Jobe v. Comm'r of Corr.

334 Conn. 636

224 A.3d 147

Momodou Lamin JOBE

v.COMMISSIONER OF CORRECTION

SC 20124

Supreme Court of Connecticut.

Argued October 24, 2019

Officially released February 18, 2020

Vishal K. Garg, assigned counsel, West Hartford, for the appellant (petitioner).

Matthew A. Weiner, assistant state's attorney, with whom, on the brief, was Matthew C. Gedansky, state's attorney, for the appellee (respondent).

Temmy Ann Miller filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

ECKER, J.

The petitioner, Momodou Lamin Jobe, appeals from the judgment of the Appellate Court affirming the judgment of the habeas court, which dismissed his petition for a writ of habeas corpus for lack of jurisdiction. On appeal, the petitioner contends that the Appellate Court (1) improperly declined to review his response, contained in his reply brief, to the alternative ground for affirmance advanced by the respondent, the Commissioner of Correction, and (2) incorrectly concluded that his federal immigration detention did not satisfy the "custody" requirement of General Statutes § 52-466 (a), as amended in 2006. See Public Acts 2006, No. 06-152, § 5 (P.A. 06-152). We agree with the petitioner's first claim but disagree with his second claim and, therefore, affirm the judgment of the Appellate Court.

The record reveals the following undisputed facts and procedural history. On September 10, 2009, the petitioner, who is not a citizen of the United States, was arrested and charged with illegal possession of less than four ounces of marijuana in violation of General Statutes (Rev. to 2009) § 21a-279 (c) and illegal sale of a record or tape without identification marks in violation of General Statutes § 53-142c. The petitioner pleaded guilty and was sentenced on January 5, 2010, to a total effective sentence of eleven months of imprisonment, execution suspended, and two years of conditional discharge.

At some point after his release from custody, the petitioner traveled outside of the United States. When he returned, he was denied reentry and ordered removed on July 13, 2016, on the basis of the 2010 possession of marijuana conviction. See Jobe v. Whitaker , 758 Fed. Appx. 144, 146 (2d Cir. 2018), petition for cert. filed, U.S.L.W. (U.S. April 19, 2019) (No. 18-1329). In August, 2016, the petitioner filed a pro se petition for a writ of habeas corpus challenging his 2010 Connecticut conviction. In his petition, the petitioner alleged that his guilty plea was involuntary because his "lawyer told [him] to plead guilty" and that his conviction was unconstitutional because he received ineffective assistance of counsel. Specifically, the petitioner averred that the "Vernon police arrested [him] with less than [thirty] grams of marijuana and when I went to see [an] immigration judge on July 13, 2016, they said that I had [four] ounces of marijuana and I didn't. When I pleaded [guilty] for possession of marijuana, they did not tell me the amount of marijuana I had. And I know for [a] fact that I had less than a[n] ounce. Therefore, I am asking the court to please let me withdraw my guilty plea." The petitioner also filed a request for the appointment of counsel and an application for a waiver of fees, which the habeas court granted.

On September 20, 2016, before counsel had entered an appearance on behalf of either the petitioner or the respondent, the habeas court sua sponte dismissed the petition pursuant to Practice Book § 23-29 (1) on the ground that "[t]he challenged conviction is a pre- Padilla plea and sentencing, and the protections afforded in Padilla v. Kentucky , [559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) ] do not apply retroactively. Chaidez v. [United States , 568 U.S. 342, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013) ]." The petitioner filed a petition for certification to appeal, which the habeas court granted.

On appeal to the Appellate Court, the petitioner argued that the habeas court improperly dismissed his petition because "the nonretroactivity of Padilla had no bearing on the issue of whether the habeas court had jurisdiction to entertain the ... petition for a writ of habeas corpus." After the petitioner filed his initial brief, the respondent filed an amended preliminary statement of the issues in which the respondent raised, for the first time, the following alternative ground for affirmance of the habeas court's judgment: "Whether the habeas court had subject matter jurisdiction over the petitioner's petition for a writ of habeas corpus in light of the fact that the petitioner did not plead facts supporting a claim that, at the time he filed his habeas petition, he was in custody [on] the conviction that his habeas petition challenges." In its brief, the respondent agreed with the petitioner that the habeas court improperly dismissed the petition on the basis of the nonretroactive application of Padilla v. Kentucky but argued that the judgment of dismissal should be affirmed on the alternative ground that the conviction challenged in the petition had expired and the collateral consequences of that conviction were insufficient to satisfy the jurisdictional custody requirement. The petitioner filed a reply brief addressing the custody issue that had just been raised by the respondent for the first time. In his reply brief, the petitioner acknowledged that the habeas court lacked jurisdiction over his petition because, under current law, his federal immigration detention was insufficient to establish that he was "in custody, as that term is defined by ... § 52-466," but he argued that the "court should adopt an expansive definition of the word ‘custody’ that permits individuals in the petitioner's situation to pursue a petition for a writ of habeas corpus." At oral argument before the Appellate Court, the petitioner's counsel "conceded that the [habeas] court, based on the face of the petition ... probably could have chosen to dismiss the petition" for lack of jurisdiction and that the Appellate Court lacked the authority to overrule the binding precedent of this court holding that the petitioner's federal immigration detention was insufficient to satisfy the custody requirement of § 52-466, but he nonetheless asked the Appellate Court to "include a footnote or a mention of the fact that this issue was raised and that it could not be addressed" due to that binding precedent.

The Appellate Court affirmed the judgment of the habeas court on the alternative ground advanced by the respondent, namely, that "[t]he petitioner, as his counsel conceded, was not in custody pursuant to § 52-466 (a) (1) at the time he filed his petition for a writ of habeas corpus" and that "[t]he habeas court, therefore, lacked jurisdiction to adjudicate the merits of the petition ...."¹ Jobe v. Commissioner of Correction , 181 Conn. App. 236, 239, 186 A.3d 1219 (2018). Although the petitioner had asked the Appellate Court "to adopt an expansive definition of the word custody " that includes individuals in federal immigration detention as a result of an expired state conviction, the Appellate Court declined to review the petitioner's argument because it was "raised for the first time in a reply brief." (Emphasis in original.) Id., at 239 n.5, 186 A.3d 1219. We subsequently granted the petitioner's petition for certification to appeal, limited to determining (1) whether "the Appellate Court properly decline[d] to review the petitioner's claim that the definition of ‘custody’ in ... § 52-466 should include individuals in the petitioner's circumstances, when the first opportunity to raise that claim was in the petitioner's reply brief because the petitioner had no notice that the respondent would raise an unpreserved alternative ground to affirm the habeas court's judgment," and (2) whether " § 52-466 include[s] habeas petitioners whose sentences have been fully served, who are in the custody of federal immigration authorities, and who could not have been aware of the need to challenge the constitutionality of their convictions until after serving their sentences ...." Jobe v. Commissioner of Correction , 329 Conn. 906, 185 A.3d 594 (2018).

I

We first address whether the Appellate Court properly declined to review the petitioner's argument, made for the first time in his reply brief, that the custody requirement of § 52-466 should be construed expansively to include individuals, like the petitioner, who are in federal immigration detention pending deportation as a consequence of an expired state conviction. "It is well settled that [o]ur case law and rules of practice generally limit [an appellate] court's review to issues that are distinctly raised at trial," and "[o]nly in [the] most exceptional circumstances can and will [an appellate] court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court." (Internal quotation marks omitted.) Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc. , 311 Conn. 123, 142, 84 A.3d 840 (2014). One of those "exceptional circumstances" is a claim that the trial court lacked subject matter jurisdiction, "which the reviewing court not only can but is obligated to exercise its power to review ...." Id., at 149, 84 A.3d 840. "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction , 280 Conn. 514, 533, 911 A.2d 712 (2006). "[T]he question of subject matter jurisdiction is a question of law ... and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case.... We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question...