Villafane v. Commissioner of Correction

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          ANGEL VILLAFANE v. COMMISSIONER
                   OF CORRECTION
                      (AC 43232)
                       Elgo, Suarez and DiPentima, Js.

                                    Syllabus

The petitioner, who had been convicted, on a plea of guilty, to burglary in
    the first degree and criminal violation of a protective order, sought a
    writ of habeas corpus. The habeas court, on its own motion and without
    providing the petitioner with prior notice or an opportunity to be heard,
    dismissed the petitioner’s amended petition pursuant to the rule of
    practice (§ 23-29), concluding that the petitioner’s guilty plea waived
    any alleged constitutional defects not involving the court’s jurisdiction
    and that the complaint attacked only issues that were outside the juris-
    diction of the habeas court. Thereafter, the habeas court denied the
    petition for certification to appeal, and the petitioner appealed to this
    court. Held:
1. The trial court abused its discretion in denying the petition for certification
    to appeal: in light of our Supreme Court’s recent decisions in Brown v.
    Commissioner of Correction (

), and Boria v. Commissioner
    of Correction (

), the issue raised in the petitioner’s petition
    for certification to appeal concerning the right to notice and a right to
    be heard prior to a dismissal under Practice Book § 23-29 was debatable
    among jurists of reason, a court could resolve the issue in a different
    manner, and the issue deserved encouragement to proceed further.
2. This court concluded that, although the habeas court was not required
    to hold a full hearing, the petitioner was entitled to notice of that court’s
    intention to dismiss and an opportunity to file a brief or a written
    response concerning the proposed basis for dismissal, which it did not
    do; accordingly, on remand, should the habeas court consider dismissal
    of 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 procedure set forth in 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 January 13, 2021—officially released December 13, 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, Newson, J., rendered judg-
ment dismissing the petition; thereafter, the court
denied the petition for certification to appeal, and the
petitioner appealed to this court. Reversed; further pro-
ceedings.
   Cheryl A. Juniewic, for the appellant (petitioner).
   James M. Ralls, assistant state’s attorney, with whom
were Angela R. Macchiarulo, senior assistant state’s
attorney, and Matthew C. Gedansky, state’s attorney,
and, on the brief, Rocco A. Chiarenza, senior assistant
state’s attorney, and Margaret E. Kelley, state’s attor-
ney, for the appellee (respondent).
                          Opinion

   SUAREZ, J. The petitioner, Angel Villafane, appeals,
following the denial 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 § 23-29.1
The petitioner argues that the court abused its discre-
tion in denying his petition for certification to appeal
and claims that the court improperly dismissed his peti-
tion for a writ of habeas corpus without affording him
an opportunity to be heard. We agree that the court
abused its discretion by denying the petition for certifi-
cation to appeal. Further, we conclude, in light of our
Supreme Court’s recent decisions in Brown v. Commis-
sioner of Correction, 

, 

 (2022),
and in Brown’s companion case, Boria v. Commis-
sioner of Correction, 

, 

 (2022),
that the habeas court improperly dismissed the petition
for a writ of habeas corpus pursuant to § 23-29 without
providing the petitioner with prior notice of its intention
to dismiss, on its own motion, the 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 undisputed procedural history is rele-
vant to our resolution of this appeal. ‘‘On December
17, 2014, the petitioner pleaded guilty to one count
of burglary in the first degree in violation of General
Statutes § 53a-101 (a) (2) and one count of criminal
violation of a protective order in violation of General
Statutes § 53a-223. The petitioner also admitted to vio-
lating his probation in two instances and violating a
conditional discharge in violation of General Statutes
§ 53a-32. According to the factual basis provided by
the state at the petitioner’s plea hearing, the petitioner
forced his way into a house occupied by a woman with
whom he had [had] a previous relationship, where he
proceeded to strike her ‘several times in the head, and
then grabbed a knife from the kitchen and attempted
to stab her . . . .’ The prosecutor indicated that the
woman’s daughter called the police, and, at that time,
the petitioner fled from the residence. After canvassing
the petitioner, the court determined that the pleas had
been ‘knowingly and voluntarily made’ and were sup-
ported by a factual basis.
   ‘‘At the petitioner’s sentencing hearing on February
25, 2015, the court imposed a total effective sentence
of eight years [of] incarceration followed by seven years
of special parole. The court terminated the other proba-
tions that the petitioner was serving at the time.’’ Vil-
lafane v. Commissioner of Correction, 

, 567–68, 

, cert. denied, 

,

 (2019).
  In 2015, the petitioner filed a petition for a writ of
habeas corpus in which he alleged that, in connection
with the plea hearing that occurred in this case, his
trial counsel had not provided effective assistance and
that the trial court, Iannotti, J., had improperly refused
to grant his motion to dismiss his trial counsel. Id.,
568. The petitioner appealed from the judgment of the
habeas court, Sferrazza, J., denying the petition for a
writ of habeas corpus following its denial of his petition
for certification to appeal. Id., 567. This court dismissed
the petitioner’s subsequent appeal. Id.
   On August 16, 2017, the petitioner, in a self-repre-
sented capacity, filed a petition for a writ of habeas
corpus in the present habeas action.2 On August 28,
2017, the court granted the petitioner’s application for
waiver of fees and his request for the appointment of
counsel. On April 11, 2018, the court granted the motion
of the petitioner’s appointed counsel, Attorney Robert
O’Brien, to withdraw his appearance due to the petition-
er’s expressed desire to represent himself. On October
5, 2018, the petitioner, in a self-represented capacity,
filed an amended petition for a writ of habeas corpus.
On November 19, 2018, the respondent, the Commis-
sioner of Correction, filed his return. On the same day,
the petitioner filed his reply. On May 3, 2019, the parties
filed a certificate of closed pleadings and the court
issued a scheduling order that, among other things, set
a trial date of September 25, 2019.
  On May 14, 2019, the petitioner filed a motion
requesting the appointment of standby counsel. On May
24, 2019, the petitioner filed a motion for summary
judgment. The court did not rule on either of these
motions.
  On May 28, 2019, the court, Newson, J., on its own
motion, issued an order in which it dismissed the
amended petition for a writ of habeas corpus. The court
did not afford the petitioner prior notice of its intention
to dismiss the amended petition or any opportunity to
address the proposed basis for its dismissal. The court
stated: ‘‘Upon review of the complaint . . . the court
hereby gives notice pursuant to Practice Book § 23-29
that the matter has been dismissed for the following
reasons: (1) The court lacks jurisdiction . . . . More
specifically, the petitioner entered a guilty plea, which
waived any alleged constitutional defects not involving
the court’s jurisdiction. . . .
   ‘‘The complaint, read in a light most favorable to the
petitioner, does not attack the voluntary, intelligent or
knowing nature of the plea, but attacks the sufficiency
of the evidence to support the plea, separation of pow-
ers, and the Code of Judicial Conduct, none of which
falls within the jurisdiction of the habeas court. . . .’’
(Citations omitted; internal quotation marks omitted.)
   Thereafter, the petitioner filed a petition for certifica-
tion to appeal in accordance with General Statutes § 52-
470 (g).3 One of the grounds on which the petitioner
sought certification to appeal concerned the fact that
the court had dismissed the appeal without affording
him ‘‘the right to argue in opposition [to the dismissal]
after being aware of the proposed grounds for such
dismissal . . . .’’ The court denied the petition for certi-
fication to appeal. This appeal followed.4
   Beyond arguing that the court abused its discretion
in denying his petition for certification to appeal, the
sole claim raised on appeal by the petitioner focuses
on the propriety of the court’s dismissal of the amended
petition pursuant to Practice Book § 23-29, following
the issuance of the writ and on its own motion, without
affording him notice and a right to be heard with respect
to the proposed grounds for the dismissal. On January
13, 2021, this court heard oral argument in this appeal.
On October 17, 2022, we ordered the parties to file
supplemental briefs ‘‘addressing the effect, if any, of
Brown v. Commissioner of 

], and Boria v. Commissioner of 

], on this appeal, including whether,
if the judgment of dismissal is reversed, the habeas
court should be directed on remand ‘to first determine
whether any grounds exist for it to decline to issue
the writ pursuant to Practice Book § 23-24.’ Brown v.
Commissioner of 

 17 and n.11; Boria
v. Commissioner of 

.’’ The parties
have submitted briefs in compliance with our supple-
mental briefing order.
   We first turn to the threshold argument that the court
abused its discretion in denying the petition for certifi-
cation to appeal. Our inquiry is well established. ‘‘Faced
with the habeas court’s denial of certification to appeal,
a petitioner’s first burden is to demonstrate that the
habeas court’s ruling constituted an abuse of discretion.
. . . A petitioner may establish an abuse of discretion
by demonstrating that the issues are debatable among
jurists of reason . . . [the] court could resolve the
issues [in a different manner] . . . or . . . the ques-
tions are adequate to deserve encouragement to pro-
ceed further. . . . The required determination may be
made on the basis of the record before the habeas court
and applicable legal principles. . . . If the petitioner
succeeds in surmounting that hurdle, the petitioner
must then demonstrate that the judgment of the habeas
court should be reversed on its merits.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Crespo v. Commissioner of Correction, 

, 

 (2009).
  In light of our Supreme Court’s decisions in Brown
and Boria, we conclude that the issue raised in the
petitioner’s petition for certification to appeal concern-
ing the right to notice and a right to be heard prior to
a dismissal under Practice Book § 23-29 is debatable
among jurists of reason, that a court could resolve the
issue in a different manner, and that the issue deserves
encouragement to proceed further. Accordingly, we
conclude that the court’s denial of the petition for certi-
fication to appeal reflects an abuse of discretion.
   Turning to the merits of the appeal, we conclude, as
do the parties in their supplemental briefs, that Brown
and Boria, both of which address claims similar to the
claim before us, not only govern our resolution of the
appeal but require a reversal of the judgment of dis-
missal. In Brown, the court concluded ‘‘that [Practice
Book] § 23-29 requires the habeas court to provide prior
notice of the court’s intention to dismiss, on its own
motion, a petition that it deems legally deficient and
an opportunity to be heard on the papers by filing a
written response. The habeas court may, in its discre-
tion, grant oral argument or a hearing, but one is not
mandated.’’ Brown v. Commissioner of Correction,
supra, 

. In Boria, our Supreme Court
adopted the reasoning and conclusions set forth in
Brown. Boria v. Commissioner of Correction, supra,

.
   In his principal appellate brief, the petitioner frames
his claim in somewhat broad terms. He argues that the
court acted improperly in that ‘‘[he] received no notice,
constructive or otherwise, that the court was consider-
ing dismissing his habeas corpus petition. More import-
antly, the petitioner certainly did not have any opportu-
nity to respond to the court’s motion to dismiss his
petition, nor did the court schedule a hearing regarding
any potential dismissal.’’ The petitioner further argues
that the court denied him the ‘‘right to be heard’’ on
the court’s decision to sua sponte dismiss the amended
petition. In portions of his argument, the petitioner also
refers to the absence of a ‘‘hearing,’’ stating that the
court committed error in that he was ‘‘entitled to a
hearing’’ with respect to the dismissal of the amended
petition under Practice Book § 23-29 and that ‘‘no hear-
ing was ever held’’ prior to the dismissal. We agree with
the petitioner that, prior to the sua sponte dismissal,
he was entitled to notice of the court’s intention to
dismiss and an opportunity to file a brief or a written
response concerning the proposed basis for dismissal.
Brown and Boria, however, do not support the petition-
er’s argument, echoed in his supplemental brief, that
the court was obligated to hold a full hearing. As stated
previously in this opinion, the court is not required to
hold a full hearing but may exercise its discretion to
do so in cases in which it is deemed to be appropriate.
   We conclude that the proper remedy is for us to
reverse the court’s dismissal of the amended petition
and to remand the case to the habeas court for further
proceedings according to law. If the court considers
dismissal of the amended petition, or any amended peti-
tion properly filed by the petitioner, on its own motion
pursuant to Practice Book § 23-29, the court must com-
ply with the procedure set forth in Brown and Boria
by providing the petitioner with prior notice of its pro-
posed basis for dismissal and affording the petitioner
at least an opportunity to submit a brief or written
response addressing the matter.
   We must next consider an additional issue concerning
the proper course for the habeas court to take on
remand. We note that the judgment of dismissal in the
present case occurred prior to our Supreme Court’s
decision in Gilchrist v. Commissioner of Correction,

, 

 (2020). In Gilchrist, our
Supreme Court attempted to clarify the proper applica-
tion of Practice Book §§ 23-245 and 23-29. In Gilchrist,
the court stated that ‘‘the screening function of Practice
Book § 23-24 plays an important role in habeas corpus
proceedings, but it is intended only to weed out obvi-
ously 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 the 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 justicia-
ble 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
[Practice Book] § 23-24, the habeas court should issue
the writ and appoint counsel so that any potential defi-
ciencies can be addressed in the regular course after
the proceeding has commenced.’’ (Citations omitted;
internal quotation marks omitted.) Id., 560–61. The
court explained that, ‘‘[i]n contrast [to Practice Book
§ 23-24], Practice Book § 23-29 contemplates the dis-
missal of a habeas petition after the writ has issued on
any of the enumerated grounds.’’ Id., 561.
   We note that, in Brown, the habeas court, relying on
Practice Book § 23-29 and without having the benefit
of our Supreme Court’s decision in Gilchrist, sua sponte
dismissed a petitioner’s original habeas petition, which
the petitioner had filed in a self-represented capacity.
Brown v. Commissioner of Correction, supra, 

. This occurred, however, after the writ had
issued to commence the habeas proceeding and the
court had granted the petitioner’s request for the
appointment of counsel and his application for a waiver
of fees. Id. In reversing the judgment of dismissal on
the grounds that the habeas court improperly failed to
afford the petitioner prior notice and an opportunity to
submit a brief or written response, the court in Brown
directed this court to remand the case to the habeas
court with direction to first consider whether any
grounds existed for it to decline to issue the writ under
Practice Book § 23-24. Id., 17. The court explained that
‘‘[b]ecause the habeas court in the present case did not
have the benefit of this court’s decision in Gilchrist,
the case must be remanded to the habeas court for it
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.) Id., 17–18; see also Boria v. Com-
missioner of Correction, supra, 

. In foot-
note 11 of its opinion, the court in Brown also stated:
‘‘We are aware that there are other cases pending before
this court and the Appellate Court that were decided
without the benefit of this court’s decision in Gilchrist.
. . . In cases decided prior to Gilchrist, the most effi-
cient 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.’’ (Citation omit-
ted.) Brown v. Commissioner of Correction, supra, 

 n.11.
  In the present case, the petitioner argues that because
the writ has issued and the dismissal occurred after
counsel was appointed to represent him, he had filed
an amended petition, and the case had advanced to a
stage in which a trial date had been set, ‘‘[t]here is no
reason’’ for this court to remand the case to the habeas
court with direction to consider whether it should
decline to issue the writ under Practice Book § 23-24.
The respondent urges us to conclude that, because the
dismissal in the present case occurred prior to the offi-
cial release of Gilchrist, this case ‘‘falls squarely within
the remand order contemplated by the [Supreme Court]
in Brown and Boria.’’
   Although the present dismissal occurred prior to
Gilchrist, we are not persuaded that we should apply
the rationale in footnote 11 of Brown to the present
case. Unlike in Brown and Boria, the dismissal in the
present case occurred not merely after the writ had
issued but after counsel had appeared on the petition-
er’s behalf and an amended petition was filed. In fact,
in the present case, the petitioner filed the operative
petition—his amended petition—nearly fourteen
months after he filed his original petition. Although we
recognize that the petitioner filed the amended petition
in a self-represented capacity, the record suggests at a
minimum that he did so after having received the advice
of his assigned counsel concerning the merits of the
habeas action.6 The fact that an amended petition had
been filed at the time of the court’s dismissal in this
case leads us to conclude that the proper course on
remand is not for the court to first consider whether
declining to issue the writ under Practice Book § 23-24
is warranted. In so concluding, we rely on this court’s
recent decision in Hodge v. Commissioner of Correc-
tion, 

,         A.3d      (2022), which
addressed a very similar issue. In Hodge, this court
reasoned that ‘‘[i]t would strain logic to construe foot-
note 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. More-
over, 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 outcome that we believe our Supreme Court
in Brown intended.’’ (Emphasis in original.) Id., 623–24.
  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: ‘‘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.’’
   2
     In this appeal, we do not address the grounds set forth in the petition
for a writ of habeas corpus or the amended petition for a writ of habeas
corpus as it is unnecessary for us to do so.
   3
     General Statutes § 52-470 (g) provides: ‘‘No appeal from the judgment
rendered in a habeas corpus proceeding brought by or on behalf of a person
who has been convicted of a crime in order to obtain such person’s release
may be taken unless the appellant, within ten days after the case is decided,
petitions the judge before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated by the Chief Court
Administrator, to certify that a question is involved in the decision which
ought to be reviewed by the court having jurisdiction and the judge so certi-
fies.’’
   4
     In contrast to the proceedings before the habeas court, during the appeal
process, the petitioner has been represented by counsel.
   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
     As stated previously in this opinion, on August 16, 2017, the petitioner
filed his original petition in this case in a self-represented capacity. On August
28, 2017, the court granted the petitioner’s request for the appointment of
counsel. On April 11, 2018, the court granted appointed counsel’s motion
to withdraw his appearance. In that motion, counsel represented to the
court that, during the course of his representation, he had had two in-person
visits and one telephone conversation with the petitioner and had sent three
separate letters to the petitioner concerning the merits of the habeas action.
He also stated that he had ‘‘investigated the case and discussed possible
claims and limitations in pursuing [the habeas corpus action].’’ The petition-
er’s counsel also stated that he had provided the petitioner with a letter
‘‘which contained a summary of [counsel’s] legal analysis and strategic
recommendations’’ concerning the habeas corpus action. Counsel repre-
sented that, ultimately, the petitioner conveyed to him ‘‘that he desired to
represent himself . . . .’’ The petitioner filed his amended petition in this
case, acting once again in a self-represented capacity, on October 5, 2018.