***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ANTHONY JOHNSON v. COMMISSIONER
OF CORRECTION
(AC 42994)
Prescott, Elgo and DiPentima, Js.
Syllabus
The petitioner, who had been convicted on a guilty plea, of the crime of
manslaughter in the first degree with a firearm in connection with his
involvement in an altercation in 2008, sought a writ of habeas corpus,
claiming, inter alia, a violation of the ex post facto clause of the United
States constitution. In 2011, the legislature enacted a statute (§ 18-98e)
that permitted certain inmates, including the petitioner, to earn risk
reduction earned credit toward the reduction of their sentences, at
the discretion of the respondent, the Commissioner of Correction, and
amended the statute (§ 54-125a) governing parole eligibility to permit
risk reduction credit to be applied to advance the parole eligibility date
of inmates convicted of certain violent offenses. In 2013, No. 13-3 of
the 2013 Public Acts (P.A. 13-3) amended § 54-125a and removed the
language that permitted the risk reduction credit earned under § 18-98e
to advance the parole eligibility date of violent offenders. The petitioner
claimed, inter alia, that the 2013 amendment, as applied retroactively
to him, violated the ex post facto clause of the federal constitution. The
habeas court rendered judgment declining to issue a writ of habeas
corpus pursuant to the applicable rule of practice (§ 23-24 (a) (1)) on
the ground that it lacked subject matter jurisdiction. The petitioner then
filed a second petition for a writ of habeas corpus, in which he alleged
that the Department of Correction (department) had unconstitutionally
forfeited his risk reduction earned credit that had already been earned
and applied. The court again declined to issue the writ, concluding that
the second petition was identical to the first petition. Thereafter, the
habeas court denied the petition for certification to appeal, and the
petitioner appealed to this court. Held:
1. The habeas court abused its discretion in denying the petition for certifica-
tion to appeal and in declining to issue a writ of habeas corpus on the
petitioner’s second petition because it was identical to the first petition,
as no such ground is contained in Practice Book § 23-24: under § 23-24,
the judicial authority shall issue a writ of habeas corpus unless it appears
that it lacks jurisdiction, the petition is wholly frivolous on its face or
the relief sought is not available; moreover, as the respondent conceded,
the first and second petitions were not identical, as the first petition was
construed by the habeas court as a constitutional challenge regarding
the department’s failure to allow the petitioner to continue to earn and
apply new credits to his sentence, and the second petition specifically
concerned risk reduction earned credits that allegedly had already been
earned and applied pursuant to § 18-98e.
2. This court affirmed the decision of the habeas court to decline to issue
a writ of habeas corpus on the alternative ground that the habeas court
lacked subject matter jurisdiction over the second petition, as the peti-
tioner’s criminal offense predated the enactment of the risk reduction
earned credit program; this court previously applied precedent from
our Supreme Court in the context of a habeas court’s decision to decline
to issue a writ for lack of jurisdiction pursuant to Practice Book § 23-
24 (a) (1) in Whistnant v. Commissioner of Correction, (199 Conn. App.
406), and the present case was indistinguishable from that case in all
material respects, as both cases involved petitioners who committed
criminal offenses in 2008, years before the enactment of the risk reduc-
tion earned credit program in 2011, and who claimed that the retroactive
application of the 2013 amendment to § 54-125a (b) (2) to him violated
the ex post facto clause, and, as in Whistnant, the enactment of P.A.
13-3 simply returned the petitioner to the same position in terms of
parole eligibility that he was in at the time that he committed the offense.
Argued March 4—officially released October 12, 2021
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., rendered judgment declining to
issue a writ of habeas corpus; thereafter, the court
denied the petition for certification to appeal, and the
petitioner appealed to this court. Affirmed.
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. Corra-
dino, state’s attorney, for the appellee (respondent).
Opinion
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 certifica-
tion to appeal and declining to issue a writ of habeas
corpus. The respondent, the Commissioner of Correc-
tion, 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 rele-
vant 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 elimi-
nated 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 Correc-
tion, 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 Cor-
rection, 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 con-
cluded 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 sug-
gested by the habeas court. Specifically, the petitioner
alleged in relevant part that the department had ‘‘uncon-
stitutionally 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 eligi-
bility 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 certifi-
cation to appeal, which the court denied. From that judg-
ment, 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 articula-
tion, 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 certifica-
tion 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 Prac-
tice 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 con-
tends 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 determin-
ing 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 Author-
ity,’’ 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 deter-
mine whether the writ should issue. The judicial author-
ity shall issue the writ unless it appears that: (1) the
court lacks jurisdiction; (2) the petition is wholly frivo-
lous 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 screen-
ing 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 doors of the habeas court
to justiciable claims. Special considerations ordinarily
obtain when a petitioner has proceeded pro se. . . .
[I]n such a case, courts should review habeas petitions
with a lenient eye, allowing borderline cases to proceed.
. . . The justification for this policy is apparent. If the
writ of habeas corpus is to continue to have meaningful
purpose, it must be accessible not only to those with
a strong legal background or the financial means to
retain counsel, but also to the mass of uneducated,
unrepresented prisoners. . . . Thus, when borderline
cases are detected in the preliminary review under § 23-
24, the habeas court should issue the writ and appoint
counsel so that any potential deficiencies can be
addressed in the regular course after the proceeding
has commenced.’’ (Citations omitted; internal quotation
marks omitted.) Id., 560–61. The court further empha-
sized that, ‘‘[i]n contrast [with Practice Book § 23-24],
Practice Book § 23-29 contemplates the dismissal of a
habeas petition after the writ has issued on any of the
enumerated grounds.’’ (Emphasis added.) Id., 561; see
also id., 563 (describing Practice Book § 23-29 as proce-
dure utilized ‘‘[a]fter the writ has issued’’).
In the present case, the habeas court declined to issue
the writ pursuant to Practice Book § 23-24 ‘‘because
[the second petition] is identical to [the first petition]
. . . .’’ No such ground is set forth in § 23-24. For that
reason, the court improperly declined to issue the writ
on that basis.
In Stephen S. v. Commissioner of Correction, supra,
199 Conn. App. 231, this court reversed a habeas court’s
decision to decline to issue a writ on the ground that
the petition was identical to a previously dismissed
petition. The petitioner in that case had filed a third
habeas petition alleging ineffective assistance of coun-
sel on the part of his trial and appellate counsel. Id., 234.
The habeas court declined to issue the writ pursuant
to Practice Book § 23-24 (a) (2), stating that the petition
was ‘‘wholly frivolous on its face, to wit: [t]he petition
raises claims identical to those already raised, litigated,
and resolved against the petitioner in [the first and
second habeas actions].’’ (Internal quotation marks
omitted.) Id., 235. On appeal, the petitioner claimed that
the court improperly declined to issue the writ because
the claims raised in his third habeas petition were ‘‘dif-
ferent from the claims raised in his two prior habeas
petitions’’ and were not ‘‘ ‘wholly frivolous on [their]
face.’ ’’ Id., 231. Relying on Gilchrist v. Commissioner
of Correction, supra, 334 Conn. 560, this court con-
cluded that the petitioner’s claims were not ‘‘ ‘obviously
and unequivocally defective’ . . . but, rather, [were]
cognizable claims that should have survived the ‘screen-
ing function’ of . . . § 23-24 and entitled the petitioner
to present evidence in support of his claims.’’ (Citation
omitted.) Stephen S. v. Commissioner of Correction,
supra, 239. In light of the foregoing, this court concluded
that the habeas court had abused its discretion in declin-
ing to issue the writ. Id., 240.
That precedent compels a similar conclusion here.
In the present case, the habeas court declined to issue
the writ on the ground that the second petition was
identical to the first petition. As the respondent con-
cedes, the first and second petitions are not ‘‘identical.’’
The first petition was construed by the habeas court
as a constitutional challenge regarding the department’s
failure to allow the petitioner to continue to earn and
apply new credits to his sentence. By contrast, the sec-
ond petition specifically concerned risk reduction
earned credits that allegedly had ‘‘already been earned
and applied’’ pursuant to General Statutes (Supp. 2012)
§ 18-98e and allegedly had been forfeited by the depart-
ment in violation of the ex post facto clause. Thus, the
second petition plainly alleges a different and distinct
claim from that set forth in the first petition. We there-
fore conclude that the court improperly declined to
issue the writ on the ground that the second petition
was identical to the first petition.
II
That determination does not end our inquiry.
Although the respondent concedes that the stated basis
of the habeas court’s decision is untenable, he argues,
as an alternative ground of affirmance, that the court
lacked subject matter jurisdiction over the second peti-
tion because the petitioner’s criminal offense predated
the enactment of the risk reduction earned credit pro-
gram.9 For that reason, the respondent maintains that
the court reached the correct result in declining to
issue the writ. See Practice Book § 23-24 (a) (1) (‘‘[t]he
judicial authority shall issue the writ unless it appears
that . . . the court lacks jurisdiction’’). We agree.
In Perez v. Commissioner of Correction, supra, 326
Conn. 374, our Supreme Court addressed a claim, simi-
lar to the one presented here, that ‘‘the retroactive appli-
cation of [P.A. 13-3] to [the petitioner], when he commit-
ted his offense and was sentenced prior to the
amendments’ effective date, violates the ex post facto
clause of the United States constitution.’’ The Supreme
Court rejected that claim, stating: ‘‘[W]hen the peti-
tioner committed his offense in 2010, a violent offender
for whom parole was available would become eligible
for parole after he had served 85 percent of his definite
sentence. See General Statutes (Rev. to 2009) § 54-125a
(e). Although a short-lived 2011 amendment altered this
calculation to include earned risk reduction credit; P.A.
11-51, § 25; [P.A. 13-3] restored the parole eligibility
calculation to 85 percent of the violent offender’s defi-
nite sentence. Far from creating a genuine risk that the
petitioner would be incarcerated for a longer period of
time, [P.A. 13-3] simply returned the petitioner to the
position that he was in at the time of his offense.’’ Perez
v. Commissioner of Correction, supra, 378. The court
also disagreed with the petitioner’s contention that, in
conducting an ex post facto inquiry, a court may con-
sider the statute that was in effect at the time of the
plea and sentencing. Id., 378–79. To the contrary, the
court held that a court presented with an ex post facto
challenge must compare ‘‘the statute in effect at the
time of the petitioner’s offense to the challenged statute
. . . .’’ (Emphasis added.) Id., 380. Because the petition-
er’s criminal offense occurred prior to the enactment
of the risk reduction earned credit program in 2011,
the court concluded that ‘‘the habeas court lacked juris-
diction’’ over the petitioner’s ex post facto claim. Id.,
362; accord James E. v. Commissioner of Correction,
326 Conn. 388, 390, 163 A.3d 593 (2017) (applying Perez
and concluding that habeas court properly dismissed
petition alleging ex post facto violation for lack of sub-
ject matter jurisdiction); Boria v. Commissioner of Cor-
rection, supra, 186 Conn. App. 344–45 (same).
More recently, this court applied that precedent in
the context of a habeas court’s decision to decline to
issue a writ for lack of jurisdiction pursuant to Practice
Book § 23-24 (a) (1). In Whistnant v. Commissioner of
Correction, 199 Conn. App. 406, 409, 236 A.3d 276, cert.
denied, 335 Conn. 969, 240 A.3d 286 (2020), the peti-
tioner, like the petitioner in the present case, committed
the underlying criminal offense in 2008. In 2019, he filed
a petition for a writ of habeas corpus that contained
allegations nearly identical to those presented in the
present case—namely, that ‘‘prior to the enactment of
P.A. 13-3, he had earned risk reduction credit that the
respondent had applied to advance his parole eligibility
date . . . but, following the enactment of P.A. 13-3, the
respondent stopped applying the credit that he had
earned to advance his parole eligibility date. . . . [T]he
petitioner [thus] asserted that P.A. 13-3, as applied to
him retroactively, violated the ex post facto clause of
the United States constitution.’’ (Emphasis added.) Id.,
411. Pursuant to Practice Book § 23-24 (a) (1), the
habeas court declined to issue the writ for lack of juris-
diction. Id., 408.
On appeal, this court explained that the petitioner
had ‘‘made no claim that legislation regarding eligibility
for parole consideration became more onerous after
the date of his criminal behavior. Rather, he claim[ed]
that new legislation enacted in 2011 . . . after his crim-
inal conduct . . . conferred a benefit on him that was
then taken away in 2013. Such a claim, however, does
not implicate the ex post facto prohibition because the
changes that occurred between 2011 and 2013 have no
bearing on the punishment to which the petitioner’s
criminal conduct exposed him when he committed [the
offense for which he is incarcerated]. . . . Indeed, with
regard to his parole eligibility, P.A. 13-3 returned the
petitioner to the same position that he was in at the
time that he committed the [offense] in 2008.’’ (Citation
omitted; internal quotation marks omitted.) Id., 421–22.
We further acknowledged the precedent of our Supreme
Court in Perez and James E., which held that a habeas
court lacks subject matter jurisdiction over ex post
facto claims predicated on the retroactive application
of P.A. 13-3 to petitioners whose underlying offenses
were committed prior to the enactment of P.A. 11-51.
Id., 422. This court thus concluded that the habeas court
properly declined to issue a writ pursuant to Practice
Book § 23-24 (a) (1). Id., 423.
The present case is indistinguishable from Whistnant
in all material respects. Both cases involve petitioners
who committed criminal offenses in 2008, years before
the enactment of the risk reduction earned credit pro-
gram in 2011. Both cases involve ex post facto chal-
lenges regarding credit that allegedly had been earned
and applied prior to the enactment of P.A. 13-3. As in
Whistnant, the enactment of P.A. 13-3 simply returned
the petitioner in the present case to the same position
in terms of parole eligibility that he was in at the time
that he committed the offense on December 7, 2008.
For that reason, the habeas court lacked subject matter
jurisdiction over his second petition alleging an ex post
facto claim predicated on the retroactive application of
P.A. 13-3. See James E. v. Commissioner of Correction,
supra, 326 Conn. 390–91; Perez v. Commissioner of
Correction, supra, 326 Conn. 362; Whistnant v. Com-
missioner of Correction, supra, 199 Conn. App. 422.
Because the court lacked jurisdiction over the second
petition, we agree with the respondent that the habeas
court’s decision to decline to issue a writ of habeas
corpus was proper pursuant to Practice Book § 23-24
(a) (1).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Number 13-3, § 59, of the 2013 Public Acts amended subsections (b) (2),
(c) and (e) of General Statutes (Rev. to 2013) § 54-125a to delete provisions
permitting the reduction of time off a prisoner’s parole eligibility date for
risk reduction credit earned under § 18-98e.
2
The constitution of the United States, article one, § 10, provides in
relevant part: ‘‘No State shall . . . pass any . . . ex post facto Law . . . .’’
3
Although perhaps well intentioned, it is not proper for a court that lacks
subject matter jurisdiction over a given controversy to provide such guidance
to litigants. See, e.g., 418 Meadow Street Associates, LLC v. Clean Air
Partners, LLC, 304 Conn. 820, 827 n.8, 43 A.3d 607 (2012) (‘‘the [trial] court
should have dismissed the action for lack of subject matter jurisdiction and
proceeded no further’’ (internal quotation marks omitted)); Nieves v. Cirmo,
67 Conn. App. 576, 587 n.4, 787 A.2d 650 (‘‘[t]he court is not an advocate
and should not be placed in a position of making tactical decisions for the
[parties] before it’’), cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002).
4
Although the court stated in its order that the second petition was ‘‘being
returned,’’ the court in substance declined to issue a writ of habeas corpus.
See Practice Book § 23-24. As our Supreme Court recently explained, ‘‘by
ordering the return of the petition, the court did not issue the writ. Ordering
a petition returned is consistent with the court’s not accepting the writ.’’
Cookish v. Commissioner of Correction, 337 Conn. 348, 357 n.7, 253 A.3d
467 (2020).
5
In his appellate brief, the respondent states in relevant part: ‘‘If this court
concludes . . . that the habeas court did have jurisdiction [over the second
petition], the respondent concedes that the habeas court, Newson, J., erred
in declining to issue the writ under Practice Book § 23-24 on the ground
that the [second petition] and the [first petition] were identical, because
the petitions were not, in fact, identical. . . . If this court accepts the respon-
dent’s concession of error, the habeas court abused its discretion in denying
the petitioner’s petition for certification to appeal, and the decision of the
habeas court declining to issue the writ therefore should be reversed.’’
6
The precedent of our Supreme Court instructs that an appellate court
‘‘need not decide whether the habeas court abused its discretion in denying
certification to appeal when there is an alternat[ive] ground for affirming
the decision of the habeas court . . . .’’ (Internal quotation marks omitted.)
Marquez v. Commissioner of Correction, 330 Conn. 575, 591, 198 A.3d 562
(2019). In light of our conclusion that the habeas court lacked jurisdiction
to issue the writ pursuant to Practice Book § 23-24 (a) (1), we need not
decide the question of whether the court abused its discretion in denying
the petition for certification to appeal. We likewise do not consider the
petitioner’s additional claims that the habeas court violated his right to due
process by refusing to hold a hearing on the petition and that it abused its
discretion in declining to furnish an articulation of its decision.
7
As our Supreme Court has observed, ‘‘[i]f any of [the] three enumerated
circumstances exist, then the writ never issues in the first place, and the
judicial authority is required to notify the petitioner [that] it declines to
issue the writ. . . . Section 23-24 thus reverses the usual sequence followed
in the ordinary civil case; the habeas petition first is filed with the court,
and the writ issues and service of process occurs only if the court determines,
after a preliminary review of the petition, that the petition pleads a nonfrivo-
lous claim within the court’s jurisdiction upon which relief can be granted.’’
(Citation omitted; internal quotation marks omitted.) Gilchrist v. Commis-
sioner of Correction, 334 Conn. 548, 557, 223 A.3d 368 (2020).
8
Practice Book § 23-29 provides: ‘‘The judicial authority may, at any time,
upon its own motion or upon motion of the respondent, dismiss the petition,
or any count thereof, if it determines that: (1) the court lacks jurisdiction;
(2) the petition, or a count thereof, fails to state a claim upon which habeas
relief can be granted; (3) the petition presents the same ground as a prior
petition previously denied and fails to state new facts or to proffer new
evidence not reasonably available at the time of the prior petition; (4) the
claims asserted in the petition are moot or premature; (5) any other legally
sufficient ground for dismissal of the petition exists.’’
9
‘‘An appellate court may affirm the judgment of the [habeas] court
although it may have been grounded on a wrong reason,’’ particularly when
the question of subject matter jurisdiction is involved. Jobe v. Commissioner
of Correction, 181 Conn. App. 236, 237 n.3, 186 A.3d 1219 (2018), aff’d, 334
Conn. 636, 224 A.3d 147 (2020); see also Reinke v. Greenwich Hospital
Assn., 175 Conn. 24, 29–30, 392 A.2d 966 (1978) (appellate court may ‘‘affirm
a trial court’s decision although based upon an erroneous ground if the
same result is required by law’’).