MARCUS HODGE v. COMMISSIONER OF CORRECTION
(AC 41627)
Appellate Court of Connecticut
November 22, 2022
Elgo, Moll and Clark, Js.
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Syllabus
The petitioner, who had been convicted of manslaughter in the second degree and evading responsibility in the operation of a motor vehicle, sought a writ of habeas corpus, claiming, inter alia, that certain changes to a risk reduction earned credit program had been improperly applied to him by the respondent, the Commissioner of Correction. The habeas court, sua sponte and without providing the petitioner with prior notice or an opportunity to be heard, dismissed the petitioner‘s amended petition pursuant to the rule of practice (§ 23-29), concluding that it lacked subject matter jurisdiction over that petition and that the amended petition failed to state a claim on which habeas corpus relief could be granted. On the granting of certification, the petitioner appealed from the habeas court‘s judgment to this court. Held that, 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), this court concluded that, although the habeas court was not obligated to conduct a hearing before dismissing the amended petition, it was required to provide to the petitioner prior notice of its intention to dismiss, on its own motion, the amended petition and an opportunity to submit a brief or a written response addressing the proposed basis for dismissal, which it did not do; accordingly, on remand, should the habeas court again elect to exercise its discretion to dismiss the amended petition, or any subsequent amended petition properly filed by the petitioner, on its own motion pursuant to Practice Book § 23-29, the court must comply with Brown and Boria by providing the petitioner with prior notice and an opportunity to submit a brief or written response addressing the proposed basis for dismissal.
Argued September 19-officially released November 22, 2022
Procedural History
Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Hon. Edward J. Mullarkey, judge trial referee, rendered judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed to this court. Reversed; further proceedings.
Vishal K. Garg, assigned counsel, for the appellant (petitioner).
Steven R. Strom, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Clare Kindall, solicitor general, for the appellee (respondent).
Opinion
MOLL, J. The petitioner, Marcus Hodge, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court dismissing, on its own motion, his amended petition for a writ of habeas corpus pursuant to Practice Book § 23-29. On appeal, the dispositive claim raised by the petitioner is that the court improperly dismissed his amended habeas petition under § 23-29 without notice and a hearing.1 In light of our Supreme Court‘s recent decisions in Brown v. Commissioner of Correction, 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 conclude that the habeas court committed error in dismissing the amended habeas petition pursuant to § 23-29
The following procedural history is relevant to our resolution of this appeal. On June 29, 2015, the petitioner, representing himself, filed a petition for a writ of habeas corpus. The same day, the petitioner filed a request for appointment of counsel and an application for a waiver of fees, which were granted on July 2, 2015. On November 15, 2017, after counsel had appeared on his behalf, the petitioner filed an amended eighteen count petition for a writ of habeas corpus (amended petition). The petitioner alleged that, on December 16, 2011, he was sentenced to a total effective sentence of fifteen years of incarceration after being convicted of manslaughter in the second degree in violation of
§ 59, which amended subsections (b) (2), (c), and (e) of
On March 19, 2018, the habeas court, Hon. Edward J. Mullarkey, judge trial referee, dismissed, on its own motion, the amended petition pursuant to Practice Book § 23-29.3 The court concluded that, “[b]ecause the petitioner has no right to earn and receive discretionary [risk reduction
While this appeal was pending,5 our Supreme Court released its decisions in Brown v. Commissioner of Correction, supra, 345 Conn. 1, and in Brown‘s companion case, Boria v. Commissioner of Correction, supra, 345 Conn. 39. In those cases, our Supreme Court concluded that, before dismissing, on its own motion, a habeas petition pursuant to Practice Book § 23-29, a habeas court must provide to the petitioner prior notice of its intention to dismiss the habeas petition and an opportunity to file a brief or a written response to the proposed basis for dismissal. Brown v. Commissioner of Correction, supra, 11; Boria v. Commissioner of Correction, supra, 41. Our Supreme Court further concluded that a habeas court is not obligated to hold a full hearing prior to dismissing, on its own motion, a habeas petition pursuant to § 23-29, but it may exercise its discretion to “hold a full hearing when it deems it appropriate.” Brown v. Commissioner of Correction, supra, 17; see also Boria v. Commissioner of Correction, supra, 42-43.
Brown and Boria govern our resolution of this appeal. The petitioner‘s dispositive claim is that the court improperly dismissed the amended petition pursuant to Practice Book § 23-29 without notice and a hearing. Pursuant to Brown and Boria, the court was not obligated to conduct a hearing before dismissing
the amended petition; however, it was required to provide to the petitioner prior notice of its intention to dismiss, on its own motion, the amended petition and an opportunity to submit a brief or a written response vis-a-vis the proposed basis for dismissal, which the court did not do.6 Accordingly, under
We next consider the appropriate course for the habeas court to take on remand. In Brown, notwithstanding that the habeas court in that case had issued the writ to commence the habeas proceeding, our Supreme Court remanded the case to 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 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.” (Footnote omitted.) Brown v. Commissioner of Correction, supra, 345 Conn. 17-18; see also Boria v. Commissioner of Correction, supra, 345 Conn. 43. Our Supreme Court reasoned that such a remand order was proper in Brown, as well as in Boria, because, at the time of the respective judgments of dismissal, the habeas courts had not had the benefit of our Supreme Court‘s decision in Gilchrist v. Commissioner of Correction, 334 Conn. 548, 223 A.3d 368 (2020). Brown v. Commissioner of Correction, supra, 17; Boria v. Commissioner of Correction, supra, 43. In Gilchrist, the habeas court dismissed a habeas petition for lack of subject matter jurisdiction pursuant to Practice Book § 23-29 (1), notwithstanding that the habeas court had not issued the writ. Gilchrist v. Commissioner of Correction, supra, 552. Our Supreme Court reversed this court‘s judgment, which had affirmed the judgment of dismissal, concluding that, rather than dismissing the habeas petition for lack of subject matter jurisdiction under § 23-29 (1), the habeas court should have declined to issue the writ for lack of subject matter jurisdiction pursuant to Practice Book § 23-24 (a) (1). Id., 563. In Brown, our Supreme Court explained that ”Gilchrist firmly established that . . . § 23-24 acts as a gatekeeping mechanism that allows a habeas court to review and dispose of a clearly defective petition by simply providing the petitioner with notice of its decision to decline to issue the writ.” Brown v. Commissioner of Correction, supra, 10-11. In footnote 11 of Brown, our Supreme Court advised that, “[i]n cases decided prior to Gilchrist, the most efficient process to resolve those cases is to remand them to the habeas court to determine first whether grounds exist to
We observe that footnote 11 of Brown may create some unintended difficulties. This case presents one such occasion. Footnote 11 of Brown contemplates, at least in some cases decided prior to Gilchrist, a remand to the habeas court to determine whether grounds exist to decline the issuance of the writ pursuant to Practice Book § 23-24, notwithstanding the fact that the writ had already issued. See id. In Brown, however, the original habeas petition filed by the self-represented petitioner was the operative habeas petition that the habeas court dismissed pursuant to Practice Book § 23-29. Id., 8. In contrast, after counsel had appeared on his behalf in the present case, the petitioner filed an amended habeas petition more than two years after he had filed the original habeas petition. Without additional guidance from our Supreme Court, we deem the rationale of footnote 11 of Brown to be inapplicable to the present case.8 It would strain logic to construe footnote 11 of Brown as advising that we should direct the habeas court on remand to consider declining to issue the writ under § 23-24 vis-a-vis the amended petition, which was filed after the writ had been issued. Moreover, affording the habeas court on remand another opportunity to consider declining to issue the writ under § 23-24 vis-a-vis the original habeas petition, in effect, would vitiate the filing of the amended petition, which is not an outcome that we believe our Supreme Court in Brown intended.
In light of the foregoing considerations, we conclude that the proper remedy is to reverse the judgment of dismissal and remand the case to the habeas court for further proceedings according to law. Should the habeas court again elect to exercise its discretion to dismiss the amended petition, or any subsequent amended petition properly filed by the petitioner, on its own motion pursuant to Practice Book § 23-29, the court must comply with the mandate of Brown and Boria by providing to the petitioner prior notice and an opportunity to submit a brief or a written response addressing the proposed basis for dismissal.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.