217 Conn.App. 119
Conn. App. Ct.2022Background
- Petitioner Isschar Howard was convicted after a jury trial of capital felony and related offenses and sentenced to life without release plus additional years; direct appeal affirmed.
- Howard filed a pro se habeas petition on October 14, 2016; the court assigned a docket number, granted counsel and fee waiver, and counsel later appeared.
- A scheduling order set deadlines for an amended petition and other pleadings; counsel later moved to withdraw (Jan. 2019), but the motion was not resolved on the record.
- On February 1, 2019 the habeas court sua sponte dismissed the petition under Practice Book § 23-29 for lack of jurisdiction, concluding the petition did not challenge conviction or confinement, and did so without notifying Howard or permitting a written response.
- Howard sought certification to appeal; the habeas court denied it, and this appeal followed; the Appellate Court stayed the case pending our Supreme Court’s decisions in Brown and Boria.
- The Appellate Court reversed the dismissal and remanded: the court held that post-writ dismissals under § 23-29 require prior notice and an opportunity to file a written response (per Brown/Boria); because counsel had been appointed and the matter had been pending over two years, the court should not first re-screen under § 23-24 but on remand must follow Brown/Boria procedures if it again elects to dismiss under § 23-29.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the habeas court may dismiss a petition sua sponte under Practice Book § 23-29 without prior notice and an opportunity to respond | Howard: court must give prior notice and chance to respond in writing before a § 23-29 dismissal; petition should be read liberally and counsel should be allowed to cure defects | Respondent: dismissal was proper; certification petition deficient and untimely; court’s action permissible | Court: Per Brown/Boria, § 23-29 dismissals require prior notice of proposed basis and opportunity to submit a written response; reversal required here because court failed to provide them |
| Whether denial of certification to appeal was an abuse of discretion | Howard: denial abused discretion because the procedural notice issue is debatable and merits appellate review | Respondent: certification was untimely and lacked specificity | Court: abuse of discretion; issues are debatable among jurists and deserve encouragement to proceed |
| Whether the habeas court must hold an evidentiary hearing before dismissing sua sponte | Howard: entitled to a hearing before dismissal | Respondent: hearing not required | Court: Hearing is discretionary; only written notice and an opportunity to respond are required (hearing optional) |
| On remand, whether the court must first reassess issuance of the writ under Practice Book § 23-24 before addressing § 23-29 dismissal | Howard: because counsel had been appointed and case long pending, reevaluation under § 23-24 would be inappropriate | Respondent: Brown/Boria contemplate remand to allow § 23-24 screening first | Court: Given the procedural posture (counsel appointed, case pending >2 years), the court need not first decline issuance under § 23-24; it may dismiss under § 23-29 on remand but must follow Brown/Boria notice/response procedure |
Key Cases Cited
- Brown v. Commissioner of Correction, 345 Conn. 1 (2022) (§ 23-29 requires prior notice and opportunity to file written response; hearing discretionary)
- Boria v. Commissioner of Correction, 345 Conn. 39 (2022) (adopts Brown reasoning and mandate)
- Gilchrist v. Commissioner of Correction, 334 Conn. 548 (2020) (distinguishes § 23-24 pre-writ screening from § 23-29 post-writ dismissal; counseled leniency for pro se petitioners)
- Kaddah v. Commissioner of Correction, 324 Conn. 548 (2017) (plenary review standard for dismissal under § 23-29)
- Simms v. Warden, 229 Conn. 178 (1994) (two-pronged test for habeas certification to appeal; standards for abuse of discretion)