November 28, 2017
for a writ of habeas corpus, brought to the Superior Court in
the judicial district of Tolland, where the court,
Oliver, J., dismissed the petition and rendered
judgment thereon, from which the petitioner, on the granting
of certification, appealed to this court. Affirmed.
V. Patterson, senior assistant public defender, for
the appellant (petitioner).
A. Killen, senior assistant state's attorney, with whom,
on the brief, was John C. Smriga, state's attorney, for
the appellee (respondent).
Prescott, Elgo and Harper, Js.
petitioner, Anthony Gilchrist, appeals from the judgment of
the habeas court dismissing his petition for a writ of habeas
corpus for lack of subject matter jurisdiction because, at
the time he filed the petition, he was not in custody as a
result of the conviction that he challenges. On appeal, the
petitioner asserts that he was denied his rights to due
process, assigned counsel, and notice and a hearing, when the
court, sua sponte, dismissed his petition for lack of subject
matter jurisdiction. The respondent, the Commissioner of
Correction, contends that the court was not required to hold
a hearing because the petitioner was not in custody at the
time he filed the petition. We agree with the respondent and,
accordingly, affirm the judgment of the habeas court.
following facts and procedural history are relevant to this
appeal. On June 24, 2016, the petitioner, representing
himself, filed a petition for a writ of habeas corpus. In his
petition, under the ‘‘details of conviction and
sentence now being served'' section, he listed the
location of the court as ‘‘Bridgeport low
court.'' The petitioner further stated that he
pleaded guilty on ‘‘9/ 2013'' in
‘‘CR-12-267383, robbery in the third degree,
'' and listed the total effective sentence as
‘‘unconditional discharge.'' In a
handwritten attachment to his petition, he stated,
‘‘[m]y plea bargain was not followed because my
lawyer stated [specifically] that the robbery third charge
would not make me 85 [percent] due to the unconditional
discharge and it being on a completely separate
[docket].'' He also attached a letter that he
received from the Board of Pardons and Paroles, which stated
in relevant part: ‘‘[Y]ou are ineligible for
parole until you have served not less than 85 [percent] of
your definite sentence imposed by the court.'' As
relief, the petitioner requested that the court allow him to
withdraw his guilty plea and ‘‘vacate and/or
dismiss [the] charge.''
28, 2016, the court, sua sponte and without holding a
hearing, dismissed the petition for lack of subject matter
jurisdiction pursuant to Practice Book § 23-29 (1),
explaining that ‘‘the petitioner was no longer in
custody for the conviction being challenged at the time the
petition was filed.'' The petitioner filed a motion
to reconsider, which was denied on August 18, 2016. The court
subsequently granted the petition for certification to
appeal, the petitioner claims that he improperly was denied
his constitutional and statutory rights to due process, to
notice of a hearing, to assigned counsel, and to be heard on
his petition, in violation of General Statutes § 52-470
(a) and Practice Book § 23-24. Additionally, the petitioner
claims that his pleadings could be construed to state a
cognizable claim for relief, i.e., the court could infer, on
the basis of the information in his petition, that he was
incarcerated on a separate conviction for which his parole
eligibility was affected by his plea of guilty to robbery in
the third degree. The petitioner argues that once the
‘‘habeas case [was] docketed, '' the
court is required to provide him with assigned counsel and
the opportunity to attend any dispositive hearing. Moreover,
the petitioner argues that because he filed his petition
without the assistance of counsel, the court should have
inferred that it had subject matter jurisdiction on the basis
of a broad and liberal interpretation of the pleadings. In
response, the respondent contends that the court's sua
sponte dismissal for lack of subject matter jurisdiction was
proper and that the court appropriately construed the
petition as challenging an expired conviction.
first set forth our well established standard of review and
relevant legal principles. ‘‘Subject matter
jurisdiction for adjudicating habeas petitions is conferred
on the Superior Court by General Statutes § 52-466,
which gives it the authority to hear those petitions that
allege illegal confinement or deprivation of liberty. . . .
We have long held that because [a] determination regarding a
trial court's subject matter jurisdiction is a question
of law, our review is plenary. . . . Moreover, [i]t is a
fundamental rule that a court may raise and review the issue
of subject matter jurisdiction at any time. . . . Subject
matter jurisdiction involves the authority of the court to
adjudicate the type of controversy presented by the action
before it. . . . [A] court lacks discretion to consider the
merits of a case over which it is without jurisdiction . . .
. The subject matter jurisdiction requirement may not be
waived by any party, and also may be raised by a party, or by
the court sua sponte, at any stage of the proceedings,
including on appeal.'' (Internal quotation marks
omitted.) Anthony A. v. Commissioner of
Correction, 159 Conn.App. 226, 234-35, 122 A.3d 730
(2015), aff'd, 326 Conn. 668, 166 A.3d 614 (2017).
‘‘Once the question of lack of jurisdiction of a
court is raised, [it] must be disposed of no matter in what
form it is presented. . . . The court must fully resolve it
before proceeding further with the case. . . . Whenever a
court finds that it has no jurisdiction, it must dismiss the
case, without regard to previous rulings.'' (Internal
quotation marks omitted.) Johnson v. Commissioner of
Correction, 258 Conn. 804, 813, 786 A.2d 1091 (2002).
habeas court has subject matter jurisdiction to hear a
petition for habeas corpus when the petitioner is in
custody at the time that the habeas petition is filed. .
. . It is well settled that [t]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil action. .
. . The principle that a plaintiff may rely only upon what he
has alleged is basic. . . . It is fundamental in our law that
the right of a plaintiff to recover is limited to the
allegations of his complaint.'' (Citation omitted;
emphasis added; internal quotation marks omitted.)
Arriaga v. Commissioner of Correction, 120 Conn.App.
258, 262, 990 A.2d 910 (2010), appeal dismissed, 303 Conn.
698, 36 A.3d 224 (2012).
habeas court lacks subject matter jurisdiction when the
petitioner is not in custody on the conviction under attack
at the time the petition was filed. Lebron v.
Commissioner of Correction, 274 Conn. 507, 532, 876 A.2d
1178 (2005), overruled in part on other grounds by State
v. Elson, 311 Conn. 726, 747, 754, 91 A.3d 862 (2014).
The custody requirement ‘‘has never been extended
to the situation where a habeas petitioner suffers no
present restraint from a conviction.'' (Emphasis
in original; internal quotation marks omitted.) Id.,
531. Furthermore, ‘‘the collateral consequences
of the petitioner's expired convictions, although severe,
are insufficient to render the ...