***********************************************
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.
***********************************************
TERRANCE STEVENSON v. COMMISSIONER
OF CORRECTION
(AC 41911)
Bright, C. J., and Moll and Bishop, Js.
Syllabus
The petitioner, who had been convicted of the crimes of murder as an
accessory and conspiracy to commit murder, sought a writ of habeas
corpus, claiming that his sentence of sixty years of incarceration without
the possibility of parole was illegal because it constituted cruel and
unusual punishment under the federal and state constitutions in light
of his age, eighteen years old, at the time of the crimes and the emerging
science concerning juvenile brain development. Pursuant to the rule of
practice (§ 23-29 (2)) governing the dismissal of habeas petitions, the
habeas court rendered judgment dismissing the petition on the ground
that the petition failed to state a claim on which habeas corpus relief
could be granted. Thereafter, on the granting of certification, the peti-
tioner appealed to this court. Held:
1. The habeas court improperly dismissed the habeas petition: that court,
by dismissing the habeas petition pursuant to Practice Book § 23-29 (2)
during its preliminary consideration of the petition and prior to issuing
the writ of habeas corpus, failed to follow the proper procedure as
outlined in Gilchrist v. Commissioner of Correction (334 Conn. 548);
moreover, this court concluded that it was not appropriate to remand
the case to the habeas court with direction to decline to issue the writ
because the petition was not amenable to declination under the relevant
rule of practice (§ 23-24 (a)), as there was no claim that the habeas
court lacked jurisdiction over the petition, the petition advanced a claim
that was not frivolous on its face and, because the petitioner is still
incarcerated and advanced a colorable claim under our state constitu-
tion, the relief sought may be available; accordingly, the judgment was
reversed and the case was remanded for further proceedings.
2. The respondent Commissioner of Correction could not prevail on his
claim that the petitioner’s state constitutional claim was procedurally
defaulted because the habeas petition was not the proper procedural
mechanism to pursue that claim; contrary to the respondent’s assertion
that this court should affirm the habeas court’s judgment of dismissal
even though the procedural default issue was not litigated in the habeas
court, this court could not rely on the mere possibility of a successful
procedural default defense as an ex post facto justification of the habeas
court’s dismissal, without a hearing, of the habeas petition pursuant to
Practice Book § 23-29 (2).
Argued March 3—officially released July 27, 2021
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Kwak, J., rendered judgment dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Reversed; further
proceedings.
David J. Reich, for the appellant (petitioner).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, was Patrick J. Griffin, state’s
attorney, for the appellee (respondent).
Opinion
BISHOP, J. The petitioner, Terrance Stevenson,
appeals from the judgment of the habeas court dismiss-
ing his petition for a writ of habeas corpus for failure
to state a claim upon which habeas relief could be
granted pursuant to Practice Book § 23-29 (2).1 Specifi-
cally, the petitioner claims that the sentence of sixty
years without the possibility of parole imposed after his
underlying criminal trial is illegal because it constitutes
cruel and unusual punishment under the United States
and Connecticut constitutions, and that the habeas
court could have determined that emerging science con-
cerning juvenile brain development entitled him to a
lesser sentence. We conclude that the habeas court
improperly dismissed the habeas petition, and, accord-
ingly, we reverse the judgment of the habeas court.
The following facts and procedural history are perti-
nent to our disposition of this appeal. The petitioner,
whose date of birth is April 21, 1975, was accused of
participating in a murder that occurred on March 21,
1994, when he was eighteen years old. On February 15,
1996, the petitioner was found guilty by a jury of murder
as an accessory in violation of General Statutes §§ 53a-
8 and 53a-54a (a), and conspiracy to commit murder in
violation of General Statutes §§ 53a-48 (a) and 53a-54a
(a). On April 18, 1997, the trial court sentenced the
petitioner to a total effective sentence of sixty years of
incarceration without the possibility of parole.
The petitioner filed the underlying habeas petition
on May 24, 2018, asserting that his sixty year sentence
without the possibility of parole was unconstitutional
under both the United States and Connecticut constitu-
tions. His assertion is based on his argument that such
a sentence is tantamount to a life sentence and that, in
light of his age at the time the crimes were committed,
such a sentence constitutes cruel and unusual punish-
ment. In furtherance of that claim, and mindful of recent
decisional law pertaining to such sentences imposed
on those who were minors at the time of their offenses,
the petitioner alleged that the science pertaining to
juvenile traits ‘‘indicates that the same indicia of youth
that made life imprisonment without parole unconstitu-
tional for those under [eighteen] in [Miller v. Alabama,
567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)]
also applies to [eighteen] year olds.’’
On June 6, 2018, the habeas court rendered a judg-
ment of dismissal, stating: ‘‘The habeas corpus petition
is dismissed and is being returned because the petition
fails to state a claim upon which habeas corpus relief
can be granted per . . . Practice Book § 23-29 (2).
Judgment of dismissal is entered.’’ On June 13, 2018,
the petitioner filed a petition for certification to appeal
to this court, which the habeas court denied. Neverthe-
less, the petitioner appealed to this court on July 25,
2018, arguing in part that the habeas court’s denial of
his petition for certification was an abuse of discretion.
Additionally, on June 27, 2019, the petitioner filed a
motion for permission to file a late amended petition
for certification to appeal seeking reconsideration of
the denial of his petition for certification to appeal,
with an attached amended petition for certification to
appeal. In that motion, the petitioner asserted that his
case also relied on the Connecticut constitution. His
motion and his amended petition for certification to
appeal were granted on July 1, 2019.
I
The petitioner argues that he has a valid claim on
which habeas corpus relief can be granted because the
habeas court could determine that there is no significant
difference between individuals ‘‘just under [eighteen]
years old and those just over [eighteen] years old,’’
thereby entitling him to relief under the United States
and Connecticut constitutions.2 Additionally, the peti-
tioner makes the procedural argument that the court
incorrectly dismissed his habeas petition without giving
him an opportunity to be heard on the merits. The
respondent, the Commissioner of Correction (commis-
sioner), counters that we need not reach the merits of
the petitioner’s claim because, ‘‘[a]lthough the habeas
court’s judgment invokes [Practice Book] § 23-29 (2),
the timing of the judgment and its reference to returning
the petition reveals that it did so as part of its prelimi-
nary consideration of the [habeas] petition under [Prac-
tice Book] § 23-24 (a) (3). Accordingly, the habeas court
should have declined to issue the writ rather than dis-
missing [the petition], and this case should be remanded
to the habeas court with direction to decline to issue
the writ of habeas corpus.’’ Although we agree with the
commissioner that we need not reach the underlying
merits of the petitioner’s claim, we disagree with the
commissioner’s assertion that we should treat the
court’s dismissal pursuant to Practice Book § 23-29 (2)
as the practical equivalent of a declination to issue the
writ under Practice Book § 23-24 (a) (3). Regardless,
however, we conclude that the habeas petition facially
is not amenable to declination pursuant to § 23-24 on
the basis of the allegations set forth in the petition.
Pursuant to Practice Book § 23-24, once a petition
for a writ of habeas corpus is filed in the Superior Court,
‘‘[t]he judicial authority shall promptly review [the] peti-
tion . . . to determine whether the writ should issue.
The judicial authority shall issue the writ unless it
appears that . . . the court lacks jurisdiction . . . the
petition is wholly frivolous on its face . . . or . . . the
relief sought is not available.’’ Here, the habeas court
did not exercise the gatekeeping function of the provi-
sion to decline to issue the writ. Rather, it was docketed
by the court. Once a case is on the habeas docket,
the court may dismiss a case for any of the reasons
enumerated in Practice Book § 23-29, which provides
in relevant part that ‘‘[t]he judicial authority may, at
any time, upon its own motion or upon motion of the
respondent, dismiss the petition . . . if it determines
that . . . the court lacks jurisdiction . . . [or] the peti-
tion . . . fails to state a claim upon which habeas cor-
pus relief can be granted . . . .’’ Although both § 23-
24 and § 23-29 set forth separate bases on which a court
may dispose of a petition without trial, the provisions
are not altogether parallel. Section 23-24 focuses on the
relief sought, and it provides a vehicle for the court to
exercise a gatekeeping function 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 frivo-
lous on its face, or the relief requested in the petition
is not available. Section 23-29 focuses instead on the
nature of the claim set forth in a petition, and it applies
only once the writ has been issued.
In Gilchrist v. Commissioner of Correction, 334
Conn. 548, 223 A.3d 368 (2020), our Supreme Court had
occasion to clarify the proper procedure to be used
when a habeas court engages in its preliminary consid-
eration of a habeas petition under Practice Book § 23-
24, in contrast to its authority to dismiss a petition
under Practice Book § 23-29. In Gilchrist, the court
stated that, ‘‘when a petition for a writ of habeas corpus
alleging a claim of illegal confinement is submitted to
the court, the following procedures should be followed.
First, upon receipt of a habeas petition that is submitted
under oath and is compliant with the requirements of
Practice Book § 23-22 . . . the judicial authority must
review the petition to determine if it is patently defec-
tive because the court lacks jurisdiction, the petition
is wholly frivolous on its face, or the relief sought is
unavailable. Practice Book § 23-24 (a). If it is clear that
any of those defects are present, then the judicial
authority should issue an order declining to issue the
writ, and the office of the clerk should return the peti-
tion to the petitioner explaining that the judicial author-
ity has declined to issue the writ pursuant to § 23-24.
Practice Book § 23-24 (a) and (b). If the judicial author-
ity does not decline to issue the writ, then it must
issue the writ, the effect of which will be to require the
[commissioner] to enter an appearance in the case and
to proceed in accordance with applicable law. At the
time the writ is issued, the court should also take action
on any request for the appointment of counsel and any
application for the waiver of filing fees and costs of
service. See Practice Book §§ 23-25 and 23-26. After the
writ has issued, all further proceedings should continue
in accordance with the procedures set forth in our rules
of practice, including Practice Book § 23-29.’’ Gilchrist
v. Commissioner of Correction, supra, 562–63. The pro-
cedure outlined in Gilchrist was not followed by the
habeas court in the present case.
In Gilchrist, the habeas court dismissed the habeas
petition without notice to the petitioner or an opportu-
nity to be heard on the ground that the ‘‘court lack[ed]
jurisdiction pursuant to . . . Practice Book § 23-29 (1),
as the petitioner was no longer in custody for the convic-
tion being challenged at the time the petition was filed.’’
(Internal quotation marks omitted.) Id., 552. Under
those circumstances, our Supreme Court noted that ‘‘it
is undisputed that the petitioner is not entitled to the
appointment of counsel or notice and an opportunity
to be heard in connection with the [habeas] court’s
decision to decline to issue the writ . . . .’’ Id., 563.
Accordingly, the court remanded the case to the habeas
court with direction to decline to issue the writ of
habeas corpus. Id.
In the present case, however, such a remand would
not be appropriate because the petition is not amenable
to declination pursuant to Practice Book § 23-24. There
is no claim that the habeas court lacked jurisdiction
over the petition, the petition advances a claim that is
not frivolous on its face, and, because the petitioner is
still incarcerated and advances a colorable claim under
our state constitution, the relief sought may be avail-
able. See Practice Book § 23-24. Indeed, in State v.
Miller, 186 Conn. App. 654, 663, 200 A.3d 735 (2018),
this court specifically noted, with respect to whether
the ‘‘increased understanding of psychology and brain
science that underlies our eighth amendment jurispru-
dence . . . justifies interpreting our state constitu-
tional guarantees protecting against cruel and unusual
punishment to apply to individuals who were nineteen
years old when they committed the underlying offense,’’
that ‘‘[w]e express no opinion regarding the merits of
this novel claim.’’ (Citation omitted.) Accordingly, in
the present case, the writ should have issued, the case
should have been docketed, and the habeas court
should have appointed counsel.3
II
The commissioner claims that the habeas petition ‘‘is
not the proper procedural mechanism for the petitioner
to pursue his state constitutional claim.’’ Rather, the
commissioner argues, relying on Cobham v. Commis-
sioner of Correction, 258 Conn. 30, 779 A.2d 80 (2001),
that, ‘‘before a petitioner can raise a challenge to the
legality of his sentence in a habeas petition, he first
must appeal the sentence directly or file a motion to
correct the sentence pursuant to [Practice Book] § 43-
22 with the trial court. A motion to correct is the appro-
priate procedural mechanism because it results in a
more prompt consideration of the claim and a trial
court, not the habeas court, has the authority to resen-
tence a defendant if it is determined that the original
sentence is illegal.’’ (Internal quotation marks omitted.)
Relying on Cobham, the commissioner argues that
we should affirm the court’s dismissal even though the
procedural default issue was not litigated in the habeas
court. Procedural default, however, is a special defense
that the commissioner must raise in the pleadings and
to which the petitioner is entitled to respond. Practice
Book § 23-30 (b) provides: ‘‘The return shall respond
to the allegations of the petition and shall allege any
facts in support of any claim of procedural default,
abuse of the writ, or any other claim that the petitioner
is not entitled to relief.’’ (Emphasis added.) Practice
Book § 23-31 provides in relevant part: ‘‘(a) If the return
alleges any defense or claim that the petitioner is not
entitled to relief . . . the petitioner shall file a reply.
. . . (c) The reply shall allege any facts and assert any
cause and prejudice claimed to permit review of any
issue despite any claimed procedural default. . . .’’
(Emphasis added.) The record is devoid of any such
procedural history, and, accordingly, although we are
mindful of the holding of Cobham, we do not have the
benefit of any factual allegations the petitioner may
have in response to the commissioner’s claim, raised
for the first time in this appeal, that the petitioner should
be procedurally barred from attacking his sentence
through the vehicle of a habeas petition without first
moving to correct his sentence as having been illegally
imposed on him. Accordingly, we cannot rely on the
mere possibility of a successful procedural default
defense as an ex post facto justification of the habeas
court’s dismissal, without a hearing, of the habeas peti-
tion pursuant to Practice Book § 23-29.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion or upon the motion of the respondent,
dismiss the petition, or any count thereof, if it determines that . . . (2) the
petition, or a count thereof, fails to state a claim upon which habeas corpus
relief can be granted . . . .’’
2
We note that this court has recognized previously that claims similar to
the petitioner’s claim are meritless under the United States constitution.
See, e.g., Haughey v. Commissioner of Correction, 173 Conn. App. 559, 568,
164 A.3d 849, cert. denied, 327 Conn. 906, 170 A.3d 1 (2017) (‘‘Expanding
the application of Miller to offenders eighteen years of age or older simply
does not comport with existing eighth amendment jurisprudence pertaining
to juvenile sentencing. The United States Supreme Court in Miller held ‘that
mandatory life without parole for those under the age of [eighteen] at the
time of their crimes violates the [e]ighth [a]mendment’s prohibition on cruel
and unusual punishments.’ Miller v. Alabama, [supra, 567 U.S. 465].’’
(Emphasis in original.)). The petitioner’s claim under the Connecticut consti-
tution, however, presents a novel question on which the appellate courts
of this state have expressed no opinion.
3
We are mindful that our Supreme Court has granted certification in
connection with two of this court’s decisions regarding the procedure for
the habeas court to employ under Practice Book § 23-29 and that those
appeals are currently pending in our Supreme Court. See Boria v. Commis-
sioner 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). The certified question in both of those cases
is as follows: ‘‘Did the Appellate Court properly uphold the habeas court’s
sua sponte dismissal of the petition for a writ of habeas corpus under
Practice Book § 23-29 prior to the appointment of counsel for the self-
represented petitioner and without providing the petitioner with notice and
an opportunity to be heard?’’ Boria v. Commissioner of Correction, 335
Conn. 901, 225 A.3d 685 (2020); Holliday v. Commissioner of Correction,
335 Conn. 901, 225 A.3d 960 (2020).