PETER BORIA v. COMMISSIONER OF CORRECTION
(SC 20459)
Supreme Court of Connecticut
October 4, 2022
Robinson, C. J., and McDonald, Kahn, Ecker and Keller, Js.
Argued September 15, 2021
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Syllabus
The petitioner, who had been convicted of robbery in the first degree, filed a successive habeas petition, claiming, inter alia, that certain statutory (
Held that the Appellate Court improperly upheld the habeas court‘s judgment dismissing the petition under Practice Book § 23-29, and, accordingly, this court reversed the Appellate Court‘s judgment and remanded the case for further proceedings:
Because the issues raised by the parties and the merits of the underlying arguments presented on appeal were identical to those in the companion case of Brown v. Commissioner of Correction (345 Conn. 1), this court‘s reasoning and conclusions in Brown controlled the present case.
Insofar as the habeas court failed to first determine whether any grounds existed for it to decline to issue the writ of habeas corpus after consideration of the criteria set forth in the rule of practice (§ 23-24) governing the issuance of such writs, the case was remanded so that the habeas court could determine whether the writ should issue, and, if the court issues the writ and again elects to exercise its discretion to dismiss the habeas petition sua sponte pursuant to Practice Book § 23-29, it must, in accordance with this court‘s decision in Brown, provide the petitioner with notice of its intent to dismiss the petition and an opportunity to submit a brief or a written response addressing the court‘s intent to dismiss pursuant to § 23-29.
(One justice concurring separately)
Argued September 15, 2021-officially released October 4, 2022
Procedural History
Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Oliver, J., rendered judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed to the Appellate Court, Prescott and Moll, Js., with Bishop, J., concurring, which affirmed the habeas court‘s judgment, and the petitioner, on the granting of certification, appealed to this court. Reversed; further proceedings.
Naomi T. Fetterman, assigned counsel, with whom, on the brief, was Temmy Ann Miller, assigned counsel, for the appellant (petitioner).
Kathryn W. Bare, senior assistant state‘s attorney, and Zenobia G. Graham-Days, assistant attorney general, with whom, on the brief, was Maureen Platt, state‘s attorney, for the appellee (respondent).
Opinion
KAHN, J. This appeal is the companion case to Brown v. Commissioner of Correction, 345 Conn. 1, ___ A.3d ___ (2022), which we also decide today. The petitioner, Peter Boria, appeals from the judgment of the Appellate Court affirming the judgment of the habeas court, which had dismissed his petition for a writ of habeas corpus pursuant to Practice Book § 23-29 sua sponte and without prior notice. See Boria v. Commissioner of Correction, 186 Conn. App. 332, 351, 199 A.3d 1127 (2018). The question certified in this appeal is the same as the question this court answers in Brown. See Boria v. Commissioner of Correction, 335 Conn. 901, 225 A.3d 685 (2020). For the reasons stated in Brown, we conclude that a dismissal under § 23-29 requires that a petitioner be afforded both prior notice and an opportunity to submit a brief or a written response. We therefore reverse the judgment of the Appellate Court and remand the case for further proceedings consistent with this opinion and our decision in Brown.
The following undisputed facts and procedural history are relevant to the present appeal. The petitioner pleaded guilty on October 6, 2009, to the charges of robbery in the first degree and being a persistent dangerous felony offender. Boria v. Commissioner of Correction, supra, 186 Conn. App. 335. The trial court
The petitioner filed his first habeas petition in 2011, alleging ineffective assistance of trial counsel, in violation of the
The petitioner‘s third petition, also filed in 2016, is the subject of the present appeal. The petition asserts four claims: (1) the petitioner did not enter his guilty plea voluntarily, (2) the plea bargain was not followed, (3) the petitioner was denied the effective assistance of trial counsel, and (4) legislative changes to
The habeas court, Oliver, J., dismissed the petition, sua sponte and without prior notice, pursuant to Prac-tice Book § 23-29. Specifically, the habeas court dismissed the risk reduction credit challenge claim pursuant to § 23-29 (1) for lack of subject matter jurisdiction, and the remaining claims pursuant to § 23-29 (3) as repetitious. The habeas court then granted the petitioner‘s petition for certification to appeal, and the Appellate Court, in a divided opinion, affirmed the habeas court‘s judgment. See Boria v. Commissioner of Correction, 186 Conn. App. 351. This appeal followed.
The issues raised by the parties and the merits of the underlying arguments presented in this appeal are identical to those considered in Brown v. Commissioner of Correction, supra, 345 Conn. 1, which we also decide today. We conclude that our examination of the same issues in Brown thoroughly resolves the claims in the present appeal and that there is nothing in this case that would mandate a different result. Accordingly, we adopt the reasoning and conclusions in Brown.
Because the habeas court did not have the benefit of this court‘s decision in Gilchrist v. Commissioner of Correction, 334 Conn. 548, 553, 223 A.3d 368 (2020), we remand the present case for the habeas court 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 court elects once again to exercise its discretion to dismiss the habeas petition sua sponte pursuant to Practice Book § 23-29, it must, in accordance with the foregoing, provide the petitioner
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the habeas court‘s judgment and to remand the case to that court for further proceedings consistent with this opinion and our decision in Brown v. Commissioner of Correction, supra, 345 Conn. 1.
In this opinion ROBINSON, C. J., and ECKER and KELLER, Js., concurred.