Lewis v. Commissioner of Correction , 166 Conn. App. 22 ( 2016 )

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PRINCE LEWIS v. COMMISSIONER OF CORRECTION
(AC 37005)
Lavine, Alvord and Prescott, Js.
Argued March 14—officially released June 7, 2016
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Vishal K. Garg, for the appellant (petitioner).
Stephen R. Finucane, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Steven R. Strom, assistant attorney general,
for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Prince Lewis, appeals
following the habeas court’s denial of his petition for
certification to appeal from the judgment denying his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court (1) abused
its discretion when it denied his petition for certification
to appeal, and (2) improperly rejected his claim that
his constitutional right to due process under the federal
and state constitutions was violated by the extraordi-
nary delay in his extradition and reincarceration after he
absconded from supervised home release. Specifically,
the petitioner claims that ‘‘Connecticut waived jurisdic-
tion over the petitioner’’ because of its ‘‘failure to make
reasonable efforts to return the petitioner to its cus-
tody,’’ and, accordingly, could not ‘‘compel him to com-
plete his prior sentence.’’ We dismiss the petitioner’s
appeal.
The following facts and procedural history are rele-
vant to the resolution of the petitioner’s claims. The
petitioner was convicted of the sale of narcotics in
violation of General Statutes § 21a-277 (a), and, on May
9, 1989, was sentenced to a term of ten years incarcera-
tion, execution suspended after three years, followed by
a period of probation. While incarcerated, the petitioner
submitted a community release application, dated May
18, 1989, requesting a transfer to a community release
program and agreeing to abide by any conditions
imposed by the respondent, the Commissioner of Cor-
rection. On June 7, 1989, the petitioner was transferred
from the Carl Robinson Correctional Institution to a
supervised home release program,1 pursuant to General
Statutes (Rev. to 1989) § 18-100 (e).2 That same day,
the petitioner signed a document, titled ‘‘CONDITIONS
OF COMMUNITY RELEASE,’’ which acknowledged his
understanding of and agreement to twenty enumerated
conditions. The petitioner was released to his aunt’s
residence in New London, and, initially, he complied
with the program’s requirement to report to the New
London parole office. He was last seen by a parole
officer on August 16, 1989. Subsequent attempts to
locate the petitioner, by home visits, telephone calls
and correspondence, were unsuccessful. On October
17, 1989, he was declared an absconder by the
respondent.
The petitioner was not in the respondent’s physical
custody between October 18, 1989, and December 20,
2013. On that date, he was extradited from the state of
New York and was returned to the respondent’s cus-
tody. During his twenty-four years at large, the peti-
tioner sometimes lived in the community under his
name Prince Lewis. At other times, however, he used
as many as four different aliases and lived in as many
as nine different residences. He also utilized five birth-
dates and two social security numbers. The petitioner
was arrested fifteen times, and was convicted of four
felonies and three misdemeanors. The petitioner’s crim-
inal conduct occurred in the states of New York, Mary-
land and Illinois.
On February 24, 2014, the petitioner, as a self-repre-
sented party, filed a petition for a writ of habeas corpus
and commenced the present action. After the petition-
er’s request for appointment of counsel was granted,
his attorney filed an amended two count petition on
May 16, 2014. In his first count, the petitioner alleged
that he had completed his sentence because it had con-
tinued to run until the respondent issued an order for
his return on November 25, 2013. In his second count,
the petitioner alleged that ‘‘the [twenty-four year] period
of time that elapsed . . . between the suspension of
the petitioner’s sentence and the petitioner’s return to
actual custody was in violation of the petitioner’s right
to due process.’’ He further alleged that ‘‘[t]he respon-
dent failed to diligently pursue the return of the peti-
tioner to the [respondent’s] custody,’’ that ‘‘[t]he
petitioner could have been found through reasonable
diligence,’’ that ‘‘[t]he delay [was] extraordinary and
unreasonable,’’ and that ‘‘[t]he delay prejudiced the peti-
tioner.’’
The parties submitted pretrial briefs to the habeas
court. The petitioner’s May 12, 2014 pretrial brief recited
twenty-two facts that were stipulated to by the parties.
His sole argument centered on the fact that the respon-
dent had not issued a remand to custody order until
November 25, 2013. Relying on Strain v. Warden, 27
Conn. Supp. 439, 242 A.2d 90 (1968), and Evans v.
Walker, 16 Conn. Supp. 22 (1948), the petitioner claimed
that his sentence had continued to run and had been
served in its entirety, thereby making any continued
confinement illegal. Other than stating that ‘‘[t]he peti-
tioner’s continued confinement violates the petitioner’s
constitutional right to due process,’’ the petitioner did
not address the second count of his amended petition.
The respondent’s May 15, 2014 pretrial brief distin-
guished the cases cited by the petitioner on the ground
that they addressed violation of parole issues. Referring
to our Supreme Court’s decision in Asherman v. Mea-
chum, 213 Conn. 38, 48–49, 566 A.2d 663 (1989), the
respondent argued that there are critical differences
between supervised home release and parole. The peti-
tioner, who was on supervised home release, remained
in the respondent’s legal custody as if he continued to
be incarcerated in a locked facility, whereas a parolee
would be in the custody of the Board of Pardons and
Paroles.3 With respect to the second count of the
amended petition, the respondent characterized the
claim as one of laches and argued that the doctrine of
laches is not applicable to governmental entities.
The trial before the habeas court was held on May
23, 2014. The petitioner’s witnesses were Michelle
Deveau and himself. The respondent called Louis Roy,
a retired employee of the Department of Correction, and
Joseph Haggan, the director of parole and community
services for the Department of Correction, who testified
that the petitioner had never been on parole. Following
the testimony of the four witnesses, the parties’ counsel
made closing arguments. The petitioner’s counsel, after
stipulating that the petitioner was on supervised home
release, argued that supervised home release was
‘‘effectively the same thing’’ as parole. He claimed that
the petitioner should be treated the same as a parolee
when calculating when his sentence had been com-
pleted.
With respect to the petitioner’s due process claim,
the petitioner’s counsel made the following argument:
‘‘[In 2000], the [Department of Correction] had an
opportunity—that it may or may not have had before—
to know the exact location of [the petitioner] and bring
him into Connecticut, but the [Department of Correc-
tion] instead chose to sit on its hands and do nothing,
and, as a result, it waited another thirteen years to
actually choose to use its authority to bring in [the
petitioner]. And that kind of decision is arbitrary and
capricious, and it’s a violation of due process because
it’s fundamentally unfair.’’ (Emphasis added.) Later
during his argument, the petitioner’s counsel stated:
‘‘So the second claim essentially is what we’ve kind of
already touched on, which is that it’s fundamentally
unfair to remand the petitioner into custody after
twenty-five years.’’ The respondent’s counsel, in
response, stated that the petitioner had provided no
authority for his due process claim. He further argued:
‘‘Essentially, their argument is a laches argument, that
the state waited too long in exercising its authority to
retake the petitioner into actual custody. . . . [N]o
time runs against the state.’’ In rebuttal, the petitioner’s
counsel reiterated that the passage of time made it
‘‘fundamentally unfair’’ to bring the petitioner back into
physical custody.
The court issued its memorandum of decision on May
30, 2014. Most of the court’s analysis focused on the
petitioner’s primary claim that his sentence had contin-
ued to run after he absconded from the respondent’s
legal custody because the respondent had not timely
issued a remand to custody order. The court dismissed
that claim on the basis that the petitioner ‘‘was not on
parole status.’’ The court discussed the petitioner’s due
process count in a single paragraph of the decision,
characterizing his claim as follows: ‘‘[T]he petitioner
alleges that the delay of 8829 days between the time
the petitioner absconded and his ultimate return to
custody was extraordinary and unconscionable and that
the respondent should now be prevented from confining
the petitioner. In essence, the petitioner argues that it
is fundamentally unfair at this point to imprison the
petitioner for a sentence that was adjudged so many
years ago. This court disagrees. . . . [T]he petitioner
implicitly argues that the equitable doctrine of laches
should apply here. . . . [T]his proceeding is not an
equitable proceeding and turns, not upon equity, but
an interpretation of the law. . . . [T]he petitioner is
the one who absconded and to reward him for his
wrongdoing by excusing him from having to serve the
remainder of his lawfully adjudged sentence is clearly
not appropriate.’’ Accordingly, the habeas court denied
his petition for a writ of habeas corpus. On June 11,
2014, the court denied his petition for certification to
appeal.
On June 19, 2014, the petitioner filed a motion ‘‘to
reargue for a writ of habeas corpus.’’ For the first time,
the petitioner argued that the respondent’s delay consti-
tuted ‘‘gross negligence’’ that constituted ‘‘a waiver of
jurisdiction.’’ He claimed: ‘‘[W]hen a demanding state
takes an action that operates as a waiver of jurisdiction
over a fugitive, it forever loses the authority to have
that fugitive extradited to the demanding state to com-
plete his sentence.’’ In his motion to reargue, the peti-
tioner supported this argument with cases that he had
not cited in his pretrial brief or during the habeas trial.
The respondent filed an objection to the petitioner’s
motion to reargue. The court denied the motion on June
23, 2014.4 This appeal followed.5
On appeal, the petitioner does not challenge the
court’s determination that the petitioner’s sentence did
not continue to run while he was out of the respondent’s
physical custody and, therefore, had not been com-
pleted. The petitioner claims only that the court abused
its discretion in denying his petition for certification to
appeal and that the court improperly concluded that
his constitutional right to due process had not been
violated by the delay in his extradition and reincarcera-
tion after he absconded from supervised home release.
As briefed, the basis for his claim of a due process
violation is his argument that the respondent waived
jurisdiction and no longer had the authority to compel
him to complete his prior sentence. The respondent
argues that the petitioner’s claim should not be
reviewed by this court because ‘‘[the] petitioner failed
to timely raise his ‘waiver of jurisdiction’ theory before
the habeas court.’’ We agree with the respondent.
‘‘We begin by setting forth the applicable standard
of review. Faced with a habeas court’s denial of a peti-
tion for certification to appeal, a petitioner can obtain
appellate review of the dismissal of his petition for
habeas corpus only by satisfying the two-pronged test
enunciated by our Supreme Court in Simms v. Warden,
229 Conn. 178, 640 A.2d 601 (1994), and adopted in
Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126
(1994). First, he must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on its mer-
its.’’ (Internal quotation marks omitted.) Earl G. v.
Commissioner of Correction, 106 Conn. App. 758, 760–
61, 943 A.2d 1118, cert. denied, 288 Conn. 901, 952 A.2d
809 (2008).
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous.’’ (Internal quotation
marks omitted.) Hankerson v. Commissioner of Cor-
rection, 150 Conn. App. 362, 366, 90 A.3d 368, cert.
denied, 314 Conn. 919, 100 A.3d 852 (2014). The petition-
er’s underlying claim is that the habeas court improperly
failed to conclude that the respondent waived its juris-
diction over the petitioner, thereby losing its authority
to reincarcerate him to complete the remainder of his
sentence. Because this claim was not presented to the
habeas court, in his amended petition, in his pretrial
brief or during the habeas trial, the habeas court never
made a finding6 as to the petitioner’s waiver of jurisdic-
tion theory. The court determined that the petitioner’s
reincarceration was not ‘‘fundamentally unfair’’ and that
the doctrine of laches was not applicable, which were
the theories the petitioner presented to the court.
‘‘It is well settled that [t]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil
action. . . . The principle that a plaintiff may rely only
upon what he has alleged is basic. . . . It is fundamen-
tal in our law that the right of a plaintiff to recover is
limited to the allegations of his complaint.’’ (Internal
quotation marks omitted.) Zollo v. Commissioner of
Correction, 133 Conn. App. 266, 277, 35 A.3d 337, cert.
granted on other grounds, 304 Conn. 910, 37 A.3d 1120
(2012) (appeal dismissed May 1, 2013). ‘‘While the
habeas court has considerable discretion to frame a
remedy that is commensurate with the scope of the
established constitutional violations . . . it does not
have the discretion to look beyond the pleadings and
trial evidence to decide claims not raised. . . . Having
not raised [an] issue before the habeas court, [a] peti-
tioner is barred from raising it on appeal. This court is
not bound to consider claimed errors unless it appears
on the record that the question was distinctly raised
. . . and was ruled upon and decided by the court
adversely to the [petitioner’s] claim.’’ (Internal quota-
tion marks omitted.) Hankerson v. Commissioner of
Correction, supra, 150 Conn. App. 367. ‘‘The reason for
the rule is obvious: to permit a party to raise a claim
on appeal that has not been raised at trial—after it is
too late for the trial court or the opposing party to
address the claim—would encourage trial by ambus-
cade, which is unfair to both the trial court and the
opposing party.’’ (Internal quotation marks omitted.)
Moye v. Commissioner of Correction, 316 Conn. 779,
784–85, 114 A.3d 925 (2015).
In the present case, the petitioner alleged in the sec-
ond count of his amended petition only that the respon-
dent’s failure to diligently pursue him resulted in an
unreasonable delay that violated the petitioner’s due
process rights. In the petitioner’s pretrial brief, no men-
tion is made of a waiver of jurisdiction or the loss of
authority to reincarcerate the petitioner. No case law
is cited with respect to the petitioner’s due process
claim. At the habeas trial, the petitioner characterized
his due process claim in terms of ‘‘fundamental fair-
ness,’’ and the respondent characterized the petitioner’s
claim as one of laches. The habeas court decided the
claim as it was presented by the parties and made no
findings whatsoever with respect to a waiver of jurisdic-
tion issue. The first time that the petitioner raised a
waiver of jurisdiction claim was in his motion to reargue
filed after the habeas trial and after the habeas court
issued its memorandum of decision on the merits. At
that point, the presentation of that issue was untimely7
and the court denied the petitioner’s motion for reasons
not revealed by the record.
From our careful review of the record, we conclude
that the petitioner has not demonstrated that the issues
raised with regard to the court’s denial of his petition
for a writ of habeas corpus are debatable among jurists
of reason, that a court could resolve the issues in a
different manner or that the questions raised deserved
encouragement to proceed further. See Simms v. War-
den, supra, 230 Conn. 616. Accordingly, we conclude
that the court did not abuse its discretion in denying
the petition for certification to appeal.
The appeal is dismissed.
In this opinion LAVINE, J., concurred.
1
According to the respondent, it administered a number of community
release programs in May, 1989, one of which was the supervised home
release program.
2
At the habeas trial, Michelle Deveau, a records specialist at the Depart-
ment of Correction, testified that the supervised home release program was
phased out in the early 1990s.
3
‘‘For a person on home release, as for any incarcerated prisoner,
absconding constitutes a new crime, escape, that may lead to an added
prison term. . . . For a parolee, however, the only sanction for absconding
is that a parole violator risks his return to the custody of the commissioner
of correction for the unexpired portion of the term of his original sentence.’’
(Citation omitted.) Asherman v. Meachum, supra, 213 Conn. 48–49.
4
The habeas court denied the petitioner’s motion to reargue without
explanation. In his appeal form, the petitioner stated that he was appealing
from the ‘‘[d]enial of the petition for a writ of habeas corpus and the motion
to reargue/reconsider.’’ The petitioner, however, does not argue on appeal
that the habeas court abused its discretion in denying the motion to reargue.
Because the motion to reargue was denied without explanation, it is unclear
whether the habeas court denied it because the petitioner was improperly
raising a new claim for the first time in the motion or whether it simply
disagreed with the merits of this waiver argument. The petitioner sought
an articulation of the court’s decision on the motion to reargue, which
was denied.
5
During the pendency of this appeal, the petitioner, having served out
the unsuspended portion of his ten year sentence, was released from prison.
Prior to his release, the petitioner successfully applied to have the supervi-
sion of his three year period of probation transferred from Connecticut to
the state of New York pursuant to the Interstate Compact for Adult Offender
Supervision. See General Statutes § 54-133 et seq. Accordingly, upon his
release, the petitioner reported to and was placed under probation supervi-
sion by New York’s Department of Corrections and Community Supervision.
In light of the petitioner’s release from prison in Connecticut, the respon-
dent moved to dismiss this appeal as moot. According to the respondent,
because the petitioner was no longer incarcerated and his probation was
not being supervised in Connecticut, any relationship between the parties
had ended, and no practical relief could flow from an adjudication of this
appeal. The petitioner opposed the motion, arguing that his challenged
sentence included the period of probation he continued to serve as well as
the seven year suspended portion of his sentence, for which he remained
obligated to serve should he violate his probation. We agreed with the
petitioner that his appeal was not moot and denied the motion to dismiss.
6
Both the petitioner and the respondent state in their appellate briefs
that the waiver of jurisdiction issue is a factual determination.
7
‘‘[T]he purpose of a reargument is . . . to demonstrate to the court
that there is some decision or some principle of law which would have a
controlling effect, and which has been overlooked, or that there has been
a misapprehension of facts. . . . It also may be used to address alleged
inconsistencies in the trial court’s memorandum of decision as well as claims
of law that the [movant] claimed were not addressed by the court. . . . [A]
motion to reargue [however] is not to be used as an opportunity to have a
second bite of the apple or to present additional cases or briefs which could
have been presented at the time of the original argument.’’ (Citations omitted;
internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686,
692–93, 778 A.2d 981 (2001).