Boria v. Commissioner of Correction , 186 Conn. App. 332 ( 2018 )

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BORIA v. COMMISSIONER—CONCURRENCE
BISHOP, J., concurring. The record in the present
case reflects that the petitioner filed the underlying
petition for a writ of habeas corpus, his third, on August
8, 2016, and that, when the petition was received by
the Superior Court, it was assigned a docket number.1
In his filing, the petitioner claimed, inter alia, that his
confinement was illegal because (1) his guilty plea to
the underlying criminal offense was not voluntary, and
(2) the 2013 and 2015 amendments to the earned risk
reduction credit statute, General Statutes § 18-98e,
which bore on his parole eligibility and were enacted
subsequent to his conviction, violated the ex post facto
clause of the United States constitution. In conjunction
with his petition, the petitioner filed an application for
a waiver of fees and payment of costs and a request
for the appointment of counsel, which the court clerk
granted on August 26, 2016. The record further reflects
that, notwithstanding the docketing of the petition and
the granting of the petitioner’s request for counsel, the
court, sua sponte, dismissed the petition pursuant to
Practice Book § 23-29 without having actually
appointed counsel and without having provided the
petitioner notice and an opportunity to be heard on the
motion to dismiss.
My colleagues affirm the habeas court’s dismissal on
the substantive grounds that the petitioner has no lib-
erty interest in the receipt of earned risk reduction
credit and that his claim regarding his guilty plea is
barred by the doctrine of collateral estoppel. On the
basis of this court’s recent decision in Holliday v. Com-
missioner of Correction, 184 Conn. App. 228, A.3d
(2018), my colleagues also affirm the habeas court’s
reliance on Practice Book § 23-29 to dispose of the
petitioner’s claims without affording him or his counsel
notice or an opportunity to be heard before the court
sua sponte dismissed his petition. Although I am bound
by Holliday to concur with the outcome of this appeal,
I write separately because I am concerned that, through
this and prior opinions, this court has eroded the pro-
cess rights of habeas petitioners contrary to the over-
arching purpose of habeas corpus, contrary to the
decisional law of our Supreme Court, and contrary to
the applicable provisions of the Practice Book.2
Specifically, I believe that, before a petition for a writ
of habeas corpus can be dismissed pursuant to Practice
Book § 23-29, the petitioner should be given notice of
the court’s inclination to dismiss, sua sponte, his peti-
tion and an opportunity to be heard on the question of
whether dismissal is warranted. Our recent decisional
law, however, including the majority’s opinion in the
present case, has condoned the growing habit of trial
judges to dismiss petitions sua sponte pursuant to § 23-
29 without prior notice to the petitioner that the court
is considering dismissal and without affording the peti-
tioner an opportunity to be heard on the propriety of
such dismissal.3 Respectfully, I believe this to be a
wrong-minded trend that represents the elevation of
judicial efficiency over fair process, relevant decisional
law, and applicable rules of practice.
The starting point for my analysis is the seminal case
of Mercer v. Commissioner of Correction, 230 Conn.
88, 93, 644 A.2d 340 (1994), in which our Supreme Court
opined: ‘‘Both statute and case law evince a strong
presumption that a petitioner for a writ of habeas cor-
pus is entitled to present evidence in support of his
claims. General Statutes § 52-470 (a) provides that ‘[t]he
court or judge hearing any habeas corpus shall proceed
in a summary way to determine the facts and issues of
the case, by hearing the testimony and arguments [in
the case], and [shall] inquire fully into the cause of
imprisonment, and . . . thereupon dispose of the case
as law and justice require.’ In Negron v. Warden, 180
Conn. 153, 158 n.2, 429 A.2d 841 (1980), we noted that
whenever a court is ‘legally required’ to hear a habeas
petition, § 52-470 (a) ‘delineate[s] the proper scope of
[the] hearing . . . .’ The statute explicitly directs the
habeas court to ‘dispose of the case’ only after ‘hearing
the testimony and arguments therein.’ ’’ (Emphasis in
original.) Mercer v. Commissioner of Correction,
supra, 93.
The Mercer court continued: ‘‘In our case law, we
have recognized only one situation in which a court is
not legally required to hear a habeas petition. In Negron
v. Warden, supra, 180 Conn. 158, we observed that,
pursuant to Practice Book § 531, [i]f a previous applica-
tion brought on the same grounds was denied, the pend-
ing application may be dismissed without hearing,
unless it states new facts or proffers new evidence
not reasonably available at the previous hearing. We
emphasized the narrowness of our construction of Prac-
tice Book § 531 by holding that dismissal of a second
habeas petition without an evidentiary hearing is
improper if the petitioner either raises new claims or
offers new facts or evidence. Id., 158 and n.2. Negron
therefore strengthens the presumption that, absent an
explicit exception, an evidentiary hearing is always
required before a habeas petition may be dismissed.’’
(Emphasis in original; internal quotation marks omit-
ted.) Mercer v. Commissioner of Correction, supra, 230
Conn. 93.4
As noted in Mercer, at the time that decision was
issued, our rules of practice provided only one basis for
a habeas petition to be dismissed without an evidentiary
hearing. That provision, Practice Book (1995) § 531,
provided: ‘‘If the petitioner has filed a previous applica-
tion, it and the action taken thereon shall be summarily
described in the pending application. If a previous appli-
cation brought on the same grounds was denied, the
pending application may be dismissed without hearing,
unless it states new facts or proffers new evidence not
reasonably available at the previous hearing.’’
In 1995, the Practice Book provisions regarding
habeas corpus were substantially amended. Notably,
Practice Book (1995) § 531 was eliminated, thereby
excising from the rules of practice the only explicit
circumstance in which a petition for a writ of habeas
corpus could be dismissed without an evidentiary hear-
ing on the merits. At the same time, however, three
new pertinent sections, Practice Book (1996) §§ 529C,
529H, and 529S (now §§ 23-24, 23-29, and § 23-40,
respectively), were adopted, which provide the court
with alternative vehicles for summary disposition of
habeas matters. Understanding the import of these
changes is key to resolving the question of whether a
petition may be dismissed under § 23-29 without provid-
ing the petitioner notice and an opportunity to be heard.
The 1995 amendments to the Practice Book estab-
lished two distinct procedural opportunities for the
habeas court to summarily dispose of a habeas corpus
petition without an evidentiary hearing. Practice Book
§ 23-245 effectively vests the court with a new gatekeep-
ing function, authorizing the court to dispose of a case
before it has been docketed by declining to ‘‘issue the
writ’’ for certain enumerated grounds. Practice Book
§ 23-29 provides for the summary disposition of a peti-
tion once the writ has already been issued. Respectfully,
I believe this court has blurred the important distinc-
tions between the habeas court’s gatekeeping function
pursuant to § 23-24 and its authority to dismiss a pend-
ing matter for the reasons enumerated in § 23-29. Con-
flation of these two rules by this court has eroded the
process rights of petitioners whose writs have been
issued and for whom counsel has been appointed.
Pursuant to Practice Book § 23-24, when the habeas
court exercises its gatekeeping function to decline to
issue a writ, the matter is returned to the petitioner
with a notation from the court setting forth the basis
on which the court has declined to issue the writ.6
This rule reflects the historical distinction between the
issuance of the writ and the adjudication of the petition-
er’s claims for relief, which this court explained in its
opinion in Green v. Commissioner of Correction, 184
Conn. App. 76, A.3d , cert. denied, 330 Conn. 933,
A.3d (2018): ‘‘The meaning of [the] phrase [issue
the writ] can be ascertained by reference to historical
practices regarding the service and issuance of writs
of habeas corpus in our state. At one point in time, a
habeas petition was filed with the court prior to it being
served on the [respondent] Commissioner [of Correc-
tion (commissioner)]. General Statutes (1918 Rev.)
§ 6033. The court would then determine whether to
issue the writ. General Statutes (1918 Rev.) § 6033. It
was only if the court decided to issue the writ that the
petition would be served on the commissioner by an
officer of the court and a subsequent habeas trial be
held. General Statues (1918 Rev.) § 6033; see also
Adamsen v. Adamsen, 151 Conn. 172, 176, 195 A.2d 418
(1963) (Our statute requires that the application for a
writ of habeas corpus shall be verified by the affidavit
of the applicant for the writ alleging that he verily
believes the person on whose account such writ is
sought is illegally confined or deprived of his liberty.
. . . The only purpose served by the application is to
secure the issuance of the writ in the discretion of the
court. The issues on which any subsequent trial is held
are framed by the return and the pleadings subsequent
thereto. . . . Put differently, [t]he issuance of the writ
did not determine the validity of the [petition] . . . .
On the contrary, it served only to bring the parties
before the court in order that the issue of the alleged
illegal restraint might be solved. Adamsen v. Adamsen,
supra, 177.’’ (Internal quotation marks omitted.) Green
v. Commissioner of Correction, supra, 184 Conn. App.
80–81 n.3.
As noted, Practice Book § 23-29 was adopted in 1995
at the same time Practice § 23-24 was adopted. In my
view, these sections, which are still in effect, provide
procedurally different bases for the court to summarily
dispose of a habeas corpus case. Section 23-24 provides
a vehicle for the court to exercise a gatekeeping func-
tion to bar entry to the court of those cases in which
it is patent that the court lacks jurisdiction over the
claim, the petition is wholly frivolous on its face, or the
relief requested in the petition is not available. Section
23-29 also provides a basis for the summary disposition
of the case, but, in this instance, because § 23-29 is
applicable only once the writ has been issued, the peti-
tion may not then be dismissed without affording the
petitioner notice and a hearing on the motion to dismiss.
Although Practice Book § 23-29 has been character-
ized as the successor rule to Practice Book (1995) § 531,
there is a significant distinction between the two regard-
ing a petitioner’s right to a hearing. Section 531
expressly authorized the court to dismiss a successive
petition ‘‘without hearing unless it states new facts or
proffers new evidence not reasonably available at the
previous hearing’’; (emphasis added); the successor
rule, § 23-29, however, contains no parallel provision.
To be sure, the new rule, § 23-29, did expand the bases
on which a court is authorized to summarily dispose
of a petition and now includes those in which (1) the
court has no jurisdiction, (2) the petition fails to state
a claim upon which habeas corpus relief can be granted,
(3) the petition presents the same ground as a pre-
viously denied petition and fails to state new facts or
proffer new evidence not reasonably available at the
time of the prior petition, (4) the claims asserted in the
petition are moot or premature, and (5) any other legally
sufficient ground for dismissal of the petition. See Prac-
tice Book § 23-29. Significantly, however, § 23-29 con-
tains no provision authorizing the court to dismiss a
pending petition without affording the petitioner a hear-
ing and an opportunity to be heard on the motion to
dismiss.7 Consequently, in my view, the 1995 revision
to the Practice Book effectuated two complementary
changes. On one hand, it eliminated the one basis on
which a writ, once issued, could be dismissed without
affording a petitioner notice and the right to be heard,
while at the same time creating a vehicle, § 23-24,
through which the court, in the exercise of its gatekeep-
ing function, may turn a petition away from the court-
house door by declining to issue the writ.
My understanding of the interplay between Practice
Book §§ 23-24 and 23-29 is buttressed by the simultane-
ous adoption in 1995 of Practice Book § 23-40, which
newly provided, inter alia, for the right of the petitioner
to be present at ‘‘any evidentiary hearing and at any
hearing or oral argument on a question of law which
may be dispositive of the case . . . .’’ Although I recog-
nize that this rule does not explicitly require the court
to conduct a hearing before dismissing a petition pursu-
ant to § 23-29, its provisions entitling a petitioner to be
present at any dispositive hearing would be rendered
illusionary if a petitioner had no right to a hearing at all.8
My view finds support, as well, in the general Practice
Book rules regarding civil actions. At the outset, it is
well established that ‘‘[h]abeas corpus is a civil proceed-
ing.’’ Collins v. York, 159 Conn. 150, 153, 267 A.2d 668
(1970). Consequently, ‘‘[a] habeas corpus action, as a
variant of civil actions, is subject to the ordinary rules of
civil procedure, unless superseded by the more specific
rules pertaining to habeas actions.’’ (Internal quotation
marks omitted.) Kendall v. Commissioner of Correc-
tion, 162 Conn. App. 23, 45, 130 A.3d 268 (2015).9
Chapter 11 of the Practice Book, which relates to
civil matters generally, provides for notice and an
opportunity to be heard before a matter may be sum-
marily dismissed. Pursuant to Practice Book § 11-1,
‘‘[e]very motion . . . directed to pleading or procedure
. . . shall be in writing’’; Practice Book § 11-1 (a); and
‘‘such motion . . . shall be served on all parties as pro-
vided in [Practice Book §§] 10-12 through 10-17.’’ Prac-
tice Book § 11-1 (c). ‘‘The purpose of requiring written
motions is not only the orderly administration of justice
. . . but the fundamental requirement of due process
of law’’; (citation omitted) Connolly v. Connolly, 191
Conn. 468, 475, 464 A.2d 837 (1983); specifically, the
requirement of adequate notice. See Herrmann v. Sum-
mer Plaza Corp., 201 Conn. 263, 273, 513 A.2d 1211
(1986) (‘‘[t]he requirement that parties file their motions
in writing is to ensure that the opposing party has writ-
ten notice of the motion to dismiss’’). As will be made
clear in the following paragraph, receipt of adequate
notice is essential in order for the nonmoving party to
exercise its right under the Practice Book to be heard.
Our rules of practice grant the nonmoving party to
a motion to dismiss two opportunities to be heard. First,
Practice Book § 11-10 (a)10 provides the adverse party to
a motion to dismiss (as well as certain other specifically
enumerated motions) with the opportunity to file a
memorandum of law in opposition to the motion. The
rules also provide the nonmovant with the right to pre-
sent oral argument on the motion to dismiss at the
court’s short calendar.11 Pursuant to Practice Book § 11-
18 (a), ‘‘[o]ral argument is at the discretion of the judicial
authority except as to motions to dismiss’’ and certain
other motions. (Emphasis added.) ‘‘For those motions,
oral argument shall be a matter of right, provided: (1)
the motion has been marked ready in accordance with
the procedure that appears on the short calendar on
which the motion appears, or (2) a nonmoving party
files and serves on all parties . . . a written notice
stating the party’s intention to argue the motion or
present testimony.’’ (Emphasis added.) Practice Book
§ 11-18 (a).
Application of the foregoing rules in the context of
a motion to dismiss under Practice Book § 23-29 is most
straightforward when it is the respondent who makes
the motion. In such circumstances, it is clear that the
respondent must file a written motion and a memoran-
dum of law and serve the same on the petitioner, thus
satisfying the requirements of Practice Book § 11-1. The
effect of the service of the motion and brief is to provide
the petitioner with the notice necessary for the peti-
tioner to be able to (1) exercise his rights to file a
memorandum of law in opposition to the motion pursu-
ant to Practice Book § 11-10 and (2) claim the matter
for oral argument pursuant to Practice Book § 11-18.12
Thus, where the respondent properly serves the peti-
tioner with notice of its motion and the grounds there-
for, and the petitioner simply fails to exercise his right
to file a brief or make oral argument, it is clear that the
habeas court may properly decide the motion without
having heard from the petitioner.
I recognize, of course, that Practice Book § 23-29,
unlike its parallel provision, Practice Book § 10-30,13
contemplates that a court may dismiss a petition sua
sponte even where the ground for dismissal does not
implicate subject matter jurisdiction. Nowhere in § 23-
29, however, is there a provision for the court to act
without providing notice to the petitioner and an oppor-
tunity to be heard on the court’s sua sponte motion.
Thus, I conclude that, because § 23-29 does not explic-
itly provide for the court to act sua sponte without
providing notice and an opportunity for the petitioner
to be heard on the motion, it is unreasonable and con-
trary to the rules pertaining to civil matters generally
for the court to import such a provision into § 23-29.
A review of the decisional history of this court regard-
ing Practice Book § 23-29 reveals our inconsistent treat-
ment of this issue.14 In Mitchell v. Commissioner of
Correction, 93 Conn. App. 719, 725–26, 891 A.2d 25,
cert. denied, 278 Conn. 902, 896 A.2d 104 (2006), a panel
of this court held that the habeas court had improperly
dismissed a petition pursuant to § 23-29 without provid-
ing notice and a hearing to the petitioner. In Boyd v.
Commissioner of Correction, 157 Conn. App. 122, 125–
27, 115 A.3d 1123 (2015), this court explicitly relied on
Mitchell in holding that it was improper for the habeas
court to have dismissed a petition pursuant to § 23-29
without affording the petitioner notice and an opportu-
nity for a hearing. The language of Boyd is instructive.
There, this court stated: ‘‘Our Supreme Court has noted
that ‘[b]oth statute and case law evince a strong pre-
sumption that a petitioner for a writ of habeas corpus
is entitled to present evidence in support of his claims.’
Mercer v. Commissioner of Correction, [supra, 230
Conn. 93]. This court previously has held that it is an
abuse of discretion by the habeas court to dismiss a
habeas petition sua sponte under Practice Book § 23-
29 without fair notice to the petitioner and a hearing
on the court’s own motion to dismiss. Mitchell v. Com-
missioner of Correction, [supra, 93 Conn. 725–26].’’
(Emphasis added.) Boyd v. Commissioner of Correc-
tion, supra, 125. The court further noted: ‘‘It is of partic-
ular importance that the petitioner had requested the
appointment of counsel when filing his second habeas
petition. By sua sponte dismissing the petition before
any counsel was appointed, the habeas court prevented
the petitioner from accessing the legal services needed
to help clarify the grounds presented and to ensure
that they were not duplicative of the petitioner’s prior
habeas petition.
‘‘The respondent concedes, and we agree, that the
petitioner should have been afforded fair notice and a
hearing before the court sua sponte dismissed the sec-
ond habeas petition, and agrees with the petitioner that
the proper course of action is to remand this case to
the habeas court for a hearing. The respondent argues,
however, that the hearing should be limited to whether
the new claims of prosecutorial impropriety should be
dismissed under Practice Book § 23-29. We agree with
the respondent to the extent that the second habeas
petition in its current form contains a duplicative claim
of ineffective assistance of counsel predicated upon the
same facts and evidence as alleged in the first amended
petition for a writ of habeas corpus. We caution, how-
ever, that nothing in this opinion should be read as
foreclosing the opportunity for the petitioner, or his
counsel if one is appointed for him, to amend the cur-
rent petition to articulate any new facts or evidence he
wants to proffer or to state new grounds upon which
he believes habeas relief should be granted, including
the opportunity to clarify whether his claim of ineffec-
tive assistance of counsel is founded upon new facts
or evidence not reasonable available at the time of his
prior petition.’’ Id., 126–27.
Notwithstanding the history of Practice Book §§ 23-
24, 23-29, and 23-40, the general Practice Book rules
regarding civil actions, and this court’s strong admoni-
tion in Boyd, this court has now issued decisions,
including the majority’s opinion in the present case,
that appear to violate the thrust of Mercer and contra-
dict Boyd’s admonition that a habeas petitioner is enti-
tled to notice and an opportunity to be heard before
his or her petition is dismissed pursuant to § 23-29. I
recognize, of course, that the habeas corpus workload
has become burdensome to the judiciary.15 Respectfully,
however, I do not believe that we should participate,
for the sake of judicial efficiency, in the erosion of the
rights of habeas petitioners established by time-tested
jurisprudence and the rules adopted by the Superior
Court. Rather, I believe that the proper exercise of the
court’s gatekeeping function pursuant to § 23-24 offers
the greatest pathway to the swift disposal of frivolous,
wasteful, and repetitious petitions without sacrificing
the very purpose for which this enshrined writ exists.
For the reasons stated, I respectfully concur.
1
The petition was docketed as TSR-CV16-4008315-S. ‘‘At common law
habeas corpus was a formalistic proceeding. The application played no role
in framing the issues, its only purpose being to secure the issuance of the
writ. . . . The return, whose truth could not be contested . . . limited the
proceeding to the determination of a question of law. Early on the legislature
corrected this deficiency by permitting the statements in the return to be
contested. . . . At that point and until fairly recently the issues on which
a subsequent trial was to be held were framed by the return and the pleadings
subsequent thereto. . . . In recent years the application has come to be
regarded as a pleading in the nature of a complaint . . . and the return in
the nature of an answer.’’ (Citations omitted.) Arey v. Warden, 187 Conn.
324, 331–32, 445 A.2d 916 (1982); see also Carpenter v. Commissioner of
Correction, 274 Conn. 834, 842 n.7, 878 A.2d 1088 (2005). Translating the
old into newer procedure, one can fairly say that once a habeas petition
has been docketed, the writ has effectively issued, and once a return has
been filed, the issues have been joined for judicial determination. Overlying
this procedure are various Practice Book provisions providing for the sum-
mary disposition of the petition.
2
As a matter of policy, one panel of this court may not reverse the ruling
of a previous panel. See Consiglio v. Transamerica Ins. Group, 55 Conn.
App. 134, 138 n.2, 737 A.2d 969 (1999). Indeed, this rule is not merely an axiom
of appellate collegiality; a prior ruling by one panel is binding precedent on
a subsequent panel. See Samuel v. Hartford, 154 Conn. App. 138, 144, 105
A.3d 333 (2014) (‘‘[w]e are bound by [our prior] precedent, as it is axiomatic
that one panel of this court cannot overrule the precedent established by
a previous panel’s holding’’).
3
See Holliday v. Commissioner of Correction, supra, 184 Conn. App.
235–38; Gilchrist v. Commissioner of Correction, 180 Conn. App. 56, 62–63,
182 A.3d 690, cert. granted, 329 Conn. 908, 186 A.3d 13 (2018); Pentland v.
Commissioner of Correction, 176 Conn. App. 779, 787–88, 169 A.3d 851,
cert. denied, 327 Conn. 978, 174 A.3d 800 (2017); Coleman v. Commissioner
of Correction, 137 Conn. App. 51, 57–58, 46 A.3d 1050 (2012); but see Boyd
v. Commissioner of Correction, 157 Conn. App. 122, 125–27, 115 A.3d 1123
(2015); see also Perez v. Commissioner of Correction, 326 Conn. 357, 366,163
A.3d 597 (2017) (habeas court afforded petitioner notice and hearing before
dismissing petition).
4
The presumption espoused in Negron and affirmed in Mercer, that a
habeas petitioner is entitled to an evidentiary hearing unless a rule explicitly
provides to the contrary, was acknowledged by this court in 2009 in Riddick
appeal dismissed, 301 Conn. 51, 19 A.3d 174 (2011). Riddick concerned the
application of Practice Book (2009) § 23-42 (a), which provided in relevant
part: ‘‘If the judicial authority finds that the case is wholly without merit,
it shall allow counsel to withdraw and shall consider whether the petition
shall be dismissed or allowed to proceed, with the petitioner pro se. . . .’’
(Emphasis added.) In affirming the habeas court’s then-existent authority
to dismiss a petition under this rule, the Riddick court opined: ‘‘[Practice
Book (2009) § 23-42] provides an explicit exception to the general rule
requiring an evidentiary hearing before a habeas petition may be dismissed.
See Mercer v. Commissioner of Correction, [supra, 230 Conn. 93].’’ Riddick
v. Commissioner of Correction, supra, 467.
It is noteworthy that, not long after the issuance of the decision in Riddick,
Practice Book (2009) § 23-42 was amended to eliminate the court’s authority
to dismiss a petition when granting the motion of the petitioner’s counsel
for leave to withdraw. Section 23-42 now provides that a petitioner whose
counsel has been permitted to withdraw may, nevertheless, proceed on a self-
represented basis. Thus, the exception noted in Negron for circumstances
in which the habeas court need not hold a hearing before dismissing a
petition no longer pertains, with the result that Practice Book § 23-24 now
provides the sole avenue for summarily disposing of a petition without a
hearing of any kind.
5
Practice Book § 23-24 provides: ‘‘(a) The judicial authority shall promptly
review any petition for a writ of habeas corpus to determine whether the writ
should issue. The judicial authority shall issue the writ unless it appears that:
‘‘(1) the court lacks jurisdiction;
‘‘(2) the petition is wholly frivolous on its face; or
‘‘(3) the relief sought is not available.
‘‘(b) The judicial authority shall notify the petitioner if it declines to issue
the writ pursuant to this rule.’’
6
See, e.g., Fuller v. Commissioner of Correction, 144 Conn. App. 375,
377, 71 A.3d 689 (when confronted with application for issuance of writ of
habeas corpus claiming that parole board had acted unreasonably in denying
parole, habeas court, after reviewing petition, sent petitioner letter indicating
that ‘‘[t]he [h]abeas [c]orpus petition is declined and is being returned
because the court lacks jurisdiction per . . . Practice Book § 23-24 [a] [1]’’),
cert. denied, 310 Conn. 946, 80 A.3d 907 (2013).
7
Respectfully, I believe that the provisions of Practice Book §§ 23-24 and
23-29, authorizing the habeas court to summarily dispose of a writ or petition
for certain enumerated grounds, are complementary and not mere duplica-
tions of the same judicial authority. To the extent the court mindfully fulfills
its gatekeeping function pursuant to § 23-24, it may simply return the writ
to the petitioner with a note indicating the basis for its decision to decline
to issue the writ. If, however, a writ escapes preliminary review, the court’s
responsibility is more burdensome. In my view, the resolution of this conun-
drum does not lie in eroding the process rights of a petitioner whose writ
has been issued; rather, it suggests that the court should develop a more
mindful process to weed out inappropriate writs as a preliminary matter
pursuant to its gatekeeping function. Although this suggestion may entail
some administrative changes in the Superior Court regarding the docketing
of petitions, I believe that, in the long run, a more fulsome use of the court’s
authority pursuant to § 23-24 would maximize judicial efficiency without
the unnecessary dilution of the petitioner’s process rights that attach once
the writ has been issued.
8
In coming to this view, I am mindful of this court’s contrary conclusion
in Holliday: ‘‘[T]he rules of practice were promulgated to create one harmo-
nious and consistent body of law. . . . If courts can by any fair interpreta-
tion find a reasonable field of operation for two [rules of practice] without
destroying their evident meaning, it is the duty of the courts to do so, thus
reconciling them and according to them concurrent effect. . . . To give
effect to both Practice Book §§ 23-29 and 23-40, the latter section should
be read to give a petitioner the right to be present at an evidentiary hearing
if one is held, not to give a petitioner the absolute right to an evidentiary
hearing itself.’’ (Citation omitted; internal quotation marks omitted.) Holli-
day v. Commissioner of Correction, supra, 184 Conn. App. 236 n.10. With
all respect to my colleagues in the Holliday decision, the panel’s view, if
it endures, would eviscerate any fair process rights that § 23-40 confers on
habeas petitioners whose writs have eluded disposition pursuant to Practice
Book § 23-24. In my view, the clearer route to harmonizing § 23-29 with
§ 23-40 is to conclude that the latter rules entitle a habeas petitioner to
notice and an opportunity to be heard before dismissal pursuant to § 23-
29. Achieving harmony in the habeas rules, a value Holliday exhorts, is fully
in accord with the presumption of a hearing entitlement embodied in Mercer,
whereas the view espoused in Holliday negates by implication the overarch-
ing and enduring admonition of Mercer.
9
See, e.g., Turner v. Commissioner of Correction, 163 Conn. App. 556,
563, 134 A.3d 1253 (applying General Statutes § 52-212a and Practice Book
§ 17-4, which govern motions to open and set aside civil judgments), cert.
denied, 323 Conn. 909, 149 A.3d 980 (2016); Kendall v. Commissioner of
Correction, supra, 162 Conn. 46 (applying Practice Book § 15-6, which allows
for opening argument in civil trials before court or jury); Carmon v. Commis-
sioner of Correction, 148 Conn. App. 780, 785–86, 87 A.3d 595 (2014) (holding
that General Statutes § 52-119 and Practice Book § 10-18, which apply gener-
ally to civil actions, give habeas court authority to render default judgment
or nonsuit against party who fails to comply with pleading requirements);
Fuller v. Commissioner of Correction, 75 Conn. App. 814, 817–19, 817 A.2d
1274 (holding that dismissal for lack of due diligence in prosecuting civil
case pursuant to Practice Book § 14-31 was legally sufficient ground for
dismissal of habeas corpus action and fell under catchall ‘‘other legally
sufficient ground’’ provision of Practice Book § 23-29 [5]), cert. denied, 263
Conn. 926, 823 A.2d 1217 (2003).
10
Practice Book § 11-10 (a) provides in relevant part: ‘‘A memorandum
of law briefly outlining the claims of law and authority pertinent thereto
shall be filed and served by the movant with the following motions and
requests . . . (2) motions to dismiss except those filed pursuant to [Practice
Book §] 14-3 . . . . Memoranda of law may be filed by other parties on or
before the time the matter appears on the short calendar.’’
11
Pursuant to Practice Book § 11-13 (a), all motions must be placed on
the short calendar list, and, as per Practice Book § 11-15, they are to be
assigned automatically by the clerk without written claim.
12
Moreover, a cursory review of the habeas corpus short calendar of the
Superior Court for the judicial district of Tolland, geographical area number
nineteen, reveals that motions to dismiss are routinely marked ‘‘arguable.’’
See, e.g., TSR – Short Calendar 01 – Civil Arguable Matters, October 29,
2018 (TSR SC 01), available at http://civilinquiry.jud.ct.gov/Calendars/SCBy-
LocDetail.aspx?ccid=94517 (last visited November 1, 2018).
13
Practice Book § 10-30 provides in relevant part: ‘‘(a) A motion to dismiss
shall be used to assert: (1) lack of jurisdiction over the subject matter; (2)
lack of jurisdiction over the person; (3) insufficiency of process; and (4)
insufficiency of service of process. . . .’’
14
The issue presented in the present case has been raised in our Supreme
Court on multiple occasions, but the court has each time declined to address
it. See Kaddah v. Commissioner of Correction, 299 Conn. 129, 133–34, 141
n.13, 135, 7 A.3d 911 (2010) (affirming habeas court’s dismissal of petition
pursuant to § 23-29 where petitioner failed to state valid claim for relief and
declining to address petitioner’s claim on appeal that he should have been
afforded notice and opportunity to be heard before habeas court dismissed
his petition because, ‘‘even if [it] were to agree with [that claim], that
conclusion still would not lead to the relief that the petitioner requested’’);
Oliphant v. Commissioner of Correction, 274 Conn. 563, 568, 877 A.2d
761 (2005) (declining to address petitioner’s claim that Appellate Court
improperly affirmed habeas court’s dismissal of his habeas petition sua
sponte without notice or a hearing, as claim was outside scope of question
certified for review by Supreme Court). This may soon change, however.
Our Supreme Court recently granted a habeas petitioner’s petition for certifi-
cation to appeal from this court’s decision in Gilchrist v. Commissioner of
Correction, supra, 180 Conn. App. 56, in which this court affirmed the habeas
court’s sua sponte dismissal of the habeas petition under § 23-29 without
affording the petitioner notice and an opportunity to be heard on the motion.
The court certified the following question: ‘‘Did the Appellate Court properly
affirm the habeas court’s dismissal of the petition when the habeas court
took no action on the petitioner’s request for counsel and did not give the
petitioner notice and an opportunity to be heard on the court’s own motion
to dismiss the petition pursuant to Practice Book § 23-29?’’ Gilchrist v.
Commissioner of Correction, supra, 329 Conn. 908.
15
Indeed, data from the Judicial Branch reveal that the tide of incoming
habeas petitions appears to be outpacing the rate at which the habeas court
is able to dispose of them. For example, during the fiscal year of 2016–2017,
762 habeas cases were added to the docket of the Superior Court for the
judicial district of Tolland, whereas only 678 were disposed of. Civil Case
Movement: July 1, 2016 to June 30, 2017, available at https://www.jud.ct.gov/
statistics/civil/CaseDoc 1617.pdf (last visited November 1, 2018). This unbal-
anced flow of habeas cases is reflected in the steadily increasing number
of cases pending at the end of each fiscal year. For example, at the end of
the 2014–2015 fiscal year, there were 1451 habeas cases then pending, up
from 1128 at the beginning of that year. Civil Case Movement: July 1, 2014
to June 30, 2015, available at https://www.jud.ct.gov/statistics/civil/
CaseDoc 1415.pdf (last visited November 1, 2018). By the end of the follow-
ing fiscal year, the number of pending cases had increased to 1562; Civil Case
Movement: July 1, 2015 to June 30, 2016, available at https://www.jud.ct.gov/
statistics/civil/CaseDoc 1516.pdf (last visited November 1, 2018); and, by
the end of the 2016–2017 fiscal year, that figure had risen again, to 1637.
Civil Case Movement: July 1, 2016 to June 30, 2017, supra.