Marshall v. Commissioner of Correction, AC43639

Petitioner Kevin Lewis Marshall pleaded guilty to two counts of burglary in the third degree and received concurrent sentences of 2 years + 1 day incarceration and 35 months of special parole for each count.
Marshall, pro se, filed a habeas petition arguing his sentence was illegal and violated double jeopardy because incarceration plus special parole amounted to two distinct sentences for the same offense.
The habeas court, sua sponte under Practice Book § 23-29, scheduled a dismissal hearing and later set a deadline for filing an amended petition; counsel was appointed and argued at the hearing that special parole would run after incarceration on a separate conviction, resulting in confinement beyond the statutory maximum.
The court limited its review to the four corners of the petition, concluded Marshall’s filed claim was foreclosed by State v. Farrar, and dismissed the petition for lack of jurisdiction / failure to state a claim because Marshall did not allege the combined term exceeded the statutory maximum.
The habeas court denied certification to appeal; the Appellate Court affirmed dismissal and denial of certification, holding the petition failed to plead a cognizable liberty interest and subject matter jurisdiction was lacking.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the habeas court abused its discretion in denying certification to appeal	Marshall argued the dismissal was erroneous and certification should be granted to pursue his double jeopardy claim	State argued Marshall’s claim was foreclosed by controlling precedent and the appeal lacked merit	Denial of certification was not an abuse of discretion; appeal dismissed
Whether the habeas court properly dismissed the habeas petition under Practice Book § 23-29 for lack of jurisdiction / failure to state a claim	Marshall contended the court should have allowed amendment because counsel asserted facts suggesting his special parole would overlap with separate incarceration, causing an aggregate term exceeding the statutory maximum	State relied on State v. Farrar: imprisonment plus special parole is authorized so long as combined term does not exceed statutory maximum; Marshall’s petition did not allege excess combined term	Dismissal was proper: petition only alleged an illegal double jeopardy sentence, did not allege combined term exceeded statutory maximum, so no cognizable liberty interest was pleaded; court properly resolved subject-matter jurisdiction sua sponte

State v. Farrar, 186 Conn. App. 220 (Conn. App. 2018) (statutory framework permits imprisonment followed by special parole provided combined term does not exceed statutory maximum)
Simms v. Warden, 229 Conn. 178 (Conn. 1994) (two-pronged test for appellate review of denial of certification to appeal a habeas dismissal)
Gilchrist v. Commissioner of Correction, 334 Conn. 548 (Conn. 2020) (Practice Book § 23-29 analogous to other dismissal rules; governs court's authority to dismiss sua sponte)
Stephenson v. Commissioner of Correction, 203 Conn. App. 314 (Conn. App. 2021) (court may not decide claims not raised in the habeas petition itself)
Green v. Commissioner of Correction, 184 Conn. App. 76 (Conn. App. 2018) (habeas relief requires allegation of an unconstitutional deprivation of a protected liberty interest)