Vitale v. Commissioner of Correction

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JOHN VITALE v. COMMISSIONER OF CORRECTION
(AC 39556)
Alvord, Mullins and Beach, Js.
Syllabus
The petitioner, who had been convicted, on a plea of nolo contendere, of
sexual assault in the fourth degree, sought a writ of habeas corpus,
claiming that his conviction was illegal because he had been made to
plead guilty and was sentenced without having his attorney present.
Although the petitioner was discharged from his conviction in 1979, he
claimed that the collateral consequences of that conviction adversely
affected his parole and his treatment by the Department of Correction
as a sex offender. He further asserted that, on the basis of collateral
consequences, the habeas court could hear his claim and vacate his
conviction because it was obtained in violation of the right to counsel
under Gideon v. Wainwright (372 U.S. 335), even though he was not
still serving the sentence. The habeas court rendered judgment sua
sponte dismissing the petition for a writ of habeas corpus, concluding
that it lacked jurisdiction over the claims in the petition concerning the
decisions of the parole board and the classifications of the petitioner
by the Department of Correction. Thereafter, the court denied the peti-
tion for certification to appeal, and the petitioner appealed to this court,
claiming, inter alia, that the habeas court improperly concluded that it
lacked subject matter jurisdiction over his habeas petition. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal: that court properly determined that it lacked
subject matter jurisdiction to the extent that the petition for a writ of
habeas corpus sought to challenge the expired sexual assault conviction,
as the petitioner submitted no authority to support his claim that the
expired sexual assault conviction could be vacated, United States
Supreme Court precedent that has addressed the use of convictions
obtained in the absence of counsel did not permit the petitioner to
attack the expired conviction in the absence of a sentence enhancement,
and other federal courts have recognized that procedural defenses apply
to Gideon claims, thus refuting the petitioner’s assertion that a Gideon
claim may be raised without limitation.
2. The habeas court did not abuse its discretion in denying the petition for
certification to appeal as to the petitioner’s challenge to the conditions
of his parole and his classification as a sex offender by the Department
of Correction; parole eligibility status does not constitute a cognizable
liberty interest sufficient to invoke habeas jurisdiction, and because the
petitioner failed to plead that the stigmatizing classification of him as
a sex offender was false and that he was compelled to participate in
sex offender treatment, he failed to allege sufficient facts to assert a
cognizable liberty interest that would afford the habeas court jurisdiction
over his claim.
3. The petitioner could not prevail on his claim that the violation of his right
to counsel under article first, § 8, of the state constitution was sufficient
to establish jurisdiction in the habeas court to adjudicate his claims;
the petitioner’s briefing failed to address the central issue presented in
his appeal and the authorities he cited did not support his claim under
the state constitution.
Argued September 26—officially released December 26, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland, where the court, Oliver, J., dismissed the
petition and rendered judgment thereon; thereafter, the
court denied the petition for certification to appeal, and
the petitioner appealed to this court. Appeal dismissed.
James B. Streeto, senior assistant public defender,
for the appellant (petitioner).
Steven R. Strom, assistant attorney general, and
James A. Killen, senior assistant state’s attorney, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and David S. Shepack, state’s attorney, for the
appellee (respondent).
Opinion
ALVORD, J. The petitioner, John Vitale, appeals fol-
lowing 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. On appeal,
the petitioner claims that the habeas court improperly
concluded that it lacked subject matter jurisdiction over
his petition. We conclude that the habeas court properly
determined that it lacked subject matter jurisdiction
over the petition and, therefore, that it did not abuse
its discretion by denying the petitioner’s petition for
certification to appeal. Accordingly, we dismiss the
appeal.
The following procedural history is relevant to this
appeal. On July 5, 2016, the petitioner, representing
himself, filed a petition for a writ of habeas corpus.
In his petition, he noted, under ‘‘Sentence(s),’’ ‘‘1 year
concurrent; Gen. Stat. 53a-73a (2) sex assault 4th
degree.’’ He provided the date of sentencing as Septem-
ber 19, 1980, and indicated that the sentence was to be
served concurrent with a life sentence. He represented
that he pleaded nolo contendere and that he did not
appeal from the judgment of his conviction.
The petitioner claimed in his petition that his convic-
tion was illegal because he ‘‘was made to plead guilty
and was sentenced without my lawyer of record (R.
Chase) being there with me.’’ The petitioner claimed
that his incarceration or sentence was illegal because
‘‘collateral consequence of unlawful conviction for SA
4th adversely affects my classification and parole; and
parole release, (my treatment while in D.O.C. and on
parole).’’ The petitioner represented that he had tried
to raise the claim in a previous petition, but it was
declined on December 22, 2015. He further stated that
the court, Oliver, J., had granted his request for counsel
to assist in the appeal of the dismissal of the previous
petition, but the appeal was never filed. Although the
previous petition is not part of the record, the petition-
er’s appendix includes the trial court’s dismissal, which
stated that ‘‘[t]he habeas corpus petition is declined
and is being returned because the court lacks jurisdic-
tion per Connecticut Practice Book § 23-24 (a) (1).1 As
the petitioner admits, in paragraph 1 (e) of his petition
that he [was] discharged from the challenged conviction
in 1979, the court declines to issue the writ, as the
petitioner is not in custody on the conviction being
challenged.’’ (Footnote added.)
In the petition that is the subject of this appeal, the
petitioner claimed that he was asking the court to per-
mit him to withdraw his guilty plea on the sexual assault
charge. In a handwritten attachment, the petitioner
elaborated on his claims. He alleged that his 1980 con-
viction for sexual assault in the fourth degree was
‘‘obtained by (no contest) guilty plea and sentence
imposed without counsel present.’’ He claimed, based
primarily on United States Supreme Court precedent,
that ‘‘[a] conviction obtained in violation of the right
to counsel under Gideon [v. Wainwright, 372 U.S. 335,
83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)] has special status
such that the claim may be heard and the conviction
vacated based on collateral consequences, even though
the habeas petitioner is not still serving the sentence.’’
The petition asserted the following facts. On Septem-
ber 19, 1980, the petitioner was ‘‘held in lieu of bond
at the Litchfield jail, scheduled to appear in court for
sentencing on his felony murder convictions . . . and
for disposition of the case charging him with a nonre-
lated sexual assault; while in [the] custody of the Com-
missioner of Correction.’’ The petitioner had retained
Attorney Robert Chase to represent him for the sexual
assault case and Attorney Warren Luedecker to repre-
sent him for the felony murder case. The petitioner had
obtained a marriage license and Attorney Luedecker
represented to the deputies at the Litchfield jail that
the court, Pickett, J., had granted permission for the
petitioner to be wed at a neighboring office of a justice
of the peace. When the deputies and the petitioner
arrived late to court, Judge Pickett ‘‘responded to the
deception by Attorney Luedecker played on the depu-
ties and the lateness . . . by addressing [the] petitioner
and his lawyer concerning the situation. The court
directed counsel into a separate room where they were
directed to remain for some period of time.’’ The court
‘‘put the petitioner to plea, accepted a nolo contendere
plea to sexual assault in the fourth degree and imposed
a one year sentence (time had already been served), all
done without Attorney Chase or other counsel available
. . . .’’ The petitioner’s counsel was present for the
sentencing on the felony murder case.
The petitioner alleged that although he ‘‘has had his
parole violated for technical violations, all nonviolent,
since he was first released to parole in 1985, at no time
until 2011 did the conviction of fourth degree sexual
assault (unwanted touching) have any bearing on his
dealings with the parole board or his various parole
officers.’’ The petitioner claimed that he had been on
parole for fifteen years without the sexual assault con-
viction having any bearing on his parole. The petitioner
alleged: ‘‘As of August 4, 2015, [the] petitioner is incar-
cerated [on a] violation of parole, which consists of
using a cell phone in violation of the conditions imposed
under the special monitoring unit for sex offenders.
[The] petitioner has been advised that his 1980
unwanted touching conviction, obtained in violation of
Gideon, will have [the] petitioner treat[ed] the same as
if it was sexual assault in the [first] degree.’’
By order dated July 26, 2016, the habeas court, Oliver,
J., sua sponte dismissed the petition for habeas corpus,
stating that ‘‘[t]he habeas corpus petition is dismissed
and is being returned pursuant to Connecticut Practice
Book § 23-29 (1),2 as the court lacks jurisdiction over
the claims set forth concerning the decisions of the
parole board and [Department of Correction] classifica-
tions.’’ (Footnote added.) On August 5, 2016, the peti-
tioner filed a petition for certification to appeal, in
which he stated the grounds as follows: ‘‘Judge is wrong:
I pleaded guilty without assistance of counsel, which
states a claim even though sentence expired. Gideon
[v. Wainwright, supra, 372 U.S. 335]; Daniels v. United
States, 532 U.S. 374, 378 [121 S. Ct. 1578, 149 L. Ed. 2d
590] (2001).’’ In his application for waiver of fees, costs
and expenses and appointment of counsel on appeal,
the petitioner stated: ‘‘Conviction must be vacated even
if [there are] no direct or collateral consequences.’’ On
August 5, 2016, the habeas court denied the petition
for certification to appeal and granted the petitioner’s
application for appointment of counsel and waiver of
fees on appeal. This appeal followed.
Our Supreme Court has stated: ‘‘We begin by setting
forth the applicable standard of review and procedural
hurdles that the petitioner must surmount to obtain
appellate review of the merits of a habeas court’s denial
of the habeas petition following denial of certification
to appeal. In Simms v. Warden, 229 Conn. 178, 187,
640 A.2d 601 (1994), we concluded that [General Stat-
utes] § 52-470 (b) prevents a reviewing court from hear-
ing the merits of a habeas appeal following the denial of
certification to appeal unless the petitioner establishes
that the denial of certification constituted an abuse of
discretion by the habeas court. In Simms v. Warden,
230 Conn. 608, 615–16, 646 A.2d 126 (1994), we incorpo-
rated the factors adopted by the United States Supreme
Court in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S.
Ct. 860, 112 L. Ed. 2d 956 (1991), as the appropriate
standard for determining whether the habeas court
abused its discretion in denying certification to appeal.
This standard requires the petitioner to demonstrate
that the issues 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. . . . Simms v.
Warden, supra, 230 Conn. 616. A petitioner who estab-
lishes an abuse of discretion through one of the factors
listed above must then demonstrate that the judgment
of the habeas court should be reversed on its merits.
Id. . . . In determining whether the habeas court
abused its discretion in denying the petitioner’s request
for certification, we necessarily must consider the mer-
its of the petitioner’s underlying claims to determine
whether the habeas court reasonably determined that
the petitioner’s appeal was frivolous.’’ (Citation omit-
ted; emphasis in original; internal quotation marks omit-
ted.) Castonguay v. Commissioner of Correction, 300
Conn. 649, 657–58, 16 A.3d 676 (2011).
We next address the relevant principles regarding
construction of the habeas petition. ‘‘Because this
appeal arises from the habeas court’s ruling dismissing
the petition on the basis that the court lacked jurisdic-
tion, we take the facts to be those alleged in the petition,
including those facts necessarily implied from the alle-
gations, construing them in favor of the petitioner for
purposes of deciding whether the court had subject
matter jurisdiction.’’ Anthony A. v. Commissioner of
Correction, 326 Conn. 668, 670, 166 A.3d 614 (2017).
We also note that ‘‘[i]t is the established policy of the
Connecticut courts to be solicitous of pro se litigants
and when it does not interfere with the rights of other
parties to construe the rules of practice liberally in
favor of the pro se party.’’ (Internal quotation marks
omitted.) Ajadi v. Commissioner of Correction, 280
Conn. 514, 549, 911 A.2d 712 (2006). However, ‘‘[t]he
petition for a writ of habeas corpus is essentially a
pleading and, as such, it should conform generally to
a complaint in a civil action. . . . The principle that a
plaintiff may rely only upon what he has alleged is basic.
. . . It is fundamental in our law that the right of a
plaintiff to recover is limited to the allegations of his
complaint. . . . While the habeas court has consider-
able discretion to frame a remedy that is commensurate
with the scope of the established constitutional viola-
tions . . . it does not have the discretion to look
beyond the pleadings . . . to decide claims not raised.’’
(Internal quotation marks omitted.) Pentland v. Com-
missioner of Correction, 176 Conn. App. 779, 786, 169
A.3d 851 (2017).
‘‘[B]ecause [a] determination regarding a trial court’s
subject matter jurisdiction is a question of law, our
review is plenary.’’ (Internal quotation marks omitted.)
Foote v. Commissioner of Correction, 170 Conn. App.
747, 751, 155 A.3d 823, cert. denied, 325 Conn. 902,
155 A.3d 1271 (2017). Accordingly, we will ‘‘conduct a
plenary review of the petitioner’s petition to determine
whether the habeas court properly concluded that it
lacked subject matter jurisdiction to consider the peti-
tion.’’ Byrd v. Commissioner of Correction, 177 Conn.
App. 71, 79, A.3d (2017).
I
Before addressing the substance of the petitioner’s
claims, we review the relevant authority upon which
the petitioner relies. Pursuant to General Statutes § 52-
466 (a) (1),3 ‘‘[a] habeas court has subject matter juris-
diction to hear a petition for habeas corpus when the
petitioner is in custody at the time that the habeas
petition is filed.’’4 (Internal quotation marks omitted.)
Foote v. Commissioner of Correction, supra, 170 Conn.
App. 752. Our Supreme Court has explained that ‘‘the
custody requirement in § 52-466 is jurisdictional in
nature because the history and purpose of the writ of
habeas corpus establish that the habeas court lacks the
power to act on a habeas petition absent the petitioner’s
allegedly unlawful custody.’’ (Internal quotation marks
omitted.) Ajadi v. Commissioner of Correction, supra,
280 Conn. 537; see also Lebron v. Commissioner of
Correction, 274 Conn. 507, 525, 876 A.2d 1178 (2005)
(‘‘Habeas corpus provides a special and extraordinary
legal remedy for illegal detention. . . . The deprivation
of legal rights is essential before the writ may be issued.
. . . Questions which do not concern the lawfulness
of the detention cannot properly be reviewed on habeas
corpus.’’ [Internal quotation marks omitted.), overruled
in part on other grounds by State v. Elson, 311 Conn.
726, 747, 754, 91 A.3d 862 (2014). ‘‘Our Supreme Court
has held that the party bringing the action bears the
burden of proving that the court has subject matter
jurisdiction. . . . [W]ith regard to subject matter juris-
diction, jurisdictional facts are [f]acts showing that the
matter involved in a suit constitutes a subject-matter
consigned by law to the jurisdiction of that court
. . . .’’ (Internal quotation marks omitted.) Mourning
v. Commissioner of Correction, 120 Conn. App. 612,
619, 992 A.2d 1169, cert. denied, 297 Conn. 919, 996
A.2d 1192 (2010).
‘‘[I]n order to satisfy the custody requirement of § 52-
466, the petitioner [must] be in custody on the convic-
tion under attack at the time the habeas petition is filed.
. . . [C]ollateral consequences flowing from an expired
conviction do not render a petitioner in custody under
§ 52-466; rather, such a claim of confinement or custody
and any accompanying loss of liberty [stem] solely from
[a petitioner’s] current conviction.’’ (Internal quotation
marks omitted.) Foote v. Commissioner of Correction,
supra, 170 Conn. App. 752; see also Lebron v. Commis-
sioner of Correction, supra, 274 Conn. 520, 530–31
(although petitioner claimed that the collateral conse-
quences of his 1992 conviction, in the form of an
enhancement of his 1999 sentence, were sufficient to
render him in custody under § 52-466, petition sought
to directly attack the 1992 conviction, and petitioner
was no longer in custody on that conviction); McCarthy
v. Commissioner of Correction, 274 Conn. 557, 560,
562–63, 877 A.2d 758 (2005) (holding that petitioner
whose thirty-four year old burglary conviction was used
in federal prosecution under the Armed Career Criminal
Act of 1984, 18 U.S.C. §§ 922 [g] [1] and 924 [e] [1]
and [2] [(2012)], was not in custody for the expired
conviction, and noting that ‘‘[t]o the extent that the
petitioner claims that he is in custody or has been
deprived of his liberty . . . because his 1958 convic-
tion was used to enhance his current federal sentence,
his loss of liberty stems solely from his current federal
conviction. . . . Consequently, the petitioner can pur-
sue his claim, if at all, only by way of a petition for
a writ of habeas corpus attacking his current federal
sentence.’’ [Citations omitted; internal quotation marks
omitted.]). Moreover, this court has addressed the
effect of an expired conviction on parole eligibility,
finding such collateral consequences insufficient to ren-
der a petitioner in custody on the expired conviction.
See Fernandez v. Commissioner of Correction, 139
Conn. App. 173, 181–82, 55 A.3d 588 (2012) (‘‘Because
parole eligibility neither affects the term of the sentence
for the assault conviction nor mandates release at a
particular time, the fact that the petitioner’s eligibility
for parole was extended from 50 percent of time served
to 85 percent of time served on his still effective term
of imprisonment of twenty-eight years did not cause
the petitioner to suffer a present restraint with respect
to the assault conviction, nor did it affect when the
sentence for the assault conviction expired. Rather, the
change in parole eligibility is a collateral consequence
of the assault conviction.’’), cert. granted on other
grounds, 307 Conn. 947, 60 A.3d 960 (2013) (appeal
withdrawn May 28, 2013).
‘‘It is well established that, in determining the scope
of the writ of habeas corpus under state law, we look
to the scope of the writ under federal law.’’ Lebron v.
Commissioner of Correction, supra, 274 Conn. 529 n.17
(concluding that ‘‘the legislature did not intend to make
the state writ of habeas corpus broader than its federal
counterpart’’). Like § 52-466, the federal habeas statutes
provide the United States district courts with jurisdic-
tion to hear petitions for habeas relief only from peti-
tioners who are ‘‘in custody in violation of the
Constitution or laws or treaties of the United States.’’
28 U.S.C. § 2241 (c) (3) (2012); see also 28 U.S.C. § 2254
(a) (2012). The United States Supreme Court has inter-
preted the custody requirement as mandating ‘‘that the
habeas petitioner be in custody under the conviction
or sentence under attack at the time his petition is
filed.’’ (Internal quotation marks omitted.) Maleng v.
Cook, 490 U.S. 488, 490–91, 109 S. Ct. 1923, 1925, 104
L. Ed. 2d 540 (1989); see also Oliphant v. Commissioner
of Correction, 274 Conn. 563, 571 and n.7, 877 A.2d 761
(2005) (noting our Supreme Court’s adoption of
Maleng).
In Maleng, the petitioner had been convicted in 1958
of robbery in state court and sentenced to twenty years
of imprisonment. Maleng v. Cook, supra, 490 U.S. 489.
While he was on parole in 1976 from that sentence, he
was convicted of new state offenses and was sentenced
in 1978 to two life terms of imprisonment and a ten
year term of imprisonment. Id. Pursuant to Washington
state law, the 1958 conviction increased by several years
the mandatory minimum term of imprisonment that the
petitioner was required to serve on his 1978 sentences.
Id. Also in 1976, the petitioner was convicted in federal
court of bank robbery and conspiracy and was sen-
tenced to thirty years imprisonment. Id. In 1985, the
petitioner, incarcerated in federal prison, filed a pro se
petition for a writ of habeas corpus. Id. In his petition,
he ‘‘listed the 1958 Washington conviction as the convic-
tion under attack’’ on the ground that the state court
had failed to conduct a competency hearing. (Internal
quotation marks omitted.) Id., 490. The petitioner also
alleged that the 1958 conviction ‘‘had been used illegally
to enhance his 1978 state sentences, which he had not
yet begun to serve.’’ Id. The issue before the United
States Supreme Court was whether the petitioner was
‘‘in custody’’ within the meaning of 28 U.S.C. § 2241 (c)
(3).5 Id.
The court determined that the collateral conse-
quences suffered by the petitioner, specifically, the
enhancement of his 1978 state sentences, were insuffi-
cient to render him ‘‘in custody’’ on his expired 1958
conviction. Id., 492. The court stated: ‘‘While we have
very liberally construed the ‘in custody’ requirement
for purposes of federal habeas, we have never extended
it to the situation where a habeas petitioner suffers no
present restraint from a conviction. Since almost all
[s]tates have habitual offender statutes . . . a contrary
ruling would mean that a petitioner whose sentence
has completely expired could nonetheless challenge the
conviction for which it was imposed at any time on
federal habeas. This would read the ‘in custody’ require-
ment out of the statute . . . .’’ Id. The court concluded
that ‘‘once the sentence imposed for a conviction has
completely expired, the collateral consequences of that
conviction are not themselves sufficient to render an
individual ‘in custody’ for the purposes of a habeas
attack upon it.’’ Id.
The court did conclude, however, that the petitioner
was ‘‘in custody’’ on his 1978 state sentences that he
had not yet begun to serve. Id., 493. Because the ‘‘habeas
petition, construed with the deference to which pro se
litigants are entitled . . . can be read as asserting a
challenge to the 1978 sentences, as enhanced by the
allegedly invalid prior conviction,’’ the court concluded
that the petitioner had ‘‘satisfied the ‘in custody’ require-
ment for federal habeas jurisdiction.’’ (Citation omitted;
emphasis omitted.) Id., 493–94. The court expressly lim-
ited its holding to ‘‘the narrow issue of ‘custody’ for
subject-matter jurisdiction of the habeas court’’ and
expressed ‘‘no view on the extent to which the 1958
conviction itself may be subject to challenge in the
attack upon the 1978 sentences which it was used to
enhance.’’ Id., 494; see also Lebron v. Commissioner
of Correction, supra, 274 Conn. 512–16 (discussing
Maleng).
The United States Supreme Court has also addressed
the issue of a conviction obtained without representa-
tion by counsel (uncounseled conviction) that is used
either ‘‘to support guilt or enhance punishment’’ for
another offense. Burgett v. Texas, 389 U.S. 109, 115, 88
S. Ct. 258, 19 L. Ed. 2d 319 (1967). Under Gideon v.
Wainwright, supra, 372 U.S. 345, the sixth amendment
right to counsel was made applicable to state prosecu-
tions through the due process clause of the fourteenth
amendment. The court subsequently has afforded spe-
cial status to Gideon claims in the context of a sentence
enhancement that was based on a prior conviction
obtained where there was a failure to appoint counsel
in violation of the sixth amendment. Specifically, the
court has recognized that ‘‘[t]o permit a conviction
obtained in violation of Gideon v. Wainwright to be
used against a person either to support guilt or enhance
punishment for another offense . . . is to erode the
principle of that case.’’ Burgett v. Texas, supra, 115.
In Burgett, the defendant was charged under a Texas
recidivist statute with having been convicted of four
previous felonies. Id., 111. Evidence of the prior convic-
tions, including a certified record of a conviction from
Tennessee, was presented before the jury. Id., 111–12.
The defendant objected on the ground that the convic-
tion was void under state law because he had not been
represented by counsel in violation of the fourteenth
amendment. Id., 112. The court in Burgett concluded
that the prior conviction, obtained in violation of Gid-
eon, which was introduced as evidence in a subsequent
prosecution, was inherently prejudicial. Id., 115.
Although the state court had given an instruction to the
jury to disregard the prior conviction, the error was not
harmless beyond a reasonable doubt, and it required
reversal of the judgment. Id.
Following Burgett, the Supreme Court in United
States v. Tucker, 404 U.S. 443, 447, 92 S. Ct. 589, 30 L.
Ed. 2d 592 (1972), affirmed the decision of the Unites
States Court of Appeals for the Ninth Circuit remanding
the case to the District Court for reconsideration of
the defendant’s sentence for bank robbery, where the
record revealed that the sentencing judge had given
specific consideration to prior convictions that had
been obtained in violation of Gideon. The defendant
collaterally attacked the prior convictions in California
state court, arguing that they were obtained in violation
of the right to counsel. Id., 445. The California state
court noted the ‘‘propriety of our present examination
of constitutionally challenged out-of-state priors as they
relate to California adjudication of habitual criminal-
ity.’’ (Emphasis added.) In re Tucker, 64 Cal. 2d 15,
16–17, 409 P.2d 921, 48 Cal. Rptr. 697 (1966). The peti-
tioner thereafter initiated an action pursuant to 28
U.S.C. § 2255 in the federal District Court in which he
had been convicted of the bank robbery.6 United States
v. Tucker, supra, 445. Because the sentence was
‘‘founded at least in part upon misinformation of consti-
tutional magnitude’’; id., 447; the United States Supreme
Court affirmed the judgment of the Ninth Circuit
remanding the case to the trial court to reconsider the
defendant’s sentence without consideration of the prior
convictions, which were invalid under Gideon. Id., 449.
The United States Supreme Court also has addressed
the use of unconstitutional convictions obtained in vio-
lation of the right to counsel as used to enhance a
sentence under the Armed Career Criminal Act of 1984,
18 U.S.C. § 924 (e) (ACCA).7 In Custis v. United States,
511 U.S. 485, 488, 114 S. Ct. 1732, 128 L. Ed. 2d 517
(1994), the defendant sought to collaterally attack dur-
ing his federal sentencing proceeding the validity of
two prior convictions used to enhance his sentence
under the ACCA. He attacked ‘‘his previous convictions
claiming the denial of the effective assistance of coun-
sel, that his guilty plea was not knowing and intelligent,
and that he had not been adequately advised of his
rights in opting for a ‘stipulated facts’ trial.’’ Id., 496.
The court declined to extend Burgett’s and Tucker’s
recognition of ‘‘the right to attack collaterally prior con-
victions used for sentence enhancement beyond the
right to have appointed counsel established in Gideon.’’
Id.; see also State v. Jusino, 163 Conn. App. 618, 627,
137 A.3d 65 (citing Custis for proposition that ‘‘a defen-
dant has a constitutional right to collaterally attack a
prior conviction during a federal sentencing proceeding
only if the conviction was obtained in violation of the
defendant’s right to counsel under Gideon’’), cert.
denied, 321 Conn. 906, 136 A.3d 643 (2016). The court
in Custis reasoned that ‘‘principles of finality associated
with habeas corpus actions apply with at least equal
force when a defendant seeks to attack a previous con-
viction used for sentencing. By challenging the previous
conviction, the defendant is asking a district court ‘to
deprive [the] [state-court judgment] of [its] normal force
and effect in a proceeding that ha[s] an independent
purpose other than to overturn the prior judgmen[t].’ ’’
Custis v. United States, supra, 497. The court noted
that the defendant was still in custody on his state
convictions at the time of his federal sentencing and,
therefore, he could attack those sentences in state court
or through federal habeas review. Id.
In Daniels v. United States, supra, 532 U.S. 377, the
petitioner filed a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255, which permits the
court to vacate a sentence on the ground that it was
imposed in violation of the constitution. He contended
that his two robbery convictions did not qualify as predi-
cate offenses under the ACCA, because, he alleged, they
were unconstitutional as the product of faulty guilty
pleas and ineffective assistance of counsel. Id. The
Supreme Court in both Custis and Daniels recognized
that the failure to appoint counsel constituted ‘‘a unique
constitutional defect’’; id., 382; Custis v. United States,
supra, 511 U.S. 496; that justified an exception permit-
ting a collateral attack on prior convictions during the
course of a federal sentencing proceeding or potentially
on a motion to vacate, set aside, or correct a sentence
if the defendant had raised the claim at his federal
sentencing proceeding. Daniels v. United States, supra,
382. Thus, the court held that the rule that a prior
conviction may not be attacked during a sentencing
proceeding was subject to only one exception: ‘‘If an
enhanced federal sentence will be based in part on a
prior conviction obtained in violation of the right to
counsel, the defendant may challenge the validity of
his prior conviction during his federal sentencing pro-
ceedings.’’ Id. The court in Daniels clarified, however,
that ‘‘[a] defendant may challenge a prior conviction as
the product of a Gideon violation in a § 2255 motion,
but generally only if he raised that claim at his federal
sentencing proceeding.’’ (Emphasis added.) Id.
Last, in Lackawanna County District Attorney v.
Coss, 532 U.S. 394, 399, 401–402, 121 S. Ct. 1567, 149
L. Ed. 2d 608 (2001), the court construed a petition for
habeas corpus as a challenge to the petitioner’s current
sentence, as enhanced by an allegedly invalid prior con-
viction, which the petitioner claimed was invalid
because he did not receive effective assistance of coun-
sel. Specifically, the petitioner alleged that the sentenc-
ing judge considered the unconstitutional convictions
in calculating his sentence. Id., 400. The court held that
‘‘once a state conviction is no longer open to direct or
collateral attack in its own right because the defendant
failed to pursue those remedies while they were avail-
able (or because the defendant did so unsuccessfully),
the conviction may be regarded as conclusively valid.
. . . If that conviction is later used to enhance a crimi-
nal sentence, the defendant generally may not challenge
the enhanced sentence through a petition under [28
U.S.C.] § 2254 on the ground that the prior conviction
was unconstitutionally obtained.’’8 (Citation omitted.)
Id., 403–404. The court noted that an exception to this
rule exists where the prior conviction involved a failure
to appoint counsel in violation of the sixth amendment.
The court concluded that ‘‘[w]hen an otherwise quali-
fied § 2254 petitioner can demonstrate that his current
sentence was enhanced on the basis of a prior convic-
tion that was obtained where there was a failure to
appoint counsel in violation of the Sixth Amendment,
the current sentence cannot stand and habeas relief is
appropriate.’’ (Emphasis added.) Id., 404; see also
Lebron v. Commissioner of Correction, supra, 274
Conn. 517 (recognizing the Gideon exception as articu-
lated in Lackawanna). The court in Lackawanna cau-
tioned, however, that ‘‘[a]s with any § 2254 petition, the
petitioner must satisfy the procedural prerequisites for
relief including, for example, exhaustion of remedies.’’
Lackawanna County District Attorney v. Coss,
supra, 404.
Federal courts applying Custis, Daniels, and Lacka-
wanna, have affirmed the dismissal of habeas petitions
where the petitioner has not followed the proper proce-
dures in presenting a claim that an enhanced federal
sentence was based on a prior conviction obtained in
violation of the right to counsel. See Brennan v. United
States, 646 Fed. Appx. 622, 623 (10th Cir. 2016) (dismiss-
ing petition for habeas corpus filed pursuant to § 2241
where petitioner’s argument ‘‘could have been tested
during his federal sentencing and then under § 2255’’);
Perkins v. Holt, 410 Fed. Appx. 422, 423 (3d Cir. 2010)
(affirming District Court’s judgment dismissing petition
filed under § 2241, where petitioner raised arguments
that could have been raised at his federal sentencing
proceeding, on direct appeal, or in a § 2255 motion,
explaining that ‘‘a Gideon violation does not eliminate
the need to follow the proper procedures’’); Howard v.
United States, 374 F.3d 1068, 1072 (11th Cir. 2004) (‘‘[a]
modern day petitioner cannot rely on outdated language
about Gideon errors rising to the level of jurisdictional
defects in order to get past procedural defenses,
because the Supreme Court has stated in two modern
decisions—Daniels and Lackawanna, both decided in
2001—that procedural defenses do apply to Gideon-
based claims’’); see also Lee v. United States, No. CIV.
A. 02-1837, 2006 WL, *3 (E.D. Pa. March 14, 2006) (peti-
tioner who failed to raise claim that his prior convic-
tions were uncounseled during federal sentencing
proceeding was ‘‘precluded on federal habeas review
to argue that the prior state convictions were ‘un-coun-
seled,’ i.e., petitioner is procedurally defaulted from
raising the Gideon exception discussed in Daniels’’).
We now address the claims asserted in the present
appeal. The petitioner argues that the allegations in his
petition ‘‘establish that he was completely deprived of
his counsel in the conviction and sentence for sexual
assault, and that this uncounseled conviction is enhanc-
ing the punishment for another offense.’’ He further
claims that ‘‘[u]nder federal constitutional law’’ his alle-
gations establish ‘‘custody, and therefore, jurisdiction,
in the habeas court.’’ The respondent, the Commis-
sioner of Correction, does not dispute that ‘‘the peti-
tioner might be permitted to challenge, by way of
habeas corpus, the legality of the sentence for which
he currently remains in custody on the ground that it
has been adversely affected by an expired conviction
obtained in violation of Gideon . . . .’’9
The parties disagree, however, as to whether the
habeas court has jurisdiction over the petitioner’s claim
that, regardless of any impact on a subsequent convic-
tion, he may directly attack the expired conviction itself.
The petitioner claims that his petition seeks withdrawal
of his guilty plea as to his expired conviction for sexual
assault. His application for a waiver of fees, costs and
expenses states that his ‘‘[c]onviction must be vacated
even if [there are] no direct or collateral consequences,’’
and his petition for certification to appeal maintains
that he states a claim ‘‘even though [his] sentence
expired.’’ The habeas court’s ruling dismissing the peti-
tion did not expressly address this claim. However,
because the petitioner raised it in his petition for certifi-
cation to appeal and in his briefing to this court and
because the claim implicates subject matter jurisdic-
tion, we address it. See Pentland v. Commissioner of
Correction, supra, 176 Conn. App. 785 (‘‘[t]he subject
matter jurisdiction requirement may not be waived by
any party, and also may be raised by a party, or by
the court sua sponte, at any stage of the proceedings,
including on appeal’’ [internal quotation marks
omitted]).
On appeal, the petitioner contends that the habeas
court had subject matter jurisdiction over his petition
directly seeking vacation of the expired sexual assault
conviction. The United States Supreme Court precedent
addressing the use of an uncounseled conviction in later
prosecutions, either as evidence of guilt or as a sentence
enhancement, does not support the petitioner’s claim
that he may attack the expired conviction in the absence
of an enhancement. Moreover, circuit courts applying
such precedent have recognized that procedural
defenses apply to Gideon claims, necessarily refuting
the proposition that a Gideon claim may be raised with-
out limitation.10 Last, we do not find persuasive the
scant, nonbinding, out-of-state authority the petitioner
cites in support of his proposition that ‘‘the existence
of the Gideon exception allows the sentencing court
to act on the expired conviction, not merely the present
or potentially enhanced sentence.’’ To the extent that
the petitioner directly challenges the expired 1980 con-
viction, we conclude that the petitioner has submitted
no authority to support a claim that the expired convic-
tion itself may be vacated, and the habeas court’s denial
of certification to appeal as to this claim was not an
abuse of discretion.11
II
The petitioner claims on appeal that his petition ‘‘did
not seek to alter or modify his parole. Rather, the relief
requested was the vacation of the 1980 conviction
(which is enhancing the conditions of parole).’’ We have
concluded in part I of this opinion that the habeas court
lacked jurisdiction over the petition to the extent that
it sought to challenge directly the expired conviction.
Thus, all that remained of the petition was a challenge
to the conditions of parole imposed on the petitioner.12
We conclude that the habeas court did not abuse its
discretion in denying the petitioner’s petition for certifi-
cation to appeal, where the habeas court properly con-
cluded that it lacked subject matter jurisdiction over the
petition to the extent that it challenged the petitioner’s
classification and conditions of his parole.
We first note that the petition for certification to
appeal did not address the specific grounds upon which
the habeas court sua sponte dismissed the petition.
‘‘This court has determined that a petitioner cannot
demonstrate that the habeas court abused its discretion
in denying a petition for certification to appeal if the
issue that the petitioner later raises on appeal was never
presented to, or decided by, the habeas court.’’ ((Inter-
nal quotation marks omitted.) Haughey v. Commis-
sioner of Correction, 173 Conn. App. 559, 572, 164 A.3d
849, cert. denied, 327 Conn. 906, 170 A.3d 1 (2017);
see also Melendez v. Commissioner of Correction, 141
Conn. App. 836, 841, 62 A.3d 629 (‘‘[t]he court could
not abuse its discretion in denying the petition for certi-
fication about matters that the petitioner never raised’’),
cert. denied, 310 Conn. 921, 77 A.3d 143 (2013).13
However, given that the habeas court’s decision
implicates subject matter jurisdiction, we address the
jurisdictional issue raised by the respondent and
responded to by the petitioner. See Ajadi v. Commis-
sioner of Correction, supra, 280 Conn. 532 (although
habeas court committed plain error in failing to disqual-
ify itself, our Supreme Court had jurisdiction, and an
independent obligation to determine whether the
habeas court lacked subject matter jurisdiction). The
respondent argues that the ‘‘habeas court correctly con-
cluded that both the classification decisions and the
parole decisions regarding this petitioner are entirely
discretionary and therefore invoke neither a liberty
interest, nor any other constitutionally cognizable inter-
est within the jurisdiction of the habeas court.’’ The
petitioner argues that ‘‘[t]o the degree that the petition
indicates that he is being classified and treated as a
sex offender, petitioner has alleged a cognizable liberty
interest, sufficient to withstand a sua sponte motion to
dismiss at such an early state of the proceedings.’’
‘‘[I]n order to invoke successfully the jurisdiction of
the habeas court, a petitioner must allege an interest
sufficient to give rise to habeas relief. . . . In order to
invoke the trial court’s subject matter jurisdiction in a
habeas action, a petitioner must allege that he is illegally
confined or has been deprived of his liberty. . . . In
order . . . to qualify as a constitutionally protected lib-
erty . . . the interest must be one that is assured either
by statute, judicial decree, or regulation.’’ (Citation
omitted; emphasis in original; internal quotation marks
omitted.) Byrd v. Commissioner of Correction, supra,
177 Conn. App. 82.
Our appellate courts have recognized, and the peti-
tioner concedes, that parole eligibility status does not
constitute a cognizable liberty interest sufficient to
invoke habeas jurisdiction. Id.; see also Baker v. Com-
missioner of Correction, 281 Conn. 241, 261–62, 914
A.2d 1034 (2007). The petitioner maintains, citing
Anthony A. v. Commissioner of Correction, 159 Conn.
App. 226, 231, 122 A.3d 730 (2015), aff’d, 326 Conn.
668, 166 A.3d 614 (2017), that ‘‘classification as a sex
offender, however, can create a cognizable liberty inter-
est.’’ (Emphasis omitted.)
Our resolution of the petitioner’s claim depends on
an application of the stigma plus test recently adopted
by our appellate courts in Anthony A. v. Commissioner
of Correction, 326 Conn. 668, 166 A.3d 614 (2017).14 The
petitioner in Anthony A. claimed that he was incorrectly
classified as a sex offender and that he had suffered
negative consequences as a result of the incorrect clas-
sification. Id., 672. The petitioner had been convicted
of unlawful restraint in the first degree, failure to
appear, and violation of probation. Id., 671. His wife
initially had told police that the petitioner sexually
assaulted her, a statement which she later recanted. Id.
Thus, the state entered a nolle prosequi on the charge
of sexual assault in a spousal relationship. Id. The peti-
tioner alleged that he was classified as a sex offender
upon his incarceration, and the trial court assumed for
purposes of its ruling that the petitioner had ‘‘been
classified as a sex offender when he was not really a
sex offender.’’ Id., 671 n.2. ‘‘As a consequence of the
erroneous classification, the petitioner was offered a
choice. He could participate in ‘sex treatment’ that was
recommended by his offender accountability plan or
risk forfeiture of supervised community release, parole
and the opportunity to earn risk reduction earned credit
(good time credits).’’ Id., 672. Under these facts, our
Supreme Court concluded that the petitioner suffi-
ciently had alleged a protected liberty interest sufficient
to invoke the jurisdiction of the habeas court. Id., 686.
In so concluding, the court analyzed the petitioner’s
claim pursuant to the ‘‘stigma plus’’ test applied by the
federal courts. Id., 680. This inquiry involved a focus
on ‘‘whether the allegations of the petition demonstrate
that the classification was wrongful and stigmatized the
petitioner, and that the consequences suffered by the
petitioner were ‘qualitatively different’ from the punish-
ments usually suffered by prisoners, so that they consti-
tuted a major change in the conditions of confinement
amounting to a grievous loss.’’ Id., 680–81. Our Supreme
Court agreed with the federal courts that the ‘‘stigma’’
part of the test was satisfied by the ‘‘uniquely stigmatiz-
ing’’ classification as a sex offender, citing as an exam-
ple the proliferation of Megan’s Laws, whereby sex
offenders are required to register with law enforcement
officials. Id., 681.
Our Supreme Court also made clear that there exists a
jurisdictional threshold requirement that the petitioner
‘‘must allege the falsehood of the stigmatizing label or
classification.’’ Id., 680. The court explained: ‘‘As far as
the petitioner’s burden to demonstrate that the classifi-
cation is wrongful, for purposes of jurisdiction, that
requirement is satisfied by effective pleading and veri-
fied in a threshold inquiry—the petitioner simply must
claim that the classification is false.’’ Id., 681. In
Anthony A., the petitioner satisfied this requirement by
claiming that he had not sexually assaulted his wife
and noting her retraction of her earlier statements to
the contrary. Id., 681–82. In the present case, the peti-
tioner has not alleged facts, which, taken as true, estab-
lish ‘‘stigma’’ under the stigma plus test because he fails
to satisfy the threshold requirement that he plead that
the classification is false. Nowhere in his petition does
he allege that the conduct underlying his conviction of
sexual assault did not occur. See Vega v. Lantz, 596
F.3d 77, 82 (2d Cir. 2010) (‘‘[s]ince Vega did not allege
falsity, he was not entitled to relief on his stigma plus
due process claim’’).
Even if this court were to conclude that the stigma
factor had been satisfied, the petitioner has failed to
establish the ‘‘plus’’ factor. The court in Anthony A.
noted that federal courts have found allegations of com-
pelled participation in sex offender treatment sufficient
to satisfy the ‘‘plus’’ factor, whereas labeling of an
inmate as a sex offender and providing the inmate with
recommendations for treatment, absent negative conse-
quences for a failure to participate, is insufficient.
Anthony A. v. Commissioner of Correction, supra, 326
Conn. 683–84. Here, the petitioner’s sole factual allega-
tion in support of his classification claim is that he was
‘‘incarcerated o[n a] violation of parole which consists
of using a cell phone in violation of the conditions
imposed under the special monitoring unit for sex
offenders.’’15 He also provides the conclusory allegation
that he had ‘‘been advised that his 1980 unwanted touch-
ing conviction . . . will have petitioner treat[ed] the
same as if it was sexual assault in the 1st degree.’’
Although the petitioner’s allegations imply that he was
subject to a condition of parole imposed and/or moni-
tored by a special sex offender unit, he makes no allega-
tions that he was compelled to participate in any sex
offender treatment, let alone that parole eligibility was
conditioned upon participation in such treatment. Cf.
Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997) (find-
ing liberty interest implicated based on ‘‘the stigmatiz-
ing consequences of the attachment of the ‘sex offender’
label coupled with the subjection of the targeted inmate
to a mandatory treatment program whose successful
completion is a precondition for parole eligibility’’).
Because the petitioner has satisfied neither factor of
the stigma plus test, we conclude that he has failed
to allege sufficient facts to assert a cognizable liberty
interest that affords jurisdiction to the habeas court
over his claim. Accordingly, the habeas court did not
abuse its discretion in denying the petitioner’s petition
for certification to appeal from its judgment of dis-
missal.
III
Last, we address the petitioner’s claim under article
first, § 8, of the Connecticut constitution. He claims
that the ‘‘right to counsel provided by the Connecticut
constitution is more extensive than that provided in the
United States constitution,’’ and that the violation of
his right to counsel under the Connecticut constitution
‘‘was sufficient to establish jurisdiction in the habeas
court to adjudicate his claims.’’ The respondent con-
tends that the petitioner’s briefing regarding the breadth
of the substantive right to counsel under the Connecti-
cut constitution addresses the ‘‘wrong question . . . .’’
The respondent argues that the issue presented by this
case is whether the jurisdictional prerequisite ‘‘for
bringing an action in our state habeas courts differs
from that applicable to habeas actions brought in fed-
eral courts.’’ We agree with the respondent that the
petitioner’s claim under the Connecticut constitution
is misdirected.
The petitioner presents his argument pursuant to the
multifactor approach our Supreme Court first adopted
in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225
(1992). The factors to be considered are ‘‘(1) the text
of the relevant constitutional provisions; (2) related
Connecticut precedents; (3) persuasive federal prece-
dents; (4) persuasive precedents of other state courts;
(5) historical insights into the intent of [the] constitu-
tional [framers]; and (6) contemporary understandings
of applicable economic and sociological norms [other-
wise described as public policies].’’ (Internal quotation
marks omitted.) State v. Skok, 318 Conn. 699, 708, 122
A.3d 608 (2015).
The petitioner’s analysis with respect to the Geisler
factors does not address the central issue presented by
this case. With respect to the first factor, the petitioner
claims that the language of article first, § 8, of the Con-
necticut constitution ‘‘provides for a defendant’s right
to be heard by himself and by counsel, as opposed to
the sixth amendment’s provision for the assistance of
counsel in his defense.’’ This court has recognized that
‘‘[t]here is no appreciable difference in the text of either
the federal or state constitutions except that under our
federal constitution the right to act for oneself is implicit
whereas in our state constitution that right is express.’’
State v. Orlando, 163 Conn. App. 155, 164–65, 134 A.3d
708, cert. denied, 320 Conn. 930, 133 A.3d 461 (2016).
Given that the right to self-representation is not at issue
in the present appeal, the petitioner’s briefing on the
first factor is not relevant.
With respect to the second factor, the petitioner
claims that ‘‘Connecticut state and federal decisions
pre-Custis held that uncounseled felony convictions
may not be used as a basis for habitual offender status.’’
See Wilson v. Warden, 26 Conn. Supp. 464, 466, 227
A.2d 265 (1967) (where prior, uncounseled conviction
was used in later conviction as a habitual offender,
the court concluded that the Massachusetts conviction
obtained without the assistance of counsel ‘‘cannot
stand’’ and ordered that petitioner be resentenced as a
second offender rather than a third offender); United
States ex rel. Brown v. Reincke, 266 F. Supp. 83, 86 (D.
Conn. 1966) (ordering resentencing of petitioner, where
uncounseled prior Maine conviction had been improp-
erly used by state of Connecticut in determining the
sentence of the petitioner as a habitual offender). As
the petitioner concedes, however, both cases involved
Connecticut’s habitual offender statute, not claims of
adverse parole conditions. Moreover, the petitioner
cites to State v. Sostre, 48 Conn. Supp. 279, 296, 842
A.2d 633 (2002), in which the Superior Court considered
a challenge to the use of a prior felony conviction as
an aggravant under the death penalty statutes. Sostre
is distinguishable not only because it arose in the unique
context of a death penalty proceeding, but also because
the court prefaced its analysis of the claim of ineffective
assistance of counsel by noting that ‘‘it is not entirely
clear to the court that this issue is properly raised in
the present proceeding . . . .’’ Id. Accordingly, we con-
clude that the authorities cited do not support the peti-
tioner’s claims.
The analysis presented under factors four through
six likewise is not helpful to the petitioner’s claims in
this appeal. Rather than direct this court to decisions
of sister states having provisions similar to article first,
§ 8, of the Connecticut constitution, the petitioner
instead briefs under factor four certain sister states’
allowance of ‘‘collateral attacks for reasons other than
deprivation of the right to counsel,’’ without explaining
how such precedent addressing other constitutional
violations impacts the subject of this appeal. The analy-
sis pursuant to factor six suffers from the same defect,
in that the petitioner attempts to erase the distinction
between right to counsel violations and ineffective
assistance of counsel claims, without relating the analy-
sis to his specific claims. With respect to the fifth factor,
the petitioner provides a broad discussion of the history
of the substantive right to counsel under the Connecti-
cut constitution without explaining how such history
could assist this court in reviewing his claim. Accord-
ingly, as the principles cited by the petitioner do not
enlighten our analysis of whether the habeas court had
subject matter jurisdiction over the petitioner’s petition,
we reject his claim pursuant to the Connecticut consti-
tution.
We conclude that the habeas court did not abuse
its discretion by denying certification to appeal. The
jurisdictional issues the petitioner raises are not debat-
able among jurists of reason, nor has the petitioner
shown that a court could resolve the issues in a different
manner, and the questions are inadequate to deserve
encouragement to proceed further.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Practice Book § 23-24 (a) provides in relevant part: ‘‘(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
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:
‘‘(1) the court lacks jurisdiction . . . .’’
3
General Statutes § 52-466 (a) (1) provides: ‘‘An application for a writ of
habeas corpus, other than an application pursuant to subdivision (2) of this
subsection, shall be made to the superior court, or to a judge thereof, for
the judicial district in which the person whose custody is in question is
claimed to be illegally confined or deprived of such person’s liberty.’’
4
We note that where a petitioner is on parole from a conviction, he remains
‘‘in custody’’ on that conviction for purposes of habeas court jurisdiction.
See Lebron v. Commissioner of Correction, 274 Conn. 507, 529 n.17, 876
A.2d 1178 (2005), overruled in part on other grounds by State v. Elson, 311
Conn. 726, 747, 754, 91 A.3d 862 (2014).
5
Section 2241 (c) of title 28 of the United States Code provides in relevant
part: ‘‘The writ of habeas corpus shall not extend to a prisoner unless . . .
(3) [h]e is in custody in violation of the Constitution or laws or treaties of
the United States . . . .’’
6
Section 2255 (a) of title 28 of the United States Code provides: ‘‘A prisoner
in custody under sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.’’
7
Under the ACCA, the penalty for possession of a firearm by a felon
increases from a maximum of ten years in prison to a mandatory minimum
sentence of fifteen years and a maximum of life in prison without parole
if the defendant has three previous convictions for a violent felony or serious
drug offense. See 18 U.S.C. § 924 (e) (2012).
8
Section 2254 (a) of title 28 of the United States Code provides: ‘‘The
Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of
the United States.’’
9
For reasons discussed in part II of this opinion, we conclude that the
habeas court was without jurisdiction over the petition because the petition
alleges only that his classification and conditions of parole have been
affected by the allegedly uncounseled conviction.
10
The petitioner points this court to a case from the United States District
Court for the Eastern District of Michigan, Ward v. Wolfenbarger, 340 F.
Supp. 2d 773, 776 (E.D. Mich. 2004), as factually closest to the present case.
In Ward, the petitioner had been convicted of drug offenses and had been
deprived of his sixth amendment right to counsel when the trial court failed
to advise him of his rights to appeal from the conviction and his right to
appellate counsel if he was indigent. The court initially conditioned the
granting of the writ upon the respondent’s taking immediate action to afford
the petitioner an appeal of right to the Michigan Court of Appeals with the
assistance of appellate counsel. Id., 775. On reconsideration, the court issued
an unconditional writ, after noting that affording the petitioner a new appeal
of right would not vitiate the prejudice arising from the denial of his right
to appeal from his thirty-three year old convictions. Id., 776–77. The court
explained that the expired convictions were being used to deny the peti-
tioner parole release on the later convictions, and that the board had sched-
uled a public hearing to determine whether the petitioner should be released
on parole. In support of its conclusion to grant the unconditional writ, the
court stated that it was highly unlikely that any appeal of right could be
heard before the scheduled parole hearing. Id.
In the other two cases cited by the petitioner, State v. Peters, 244 Wis.
2d 470, 473, 628 N.W.2d 797 (2001), and Brockway v. State, 37 P.3d 427, 430
(Alaska App. 2001), both direct appeals, the defendants claimed that a prior,
unconstitutional conviction was used in a prosecution for repeat offenders.
In Peters, at issue was a fifth operating after revocation of license proceed-
ing (OAR). State v. Peters, supra, 244 Wis. 2d 473. The defendant had ‘‘moved
to invalidate his second OAR conviction in an effort to prevent its use for
penalty enhancement purposes in the fifth offense prosecution.’’ Id. The
court concluded that ‘‘because this prosecution for fifth offense OAR is
predicated in part on a prior OAR conviction that was obtained when [the
defendant] was not represented by counsel, we conclude that it falls within
the right-to-counsel exception to the general rule against collateral attacks
on prior convictions used to enhance subsequent penalties.’’ (Emphasis
added.) Id., 480. Accordingly, the defendant could collaterally attack the
prior conviction in the context of the enhanced sentence proceeding.
In Brockway, the court concluded that the defendant, who had not claimed
a total deprivation of counsel, could not collaterally attack his expired
conviction during his sentencing as a second felony offender. Brockway v.
State, supra, 37 P.3d 430. The court noted an exception to this rule—a
defendant may attack a prior conviction if the defendant was completely
denied the right to counsel, because a deprivation of the right to counsel
is equivalent to a lack of jurisdiction. Id.
To the extent Peters and Brockway stand for the proposition that a defen-
dant may, in the context of an enhanced sentence proceeding, challenge the
validity of a prior uncounseled conviction, these cases have no application
to the present appeal, which does not arise from a defendant’s objection
to the use of an uncounseled conviction in an enhanced sentence proceeding.
11
The petitioner further claims that ‘‘[a] Superior Court has inherent
authority to vacate a judgment entered without jurisdiction at any time,
either on a direct motion or on a collateral attack on the judgment—including
this collateral attack on the 1980 conviction.’’ He cites Koennicke v. Maior-
ano, 43 Conn. App. 1, 682 A.2d 1046 (1996), which provides that ‘‘[a] judgment
void on its face and requiring only an inspection of the record to demonstrate
its invalidity is a mere nullity, in legal effect no judgment at all, conferring
no right and affording no justification . . . . It neither binds nor bars any-
one. All acts performed under it and all claims flowing out of it are void.’’
(Internal quotation marks omitted.) Id., 25. Even assuming that the petitioner
ultimately could demonstrate that the expired conviction was void on the
basis of a violation of his right to counsel, our conclusion that the habeas
court lacked jurisdiction over the petition is dispositive of this appeal.
12
The petitioner claims that ‘‘[i]f a petitioner challenges his expired convic-
tion in the context of its effect on an outstanding sentence of parole, the
habeas court has the authority to consider the merits of those claims,’’ citing
Antonelli v. Lappin, 134 Fed. Appx. 700, 701 (5th Cir. 2005). In that case,
the United States Court of Appeals for the Fifth Circuit held that the District
Court correctly concluded that the petitioner could not attack his expired
conviction, but that the District Court did have jurisdiction over the petition-
er’s claim that the allegedly unconstitutional conviction resulted in a forfei-
ture of nineteen months of parole.
In a subsequent decision, the Fifth Circuit clarified the defendant’s posi-
tion, which was that the ‘‘effect of this forfeiture . . . is that nineteen
months of parole have now been ‘tacked on’ to the end of the present
sentence he is serving, thereby ‘making the time [he must] serve 19 months
longer than it would otherwise be’ ’’ without the unconstitutional conviction.
Antonelli v. Lappin, 338 Fed. Appx. 379, 381 (5th Cir. 2009). The Fifth
Circuit stated that the District Court had jurisdiction because the petitioner
had challenged the unconstitutional conviction ‘‘in the context of its effect
on his outstanding sentence of parole . . . .’’ (Emphasis added; internal
quotation marks omitted.) Id. In so holding, the Fifth Circuit clarified that
the District Court’s findings as to the merits of the petitioner’s claims were
‘‘not for the purpose of declaring the 1997 conviction invalid for all purposes
but rather for the limited purpose of determining whether the 1997 conviction
requires the forfeiture of nineteen months of ‘street time,’ as determined
by the [United States] Parole Commission.’’ Id., 382.
We are not persuaded that Antonelli supports the petitioner’s claims.
The petitioner in Antonelli specifically had alleged that his uncounseled
conviction was used to ‘‘tack on’’ an additional nineteen months to the end
of the sentence which he was currently serving. Moreover, the Fifth Circuit
made clear that the inquiry into the allegedly uncounseled conviction was
solely for the purpose of whether the conviction required the forfeiture of
the petitioner’s street time.
13
Although the petitioner contends in his reply brief that it is an abuse
of discretion for the habeas court to deny a petition sua sponte without
notice and a hearing, the court is not required to conduct a hearing before
dismissing a petition. See Pentland v. Commissioner of Correction, supra,
176 Conn. App. 787 (habeas court was not required to hold hearing before
dismissing petition where ‘‘the petitioner had not satisfied his obligation to
allege sufficient facts in his pleading, which, if proved, would establish that
he was in custody at the time he filed the petition’’).
14
The respondent claims that the stigma plus test is not applicable, relying
solely upon Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 6, 123 S.
Ct. 1160, 155 L. Ed. 2d 98 (2003). In Doe, the United States Supreme Court
declined to reach the question of whether the defendant had established a
liberty interest because it concluded that even assuming a liberty interest
existed, due process did not entitle the defendant to a hearing to determine
his dangerousness prior to the offender being required to register as a sex
offender. Id., 7–8. Dangerousness was ‘‘not material under the Connecticut
statute’’; id., 7; and thus, no hearing was required. Id. 7–8. Because we
address the question of whether the petitioner has sufficiently alleged a
protected liberty interest, we reject the respondent’s claim that the stigma
plus test is inapplicable.
15
In his brief, the petitioner requests this court to take judicial notice of
information contained on the Department of Correction website regarding
a specialized unit that provides intensive supervision for sex offenders. We
decline to take judicial notice of any documents not before the habeas court
in this matter. See Arriaga v. Commissioner of Correction, 120 Conn. App.
258, 261, 990 A.2d 910 (2010) (declining to take judicial notice of underlying
criminal record where petitioner had burden of alleging facts in petition
demonstrating he was in custody of respondent, and he failed to do so),
appeal dismissed, 303 Conn. 698, 36 A.3d 224 (2012); Young v. Commissioner
of Correction, 104 Conn. App. 188, 194, 932 A.2d 467 (2007) (‘‘we review the
actions of the habeas court on the record and may not consider extraneous
material later submitted directly to us’’), cert. denied, 285 Conn. 907, 942
A.2d 416 (2008).