Gonzalez v. Commissioner of Correction ( 2022 )

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PEDRO GONZALEZ v. COMMISSIONER
OF CORRECTION
(AC 44229)
Prescott, Elgo and Suarez, Js.
Syllabus
The petitioner, who had been convicted of various criminal offenses, sought
a writ of habeas corpus, alleging that his trial counsel had rendered
ineffective assistance. During the pendency of his habeas action, the
petitioner filed a motion seeking his immediate release from the custody
of the respondent Commissioner of Correction. The petitioner claimed
that his continued confinement during the COVID-19 pandemic consti-
tuted an unnecessary risk to his life and that he had a 9 percent chance
of survival if he contracted the COVID-19 virus while incarcerated. The
habeas court conducted a remote hearing during which it heard testi-
mony from the petitioner and F, the acting regional medical director
for the Department of Correction. The court denied the petitioner’s
motion, concluding that he failed to show that, during the early months
of the pandemic, the respondent acted with deliberate indifference to
his medical needs in violation of the eighth amendment to the United
States constitution. The court reasoned that the respondent had provided
the petitioner with adequate medical care and taken appropriate mea-
sures to minimize his exposure to and risk of contracting COVID-19. The
habeas court granted the petitioner certification to appeal. On appeal,
he claimed that the habeas court improperly concluded that he had not
established the deliberate indifference necessary to constitute an eighth
amendment violation or that the respondent violated his rights under
article first, §§ 8 and 9, of the Connecticut constitution. During the
pendency of his appeal, the petitioner declined the department’s offer
to provide him with doses of a COVID-19 vaccine that had been approved
by the federal Food and Drug Administration. Held:
1. The respondent’s claim that the petitioner’s appeal was moot because he
declined the department’s offer to vaccinate him was unavailing; the
petitioner’s appeal concerned the adequacy of the measures taken by
the respondent to prevent transmission of the COVID-19 virus, and, as
it was undisputed that the petitioner could contract the virus even if
he had accepted the vaccination offer, an actual controversy existed
regarding the adequacy of the measures taken by the respondent; accord-
ingly, the appeal was not moot, as this court could provide the petitioner
with practical relief if it were to conclude that the respondent’s conduct
during the early months of the pandemic constituted deliberate indiffer-
ence to the petitioner’s health and safety.
2. The habeas court properly concluded as a matter of law that the petitioner
had not met his burden of demonstrating the deliberate indifference
necessary to establish an eighth amendment violation: the record sub-
stantiated the court’s determination that the respondent’s response to
the COVID-19 outbreak in the state’s correctional facilities was reason-
able, and that the respondent had provided adequate medical care and
took appropriate measures to minimize the petitioner’s exposure to and
risk of contracting the virus, as the court, being the sole arbiter of
witness credibility, credited F’s testimony regarding the petitioner’s
medical issues and the department’s measures to safeguard his health;
moreover, the court had before it declarations made under penalty of
perjury by department officials who outlined the screening, testing and
isolation protocols that were implemented, as well as measures that were
implemented regarding social distancing, personal protective equipment
and cleaning, and, in light of those measures, this court could not con-
clude that the respondent’s conduct was an unreasonable reaction to
the risk posed to the petitioner that amounted to the recklessness
required under law.
3. The petitioner’s state constitutional claim that his continued confinement
constituted cruel and unusual punishment under article first, §§ 8 and
9, of the state constitution was unavailing under the circumstances of
his case:
a. The petitioner’s claim was unpreserved, as he did not indicate in his
motion for immediate release that he was pursuing such a claim, he
presented no evidence or argument that contemporary standards of
decency compelled the conclusion that the respondent violated his state
constitutional rights and he did not seek an articulation of the habeas
court’s decision with respect to any state constitutional claim.
b. Although review under State v. Golding (213 Conn. 233) is available
in habeas appeals for unpreserved constitutional claims that could have
been raised in the habeas petition or which challenge the actions of the
habeas court, such review was unavailable in the petitioner’s circum-
stances, as he did not distinctly raise a state constitutional claim in his
habeas petition or invoke the protections of the state constitution during
the hearing on his motion for immediate release; moreover, despite the
petitioner’s assertion that the habeas court should have construed his
motion to include a state constitutional claim, under the applicable rule
of practice (§ 5-2), that court was under no obligation to decide a question
of law that was not distinctly stated to it.
Argued January 6—officially released April 5, 2022
Procedural History
Motion for release from incarceration, brought to the
Superior Court in the judicial district of Tolland and
tried to the court, Oliver, J.; judgment denying the
motion, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
Jennifer B. Smith, for the appellant (petitioner).
James W. Donohue, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Clare Kindall, solicitor general, for the appel-
lee (respondent).
Opinion
ELGO, J. The petitioner, Pedro Gonzalez, appeals
from the judgment of the habeas court denying his
motion for immediate release from the custody of the
respondent, the Commissioner of Correction, filed in
connection with his pending habeas corpus proceeding.
On appeal, the petitioner claims that (1) the court
improperly concluded that he had not proven the requi-
site deliberate indifference to establish a violation
under the eighth amendment to the United States consti-
tution and (2) the respondent violated his rights under
article first, §§ 8 and 9, of the state constitution. Both
claims are predicated on the petitioner’s allegation that
his continued confinement during the COVID-19 pan-
demic constitutes an unnecessary risk to his life. We
affirm the judgment of the habeas court.
In May, 2016, the petitioner pleaded guilty to various
criminal offenses and was sentenced to a term of twelve
years of incarceration, execution suspended after nine
years, and three years of probation. In March, 2017, the
petitioner filed a petition for a writ of habeas corpus,
alleging, inter alia, that his guilty plea was involuntary
and that his trial counsel had rendered ineffective assis-
tance.
While that habeas corpus action was pending, the
COVID-19 pandemic swept the globe. On January 31,
2020, the secretary of the United States Department of
Health and Human Services declared a public health
emergency in the United States. On March 10, 2020,
Governor Ned Lamont declared a public health emer-
gency and a civil preparedness emergency throughout
the state of Connecticut. On March 13, 2020, President
Donald J. Trump issued a proclamation that the COVID-
19 outbreak in the United States constituted a national
emergency. In response, numerous emergency mea-
sures were enacted at both the state and federal level.
On May 19, 2020, the petitioner, acting in a self-repre-
sented capacity, filed a ‘‘motion for immediate release’’
with the habeas court.1 In that motion, the petitioner
alleged that, due to multiple medical conditions, his risk
of contracting the COVID-19 virus while incarcerated
constituted an unnecessary risk to his life. More specifi-
cally, the petitioner alleged that, ‘‘[i]f [he] is not
release[d], and does get infected with COVID-19, [his]
chances of surviving the virus is 9 [percent]. Simply
put, [the petitioner] will die.’’ Because less than four
years remained on his sentence, the petitioner alleged
that his health was ‘‘unnecessarily compr[om]ised by
continued incarceration . . . .’’2 By order dated May
20, 2020, the court ordered the respondent to furnish a
copy of the petitioner’s medical records to the petitioner
and the clerk of the court; the respondent complied
with that request.3
The respondent filed an objection to the petitioner’s
motion on May 28, 2020. Appended to that pleading were
the sworn declarations of Warden Antonio Santiago;
Warden Kristine Barone; Byron Kennedy, Chief Medical
Officer for the Department of Correction (department);
and Melinda Jarjura, a registered nurse employed by the
department.4 A copy of the interim COVID-19 guidelines
issued by the United States Centers for Disease Control
and Prevention (CDC) also accompanied the respon-
dent’s objection.
On May 29, 2020, the court conducted a remote hear-
ing on the petitioner’s motion.5 At the outset, the peti-
tioner confirmed that he had received the four sworn
declarations submitted by the respondent; the peti-
tioner, the respondent, and the court all discussed those
declarations during that hearing.6 The only evidence
presented by the petitioner was his own testimony.7 In
addition, the respondent offered the testimony of Carey
Freston, a licensed physician who served as the depart-
ment’s acting regional medical director.
In its June 16, 2020 memorandum of decision, the
court found the following relevant facts. ‘‘The petitioner
is currently housed at [MacDougall-Walker] Correc-
tional Institution in Suffield . . . . He has a current
diagnosis of central pulmonary sarcoidosis, a disease
which causes complications within lung tissue. He also
has a diagnosis of asthma. Further, the petitioner has
been diagnosed with allergic rhinitis (described by Fres-
ton as a ‘drippy nose’), melanonychia (described by
Freston as a noncancer related darkness of the finger
nails), self-described claustrophobia, ectopic dermatitis
(a ‘skin rash’), back pain, neuropathic pain, seasonal
allergies . . . gastro-esophageal reflux disease, vita-
min D deficiency, migraines, epigastric discomfort, and
pleuritic chest pain. He has no symptoms commonly
associated with having contracted COVID-19. . . .
‘‘Freston is board certified in family medicine and is
a certified correctional health professional. He testified
credibly to the evaluation, diagnosis and treatment of
the petitioner’s several medical issues. Freston testified
that the petitioner’s pulmonary sarcoidosis results in
trouble breathing and inflammation of the lungs.
Although this diagnosis places the petitioner at
increased risk of contracting COVID-19 and, if con-
tracted, at increased risk for adverse health conse-
quences, [Freston] testified credibly that the sarcoido-
sis is being monitored by [the department’s] medical
staff and is presently stable, requiring no prescription
medications.
‘‘Freston testified to [department’s] measures
designed to safeguard the petitioner’s health. The peti-
tioner’s asthma, another preexisting condition that
increases the petitioner’s risk of contracting COVID-19
and, if contracted, an increased risk for adverse health
consequences, has been evaluated and monitored
through pulmonary functioning tests. Although the
asthma has worsened over time to the point where it
has been classified as ‘moderate-persistent,’ it is being
treated with an inhaled steroid. The court finds that
there is a lack of evidence to support the petitioner’s
contention of the existence of a large mass present in
the front lobe of the petitioner’s brain, as opposed to
a small area of a single abnormality as revealed by a
brain scan MRI.
‘‘Freston testified credibly that inmates’ health,
including the petitioner’s, is monitored, and they are
screened in an effort to identify symptoms commonly
associated with having contracted COVID-19. Those
inmates testing positive, showing symptoms or refusing
a COVID-19 test are isolated from inmates testing nega-
tive.
‘‘A review of the testimony and exhibits leads the
court to the conclusion that the petitioner has failed to
show ‘deliberate indifference’ to his medical needs.
. . . The evidence presented supports the conclusion
that the respondent has provided adequate medical
care, has taken appropriate measures to minimize the
petitioner’s exposure and risk to COVID-19 and has not
been deliberately indifferent to any of the risks to the
petitioner’s health. . . . The court finds that the sev-
eral, recent protective and mitigating measures testified
to by [Freston] demonstrate a thoughtful, sincere, and
organized effort by [the department] to prevent and
reduce the spread of this virus through the petitioner’s
[correctional] facility.’’ (Citations omitted.) The court
thus concluded that the petitioner had not established
an eighth amendment violation and, accordingly, denied
the petitioner’s motion. The court subsequently granted
certification to appeal from that judgment, and this
appeal followed.8
I
Before considering the claims raised by the petitioner
in this appeal, we first address a threshold question of
whether this court has subject matter jurisdiction over
the appeal. ‘‘A claim that a court lacks subject matter
jurisdiction . . . may be raised at any time during the
proceedings, including for the first time on appeal.’’
(Internal quotation marks omitted.) Mangiafico v.
Farmington, 331 Conn. 404, 430, 204 A.3d 1138 (2019).
‘‘Subject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it is
without jurisdiction . . . .’’ (Internal quotation marks
omitted.) Peters v. Dept. of Social Services, 273 Conn.
434, 441, 870 A.2d 448 (2005). Whether a court possesses
subject matter jurisdiction is a question of law over
which our review is plenary. See Wolfork v. Yale Medical
Group, 335 Conn. 448, 470, 239 A.3d 272 (2020). In
addition, ‘‘[i]t is well established that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.’’
(Internal quotation marks omitted.) Novak v. Levin, 287
Conn. 71, 79, 951 A.2d 514 (2008).
At issue is whether the petitioner’s appeal is moot.
‘‘Mootness implicates [the] court’s subject matter juris-
diction and is thus a threshold matter for us to resolve.
. . . It is a well-settled general rule that the existence
of an actual controversy is an essential requisite to
appellate jurisdiction; it is not the province of appellate
courts to decide moot questions, disconnected from the
granting of actual relief or from the determination of
which no practical relief can follow. . . . An actual
controversy must exist not only at the time the appeal
is taken, but also throughout the pendency of the
appeal. . . . When, during the pendency of an appeal,
events have occurred that preclude an appellate court
from granting any practical relief through its disposition
of the merits, a case has become moot.’’ (Internal quota-
tion marks omitted.) New Hartford v. Connecticut
Resources Recovery Authority, 291 Conn. 502, 506, 970
A.2d 578 (2009).
The petitioner commenced the present appeal in the
summer of 2020. It is undisputed that, on February 13,
2021, the department offered to provide the petitioner
with two doses of a COVID-19 vaccine approved by the
United States Food and Drug Administration pursuant
to the federal emergency use authorization act. See 21
U.S.C. § 360bbb-3 (2018); Dixon v. De Blasio, F.
Supp. 3d , United States District Court, Docket No.
21-cv-5090 (BMC) (E.D.N.Y. October 12, 2021) (noting
that, ‘‘[i]n mid-December 2020, the [Food and Drug
Administration] issued an emergency use authorization
for two COVID-19 vaccines developed by Pfizer and
Moderna’’), appeal filed (2d Cir. October 22, 2021) (No.
21-2666). The petitioner declined that offer and noted
‘‘without prejudice’’ on the signature line of the consent
form furnished to him by the department.
In light of that development, the respondent submits
that this court can grant no practical relief to the peti-
tioner, stating: ‘‘As the vaccine would offer [the peti-
tioner] the protection from the virus he demands, his
refusal to accept that protection should render this
appeal moot.’’ By contrast, the petitioner argues that
an actual controversy continues to exist regarding the
adequacy of the measures taken by the respondent to
prevent transmission of the COVID-19 virus. The peti-
tioner argues that, because he is ‘‘susceptible to con-
tracting’’ COVID-19 ‘‘[r]egardless of whether or not [he]
is vaccinated,’’ this court can provide him practical
relief by ordering his immediate release ‘‘if it finds that
the [department] was acting with deliberate indiffer-
ence . . . .’’ We agree with the petitioner that this
appeal is not moot because, if we were to agree with
his deliberate indifference claim, there is practical relief
we could afford him.
The gravamen of the petitioner’s appeal concerns the
transmission of the COVID-19 virus and the adequacy
of the preventative measures instituted by the respon-
dent. In his principal appellate brief, the petitioner, cit-
ing Helling v. McKinney, 509 U.S. 25, 33, 113 S. Ct. 2475,
125 L. Ed. 2d 22 (1993), submits that the respondent
has a duty to protect him ‘‘from the risk of contracting
a ‘serious, communicable disease’ . . . .’’ (Emphasis
added.) Because COVID-19 indisputably is a serious,
communicable disease, the petitioner claims that ‘‘[t]he
risk of contracting [COVID-19] constitutes an unsafe,
life-threatening condition that imperils prisoners’ rea-
sonable safety . . . .’’ (Internal quotation marks omit-
ted.) The petitioner further argues that the measures
implemented by the respondent to prevent transmission
of that virus were inadequate and evince deliberate
indifference to his health and safety.
In our view, the fact that the department offered the
petitioner a COVID-19 vaccine in early 2021 certainly
bears on the question of whether it acted with deliberate
indifference to his health and safety, the substantive
issue to be decided in this appeal. Once available, vacci-
nation was yet another measure that the respondent
implemented to combat COVID-19 in the correctional
facilities of this state.
While the implementation of a vaccination program
relates to the merits of a deliberate indifference claim,
it does not foreclose meaningful review of such a claim.
The present matter concerns the adequacy of the mea-
sures taken by the respondent to prevent transmission
of the COVID-19 virus. It is undisputed that the peti-
tioner could contract that virus even if he had accepted
the vaccination offer. In his appellate brief, the respon-
dent relies in part on the guidance issued by the CDC.
That guidance indicates that ‘‘vaccines are not 100 [per-
cent] effective at preventing infection [and] some peo-
ple who are fully vaccinated will still get COVID-19.’’
See Centers for Disease Control and Prevention, Possi-
bility of COVID-19 after Vaccination: Breakthrough
Infections (last updated December 17, 2021), available
at https://www.cdc.gov/coronavirus/ 2019-ncov/vac-
cines/effectiveness/why-measure-effectiveness/
breakthrough-cases.html (last visited March 31, 2022).
The CDC further advises that ‘‘[v]accine breakthrough
infections are expected’’ and that, ‘‘as the number of
people who are fully vaccinated goes up, the number of
vaccine breakthrough infections will also increase.’’ Id.As the Centers for Medicare and Medicaid Services
at the United States Department of Health and Human
Services noted in its November 5, 2021 interim final
rule with comment period, Omnibus COVID-19 Health
Care Staff Vaccination, 86 Fed. Reg. 61,555, 61,615, ‘‘the
effectiveness of the vaccine[s] to prevent disease trans-
mission by those vaccinated [is] not currently known.’’
Moreover, in considering an eighth amendment deliber-
ate indifference claim, the United States District Court
for the Northern District of California emphasized that
prison officials ‘‘fail to consider that it is not only the
unvaccinated population that is at substantial risk of
serious harm from COVID-19, and that such risk would
be present even if the entire incarcerated population
were vaccinated.’’ Plata v. Newsom, F. Supp. 3d
, United States District Court, Docket No. 01-CV-
01351 (JST) (N.D. Cal. September 27, 2021), appeal filed
(9th Cir. October 14, 2021) (No. 21-16696); see also
Commonwealth v. McDermott, 488 Mass. 169, 173, 171
N.E.3d 1136 (2021) (‘‘[a]lthough vaccinations have
proved to be highly effective at protecting vaccinated
people against symptomatic and severe COVID-19,
breakthrough infections can occur and have
occurred’’).
That authority supports the petitioner’s contention
that an actual controversy continues to exist regarding
the adequacy of the measures taken by the respondent
to prevent transmission of the COVID-19 virus in this
state’s correctional facilities, even after vaccination was
offered to inmates. If this court were to conclude that
the respondent’s conduct constituted deliberate indif-
ference to the petitioner’s health and safety, we could
provide the petitioner with practical relief. Given ‘‘the
sweeping, constantly evolving nature of the COVID-19
pandemic’’; People v. Hernandez, 488 P.3d 1055, 1060
(Colo. 2021); and mindful of our obligation to indulge
every presumption in favor of jurisdiction; Novak v.
Levin, supra, 287 Conn. 79; we therefore conclude that
the petitioner’s appeal is not moot.
II
On appeal, the petitioner claims that the court
improperly concluded that he had not proven the delib-
erate indifference necessary to establish an eighth
amendment violation. We disagree.
As a preliminary matter, we note that ‘‘[t]he habeas
court is afforded broad discretion in making its factual
findings, and those findings will not be disturbed unless
they are clearly erroneous. . . . The application of the
habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review.’’ (Internal
quotation marks omitted.) Faraday v. Commissioner
of Correction, 288 Conn. 326, 338, 952 A.2d 764 (2008);
see also Wilson v. Williams, 961 F.3d 829, 840 (6th Cir.
2020) (issue of ‘‘whether [a prison official’s] conduct
could constitute deliberate indifference is a mixed ques-
tion of law and fact’’).
The eighth amendment proscribes the infliction of
cruel and unusual punishments; see U.S. Const., amend.
VIII; which ‘‘encompasses more than barbarous physi-
cal punishment.’’ Arey v. Warden, 187 Conn. 324, 328,
445 A.2d 916 (1982). As the United States Supreme Court
has explained, the eighth amendment ‘‘imposes duties
on [prison] officials, who must provide humane condi-
tions of confinement; prison officials must ensure that
inmates receive adequate food, clothing, shelter, and
medical care, and must take reasonable measures to
guarantee the safety of the inmates . . . .’’ (Citation
omitted; internal quotation marks omitted.) Farmer v.
Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed.
2d 811 (1994). At the same time, the court emphasized
that ‘‘[t]he [c]onstitution does not mandate comfortable
prisons . . . . [N]ot . . . every injury suffered by [a]
prisoner . . . translates into constitutional liability for
prison officials responsible for the victim’s safety. . . .
[A] prison official violates the [e]ighth [a]mendment
only when two requirements are met. First, the depriva-
tion alleged must be, objectively, sufficiently serious
. . . . [Second] a prison official must have a sufficiently
culpable state of mind. . . . In prison-conditions cases
that state of mind is one of deliberate indifference to
inmate health or safety . . . .’’ (Citations omitted; foot-
notes omitted; internal quotation marks omitted.) Id.,832–34.
‘‘An official acts with the requisite deliberate indiffer-
ence when that official knows of and disregards an
excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference. . . . Thus,
an official’s failure to alleviate a significant risk that he
should have perceived but did not [does not violate the
eighth amendment]. . . . Accordingly, to establish a
claim of deliberate indifference in violation of the eighth
amendment, a prisoner must prove that the officials’
actions constituted more than ordinary lack of due care
for the prisoner’s interests or safety. . . . [D]eliberate
indifference is a stringent standard of fault . . . requir-
ing proof of a state of mind that is the equivalent of
criminal recklessness. . . . In other words, negligence,
even if it constitutes medical malpractice, does not,
without more, engender a constitutional claim.’’ (Cita-
tions omitted; emphasis added; footnote omitted; inter-
nal quotation marks omitted.) Faraday v. Commis-
sioner of Correction, supra, 288 Conn. 338–40. To
succeed on a deliberate indifference claim, a litigant
must establish that a prison official recklessly disre-
garded a substantial risk of harm to a prisoner. See
Farmer v. Brennan, supra, 511 U.S. 836–37; Valentine
v. Collier, 993 F.3d 270, 281–82 (5th Cir. 2021).
In the present case, the petitioner claims that the
respondent acted with deliberate indifference by disre-
garding risks to his health and safety following the
outbreak of the COVID-19 pandemic. For his part, the
respondent does not dispute that the COVID-19 virus
presented a substantial risk of harm to the petitioner.9
The respondent nevertheless submits that the petitioner
failed to demonstrate that the respondent recklessly
disregarded that risk during the early months of the
pandemic. We agree with the respondent.
As the United States Court of Appeals for the Third
Circuit has observed, ‘‘[t]he context of the [respon-
dent’s] conduct is essential to determine whether it
shows the requisite deliberate indifference . . . .
COVID-19 presents highly unusual and unique circum-
stances . . . that have radically transformed our every-
day lives in ways previously inconceivable . . . and
have altered [our world] with lightning speed . . . . So
we must evaluate the [respondent’s] response to the
virus in that context.’’ (Citations omitted; internal quota-
tion marks omitted.) Hope v. Warden, 972 F.3d 310, 330
(3d Cir. 2020); accord Swain v. Junior, 961 F.3d 1276,
1280 (11th Cir. 2020) (‘‘[t]he [COVID-19] virus . . .
poses particularly acute challenges for the administra-
tion of the country’s jails and prisons’’). COVID-19 is a
‘‘rapidly evolving’’ pandemic. Casey v. Lamont, 338
Conn. 479, 484, 258 A.3d 647 (2021); see also United
States v. Kauwe, 467 F. Supp. 3d 940, 947 (D. Nev. 2020)
(noting ‘‘the scientific and medical community’s rapidly-
evolving understanding of COVID-19’’), appeal dis-
missed, United States Court of Appeals, Docket No. 20-
10230 (9th Cir. October 20, 2020). Although two years
have passed since the initial COVID-19 outbreak in the
United States, the question presented in this appeal
concerns the respondent’s conduct in the months imme-
diately prior to the court’s May 19, 2020 denial of the
petitioner’s motion for release.. See, e.g., Fraihat v.
United States Immigration & Customs Enforcement,
16 F.4th 613, 620 (9th Cir. 2021) (review of deliberate
indifference claim regarding defendant’s response to
COVID-19 pandemic confined to period between out-
break and rendering of judgment by trial court).
In its memorandum of decision, the court, as sole
arbiter of witness credibility; see Lebron v. Commis-
sioner of Correction, 204 Conn. App. 44, 51, 250 A.3d
44, cert. denied, 336 Conn. 948, 250 A.3d 695 (2021);
credited Freston’s testimony regarding ‘‘the evaluation,
diagnosis and treatment’’ of the petitioner’s medical
issues. At the hearing, the court asked Freston if any
of the petitioner’s ailments increased the risk of con-
tracting COVID-19. Freston testified that ‘‘two chronic
diseases that may contribute increase risks for con-
tracting COVID [or] mortality from COVID infection
include the [petitioner’s] pulmonary sarcoidosis and
[his] asthma.’’ Freston explained that ‘‘the status of
the [pulmonary] sarcoidosis is stable. He’s not on any
medication for it.’’ In addition, Freston testified that the
petitioner was provided an inhaled steroid treatment
for his asthma, which was classified as ‘‘moderate per-
sistent . . . .’’ Freston noted that, ‘‘on [a] recent pulmo-
nary function test, [the petitioner] had reversibility of
the asthma, and the general overall function of the lung
capacity was described as improved . . . .’’ Freston
also testified that the petitioner was being ‘‘followed
by a specialist’’ for both of those conditions. The peti-
tioner’s medical records confirm that the department
provided ongoing treatment to him for those conditions.
The court also credited Freston’s testimony regarding
the department’s ‘‘measures designed to safeguard the
petitioner’s health’’ and its ‘‘protective and mitigating
measures . . . to prevent and reduce the spread of this
virus through the petitioner’s facility.’’ Freston testified
that the department had ‘‘extensive programs and poli-
cies in place that are changed frequently throughout
each week as we gain more information and knowledge
of this disease.’’ Freston explained that the depart-
ment’s measures included protocols ‘‘to monitor, screen
and identify people that show symptoms and isolate
them appropriately according to CDC recommenda-
tions’’ and emphasized that the department was ‘‘adher-
ing to the CDC recognized interventions for correctional
facilities. . . . [P]eople are being screened, they’re
being asked [about their health], they’re being looked
at. If somebody says that they [have] symptoms, they’re
quickly evaluated, they have a mask to put on so it
doesn’t transmit to other people. If they have a fever,
if they have other known symptom[s] . . . they are
tested for COVID. Then they are isolated and quaran-
tined until results are known. Those people are not
mixed with the other population.’’ Freston also noted
that ‘‘anybody that tested positive for COVID would
move to Northern Correctional Institution where we
set up the COVID infirmary [with a] higher level of care’’
and ‘‘use [of] a special medicine [that] wasn’t available
. . . in the other [correctional] facilities.’’ In addition,
Freston confirmed that ‘‘the governor and the health
department have been jointly working with [the depart-
ment] as well as the National Guard’’ to implement mass
COVID-19 testing at correctional facilities throughout
the state.
The court also had before it the declarations of Bar-
one and Kennedy, which were made under penalty of
perjury pursuant to 28 U.S.C. § 1746. In their declara-
tions, Barone and Kennedy outlined the screening, test-
ing, and isolation protocols that had been implemented
to combat the spread of the COVID-19 virus. They also
detailed additional measures taken by the department,
including ‘‘steps to increase social distancing and
reduce the number of people with whom each inmate
has contact’’; providing personal protective equipment
and masks to all inmates and staff; providing cleaning
supplies and soap for hand-washing; conducting more
frequent cleaning of ‘‘[a]ll areas’’ of the correctional
facilities; educating inmates and staff on the virus and
‘‘social distancing and cleaning procedures’’; sus-
pending social visits, gym recreation, religious services,
and volunteer services at the facilities; ‘‘quarantining
all new admits from the general population for fourteen
days’’; requiring inmates to eat all meals inside their
cells; and requiring inmates to wear ‘‘protective masks
when . . . exiting cells, exiting cubicles, and in a com-
mon area.’’10
As the United States Supreme Court has explained,
‘‘prison officials who actually knew of a substantial
risk to inmate health or safety may be found free from
liability if they responded reasonably to the risk, even
if the harm ultimately was not averted. A prison official’s
duty under the [e]ighth [a]mendment is to ensure rea-
sonable safety . . . . Whether one puts it in terms of
duty or deliberate indifference, prison officials who act
reasonably cannot be found liable under the [c]ruel and
[u]nusual [p]unishments [c]lause.’’ (Citations omitted;
internal quotation marks omitted.) Farmer v. Brennan,
supra, 511 U.S. 844–45.
In light of the measures the department instituted in
response to the COVID-19 outbreak during the spring of
2020, we cannot conclude that the respondent’s conduct
was an unreasonable reaction to the risk posed to the
petitioner that amounted to the recklessness required
under established law. See id., 836–37. The record sub-
stantiates the court’s determination that the respondent
‘‘has provided adequate medical care, has taken appro-
priate measures to minimize the petitioner’s exposure
and risk to COVID-19 and has not been deliberately
indifferent to any of the risks to the petitioner’s health.’’
Several federal courts of appeals have reached a simi-
lar result when faced with deliberate indifference
claims involving COVID-19. Swain v. Junior, supra, 961
F.3d 1280, involved ‘‘a group of medically vulnerable
inmates’’ who, like the petitioner here, raised an eighth
amendment challenge to the response of prison officials
in the early months of the pandemic. In its decision,
which was issued one day prior to the habeas court’s
June 16, 2020 memorandum of decision in the present
case, the United States Court of Appeals for the Elev-
enth Circuit found that, ‘‘[b]y taking other measures,
besides release—including, among many other things,
implementing some social-distancing measures, distrib-
uting face masks, screening inmates and staff, and pro-
viding cleaning and personal hygiene supplies—[the
director of corrections] has responded reasonably to
the risk of the virus.’’ Id., 1291. The court further stated:
‘‘We simply cannot conclude that, when faced with a
perfect storm of a contagious virus and the space con-
straints inherent in a correctional facility, the defen-
dants here acted unreasonably by doing their best.
Because the defendants act[ed] reasonably, they cannot
be found liable under the [e]ighth [a]mendment.’’ (Inter-
nal quotation marks omitted.) Id., 1289. That logic also
applies here.
Like the present case, Wilson v. Williams, supra, 961
F.3d 832–33, involved an action by inmate petitioners
who sought ‘‘to obtain release from custody to limit
their exposure to the COVID-19 virus’’ in the early
months of the COVID outbreak.11 In rejecting their
eighth amendment claim, the United States Court of
Appeals for the Sixth Circuit first noted that ‘‘[t]here
is no question that the [respondent Bureau of Prisons]
was aware of and understood the potential risk of seri-
ous harm to inmates . . . through exposure to the
COVID-19 virus. . . . The [respondent] acknowledged
the risk from COVID-19 and implemented a six-phase
plan to mitigate the risk of COVID-19 spreading . . . .’’
(Citation omitted.) Id., 840. With respect to deliberate
indifference, the court emphasized that ‘‘[t]he key
inquiry is whether the [respondent] responded reason-
ably to th[is] risk.’’ (Internal quotation marks omitted.)
Id. The court then stated that the respondent ‘‘took
preventative measures, including screening for symp-
toms, educating staff and inmates about COVID-19, can-
celling visitation, quarantining new inmates, imple-
menting regular cleaning, providing disinfectant
supplies, and providing masks.12 The [respondent] ini-
tially struggled to scale up its testing capacity . . . but
. . . represented that it was on the cusp of expanding
testing. The [respondent’s] efforts to expand testing
demonstrate the opposite of a disregard of a serious
health risk. This court has found similar responses by
prison officials and medical personnel to be reasonable
responses to serious risks of harm.’’ (Footnote added.)
Id., 841. Because that response was a reasonable one,
the court held that petitioners could not prevail on
their deliberate indifference claim.13 See id.; see also
Valentine v. Collier, supra, 993 F.3d 283 (rejecting
eighth amendment deliberate indifference claim by
inmate plaintiffs because defendant’s response to
COVID-19 pandemic was ‘‘not unreasonable’’); Hope v.
Warden, supra, 972 F.3d 329 (same, and noting that
‘‘mere disagreement as to the response to the risk to
[p]etitioners in light of their medical condition will not
support constitutional infringement’’ (internal quota-
tion marks omitted)); cf. Fraihat v. United States
Immigration & Customs Enforcement, supra, 16 F.4th
647 (concluding that immigration detainee plaintiffs
‘‘have not established a likelihood of success or serious
questions on the merits of their claim that [United States
Immigration and Customs Enforcement’s] nationwide
approach to COVID-19 in spring 2020 reflected deliber-
ate indifference or reckless disregard of health risks’’).
In the present case, the facts found by the court—
and particularly its determination that the respondent’s
response to the COVID-19 outbreak in the early months
of the pandemic was reasonable and not reckless—find
support in the record before us.14 The precedent of
the United States Supreme Court instructs that, with
respect to claims of deliberate indifference, ‘‘prison offi-
cials who act reasonably [in response to a substantial
risk to inmate health or safety] cannot be found liable
under the [c]ruel and [u]nusual [p]unishments [c]lause.’’
Farmer v. Brennan, supra, 511 U.S. 845. The habeas
court, therefore, properly concluded as a matter of law
that the petitioner had not met his burden of demonstra-
ting the deliberate indifference necessary to establish
an eighth amendment violation.
III
The petitioner also claims that the respondent’s
response to the COVID-19 outbreak in the early months
of the pandemic violated his rights under article first,
§§ 8 and 9, of the Connecticut constitution.15 More spe-
cifically, he contends that, under the ‘‘contemporary
standards of decency’’ framework set forth in State v.
Santiago, 318 Conn. 1, 21, 122 A.3d 1 (2015), this court
should conclude that his continued confinement consti-
tutes cruel and unusual punishment under our state
constitution. The respondent counters that this state
constitutional claim is unpreserved, as it was neither
presented to nor decided by the habeas court, and is
not entitled to Golding review. See State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188(2015). We agree with the respondent.
A
‘‘Habeas corpus is a civil proceeding.’’ Collins v. York,
159 Conn. 150, 153, 267 A.2d 668 (1970); see also
Blumenthal v. Barnes, 261 Conn. 434, 449, 804 A.2d
152 (2002); Lorthe v. Commissioner of Correction, 103
Conn. App. 662, 687 n.21, 931 A.2d 348, cert. denied,
284 Conn. 939, 937 A.2d 696 (2007). Our rules of practice
require a party, as a prerequisite to appellate review,
to distinctly raise its claim before the trial court. See
Practice Book § 5-2 (‘‘[a]ny party intending to raise any
question of law which may be the subject of an appeal
must . . . state the question distinctly to the judicial
authority’’); Practice Book § 60-5 (‘‘[t]he court shall not
be bound to consider a claim unless it was distinctly
raised at the trial or arose subsequent to the trial’’).
When a party fails to do so, the judicial authority is
‘‘under no obligation to decide the question.’’ Practice
Book § 5-2. Accordingly, Connecticut’s appellate courts
‘‘will not review a claim unless it was distinctly raised
at trial.’’ (Internal quotation marks omitted.) Eubanks
v. Commissioner of Correction, 329 Conn. 584, 597, 188
A.3d 702 (2018); see also Mitchell v. Commissioner of
Correction, 156 Conn. App. 402, 408, 114 A.3d 168 (‘‘this
court is not bound to consider any claimed error unless
it appears on the record that the question was distinctly
raised at trial and was ruled upon and decided by the
court adversely to the appellant’s claim’’ (internal quota-
tion marks omitted)), cert. denied, 317 Conn. 904, 114
A.3d 1220 (2015); State v. Faison, 112 Conn. App. 373,
379, 962 A.2d 860 (‘‘[i]t is fundamental that claims of
error must be distinctly raised and decided in the trial
court’’), cert. denied, 291 Conn. 903, 967 A.2d 507 (2009).
As our Supreme Court has explained, ‘‘principles of
fairness dictate that both the opposing party and the
trial court are entitled to have proper notice of a claim.
. . . Our review of a claim not distinctly raised at the
trial court violates that right to notice. . . . [A]ppellate
review of newly articulated claim[s] not raised before
the habeas court would amount to an ambuscade of
the [habeas] judge . . . . Accordingly, the determina-
tion of whether a claim has been properly preserved will
depend on a careful review of the record to ascertain
whether the claim on appeal was articulated below
with sufficient clarity to place the trial court [and the
opposing party] on reasonable notice of that very same
claim.’’ (Citations omitted; internal quotation marks
omitted.) Eubanks v. Commissioner of Correction,
supra, 329 Conn. 597–98; see also Swerdloff v. AEG
Design/Build, Inc., 209 Conn. 185, 188, 550 A.2d 306(1988) (‘‘[a] claim ‘briefly suggested’ is not ‘distinctly
raised’ ’’).
The petitioner did not indicate, in his motion for
immediate release or at the May 29, 2020 hearing, that
he was pursuing a claim under the Connecticut constitu-
tion. He also presented no evidence or argument that
contemporary standards of decency compel the conclu-
sion that the respondent had violated his state constitu-
tional rights. See Eubanks v. Commissioner of Correc-
tion, supra, 329 Conn. 587 (concluding that Appellate
Court ‘‘improperly reached the merits of the petitioner’s
claim’’ when ‘‘the petitioner presented no evidence and
made no argument to the habeas court that would have
alerted either that court or opposing counsel’’ of that
claim). For that reason, it is not surprising that there
is no discussion of our state constitution in the court’s
memorandum of decision.
In Eubanks, the Supreme Court emphasized that ‘‘the
habeas court’s . . . decision makes clear that . . . the
court had not been placed on notice that the petitioner
was making that argument. . . . [N]othing in the
court’s decision suggests that it understood the peti-
tioner to be making [the] argument’’ that he advanced
on appeal. Id., 600–601. That also is the case here.
Because the petitioner alleged in his motion for immedi-
ate release that his continued incarceration threatened
his health and safety,16 the court stated in its memoran-
dum of decision that it ‘‘will address [that motion] as
a petition for a writ of habeas corpus based on unsafe
conditions of custody’’ in violation of the petitioner’s
well established eighth amendment rights, as recog-
nized by the United States Supreme Court in Farmer
v. Brennan, supra, 511 U.S. 832. The court then pro-
ceeded to analyze his claim under the federal constitu-
tion and concluded that the petitioner had not met his
burden of establishing an eighth amendment violation.
Furthermore, to the extent that the petitioner
believed he had, in fact, properly raised a state constitu-
tional claim that the habeas court failed to address, the
petitioner did not seek an articulation of the court’s
decision with respect to any state constitutional claim.
See Eubanks v. Commissioner of Correction, supra,
329 Conn. 594–95 (petitioner filed motion for articula-
tion with habeas court); Manifold v. Ragaglia, 94 Conn.
App. 103, 124, 891 A.2d 106 (2006) (articulation is proper
vehicle to address matter overlooked in decision). In
short, the petitioner did nothing to alert the habeas
court or the opposing party that he was pursuing a
claim under the Connecticut constitution. We, there-
fore, conclude that the petitioner failed to preserve his
state constitutional claim for appellate review.
B
The petitioner alternatively claims that he is entitled
to review of that unpreserved claim pursuant to Gold-
ing.17 The precedent of our Supreme Court compels a
different conclusion.
Three decades ago, the Supreme Court suggested that
the extraordinary review afforded under State v. Evans,
165 Conn. 61, 327 A.2d 576 (1973), the precursor to
Golding, did not apply to habeas appeals. See Safford
v. Warden, 223 Conn. 180, 190 n.12, 612 A.2d 1161 (1992).
In light of that guidance, this court subsequently held
that ‘‘Golding review is not available for unpreserved
claims of [constitutional] error raised for the first time
in a habeas appeal.’’ Hunnicutt v. Commissioner of
Correction, 83 Conn. App. 199, 202, 848 A.2d 1229, cert.
denied, 270 Conn. 914, 853 A.2d 527 (2004); see also
Cupe v. Commissioner of Correction, 68 Conn. App.
262, 271 n.12, 791 A.2d 614 (‘‘Golding does not grant
. . . authority for collateral review and is . . . inappli-
cable to habeas proceedings’’), cert. denied, 260 Conn.
908, 795 A.2d 544 (2002).
In Mozell v. Commissioner of Correction, 291 Conn.
62, 67, 967 A.2d 41 (2009), the petitioner sought review
of an unpreserved claim that the habeas court had vio-
lated his state and federal due process rights by declar-
ing a mistrial. Because that claim was inadequately
briefed, the Supreme Court declined to reach its merits.
See id., 69. At the same time, the court clarified in a
footnote that Golding review is not categorically
unavailable in habeas appeals but, rather, is ‘‘applica-
ble’’ when ‘‘the petitioner challenges the actions of the
habeas court itself . . . .’’ Id., 67 n.2.
The Supreme Court expounded on that precept six
years later. In Moye v. Commissioner of Correction, 316
Conn. 779, 780, 114 A.3d 925 (2015), the court framed
the issue before it as ‘‘the extent to which unpreserved
constitutional claims may be reviewed on appeal in
habeas actions.’’ On appeal, the petitioner had argued
that ‘‘Golding review is available in a habeas appeal for
any claim that would have been cognizable in the
habeas court.’’ (Emphasis added.) Id., 783. In rejecting
that contention, the court first discussed Mozell, in
which it previously had recognized that Golding review
could be applied to habeas appeals in limited circum-
stances. See id., 786–87. The court then explained that
‘‘Golding review [was] not available for the petitioner’s
unpreserved . . . claim because that claim does not
arise out of the actions or omissions of the habeas court
itself. . . . Golding review is available in a habeas
appeal only for claims that challenge the actions of the
habeas court.’’ Id., 787.
The court further held that resort to Golding is
unavailing when a petitioner has neither distinctly
alleged the constitutional claim in the petition for a writ
of habeas corpus nor pursued such a claim at the habeas
trial. As the court stated: ‘‘The petitioner asks this court
to sanction Golding review under different circum-
stances. Specifically, the petitioner seeks Golding
review of a claim that he raised for the first time in his
habeas appeal but could have raised in his habeas
petition. If we were to allow Golding review under
such circumstances, a habeas petitioner would be free
to raise virtually any constitutional claim on appeal,
regardless of what claims he raised in his habeas peti-
tion or what occurred at his habeas trial.’’ (Emphasis
in original.) Id., 789; see also Eubanks v. Commissioner
of Correction, supra, 329 Conn. 604 n.8 (Golding review
of unpreserved constitutional claim foreclosed in light
of Moye).
As we already have noted, the petitioner did not dis-
tinctly raise a state constitutional claim before the
habeas court. There was no mention of the Connecticut
constitution in his motion for immediate release or the
May 29, 2020 hearing. The petitioner nonetheless con-
tends that, because he alleged that his motion for imme-
diate release was ‘‘made in accordance with his consti-
tutional rights,’’ the court should have (1) construed
his motion to include a claim that the Connecticut con-
stitution provides greater protection than the federal
constitution with respect to the confinement of inmates
during a global pandemic in light of contemporary stan-
dards of decency and (2) decided the merits of that
novel constitutional claim.18 We disagree. Under our
rules of practice and established precedent, the judicial
authority is under no obligation to decide any question
of law that has not been distinctly stated to the judicial
authority. See Practice Book § 5-2; Eubanks v. Commis-
sioner of Correction, supra, 329 Conn. 587, 600 (Appel-
late Court improperly reached merits of unpreserved
claim that was not addressed by habeas court because
petitioner ‘‘presented no evidence and made no argu-
ment to the habeas court that would have alerted either
that court or opposing counsel’’ of distinct question of
law and habeas court’s ‘‘decision makes clear that . . .
the court had not been placed on notice that the peti-
tioner was making that argument’’); Swerdloff v. AEG
Design/Build, Inc., supra, 209 Conn. 188 (claim briefly
suggested was not distinctly raised); Harris v. Commis-
sioner of Correction, 205 Conn. App. 837, 855 n.14, 257
A.3d 343 (court not obligated to decide question of law
that petitioner failed to distinctly raise), cert. denied,
339 Conn. 905, 260 A.3d 484 (2021); Solek v. Commis-
sioner of Correction, 107 Conn. App. 473, 480, 946 A.2d
239 (it is not responsibility of habeas judge, without
some specific request from petitioner, to search record
in order to find some basis for relief for petitioner), cert.
denied, 289 Conn. 902, 957 A.2d 873 (2008); Alexander
v. Commissioner of Correction, 103 Conn. App. 629,
639–40 n.4, 930 A.2d 58 (because petitioner failed to
raise issue before habeas court, judicial authority was
under no obligation to decide question), cert. denied,
284 Conn. 939, 937 A.2d 695 (2007).
In rejecting the petitioner’s claim that Golding review
is ‘‘available in a habeas appeal for any claim that would
have been cognizable in the habeas court’’; Moye v.
Commissioner of Correction, supra, 316 Conn. 783; the
Supreme Court expressly disavowed the approach pro-
posed by the petitioner here. As it stated: ‘‘[T]he peti-
tioner seeks Golding review of a claim that he raised
for the first time in his habeas appeal but could have
raised in his habeas petition. If we were to allow
Golding review under such circumstances, a habeas
petitioner would be free to raise virtually any constitu-
tional claim on appeal, regardless of what claims he
raised in his habeas petition or what occurred at his
habeas trial. Such a rule would . . . undermine the
principle that a habeas petitioner is limited to the allega-
tions in his petition, which are intended to put the
[respondent] on notice of the claims made, to limit the
issues to be decided, and to prevent surprise.’’ (Empha-
sis in original; internal quotation marks omitted.) Id.,
789.
Bound by that precedent, we conclude that Golding
review is unwarranted in the present case. Our Supreme
Court ‘‘repeatedly has underscored that Golding is a
narrow exception to the general rule that an appellate
court will not entertain a claim that has not been raised
in the trial court.’’ (Emphasis in original; internal quota-
tion marks omitted.) In re Azareon Y., 309 Conn. 626,
635, 72 A.3d 1074 (2013); see also State v. Elson, 311
Conn. 726, 764, 91 A.3d 862 (2014) (describing Golding
as doctrine ‘‘of extraordinary review’’). In Moye, our
Supreme Court carefully circumscribed the limited
‘‘extent to which unpreserved constitutional claims may
be reviewed on appeal in habeas actions.’’ Moye v. Com-
missioner of Correction, supra, 316 Conn. 780. The
court rejected the petitioner’s claim that ‘‘Golding
review is more widely available in habeas appeals than
just for claims that challenge the actions of the habeas
court itself’’; id., 788; and declined to permit a petitioner
‘‘to raise virtually any constitutional claim on appeal,
regardless of what claims he raised in his habeas peti-
tion or what occurred at his habeas trial.’’ Id., 789. The
Supreme Court made clear that, in the habeas context,
Golding review is unavailable for claims that ‘‘could
have [been] raised in [the] habeas petition.’’ (Emphasis
omitted.) Id. It further instructed that ‘‘Golding review
is available in a habeas appeal only for claims that
challenge the actions of the habeas court.’’ Id., 787; see
also id., 788 (Golding review is ‘‘plainly limited . . . to
claims regarding the actions of the habeas court itself
. . . a far narrower category of claims than all claims
that would have been cognizable in the habeas court’’
(citation omitted; internal quotation marks omitted)).19
Applying those precepts to the facts of that case, the
court emphasized that ‘‘the habeas court did not, and
could not, take any action with respect to that claim
because the petitioner never presented it to the habeas
court. The habeas court is not responsible for the peti-
tioner’s own failure to present his [constitutional
claim].’’ (Emphasis in original.) Id.
In this case, the petitioner could have raised a state
constitutional claim in his motion for immediate
release, but did not. The petitioner also could have
invoked the protections of our state constitution at the
May 29, 2020 hearing, but did not. As a result, the habeas
court was under no obligation to act on such a claim.
See Practice Book § 5-2. Moreover, because the habeas
court never was presented with a state constitutional
claim, it necessarily could not take any action with
respect thereto.20 The precedent of our Supreme Court
instructs that Golding review is unavailable in such
circumstances.21
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the petitioner pursued his motion for immediate release in a
self-represented capacity before the habeas court, he is represented by
counsel in this appeal.
2
The record contains the declaration of Warden Antonio Santiago, in
which he averred that the petitioner’s ‘‘current release date is May 4, 2024
and [his] parole eligibility date is April 22, 2023 . . . .’’
3
A copy of the petitioner’s medical records was admitted into evidence
at a hearing on the petitioner’s motion that took place on May 29, 2020.
4
Those declarations were made under penalty of perjury pursuant to 28
U.S.C. § 1746.
5
Due to the COVID-19 pandemic, the Judicial Branch began holding
remote hearings using the Microsoft Teams platform. For more information,
see State of Connecticut, Judicial Branch, Connecticut Guide to Remote
Hearings for Attorneys and Self-Represented Parties (November 23, 2021),
p. 5, available at https://jud.ct.gov/HomePDFs/ConnecticutGuideRemoteH-
earings.pdf (last visited March 31, 2022) (‘‘Microsoft Teams is a collaborative
meeting app with video, audio, and screen sharing features’’).
6
During the hearing, the petitioner challenged the substance of those
sworn declarations. In particular, the petitioner disputed averments regard-
ing his disciplinary history while incarcerated, the medical care provided by
the department, and the sanitary measures implemented by the department.
7
During his testimony, the petitioner amended his prayer for relief to
include, as an alternative to his immediate release, a request ‘‘to be placed
on single cell status’’ while incarcerated.
8
Although the present appeal could be viewed as interlocutory in nature,
as the petitioner’s habeas corpus action remains pending, the habeas court
treated the emergency motion for immediate release as an independent
habeas petition and, thus, as conceded by the respondent, the court’s ruling
on the motion effectively terminated a separate and distinct proceeding.
Accordingly, the court’s ruling on the petitioner’s motion constitutes an
appealable final judgment. See, e.g., State v. Curcio, 191 Conn. 27, 31, 463
9
See, e.g., Swain v. Junior, 961 F.3d 1276, 1280 (11th Cir. 2020) (‘‘[b]ecause
incarcerated inmates are necessarily confined in close quarters, a contagious
virus represents a grave health risk to them—and graver still to those who
have underlying conditions that render them medically vulnerable’’); Wilson
v. Williams, supra, 961 F.3d 833 (‘‘The COVID-19 virus is highly infectious
and can be transmitted easily from person to person. . . . If contracted,
COVID-19 can cause severe complications or death.’’).
10
In his appellate reply brief, the petitioner claims that our consideration
of those declarations is improper, as they were not formally admitted as
full exhibits at the remote hearing conducted on the Microsoft Teams plat-
form; see footnote 5 of this opinion; and, thus, are not part of the record
for our review. On the particular facts of this case, we do not agree. This
case involves an emergency motion for immediate release, in which the
petitioner alleged that his life was at risk due to the department’s initial
response to the COVID-19 outbreak. In light of the gravity of the petitioner’s
claim, that motion was treated with the utmost urgency and, despite the
myriad challenges presented in the early days of the pandemic, the respon-
dent filed his objection, an expedited remote hearing was held, and the
court issued its decision two weeks from the filing of the petitioner’s motion.
In accordance with Practice Book § 23-68 (d) (‘‘prior to any proceeding
in which a person appears by means of an interactive audiovisual device,
copies of all documents which may be offered at the proceeding shall
be provided to all counsel and self-represented parties in advance of the
proceeding’’), the respondent provided copies of the sworn declarations to
the petitioner prior to the remote hearing. Moreover, at the outset of that
hearing, the petitioner confirmed that he had received copies of those docu-
ments. The petitioner then proceeded to dispute the substance of those
declarations during his testimony. See footnote 6 of this opinion. When the
petitioner first expressed his disagreement with the substance of one of
those declarations early in the hearing, the court asked the respondent if
that declaration ‘‘was part of your recent filing,’’ and counsel replied, ‘‘[y]es,
it is, Your Honor. Just that—to make the—to verify for the court, it should
be exhibit A . . . .’’ In so doing, the respondent indicated that those declara-
tions were evidence for the court to consider. The petitioner did not object
to consideration of them by the court.
The court likewise referenced those declarations during the hearing. For
example, during Freston’s testimony, the court stated: ‘‘I know we have the
. . . affidavit of [Barone, but] what, if you know, is being done to separate
. . . positive from negative inmates?’’ The respondent’s counsel similarly
noted, without any objection from the petitioner, that the petitioner had
not established deliberate indifference in light of Freston’s testimony and
‘‘the declaration from [Barone] as to exactly the measures that . . . have
been taken and are being taken in regards to COVID-19.’’
In its memorandum of decision, the court expressly stated that its decision
was predicated on its ‘‘review of the testimony and exhibits . . . .’’ Its
use of the plural ‘‘exhibits’’ indicates that the court considered the sworn
declarations to be materials that properly were before the court, as the only
other exhibit introduced at the hearing was the petitioner’s medical file.
Those sworn declarations were part of the pleadings in this emergency
motion for immediate release, were provided to the petitioner prior to the
remote hearing, were the subject of discussion by all parties during that
hearing, and were represented to be exhibits by the respondent’s counsel.
In light of the foregoing, we conclude that the sworn statements properly
are before us as a part of the habeas court record.
11
Wilson v. Williams, supra, 961 F.3d 829, was decided one week prior
to the habeas court’s issuance of its memorandum of decision in the pres-
ent case.
12
The respondent in the present case implemented similar measures as
part of its response to the COVID-19 outbreak in Connecticut.
13
Several state courts have reached the same conclusion. See, e.g., Matter
of Writ of Habeas Corpus, 168 Idaho 411, 422–25, 483 P.3d 954 (2020)
(rejecting eighth amendment deliberate indifference claim predicated on
response of prison officials to COVID-19 outbreak); Committee for Public
Counsel Services v. Barnstable County Sheriff’s Office, 488 Mass. 460, 474–
77, 173 N.E.3d 1102 (2021) (same); People ex rel. Figueroa v. Keyser, 193
App. Div. 3d 1148, 145 N.Y.S.3d 663 (same), leave to appeal denied, 37 N.Y.3d
905, 173 N.E.3d 428, 151 N.Y.S.3d 380 (2021); Colvin v. Inslee, 195 Wn. 2d
879, 899–901, 467 P.3d 953 (2020) (same).
14
Our Supreme Court ‘‘consistently [has] held that reasonableness is a
question of fact for the trier to determine based on all of the circumstances.’’
Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 580, 657 A.2d
212 (1995). Recklessness likewise presents a question of fact. See Williams
v. Housing Authority, 327 Conn. 338, 360–61, 174 A.3d 137 (2017); Frillici
v. Westport, 264 Conn. 266, 277, 823 A.2d 1172 (2003).
15
Article first, § 8, of the Connecticut constitution provides in relevant
part: ‘‘No person shall be . . . deprived of life, liberty or property without
due process of law . . . .’’
Article first, § 9, of the Connecticut constitution provides: ‘‘No person
shall be arrested, detained or punished, except in cases clearly warranted
by law.’’
‘‘It is . . . well established that the constitution of Connecticut prohibits
cruel and unusual punishments under the auspices of the dual due process
provisions contained in article first, §§ 8 and 9. . . . Although neither provi-
sion of the state constitution expressly references cruel or unusual punish-
ments, it is settled constitutional doctrine that both of our due process
clauses prohibit governmental infliction of cruel and unusual punishments.’’
(Internal quotation marks omitted.) State v. Rivera, 177 Conn. App. 242,
253, 172 A.3d 260 (2017), cert. denied, 333 Conn. 937, 218 A.3d 1046 (2019).
16
In his motion for immediate release, the petitioner alleged in relevant
part: ‘‘If [the petitioner] is not release[d], and does get infected with COVID-
19, [his] chances of surviving the virus is 9 [percent]. Simply put, [the
petitioner] will die. . . . There is no practical difference in releasing [the
petitioner] now and/or a year or two from now. Further, not only is [the
petitioner’s] health unnecessarily compromised by continued incarceration,
but lowering the inmate population in general keeps other inmates and
[department] staff safer.’’
17
Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40, as modified by In re
Yasiel R., supra, 317 Conn. 781.
18
In his appellate reply brief, the petitioner characterizes his state constitu-
tional claim as an issue of first impression in Connecticut.
19
Although the precedent of our Supreme Court limits the applicability
of Golding review in the habeas context, we note that a reviewing court
retains the authority, pursuant to its supervisory powers over the administra-
tion of justice; see Blumberg Associates Worldwide, Inc. v. Brown & Brown
of Connecticut, Inc., 311 Conn. 123, 150, 84 A.3d 840 (2014); to review
unpreserved claims in a habeas appeal. See, e.g., Richardson v. Commis-
sioner of Correction, 298 Conn. 690, 701 n.11, 6 A.3d 52 (2010) (recognizing
supervisory authority to review unpreserved claim but declining to exercise
that ‘‘extraordinary power’’); Saunders v. Commissioner of Correction, 157
Conn. App. 257, 264 n.7, 116 A.3d 338 (2015) (exercising supervisory power
to review unpreserved claim).
20
If the petitioner had invoked the protections of our state constitution
in either his motion or at the May 29, 2020 hearing and the court thereafter
refused to consider them in its decision, the petitioner would be entitled
to appellate review of that inaction by the court. See Moye v. Commissioner
of Correction, supra, 316 Conn. 787–89. Moreover, as a hypothetical example,
if the court had violated the petitioner’s right to due process during that
hearing, the petitioner would be entitled to Golding review irrespective of
whether he memorialized his concern at the hearing, as such a claim pertains
to the actions of the habeas court. See Mozell v. Commissioner of Correc-
tion, supra, 291 Conn. 67 n.2 (concluding that Golding review is applicable
to petitioner’s claim that habeas court’s action in declaring mistrial violated
due process rights).
21
Even if the petitioner’s claim was properly before us, the arguments set
forth in his brief suggest that his claim lacks merit. Nothing in the petitioner’s
appellate briefs and oral argument supports the proposition that the Connect-
icut constitution provides greater protection from cruel and unusual punish-
ments than its federal counterpart with respect to the confinement of inmates
during the COVID-19 pandemic.