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*********************************************** 
JOHN VITALE v. COMMISSIONER OF CORRECTION

(AC 39556)

Alvord, Mullins and Beach, Js.

Syllabus

The petitioner, who had been convicted, on a plea of nolo contendere, of

sexual assault in the fourth degree, sought a writ of habeas corpus,

claiming that his conviction was illegal because he had been made to

plead guilty and was sentenced without having his attorney present.

Although the petitioner was discharged from his conviction in 1979, he

claimed that the collateral consequences of that conviction adversely

affected his parole and his treatment by the Department of Correction

as a sex offender. He further asserted that, on the basis of collateral

consequences, the habeas court could hear his claim and vacate his

conviction because it was obtained in violation of the right to counsel

under Gideon v. Wainwright (372 U.S. 335), even though he was not

still serving the sentence. The habeas court rendered judgment sua

sponte dismissing the petition for a writ of habeas corpus, concluding

that it lacked jurisdiction over the claims in the petition concerning the

decisions of the parole board and the classifications of the petitioner

by the Department of Correction. Thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court,

claiming, inter alia, that the habeas court improperly concluded that it

lacked subject matter jurisdiction over his habeas petition. Held:

1. The habeas court did not abuse its discretion in denying the petition for

certification to appeal: that court properly determined that it lacked

subject matter jurisdiction to the extent that the petition for a writ of

habeas corpus sought to challenge the expired sexual assault conviction,

as the petitioner submitted no authority to support his claim that the

expired sexual assault conviction could be vacated, United States

Supreme Court precedent that has addressed the use of convictions

obtained in the absence of counsel did not permit the petitioner to

attack the expired conviction in the absence of a sentence enhancement,

and other federal courts have recognized that procedural defenses apply

to Gideon claims, thus refuting the petitioner’s assertion that a Gideon

claim may be raised without limitation.

2. The habeas court did not abuse its discretion in denying the petition for

certification to appeal as to the petitioner’s challenge to the conditions

of his parole and his classification as a sex offender by the Department

of Correction; parole eligibility status does not constitute a cognizable

liberty interest sufficient to invoke habeas jurisdiction, and because the

petitioner failed to plead that the stigmatizing classification of him as

a sex offender was false and that he was compelled to participate in

sex offender treatment, he failed to allege sufficient facts to assert a

cognizable liberty interest that would afford the habeas court jurisdiction

over his claim.

3. The petitioner could not prevail on his claim that the violation of his right

to counsel under article first, § 8, of the state constitution was sufficient

to establish jurisdiction in the habeas court to adjudicate his claims;

the petitioner’s briefing failed to address the central issue presented in

his appeal and the authorities he cited did not support his claim under

the state constitution.

Argued September 26—officially released December 26, 2017

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district

of Tolland, where the court, Oliver, J., dismissed the

petition and rendered judgment thereon; thereafter, the

court denied the petition for certification to appeal, and

the petitioner appealed to this court. Appeal dismissed.
James B. Streeto, senior assistant public defender,

for the appellant (petitioner).

Steven R. Strom, assistant attorney general, and

James A. Killen, senior assistant state’s attorney, with

whom, on the brief, were George Jepsen, attorney general, and David S. Shepack, state’s attorney, for the

appellee (respondent).
Opinion

ALVORD, J. The petitioner, John Vitale, appeals following the denial of his petition for certification to

appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal,

the petitioner claims that the habeas court improperly

concluded that it lacked subject matter jurisdiction over

his petition. We conclude that the habeas court properly

determined that it lacked subject matter jurisdiction

over the petition and, therefore, that it did not abuse

its discretion by denying the petitioner’s petition for

certification to appeal. Accordingly, we dismiss the

appeal.

The following procedural history is relevant to this

appeal. On July 5, 2016, the petitioner, representing

himself, filed a petition for a writ of habeas corpus.

In his petition, he noted, under ‘‘Sentence(s),’’ ‘‘1 year

concurrent; Gen. Stat. 53a-73a (2) sex assault 4th

degree.’’ He provided the date of sentencing as September 19, 1980, and indicated that the sentence was to be

served concurrent with a life sentence. He represented

that he pleaded nolo contendere and that he did not

appeal from the judgment of his conviction.

The petitioner claimed in his petition that his conviction was illegal because he ‘‘was made to plead guilty

and was sentenced without my lawyer of record (R.

Chase) being there with me.’’ The petitioner claimed

that his incarceration or sentence was illegal because

‘‘collateral consequence of unlawful conviction for SA

4th adversely affects my classification and parole; and

parole release, (my treatment while in D.O.C. and on

parole).’’ The petitioner represented that he had tried

to raise the claim in a previous petition, but it was

declined on December 22, 2015. He further stated that

the court, Oliver, J., had granted his request for counsel

to assist in the appeal of the dismissal of the previous

petition, but the appeal was never filed. Although the

previous petition is not part of the record, the petitioner’s appendix includes the trial court’s dismissal, which

stated that ‘‘[t]he habeas corpus petition is declined

and is being returned because the court lacks jurisdiction per Connecticut Practice Book § 23-24 (a) (1).1 As

the petitioner admits, in paragraph 1 (e) of his petition

that he [was] discharged from the challenged conviction

in 1979, the court declines to issue the writ, as the

petitioner is not in custody on the conviction being

challenged.’’ (Footnote added.)

In the petition that is the subject of this appeal, the

petitioner claimed that he was asking the court to permit him to withdraw his guilty plea on the sexual assault

charge. In a handwritten attachment, the petitioner

elaborated on his claims. He alleged that his 1980 conviction for sexual assault in the fourth degree was

‘‘obtained by (no contest) guilty plea and sentence
imposed without counsel present.’’ He claimed, based

primarily on United States Supreme Court precedent,

that ‘‘[a] conviction obtained in violation of the right

to counsel under Gideon [v. Wainwright, 372 U.S. 335,

83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)] has special status

such that the claim may be heard and the conviction

vacated based on collateral consequences, even though

the habeas petitioner is not still serving the sentence.’’

The petition asserted the following facts. On September 19, 1980, the petitioner was ‘‘held in lieu of bond

at the Litchfield jail, scheduled to appear in court for

sentencing on his felony murder convictions . . . and

for disposition of the case charging him with a nonrelated sexual assault; while in [the] custody of the Commissioner of Correction.’’ The petitioner had retained

Attorney Robert Chase to represent him for the sexual

assault case and Attorney Warren Luedecker to represent him for the felony murder case. The petitioner had

obtained a marriage license and Attorney Luedecker

represented to the deputies at the Litchfield jail that

the court, Pickett, J., had granted permission for the

petitioner to be wed at a neighboring office of a justice

of the peace. When the deputies and the petitioner

arrived late to court, Judge Pickett ‘‘responded to the

deception by Attorney Luedecker played on the deputies and the lateness . . . by addressing [the] petitioner

and his lawyer concerning the situation. The court

directed counsel into a separate room where they were

directed to remain for some period of time.’’ The court

‘‘put the petitioner to plea, accepted a nolo contendere

plea to sexual assault in the fourth degree and imposed

a one year sentence (time had already been served), all

done without Attorney Chase or other counsel available

. . . .’’ The petitioner’s counsel was present for the

sentencing on the felony murder case.

The petitioner alleged that although he ‘‘has had his

parole violated for technical violations, all nonviolent,

since he was first released to parole in 1985, at no time

until 2011 did the conviction of fourth degree sexual

assault (unwanted touching) have any bearing on his

dealings with the parole board or his various parole

officers.’’ The petitioner claimed that he had been on

parole for fifteen years without the sexual assault conviction having any bearing on his parole. The petitioner

alleged: ‘‘As of August 4, 2015, [the] petitioner is incarcerated [on a] violation of parole, which consists of

using a cell phone in violation of the conditions imposed

under the special monitoring unit for sex offenders.

[The] petitioner has been advised that his 1980

unwanted touching conviction, obtained in violation of

Gideon, will have [the] petitioner treat[ed] the same as

if it was sexual assault in the [first] degree.’’

By order dated July 26, 2016, the habeas court, Oliver,

J., sua sponte dismissed the petition for habeas corpus,

stating that ‘‘[t]he habeas corpus petition is dismissed
and is being returned pursuant to Connecticut Practice

Book § 23-29 (1),2 as the court lacks jurisdiction over

the claims set forth concerning the decisions of the

parole board and [Department of Correction] classifications.’’ (Footnote added.) On August 5, 2016, the petitioner filed a petition for certification to appeal, in

which he stated the grounds as follows: ‘‘Judge is wrong:

I pleaded guilty without assistance of counsel, which

states a claim even though sentence expired. Gideon

[v. Wainwright, supra, 372 U.S. 335]; Daniels v. United

States, 532 U.S. 374, 378 [121 S. Ct. 1578, 149 L. Ed. 2d

590] (2001).’’ In his application for waiver of fees, costs

and expenses and appointment of counsel on appeal,

the petitioner stated: ‘‘Conviction must be vacated even

if [there are] no direct or collateral consequences.’’ On

August 5, 2016, the habeas court denied the petition

for certification to appeal and granted the petitioner’s

application for appointment of counsel and waiver of

fees on appeal. This appeal followed.

Our Supreme Court has stated: ‘‘We begin by setting

forth the applicable standard of review and procedural

hurdles that the petitioner must surmount to obtain

appellate review of the merits of a habeas court’s denial

of the habeas petition following denial of certification

to appeal. In Simms v. Warden, 229 Conn. 178, 187,

640 A.2d 601 (1994), we concluded that [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of

certification to appeal unless the petitioner establishes

that the denial of certification constituted an abuse of

discretion by the habeas court. In Simms v. Warden,

230 Conn. 608, 615–16, 646 A.2d 126 (1994), we incorporated the factors adopted by the United States Supreme

Court in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S.

Ct. 860, 112 L. Ed. 2d 956 (1991), as the appropriate

standard for determining whether the habeas court

abused its discretion in denying certification to appeal.

This standard requires the petitioner to demonstrate

that the issues 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. . . . Simms v.

Warden, supra, 230 Conn. 616. A petitioner who establishes an abuse of discretion through one of the factors

listed above must then demonstrate that the judgment

of the habeas court should be reversed on its merits.

Id. . . . 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.’’ (Citation omitted; emphasis in original; internal quotation marks omitted.) Castonguay v. Commissioner of Correction, 300

Conn. 649, 657–58, 16 A.3d 676 (2011).

We next address the relevant principles regarding
construction of the habeas petition. ‘‘Because this

appeal arises from the habeas court’s ruling dismissing

the petition on the basis that the court lacked jurisdiction, we take the facts to be those alleged in the petition,

including those facts necessarily implied from the allegations, construing them in favor of the petitioner for

purposes of deciding whether the court had subject

matter jurisdiction.’’ Anthony A. v. Commissioner of

Correction, 326 Conn. 668, 670, 166 A.3d 614 (2017).

We also note that ‘‘[i]t is the established policy of the

Connecticut courts to be solicitous of pro se litigants

and when it does not interfere with the rights of other

parties to construe the rules of practice liberally in

favor of the pro se party.’’ (Internal quotation marks

omitted.) Ajadi v. Commissioner of Correction, 280

Conn. 514, 549, 911 A.2d 712 (2006). However, ‘‘[t]he

petition for a writ of habeas corpus is essentially a

pleading and, as such, it should conform generally to

a complaint in a civil action. . . . The principle that a

plaintiff may rely only upon what he has alleged is basic.

. . . It is fundamental in our law that the right of a

plaintiff to recover is limited to the allegations of his

complaint. . . . While the habeas court has considerable 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 . . . to decide claims not raised.’’

(Internal quotation marks omitted.) Pentland v. Commissioner of Correction, 176 Conn. App. 779, 786, 169

A.3d 851 (2017).

‘‘[B]ecause [a] determination regarding a trial court’s

subject matter jurisdiction is a question of law, our

review is plenary.’’ (Internal quotation marks omitted.)

Foote v. Commissioner of Correction, 170 Conn. App.

747, 751, 155 A.3d 823, cert. denied, 325 Conn. 902,

155 A.3d 1271 (2017). Accordingly, we will ‘‘conduct a

plenary review of the petitioner’s petition to determine

whether the habeas court properly concluded that it

lacked subject matter jurisdiction to consider the petition.’’ Byrd v. Commissioner of Correction, 177 Conn.

App. 71, 79, A.3d (2017).

I

Before addressing the substance of the petitioner’s

claims, we review the relevant authority upon which

the petitioner relies. Pursuant to General Statutes § 52-

466 (a) (1),3

‘‘[a] habeas court has subject matter jurisdiction to hear a petition for habeas corpus when the

petitioner is in custody at the time that the habeas

petition is filed.’’4

(Internal quotation marks omitted.)

Foote v. Commissioner of Correction, supra, 170 Conn.

App. 752. Our Supreme Court has explained that ‘‘the

custody requirement in § 52-466 is jurisdictional in

nature 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.’’ (Internal quotation marks

omitted.) Ajadi v. Commissioner of Correction, supra,

280 Conn. 537; see also Lebron v. Commissioner of

Correction, 274 Conn. 507, 525, 876 A.2d 1178 (2005)

(‘‘Habeas corpus provides a special and extraordinary

legal remedy for illegal detention. . . . The deprivation

of legal rights is essential before the writ may be issued.

. . . Questions which do not concern the lawfulness

of the detention cannot properly be reviewed on habeas

corpus.’’ [Internal quotation marks omitted.), overruled

in part on other grounds by State v. Elson, 311 Conn.

726, 747, 754, 91 A.3d 862 (2014). ‘‘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

. . . .’’ (Internal quotation marks omitted.) Mourning

v. Commissioner of Correction, 120 Conn. App. 612,

619, 992 A.2d 1169, cert. denied, 297 Conn. 919, 996

A.2d 1192 (2010).

‘‘[I]n 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.

. . . [C]ollateral 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 quotation

marks omitted.) Foote v. Commissioner of Correction,

supra, 170 Conn. App. 752; see also Lebron v. Commissioner of Correction, supra, 274 Conn. 520, 530–31

(although petitioner claimed that the collateral consequences of his 1992 conviction, in the form of an

enhancement of his 1999 sentence, were sufficient to

render him in custody under § 52-466, petition sought

to directly attack the 1992 conviction, and petitioner

was no longer in custody on that conviction); McCarthy

v. Commissioner of Correction, 274 Conn. 557, 560,

562–63, 877 A.2d 758 (2005) (holding that petitioner

whose thirty-four year old burglary conviction was used

in federal prosecution under the Armed Career Criminal

Act of 1984, 18 U.S.C. §§ 922 [g] [1] and 924 [e] [1]

and [2] [(2012)], was not in custody for the expired

conviction, and noting that ‘‘[t]o the extent that the

petitioner claims that he is in custody or has been

deprived of his liberty . . . because his 1958 conviction was used to enhance his current federal sentence,

his loss of liberty stems solely from his current federal

conviction. . . . Consequently, the petitioner can pursue his claim, if at all, only by way of a petition for

a writ of habeas corpus attacking his current federal

sentence.’’ [Citations omitted; internal quotation marks

omitted.]). Moreover, this court has addressed the

effect of an expired conviction on parole eligibility,
finding such collateral consequences insufficient to render a petitioner in custody on the expired conviction.

See Fernandez v. Commissioner of Correction, 139

Conn. App. 173, 181–82, 55 A.3d 588 (2012) (‘‘Because

parole eligibility neither affects the term of the sentence

for the assault conviction nor mandates release at a

particular time, the fact that the petitioner’s eligibility

for parole was extended from 50 percent of time served

to 85 percent of time served on his still effective term

of imprisonment of twenty-eight years did not cause

the petitioner to suffer a present restraint with respect

to the assault conviction, nor did it affect when the

sentence for the assault conviction expired. Rather, the

change in parole eligibility is a collateral consequence

of the assault conviction.’’), cert. granted on other

grounds, 307 Conn. 947, 60 A.3d 960 (2013) (appeal

withdrawn May 28, 2013).

‘‘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.’’ Lebron v.

Commissioner of Correction, supra, 274 Conn. 529 n.17

(concluding that ‘‘the legislature did not intend to make

the state writ of habeas corpus broader than its federal

counterpart’’). Like § 52-466, the federal habeas statutes

provide the United States district courts with jurisdiction to hear petitions for habeas relief only from petitioners who are ‘‘in custody in violation of the

Constitution or laws or treaties of the United States.’’

28 U.S.C. § 2241 (c) (3) (2012); see also 28 U.S.C. § 2254

(a) (2012). The United States Supreme Court has interpreted the custody requirement as mandating ‘‘that the

habeas petitioner be in custody under the conviction

or sentence under attack at the time his petition is

filed.’’ (Internal quotation marks omitted.) Maleng v.

Cook, 490 U.S. 488, 490–91, 109 S. Ct. 1923, 1925, 104

L. Ed. 2d 540 (1989); see also Oliphant v. Commissioner

of Correction, 274 Conn. 563, 571 and n.7, 877 A.2d 761

(2005) (noting our Supreme Court’s adoption of

Maleng).

In Maleng, the petitioner had been convicted in 1958

of robbery in state court and sentenced to twenty years

of imprisonment. Maleng v. Cook, supra, 490 U.S. 489.

While he was on parole in 1976 from that sentence, he

was convicted of new state offenses and was sentenced

in 1978 to two life terms of imprisonment and a ten

year term of imprisonment. Id. Pursuant to Washington

state law, the 1958 conviction increased by several years

the mandatory minimum term of imprisonment that the

petitioner was required to serve on his 1978 sentences.

Id. Also in 1976, the petitioner was convicted in federal

court of bank robbery and conspiracy and was sentenced to thirty years imprisonment. Id. In 1985, the

petitioner, incarcerated in federal prison, filed a pro se

petition for a writ of habeas corpus. Id. In his petition,

he ‘‘listed the 1958 Washington conviction as the conviction under attack’’ on the ground that the state court
had failed to conduct a competency hearing. (Internal

quotation marks omitted.) Id., 490. The petitioner also

alleged that the 1958 conviction ‘‘had been used illegally

to enhance his 1978 state sentences, which he had not

yet begun to serve.’’ Id. The issue before the United

States Supreme Court was whether the petitioner was

‘‘in custody’’ within the meaning of 28 U.S.C. § 2241 (c)

(3).5

Id.

The court determined that the collateral consequences suffered by the petitioner, specifically, the

enhancement of his 1978 state sentences, were insufficient to render him ‘‘in custody’’ on his expired 1958

conviction. Id., 492. The court stated: ‘‘While we have

very liberally construed the ‘in custody’ requirement

for purposes of federal habeas, we have never extended

it to the situation where a habeas petitioner suffers no

present restraint from a conviction. Since almost all

[s]tates have habitual offender statutes . . . a contrary

ruling would mean that a petitioner whose sentence

has completely expired could nonetheless challenge the

conviction for which it was imposed at any time on

federal habeas. This would read the ‘in custody’ requirement out of the statute . . . .’’ Id. The 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.’’ Id.

The court did conclude, however, that the petitioner

was ‘‘in custody’’ on his 1978 state sentences that he

had not yet begun to serve. Id., 493. Because the ‘‘habeas

petition, construed with the deference to which pro se

litigants are entitled . . . can be read as asserting a

challenge to the 1978 sentences, as enhanced by the

allegedly invalid prior conviction,’’ the court concluded

that the petitioner had ‘‘satisfied the ‘in custody’ requirement for federal habeas jurisdiction.’’ (Citation omitted;

emphasis omitted.) Id., 493–94. The court expressly limited its holding to ‘‘the narrow issue of ‘custody’ for

subject-matter jurisdiction of the habeas court’’ and

expressed ‘‘no view on the extent to which the 1958

conviction itself may be subject to challenge in the

attack upon the 1978 sentences which it was used to

enhance.’’ Id., 494; see also Lebron v. Commissioner

of Correction, supra, 274 Conn. 512–16 (discussing

Maleng).

The United States Supreme Court has also addressed

the issue of a conviction obtained without representation by counsel (uncounseled conviction) that is used

either ‘‘to support guilt or enhance punishment’’ for

another offense. Burgett v. Texas, 389 U.S. 109, 115, 88

S. Ct. 258, 19 L. Ed. 2d 319 (1967). Under Gideon v.

Wainwright, supra, 372 U.S. 345, the sixth amendment

right to counsel was made applicable to state prosecutions through the due process clause of the fourteenth
amendment. The court subsequently has afforded special status to Gideon claims in the context of a sentence

enhancement that was based on a prior conviction

obtained where there was a failure to appoint counsel

in violation of the sixth amendment. Specifically, the

court has recognized that ‘‘[t]o permit a conviction

obtained in violation of Gideon v. Wainwright to be

used against a person either to support guilt or enhance

punishment for another offense . . . is to erode the

principle of that case.’’ Burgett v. Texas, supra, 115.

In Burgett, the defendant was charged under a Texas

recidivist statute with having been convicted of four

previous felonies. Id., 111. Evidence of the prior convictions, including a certified record of a conviction from

Tennessee, was presented before the jury. Id., 111–12.

The defendant objected on the ground that the conviction was void under state law because he had not been

represented by counsel in violation of the fourteenth

amendment. Id., 112. The court in Burgett concluded

that the prior conviction, obtained in violation of Gideon, which was introduced as evidence in a subsequent

prosecution, was inherently prejudicial. Id., 115.

Although the state court had given an instruction to the

jury to disregard the prior conviction, the error was not

harmless beyond a reasonable doubt, and it required

reversal of the judgment. Id.

Following Burgett, the Supreme Court in United

States v. Tucker, 404 U.S. 443, 447, 92 S. Ct. 589, 30 L.

Ed. 2d 592 (1972), affirmed the decision of the Unites

States Court of Appeals for the Ninth Circuit remanding

the case to the District Court for reconsideration of

the defendant’s sentence for bank robbery, where the

record revealed that the sentencing judge had given

specific consideration to prior convictions that had

been obtained in violation of Gideon. The defendant

collaterally attacked the prior convictions in California

state court, arguing that they were obtained in violation

of the right to counsel. Id., 445. The California state

court noted the ‘‘propriety of our present examination

of constitutionally challenged out-of-state priors as they

relate to California adjudication of habitual criminality.’’ (Emphasis added.) In re Tucker, 64 Cal. 2d 15,

16–17, 409 P.2d 921, 48 Cal. Rptr. 697 (1966). The petitioner thereafter initiated an action pursuant to 28

U.S.C. § 2255 in the federal District Court in which he

had been convicted of the bank robbery.6 United States

v. Tucker, supra, 445. Because the sentence was

‘‘founded at least in part upon misinformation of constitutional magnitude’’; id., 447; the United States Supreme

Court affirmed the judgment of the Ninth Circuit

remanding the case to the trial court to reconsider the

defendant’s sentence without consideration of the prior

convictions, which were invalid under Gideon. Id., 449.

The United States Supreme Court also has addressed

the use of unconstitutional convictions obtained in vio-
lation of the right to counsel as used to enhance a

sentence under the Armed Career Criminal Act of 1984,

18 U.S.C. § 924 (e) (ACCA).7

In Custis v. United States,

511 U.S. 485, 488, 114 S. Ct. 1732, 128 L. Ed. 2d 517

(1994), the defendant sought to collaterally attack during his federal sentencing proceeding the validity of

two prior convictions used to enhance his sentence

under the ACCA. He attacked ‘‘his previous convictions

claiming the denial of the effective assistance of counsel, that his guilty plea was not knowing and intelligent,

and that he had not been adequately advised of his

rights in opting for a ‘stipulated facts’ trial.’’ Id., 496.

The court declined to extend Burgett’s and Tucker’s

recognition of ‘‘the right to attack collaterally prior convictions used for sentence enhancement beyond the

right to have appointed counsel established in Gideon.’’

Id.; see also State v. Jusino, 163 Conn. App. 618, 627,

137 A.3d 65 (citing Custis for proposition that ‘‘a defendant has a constitutional right to collaterally attack a

prior conviction during a federal sentencing proceeding

only if the conviction was obtained in violation of the

defendant’s right to counsel under Gideon’’), cert.

denied, 321 Conn. 906, 136 A.3d 643 (2016). The court

in Custis reasoned that ‘‘principles of finality associated

with habeas corpus actions apply with at least equal

force when a defendant seeks to attack a previous conviction used for sentencing. By challenging the previous

conviction, the defendant is asking a district court ‘to

deprive [the] [state-court judgment] of [its] normal force

and effect in a proceeding that ha[s] an independent

purpose other than to overturn the prior judgmen[t].’ ’’

Custis v. United States, supra, 497. The court noted

that the defendant was still in custody on his state

convictions at the time of his federal sentencing and,

therefore, he could attack those sentences in state court

or through federal habeas review. Id.

In Daniels v. United States, supra, 532 U.S. 377, the

petitioner filed a motion to vacate, set aside, or correct

his sentence under 28 U.S.C. § 2255, which permits the

court to vacate a sentence on the ground that it was

imposed in violation of the constitution. He contended

that his two robbery convictions did not qualify as predicate offenses under the ACCA, because, he alleged, they

were unconstitutional as the product of faulty guilty

pleas and ineffective assistance of counsel. Id. The

Supreme Court in both Custis and Daniels recognized

that the failure to appoint counsel constituted ‘‘a unique

constitutional defect’’; id., 382; Custis v. United States,

supra, 511 U.S. 496; that justified an exception permitting a collateral attack on prior convictions during the

course of a federal sentencing proceeding or potentially

on a motion to vacate, set aside, or correct a sentence

if the defendant had raised the claim at his federal

sentencing proceeding. Daniels v. United States, supra,

382. Thus, the court held that the rule that a prior

conviction may not be attacked during a sentencing
proceeding was subject to only one exception: ‘‘If an

enhanced federal sentence will be based in part on a

prior conviction obtained in violation of the right to

counsel, the defendant may challenge the validity of

his prior conviction during his federal sentencing proceedings.’’ Id. The court in Daniels clarified, however,

that ‘‘[a] defendant may challenge a prior conviction as

the product of a Gideon violation in a § 2255 motion,

but generally only if he raised that claim at his federal

sentencing proceeding.’’ (Emphasis added.) Id.

Last, in Lackawanna County District Attorney v.

Coss, 532 U.S. 394, 399, 401–402, 121 S. Ct. 1567, 149

L. Ed. 2d 608 (2001), the court construed a petition for

habeas corpus as a challenge to the petitioner’s current

sentence, as enhanced by an allegedly invalid prior conviction, which the petitioner claimed was invalid

because he did not receive effective assistance of counsel. Specifically, the petitioner alleged that the sentencing judge considered the unconstitutional convictions

in calculating his sentence. Id., 400. The court held that

‘‘once a state conviction is no longer open to direct or

collateral attack in its own right because the defendant

failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully),

the conviction may be regarded as conclusively valid.

. . . If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge

the enhanced sentence through a petition under [28

U.S.C.] § 2254 on the ground that the prior conviction

was unconstitutionally obtained.’’8

(Citation omitted.)

Id., 403–404. The court noted that an exception to this

rule exists where the prior conviction involved a failure

to appoint counsel in violation of the sixth amendment.

The court concluded that ‘‘[w]hen an otherwise qualified § 2254 petitioner can demonstrate that his current

sentence was enhanced on the basis of a prior conviction that was obtained where there was a failure to

appoint counsel in violation of the Sixth Amendment,

the current sentence cannot stand and habeas relief is

appropriate.’’ (Emphasis added.) Id., 404; see also

Lebron v. Commissioner of Correction, supra, 274

Conn. 517 (recognizing the Gideon exception as articulated in Lackawanna). The court in Lackawanna cautioned, however, that ‘‘[a]s with any § 2254 petition, the

petitioner must satisfy the procedural prerequisites for

relief including, for example, exhaustion of remedies.’’

Lackawanna County District Attorney v. Coss,

supra, 404.

Federal courts applying Custis, Daniels, and Lackawanna, have affirmed the dismissal of habeas petitions

where the petitioner has not followed the proper procedures in presenting a claim that an enhanced federal

sentence was based on a prior conviction obtained in

violation of the right to counsel. See Brennan v. United

States, 646 Fed. Appx. 622, 623 (10th Cir. 2016) (dismissing petition for habeas corpus filed pursuant to § 2241
where petitioner’s argument ‘‘could have been tested

during his federal sentencing and then under § 2255’’);

Perkins v. Holt, 410 Fed. Appx. 422, 423 (3d Cir. 2010)

(affirming District Court’s judgment dismissing petition

filed under § 2241, where petitioner raised arguments

that could have been raised at his federal sentencing

proceeding, on direct appeal, or in a § 2255 motion,

explaining that ‘‘a Gideon violation does not eliminate

the need to follow the proper procedures’’); Howard v.

United States, 374 F.3d 1068, 1072 (11th Cir. 2004) (‘‘[a]

modern day petitioner cannot rely on outdated language

about Gideon errors rising to the level of jurisdictional

defects in order to get past procedural defenses,

because the Supreme Court has stated in two modern

decisions—Daniels and Lackawanna, both decided in

2001—that procedural defenses do apply to Gideonbased claims’’); see also Lee v. United States, No. CIV.

A. 02-1837, 2006 WL, *3 (E.D. Pa. March 14, 2006) (petitioner who failed to raise claim that his prior convictions were uncounseled during federal sentencing

proceeding was ‘‘precluded on federal habeas review

to argue that the prior state convictions were ‘un-counseled,’ i.e., petitioner is procedurally defaulted from

raising the Gideon exception discussed in Daniels’’).

We now address the claims asserted in the present

appeal. The petitioner argues that the allegations in his

petition ‘‘establish that he was completely deprived of

his counsel in the conviction and sentence for sexual

assault, and that this uncounseled conviction is enhancing the punishment for another offense.’’ He further

claims that ‘‘[u]nder federal constitutional law’’ his allegations establish ‘‘custody, and therefore, jurisdiction,

in the habeas court.’’ The respondent, the Commissioner of Correction, does not dispute that ‘‘the petitioner might be permitted to challenge, by way of

habeas corpus, the legality of the sentence for which

he currently remains in custody on the ground that it

has been adversely affected by an expired conviction

obtained in violation of Gideon . . . .’’9

The parties disagree, however, as to whether the

habeas court has jurisdiction over the petitioner’s claim

that, regardless of any impact on a subsequent conviction, he may directly attack the expired conviction itself.

The petitioner claims that his petition seeks withdrawal

of his guilty plea as to his expired conviction for sexual

assault. His application for a waiver of fees, costs and

expenses states that his ‘‘[c]onviction must be vacated

even if [there are] no direct or collateral consequences,’’

and his petition for certification to appeal maintains

that he states a claim ‘‘even though [his] sentence

expired.’’ The habeas court’s ruling dismissing the petition did not expressly address this claim. However,

because the petitioner raised it in his petition for certification to appeal and in his briefing to this court and

because the claim implicates subject matter jurisdiction, we address it. See Pentland v. Commissioner of
Correction, supra, 176 Conn. App. 785 (‘‘[t]he subject

matter jurisdiction requirement may not be waived by

any party, and also may be raised by a party, or by

the court sua sponte, at any stage of the proceedings,

including on appeal’’ [internal quotation marks

omitted]).

On appeal, the petitioner contends that the habeas

court had subject matter jurisdiction over his petition

directly seeking vacation of the expired sexual assault

conviction. The United States Supreme Court precedent

addressing the use of an uncounseled conviction in later

prosecutions, either as evidence of guilt or as a sentence

enhancement, does not support the petitioner’s claim

that he may attack the expired conviction in the absence

of an enhancement. Moreover, circuit courts applying

such precedent have recognized that procedural

defenses apply to Gideon claims, necessarily refuting

the proposition that a Gideon claim may be raised without limitation.10 Last, we do not find persuasive the

scant, nonbinding, out-of-state authority the petitioner

cites in support of his proposition that ‘‘the existence

of the Gideon exception allows the sentencing court

to act on the expired conviction, not merely the present

or potentially enhanced sentence.’’ To the extent that

the petitioner directly challenges the expired 1980 conviction, we conclude that the petitioner has submitted

no authority to support a claim that the expired conviction itself may be vacated, and the habeas court’s denial

of certification to appeal as to this claim was not an

abuse of discretion.11

II

The petitioner claims on appeal that his petition ‘‘did

not seek to alter or modify his parole. Rather, the relief

requested was the vacation of the 1980 conviction

(which is enhancing the conditions of parole).’’ We have

concluded in part I of this opinion that the habeas court

lacked jurisdiction over the petition to the extent that

it sought to challenge directly the expired conviction.

Thus, all that remained of the petition was a challenge

to the conditions of parole imposed on the petitioner.12

We conclude that the habeas court did not abuse its

discretion in denying the petitioner’s petition for certification to appeal, where the habeas court properly concluded that it lacked subject matter jurisdiction over the

petition to the extent that it challenged the petitioner’s

classification and conditions of his parole.

We first note that the petition for certification to

appeal did not address the specific grounds upon which

the habeas court sua sponte dismissed the petition.

‘‘This court has determined that a petitioner cannot

demonstrate that the habeas court abused its discretion

in denying a petition for certification to appeal if the

issue that the petitioner later raises on appeal was never

presented to, or decided by, the habeas court.’’ ((Internal quotation marks omitted.) Haughey v. Commis-
sioner of Correction, 173 Conn. App. 559, 572, 164 A.3d

849, cert. denied, 327 Conn. 906, 170 A.3d 1 (2017);

see also Melendez v. Commissioner of Correction, 141

Conn. App. 836, 841, 62 A.3d 629 (‘‘[t]he court could

not abuse its discretion in denying the petition for certification about matters that the petitioner never raised’’),

cert. denied, 310 Conn. 921, 77 A.3d 143 (2013).13

However, given that the habeas court’s decision

implicates subject matter jurisdiction, we address the

jurisdictional issue raised by the respondent and

responded to by the petitioner. See Ajadi v. Commissioner of Correction, supra, 280 Conn. 532 (although

habeas court committed plain error in failing to disqualify itself, our Supreme Court had jurisdiction, and an

independent obligation to determine whether the

habeas court lacked subject matter jurisdiction). The

respondent argues that the ‘‘habeas court correctly concluded that both the classification decisions and the

parole decisions regarding this petitioner are entirely

discretionary and therefore invoke neither a liberty

interest, nor any other constitutionally cognizable interest within the jurisdiction of the habeas court.’’ The

petitioner argues that ‘‘[t]o the degree that the petition

indicates that he is being classified and treated as a

sex offender, petitioner has alleged a cognizable liberty

interest, sufficient to withstand a sua sponte motion to

dismiss at such an early state of the proceedings.’’

‘‘[I]n order to invoke successfully the jurisdiction of

the habeas court, a petitioner must allege an interest

sufficient to give rise to habeas relief. . . . In order to

invoke the trial court’s subject matter jurisdiction in a

habeas action, a petitioner must allege that he is illegally

confined or has been deprived of his liberty. . . . In

order . . . to qualify as a constitutionally protected liberty . . . the interest must be one that is assured either

by statute, judicial decree, or regulation.’’ (Citation

omitted; emphasis in original; internal quotation marks

omitted.) Byrd v. Commissioner of Correction, supra,

177 Conn. App. 82.

Our appellate courts have recognized, and the petitioner concedes, that parole eligibility status does not

constitute a cognizable liberty interest sufficient to

invoke habeas jurisdiction. Id.; see also Baker v. Commissioner of Correction, 281 Conn. 241, 261–62, 914

A.2d 1034 (2007). The petitioner maintains, citing

Anthony A. v. Commissioner of Correction, 159 Conn.

App. 226, 231, 122 A.3d 730 (2015), aff’d, 326 Conn.

668, 166 A.3d 614 (2017), that ‘‘classification as a sex

offender, however, can create a cognizable liberty interest.’’ (Emphasis omitted.)

Our resolution of the petitioner’s claim depends on

an application of the stigma plus test recently adopted

by our appellate courts in Anthony A. v. Commissioner

of Correction, 326 Conn. 668, 166 A.3d 614 (2017).14 The

petitioner in Anthony A. claimed that he was incorrectly
classified as a sex offender and that he had suffered

negative consequences as a result of the incorrect classification. Id., 672. The petitioner had been convicted

of unlawful restraint in the first degree, failure to

appear, and violation of probation. Id., 671. His wife

initially had told police that the petitioner sexually

assaulted her, a statement which she later recanted. Id.

Thus, the state entered a nolle prosequi on the charge

of sexual assault in a spousal relationship. Id. The petitioner alleged that he was classified as a sex offender

upon his incarceration, and the trial court assumed for

purposes of its ruling that the petitioner had ‘‘been

classified as a sex offender when he was not really a

sex offender.’’ Id., 671 n.2. ‘‘As a consequence of the

erroneous classification, the petitioner was offered a

choice. He could participate in ‘sex treatment’ that was

recommended by his offender accountability plan or

risk forfeiture of supervised community release, parole

and the opportunity to earn risk reduction earned credit

(good time credits).’’ Id., 672. Under these facts, our

Supreme Court concluded that the petitioner sufficiently had alleged a protected liberty interest sufficient

to invoke the jurisdiction of the habeas court. Id., 686.

In so concluding, the court analyzed the petitioner’s

claim pursuant to the ‘‘stigma plus’’ test applied by the

federal courts. Id., 680. This inquiry involved a focus

on ‘‘whether the allegations of the petition demonstrate

that the classification was wrongful and stigmatized the

petitioner, and that the consequences suffered by the

petitioner were ‘qualitatively different’ from the punishments usually suffered by prisoners, so that they constituted a major change in the conditions of confinement

amounting to a grievous loss.’’ Id., 680–81. Our Supreme

Court agreed with the federal courts that the ‘‘stigma’’

part of the test was satisfied by the ‘‘uniquely stigmatizing’’ classification as a sex offender, citing as an example the proliferation of Megan’s Laws, whereby sex

offenders are required to register with law enforcement

officials. Id., 681.

Our Supreme Court also made clear that there exists a

jurisdictional threshold requirement that the petitioner

‘‘must allege the falsehood of the stigmatizing label or

classification.’’ Id., 680. The court explained: ‘‘As far as

the petitioner’s burden to demonstrate that the classification is wrongful, for purposes of jurisdiction, that

requirement is satisfied by effective pleading and verified in a threshold inquiry—the petitioner simply must

claim that the classification is false.’’ Id., 681. In

Anthony A., the petitioner satisfied this requirement by

claiming that he had not sexually assaulted his wife

and noting her retraction of her earlier statements to

the contrary. Id., 681–82. In the present case, the petitioner has not alleged facts, which, taken as true, establish ‘‘stigma’’ under the stigma plus test because he fails

to satisfy the threshold requirement that he plead that

the classification is false. Nowhere in his petition does
he allege that the conduct underlying his conviction of

sexual assault did not occur. See Vega v. Lantz, 596

F.3d 77, 82 (2d Cir. 2010) (‘‘[s]ince Vega did not allege

falsity, he was not entitled to relief on his stigma plus

due process claim’’).

Even if this court were to conclude that the stigma

factor had been satisfied, the petitioner has failed to

establish the ‘‘plus’’ factor. The court in Anthony A.

noted that federal courts have found allegations of compelled participation in sex offender treatment sufficient

to satisfy the ‘‘plus’’ factor, whereas labeling of an

inmate as a sex offender and providing the inmate with

recommendations for treatment, absent negative consequences for a failure to participate, is insufficient.

Anthony A. v. Commissioner of Correction, supra, 326

Conn. 683–84. Here, the petitioner’s sole factual allegation in support of his classification claim is that he was

‘‘incarcerated o[n a] violation of parole which consists

of using a cell phone in violation of the conditions

imposed under the special monitoring unit for sex

offenders.’’15 He also provides the conclusory allegation

that he had ‘‘been advised that his 1980 unwanted touching conviction . . . will have petitioner treat[ed] the

same as if it was sexual assault in the 1st degree.’’

Although the petitioner’s allegations imply that he was

subject to a condition of parole imposed and/or monitored by a special sex offender unit, he makes no allegations that he was compelled to participate in any sex

offender treatment, let alone that parole eligibility was

conditioned upon participation in such treatment. Cf.

Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997) (finding liberty interest implicated based on ‘‘the stigmatizing consequences of the attachment of the ‘sex offender’

label coupled with the subjection of the targeted inmate

to a mandatory treatment program whose successful

completion is a precondition for parole eligibility’’).

Because the petitioner has satisfied neither factor of

the stigma plus test, we conclude that he has failed

to allege sufficient facts to assert a cognizable liberty

interest that affords jurisdiction to the habeas court

over his claim. Accordingly, the habeas court did not

abuse its discretion in denying the petitioner’s petition

for certification to appeal from its judgment of dismissal.

III

Last, we address the petitioner’s claim under article

first, § 8, of the Connecticut constitution. He claims

that the ‘‘right to counsel provided by the Connecticut

constitution is more extensive than that provided in the

United States constitution,’’ and that the violation of

his right to counsel under the Connecticut constitution

‘‘was sufficient to establish jurisdiction in the habeas

court to adjudicate his claims.’’ The respondent contends that the petitioner’s briefing regarding the breadth

of the substantive right to counsel under the Connecti-
cut constitution addresses the ‘‘wrong question . . . .’’

The respondent argues that the issue presented by this

case is whether the jurisdictional prerequisite ‘‘for

bringing an action in our state habeas courts differs

from that applicable to habeas actions brought in federal courts.’’ We agree with the respondent that the

petitioner’s claim under the Connecticut constitution

is misdirected.

The petitioner presents his argument pursuant to the

multifactor approach our Supreme Court first adopted

in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225

(1992). The factors to be considered are ‘‘(1) the text

of the relevant constitutional provisions; (2) related

Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts;

(5) historical insights into the intent of [the] constitutional [framers]; and (6) contemporary understandings

of applicable economic and sociological norms [otherwise described as public policies].’’ (Internal quotation

marks omitted.) State v. Skok, 318 Conn. 699, 708, 122

A.3d 608 (2015).

The petitioner’s analysis with respect to the Geisler

factors does not address the central issue presented by

this case. With respect to the first factor, the petitioner

claims that the language of article first, § 8, of the Connecticut constitution ‘‘provides for a defendant’s right

to be heard by himself and by counsel, as opposed to

the sixth amendment’s provision for the assistance of

counsel in his defense.’’ This court has recognized that

‘‘[t]here is no appreciable difference in the text of either

the federal or state constitutions except that under our

federal constitution the right to act for oneself is implicit

whereas in our state constitution that right is express.’’

State v. Orlando, 163 Conn. App. 155, 164–65, 134 A.3d

708, cert. denied, 320 Conn. 930, 133 A.3d 461 (2016).

Given that the right to self-representation is not at issue

in the present appeal, the petitioner’s briefing on the

first factor is not relevant.

With respect to the second factor, the petitioner

claims that ‘‘Connecticut state and federal decisions

pre-Custis held that uncounseled felony convictions

may not be used as a basis for habitual offender status.’’

See Wilson v. Warden, 26 Conn. Supp. 464, 466, 227

A.2d 265 (1967) (where prior, uncounseled conviction

was used in later conviction as a habitual offender,

the court concluded that the Massachusetts conviction

obtained without the assistance of counsel ‘‘cannot

stand’’ and ordered that petitioner be resentenced as a

second offender rather than a third offender); United

States ex rel. Brown v. Reincke, 266 F. Supp. 83, 86 (D.

Conn. 1966) (ordering resentencing of petitioner, where

uncounseled prior Maine conviction had been improperly used by state of Connecticut in determining the

sentence of the petitioner as a habitual offender). As

the petitioner concedes, however, both cases involved
Connecticut’s habitual offender statute, not claims of

adverse parole conditions. Moreover, the petitioner

cites to State v. Sostre, 48 Conn. Supp. 279, 296, 842

A.2d 633 (2002), in which the Superior Court considered

a challenge to the use of a prior felony conviction as

an aggravant under the death penalty statutes. Sostre

is distinguishable not only because it arose in the unique

context of a death penalty proceeding, but also because

the court prefaced its analysis of the claim of ineffective

assistance of counsel by noting that ‘‘it is not entirely

clear to the court that this issue is properly raised in

the present proceeding . . . .’’ Id. Accordingly, we conclude that the authorities cited do not support the petitioner’s claims.

The analysis presented under factors four through

six likewise is not helpful to the petitioner’s claims in

this appeal. Rather than direct this court to decisions

of sister states having provisions similar to article first,

§ 8, of the Connecticut constitution, the petitioner

instead briefs under factor four certain sister states’

allowance of ‘‘collateral attacks for reasons other than

deprivation of the right to counsel,’’ without explaining

how such precedent addressing other constitutional

violations impacts the subject of this appeal. The analysis pursuant to factor six suffers from the same defect,

in that the petitioner attempts to erase the distinction

between right to counsel violations and ineffective

assistance of counsel claims, without relating the analysis to his specific claims. With respect to the fifth factor,

the petitioner provides a broad discussion of the history

of the substantive right to counsel under the Connecticut constitution without explaining how such history

could assist this court in reviewing his claim. Accordingly, as the principles cited by the petitioner do not

enlighten our analysis of whether the habeas court had

subject matter jurisdiction over the petitioner’s petition,

we reject his claim pursuant to the Connecticut constitution.

We conclude that the habeas court did not abuse

its discretion by denying certification to appeal. The

jurisdictional issues the petitioner raises are not debatable among jurists of reason, nor has the petitioner

shown that a court could resolve the issues in a different

manner, and the questions are inadequate to deserve

encouragement to proceed further.

The appeal is dismissed.

In this opinion the other judges concurred.

1 Practice Book § 23-24 (a) provides in relevant part: ‘‘(a) The judicial

authority shall promptly review any petition for a writ of habeas corpus to

determine whether the writ should issue. The judicial authority shall issue

the writ unless it appears that:

‘‘(1) the court lacks jurisdiction . . . .’’

2 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:

‘‘(1) the court lacks jurisdiction . . . .’’

3 General Statutes § 52-466 (a) (1) provides: ‘‘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.’’

4 We note that where a petitioner is on parole from a conviction, he remains

‘‘in custody’’ on that conviction for purposes of habeas court jurisdiction.

See Lebron v. Commissioner of Correction, 274 Conn. 507, 529 n.17, 876

A.2d 1178 (2005), overruled in part on other grounds by State v. Elson, 311

Conn. 726, 747, 754, 91 A.3d 862 (2014).

5 Section 2241 (c) of title 28 of the United States Code provides in relevant

part: ‘‘The writ of habeas corpus shall not extend to a prisoner unless . . .

(3) [h]e is in custody in violation of the Constitution or laws or treaties of

the United States . . . .’’

6 Section 2255 (a) of title 28 of the United States Code provides: ‘‘A prisoner

in custody under sentence of a court established by Act of Congress claiming

the right to be released upon the ground that the sentence was imposed in

violation of the Constitution or laws of the United States, or that the court

was without jurisdiction to impose such sentence, or that the sentence was

in excess of the maximum authorized by law, or is otherwise subject to

collateral attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.’’

7 Under the ACCA, the penalty for possession of a firearm by a felon

increases from a maximum of ten years in prison to a mandatory minimum

sentence of fifteen years and a maximum of life in prison without parole

if the defendant has three previous convictions for a violent felony or serious

drug offense. See 18 U.S.C. § 924 (e) (2012).

8 Section 2254 (a) of title 28 of the United States Code provides: ‘‘The

Supreme Court, a Justice thereof, a circuit judge, or a district court shall

entertain an application for a writ of habeas corpus in behalf of a person

in custody pursuant to the judgment of a State court only on the ground

that he is in custody in violation of the Constitution or laws or treaties of

the United States.’’

9 For reasons discussed in part II of this opinion, we conclude that the

habeas court was without jurisdiction over the petition because the petition

alleges only that his classification and conditions of parole have been

affected by the allegedly uncounseled conviction.

10 The petitioner points this court to a case from the United States District

Court for the Eastern District of Michigan, Ward v. Wolfenbarger, 340 F.

Supp. 2d 773, 776 (E.D. Mich. 2004), as factually closest to the present case.

In Ward, the petitioner had been convicted of drug offenses and had been

deprived of his sixth amendment right to counsel when the trial court failed

to advise him of his rights to appeal from the conviction and his right to

appellate counsel if he was indigent. The court initially conditioned the

granting of the writ upon the respondent’s taking immediate action to afford

the petitioner an appeal of right to the Michigan Court of Appeals with the

assistance of appellate counsel. Id., 775. On reconsideration, the court issued

an unconditional writ, after noting that affording the petitioner a new appeal

of right would not vitiate the prejudice arising from the denial of his right

to appeal from his thirty-three year old convictions. Id., 776–77. The court

explained that the expired convictions were being used to deny the petitioner parole release on the later convictions, and that the board had scheduled a public hearing to determine whether the petitioner should be released

on parole. In support of its conclusion to grant the unconditional writ, the

court stated that it was highly unlikely that any appeal of right could be

heard before the scheduled parole hearing. Id.

In the other two cases cited by the petitioner, State v. Peters, 244 Wis.

2d 470, 473, 628 N.W.2d 797 (2001), and Brockway v. State, 37 P.3d 427, 430

(Alaska App. 2001), both direct appeals, the defendants claimed that a prior,

unconstitutional conviction was used in a prosecution for repeat offenders.

In Peters, at issue was a fifth operating after revocation of license proceeding (OAR). State v. Peters, supra, 244 Wis. 2d 473. The defendant had ‘‘moved

to invalidate his second OAR conviction in an effort to prevent its use for

penalty enhancement purposes in the fifth offense prosecution.’’ Id. The

court concluded that ‘‘because this prosecution for fifth offense OAR is

predicated in part on a prior OAR conviction that was obtained when [the

defendant] was not represented by counsel, we conclude that it falls within

the right-to-counsel exception to the general rule against collateral attacks

on prior convictions used to enhance subsequent penalties.’’ (Emphasis

added.) Id., 480. Accordingly, the defendant could collaterally attack the

prior conviction in the context of the enhanced sentence proceeding.
In Brockway, the court concluded that the defendant, who had not claimed

a total deprivation of counsel, could not collaterally attack his expired

conviction during his sentencing as a second felony offender. Brockway v.

State, supra, 37 P.3d 430. The court noted an exception to this rule—a

defendant may attack a prior conviction if the defendant was completely

denied the right to counsel, because a deprivation of the right to counsel

is equivalent to a lack of jurisdiction. Id.

To the extent Peters and Brockway stand for the proposition that a defendant may, in the context of an enhanced sentence proceeding, challenge the

validity of a prior uncounseled conviction, these cases have no application

to the present appeal, which does not arise from a defendant’s objection

to the use of an uncounseled conviction in an enhanced sentence proceeding.

11 The petitioner further claims that ‘‘[a] Superior Court has inherent

authority to vacate a judgment entered without jurisdiction at any time,

either on a direct motion or on a collateral attack on the judgment—including

this collateral attack on the 1980 conviction.’’ He cites Koennicke v. Maiorano, 43 Conn. App. 1, 682 A.2d 1046 (1996), which provides that ‘‘[a] judgment

void on its face and requiring only an inspection of the record to demonstrate

its invalidity is a mere nullity, in legal effect no judgment at all, conferring

no right and affording no justification . . . . It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void.’’

(Internal quotation marks omitted.) Id., 25. Even assuming that the petitioner

ultimately could demonstrate that the expired conviction was void on the

basis of a violation of his right to counsel, our conclusion that the habeas

court lacked jurisdiction over the petition is dispositive of this appeal.

12 The petitioner claims that ‘‘[i]f a petitioner challenges his expired conviction in the context of its effect on an outstanding sentence of parole, the

habeas court has the authority to consider the merits of those claims,’’ citing

Antonelli v. Lappin, 134 Fed. Appx. 700, 701 (5th Cir. 2005). In that case,

the United States Court of Appeals for the Fifth Circuit held that the District

Court correctly concluded that the petitioner could not attack his expired

conviction, but that the District Court did have jurisdiction over the petitioner’s claim that the allegedly unconstitutional conviction resulted in a forfeiture of nineteen months of parole.

In a subsequent decision, the Fifth Circuit clarified the defendant’s position, which was that the ‘‘effect of this forfeiture . . . is that nineteen

months of parole have now been ‘tacked on’ to the end of the present

sentence he is serving, thereby ‘making the time [he must] serve 19 months

longer than it would otherwise be’ ’’ without the unconstitutional conviction.

Antonelli v. Lappin, 338 Fed. Appx. 379, 381 (5th Cir. 2009). The Fifth

Circuit stated that the District Court had jurisdiction because the petitioner

had challenged the unconstitutional conviction ‘‘in the context of its effect

on his outstanding sentence of parole . . . .’’ (Emphasis added; internal

quotation marks omitted.) Id. In so holding, the Fifth Circuit clarified that

the District Court’s findings as to the merits of the petitioner’s claims were

‘‘not for the purpose of declaring the 1997 conviction invalid for all purposes

but rather for the limited purpose of determining whether the 1997 conviction

requires the forfeiture of nineteen months of ‘street time,’ as determined

by the [United States] Parole Commission.’’ Id., 382.

We are not persuaded that Antonelli supports the petitioner’s claims.

The petitioner in Antonelli specifically had alleged that his uncounseled

conviction was used to ‘‘tack on’’ an additional nineteen months to the end

of the sentence which he was currently serving. Moreover, the Fifth Circuit

made clear that the inquiry into the allegedly uncounseled conviction was

solely for the purpose of whether the conviction required the forfeiture of

the petitioner’s street time.

13 Although the petitioner contends in his reply brief that it is an abuse

of discretion for the habeas court to deny a petition sua sponte without

notice and a hearing, the court is not required to conduct a hearing before

dismissing a petition. See Pentland v. Commissioner of Correction, supra,

176 Conn. App. 787 (habeas court was not required to hold hearing before

dismissing petition where ‘‘the petitioner had not satisfied his obligation to

allege sufficient facts in his pleading, which, if proved, would establish that

he was in custody at the time he filed the petition’’).

14 The respondent claims that the stigma plus test is not applicable, relying

solely upon Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 6, 123 S.

Ct. 1160, 155 L. Ed. 2d 98 (2003). In Doe, the United States Supreme Court

declined to reach the question of whether the defendant had established a

liberty interest because it concluded that even assuming a liberty interest

existed, due process did not entitle the defendant to a hearing to determine
his dangerousness prior to the offender being required to register as a sex

offender. Id., 7–8. Dangerousness was ‘‘not material under the Connecticut

statute’’; id., 7; and thus, no hearing was required. Id. 7–8. Because we

address the question of whether the petitioner has sufficiently alleged a

protected liberty interest, we reject the respondent’s claim that the stigma

plus test is inapplicable.

15 In his brief, the petitioner requests this court to take judicial notice of

information contained on the Department of Correction website regarding

a specialized unit that provides intensive supervision for sex offenders. We

decline to take judicial notice of any documents not before the habeas court

in this matter. See Arriaga v. Commissioner of Correction, 120 Conn. App.

258, 261, 990 A.2d 910 (2010) (declining to take judicial notice of underlying

criminal record where petitioner had burden of alleging facts in petition

demonstrating he was in custody of respondent, and he failed to do so),

appeal dismissed, 303 Conn. 698, 36 A.3d 224 (2012); Young v. Commissioner

of Correction, 104 Conn. App. 188, 194, 932 A.2d 467 (2007) (‘‘we review the

actions of the habeas court on the record and may not consider extraneous

material later submitted directly to us’’), cert. denied, 285 Conn. 907, 942

A.2d 416 (2008).