Boria v. Commissioner of Correction

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BORIA v. COMMISSIONER—CONCURRENCE

BISHOP, J., concurring. The record in the present

case reflects that the petitioner filed the underlying

petition for a writ of habeas corpus, his third, on August

8, 2016, and that, when the petition was received by

the Superior Court, it was assigned a docket number.1

In his filing, the petitioner claimed, inter alia, that his

confinement was illegal because (1) his guilty plea to

the underlying criminal offense was not voluntary, and

(2) the 2013 and 2015 amendments to the earned risk

reduction credit statute, General Statutes § 18-98e,

which bore on his parole eligibility and were enacted

subsequent to his conviction, violated the ex post facto

clause of the United States constitution. In conjunction

with his petition, the petitioner filed an application for

a waiver of fees and payment of costs and a request

for the appointment of counsel, which the court clerk

granted on August 26, 2016. The record further reflects

that, notwithstanding the docketing of the petition and

the granting of the petitioner’s request for counsel, the

court, sua sponte, dismissed the petition pursuant to

Practice Book § 23-29 without having actually

appointed counsel and without having provided the

petitioner notice and an opportunity to be heard on the

motion to dismiss.

My colleagues affirm the habeas court’s dismissal on

the substantive grounds that the petitioner has no lib-

erty interest in the receipt of earned risk reduction

credit and that his claim regarding his guilty plea is

barred by the doctrine of collateral estoppel. On the

basis of this court’s recent decision in Holliday v. Com-

missioner of Correction, 184 Conn. App. 228, A.3d

(2018), my colleagues also affirm the habeas court’s

reliance on Practice Book § 23-29 to dispose of the

petitioner’s claims without affording him or his counsel

notice or an opportunity to be heard before the court

sua sponte dismissed his petition. Although I am bound

by Holliday to concur with the outcome of this appeal,

I write separately because I am concerned that, through

this and prior opinions, this court has eroded the pro-

cess rights of habeas petitioners contrary to the over-

arching purpose of habeas corpus, contrary to the

decisional law of our Supreme Court, and contrary to

the applicable provisions of the Practice Book.2

Specifically, I believe that, before a petition for a writ

of habeas corpus can be dismissed pursuant to Practice

Book § 23-29, the petitioner should be given notice of

the court’s inclination to dismiss, sua sponte, his peti-

tion and an opportunity to be heard on the question of

whether dismissal is warranted. Our recent decisional

law, however, including the majority’s opinion in the

present case, has condoned the growing habit of trial

judges to dismiss petitions sua sponte pursuant to § 23-

29 without prior notice to the petitioner that the court

is considering dismissal and without affording the peti-

tioner an opportunity to be heard on the propriety of

such dismissal.3 Respectfully, I believe this to be a

wrong-minded trend that represents the elevation of

judicial efficiency over fair process, relevant decisional

law, and applicable rules of practice.

The starting point for my analysis is the seminal case

of Mercer v. Commissioner of Correction, 230 Conn.

88, 93, 644 A.2d 340 (1994), in which our Supreme Court

opined: ‘‘Both statute and case law evince a strong

presumption that a petitioner for a writ of habeas cor-

pus is entitled to present evidence in support of his

claims. General Statutes § 52-470 (a) provides that ‘[t]he

court or judge hearing any habeas corpus shall proceed

in a summary way to determine the facts and issues of

the case, by hearing the testimony and arguments [in

the case], and [shall] inquire fully into the cause of

imprisonment, and . . . thereupon dispose of the case

as law and justice require.’ In Negron v. Warden, 180

Conn. 153, 158 n.2, 429 A.2d 841 (1980), we noted that

whenever a court is ‘legally required’ to hear a habeas

petition, § 52-470 (a) ‘delineate[s] the proper scope of

[the] hearing . . . .’ The statute explicitly directs the

habeas court to ‘dispose of the case’ only after ‘hearing

the testimony and arguments therein.’ ’’ (Emphasis in

original.) Mercer v. Commissioner of Correction,

supra, 93.

The Mercer court continued: ‘‘In our case law, we

have recognized only one situation in which a court is

not legally required to hear a habeas petition. In Negron

v. Warden, supra, 180 Conn. 158, we observed that,

pursuant to Practice Book § 531, [i]f a previous applica-

tion brought on the same grounds was denied, the pend-

ing application may be dismissed without hearing,

unless it states new facts or proffers new evidence

not reasonably available at the previous hearing. We

emphasized the narrowness of our construction of Prac-

tice Book § 531 by holding that dismissal of a second

habeas petition without an evidentiary hearing is

improper if the petitioner either raises new claims or

offers new facts or evidence. Id., 158 and n.2. Negron

therefore strengthens the presumption that, absent an

explicit exception, an evidentiary hearing is always

required before a habeas petition may be dismissed.’’

(Emphasis in original; internal quotation marks omit-

ted.) Mercer v. Commissioner of Correction, supra, 230

Conn. 93.4

As noted in Mercer, at the time that decision was

issued, our rules of practice provided only one basis for

a habeas petition to be dismissed without an evidentiary

hearing. That provision, Practice Book (1995) § 531,

provided: ‘‘If the petitioner has filed a previous applica-

tion, it and the action taken thereon shall be summarily

described in the pending application. If a previous appli-

cation brought on the same grounds was denied, the

pending application may be dismissed without hearing,

unless it states new facts or proffers new evidence not

reasonably available at the previous hearing.’’

In 1995, the Practice Book provisions regarding

habeas corpus were substantially amended. Notably,

Practice Book (1995) § 531 was eliminated, thereby

excising from the rules of practice the only explicit

circumstance in which a petition for a writ of habeas

corpus could be dismissed without an evidentiary hear-

ing on the merits. At the same time, however, three

new pertinent sections, Practice Book (1996) §§ 529C,

529H, and 529S (now §§ 23-24, 23-29, and § 23-40,

respectively), were adopted, which provide the court

with alternative vehicles for summary disposition of

habeas matters. Understanding the import of these

changes is key to resolving the question of whether a

petition may be dismissed under § 23-29 without provid-

ing the petitioner notice and an opportunity to be heard.

The 1995 amendments to the Practice Book estab-

lished two distinct procedural opportunities for the

habeas court to summarily dispose of a habeas corpus

petition without an evidentiary hearing. Practice Book

§ 23-245 effectively vests the court with a new gatekeep-

ing function, authorizing the court to dispose of a case

before it has been docketed by declining to ‘‘issue the

writ’’ for certain enumerated grounds. Practice Book

§ 23-29 provides for the summary disposition of a peti-

tion once the writ has already been issued. Respectfully,

I believe this court has blurred the important distinc-

tions between the habeas court’s gatekeeping function

pursuant to § 23-24 and its authority to dismiss a pend-

ing matter for the reasons enumerated in § 23-29. Con-

flation of these two rules by this court has eroded the

process rights of petitioners whose writs have been

issued and for whom counsel has been appointed.

Pursuant to Practice Book § 23-24, when the habeas

court exercises its gatekeeping function to decline to

issue a writ, the matter is returned to the petitioner

with a notation from the court setting forth the basis

on which the court has declined to issue the writ.6

This rule reflects the historical distinction between the

issuance of the writ and the adjudication of the petition-

er’s claims for relief, which this court explained in its

opinion in Green v. Commissioner of Correction, 184

Conn. App. 76, A.3d , cert. denied, 330 Conn. 933,

A.3d (2018): ‘‘The meaning of [the] phrase [issue

the writ] can be ascertained by reference to historical

practices regarding the service and issuance of writs

of habeas corpus in our state. At one point in time, a

habeas petition was filed with the court prior to it being

served on the [respondent] Commissioner [of Correc-

tion (commissioner)]. General Statutes (1918 Rev.)

§ 6033. The court would then determine whether to

issue the writ. General Statutes (1918 Rev.) § 6033. It

was only if the court decided to issue the writ that the

petition would be served on the commissioner by an

officer of the court and a subsequent habeas trial be

held. General Statues (1918 Rev.) § 6033; see also

Adamsen v. Adamsen, 151 Conn. 172, 176, 195 A.2d 418

(1963) (Our statute requires that the application for a

writ of habeas corpus shall be verified by the affidavit

of the applicant for the writ alleging that he verily

believes the person on whose account such writ is

sought is illegally confined or deprived of his liberty.

. . . The only purpose served by the application is to

secure the issuance of the writ in the discretion of the

court. The issues on which any subsequent trial is held

are framed by the return and the pleadings subsequent

thereto. . . . Put differently, [t]he issuance of the writ

did not determine the validity of the [petition] . . . .

On the contrary, it served only to bring the parties

before the court in order that the issue of the alleged

illegal restraint might be solved. Adamsen v. Adamsen,

supra, 177.’’ (Internal quotation marks omitted.) Green

v. Commissioner of Correction, supra, 184 Conn. App.

80–81 n.3.

As noted, Practice Book § 23-29 was adopted in 1995

at the same time Practice § 23-24 was adopted. In my

view, these sections, which are still in effect, provide

procedurally different bases for the court to summarily

dispose of a habeas corpus case. Section 23-24 provides

a vehicle for the court to exercise a gatekeeping func-

tion to bar entry to the court of those cases in which

it is patent that the court lacks jurisdiction over the

claim, the petition is wholly frivolous on its face, or the

relief requested in the petition is not available. Section

23-29 also provides a basis for the summary disposition

of the case, but, in this instance, because § 23-29 is

applicable only once the writ has been issued, the peti-

tion may not then be dismissed without affording the

petitioner notice and a hearing on the motion to dismiss.

Although Practice Book § 23-29 has been character-

ized as the successor rule to Practice Book (1995) § 531,

there is a significant distinction between the two regard-

ing a petitioner’s right to a hearing. Section 531

expressly authorized the court to dismiss a successive

petition ‘‘without hearing unless it states new facts or

proffers new evidence not reasonably available at the

previous hearing’’; (emphasis added); the successor

rule, § 23-29, however, contains no parallel provision.

To be sure, the new rule, § 23-29, did expand the bases

on which a court is authorized to summarily dispose

of a petition and now includes those in which (1) the

court has no jurisdiction, (2) the petition fails to state

a claim upon which habeas corpus relief can be granted,

(3) the petition presents the same ground as a pre-

viously denied petition and fails to state new facts or

proffer new evidence not reasonably available at the

time of the prior petition, (4) the claims asserted in the

petition are moot or premature, and (5) any other legally

sufficient ground for dismissal of the petition. See Prac-

tice Book § 23-29. Significantly, however, § 23-29 con-

tains no provision authorizing the court to dismiss a

pending petition without affording the petitioner a hear-

ing and an opportunity to be heard on the motion to

dismiss.7 Consequently, in my view, the 1995 revision

to the Practice Book effectuated two complementary

changes. On one hand, it eliminated the one basis on

which a writ, once issued, could be dismissed without

affording a petitioner notice and the right to be heard,

while at the same time creating a vehicle, § 23-24,

through which the court, in the exercise of its gatekeep-

ing function, may turn a petition away from the court-

house door by declining to issue the writ.

My understanding of the interplay between Practice

Book §§ 23-24 and 23-29 is buttressed by the simultane-

ous adoption in 1995 of Practice Book § 23-40, which

newly provided, inter alia, for the right of the petitioner

to be present at ‘‘any evidentiary hearing and at any

hearing or oral argument on a question of law which

may be dispositive of the case . . . .’’ Although I recog-

nize that this rule does not explicitly require the court

to conduct a hearing before dismissing a petition pursu-

ant to § 23-29, its provisions entitling a petitioner to be

present at any dispositive hearing would be rendered

illusionary if a petitioner had no right to a hearing at all.8

My view finds support, as well, in the general Practice

Book rules regarding civil actions. At the outset, it is

well established that ‘‘[h]abeas corpus is a civil proceed-

ing.’’ Collins v. York, 159 Conn. 150, 153, 267 A.2d 668

(1970). Consequently, ‘‘[a] habeas corpus action, as a

variant of civil actions, is subject to the ordinary rules of

civil procedure, unless superseded by the more specific

rules pertaining to habeas actions.’’ (Internal quotation

marks omitted.) Kendall v. Commissioner of Correc-

tion, 162 Conn. App. 23, 45, 130 A.3d 268 (2015).9

Chapter 11 of the Practice Book, which relates to

civil matters generally, provides for notice and an

opportunity to be heard before a matter may be sum-

marily dismissed. Pursuant to Practice Book § 11-1,

‘‘[e]very motion . . . directed to pleading or procedure

. . . shall be in writing’’; Practice Book § 11-1 (a); and

‘‘such motion . . . shall be served on all parties as pro-

vided in [Practice Book §§] 10-12 through 10-17.’’ Prac-

tice Book § 11-1 (c). ‘‘The purpose of requiring written

motions is not only the orderly administration of justice

. . . but the fundamental requirement of due process

of law’’; (citation omitted) Connolly v. Connolly, 191

Conn. 468, 475, 464 A.2d 837 (1983); specifically, the

requirement of adequate notice. See Herrmann v. Sum-

mer Plaza Corp., 201 Conn. 263, 273, 513 A.2d 1211

(1986) (‘‘[t]he requirement that parties file their motions

in writing is to ensure that the opposing party has writ-

ten notice of the motion to dismiss’’). As will be made

clear in the following paragraph, receipt of adequate

notice is essential in order for the nonmoving party to

exercise its right under the Practice Book to be heard.

Our rules of practice grant the nonmoving party to

a motion to dismiss two opportunities to be heard. First,

Practice Book § 11-10 (a)10 provides the adverse party to

a motion to dismiss (as well as certain other specifically

enumerated motions) with the opportunity to file a

memorandum of law in opposition to the motion. The

rules also provide the nonmovant with the right to pre-

sent oral argument on the motion to dismiss at the

court’s short calendar.11 Pursuant to Practice Book § 11-

18 (a), ‘‘[o]ral argument is at the discretion of the judicial

authority except as to motions to dismiss’’ and certain

other motions. (Emphasis added.) ‘‘For those motions,

oral argument shall be a matter of right, provided: (1)

the motion has been marked ready in accordance with

the procedure that appears on the short calendar on

which the motion appears, or (2) a nonmoving party

files and serves on all parties . . . a written notice

stating the party’s intention to argue the motion or

present testimony.’’ (Emphasis added.) Practice Book

§ 11-18 (a).

Application of the foregoing rules in the context of

a motion to dismiss under Practice Book § 23-29 is most

straightforward when it is the respondent who makes

the motion. In such circumstances, it is clear that the

respondent must file a written motion and a memoran-

dum of law and serve the same on the petitioner, thus

satisfying the requirements of Practice Book § 11-1. The

effect of the service of the motion and brief is to provide

the petitioner with the notice necessary for the peti-

tioner to be able to (1) exercise his rights to file a

memorandum of law in opposition to the motion pursu-

ant to Practice Book § 11-10 and (2) claim the matter

for oral argument pursuant to Practice Book § 11-18.12

Thus, where the respondent properly serves the peti-

tioner with notice of its motion and the grounds there-

for, and the petitioner simply fails to exercise his right

to file a brief or make oral argument, it is clear that the

habeas court may properly decide the motion without

having heard from the petitioner.

I recognize, of course, that Practice Book § 23-29,

unlike its parallel provision, Practice Book § 10-30,13

contemplates that a court may dismiss a petition sua

sponte even where the ground for dismissal does not

implicate subject matter jurisdiction. Nowhere in § 23-

29, however, is there a provision for the court to act

without providing notice to the petitioner and an oppor-

tunity to be heard on the court’s sua sponte motion.

Thus, I conclude that, because § 23-29 does not explic-

itly provide for the court to act sua sponte without

providing notice and an opportunity for the petitioner

to be heard on the motion, it is unreasonable and con-

trary to the rules pertaining to civil matters generally

for the court to import such a provision into § 23-29.

A review of the decisional history of this court regard-

ing Practice Book § 23-29 reveals our inconsistent treat-

ment of this issue.14 In Mitchell v. Commissioner of

Correction, 93 Conn. App. 719, 725–26, 891 A.2d 25,

cert. denied, 278 Conn. 902, 896 A.2d 104 (2006), a panel

of this court held that the habeas court had improperly

dismissed a petition pursuant to § 23-29 without provid-

ing notice and a hearing to the petitioner. In Boyd v.

Commissioner of Correction, 157 Conn. App. 122, 125–

27, 115 A.3d 1123 (2015), this court explicitly relied on

Mitchell in holding that it was improper for the habeas

court to have dismissed a petition pursuant to § 23-29

without affording the petitioner notice and an opportu-

nity for a hearing. The language of Boyd is instructive.

There, this court stated: ‘‘Our Supreme Court has noted

that ‘[b]oth statute and case law evince a strong pre-

sumption that a petitioner for a writ of habeas corpus

is entitled to present evidence in support of his claims.’

Mercer v. Commissioner of Correction, [supra, 230

Conn. 93]. This court previously has held that it is an

abuse of discretion by the habeas court to dismiss a

habeas petition sua sponte under Practice Book § 23-

29 without fair notice to the petitioner and a hearing

on the court’s own motion to dismiss. Mitchell v. Com-

missioner of Correction, [supra, 93 Conn. 725–26].’’

(Emphasis added.) Boyd v. Commissioner of Correc-

tion, supra, 125. The court further noted: ‘‘It is of partic-

ular importance that the petitioner had requested the

appointment of counsel when filing his second habeas

petition. By sua sponte dismissing the petition before

any counsel was appointed, the habeas court prevented

the petitioner from accessing the legal services needed

to help clarify the grounds presented and to ensure

that they were not duplicative of the petitioner’s prior

habeas petition.

‘‘The respondent concedes, and we agree, that the

petitioner should have been afforded fair notice and a

hearing before the court sua sponte dismissed the sec-

ond habeas petition, and agrees with the petitioner that

the proper course of action is to remand this case to

the habeas court for a hearing. The respondent argues,

however, that the hearing should be limited to whether

the new claims of prosecutorial impropriety should be

dismissed under Practice Book § 23-29. We agree with

the respondent to the extent that the second habeas

petition in its current form contains a duplicative claim

of ineffective assistance of counsel predicated upon the

same facts and evidence as alleged in the first amended

petition for a writ of habeas corpus. We caution, how-

ever, that nothing in this opinion should be read as

foreclosing the opportunity for the petitioner, or his

counsel if one is appointed for him, to amend the cur-

rent petition to articulate any new facts or evidence he

wants to proffer or to state new grounds upon which

he believes habeas relief should be granted, including

the opportunity to clarify whether his claim of ineffec-

tive assistance of counsel is founded upon new facts

or evidence not reasonable available at the time of his

prior petition.’’ Id., 126–27.

Notwithstanding the history of Practice Book §§ 23-

24, 23-29, and 23-40, the general Practice Book rules

regarding civil actions, and this court’s strong admoni-

tion in Boyd, this court has now issued decisions,

including the majority’s opinion in the present case,

that appear to violate the thrust of Mercer and contra-

dict Boyd’s admonition that a habeas petitioner is enti-

tled to notice and an opportunity to be heard before

his or her petition is dismissed pursuant to § 23-29. I

recognize, of course, that the habeas corpus workload

has become burdensome to the judiciary.15 Respectfully,

however, I do not believe that we should participate,

for the sake of judicial efficiency, in the erosion of the

rights of habeas petitioners established by time-tested

jurisprudence and the rules adopted by the Superior

Court. Rather, I believe that the proper exercise of the

court’s gatekeeping function pursuant to § 23-24 offers

the greatest pathway to the swift disposal of frivolous,

wasteful, and repetitious petitions without sacrificing

the very purpose for which this enshrined writ exists.

For the reasons stated, I respectfully concur.

1

The petition was docketed as TSR-CV16-4008315-S. ‘‘At common law

habeas corpus was a formalistic proceeding. The application played no role

in framing the issues, its only purpose being to secure the issuance of the

writ. . . . The return, whose truth could not be contested . . . limited the

proceeding to the determination of a question of law. Early on the legislature

corrected this deficiency by permitting the statements in the return to be

contested. . . . At that point and until fairly recently the issues on which

a subsequent trial was to be held were framed by the return and the pleadings

subsequent thereto. . . . In recent years the application has come to be

regarded as a pleading in the nature of a complaint . . . and the return in

the nature of an answer.’’ (Citations omitted.) Arey v. Warden, 187 Conn.

324, 331–32, 445 A.2d 916 (1982); see also Carpenter v. Commissioner of

Correction, 274 Conn. 834, 842 n.7, 878 A.2d 1088 (2005). Translating the

old into newer procedure, one can fairly say that once a habeas petition

has been docketed, the writ has effectively issued, and once a return has

been filed, the issues have been joined for judicial determination. Overlying

this procedure are various Practice Book provisions providing for the sum-

mary disposition of the petition.

2

As a matter of policy, one panel of this court may not reverse the ruling

of a previous panel. See Consiglio v. Transamerica Ins. Group, 55 Conn.

App. 134, 138 n.2, 737 A.2d 969 (1999). Indeed, this rule is not merely an axiom

of appellate collegiality; a prior ruling by one panel is binding precedent on

a subsequent panel. See Samuel v. Hartford, 154 Conn. App. 138, 144, 105

A.3d 333 (2014) (‘‘[w]e are bound by [our prior] precedent, as it is axiomatic

that one panel of this court cannot overrule the precedent established by

a previous panel’s holding’’).

3

See Holliday v. Commissioner of Correction, supra, 184 Conn. App.

235–38; Gilchrist v. Commissioner of Correction, 180 Conn. App. 56, 62–63,

182 A.3d 690, cert. granted, 329 Conn. 908, 186 A.3d 13 (2018); Pentland v.

Commissioner of Correction, 176 Conn. App. 779, 787–88, 169 A.3d 851,

cert. denied, 327 Conn. 978, 174 A.3d 800 (2017); Coleman v. Commissioner

of Correction, 137 Conn. App. 51, 57–58, 46 A.3d 1050 (2012); but see Boyd

v. Commissioner of Correction, 157 Conn. App. 122, 125–27, 115 A.3d 1123

(2015); see also Perez v. Commissioner of Correction, 326 Conn. 357, 366,163

A.3d 597 (2017) (habeas court afforded petitioner notice and hearing before

dismissing petition).

4

The presumption espoused in Negron and affirmed in Mercer, that a

habeas petitioner is entitled to an evidentiary hearing unless a rule explicitly

provides to the contrary, was acknowledged by this court in 2009 in Riddick

appeal dismissed, 301 Conn. 51, 19 A.3d 174 (2011). Riddick concerned the

application of Practice Book (2009) § 23-42 (a), which provided in relevant

part: ‘‘If the judicial authority finds that the case is wholly without merit,

it shall allow counsel to withdraw and shall consider whether the petition

shall be dismissed or allowed to proceed, with the petitioner pro se. . . .’’

(Emphasis added.) In affirming the habeas court’s then-existent authority

to dismiss a petition under this rule, the Riddick court opined: ‘‘[Practice

Book (2009) § 23-42] provides an explicit exception to the general rule

requiring an evidentiary hearing before a habeas petition may be dismissed.

See Mercer v. Commissioner of Correction, [supra, 230 Conn. 93].’’ Riddick

v. Commissioner of Correction, supra, 467.

It is noteworthy that, not long after the issuance of the decision in Riddick,

Practice Book (2009) § 23-42 was amended to eliminate the court’s authority

to dismiss a petition when granting the motion of the petitioner’s counsel

for leave to withdraw. Section 23-42 now provides that a petitioner whose

counsel has been permitted to withdraw may, nevertheless, proceed on a self-

represented basis. Thus, the exception noted in Negron for circumstances

in which the habeas court need not hold a hearing before dismissing a

petition no longer pertains, with the result that Practice Book § 23-24 now

provides the sole avenue for summarily disposing of a petition without a

hearing of any kind.

5

Practice Book § 23-24 provides: ‘‘(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.

‘‘(b) The judicial authority shall notify the petitioner if it declines to issue

the writ pursuant to this rule.’’

6

See, e.g., Fuller v. Commissioner of Correction, 144 Conn. App. 375,

377, 71 A.3d 689 (when confronted with application for issuance of writ of

habeas corpus claiming that parole board had acted unreasonably in denying

parole, habeas court, after reviewing petition, sent petitioner letter indicating

that ‘‘[t]he [h]abeas [c]orpus petition is declined and is being returned

because the court lacks jurisdiction per . . . Practice Book § 23-24 [a] [1]’’),

cert. denied, 310 Conn. 946, 80 A.3d 907 (2013).

7

Respectfully, I believe that the provisions of Practice Book §§ 23-24 and

23-29, authorizing the habeas court to summarily dispose of a writ or petition

for certain enumerated grounds, are complementary and not mere duplica-

tions of the same judicial authority. To the extent the court mindfully fulfills

its gatekeeping function pursuant to § 23-24, it may simply return the writ

to the petitioner with a note indicating the basis for its decision to decline

to issue the writ. If, however, a writ escapes preliminary review, the court’s

responsibility is more burdensome. In my view, the resolution of this conun-

drum does not lie in eroding the process rights of a petitioner whose writ

has been issued; rather, it suggests that the court should develop a more

mindful process to weed out inappropriate writs as a preliminary matter

pursuant to its gatekeeping function. Although this suggestion may entail

some administrative changes in the Superior Court regarding the docketing

of petitions, I believe that, in the long run, a more fulsome use of the court’s

authority pursuant to § 23-24 would maximize judicial efficiency without

the unnecessary dilution of the petitioner’s process rights that attach once

the writ has been issued.

8

In coming to this view, I am mindful of this court’s contrary conclusion

in Holliday: ‘‘[T]he rules of practice were promulgated to create one harmo-

nious and consistent body of law. . . . If courts can by any fair interpreta-

tion find a reasonable field of operation for two [rules of practice] without

destroying their evident meaning, it is the duty of the courts to do so, thus

reconciling them and according to them concurrent effect. . . . To give

effect to both Practice Book §§ 23-29 and 23-40, the latter section should

be read to give a petitioner the right to be present at an evidentiary hearing

if one is held, not to give a petitioner the absolute right to an evidentiary

hearing itself.’’ (Citation omitted; internal quotation marks omitted.) Holli-

day v. Commissioner of Correction, supra, 184 Conn. App. 236 n.10. With

all respect to my colleagues in the Holliday decision, the panel’s view, if

it endures, would eviscerate any fair process rights that § 23-40 confers on

habeas petitioners whose writs have eluded disposition pursuant to Practice

Book § 23-24. In my view, the clearer route to harmonizing § 23-29 with

§ 23-40 is to conclude that the latter rules entitle a habeas petitioner to

notice and an opportunity to be heard before dismissal pursuant to § 23-

29. Achieving harmony in the habeas rules, a value Holliday exhorts, is fully

in accord with the presumption of a hearing entitlement embodied in Mercer,

whereas the view espoused in Holliday negates by implication the overarch-

ing and enduring admonition of Mercer.

9

See, e.g., Turner v. Commissioner of Correction, 163 Conn. App. 556,

563, 134 A.3d 1253 (applying General Statutes § 52-212a and Practice Book

§ 17-4, which govern motions to open and set aside civil judgments), cert.

denied, 323 Conn. 909, 149 A.3d 980 (2016); Kendall v. Commissioner of

Correction, supra, 162 Conn. 46 (applying Practice Book § 15-6, which allows

for opening argument in civil trials before court or jury); Carmon v. Commis-

sioner of Correction, 148 Conn. App. 780, 785–86, 87 A.3d 595 (2014) (holding

that General Statutes § 52-119 and Practice Book § 10-18, which apply gener-

ally to civil actions, give habeas court authority to render default judgment

or nonsuit against party who fails to comply with pleading requirements);

Fuller v. Commissioner of Correction, 75 Conn. App. 814, 817–19, 817 A.2d

1274 (holding that dismissal for lack of due diligence in prosecuting civil

case pursuant to Practice Book § 14-31 was legally sufficient ground for

dismissal of habeas corpus action and fell under catchall ‘‘other legally

sufficient ground’’ provision of Practice Book § 23-29 [5]), cert. denied, 263

Conn. 926, 823 A.2d 1217 (2003).

10

Practice Book § 11-10 (a) provides in relevant part: ‘‘A memorandum

of law briefly outlining the claims of law and authority pertinent thereto

shall be filed and served by the movant with the following motions and

requests . . . (2) motions to dismiss except those filed pursuant to [Practice

Book §] 14-3 . . . . Memoranda of law may be filed by other parties on or

before the time the matter appears on the short calendar.’’

11

Pursuant to Practice Book § 11-13 (a), all motions must be placed on

the short calendar list, and, as per Practice Book § 11-15, they are to be

assigned automatically by the clerk without written claim.

12

Moreover, a cursory review of the habeas corpus short calendar of the

Superior Court for the judicial district of Tolland, geographical area number

nineteen, reveals that motions to dismiss are routinely marked ‘‘arguable.’’

See, e.g., TSR – Short Calendar 01 – Civil Arguable Matters, October 29,

2018 (TSR SC 01), available at http://civilinquiry.jud.ct.gov/Calendars/SCBy-

LocDetail.aspx?ccid=94517 (last visited November 1, 2018).

13

Practice Book § 10-30 provides in relevant part: ‘‘(a) A motion to dismiss

shall be used to assert: (1) lack of jurisdiction over the subject matter; (2)

lack of jurisdiction over the person; (3) insufficiency of process; and (4)

insufficiency of service of process. . . .’’

14

The issue presented in the present case has been raised in our Supreme

Court on multiple occasions, but the court has each time declined to address

it. See Kaddah v. Commissioner of Correction, 299 Conn. 129, 133–34, 141

n.13, 135, 7 A.3d 911 (2010) (affirming habeas court’s dismissal of petition

pursuant to § 23-29 where petitioner failed to state valid claim for relief and

declining to address petitioner’s claim on appeal that he should have been

afforded notice and opportunity to be heard before habeas court dismissed

his petition because, ‘‘even if [it] were to agree with [that claim], that

conclusion still would not lead to the relief that the petitioner requested’’);

Oliphant v. Commissioner of Correction, 274 Conn. 563, 568, 877 A.2d

761 (2005) (declining to address petitioner’s claim that Appellate Court

improperly affirmed habeas court’s dismissal of his habeas petition sua

sponte without notice or a hearing, as claim was outside scope of question

certified for review by Supreme Court). This may soon change, however.

Our Supreme Court recently granted a habeas petitioner’s petition for certifi-

cation to appeal from this court’s decision in Gilchrist v. Commissioner of

Correction, supra, 180 Conn. App. 56, in which this court affirmed the habeas

court’s sua sponte dismissal of the habeas petition under § 23-29 without

affording the petitioner notice and an opportunity to be heard on the motion.

The court certified the following question: ‘‘Did the Appellate Court properly

affirm the habeas court’s dismissal of the petition when the habeas court

took no action on the petitioner’s request for counsel and did not give the

petitioner notice and an opportunity to be heard on the court’s own motion

to dismiss the petition pursuant to Practice Book § 23-29?’’ Gilchrist v.

Commissioner of Correction, supra, 329 Conn. 908.

15

Indeed, data from the Judicial Branch reveal that the tide of incoming

habeas petitions appears to be outpacing the rate at which the habeas court

is able to dispose of them. For example, during the fiscal year of 2016–2017,

762 habeas cases were added to the docket of the Superior Court for the

judicial district of Tolland, whereas only 678 were disposed of. Civil Case

Movement: July 1, 2016 to June 30, 2017, available at https://www.jud.ct.gov/

statistics/civil/CaseDoc 1617.pdf (last visited November 1, 2018). This unbal-

anced flow of habeas cases is reflected in the steadily increasing number

of cases pending at the end of each fiscal year. For example, at the end of

the 2014–2015 fiscal year, there were 1451 habeas cases then pending, up

from 1128 at the beginning of that year. Civil Case Movement: July 1, 2014

to June 30, 2015, available at https://www.jud.ct.gov/statistics/civil/

CaseDoc 1415.pdf (last visited November 1, 2018). By the end of the follow-

ing fiscal year, the number of pending cases had increased to 1562; Civil Case

Movement: July 1, 2015 to June 30, 2016, available at https://www.jud.ct.gov/

statistics/civil/CaseDoc 1516.pdf (last visited November 1, 2018); and, by

the end of the 2016–2017 fiscal year, that figure had risen again, to 1637.

Civil Case Movement: July 1, 2016 to June 30, 2017, supra.