Johnson v. Comm'r of Corr.

208 Conn.App. 204

264 A.3d 121

Anthony JOHNSON

v.COMMISSIONER OF CORRECTION

AC 42994

Appellate Court of Connecticut.

Argued March 4, 2021

Officially released October 12, 2021

Deborah G. Stevenson, assigned counsel, for the appellant (petitioner).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, was Joseph T. Corradino, state's attorney, for the appellee (respondent).

Prescott, Elgo and DiPentima, Js.

ELGO, J.

The petitioner, Anthony Johnson, appeals from the judgment of the habeas court declining to issue a writ of habeas corpus pursuant to Practice Book § 23-24. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and declining to issue a writ of habeas corpus. The respondent, the Commissioner of Correction, concedes that the court abused its discretion in denying his petition for certification and declining to issue the writ for the reason stated by the court, but nonetheless argues that we should affirm the judgment because the court lacked jurisdiction over the petition. We agree with the respondent and, accordingly, affirm the judgment of the habeas court.

The following facts and procedural history are relevant to this appeal. The petitioner was involved in an altercation that occurred on December 7, 2008. He thereafter was arrested and charged with murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On December 2, 2009, the petitioner pleaded guilty to one count of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a. On February 26, 2010, the court sentenced the petitioner to a term of thirty years of incarceration, execution suspended after eighteen years, with five years of probation.

On February 25, 2019, the petitioner filed a petition as a self-represented party for a writ of habeas corpus (first petition), raising an ex post facto challenge to the application of the risk reduction earned credit program that was established in 2011, by No. 11-51 of the 2011 Public Acts (P.A. 11-51), as codified in General Statutes (Supp. 2012) §§ 18-98e and 54-125a, which was eliminated in 2013, following the enactment of No. 13-3, § 59, of the 2013 Public Acts (P.A. 13-3).¹ In that petition, the petitioner broadly alleged that application of P.A. 13-3 to his sentence violated the ex post facto clause of the United States constitution.²

On March 4, 2019, the habeas court, Bhatt, J. , declined to issue the writ pursuant to Practice Book § 23-24 (a) (1). In its written order, the court concluded that it lacked subject matter jurisdiction over the first petition because the date of the offense underlying the petitioner's conviction was December 7, 2008, and thus predated the enactment of the risk reduction earned credit program established by P.A. 11-51. In so doing, the court relied on Perez v. Commissioner of Correction , 326 Conn. 357, 373–74, 163 A.3d 597 (2017), Boria v. Commissioner of Correction , 186 Conn. App. 332, 199 A.3d 1127 (2018), cert. granted, 335 Conn. 901, 225 A.3d 685 (2020), and Holliday v. Commissioner of Correction , 184 Conn. App. 228, 194 A.3d 867 (2018), cert. granted, 335 Conn. 901, 225 A.3d 960 (2020), noting that "[o]ur Supreme Court and Appellate Court have repeatedly held that this court lacks jurisdiction over claims involving an offense date that is prior to the enactment of the [risk reduction earned credit] statute," including ex post facto challenges. The court then concluded its order with the following statement: "The holdings of those [appellate] cases make clear that this court has no jurisdiction to consider the claims raised in the [first petition]. If, however, the petitioner is claiming that credits that have already been earned and applied in the past have been unconstitutionally forfeited by the Department of Correction [department], as opposed to [the department's] failure to allow the petitioner to continue to earn and apply new credits to his sentence, then the petitioner is invited to refile the petition."³

Approximately two weeks later, the petitioner filed a second petition for a writ of habeas corpus (second petition), in which he amended his first petition as suggested by the habeas court. Specifically, the petitioner alleged in relevant part that the department had "unconstitutionally forfeited risk reduction earned credit ... from the petitioner [that] have already been earned and applied ...." The petitioner further alleged that "the retroactive application of [P.A.] 13-3 violat[es] the ex post facto clause" by "[w]ithdrawing any credits that [were] earned toward the reduction of [his parole eligibility date]." By way of relief, the petitioner asked the court to "reinstate any lawfully earned [risk reduction earned credit] that was forfeited unconstitutionally with the retroactive application of P.A. 13-3." On March 25, 2019, the habeas court, Newson, J. , declined to issue the writ "because [the second petition] is identical to [the first petition], which was declined ... on March 4, 2019."⁴ The petitioner then filed a petition for certification to appeal, which the court denied. From that judgment, the petitioner appealed to this court.

The petitioner subsequently filed a motion requesting that the habeas court file a memorandum of decision pursuant to Practice Book § 64-1. The court denied that motion on August 12, 2019, stating in relevant part: "The basis for the court's [decision to] decline [to issue the writ] pursuant to Practice Book § 23-24 [was] on the ground that the [second] petition was identical to [the first petition] that had been declined approximately two weeks prior pursuant to Practice Book § 23-24 ... where [the habeas court] did provide the petitioner with an order including legal reasoning, does not require further explanation." (Citation omitted.)

In response, the petitioner filed a motion for articulation, in which he asked the habeas court to articulate the basis of its decision to deny his motion seeking a memorandum of decision, its decision to decline to issue the writ, and its denial of his petition for certification to appeal. The court summarily denied that motion the next day. On September 3, 2019, the petitioner filed an "amended motion for articulation," again seeking articulation of the habeas court's decision declining to issue a writ of habeas corpus. The court denied the amended motion on September 16, 2019, stating that "[t]he basis for the court's decision was made clear in its order and is not in need of further articulation." On September 26, 2019, the petitioner filed a motion for review of the habeas court's denial of his amended motion. On December 4, 2019, this court denied review of that motion.

On appeal, the petitioner argues that the habeas court abused its discretion when it denied the petition for certification to appeal because it improperly declined to issue the writ on the ground that the second petition was "identical" to the first one. The respondent concedes that the court abused its discretion in both denying his petition for certification to appeal and declining to issue the writ on that ground.⁵ The respondent nevertheless argues, as an alternative ground of affirmance, that we should affirm the judgment of the habeas court because it lacked jurisdiction over the second petition. See Practice Book § 23-24 (a) (1). We agree with the respondent. ⁶

I

We first consider the propriety of the stated basis of the habeas court's decision to decline to issue the writ. In its March 25, 2019 order, the court declined to issue the writ "because [the second petition] is identical to [the first petition] ...." On appeal, the petitioner contends that the court abused its discretion in so doing, as no such ground is contained in Practice Book § 23-24. We agree.

As a preliminary matter, we note that our review of a habeas court's order declining to issue a writ of habeas corpus is governed by the abuse of discretion standard. See Stephen S. v. Commissioner of Correction , 199 Conn. App. 230, 235, 235 A.3d 639 (2020). "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." (Internal quotation marks omitted.) Walker v. Commissioner of Correction , 223 Conn. 411, 414, 611 A.2d 413 (1992).

Titled "Preliminary Consideration of Judicial Authority," Practice Book § 23-24 governs the authority of a court to issue a writ of habeas corpus and provides in relevant part: "(a) The judicial authority shall promptly review any petition for a writ of habeas corpus to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that: (1) the court lacks jurisdiction; (2) the petition is wholly frivolous on its face; or (3) the relief sought is not available. ..."⁷ By contrast, Practice Book § 23-29 governs the authority of a court to dismiss a petition for various reasons after a writ has been issued.⁸

In Gilchrist v. Commissioner of Correction , 334 Conn. 548, 555, 223 A.3d 368 (2020), our Supreme Court sought to "clarify the proper application of these two rules of practice." The court explained that "the screening function of Practice Book § 23-24 plays an important role in habeas corpus proceedings, but it is intended only to weed out obviously and unequivocally defective petitions, and we emphasize that [b]oth statute and case law evince a strong presumption that a petitioner for a writ of habeas corpus is entitled to present evidence in support of his claims. ... Screening petitions prior to the issuance of a writ is intended to conserve judicial resources by eliminating obviously defective petitions; it is not meant to close the...