Howard v. Comm'r of Corr.

217 Conn.App. 119

287 A.3d 602

Isschar HOWARD

v.COMMISSIONER OF CORRECTION

AC 42824

Appellate Court of Connecticut.

Argued September 16, 2021

Officially Released December 27, 2022

Mary Boehlert, assigned counsel, for the appellant (petitioner).

Thadius L. Bochain, deputy assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, former state's attorney, Laurie N. Feldman, assistant state's attorney, John P. Doyle, Jr., state's attorney, and Adrienne Russo, senior assistant state's attorney, for the appellee (respondent).

Prescott, Alexander and Suarez, Js.

SUAREZ, J.

The petitioner, Isschar Howard, appeals, following the denial of his petition for certification to appeal, from the judgment of the habeas court dismissing his petition for a writ of habeas corpus pursuant to Practice Book § 23-29.¹ The petitioner argues that the court abused its discretion in denying certification to appeal because the court improperly (1) dismissed the petition for a writ of habeas corpus sua sponte under § 23-29 without first providing him fair notice and an opportunity to be heard with respect to the proposed basis for dismissal and (2) concluded that it lacked jurisdiction over the petition for a writ of habeas corpus. We agree with the petitioner that the court abused its discretion in denying his petition for certification to appeal. Furthermore, in light of our Supreme Court's recent decisions in Brown v. Commissioner of Correction , 345 Conn. 1, 282 A.3d 959 (2022), and in Brown ’s companion case, Boria v. Commissioner of Correction , 345 Conn. 39, 282 A.3d 433 (2022), we agree with the petitioner that the habeas court committed error in dismissing the habeas petition pursuant to § 23-29 without first providing him with prior notice of its intention to dismiss, on its own motion, the habeas petition and an opportunity to submit a brief or a written response addressing the proposed basis for dismissal. Accordingly, we reverse the judgment of the habeas court.²

The following procedural history is relevant to this appeal. Following a jury trial, the petitioner was convicted of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (8), two counts of murder in violation of General Statutes § 53a-54a (a), criminal possession of a firearm in violation of General Statutes (Rev. to 1999) § 53a-217 (a), carrying a pistol or revolver without a permit in violation of General Statutes (Rev. to 1999) § 29-35, and possession of narcotics in violation of General Statutes (Rev. to 1999) § 21a-279 (a). The trial court, Harper, J. , sentenced the petitioner to a total effective term of life in prison without the possibility of release, plus seventeen years of imprisonment. In 2005, following a direct appeal, this court affirmed the judgment of conviction. State v. Howard , 88 Conn. App. 404, 870 A.2d 8, cert. denied, 275 Conn. 917, 883 A.2d 1250 (2005).

On October 14, 2016, the petitioner, who was self-represented at the time, filed a petition for a writ of habeas corpus on a state supplied form.³ On the same day, the petitioner filed a request for appointment of counsel and an application for waiver of fees, which the court granted on October 31, 2016. On October 31, 2016, the court also assigned a docket number to the habeas action and, in response to the petitioner's request for appointment of counsel, referred the petitioner to the Office of the Chief Public Defender for an investigation into whether he was indigent. On December 2, 2016, the State's Attorney's Office for the New Haven judicial district appeared on behalf of the respondent, the Commissioner of Correction. On December 6, 2016, the law firm of Zingaro & Cretella, LLC, appeared on behalf of the petitioner as assigned counsel.

No further activity is reflected on the habeas court docket until September 7, 2018, when the court, Newson, J. , issued a scheduling order. The order, bearing the signatures of counsel for the petitioner and the respondent, provided that an amended petition was to be filed, if at all, by January 1, 2020, that the case was to be claimed to the trial list on January 20, 2021, and that a certificate of closed pleadings was to be filed no later than March 30, 2020.

On January 24, 2019, counsel for the petitioner, Zingaro & Cretella, LLC, filed a motion to withdraw appearance. The attorney who submitted the motion, Eugene J. Zingaro, represented that he was unable to devote the time necessary to represent the petitioner in this matter or, for that matter, to manage any other "assigned counsel appointments." Zingaro requested that the court permit the withdrawal in this case, and he requested that "new assigned counsel be appointed [for the petitioner] by the Chief Public Defender's office."

Nothing in the record reflects that the court either considered or ruled on the motion to withdraw appearance. Instead, by order dated February 1, 2019, the court, Newson, J. , sua sponte dismissed the action "pursuant to Practice Book § 23-39."⁴ Prior to dismissing the action, the court did not notify the parties that it was considering dismissing the action and did not provide the petitioner an opportunity to respond to the proposed basis for dismissal. The court's order stated: "Upon review, the petition is dismissed for lack of jurisdiction. More specifically, the petition does not challenge the conviction but alleged constitutional violations that preceded trial. As such, giving the [petition] the most reasonable reading possible, it fails to challenge the conviction or the conditions of confinement."

On March 5, 2019, pursuant to General Statutes § 52-470 (g), the petitioner, in a self-represented capacity, filed a petition for certification to appeal from the court's ruling.⁵ The petitioner also filed an application for waiver of fees, costs and expenses and appointment of counsel on appeal. In the portion of the petition for certification in which the petitioner set forth the grounds for which certification was being sought, the petitioner incorporated by reference the grounds set forth in his application for waiver of fees, costs and expenses and appointment of counsel on appeal. There, the petitioner set forth those grounds as follows: "Dissatisfied with decision." On March 8, 2019, the court denied the petition for certification to appeal. On March 27, 2019, the court granted the petitioner's application for waiver of fees, costs and expenses and appointment of counsel on appeal. This appeal followed.

On September 16, 2021, this court heard oral argument in this appeal. On February 22, 2022, this court, sua sponte, stayed the appeal pending the final resolution of the appeals in Brown and Boria , which involved similar claims and, at that time, were pending before our Supreme Court. After our Supreme Court officially released its decisions in Brown and Boria , we ordered the parties to file supplemental briefs "addressing the effect, if any, of Brown v. Commissioner of Correction , [supra, 345 Conn. 1, 282 A.3d 959 ], and Boria v. Commissioner of Correction , [supra, 345 Conn. 39, 282 A.3d 433 ], on this appeal, including whether, if the judgment of dismissal is reversed, the habeas court should be directed on remand ‘to first determine whether any grounds exist for it to decline to issue the writ pursuant to Practice Book § 23-24.’ Brown v. Commissioner of Correction , supra, at 17 and n.11, 282 A.3d 959 ; Boria v. Commissioner of Correction , supra, at 43, 282 A.3d 433." The parties have complied with our supplemental briefing order.

In this appeal, we focus on the dispositive claim advanced by the petitioner, that the court improperly dismissed the petition for a writ of habeas corpus sua sponte under Practice Book § 23-29 without first providing him fair notice and an opportunity to be heard with respect to the proposed basis for dismissal. As a threshold consideration, however, we must address the issue of whether the court abused its discretion in denying the petition for certification to appeal. "Faced with a habeas court's denial of a petition 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. ... To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling ... [and] [r]eversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ...

"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 petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... adopted by this court for determining the propriety of the habeas court's denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed." (Citation omitted; internal quotation ...