § 23-29 [2]); Johnson v. Commissioner
of Correction, 285 Conn. 556, 566, 941 A.2d 248 (2008)
(conclusions reached by habeas court in dismissing
habeas petition are matters of law subject to plenary
review).’’ Gilchrist v. Commissioner of Correction, 334
Conn. 548, 553, 223 A.3d 368 (2020).
In their supplemental briefs, the parties agree that,
if we reach the issue of whether the court committed
error by failing to afford the petitioner notice of its
intent to dismiss the petition pursuant to Practice Book
§ 23-29 and an opportunity to respond in writing to
address the issue, Brown and Boria require a reversal
of the judgment dismissing the petition. We agree with
the parties that Brown and Boria, both of which address
claims similar in nature to the claim presently before
us, govern our resolution of the appeal and require a
reversal of the judgment of dismissal. In Brown, the
court concluded ‘‘that § 23-29 requires the habeas court
to provide prior notice of the court’s intention to dis-
miss, 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 discretion, grant oral argument or a hearing, but one
is not mandated.’’ Brown v. Commissioner of Correc-
tion, supra, 345 Conn. 4. In Boria, our Supreme Court
adopted the reasoning and conclusions set forth in
Brown. Boria v. Commissioner of Correction, supra,345 Conn. 43.
We agree with the petitioner that, prior to the sua
sponte dismissal, he was entitled to notice of the court’s
intention to dismiss his petition and an opportunity to
at least file a brief or a written response concerning
the proposed basis for dismissal. The court’s failure to
follow this procedure requires reversal of the judgment
of dismissal and a remand to the habeas court for fur-
ther proceedings consistent with this opinion. To the
extent that the petitioner argued in his principal appel-
late brief, however, that he was entitled to ‘‘a hearing’’
prior to the dismissal of the petition, Brown and Boria
do not support his argument. As stated previously, the
court is not required to hold a full hearing but may
exercise its discretion to do so in cases in which it is
deemed to be appropriate. See Brown v. Commissioner
of Correction, supra, 345 Conn. 4.
In accordance with Brown and Boria, we must con-
sider an additional issue, namely, whether, as suggested
in footnote 11 of Brown, the habeas court on remand
should first consider whether grounds exist to decline
the issuance of the writ pursuant to Practice Book § 23-
24. This issue leads us to discuss Brown in further
detail. The petitioner in Brown filed a habeas petition
on October 29, 2018. Id., 8. On November 15, 2018,
the habeas court granted the petitioner’s request for
appointment of counsel and his application for a waiver
of fees. Id. On November 19, 2018, the habeas court,
acting on its own motion and without prior notice to
the petitioner, issued an order dismissing the petition
pursuant to Practice Book § 23-29 (3). Id. This court
summarily dismissed the petitioner’s appeal from the
judgment dismissing his habeas petition but, following
a grant of certification to appeal, our Supreme Court
reversed this court’s judgment on the ground that the
habeas court improperly had failed to afford the peti-
tioner prior notice of its intention to dismiss the petition
and an opportunity to at least submit a brief or written
response addressing the issue. Id., 5. Our Supreme
Court remanded the case to this court with direction
to reverse the judgment of the habeas court and to
remand the case to the habeas court for further proceed-
ings consistent with its opinion. Id., 18.
Our Supreme Court in Brown also reasoned that,
‘‘[b]ecause the habeas court in [Brown] 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. If
the writ is issued, and the habeas court again elects to
exercise its discretion to dismiss the petitioner’s habeas
petition on its own motion pursuant to Practice Book
§ 23-29, it must . . . provide the petitioner with prior
notice and an opportunity to submit a brief or a written
response to the proposed basis for dismissal.’’ (Foot-
note omitted.) Id., 17–18; see also Boria v. Commis-
sioner of Correction, supra, 345 Conn. 43. In footnote
11 of its opinion, the court in Brown also stated, ‘‘[w]e
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.
. . . In cases decided prior to Gilchrist, the most effi-
cient 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.’’ (Citation omit-
ted.) Brown v. Commissioner of Correction, supra, 345
Conn. 17 n.11; see also Boria v. Commissioner of Cor-
rection, supra, 43.
The judgment of dismissal in the present case
occurred prior to our Supreme Court’s decision in
Gilchrist v. Commissioner of Correction, supra, 334
Conn. 548. In Gilchrist, our Supreme Court explained
the proper application of Practice Book §§ 23-24 and
23-29. The court stated that ‘‘the screening function of
. . . § 23-24 plays an important role in habeas corpus
proceedings, but it is intended only to weed out obvi-
ously and unequivocally defective petitions, and we
emphasize that [b]oth statute and case law evince a
strong presumption that a petitioner for a writ of habeas
corpus is entitled to present evidence in support of his
claims. . . . Screening petitions prior to the issuance
of the writ is intended to conserve judicial resources
by eliminating obviously defective petitions; it is not
meant to close the doors of the habeas court to justicia-
ble claims. Special considerations ordinarily obtain
when a petitioner has proceeded pro se. . . . [I]n such
a case, courts should review habeas petitions with a
lenient eye, allowing borderline cases to proceed. . . .
The justification for this policy is apparent. If the writ
of habeas corpus is to continue to have meaningful
purpose, it must be accessible not only to those with
a strong legal background or the financial means to
retain counsel, but also to the mass of uneducated,
unrepresented prisoners. . . . Thus, when borderline
cases are detected in the preliminary review under § 23-
24, the habeas court should issue the writ and appoint
counsel so that any potential deficiencies can be
addressed in the regular course after the proceeding
has commenced.’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) Id., 560–61. The
court explained that, ‘‘[i]n contrast [with § 23-24] . . .
§ 23-29 contemplates the dismissal of a habeas petition
after the writ has issued on any of the enumerated
grounds.’’ Id., 561.
The petitioner argues that, by the time that the court
sua sponte dismissed the petition in the present case,
the action had advanced to such an extent that the
rationale of footnote 11 of Brown does not apply. In
contrast, the respondent argues that ‘‘this case falls
squarely within the remand order contemplated by [our
Supreme Court] in Brown and Boria.’’ We agree with
the petitioner. This court has not interpreted footnote
11 of Brown as a directive that applies in every appeal
in which a habeas action must be remanded to the
habeas court following an improper sua sponte dis-
missal, predating Gilchrist, pursuant to Practice Book
§ 23-29. See Villafane v. Commissioner of Correction,
216 Conn. App. 839, 849–50, A.3d (2022) (declin-
ing to apply footnote 11 because, by time of habeas
court’s sua sponte dismissal, petitioner had filed
amended petition); Hodge v. Commissioner of Correc-
tion, 216 Conn. App. 616, 623–24, A.3d (2022)
(same). As this court has reasoned, the remand order
described in footnote 11 need not be imposed if doing
so could lead to an outcome that we do not believe our
Supreme Court in Brown would have intended. Hodge
v. Commissioner of Correction, supra, 624.
We note that, as in Brown and Boria, the sua sponte
dismissal of the habeas petition in the present case
occurred after the writ was issued but prior to the filing
of an amended petition.9 Significantly, however, at the
time the habeas court in Brown sua sponte dismissed
the petition at issue in that case, the habeas action had
been pending on the court’s docket for approximately
three weeks, and counsel had not yet been appointed
to represent the petitioner. Brown v. Commissioner of
Correction, supra, 345 Conn. 8. Similarly, the habeas
court’s sua sponte dismissal of the petition at issue in
Boria occurred after the habeas action had been pend-
ing on the court’s docket for approximately one month,
and counsel had not yet been appointed to represent the
petitioner. See Boria v. Commissioner of Correction,
Superior Court, judicial district of Tolland, Docket No.
CV-XX-XXXXXXX-S (September 7, 2016). In contrast, in the
present case, the court’s sua sponte dismissal occurred
approximately two years and three months after the
petitioner filed the habeas petition and more than two
years after counsel appeared on his behalf. At the time
of the dismissal, the petitioner was represented by
counsel, an agreed upon scheduling order was in place,
and the time in which to file an amended petition had
not yet passed.
Our Supreme Court has explained that the purpose
of appointing counsel in habeas actions, following the
issuance of the writ, is ‘‘so that any potential deficienc-
ies can be addressed in the regular course after the
proceeding has commenced.’’ Gilchrist v. Commis-
sioner of Correction, supra, 334 Conn. 561. In the pres-
ent case, the habeas court appointed counsel to repre-
sent the petitioner, and counsel will have an opportunity
to address any potential deficiencies in the original
petition that he filed in a self-represented capacity. In
light of this fact, and the length of time in which the
habeas action has been pending on the court’s docket,
we conclude that permitting the court on remand to
decline to issue the writ pursuant to Practice Book § 23-
24 could lead to an unjust outcome that our Supreme
Court would not have intended. Consistent with the
principles set forth in Gilchrist, we believe that the
best approach is to follow the directive set forth in
footnote 11 of Brown in cases, like Boria, that are
procedurally similar to Brown. Thus, we do not believe
that the proper course on remand in the present case
is for the court to reevaluate the petitioner’s self-repre-
sented petition filed on October 14, 2016, to first deter-
mine whether any grounds exist to decline to issue the
writ pursuant to § 23-24. During the proceedings on
remand, the court may elect to dismiss the petition, or
any amended petition properly filed by the petitioner,
on its own motion pursuant to Practice Book § 23-29,
but it must comply with the procedure set forth in
Brown and Boria by providing the petitioner with prior
notice of its proposed basis for dismissal and affording
the petitioner at least an opportunity to submit a brief
or written response addressing the issue.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges 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
Because we agree with the petitioner’s first claim, which concerns a
procedural error, and that claim is dispositive of the appeal, we need not
and do not consider the petitioner’s second claim, that the court improperly
concluded that it lacked jurisdiction over the petition. The court, in its
discretion, may choose to revisit this issue during the proceedings on
remand, provided that it does so consistent with the procedure set forth in
this opinion.
3
We do not construe the grounds set forth in the petition for a writ of
habeas corpus because it is unnecessary for us to do so.
4
The respondent suggests, and we agree, that, in light of the rationale of
the court’s order, its reference to Practice Book § 23-39, which governs
depositions in habeas matters, appears to be a scrivener’s error. The rationale
of the court’s order strongly suggests that the court intended to refer to
Practice Book § 23-29, which governs dismissals of habeas petitions for
lack of jurisdiction. Accordingly, in this opinion, we will construe the court’s
ruling to have been made pursuant to § 23-29.
5
General Statutes § 52-470 (g) provides: ‘‘No appeal from the judgment
rendered in a habeas corpus proceeding brought by or on behalf of a person
who has been convicted of a crime in order to obtain such person’s release
may be taken unless the appellant, within ten days after the case is decided,
petitions the judge before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated by the Chief Court
Administrator, to certify that a question is involved in the decision which
ought to be reviewed by the court having jurisdiction and the judge so certi-
fies.’’
6
First, the record does not suggest that the court denied the petition
on timeliness grounds. Second, although the petition does not reflect the
precision and detail that it might have if it had been prepared by an attorney
skilled in the law, we are mindful that it was filed by the petitioner in a
self-represented capacity after the law firm appointed as his counsel asked
the court to permit it to withdraw its appearance. Under these circumstances,
and mindful of our obligation to construe the pleadings filed by self-repre-
sented litigants liberally; see, e.g., Kaddah v. Commissioner of Correction,
299 Conn. 129, 140, 7 A.3d 911 (2010); we conclude that the petition reason-
ably may be interpreted so as to encompass the court’s decision to dismiss
the petition sua sponte in reliance on Practice Book § 23-29 without first
providing the petitioner notice of its intent to dismiss the petition or an
opportunity to respond in writing.
7
Practice Book § 23-32 provides in relevant part that ‘‘[t]he petitioner may
amend the petition at any time prior to the filing of the return. . . .’’ As we
stated previously in this opinion, the court’s scheduling order provided that
the petitioner had until January 20, 2020, to file an amended petition. Also,
the order provided that the respondent had until February 20, 2020, or thirty
days from the petitioner’s filing of an amended petition, to file a return. At
the time that the court dismissed the petition, the petitioner had not filed
an amended petition, the respondent had not filed a return, and neither
party had filed a certificate of closed pleadings.
8
Practice Book § 23-24 provides: ‘‘(a) 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.
‘‘(b) The judicial authority shall notify the petitioner if it declines to issue
the writ pursuant to this rule.’’
9
We may infer that the habeas court issued the writ in the present case
no later than October 31, 2016, when it assigned a docket number to the
habeas action and granted the petitioner’s request for appointment of coun-
sel and his application for a waiver of fees. In Gilchrist, our Supreme Court
explained that, ‘‘when a petition for a writ of habeas corpus alleging a claim
of illegal confinement is submitted to the court, the following procedures
should be followed. First, upon receipt of a habeas petition that is submitted
under oath and is compliant with the requirements of Practice Book § 23-
22; see Practice Book §§ 23-22 and 23-23; the judicial authority must review
the petition to determine if it is patently defective because the court lacks
jurisdiction, the petition is wholly frivolous on its face, or the relief sought
is unavailable. . . . If it is clear that any of those defects are present, then
the judicial authority should issue an order declining to issue the writ, and
the office of the clerk should return the petition to the petitioner explaining
that the judicial authority has declined to issue the writ pursuant to § 23-
24. . . . If the judicial authority does not decline to issue the writ, then it
must issue the writ, the effect of which will be to require the respondent
to enter an appearance in the case and to proceed in accordance with
applicable law. At the time the writ is issued, the court should also take
action on any request for the appointment of counsel and any application
for the waiver of filing fees and costs of service. . . . After the writ has
issued, all further proceedings should continue in accordance with the proce-
dures set forth in our rules of practice, including Practice Book § 23-29.’’
(Citations omitted; emphasis added.) Gilchrist v. Commissioner of Correc-
tion, supra, 334 Conn. 562–63.