Opinion
CV154007685S
10-09-2018
Joviano NETO (Inmate #368691) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
On December 2, 2015, the petitioner initiated this petition for a writ of habeas corpus via a summons and complaint filed by counsel. The petition, which has not been amended, asserts claims in two counts: first, that his right to due process was violated; and second, ineffective assistance of counsel. On March 12, 2018, the respondent filed a motion to dismiss, to which the petitioner has objected. The respondent seeks dismissal of the petition in its entirety on the basis that the habeas court lacks subject matter jurisdiction. The parties appeared before this court on July 3, 2018, for a hearing on the motion to dismiss and the objection thereto.
For the reasons articulated more fully below, the motion to dismiss is granted.
DISCUSSION
"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ..." (Internal citations and quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn.App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). "[A pleading] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. (Internal quotation marks omitted.) Gil v. Gil, 94 Conn.App. 306, 313, 892 A.2d 318 (2006)." Taylor v. Commissioner of Correction, 94 Conn.App. 772, 785, 895 A.2d 246 (2006), rev’d in part on other grounds, 284 Conn. 433, 936 A.2d 611 (2007). Nevertheless, the petitioner "... bears the burden of proving that the court has subject matter jurisdiction." Id.
The petitioner alleges he is a citizen of Brazil and that he was convicted for an offense that occurred on or about June 2, 2008. On June 24, 2008, the petitioner applied for accelerated rehabilitation, which was granted on July 22, 2008. On or about May 8, 2009, prior to the expiration of his accelerated rehabilitation, the petitioner was recalled to court for a proceeding that apparently related to the victim’s medical bills. The petition asserts that no record exists of the May 8, 2009, court proceedings. However, the record subsequently reflects that the petitioner pleaded guilty on May 8, 2009. The petitioner avers that no transcript exists of his plea, and the record does not reflect that he was canvassed and advised about the deportation and immigration consequences of his plea.
The petition also asserts that the record indicates that on June 3, 2009, the petitioner was sentenced as follows: "1 Year Jail, Execution Suspended, Probation 3 Years on the charge of 53a-64cc Strangulation Third Degree, 1 Year Jail, Execution Suspended After 6 Months, Probation 3 Years on the charge of 53a-61 Assault 3rd Deg, 1 Year Jail, Execution Suspended, Probation 3 Years on the charge of 53a-183b Interfering with an Emergency Call." Petition, pp. 2-3. The petitioner alleges that this sentence was imposed one month before the accelerated rehabilitation ended, as well as that he paid the victim’s medical expenses on or about June 3, 2009.
In count one, the petitioner claims that the trial court failed to advise him of the deportation and immigration consequences that could, or likely would, result from his guilty pleas. In count two, the petitioner claims that his trial counsel, Attorney Daniel S. DiBartolomeo, rendered ineffective assistance of counsel for failing to properly advise him of the deportation and immigration consequences of his pleas. The petitioner asserts that had the court and trial counsel properly informed him of the deportation and immigration consequences, then he would not have pleaded guilty.
The motion to dismiss relies on Lebron v. Commissioner of Correction, 274 Conn. 507, 526, 876 A.2d 1178 (2005), in support of the contention that a habeas court lacks jurisdiction over the petition and its claims. The habeas court, according to the respondent, lacks jurisdiction because the petitioner failed to meet the "in custody" requirement at the time the present matter was filed. It is bedrock habeas corpus jurisprudence that a habeas court only has jurisdiction over claims for which a petitioner is somehow in custody at the time a habeas corpus petition is filed. Id. ; see also Richardson v. Commissioner of Correction, 298 Conn. 690, 699, 6 A.3d 52 (2010). The "in custody" requirement may be satisfied by a petitioner who is serving a prison sentence, is on parole, or is on probation.
Here, the petitioner was sentenced on June 3, 2009, to a maximum sentence of one year of incarceration, execution suspended after the service of six months, followed by three years of probation. Without any presentence confinement credits applied to the sentence, the petitioner would have discharged from the six-month to-serve portion on or about December 2, 2009, and started his three-year probationary period. The probation would have expired on or about December 2, 2012. The petitioner filed the present petition on December 2, 2015, three years after the latest date that he somehow satisfied the "in custody" requirement.
The only argument made in the petitioner’s objection to the motion to dismiss relevant to the issue of jurisdiction is that there was a tolling of the "statute of limitations." That is, although the petitioner was no longer in custody in any manner beginning on or about December 2, 2012, that the three years between then and when he filed the petition, the petitioner argues that it should be disregarded for determining when he was "in custody" for jurisdictional purposes. The objection posits that because the petitioner voluntarily moved to Massachusetts after his plea, his absence from Connecticut should be treated as if he fled the state and, therefore, was not serving his sentence.
The Supreme Court in Lebron held that "the custody requirement in [the habeas statute,] § 52-466[,] is jurisdictional." Lebron v. Commissioner of Correction, supra, 274 Conn. 522-26. "[T]he history of Connecticut’s habeas corpus jurisprudence is ‘wholly in accord’ with federal habeas corpus jurisprudence; ... we may rely on federal cases interpreting the contours of the great writ. Federal cases interpreting the custody requirement indicate that to satisfy the requirement, the petitioner must be under some legal restraint, e.g., imprisoned or paroled, at the time the petition is filed ... Maleng v. Cook, 490 U.S. 488, 491-93, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (petitioner must be under some restraint when petition filed or petitioner not in custody and cannot bring challenge on conviction or collateral consequences stemming therefrom); Carafas v. La Vallee, 391 U.S. 234, 239-40, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (custody requirement does not mean petitioner must be in custody during entire pendency of legal proceedings, but only at time petition filed)." (Internal citation and quotation marks omitted.) Oliphant v. Commissioner of Correction, 83 Conn.App. 10, 14, 847 A.2d 1080 (2004), affirmed, 274 Conn. 563, 877 A.2d 761 (2005).
In Oliphant, the Appellate Court noted that "[it was uncontested that at the time the petition was filed, the petitioner was no longer under the physical control of the respondent as a result of [the challenged] convictions. That fact alone suggests that the court did not have subject matter jurisdiction." Id., 14-15. The petitioner argued "that he satisfied an exception to the custody requirement by asserting equitable tolling ... [T]he petitioner’s argument relating to equitable tolling could not confer subject matter jurisdiction on the court as ‘subject matter jurisdiction, if lacking, may not be conferred by the parties, explicitly or implicitly.’ Williams v. Commission on Human Rights & Opportunities, [ 257 Conn. 258, 266, 777 A.2d 645 (2001) ]. One party cannot create subject matter jurisdiction by alleging that the other party prevented the filing of the petition. Indeed, Williams suggests that equitable tolling is not a consideration when determining whether a court has subject matter jurisdiction. Id., at 277-78, 777 A.2d 645." Oliphant v. Commissioner of Correction, supra, 83 Conn.App. 16.
The petitioner moving to another state while on probation is easily distinguishable from a scenario where a criminal statute is tolled because the individual to be charged and prosecuted has fled the state and eventually has to be extradited to Connecticut. See, e.g., State v. Crawford, 202 Conn. 443, 451, 521 A.2d 1034 (1987) (criminal statute of limitations will be tolled by the issuance of an arrest warrant within the statutory limitation period, as long as the warrant is executed without unreasonable delay). The reason for this is "[a]n accused should not be rewarded, absent evidence of a lack of due diligence on the part of the officer charged with executing the warrant, for managing to avoid apprehension to a point in time beyond the period of limitation." Id., 450.
The court concludes, therefore, that the petitioner leaving the state while on probation did not toll the sentence or probationary period. The petitioner’s sentence was fully executed and completely served when he completed his probation on or about December 2, 2012. The petitioner no longer satisfied the "in custody" requirement when the present petition was filed on December 2, 2015, and a habeas court lacks subject matter jurisdiction over his claims.
CONCLUSION
Respondent’s motion to dismiss is granted. Judgment shall enter dismissing the petition for a writ of habeas corpus.
It is so ordered.