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MARCUS HODGE v. COMMISSIONER
OF CORRECTION
(AC 41627)
Elgo, Moll and Clark, Js.
Syllabus
The petitioner, who had been convicted of manslaughter in the second
degree and evading responsibility in the operation of a motor vehicle,
sought a writ of habeas corpus, claiming, inter alia, that certain changes
to a risk reduction earned credit program had been improperly applied
to him by the respondent, the Commissioner of Correction. The habeas
court, sua sponte and without providing the petitioner with prior notice
or an opportunity to be heard, dismissed the petitioner’s amended peti-
tion pursuant to the rule of practice (§ 23-29), concluding that it lacked
subject matter jurisdiction over that petition and that the amended
petition failed to state a claim on which habeas corpus relief could be
granted. On the granting of certification, the petitioner appealed from
the habeas court’s judgment to this court. Held that, in light of our
Supreme Court’s recent decisions in Brown v. Commissioner of Correc-
tion (345 Conn. 1), and Boria v. Commissioner of Correction (345
Conn. 39), this court concluded that, although the habeas court was not
obligated to conduct a hearing before dismissing the amended petition,
it was required to provide to the petitioner prior notice of its intention
to dismiss, on its own motion, the amended petition and an opportunity
to submit a brief or a written response addressing the proposed basis
for dismissal, which it did not do; accordingly, on remand, should the
habeas court again elect to exercise its discretion to dismiss the amended
petition, or any subsequent amended petition properly filed by the peti-
tioner, on its own motion pursuant to Practice Book § 23-29, the court
must comply with Brown and Boria by providing the petitioner with
prior notice and an opportunity to submit a brief or written response
addressing the proposed basis for dismissal.
Argued September 19—officially released November 22, 2022
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Hon. Edward J. Mullarkey,
judge trial referee, rendered judgment dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Reversed; further
proceedings.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
Steven R. Strom, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Clare Kindall, solicitor general, for the appel-
lee (respondent).
Opinion
MOLL, J. The petitioner, Marcus Hodge, appeals, fol-
lowing the granting of his petition for certification to
appeal, from the judgment of the habeas court dismiss-
ing, on its own motion, his amended petition for a writ
of habeas corpus pursuant to Practice Book § 23-29.
On appeal, the dispositive claim raised by the petitioner
is that the court improperly dismissed his amended
habeas petition under § 23-29 without notice and a hear-
ing.1 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 conclude that the habeas court
committed error in dismissing the amended habeas peti-
tion pursuant to § 23-29 without providing to the peti-
tioner prior notice of its intention to dismiss, on its
own motion, the amended habeas petition and an oppor-
tunity to submit a brief or a written response addressing
the proposed basis for dismissal. Accordingly, we
reverse the judgment of the habeas court.
The following procedural history is relevant to our
resolution of this appeal. On June 29, 2015, the peti-
tioner, representing himself, filed a petition for a writ
of habeas corpus. The same day, the petitioner filed a
request for appointment of counsel and an application
for a waiver of fees, which were granted on July 2, 2015.
On November 15, 2017, after counsel had appeared on
his behalf, the petitioner filed an amended eighteen
count petition for a writ of habeas corpus (amended
petition). The petitioner alleged that, on December 16,
2011, he was sentenced to a total effective sentence of
fifteen years of incarceration after being convicted of
manslaughter in the second degree in violation of Gen-
eral Statutes § 53a-56 (a) (1) and evading responsibility
in the operation of a motor vehicle in violation of Gen-
eral Statutes (Rev. to 2009) § 14-224 (a), stemming from
an incident that had occurred in March, 2010. The peti-
tioner’s substantive allegations implicated ‘‘the risk
reduction earned credit program that was established
in 2011, by No. 11-51 of the 2011 Public Acts . . . as
codified in General Statutes (Supp. 2012) §§ 18-98e and
54-125a, [and] which was eliminated in 2013, following
the enactment of No. 13-3, § 59, of the 2013 Public Acts
. . . .’’ Johnson v. Commissioner of Correction, 208
Conn. App. 204, 207, 264 A.3d 121, cert. denied, 340
Conn. 911, 264 A.3d 1001 (2021). Only counts two, six,
and twelve of the amended petition are relevant to this
appeal.2 In count two, the petitioner alleged that the
respondent, the Commissioner of Correction, improp-
erly applied No. 13-247 of the 2013 Public Acts, § 376,
which amended subsections (d) and (e) of General Stat-
utes (Rev. to 2013) § 54-125a, to him retroactively. In
count six, the petitioner alleged that the respondent
improperly applied No. 13-3 of the 2013 Public Acts,
§ 59, which amended subsections (b) (2), (c), and (e)
of General Statutes (Rev. to 2013) § 54-125a, to him
retroactively. In count twelve, the petitioner alleged
that ‘‘[t]he respondent’s interpretation and application
of [General Statutes] § 54-125a, as amended in 2013,
deprives the petitioner of his right to rely upon govern-
mental representations, protected by the due process
clauses of the state and federal constitutions, as
explained in Santobello v. New York, 404 U.S. 257, [92
S. Ct. 495, 30 L. Ed. 2d 427] (1971).’’
On March 19, 2018, the habeas court, Hon. Edward
J. Mullarkey, judge trial referee, dismissed, on its own
motion, the amended petition pursuant to Practice
Book § 23-29.3 The court concluded that, ‘‘[b]ecause the
petitioner has no right to earn and receive discretionary
[risk reduction earned credit], and any changes, alter-
ations, and even the total elimination of [risk reduction
earned credit] at most can only revert the petitioner to
the precise measure of punishment in place at the time
of the offense, the court concludes that it lacks subject
matter jurisdiction over the [amended] habeas corpus
petition and that the [amended] petition fails to state
a claim for which habeas corpus relief can be granted.’’
The court continued: ‘‘Consequently . . . judgment
shall enter dismissing the [amended] petition for a writ
of habeas corpus. Practice Book § 23-29 (1), (2) and
(5).’’ Thereafter, the petitioner filed a petition for certifi-
cation to appeal, which the court granted on April 12,
2018. This appeal followed.
While this appeal was pending,4 our Supreme Court
released its decisions in Brown v. Commissioner of
Correction, supra, 345 Conn. 1, and in Brown’s compan-
ion case, Boria v. Commissioner of Correction, supra,
345 Conn. 39. In those cases, our Supreme Court con-
cluded that, before dismissing, on its own motion, a
habeas petition pursuant to Practice Book § 23-29, a
habeas court must provide to the petitioner prior notice
of its intention to dismiss the habeas petition and an
opportunity to file a brief or a written response to the
proposed basis for dismissal. Brown v. Commissioner
of Correction, supra, 11; Boria v. Commissioner of
Correction, supra, 41. Our Supreme Court further con-
cluded that a habeas court is not obligated to hold a
full hearing prior to dismissing, on its own motion, a
habeas petition pursuant to § 23-29, but it may exercise
its discretion to ‘‘hold a full hearing when it deems it
appropriate.’’ Brown v. Commissioner of Correction,
supra, 17; see also Boria v. Commissioner of Correc-
tion, supra, 42–43.
Brown and Boria govern our resolution of this
appeal.5 The petitioner’s dispositive claim is that the
court improperly dismissed the amended petition pur-
suant to Practice Book § 23-29 without notice and a
hearing. Pursuant to Brown and Boria, the court was
not obligated to conduct a hearing before dismissing
the amended petition; however, it was required to pro-
vide to the petitioner prior notice of its intention to
dismiss, on its own motion, the amended petition and
an opportunity to submit a brief or a written response
vis-à-vis the proposed basis for dismissal, which the
court did not do.6 Accordingly, under the binding prece-
dent of Brown and Boria, we must reverse the court’s
dismissal of the amended petition pursuant to § 23-29
and remand the case to the habeas court.7
We next consider the appropriate course for the
habeas court to take on remand. In Brown, notwith-
standing that the habeas court in that case had issued
the writ to commence the habeas proceeding, our
Supreme Court remanded the case to the habeas court
‘‘to first determine whether any grounds exist for it to
decline to issue the writ pursuant to Practice Book § 23-
24. If the writ is issued, and the habeas court again
elects to exercise its discretion to dismiss the petition-
er’s habeas petition on its own motion pursuant to Prac-
tice Book § 23-29, it must . . . provide the petitioner
with prior notice and an opportunity to submit a brief or
a written response to the proposed basis for dismissal.’’
(Footnote omitted.) Brown v. Commissioner of Correc-
tion, supra, 345 Conn. 17–18; see also Boria v. Commis-
sioner of Correction, supra, 345 Conn. 43. Our Supreme
Court reasoned that such a remand order was proper
in Brown, as well as in Boria, because, at the time of
the respective judgments of dismissal, the habeas
courts had not had the benefit of our Supreme Court’s
decision in Gilchrist v. Commissioner of Correction,
334 Conn. 548, 223 A.3d 368 (2020). Brown v. Commis-
sioner of Correction, supra, 17; Boria v. Commissioner
of Correction, supra, 43. In Gilchrist, the habeas court
dismissed a habeas petition for lack of subject matter
jurisdiction pursuant to Practice Book § 23-29 (1), not-
withstanding that the habeas court had not issued the
writ. Gilchrist v. Commissioner of Correction, supra,
552. Our Supreme Court reversed this court’s judgment,
which had affirmed the judgment of dismissal, conclud-
ing that, rather than dismissing the habeas petition for
lack of subject matter jurisdiction under § 23-29 (1),
the habeas court should have declined to issue the
writ for lack of subject matter jurisdiction pursuant to
Practice Book § 23-24 (a) (1). Id., 563. In Brown, our
Supreme Court explained that ‘‘Gilchrist firmly estab-
lished that . . . § 23-24 acts as a gatekeeping mecha-
nism that allows a habeas court to review and dispose
of a clearly defective petition by simply providing the
petitioner with notice of its decision to decline to issue
the writ.’’ Brown v. Commissioner of Correction, supra,
10–11. In footnote 11 of Brown, our Supreme Court
advised that, ‘‘[i]n cases decided prior to Gilchrist, the
most efficient process to resolve those cases is to
remand them to the habeas court to determine first
whether grounds exist to decline the issuance of the
writ.’’ Id., 17 n.11.
We observe that footnote 11 of Brown may create
some unintended difficulties. This case presents one
such occasion. Footnote 11 of Brown contemplates, at
least in some cases decided prior to Gilchrist, a remand
to the habeas court to determine whether grounds exist
to decline the issuance of the writ pursuant to Practice
Book § 23-24, notwithstanding the fact that the writ had
already issued. See id. In Brown, however, the original
habeas petition filed by the self-represented petitioner
was the operative habeas petition that the habeas court
dismissed pursuant to Practice Book § 23-29. Id., 8. In
contrast, after counsel had appeared on his behalf in
the present case, the petitioner filed an amended habeas
petition more than two years after he had filed the
original habeas petition. Without additional guidance
from our Supreme Court, we deem the rationale of
footnote 11 of Brown to be inapplicable to the present
case.8 It would strain logic to construe footnote 11 of
Brown as advising that we should direct the habeas
court on remand to consider declining to issue the writ
under § 23-24 vis-à-vis the amended petition, which was
filed after the writ had been issued. Moreover, affording
the habeas court on remand another opportunity to
consider declining to issue the writ under § 23-24 vis-
à-vis the original habeas petition, in effect, would vitiate
the filing of the amended petition, which is not an out-
come that we believe our Supreme Court in Brown
intended.
In light of the foregoing considerations, we conclude
that the proper remedy is to reverse the judgment of
dismissal and remand the case to the habeas court for
further proceedings according to law. Should the
habeas court again elect to exercise its discretion to
dismiss the amended petition, or any subsequent
amended petition properly filed by the petitioner, on
its own motion pursuant to Practice Book § 23-29, the
court must comply with the mandate of Brown and
Boria by providing to the petitioner prior notice and
an opportunity to submit a brief or a written response
addressing the proposed basis for dismissal.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The petitioner also claims that the court improperly dismissed his
amended habeas petition pursuant to Practice Book § 23-29 on the merits.
Our conclusion that the court erred in dismissing the amended habeas
petition under § 23-29 without providing to the petitioner prior notice and
an opportunity to submit a brief or a written response is dispositive of this
appeal, and, therefore, we need not address this separate claim.
2
During oral argument before this court, the petitioner’s counsel stated
that the petitioner was claiming error only with respect to the habeas court’s
dismissal of counts two, six, and twelve of the amended petition.
3
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 corpus 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.’’
4
The petitioner filed this appeal on May 10, 2018, after he had been granted
a waiver of fees, costs, and expenses and appointment of counsel on appeal.
On September 13, 2018, this court stayed this appeal until the official release
of this court’s opinions in three habeas appeals pending at the time. On
November 1, 2019, this court lifted the stay. Thereafter, on June 30, 2020,
the petitioner filed a motion to stay this appeal, which this court granted
on July 1, 2020, pending our Supreme Court’s final resolution of Holliday
v. Commissioner of Correction, Docket No. SC 20460 (appeal dismissed
October 26, 2021). On November 12, 2021, after our Supreme Court had
dismissed Holliday on mootness grounds, this court lifted the stay.
5
On October 17, 2022, we ordered, sua sponte, the parties to file simultane-
ous supplemental briefs addressing the effect, if any, of our Supreme Court’s
decisions in Brown and Boria on this appeal. The parties filed briefs in
accordance with our order.
6
On October 10, 2017, the habeas court, Westbrook, J., issued a JDNO
notice stating in relevant part that ‘‘[t]he parties and counsel are hereby
given notice that lack of jurisdiction may be raised by the court at any
time and, therefore, the parties and counsel should anticipate presenting
arguments addressing jurisdiction at any time.’’ This notice could not have
served to notify the petitioner of the court’s intention to dismiss the amended
petition pursuant to Practice Book § 23-29 because the notice (1) preceded
the filing of the amended petition and (2) did not state that the court was
considering dismissal on the basis of lack of subject matter jurisdiction,
but, rather, that the court may raise that issue at any time in the future.
Moreover, at no point was the petitioner invited to submit a brief or a written
response in advance of the court’s judgment dismissing the amended peti-
tion.
7
In its supplemental brief, the respondent argues that Brown and Boria
do not require this court to reverse the judgment of dismissal and to remand
the case to the habeas court because the petitioner has received an opportu-
nity to be heard regarding the dismissal of his claims, which involve pure
questions of law, by virtue of this appeal, and this court is best positioned
to address the merits of the petitioner’s claims. We reject the respondent’s
argument, as we construe Brown and Boria to mandate a reversal of the
judgment of dismissal and a remand to the habeas court. Indeed, in Boria,
one of the claims raised by the petitioner was a risk reduction earned credit
challenge claim, which the habeas court dismissed for lack of subject matter
jurisdiction pursuant to Practice Book § 23-29 (1). Boria v. Commissioner
of Correction, supra, 345 Conn. 42.
8
In their respective supplemental briefs, both parties agree that, in the
event that the judgment of dismissal is reversed and the case is remanded
to the habeas court, this court should not instruct the habeas court on
remand to conduct a screening review pursuant to Practice Book § 23-24.