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*********************************************** 
ANDREW T. KOBZA v. COMMISSIONER

OF CORRECTION

(AC 43396)

Bright, C. J., and Moll and Young, Js.

Syllabus

The petitioner, who had been convicted on a plea of guilty to the crime of

felony murder, sought a writ of habeas corpus, claiming that his sentence

was illegal because the Department of Correction improperly failed to

calculate certain job credits that amounted to a reduction of sixty-three

days in his sentence. The petitioner alleged that he had had a seven day

job that allowed him to earn one day off his sentence for every week

he worked while he was incarcerated in Connecticut but that the sixtythree days in sentence reduction he claimed to have earned were taken

away from him when he was transferred to a correctional facility in

Virginia. The habeas court, without prior notice to the petitioner or a

hearing, sua sponte rendered judgment dismissing his habeas petition

pursuant to the applicable rule of practice (§ 23-29), concluding that

the court lacked jurisdiction because there was no cognizable liberty

interest in prison jobs or credits that have not yet been applied to a

sentence. The court thereafter denied the petitioner certification to

appeal, and the petitioner appealed to this court. Held:

1. The habeas court abused its discretion in denying the petitioner certification to appeal from the dismissal of his habeas petition, the court having

erred in concluding that it lacked jurisdiction over the petitioner’s job

credits claim as pleaded.

2. The habeas court erred as a matter of law when it dismissed the habeas

petition for lack of jurisdiction: the court improperly concluded that it

lacked jurisdiction because no cognizable liberty interest existed in

prison employment or credits that have not been applied to a sentence,

the petitioner’s claim having been that his job credits were earned

and credited but then removed without due process, and the court

misconstrued the job credits claim as having asserted that the petitioner

was denied the right to receive those credits while he was incarcerated

in Virginia; moreover, contrary to the claim by the respondent Commissioner of Correction that dismissal of the habeas petition was proper

because a certain timesheet constituted undisputed evidence that the

petitioner never earned the job credits, at the time of the dismissal,

the only information the court properly could have relied on was that

contained in the allegations of the habeas petition, as it was not at all

clear that the facts in the timesheet were undisputed; furthermore,

Practice Book § 23-29 did not provide that the court may dismiss a

habeas petition on its own motion without notice to the petitioner

and an opportunity to be heard when a jurisdictional determination is

dependent on the resolution of a critical factual dispute; accordingly,

the judgment was reversed and the case was remanded for further

proceedings.

Argued February 9—officially released May, 11, 2021

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., dismissed the

petition and rendered judgment thereon; thereafter, the

court denied the petition for certification to appeal, and

the petitioner appealed to this court. Reversed; further

proceedings.

Deborah G. Stevenson, assigned counsel, for the

appellant (petitioner).

James W. Donohue, assistant attorney general, with
whom, on the brief, was William Tong, attorney general, for the appellee (respondent).
Opinion

BRIGHT, C. J. The petitioner, Andrew T. Kobza,

appeals following the habeas court’s denial of his petition for certification to appeal from the judgment of

dismissal rendered by the court with respect to his

petition for a writ of habeas corpus. The petitioner

claims that the habeas court (1) abused its discretion

in denying his petition for certification to appeal and

(2) erred by dismissing his habeas petition, sua sponte,

pursuant to Practice Book § 23-29.1 For the reasons set

forth herein, we conclude that the habeas court abused

its discretion in denying the petition for certification

to appeal. We further conclude that the habeas court

erred in its sua sponte dismissal of the habeas petition.

Accordingly, we reverse the judgment of the habeas

court and remand the case for further proceedings

according to law.

The following facts and procedural history are relevant to this appeal. On October 4, 1990, the petitioner

was arrested and charged with numerous crimes,

including felony murder in violation of General Statutes

§ 53a-54c. In January, 1992, following a guilty plea, the

petitioner was sentenced by the court to a total effective

term of forty-five years of imprisonment.2

On August 2, 2018, the petitioner filed a pro se petition

for a writ of habeas corpus, claiming that his sentence

is illegal because the Department of Correction (department) improperly failed to calculate ‘‘seven day job

credits’’3

that were applicable to his sentence. The petitioner claims that he had earned seven day job credits

amounting to a reduction of sixty-three days from his

sentence prior to his transfer from MacDougall-Walker

Correctional Institution to a correctional facility in Jarratt, Virginia, on August 30, 2001.

On July 12, 2019, without prior notice or a hearing,

the habeas court, Newson, J., sua sponte, dismissed the

petitioner’s habeas petition, pursuant to Practice Book

§ 23-29, on the ground that the court lacked jurisdiction.

Specifically, the court stated that ‘‘[t]he petitioner

asserts that [he] was denied and/or that the respondent

[the Commissioner of Correction] inaccurately calculated his entitlement to receive ‘[seven] day job credits’

while the petitioner was incarcerated in another state

pursuant to an interstate transfer.’’ The court held that

there is no cognizable liberty interest in prison jobs or

to credits that have not yet been applied to a sentence.

Following the habeas court’s dismissal of his habeas

petition, the petitioner filed a petition for certification

to appeal from the dismissal, which the habeas court

denied. On September 16, 2019, the petitioner filed the

present appeal.4 Additional facts will be set forth as

necessary.

I

The petitioner claims that the court erred in denying
his petition for certification to appeal from the court’s

dismissal of his habeas petition for lack of jurisdiction.

We agree.

‘‘Faced with a habeas court’s denial of a petition for

certification to appeal, a petitioner can obtain appellate

review of the dismissal of his petition for habeas corpus

only by satisfying the two-pronged test enunciated by

our Supreme Court in Simms v. Warden, 229 Conn.

178, 640 A.2d 601 (1994), and adopted in Simms v.

Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,

he must demonstrate that the denial of his petition for

certification constituted an abuse of discretion. . . .

To prove an abuse of discretion, the petitioner must

demonstrate that the [resolution of the underlying claim

involves issues that] are debatable among jurists of

reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to

deserve encouragement to proceed further. . . . Second, if the petitioner can show an abuse of discretion,

he must then prove that the decision of the habeas

court should be reversed on the merits. . . . In

determining whether there has been an abuse of discretion, every reasonable presumption should be given in

favor of the correctness of the court’s ruling . . . [and]

[r]eversal is required only where an abuse of discretion

is manifest or where injustice appears to have been

done. . . .

‘‘In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must consider the merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by this court for

determining the propriety of the habeas court’s denial

of the petition for certification. Absent such a showing

by the petitioner, the judgment of the habeas court

must be affirmed.’’ (Citation omitted; internal quotation

marks omitted.) Wright v. Commissioner of Correction, 201 Conn. App. 339, 344–45, 242 A.3d 756 (2020),

cert. denied, 336 Conn. 905, 242 A.3d 1009 (2021). On

the basis of our review of the habeas petition, we agree

that the habeas court erred in concluding that it lacked

jurisdiction over the petitioner’s job credits claim as

pleaded and, therefore, we conclude that the habeas

court abused its discretion in denying the petition for

certification to appeal.

II

The petitioner argues that the habeas court misconstrued his seven day job credits claim and based its

jurisdictional ruling on its misreading of the habeas

petition as having asserted that the seven day job credits

had not yet been applied to his sentence. The petitioner
argues that his petition, as pleaded, alleges that he had

earned the seven day job credits and, after they were

applied to his sentence, the respondent wrongfully

removed them. The respondent contends, in response,

that ‘‘[t]he facts of this case clearly indicate that the

petitioner did not earn [sixty-three] [seven day] job

credits while serving a portion of his sentence in Virginia,’’ and he argues further that the habeas court properly dismissed the habeas petition because the petitioner has no cognizable liberty interest in unearned

credits. In making this argument, the respondent relies

not on the allegations of the habeas petition but on a

document purportedly from the department. The document purports to show that sixty-three days of credit,

to which the petitioner claims an entitlement, were

credited to the petitioner’s account in error and then

removed. We disagree with the respondent that the

court could rely on such a document in sua sponte

dismissing the habeas petition, and we conclude that

the habeas court misconstrued the petitioner’s claim

as it was pleaded in the habeas petition. Consequently,

we further conclude that the court erred in holding that

it lacked jurisdiction over the petitioner’s claim.

We begin with our standard of review. ‘‘Whether a

habeas court properly dismissed a petition for a writ

of habeas corpus presents a question of law over which

our review is plenary.’’ Gilchrist v. Commissioner of

Correction, 334 Conn. 548, 553, 223 A.3d 368 (2020).

Resolving the petitioner’s claim requires us to review

the allegations contained in his petition, which he filed

as a self-represented party. Accordingly, we are mindful

of the petitioner’s self-represented status at the time

he drafted the habeas petition. ‘‘This court has always

been solicitous of the rights of [self-represented] litigants and, like the trial court, will endeavor to see that

such a litigant shall have the opportunity to have his

case fully and fairly heard so far as such latitude is

consistent with the just rights of any adverse party.

. . . Although we will not entirely disregard our rules of

practice, we do give great latitude to [self-represented]

litigants in order that justice may both be done and be

seen to be done. . . . For justice to be done, however,

any latitude given to [self-represented] litigants cannot

interfere with the rights of other parties, nor can we

disregard completely our rules of practice.’’ (Emphasis

omitted; internal quotation marks omitted.) Gonzalez

v. Commissioner of Correction, 107 Conn. App. 507,

512–13, 946 A.2d 252, cert. denied, 289 Conn. 902, 957

A.2d 870 (2008).

‘‘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. . . . It is fundamental in our law that the right

of [the petitioner] to recover is limited to the allegations

of his complaint. . . . While the habeas court has con-
siderable discretion to frame a remedy that is commensurate with the scope of the established constitutional

violations . . . it does not have the discretion to look

beyond the pleadings and trial evidence to decide claims

not raised. . . . [T]he [petition] 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.

. . . Our reading of pleadings in a manner that

advances substantial justice means that a pleading must

be construed reasonably, to contain all that it fairly

means, but carries with it the related proposition that

it must not be contorted in such a way so as to strain the

bounds of rational comprehension.’’ (Citation omitted;

internal quotation marks omitted.) Davis v. Commissioner of Correction, 198 Conn. App. 345, 376–77, 233

A.3d 1106, cert. denied, 335 Conn. 948, 238 A.3d 18

(2020).

In his habeas petition, the petitioner claimed that his

sentence is illegal because certain seven day job credits

were taken away from him after they were earned.

Specifically, the petitioner alleged that, on August 30,

2001, the department transferred him to a correctional

facility in Jarratt, Virginia, to continue serving his sentence at that facility. He claimed that, ‘‘[b]efore leaving

[the MacDougall-Walker Correctional Institution], [the

petitioner] had a [seven] day job earning a day off his

sentence for every week he worked. Without any hearing or notice, [the petitioner] was sent to [Virginia] and

on [February 1, 2002] [the petitioner’s seven day job]

credit of [sixty-three] days given to him was taken

away.’’5 Additionally, the petitioner alleged that he was

unable to earn seven day job credits during his incarceration at the Virginia correctional facility because his

prison employment at that facility was only a five day

per week job. The petitioner alleged that ‘‘because it

was only a [five day] job, [the petitioner] was not given

a day off his sentence.’’ (Emphasis omitted.) The petitioner stated further: ‘‘All issues like this should have

been [dealt] with prior to inmates going to [the Virginia

correctional facility]. But [the petitioner] should have

never went. [The petitioner’s sentence] has been

extended by 106 days. Other inmates have been credited

their [seven] day credit.’’6

The habeas court, in its notice of dismissal pursuant

to Practice Book § 23-29, apparently focused on the

allegations regarding the petitioner’s not being able to

earn additional credits in Virginia and stated that the

court lacked jurisdiction on the following basis: ‘‘The

petitioner asserts that [he] was denied and/or that the

respondent inaccurately calculated his entitlement to

receive ‘[seven] day job credits’ while the petitioner was

incarcerated in another state pursuant to an interstate

transfer. The habeas court lacks jurisdiction because

there is no recognized liberty interest in prison jobs;

Santiago v. Commissioner of Correction, 39 Conn. App.
674, 680, 667 A.2d 304 (1995); or to credits that have

not yet been applied to a sentence. Abed v. Commissioner of Correction, 43 Conn. App. 176, 180, 682 A.2d

558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996).’’

In the present case, a fair reading of the habeas petition indicates that the petitioner asserted that his seven

day job credits were earned before he was transferred

to the Virginia correctional facility, applied to his sentence, and then improperly removed. The habeas court,

however, misconstrued the petitioner’s claim as

asserting that the petitioner was denied the right to

receive the alleged seven day job credits while he was

incarcerated in the Virginia correctional facility pursuant to an interstate transfer. On the basis of its misreading of the petitioner’s claim, the court concluded that

it lacked jurisdiction because the credits had not yet

been applied to the sentence, and it sua sponte dismissed the habeas petition. The court dismissed the

habeas petition without providing the petitioner with

notice or an opportunity to be heard on the nature of

his claim. Thus, in its dismissal of the habeas petition,

the court deprived the petitioner of fair notice and an

opportunity to be heard on a jurisdictional issue arising

from the court’s reading of the claim asserted in the

habeas petition.

In his brief, the respondent argues that the habeas

court properly dismissed the habeas petition because

there were ‘‘undisputed’’ facts before the court demonstrating that the court lacked jurisdiction over the petitioner’s claim. The respondent contends that ‘‘the facts

clearly show that [the alleged seven day job credits]

were not earned’’ by the petitioner on the ground that

the habeas court had evidence of a timesheet7 when it

dismissed the habeas petition, which indicated that the

purported sixty-three days of credits claimed by the

petitioner were never earned, were applied to the petitioner’s account in error, and, subsequently, were properly removed. Citing to Cuozzo v. Orange, 315 Conn.

606, 109 A.3d 903 (2015), the respondent argues further

that, ‘‘[i]n light of the undisputed evidence presented

to the court,’’ the habeas petition properly was dismissed for lack of jurisdiction. We find the respondent’s

argument unavailing.

‘‘A habeas corpus action, as a variant of civil actions,

is subject to the ordinary rules of civil procedure, unless

superseded by the more specific rules pertaining to

habeas actions.’’ (Internal quotation marks omitted.)

Betancourt v. Commissioner of Correction, 132 Conn.

App. 806, 812, 35 A.3d 293, cert. denied, 303 Conn. 937,

36 A.3d 695 (2012).

Practice Book § 23-29 provides in relevant part: ‘‘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 . . . the

court lacks jurisdiction . . . .’’ Section 23-29 ‘‘serves,
roughly speaking, as the analog to Practice Book §§ 10-

30 and 10-39, which, respectively, govern motions to

dismiss and motions to strike in civil actions.’’ Gilchrist

v. Commissioner of Correction, supra, 334 Conn. 561.

In Cuozzo, our Supreme Court recognized that ‘‘[t]rial

courts addressing motions to dismiss for lack of subject

matter jurisdiction pursuant to [Practice Book § 10-30]

may encounter different situations, depending on the

status of the record in the case. . . . [L]ack of subject

matter jurisdiction may be found in any one of three

instances: (1) the complaint alone; (2) the complaint

supplemented by undisputed facts evidenced in the

record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed

facts.’’ (Internal quotation marks omitted.) Cuozzo v.

Orange, supra, 315 Conn. 615. Our Supreme Court has

instructed further that, ‘‘where a jurisdictional determination is dependent on the resolution of a critical factual

dispute, it cannot be decided on a motion to dismiss

in the absence of an evidentiary hearing to establish

jurisdictional facts.’’ Conboy v. State, 292 Conn. 642,

652, 974 A.2d 669 (2009).

Although Practice Book § 23-29 authorizes the habeas

court to dismiss a habeas petition on its own motion,

§ 23-29 does not provide that the court may dismiss a

habeas petition, on its own motion, in the absence of

notice and an opportunity to be heard in circumstances

in which a jurisdictional determination is dependent on

the resolution of a critical factual dispute.

At oral argument before this court, the respondent’s

counsel acknowledged that there was a factual dispute

as to whether the seven day job credits were earned

and applied to the petitioner’s sentence. Nevertheless,

the respondent’s counsel argued that the habeas court

properly dismissed, sua sponte, the habeas petition

because the petitioner failed to produce evidence to

support his claim and the habeas court was familiar

with the timesheet that showed that the seven day job

credits were not earned by the petitioner. We disagree.

It is not at all clear that, at the time the habeas court

dismissed the habeas petition that the facts in the purported document were undisputed and that the court

could have relied on the document in its determination

that it lacked jurisdiction. First, the document was not

admitted as an exhibit, and the petitioner never stipulated to its authenticity or contents. Second, the respondent fails to explain how the petitioner could have produced evidence to support his claim when the court

dismissed the habeas petition without giving him an

opportunity to present such evidence. Third, the petitioner’s counsel argued before this court that the accuracy of the document is disputed. Consequently, the

timesheet was not ‘‘undisputed evidence’’ as contemplated by the court in Cuozzo v. Orange, supra, 315

Conn. 606, and could not be the basis for the habeas
court, sua sponte, to dismiss the habeas petition.

Instead, when the habeas court dismissed the habeas

petition the only information the court properly could

have relied on was that contained in the allegations of

the habeas petition.

Furthermore, on the basis of its misreading of the

petitioner’s claim, the habeas court relied on this court’s

holding in Abed v. Commissioner of Correction, supra,

43 Conn. App. 176, to conclude that it lacked jurisdiction

on the ground that there is no cognizable liberty interest

in credits that have not yet been applied to a sentence.

Abed involved a petitioner’s appeal from a habeas

court’s granting of the respondent’s motion to quash

and the court’s dismissal of a habeas petition. Id., 177. In

Abed, the petitioner claimed, inter alia, that the habeas

court improperly concluded that the prospective denial

of good time credits did not deprive him of a liberty

interest in his monthly accrual of good time credits and

that the denial of statutory good time credits did not

constitute an improper prospective denial. Id. This

court affirmed the judgment of the habeas court and

concluded that the petitioner did not have a liberty

interest in unearned statutory good time credits. Id.,

180–82.

The habeas court’s reliance on Abed, here, was misdirected because the petitioner, in the present case,

claimed that the job credits were actually earned and

credited but then removed without due process.

Similarly, the habeas court’s reliance on Santiago v.

Commissioner of Correction, supra, 39 Conn. App. 674,

on the basis of its reading of the petitioner’s claim, also

is misguided. In Santiago, five inmates appealed from

the judgment of the habeas court dismissing their petitions for writs of habeas corpus. Id., 676. In their consolidated appeal, the inmates claimed, inter alia, that the

court improperly granted a motion to quash their habeas

petitions because it failed to find a legally cognizable

liberty interest on the face of the petitions. Id. The

inmates alleged that they had suffered a loss of recreation, school, and work privileges due to their designation as security risk group members. Id., 676–77. This

court held that the inmates’ allegations failed to implicate a protected liberty interest because a prisoner does

not have a property or liberty interest in prison employment, increased recreation, educational courses, or

access to visitors. Id., 680. This court, however, concluded that an inmate’s allegation that he had suffered

a loss of earned good time credits that would have

reduced his term of confinement was legally sufficient

to implicate a liberty interest to support a constitutional

due process claim. Id., 682. We held that, ‘‘when a state

creates a right to good time credits, it is required by

the [d]ue [p]rocess [c]lause to insure that the statecreated right is not arbitrarily abrogated.’’ (Internal quotation marks omitted.) Id.
In the present case, the habeas court relied on Santiago in concluding that it lacked jurisdiction on the

ground that there is no cognizable liberty interest in

prison employment. Unlike the inmates in Santiago,

however, the petitioner, in the present case, did not

claim in his habeas petition that his constitutional rights

to due process were violated because he had suffered

a loss of work privileges. Akin to the inmate in Santiago,

who alleged that he had suffered a loss of earned good

time credits that would have reduced his term of confinement, the petitioner here claims that he has suffered

a loss of his seven day job credits that he had earned

during his employment at the MacDougall-Walker Correctional Institution. Thus, the habeas court’s reliance

on Santiago also was misplaced.

Accordingly, we conclude that the habeas court erred

as a matter of law when it sua sponte dismissed the

habeas petition on jurisdictional grounds.

The judgment is reversed and the case is remanded

for further proceedings according to law.

In this opinion the other judges concurred.

1

In his brief, the petitioner sets forth an assortment of claims challenging

the propriety of the habeas court’s sua sponte dismissal of the habeas

petition pursuant to Practice Book § 23-29, and the denial of his motion for

articulation. The petitioner also claims that the habeas court committed

structural error. Because we conclude that the habeas court erred in dismissing the habeas petition, we need not reach the petitioner’s additional claims.

2 Counsel for the respondent, the Commissioner of Correction, stated at

oral argument before this court that the petitioner is presently on parole,

but is not fully discharged from the respondent’s custody.

3 General Statutes § 18-98a provides: ‘‘Each person committed to the custody of the Commissioner of Correction who is employed within the institution to which he was sentenced, or outside as provided by section 18-100,

for a period of seven consecutive days, except for temporary interruption

of such period as excused by the commissioner for valid reasons, may have

one day deducted from his sentence for such period, in addition to any

other earned time, at the discretion of the Commissioner of Correction.’’

4 On January 27, 2020, the petitioner filed a motion for articulation of the

habeas court’s dismissal of the petition for a writ of habeas corpus and the

habeas court’s denial of the petition for certification to appeal from the

dismissal of the habeas petition. On January 28, 2020, the court, Newson,

J., denied the petitioner’s motion for articulation. On February 3, 2020, the

petitioner filed a motion for review with this court of the habeas court’s

denial of his motion for articulation. This court, on May 14, 2020, granted

the motion for review but denied the relief requested therein.

5 The habeas petition filed before the habeas court on August 2, 2018,

states that his seven day job credits were taken away on February 1, 2002.

On July 29, 2019, the petitioner filed an application for appointment of

counsel and waiver of fees on appeal. Attached to the July 29, 2019 application is a copy of the addendum to the operative habeas petition, wherein

the petitioner crossed out that his job credits were taken away on February

1, 2002, and replaced the date with August 1, 2001.

6 The habeas petition does not state the reason for the alleged 106 day

extension of his sentence.

7

In addition to the filing of his habeas petition, the petitioner requested

a waiver of fees and appointment of counsel. After the waiver of fees was

granted, the habeas petition was referred to the Office of the Chief Public

Defender for investigation of indigence. In January, 2019, a notice was filed

with the habeas court in which the Connecticut Innocence Project requested

that the habeas court vacate its referral to the Office of the Chief Public

Defender for counsel because the petitioner’s claim was not a matter in

which the Connecticut Innocence Project could be appointed. Attached to

the notice is the purported timesheet. The document purports to show that
the respondent erroneously applied sixty-three seven day job credits to the

petitioner’s sentence, while he was incarcerated at the Virginia correctional

facility. The dates on the timesheet purporting to show the erroneous seven

day job credits range from August 1, 2002, to November 1, 2002.

In February, 2019, the petitioner filed a motion to request a hearing

regarding the denial of representation by the Office of the Chief Public

Defender. In March, 2019, the Office of the Chief Public Defender, upon

further review of the petitioner’s self-represented petition, appointed counsel

for the petitioner after making a finding of eligibility.