Summary
adopting reasoning and conclusions set forth in Brown
Summary of this case from Pierce v. Comm'r of Corr.Opinion
SC 20459
10-04-2022
Peter BORIA v. COMMISSIONER OF CORRECTION
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).
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).
Robinson, C. J., and McDonald, Kahn, Ecker and Keller, Js.
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. at 335, 199 A.3d 1127. The trial court imposed a sentence of twenty years of incarceration. Id. The petitioner did not appeal from that conviction.
The petitioner filed his first habeas petition in 2011, alleging ineffective assistance of trial counsel, in violation of the sixth and fourteenth amendments to the United States constitution. The habeas court denied the petition. Once again, the petitioner did not appeal. The petitioner filed his second habeas petition in 2016. See id., at 336, 199 A.3d 1127. In that case, the habeas court declined to issue the writ for lack of jurisdiction pursuant to Practice Book § 23-24 (a) (1) and rendered judgment dismissing the petition. See id. The petitioner appealed from the habeas court's judgment, and the Appellate Court summarily affirmed. Id.
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 General Statutes § 54-125a (b) (2) in 2013; see Public Acts 2013, No. 13-3, § 59 (P.A. 13-3); and General Statutes § 18-98e (a) in 2015; see Public Acts 2015, No. 15-216, § 9 (P.A. 15-216); both of which govern the earned risk reduction credit (risk reduction credit), violated the ex post facto clause of the United States constitution.
With respect to this fourth claim, the risk reduction credit statutes provided, prior to 2013, that certain inmates convicted of crimes committed on or after October 1, 1994, could earn risk reduction credit toward a reduction in their sentences. Public Act 13-3, § 59, however, eliminated statutory language that previously permitted an inmate's parole eligibility date to be advanced by the application of this credit. Boria v. Commissioner of Correction , supra, 186 Conn. App. at 337, 199 A.3d 1127. Furthermore, P.A. 15-216, § 9, precluded inmates convicted of being persistent dangerous felony offenders from earning such a credit. Id.
The habeas court, Oliver , J. , dismissed the petition, sua sponte and without prior notice, pursuant to Practice 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. at 351, 199 A.3d 1127. 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, ––– A.3d ––––, 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 with prior notice and an opportunity to submit a brief or a written response.
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 this court's decision in Brown v. Commissioner of Correction , supra, 345 Conn. 1, ––– A.3d ––––.
In this opinion ROBINSON, C. J., and ECKER and KELLER, Js., concurred.
McDONALD, J., concurring in the judgment.
I concur in the result because I agree with the majority that the judgment of the Appellate Court should be reversed and the case remanded to the habeas court so that it can determine whether any grounds exist for it to decline to issue the writ of habeas corpus pursuant to Practice Book § 23-24. For the reasons stated in my concurrence in the companion case that we also decide today; see Brown v. Commissioner of Correction , 345 Conn. 1, ––––, ––– A.3d –––– (2022) (McDonald , J. , concurring); I do not agree with the majority's conclusion that, if the writ is issued and the court thereafter dismisses the petition on its own motion pursuant to Practice Book § 23-29, the court need only provide the petitioner with notice and an opportunity to submit a written brief. As I discussed in detail in my concurrence in Brown , I believe that petitioners are also entitled to a hearing, as of right, prior to a court's dismissal of the petition pursuant to § 23-29. Because a habeas corpus action is a civil action; see, e.g., Collins v. York , 159 Conn. 150, 153, 267 A.2d 668 (1970) ; and because the habeas section of our rules of practice does not provide a ‘‘more specific [rule],’’ I would apply the ‘‘ordinary rules of civil procedure’’ to the present case. (Internal quotation marks omitted.) Gilchrist v. Commissioner of Correction , 334 Conn. 548, 555, 223 A.3d 368 (2020). The application of these rules leads to the conclusion that a habeas petitioner is entitled to notice, the right to submit a written opposition, and an opportunity to be heard before a petition may be dismissed pursuant to § 23-29. Accordingly, I respectfully concur in the judgment.