JANULAWICZ v. COMMISSIONER OF CORRECTION (2013)

In this habeas action, the petitioner, Richard Janulawicz, appeals from the judgment of the Appellate Court, which reversed the judgment of the habeas court purporting to reinstate his right to file a petition for certification to appeal to this court in his underlying criminal case. The petitioner had sought that remedy after the Appellate Court upheld his conviction of several felony offenses and his appellate counsel, who also served as trial counsel, failed to file a petition for certification with this court challenging the propriety of the Appellate Court's judgment. We granted certification to appeal in the present case, limited to the following issue: “Did the Appellate Court correctly determine that the habeas court improperly restored the petitioner's right to seek certification to appeal [from] an earlier decision of the Appellate Court to the Supreme Court?” Janulawicz v. Commissioner of Correction, 301 Conn. 909, 19 A.3d 179 (2011). After oral argument before this court, we ordered the petitioner and the respondent, the commissioner of correction, to submit supplemental briefs on a second issue, namely: “Is the issue raised by this appeal justiciable despite the fact that the petitioner has never filed a petition for certification in his underlying criminal case, and, as a result, this court has never decided whether such a petition should be rejected as untimely filed?” We conclude that the petitioner's habeas action is not justiciable because it is not ripe for adjudication. Accordingly, we reverse the judgment of the Appellate Court and remand the case to that court with direction to remand the case to the habeas court with direction to render judgment dismissing the habeas petition.

The following factual and procedural history is pertinent to the petitioner's appeal. “On January 20, 2004, following the ․ denial of his motion to suppress certain evidence [in his underlying criminal case], the petitioner entered conditional pleas of nolo contendere, pursuant to General Statutes § 54–94a, to two counts of criminal possession of a firearm in violation of General Statutes [Rev. to 2001] § 53a–217 (a)(1), two counts of carrying a dangerous weapon in violation of General Statutes [Rev. to 2001] § 53–206(a) and one count of threatening in the second degree in violation of General Statutes [Rev. to 2001] § 53a–62 (a)(1) [as amended by Public Acts, Spec. Sess., November 15, 2001, No. 01–2, § 8, and Public Acts 2002, No. 02–97, § 16]. The petitioner was subsequently sentenced to a total effective term of ten years incarceration, execution suspended after seven years, and three years probation. On the petitioner's direct appeal to [the Appellate] [C]ourt, based on the denial of his motion to suppress, [the Appellate] [C]ourt affirmed the judgment of the trial court. State v. Janulawicz, 95 Conn.App. [569, 576], 897 A.2d 689 (2006). At trial and on appeal, the petitioner was represented by [A]ttorney Deron Freeman, who did not seek certification to appeal [from the Appellate Court's] adverse [decision] to the Supreme Court.” (Footnote omitted.) Janulawicz v. Commissioner of Correction, 127 Conn.App. 576, 578–79, 14 A.3d 488 (2011).

The petitioner filed an amended petition for a writ of habeas corpus on August 5, 2009, alleging, inter alia, that Freeman had rendered ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),¹ because, subsequent to the release of the Appellate Court's decision in the petitioner's criminal case, Freeman failed to take any action with respect to the petitioner's right under General Statutes § 51–197f² and Practice Book § 84–1³ to seek this court's review of the Appellate Court's judgment. In particular, Freeman did not file a petition for certification to appeal to this court, he did not transfer the matter to another attorney for that purpose, and he did not discuss the merits of the petitioner's case with the petitioner until after the twenty day appeal period prescribed by Practice Book § 84–4(a)(1)⁴ expired. Following a trial, the habeas court found that Freeman's performance had been deficient because there was no indication that he had reviewed the Appellate Court's decision or otherwise had concluded that a petition for certification to appeal to this court lacked any merit. The habeas court also concluded that Freeman's inadequate performance had prejudiced the petitioner by depriving him of the opportunity to file a petition for certification to appeal to this court. Accordingly, the habeas court rendered judgment granting the habeas petition in part, ordering that the petitioner's right to file a petition for certification to appeal to this court be restored. The habeas court subsequently denied the respondent's petition for certification to appeal from the habeas court's adverse judgment pursuant to Practice Book § 80–1.⁵

The respondent appealed from the judgment of the habeas court to the Appellate Court, claiming that the habeas court improperly had granted in part the petitioner's habeas petition and abused its discretion in denying the respondent's petition for certification to appeal. See Janulawicz v. Commissioner of Correction, supra, 127 Conn.App. at 577–78. The Appellate Court agreed with both of the respondent's claims and reversed the judgment of the habeas court. Id., at 578, 586. In so concluding, the Appellate Court determined that, to prevail in his habeas action, the petitioner was required to adduce evidence demonstrating, under the prejudice prong of the Strickland test; see footnote 1 of this opinion; that it was “reasonably probable that he would have prevailed in obtaining further review of his direct appeal had counsel not been deficient.” Janulawicz v. Commissioner of Correction, supra, 585. Accordingly, the Appellate Court determined that, “[a]lthough ․ Freeman's representation of the petitioner was deficient ․ the petitioner failed to introduce any evidence that he was prejudiced by Freeman's deficiency”; id., at 583; that is, he had not demonstrated that this court likely would have granted his petition for certification to appeal. Id., at 585. This appeal followed.

Our resolution of this appeal begins and ends with our analysis of the justiciability of the petitioner's habeas action. Although the respondent did not raise the issue of ripeness, we must address and resolve the question because it implicates this court's subject matter jurisdiction. See, e.g., Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 85, 952 A.2d 1 (2008).

“[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter․ A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction․ [B]ecause an issue regarding justiciability raises a question of law, our appellate review [of the ripeness of a claim] is plenary.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., at 86, 952 A.2d 1. “[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements․ Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent [on] some event that has not and indeed may never transpire.” (Citation omitted; internal quotation marks omitted.) Id., at 86–87, 952 A.2d 1. “[R]ipeness is a sine qua non of justiciability․” (Internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624, 822 A.2d 196 (2003).

In his habeas petition, the petitioner alleged that his counsel's deficient performance prevented him from filing a timely petition for certification to appeal to this court pursuant to Practice Book § 84–4. According to the petitioner, this lapse deprived him of his right to petition this court for certification to review the Appellate Court's judgment in his criminal case.⁶ We conclude that, despite the petitioner's failure to comply with the time period set forth in the Practice Book § 84–4(a), the petitioner's habeas petition is not ripe for adjudication in view of the fact that the petitioner's injury is contingent on this court's denial of a motion to file a late petition for certification, a motion that the petitioner has never filed, because he will not suffer such an injury if this court were to grant his request for permission to file an untimely petition for certification to appeal.

As a threshold matter, it bears emphasis that the petitioner's failure to comply with the rules of practice does not deprive this court of subject matter jurisdiction to consider an untimely petition for certification to appeal from the Appellate Court's judgment. “[B]ecause the twenty day time limitation on appeals [to this court] imposed by [the rules of practice] is not subject matter jurisdictional, we have discretion to hear a late appeal․ The rationale for this rule is that the twenty day period ․ is not a constitutionally or legislatively created condition precedent to the jurisdiction of this court. The source of the authority for the adoption of the rule lies in the inherent right of constitutional courts to make rules governing their procedure․ Such time constraints, which are created by courts, can be waived by the courts.” (Citations omitted; internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 762–63, 628 A.2d 1303 (1993).

In Ramos v. Commissioner of Correction, 248 Conn. 52, 57, 61, 727 A.2d 213 (1999), we applied this principle in considering a claim by the habeas petitioner in that case, Reynaldo Ramos, that the Appellate Court improperly had declined to entertain his appeal from the denial of his habeas petition because the appeal had not been filed within the twenty day appeal period prescribed by the rules of practice. Because Practice Book § 80–1, like Practice Book § 84–4, does not create a subject matter jurisdictional bar to the filing of an appeal, we observed that, “[i]n the absence of [such] jurisdictional barriers, appellate tribunals must exercise their discretion to determine whether a late appeal should be permitted․” Id., at 61, 727 A.2d 213. In view of our determination that Ramos had demonstrated good cause for the delay in filing his appeal beyond the twenty day limitation period, we concluded that the Appellate Court had abused its discretion in dismissing Ramos' appeal from the adverse judgment of the habeas court.⁷ Id. As in Ramos, it is perfectly clear in the present case that no jurisdictional barrier would prevent this court from exercising its discretion to consider the petitioner's untimely petition for certification to appeal.

Moreover, and equally important to our justiciability analysis, untimely petitions and appeals are expressly contemplated by Practice Book §§ 60–2⁸ and 60–3.⁹ Indeed, a review of petitions for certification filed in the last twenty years reveals that we routinely grant motions for permission to file late petitions whenever it appears that there is a reasoned basis for doing so.¹⁰ In deciding whether to consider an untimely petition for certification to appeal to this court, we consider a variety of factors, including but not limited to the reason for the late filing, whether the application for permission to file a late petition is opposed, the nature of the underlying case, and the interests of judicial economy.¹¹ See, e.g., id., at 61–62, 727 A.2d 213. Because, however, our decision to review an untimely petition for certification is entirely separate and distinct from the decision whether to grant such a petition, and because there frequently is no material prejudice arising from the late filing, as we have indicated, we often agree to consider the merits of untimely petitions otherwise in compliance with our rules of practice. Consequently, there simply is no basis to assume that we would decline to consider the merits of the petitioner's petition for certification to appeal because it was not timely filed. Indeed, a contrary presumption would be considerably more reasonable.

In sum, our application of established justiciability principles to the facts and circumstances of the present case leads to the conclusion that the petitioner's habeas action is not ripe for adjudication.¹² The petitioner's claim is contingent on our denial of his motion to file a late petition for certification to appeal, an event that may never occur, thereby obviating any need for a resolution of the issues presented by this appeal.¹³

The form of the judgment of the Appellate Court is improper, the judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to remand the case to the habeas court with direction to dismiss the petition for a writ of habeas corpus.

In this opinion the other justices concurred.

PALMER, J.