Dwane Brown v. Warden (2014)

MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS

PROCEDURAL HISTORY

The petitioner, Dwane Brown, initiated the present matter by and through counsel on June 27, 2013, applying for a petition for a writ of habeas corpus.   The petitioner alleges that his conviction is invalid as a result of ineffective assistance of counsel, in violation of the Sixth Amendment to the United States Constitution and the Connecticut State Constitution.   The alleged constitutional violations arise from counsel's purported failure, during the plea negotiation process, to inform the petitioner of the immigration consequences of his plea.   It is not challenged that the petitioner was advised by the sentencing court of those consequences.

On August 5, 2013, the respondent filed a motion to dismiss, supported by a memorandum of law and copies of relevant documents, asking the court to dismiss the petition pursuant to Practice Book § 23–29(1).   It is the respondent's position that the habeas court lacks jurisdiction over the petition because the petitioner did not meet the “in custody” requirement when the petition was filed on June 27, 2013.

On August 21, 2013, the petitioner filed a notice of amended petition, which indicated that the petitioner was adding a claim for a writ of error coram nobis.   The amended petition was rejected by the court, Newson, J., so as to permit the court to deal with the motion to dismiss that raised the jurisdictional issue.¹  On August 30, 2013, the petitioner filed a memorandum of law in opposition to the motion to dismiss, attached with copies of relevant documents.   On September 18, 2013, the petitioner filed an objection to the motion to dismiss.

Counsel for the petitioner and the respondent appeared before the court on October 7, 2013, for a hearing on the motion to dismiss and the objection thereto.   Counsel for the petitioner waived the petitioner's presence.²  Counsel presented their respective arguments and the court requested that petitioner's counsel supplement the documents already on file with documentation that showed when the petitioner came into Immigration and Customs Enforcement (ICE) custody.   Counsel for the petitioner filed this documentation on October 15, 2013.

For the reasons articulated more fully below, the motion to dismiss is GRANTED.

LEGAL STANDARD

“The standard of review of a motion to dismiss is ․ well established.   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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․” (Internal quotation marks omitted.)  Lebron v. Commissioner of Correction, 274 Conn. 507, 512, 876 A.2d 1178 (2005).

A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy.   Our Supreme Court has held that the party bringing the action bears the burden of proving that the court has subject matter jurisdiction ․ [W]ith regard to subject matter jurisdiction, jurisdictional facts are [f]acts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court ․

(Citations omitted;  internal quotation marks omitted.)  Mourning v. Commissioner of Correction, 120 Conn.App. 612, 618–19, 992 A.2d 1169, cert. denied, 297 Conn. 919, 996 A.2d 1192 (2010).

[I]t is a fundamental rule that a court may ․ 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 ․ Indeed, [i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court ․

(Internal citations and quotation marks omitted.)  Ajadi v. Commissioner of Correction, 280 Conn. 514, 532–33, 911 A.2d 712 (2006).

ANALYSIS

The issue before the court is whether the petitioner is deemed to have been in custody at the time he filed his petition.  “[T]he custody requirement in § 52–466 is jurisdictional.”  Lebron v. Commissioner of Correction, supra, 274 Conn. 526.  “Accordingly, a habeas court has subject matter jurisdiction to hear a petition for a writ of habeas corpus only when the petitioner remains in custody on that conviction ․ [C]onsiderations relating to the need for finality of convictions and ease of administration ․ generally preclude a habeas petitioner from collaterally attacking expired convictions ․ Thus, once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack upon it.”   (Citations omitted;  internal quotation marks omitted.)  Mourning v. Commissioner of Correction, supra, 120 Conn.App. 619–20.

“Section 52–466(a)(1) ³ provides in relevant part that ‘[a]n application for a writ of habeas corpus ․ shall be made to the superior court, or to a judge thereof, for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person's liberty.’  ․ [The Supreme Court] previously [has] concluded that the custody requirement of § 52–466 is jurisdictional because the ‘history and purpose of the writ of habeas corpus establish that the habeas court lacks the power to act on a habeas petition absent the petitioner's allegedly unlawful custody.’   Lebron v. Commissioner of Correction, [supra, 274 Conn. 526].”  (Emphasis in original.)  Richardson v. Commissioner of Correction, 298 Conn. 690, 696–97, 6 A.3d 52 (2010).

The court takes the facts to be those alleged in the petition, including those facts necessarily implied from the allegations, and construes them in a manner most favorable to the petitioner.  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).   The following factual allegations regarding the petitioner's custody were asserted at the time he filed the subject petition:

1. The petitioner is currently detained at the Franklin County House of Corrections, in Greenfield, Massachusetts, based on his conviction before the Connecticut Superior Court, Geographical Area No. 23 at New Haven.

2. The petitioner was sentenced on or about May 24, 2011, in the Connecticut Superior Court, Geographical Area No. 23 at New Haven, for possession with intent to sell or dispense in violation of General Statutes § 21a–277(b).

The petition contains no other factual allegations relevant to the determination of whether the petitioner was “in custody” on a Connecticut conviction.

Copies of documents provided by both the petitioner and the respondent, and which are not in dispute, show that the petitioner was sentenced on May 24, 2011, to a total effective sentence of two years, execution suspended, with two years of probation.   By way of notice dated April 2, 2013, the petitioner was informed by the Department of Homeland Security of removal proceedings based on his 2011 Connecticut conviction.   The Certificate of Service states that the petitioner personally received the notice of removal proceedings on April 6, 2013.   In response to a request by this court, the petitioner filed a copy of a letter from ICE to petitioner's habeas counsel which states that the petitioner has been in ICE custody since April 6, 2013.   Thus, the petitioner entered ICE custody while on probation for his Connecticut sentence.   On May 24, 2013, the petitioner successfully completed his term of probation, and probation was terminated.

The present habeas corpus petition was filed on June 27, 2013.   The petitioner's memorandum of law, filed on August 30, 2013, in opposition to the motion to dismiss states that “[o]n or about July 10, 2013, the petitioner was ordered removed from the United States by the Immigration Court in Hartford, Connecticut.   He remains detained by Immigration and Customs Enforcement while his immigration case is pending on appeal and also for the outcome of this Habeas.”   Petitioner's Memorandum of Law, p. 1, n.1.

The petitioner argues in his memorandum in opposition of the motion to dismiss that, contrary to the respondent's assertion that he was not in custody pursuant to the challenged conviction when he filed the habeas corpus petition, he was detained solely as a result of his state conviction.   Furthermore, the petitioner argues that he is “confined” and “deprived of his liberty” based on his state conviction.  Id., p. 2. The petitioner later additionally avers that he “can show unequivocally that he is held solely because of his Connecticut conviction and that this [habeas court] has jurisdiction over his petition arising from Connecticut and U.S. Supreme Court precedent.”  Id., p. 5.

In support of his argument that he satisfies the “in custody” requirement, the petitioner relies on General Statutes § 52–466(a)(2), as well as cases such as Ajadi v. Commissioner of Correction, supra, and Samuels v. Commissioner of Correction, 117 Conn.App. 740, 980 A.2d 945 (2009).   The petitioner essentially argues that he does not need to be in state custody, on a state conviction, to meet the “in custody” requirement, so long as his liberty is deprived as a result of his state conviction.   See, e.g., Petitioner's Memorandum of Law, pp. 2, 5, 7 and 12–13.   A review of the habeas statute and the case law does not support the petitioner's argument.

I. General Statutes § 52–466(a)(2)

Central to the petitioner's argument is the meaning of § 52–466(a)(2).

“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case ․ When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case ․ In seeking to determine that meaning ․ [General Statutes] § 1–2z 4 directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․ We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise ․” (Citations omitted;  footnote in original;  internal quotation marks omitted.)  Rainforest Cafe, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 371–73, 977 A.2d 650 (2009).

State v. Heredia, 310 Conn. 742, 755–56 A.3d (2013).

Lebron and Ajadi both were decided by the Supreme Court prior to the 2006 amendment of § 52–466(a).   Prior to its amendment by P.A. 06–152, § 52–466(a) provided that:  “An application for a writ of habeas corpus shall be made to the superior court or to a judge thereof for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of his liberty, provided any application made by or on behalf of a person confined in the Connecticut Correctional Institution, Enfield–Medium or the Carl Robinson Correctional Institution, Enfield, shall be made to the superior court or a judge thereof for the judicial district of Tolland.”  (Emphasis added.)   See also Ford v. Commissioner of Correction, 59 Conn.App. 823, 826 n.3, 758 A.2d 853 (2000).   Thus, prior to P.A. 06–152, § 52–466(a) required habeas petitioners to file their applications for a writ of habeas corpus in the judicial district where they claimed illegal confinement or deprivation of liberty and thereby put their custody in question, except for persons confined in the specifically enumerated correctional facilities who were required to file in the judicial district of Tolland.⁵

The historical notes to § 52–466 indicate the following regarding P.A. 06–152:  “[that it] amended Subsec. (a) by designating existing provisions as Subdiv. (1) and amending same by inserting exception for application pursuant to Subdiv. (2), making technical changes and deleting provision re application by person confined in Connecticut Correctional Institution, Enfield–Medium or Carl Robinson Correctional Institution, Enfield, and by adding Subdiv. (2) re application for writ by inmate or prisoner confined in correctional facility.”

The 2006 changes to § 52–466(a) resulted in the statute as it presently reads:  “(1) An application for a writ of habeas corpus, other than an application pursuant to subdivision (2) of this subsection, shall be made to the superior court, or to a judge thereof, for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person's liberty.  (2) An application for a writ of habeas corpus claiming illegal confinement or deprivation of liberty, made by or on behalf of an inmate or prisoner confined in a correctional facility as a result of a conviction of a crime, shall be made to the superior court, or a judge thereof, for the judicial district of Tolland.”  (Emphasis added.)

General Statutes § 52–466(a)(2), therefore, requires applications for writs of habeas corpus to be filed in the judicial district of Tolland when the inmate/prisoner is confined in a correctional facility as a result of a conviction of a crime.   Subsection (1) does not include language that makes it applicable to inmates or prisoners confined in a correctional facility as a result of a conviction of a crime.   Additionally, subsection (1) specifically indicates that it pertains to applications for a writ of habeas corpus other than those made under subsection (2).   As both subsections contain language regarding illegal confinement and deprivation of liberty, applications by or on behalf of inmates or prisoners not confined in a correctional facility as a result of a conviction of a crime would be filed in the judicial district where the person whose custody is in question is located.⁶  While prior to the enactment of P.A. 06–152, § 52–466(a) embodied the term “custody” and made it applicable to all habeas corpus petitions that claimed illegal confinement or deprivation of liberty, the changes wrought by P.A. 06–152 resulted in the term “custody” being found only in subsection (1), but not in subsection (2).

The petitioner relies on Samuels v. Commissioner of Correction, supra, in support of his argument that he meets the statutory requirements for this court to have jurisdiction over his petition.   In Samuels, the petitioner filed his habeas corpus petition in 2005, prior to the changes implemented via P.A. 06–152.  “On appeal, the petitioner claim[ed] that the court improperly held that it did not have subject matter jurisdiction over the petition because Public Acts 2006, No. 06–152, § 5, which modified General Statutes (Rev. to 2005) § 52–466, ․ unambiguously expanded the jurisdiction of the habeas court and eliminated the ‘in custody’ requirement from subsection (a)(2) for those petitioners who claim a deprivation of liberty and who presently are confined in a correctional facility as a result of being convicted of a crime.”  Id., 742, 744.

The Appellate Court concluded that even if the petitioner's arguments were correct, the legislature did not indicate that the substantive changes to the law implemented by P.A. 06–152 were to be given retroactive effect.  Id., 744.   The Appellate Court in Samuels noted that its “agreement” with the petitioner's construction of § 52–466 was “purely ․ for argument sake only and should not be read to imply any agreement with the petitioner's construction of § 52–466.”   Id., 744 n.2. Thus, Samuels does not support the petitioner's contentions in the present matter that he satisfies the requirements of § 52–466(a)(2).

II. Custody

The question then arises as to the meaning of the term “in custody,” particularly as the term remains in subsection (1), which does not apply to applicants who are confined in correctional facilities as a result of criminal convictions, but is no longer contained in subsection (2).  “Custody” in subsection (2) would be superfluous as any inmate or prisoner confined in a correctional facility as a result of a criminal conviction is per se in custody.  “Custody” is not superfluous in subsection (1), as someone on probation or parole or held in presentence confinement would be considered “in custody” under subsection (1) when subsection (2) is inapplicable.

The term “custody” is not defined by statute.   However, the Supreme Court conducted an extensive analysis of the term “custody” as used in the context of § 52–466 in Lebron v. Commissioner of Correction, supra, 274 Conn. 507.

In Lebron, the petitioner, Luis Lebron, completed his sentence for a 1992 conviction.   In 1999, Lebron received an enhanced sentence in a subsequent, unrelated conviction.   The enhancement was based on his 1992 conviction.   Lebron filed a writ of habeas corpus, claiming ineffective assistance of counsel and actual innocence.   The habeas court sought clarification from Lebron as to which conviction he was challenging.   When informed that it was the 1992 conviction, the habeas court concluded that, as Lebron was no longer in custody under the 1992 conviction, it lacked subject matter jurisdiction and dismissed the petition.   On appeal, Lebron claimed that the custody requirement in § 52–466 is not jurisdictional and that § 52–466 provides only for venue and that it does not limit the common-law authority of judges to entertain writs of habeas corpus.  Id., 522.

Following an exhaustive analysis of the principles set forth by the United States and Connecticut Supreme Courts as to the purpose of the writ of habeas corpus, together with case histories, our Supreme Court concluded, “[T]he history and purpose of the writ of habeas corpus establish that the habeas court lacks the power to act on a habeas petition absent the petitioner's allegedly unlawful custody.   Accordingly, we conclude that the custody requirement in § 52–466 is jurisdictional.”  Id., 526.

Having concluded that custody requirement of § 52–466 was jurisdictional, our Supreme Court next addressed Lebron's claim that, even if the custody requirement in § 52–466 is jurisdictional, the habeas court improperly determined that the collateral consequences of his expired 1992 conviction were insufficient to render him in ‘custody’ within the meaning of § 52–466 and, thus, improperly dismissed his petition for lack of subject matter jurisdiction.   Again, after reviewing relevant federal law, the Supreme Court disagreed with Lebron's claim and concluded that “[b]ecause the habeas petition in the present matter does not attack the petitioner's current, allegedly enhanced sentence, but instead attacks the petitioner's expired conviction directly, ․ “ federal cases relied upon by Lebron did not support his claim.  (Emphasis added.)  Id., 528.

Next, our Supreme Court addressed Lebron's reliance on Connecticut law, rejecting the petitioner's assertion that the collateral consequences of a criminal conviction are multiplying rapidly and that Connecticut common-law jurisprudence of habeas corpus has always included an analysis of collateral consequences in determining whether a court has jurisdiction over a habeas corpus petition.⁷  “Connecticut courts, like the federal courts, have analyzed whether the collateral consequences of a conviction give the court continuing jurisdiction over a habeas petition that was filed when the petitioner was in custody on the conviction under attack, and thus properly invoked the jurisdiction of the court, or whether the subsequent expiration of the petitioner's conviction rendered the petition moot ․ Like the federal courts, however, our courts have never held that the collateral consequences of a conviction that expired before the habeas petition was filed are sufficient to render a petitioner in ‘custody’ on the expired conviction within the meaning of § 52–466 and, thus, to invoke the subject matter jurisdiction of the court as an initial matter.”  Id., 529–30.

“We conclude that a petitioner whose conviction has expired fully prior to the filing of a habeas petition is not in ‘custody’ on that conviction within the meaning of § 52–466, despite the alleged existence of collateral consequences flowing from that conviction.   To construe the term custody in the broad manner proposed by the petitioner stretches the language of the statute too far.   Although the custody requirement has been construed liberally, ․ it has never been extended to ‘the situation where a habeas petitioner suffers no present restraint from a conviction.’  (Emphasis added.)  ․ Such an interpretation would mean that a petitioner whose sentence has completely expired could nonetheless challenge the conviction for which it was imposed at any time through a state petition for habeas corpus and would read the “in custody” requirement out of the statute ․ To the extent that the petitioner in the present matter claims that the alleged enhancement of his current sentence and security classification has deprived him of his liberty under § 52–466 and has rendered him in custody, his loss of liberty stems solely from his current conviction.   Accordingly, we conclude that the habeas court properly determined that the collateral consequences of the petitioner's expired conviction were insufficient to render him in custody on that conviction.”  (Internal quotations omitted, footnote omitted.)  Id., 530–31.

The Supreme Court has reaffirmed its holding from Lebron in cases such as Ajadi and Richardson.   In Ajadi, the petitioner faced deportation as a result of his state convictions.   The Supreme Court noted that “it is well established that deportation is a collateral consequence of a criminal conviction ․ Deportation is a collateral consequence because deportation proceedings are ‘beyond the control and responsibility of the [trial] court in which [the petitioner's conviction was entered.’  “ (Internal citations omitted;  footnote omitted.)  Ajadi v. Commissioner of Correction, supra, 280 Conn. 539–40.

“Because the petitioner's convictions had expired completely by the time the petitioner's habeas petition had been filed, and because the current deportation proceedings are a collateral consequence of the petitioner's expired conviction, the petitioner is not in ‘custody’ within the meaning of § 52–466 ․ Simply stated, the collateral consequences of the petitioner's expired convictions, although severe, are insufficient to render the petitioner in custody on those convictions and, therefore, to invoke the jurisdiction of the habeas court.”  Id., 540–41.

In Ajadi, our Supreme Court rejected the argument that a petitioner is in custody on his expired convictions because a criminal conviction followed by the commencement of deportation proceedings, like the imposition of consecutive sentences, should be treated as a continuous stream of custody.  Id., 543.   After noting that it was not aware of any jurisdiction that aggregates a criminal conviction and a subsequent deportation proceeding for penological purposes, the court emphasized that “a criminal prosecution and a deportation proceeding cannot be commenced in an arbitrary order.   Indeed, a deportation proceeding, like all collateral consequences, necessarily arises out of, and is successive to, the conviction of a particular crime.”  Id., 544.

Lastly, our Supreme Court rejected the argument by Ajadi that he was “in custody on his expired [state] convictions pursuant to Lackawanna County District Attorney v. Coss, [532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), because “ ‘no channel of review was actually available to [the petitioner] with respect to [his] prior conviction[s], due to no fault of his own,’ “ citing Maleng v. Cook, [490 U.S. 488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam) ], in which the United States Supreme Court concluded that once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.  Ajadi v. Commissioner of Correction, supra, 280 Conn. 546–57.

“In Lebron, we observed that in Lackawanna County District Attorney, the court ‘did not change this conclusion, but merely went beyond the jurisdictional question presented in Maleng to consider the extent to which the [prior expired] conviction itself may be subject to challenge in [an] attack upon the [current] senten[ce] which it was used to enhance.’  ․ (Emphasis in original;  internal quotation marks omitted.)  Lebron v. Commissioner of Correction, supra, 274 Conn. 527.   In the present case, the petitioner does not challenge his current federal custody, but, rather, challenges his expired [state] convictions directly ․ Accordingly, Lackawanna County District Attorney has no bearing on the petitioner's claim.   See Lebron v. Commissioner of Correction, supra, 528 (‘[b]ecause the habeas petition in the present matter does not attack the petitioner's current, allegedly enhanced sentence, but instead attacks the petitioner's expired conviction directly ․ Lackawanna County District Attorney has no bearing on the petitioner's claim’).

“For the foregoing reasons, we conclude that the habeas court lacked subject matter jurisdiction over the petitioner's habeas petition because the petitioner was not in custody on his expired [state] convictions when his petition was filed.”  (Footnotes omitted.)  Ajadi v. Commissioner of Correction, supra, 280 Conn. 546–48.

More recently, the Supreme Court in Richardson again reviewed the cases dealing with the “in custody” requirement.  “A review of these decisions demonstrates that they collectively stand for the following two principles relevant to this appeal.   First, in order to satisfy the custody requirement of § 52–466, the petitioner [must] be in custody on the conviction under attack at the time the habeas petition is filed ․ Second, collateral consequences flowing from an expired conviction do not render a petitioner in ‘custody’ under § 52–466;  rather, such a claim of confinement or custody and any accompanying ‘loss of liberty [stem] solely from [a petitioner's] current conviction.’  “ (Internal citations omitted;  emphasis in original.)   Richardson v. Commissioner of Correction, supra, 298 Conn. 697–98.

Our Supreme Court stated, “We reject the petitioner's assertion that the custody requirement of § 52–466 may be satisfied by confinement alone and we reaffirm that a ‘petitioner [must] be in custody on the conviction under attack at the time the habeas petition is filed ․ In light of these principles, we again decline the petitioner's invitation to stretch the language of § 52–466 so far that ‘custody qua custody satisfie[s] the jurisdictional requirement [regardless of any] reference to the [sentence] then being served.’  “ (Emphasis in original;  citations omitted).  Id., 699.

As the petitioner here, Dwane Brown, was not in custody on the subject state conviction at the time he filed the present habeas petition, this court was not vested with subject matter jurisdiction over the petition.

III. Padilla v. Kentucky

Petitioner Brown argues that, as the United States Supreme Court has stated that deportation is a particularly harsh collateral consequence, and that claimed deficient performance related to immigration/deportation consequences should be assessed in accordance with ineffective assistance of counsel standards, and that cases such as Lebron and Ajadi that were released prior to Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), are distinguishable.   The court disagrees.  Padilla did not address “in custody” requirements and subject matter jurisdiction over habeas corpus petitions.   Rather, Padilla placed immigration/deportation claims under the umbrella of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where they previously had not received such protection because immigration/deportation consequences were deemed collateral consequences.

CONCLUSION

At the time he filed his habeas petition, Dwane Brown was not “in custody” on the conviction under attack.   The petitioner's probation was terminated on May 24, 2013.   The present petition was filed on June 27, 2013, after the petitioner's sentence had fully expired.   The petitioner had the opportunity to file his petition while the court still maintained subject matter jurisdiction but did not do so.   There is no basis for appending the ICE custody to the state custody to create a continuous stream of custody.  Ajadi v. Commissioner of Correction, supra, 280 Conn. 544.

Although the petitioner was notified of deportation proceedings prior to the termination of probation, and he was taken into ICE custody on April 6, 2013 while still on probation, the expiration of the petitioner's Connecticut sentence prior to the filing of the habeas corpus petition deprives this court of subject matter jurisdiction over the petition.  Lebron v. Commissioner of Correction, supra, 274 Conn. 528, 529–31;  Ajadi v. Commissioner of Correction, supra, 280 Conn. 540–41;  Richardson v. Commissioner of Correction, supra, 298 Conn. 697–98.   The collateral consequences of federal deportation, albeit severe, do not provide jurisdiction to a state habeas court over claims challenging a fully expired state sentence.

ORDER

The respondent's motion to dismiss is granted and judgment shall enter dismissing the petition for a writ of habeas corpus in accordance with Practice Book § 23–29(1).

It is so ordered.

Robert E. Young, J.

FOOTNOTES

FN1. See, e.g., Johnson v. Commissioner of Correction, 258 Conn. 804, 813, 786 A.2d 1091 (2002) (“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 ․”);  Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) (“It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court”)..  FN1. See, e.g., Johnson v. Commissioner of Correction, 258 Conn. 804, 813, 786 A.2d 1091 (2002) (“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 ․”);  Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) (“It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court”).

FN2. At the time of the October 7, 2013 hearing, the petitioner was in Massachusetts in federal custody, held by Immigration and Customs Enforcement..  FN2. At the time of the October 7, 2013 hearing, the petitioner was in Massachusetts in federal custody, held by Immigration and Customs Enforcement.

FN3. General Statutes § 52–466(a) was amended subsequently in 2006 by P.A. 06–152, after the release in 2005 of the Lebron decision by the Supreme Court.   The court discusses the changes made by P.A. 06–152 below..  FN3. General Statutes § 52–466(a) was amended subsequently in 2006 by P.A. 06–152, after the release in 2005 of the Lebron decision by the Supreme Court.   The court discusses the changes made by P.A. 06–152 below.

FN4. “General Statutes § 1–2z provides:  ‘The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.’ “.  FN4. “General Statutes § 1–2z provides:  ‘The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.’ “

FN5. Connecticut Correctional Institution, Enfield–Medium or the Carl Robinson Correctional Institution, Enfield are located, not in the judicial district of Tolland, but in the judicial district of Hartford.   Thus, inmates in those facilities would file their petitions in the judicial district of Hartford were it not for the § 52–466(a) requirement that such petitions be filed in the judicial district of Tolland..  FN5. Connecticut Correctional Institution, Enfield–Medium or the Carl Robinson Correctional Institution, Enfield are located, not in the judicial district of Tolland, but in the judicial district of Hartford.   Thus, inmates in those facilities would file their petitions in the judicial district of Hartford were it not for the § 52–466(a) requirement that such petitions be filed in the judicial district of Tolland.

FN6. Subsection (1) requires someone on parole or probation to file in the judicial district where they are located after being released from a correctional facility to parole supervision or discharged from a sentence and released to probation.   Other exceptions would be a person committed after being found not guilty by reason of mental disease or defect, or a juvenile held in a juvenile detention center.   Lastly, another exception would be persons who are not yet convicted of a crime but are held at correctional facilities in lieu of bond and earning presentence confinement..  FN6. Subsection (1) requires someone on parole or probation to file in the judicial district where they are located after being released from a correctional facility to parole supervision or discharged from a sentence and released to probation.   Other exceptions would be a person committed after being found not guilty by reason of mental disease or defect, or a juvenile held in a juvenile detention center.   Lastly, another exception would be persons who are not yet convicted of a crime but are held at correctional facilities in lieu of bond and earning presentence confinement.

FN7. “The petitioner also claim[ed in Lebron ] that the language of § 52–466 is broader than the language of the federal habeas statutes because it permits an individual who has been ‘deprived of his liberty’ to file a petition for writ of habeas corpus.   He argue[d] that § 52–466 is broad enough to encompass a challenge to a fully expired conviction when the petitioner suffers adverse collateral consequences from that conviction.   Compare General Statutes § 52–466 with 28 U.S.C. §§ 2241 and 2254.  [The Supreme Court] disagree[d].  It is well established that, in determining the scope of the writ of habeas corpus under state law, we look to the scope of the writ under federal law.   See, e.g., Johnson v. Commissioner of Correction, supra, 258 Conn. 815 (‘[t]he history of our own [habeas] jurisprudence is wholly in accord’ with federal principles).   This is because both state and federal law governing the writ derive from the English common law.   See, e.g., Rasul v. Bush, 542 U.S. 466, 473, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (‘[h]abeas corpus is ․ a writ antecedent to statute ․ throwing its root deep into the genius of our common law’ [internal quotation marks omitted] );  Wojculewicz v. Cummings, 143 Conn. 624, 627, 124 A.2d 886 (1956) (‘[t]he writ of habeas corpus, as a remedy for illegal restraint, is a prerogative common-law writ providing a special and extraordinary legal remedy’).   Courts construing the term custody in the context of the federal writ of habeas corpus have concluded that the term is not limited to ‘actual physical detention in jail or prison.   Rather the term is synonymous with restraint of liberty’;  R. Sokol, Federal Habeas Corpus (2d Ed.1969) § 6.1, p. 66;  including those restraints in place when the petitioner is on parole;  Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), and when he is released on his own recognizance.  Hensley v. Municipal Court, San Jose–Milpitas Judicial District, 411 U.S. 345, 348–49, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).  [The Lebron court] conclude[d] that the legislature's use of the phrase ‘deprived of his liberty’ in § 52–466 was merely intended to recognize that, historically, actual physical detention is not a jurisdictional prerequisite for bringing a writ of habeas corpus.   Accordingly, [the Supreme Court] conclude[d] that the legislature did not intend to make the state writ of habeas corpus broader than its federal counterpart.”.  FN7. “The petitioner also claim[ed in Lebron ] that the language of § 52–466 is broader than the language of the federal habeas statutes because it permits an individual who has been ‘deprived of his liberty’ to file a petition for writ of habeas corpus.   He argue[d] that § 52–466 is broad enough to encompass a challenge to a fully expired conviction when the petitioner suffers adverse collateral consequences from that conviction.   Compare General Statutes § 52–466 with 28 U.S.C. §§ 2241 and 2254.  [The Supreme Court] disagree[d].  It is well established that, in determining the scope of the writ of habeas corpus under state law, we look to the scope of the writ under federal law.   See, e.g., Johnson v. Commissioner of Correction, supra, 258 Conn. 815 (‘[t]he history of our own [habeas] jurisprudence is wholly in accord’ with federal principles).   This is because both state and federal law governing the writ derive from the English common law.   See, e.g., Rasul v. Bush, 542 U.S. 466, 473, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (‘[h]abeas corpus is ․ a writ antecedent to statute ․ throwing its root deep into the genius of our common law’ [internal quotation marks omitted] );  Wojculewicz v. Cummings, 143 Conn. 624, 627, 124 A.2d 886 (1956) (‘[t]he writ of habeas corpus, as a remedy for illegal restraint, is a prerogative common-law writ providing a special and extraordinary legal remedy’).   Courts construing the term custody in the context of the federal writ of habeas corpus have concluded that the term is not limited to ‘actual physical detention in jail or prison.   Rather the term is synonymous with restraint of liberty’;  R. Sokol, Federal Habeas Corpus (2d Ed.1969) § 6.1, p. 66;  including those restraints in place when the petitioner is on parole;  Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), and when he is released on his own recognizance.  Hensley v. Municipal Court, San Jose–Milpitas Judicial District, 411 U.S. 345, 348–49, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).  [The Lebron court] conclude[d] that the legislature's use of the phrase ‘deprived of his liberty’ in § 52–466 was merely intended to recognize that, historically, actual physical detention is not a jurisdictional prerequisite for bringing a writ of habeas corpus.   Accordingly, [the Supreme Court] conclude[d] that the legislature did not intend to make the state writ of habeas corpus broader than its federal counterpart.”

Young, Robert E., J.