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*********************************************** 
PETER BORIA v. COMMISSIONER OF CORRECTION

(AC 39715)

Prescott, Moll and Bishop, Js.

Syllabus

The petitioner, who previously had been convicted, on a guilty plea, of

robbery in the first degree and of being a persistent dangerous felony

offender, filed a third petition for a writ of habeas corpus, claiming,

inter alia, that amendments to the risk reduction earned credits statute

(§ 18-98e) violated the ex post facto clause of the federal constitution

and that his guilty plea was not knowingly and voluntarily made. The

habeas court, sua sponte, dismissed the third petition without a hearing.

With respect to the petitioner’s ex post facto claim regarding risk reduction earned credits, the court concluded that it lacked jurisdiction

because there was no cognizable liberty interest to such credit. The

court also dismissed the petitioner’s challenge to the voluntariness of

his guilty plea as an improper successive claim. From the judgment

rendered thereon, the petitioner, on the granting of certification,

appealed to this court. Held:

1. The petitioner could not prevail on his claim that the habeas court improperly dismissed the portion of his third habeas petition alleging an ex

post facto violation regarding statutory amendments to the risk reduction earned credit program: the petitioner’s claim that the habeas court’s

dismissal of his petition without holding a hearing violated the applicable

rule of practice (§ 23-40) was unavailing, as the third petition alleged

only the deprivation of risk reduction earned credit, which our Supreme

Court and this court previously have held is insufficient to invoke the

habeas court’s jurisdiction, and, thus, in light of that binding precedent

establishing the habeas court’s lack of jurisdiction, the habeas court

was not obligated to grant the petitioner a hearing before dismissing

the habeas petition and acted properly in dismissing this portion of the

petitioner’s third habeas petition; moreover, the habeas court’s dismissal

for lack of jurisdiction was proper, as § 18-98e, which provides that an

inmate made by eligible to earn risk reduction credit at the discretion

of the respondent Commissioner of Correction, does not support an

expectation that an inmate will automatically earn risk reduction credit

or will necessarily retain such credit once it has been awarded, like

parole eligibility, there is no cognizable liberty interest in earning risk

reduction credits in order to obtain an earlier end of sentence date, and

the claim did not implicate the ex post facto clause given that the

petitioner committed the underlying robbery in 2009, prior to the enactment of the risk reduction earned credit statutes, and, thus, that the

statutory amendment excluding persistent dangerous felony offenders

for risk reduction earned credit eligibility simply put the petitioner in

the same position that he was in when he committed the offense for

which he was sentenced.

2. The habeas court properly dismissed the third habeas petition pursuant

to the rule of practice (§ 23-29) that allows for the dismissal of a pending

habeas petition without a hearing if a previous petition was brought on

the same grounds and the new petition did not state new facts or proffer

new evidence not reasonably available at the pervious hearing; although

the habeas court incorrectly concluded that the petitioner’s claim involving the voluntariness of his plea was an improper successive claim, as

it had not been raised in any prior habeas petition, the dismissal was

nonetheless proper under the doctrine of collateral estoppel, as the

first and third habeas petitions, which alleged different claims, were

predicated on the same underlying factual allegation, namely, that the

petitioner was not aware of the charges pending against him, that central

factual allegation necessary to sustain the petitioner’s claim of an involuntary plea was fully and fairly litigated and decided adversely to the

petitioner in the first habeas action, and, therefore, the petitioner was

precluded by collateral estoppel from litigating the same issue in regard

to his claim of an involuntary plea.

(One judge concurring separately)
Argued September 14—officially released December 4, 2018

Procedural History

Petition for a writ of habeas corpus, brought to the

Superior Court in the judicial district of Tolland, where

the court, Oliver, J., rendered judgment dismissing the

habeas petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

Nicholas A. Marolda, assigned counsel, with whom,

on the brief, was Temmy Ann Miller, assigned counsel,

for the appellant (petitioner).

Kathryn W. Bare, assistant state’s attorney, and Stephen R. Finucane, assistant attorney general, with

whom, on the brief, was Maureen Platt, state’s attorney,

for the appellee (respondent).
Opinion

PRESCOTT, J. The petitioner, Peter Boria, appeals,

following the granting of his petition for certification

to appeal, from the judgment of the habeas court dismissing his petition for a writ of habeas corpus pursuant

to Practice Book § 23-29.1 The petitioner claims that

the habeas court improperly dismissed his claim (1)

that amendments to the risk reduction earned credits

statute in 2013 and 2015 violated the ex post facto clause

of the United States constitution2 and (2) that his right

to due process had been violated because his guilty

plea in his underlying criminal case was not knowingly

and voluntarily made. As to the first claim, we disagree

and, accordingly, affirm that aspect of the judgment of

the habeas court. As to the second claim, although we

agree with the petitioner that the habeas court should

not have dismissed that claim as an improper successive

petition under Practice Book § 23-29, we affirm that

aspect of the judgment on the alternative ground that

it was barred by collateral estoppel.3

The following undisputed facts and procedural history are relevant to our resolution of this appeal. The

petitioner currently is serving a sentence of twenty

years of incarceration after pleading guilty on October

6, 2009, to the charges of robbery in the first degree in

violation of General Statutes § 53a-134 (a) (4) and to

being a persistent dangerous felony offender in violation of General Statutes § 53a-40.

On July 18, 2011, the petitioner filed a petition for a

writ of habeas corpus alleging ineffective assistance of

trial counsel in violation of the sixth and fourteenth

amendments to the United States constitution (first

petition). Among other things, the first petition specifically alleged that, prior to his election to plead guilty,

‘‘[d]efense counsel failed to inform the petitioner of the

applicable [charges] against him,’’ including that the

petitioner was being charged as a persistent dangerous

felony offender. On July 13, 2013, the habeas court

issued an oral ruling denying the first petition, and the

petitioner did not appeal therefrom.

On February 8, 2016, the petitioner filed two additional habeas petitions. One petition, docketed as TSRCV-16-4007851-S (second petition), was filed pro se and

sought the restoration of good time credits that the

petitioner claimed he was eligible for and had been

receiving. The habeas court, Oliver, J., dismissed the

second petition for lack of jurisdiction pursuant to Practice Book § 23-24 (a) (1).4 The petitioner filed a petition

for certification to appeal, which was granted by the

habeas court. The petitioner’s appeal from the dismissal

of the second petition was heard alongside this appeal,

and the judgment of the habeas court was summarily

affirmed by this court in a memorandum decision

(AC 39028).5
The other petition was docketed as TSR-CV-16-

4008315-S (third petition), and it is that petition that

underlies the present appeal. In the third petition, the

petitioner raised several claims, including an ex post

facto challenge to legislative amendments to the risk

reduction earned credit statutes and that his guilty plea

was not voluntarily made. The risk reduction earned

credit statutes provide that certain prisoners convicted

of crimes committed after October 1, 1994, ‘‘may be

eligible to earn risk reduction credit toward a reduction

of such person’s sentence, in an amount not to exceed

five days per month, at the discretion of the Commissioner of Correction’’ for certain positive behaviors

while incarcerated. General Statutes § 18-98e (a). Number 13-3, § 59, of the 2013 Public Acts, effective July

1, 2013, eliminated statutory language that previously

permitted a prisoner’s parole eligibility date to be

advanced by the application of risk reduction earned

credits.6 Number 15-216, § 9, of the 2015 Public Acts,

effective October 1, 2015, amended General Statutes

§ 18-98e to exclude inmates convicted of being a persistent dangerous felony offender from earning risk reduction credits.

On September 7, 2016, the habeas court, Oliver, J.,

sua sponte dismissed the third petition pursuant to

Practice Book § 23-29. With respect to the petitioner’s

ex post facto claim regarding risk reduction earned

credits, the court dismissed that claim for lack of jurisdiction because it concluded that there was no cognizable liberty interest in such credits. See Practice Book

§ 23-29 (1).

Additionally, the habeas court dismissed the petitioner’s challenge to the voluntariness of his guilty plea as

an improper successive claim. See Practice Book § 23-

29 (3). Regarding that claim, the court stated in its

judgment of dismissal that ‘‘the instant petition presents

the same ground as a prior petition previously denied

(TSR-CV-11-4004269-S) and fails to state new facts or

proof of new evidence reasonably available at the time

of the prior petition.’’ The habeas court also concluded

that, in a prior habeas proceeding, the habeas court

found that the ‘‘petitioner was made aware of his persistent felony offender status and the prosecuting authority’s filing of a ‘part B’ information.’’ The court granted

certification to appeal, and this appeal followed.

We begin by setting forth our standard of review for

a challenge to the dismissal of a petition for a writ of

habeas corpus. ‘‘The conclusions reached by the trial

court in its decision to dismiss [a] habeas petition are

matters of law, subject to plenary review. . . . [If] the

legal conclusions of the court are challenged, we must

determine whether they are legally and logically correct

. . . and whether they find support in the facts that

appear in the record. . . . To the extent that factual

findings are challenged, this court cannot disturb the
underlying facts found by the habeas court unless they

are clearly erroneous.’’ (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of

Correction, 168 Conn. App. 294, 301–302, 145 A.3d 416,

cert. denied, 323 Conn. 937, 151 A.3d 385 (2016).

I

We first address the petitioner’s claim that the habeas

court improperly dismissed that portion of the third

petition alleging an ex post facto violation regarding

statutory amendments to the earned risk reduction

credit program. There are two aspects to this claim. The

petitioner argues that the court improperly (1) failed

to hold a hearing before dismissing the petition, and

(2) dismissed the claim for lack of jurisdiction.7 We are

not persuaded by the petitioner’s contentions.

A

The petitioner first argues that the habeas court

improperly dismissed the third petition on its own

motion without holding a hearing. Specifically, the petitioner argues that the court’s failure to hold a hearing

on the third petition violated Practice Book § 23-40 and

deprived him of his right to such a hearing under Mercer

v. Commissioner of Correction, 230 Conn. 88, 644 A.2d

340 (1994), General Statutes § 52-470, and Practice

Book § 23-29. We disagree that a hearing was required

in this case.

Whether the habeas court was required to hold a

hearing prior to dismissing a habeas petition presents

a question of law subject to plenary review. Green v.

Commissioner of Correction, 184 Conn. App. 76, 82,

A.3d , cert. denied, 330 Conn. 933, A.3d

(2018). ‘‘Pursuant to Practice Book § 23-29, the habeas

court 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 . . . .’’ (Internal quotation marks

omitted.) Holliday v. Commissioner of Correction, 184

Conn. App. 228, 234, A.3d (2018); see also Gilchrist

v. Commissioner of Correction, 180 Conn. App. 56, 182

A.3d 690 (habeas court had no obligation to conduct

hearing before dismissing petition pursuant to Practice

Book § 23-29), cert. granted, 329 Conn. 908, 186 A.3d

13 (2018).

In Holliday, the petitioner filed a petition for a writ

of habeas corpus in which he alleged that legislative

changes to the risk reduction earned credit statute violated the ex post facto clause of the United States constitution. Holliday v. Commissioner of Correction, supra,

184 Conn. App. 232. The habeas court dismissed the

petition pursuant to Practice Book § 23-29, and the petitioner appealed from the judgment claiming that the

court erred in dismissing his petition (1) for lack of

jurisdiction and (2) without notice or a hearing. Id.,

230. This court held that, for purposes of the habeas
court’s subject matter jurisdiction, which is predicated

on the deprivation of a recognized liberty interest, there

is no liberty interest in the application of risk reduction

earned credit toward an inmate’s parole eligibility. Id.,

233–34. Additionally, this court held that the habeas

court was not required to provide notice or a hearing

before dismissing the petition. Id., 236.

Although, under Practice Book § 23-40, ‘‘[h]abeas

petitioners generally have the right to be present at any

evidentiary hearing and at any hearing or oral argument

on a question of law which may be dispositive of the

case . . . Practice Book § 23-40 speaks only to the petitioner’s right to be present at an evidentiary hearing

when such a hearing is held. Such hearings are not

always required, as Practice Book § 23-29 authorizes

the court to dismiss a habeas petition on its own

motion. . . .

‘‘[A] petitioner’s right to a hearing before a habeas

court is not absolute. . . . [T]his court [has] held that

the habeas court acted properly in dismissing a habeas

petition pursuant to Practice Book § 23-29 without first

holding a hearing because it could be determined from

a review of the petition [that] the petitioner had not

satisfied his obligation to allege sufficient facts in his

pleading to establish jurisdiction.’’ (Citations omitted;

footnote omitted; internal quotation marks omitted.)

Holliday v. Commissioner of Correction, supra, 184

Conn. App. 236–37.8

Here, as in Holliday, the habeas court could determine from a review of the third petition that the petitioner had failed to allege sufficient facts to establish

jurisdiction. The third petition alleged only the deprivation of risk reduction earned credit, which our Supreme

Court and this court have held is insufficient to invoke

the habeas court’s jurisdiction. See Perez v. Commissioner of Correction, 326 Conn. 357, 373–74, 163 A.3d

597 (2017); Holliday v. Commissioner of Correction,

supra, 237–38. Therefore, in light of binding precedent

establishing the habeas court’s lack of subject matter

jurisdiction,9 we find that the habeas court was not

obligated to grant the petitioner a hearing before dismissing the petition and acted properly in dismissing

this portion of the third petition.

B

The petitioner next argues that the habeas court

improperly dismissed for lack of jurisdiction that portion of the third petition alleging an ex post facto violation regarding statutory amendments to the earned risk

reduction credit program. Although the petitioner recognizes that ordinarily the habeas court’s subject matter

jurisdiction is predicated on the deprivation of a recognized liberty interest, the petitioner argues that ‘‘no

liberty interest is required for the petitioner to raise a

cognizable ex post facto claim,’’ and that being excluded
from earning risk reduction credits guarantees that the

petitioner will be incarcerated longer, violating the ex

post facto clause. We disagree.

The following additional facts are relevant to this

claim. In 2011, while the petitioner was incarcerated,

the legislature enacted General Statutes § 18-98e. Section 18-98e authorizes the Commissioner of Correction

to award, in his or her discretion, risk reduction earned

credits. The risk reduction earned credit program

allows an eligible convicted prisoner to earn credit

toward a reduction of his or her sentence. In 2015, the

General Assembly amended § 18-98e, rendering persistent dangerous felony offenders, such as the petitioner,

ineligible to earn risk reduction credits. See Public Acts

2015, No. 15-216, § 9 (a).

We turn to our standard of review and applicable

legal principles for this claim. ‘‘It is well settled that [a]

determination regarding a trial court’s subject matter

jurisdiction is a question of law and, therefore, we

employ the plenary standard of review and decide

whether the court’s conclusions are legally and logically

correct and supported by the facts in the record.’’ (Internal quotation marks omitted.) Petaway v. Commissioner of Correction, 160 Conn. App. 727, 731, 125 A.3d

1053 (2015), cert. dismissed, 324 Conn. 912, 153 A.3d

1288 (2017).

‘‘With respect to the habeas court’s jurisdiction, [t]he

scope of relief available through a petition for habeas

corpus is limited. 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 other words, a

petitioner must allege an interest sufficient to give rise

to habeas relief. . . . In order to . . . qualify as a constitutionally protected liberty [interest] . . . the interest must be one that is assured either by statute, judicial

decree, or regulation.’’ (Citations omitted; internal quotation marks omitted.) Green v. Commissioner of Correction, supra, 184 Conn. App. 85. Our Supreme Court

and this court have held that there is no liberty interest

in the application of risk reduction eligibility credit

toward an inmate’s parole eligibility. Perez v. Commissioner of Correction, supra, 326 Conn. 371; Green v.

Commissioner of Correction, supra, 85.

In the present case, the petitioner argues that ‘‘[t]he

court’s basis for concluding that it lacked jurisdiction—

that there [is] no recognized liberty interest in parole

eligibility . . . cannot support the court’s dismissal.’’

(Internal quotation marks omitted.) The petitioner

states that ‘‘parole eligibility is irrelevant’’ and that the

statutory changes at issue ‘‘do not affect when the petitioner will become eligible for parole’’ but rather, ‘‘they

affect only his end of sentence date.’’ In other words,

the petitioner attempts to draw a distinction between

circumstances in which the loss of risk reduction credit
affects a prisoner’s end of sentence date from those

in which it affects a prisoner’s parole eligibility date.

Specifically, the petitioner argues that ‘‘by excluding

[him] from the opportunity to earn [risk reduction credits] . . . the probability that his sentence will increase,

and that he will be incarcerated longer . . . is guaranteed,’’ and that this is a violation of the ex post facto

clause.

‘‘Pursuant to § 18-98e . . . an inmate is not guaranteed a certain amount of risk reduction credits per

month—or, in fact, any credits at all.’’ Green v. Commissioner of Correction, supra, 184 Conn. App. 86. As we

stated in Green, ‘‘[t]he fact that the commissioner is

vested with such broad discretion in implementing the

[risk reduction earned credit] program is significant.

Our appellate courts have concluded, consistently, that

an inmate does not have a constitutionally protected

liberty interest in certain benefits—such as good time

credits, risk reduction credits, and early parole consideration—if the statutory scheme pursuant to which the

commissioner is authorized to award those benefits is

discretionary in nature.’’ Id., 86–87.

‘‘[T]he plain language of § 18-98e (a) . . . provides

that an inmate may be eligible to earn risk reduction

credit at the discretion of the [respondent] . . . [who]

may, in his or her discretion, cause the loss of all or a

portion of such earned risk reduction credit for any act

of misconduct or insubordination or refusal to conform

to recommended programs or activities or institutional

rules occurring at any time during the service of the

sentence or for other good cause. Although the legislature has provided guidance to the respondent as to how

to exercise his discretion, the respondent still has broad

discretion to award or revoke risk reduction credit. As

such, the statute does not support an expectation that

an inmate will automatically earn risk reduction credit

or will necessarily retain such credit once it has been

awarded.’’ (Citations omitted; internal quotation marks

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

326 Conn. 372.

Like parole eligibility, there is no cognizable liberty

interest in earning risk reduction credits in order to

obtain an earlier end of sentence date. In Green, we

held that, although the petitioner argued that the loss

of risk reduction credit ‘‘[bore] directly on the duration

of his sentence,’’ the court did not have jurisdiction

over the claim. Green v. Commissioner of Correction,

supra, 184 Conn. App. 84. Moreover, the claim fails

to implicate the ex post facto clause. The traditional

approach in determining whether a colorable ex post

facto claim exists requires us to compare the statute

that was in effect at the time of the petitioner’s offense

to the challenged statute. See Perez v. Commissioner

of Correction, supra, 326 Conn. 378–80. In the present

case, the petitioner committed the robbery underlying
his conviction in 2009, prior to the enactment of the

risk reduction earned credits statutes. Therefore, the

statutory amendment excluding persistent dangerous

felony offenders for risk reduction earned credit eligibility simply put the petitioner in the same position that

he was in when he committed the offense for which

he was sentenced. The fact that the claimed liberty

interest in the present matter pertains to the petitioner’s

maximum release date, rather than his date of parole

eligibility, is immaterial because the sentence that the

petitioner received based on the statutory scheme in

effect at the time he committed the offense has not

been changed. No ex post facto violation occurred,

and no cognizable liberty interest is implicated by the

petitioner’s loss of risk reduction earned credits.

Accordingly, the habeas court properly dismissed this

portion of the third petition.

II

We next address the petitioner’s claim that the habeas

court improperly dismissed that portion of the third

petition alleging that his guilty plea was not voluntary

on the ground that the claim constituted an improper

successive petition pursuant to Practice Book § 23-29

(3). Specifically, the petitioner argues that the third

petition presents new grounds that were neither raised

in the first petition nor litigated at the habeas trial in

that case. According to the petitioner, because the first

petition alleged ineffective assistance of counsel, and

not a freestanding due process claim challenging the

voluntariness of his plea, the claim raised in the third

petition was not improperly successive. Although the

respondent, the Commissioner of Correction (commissioner), concedes that the habeas court improperly dismissed the third petition for being improperly

successive, it contends that the judgment of dismissal

nonetheless should be affirmed because the factual

basis for the petitioner’s claim was fully and fairly litigated and decided adversely to him in the first habeas

action. We agree with the commissioner and, therefore,

affirm the habeas court’s judgment dismissing this

count on the alternative ground that the claim is barred

by collateral estoppel.10

We begin our analysis by reviewing the doctrines of

res judicata and collateral estoppel in habeas corpus

proceedings. Pursuant to Practice Book § 23-29, ‘‘[i]f a

previous application brought on the same grounds was

denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new

evidence not reasonably available at the previous hearing.’’ (Footnote omitted; internal quotation marks omitted.) Zollo v. Commissioner of Correction, 133 Conn.

App. 266, 277, 35 A.3d 337, cert. granted, 304 Conn. 910,

39 A.3d 1120 (2012) (appeal dismissed May 1, 2013).

‘‘[A] petitioner may bring successive petitions on the

same legal grounds if the petitions seek different relief.
. . . But where successive petitions are premised on

the same legal grounds and seek the same relief, the

second petition will not survive a motion to dismiss

unless the petition is supported by allegations and facts

not reasonably available to the petitioner at the time

of the original petition.’’ (Emphasis omitted; internal

quotation marks omitted.) Id., 278.

‘‘Our courts have repeatedly applied the doctrine of

res judicata to claims duplicated in successive habeas

petitions filed by the same petitioner. . . . In fact, the

ability to dismiss a petition [if] it presents the same

ground as a prior petition previously denied and fails

to state new facts or to proffer new evidence not reasonably available at the time of the prior petition is memorialized in Practice Book § 23-29 (3).’’ (Citations omitted;

internal quotation marks omitted.) Diaz v. Commissioner of Correction, 125 Conn. App. 57, 64–65, 6 A.3d

213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150

(2011).

‘‘[T]he application of the doctrine of res judicata is

limited in habeas actions to claims that actually have

been raised and litigated in an earlier proceeding.’’

(Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 168 Conn. App. 310.

This court has held that ‘‘the principle of claim preclusion applie[s] when identical claims [are] argued on

direct appeal and habeas review.’’ (Emphasis omitted.)

Diaz v. Commissioner of Correction, supra, 125 Conn.

App. 66.

The first petition and the third petition do not present

identical claims. The first petition asserted a claim of

ineffective assistance of counsel. The third petition

asserts a freestanding due process claim that the petitioner’s plea was involuntary. Therefore, the habeas

court in the present case, as the commissioner concedes, incorrectly concluded that the petitioner’s claim

involving the voluntariness of his plea was an improper

successive claim because it was precluded by the doctrine of res judicata. Simply put, the petitioner had not

raised the instant claim in any of the prior habeas

petitions.

We nonetheless agree with the commissioner that

we should affirm the habeas court’s judgment on the

alternative ground of collateral estoppel. ‘‘Under [Practice Book § 23-29 (5)], the court may dismiss [a habeas]

petition or any count thereof if it determines that any

other legally sufficient ground for dismissal of the petition exists.’’ (Internal quotation marks omitted.) Mozell

v. Commissioner of Correction, 147 Conn. App. 748,

758 n.8, 83 A.3d 1174, cert. denied, 311 Conn. 928, 86

A.3d 1057 (2014).

‘‘The common-law doctrine of collateral estoppel, or

issue preclusion, embodies a judicial policy in favor of

judicial economy, the stability of former judgments and
finality. . . . Collateral estoppel . . . is that aspect of

res judicata which prohibits the relitigation of an issue

when that issue was actually litigated and necessarily

determined in a prior action between the same parties

upon a different claim. . . . For an issue to be subject

to collateral estoppel, it must have been fully and fairly

litigated in the first action. It also must have been actually decided and the decision must have been necessary

to the judgment. . . . An issue is actually litigated if it

is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. . . . An

issue is necessarily determined if, in the absence of a

determination of the issue, the judgment could not have

been validly rendered. . . . [C]ollateral estoppel [is]

based on the public policy that a party should not be

able to relitigate a matter which it already has had an

opportunity to litigate. . . . Stability in judgments

grants to parties and others the certainty in the management of their affairs which results when a controversy is

finally laid to rest.’’ (Citation omitted; internal quotation

marks omitted.) Johnson v. Commissioner of Correction, supra, 168 Conn. App. 310–11.

We previously have affirmed judgments of the habeas

court on the alternative ground of collateral estoppel.

In Johnson, the petitioner alleged that his third habeas

counsel was ineffective because she did not raise the

issue of whether trial counsel was ineffective for failing

to file a motion for a competency evaluation. Id., 308.

The habeas court dismissed the claim as an improper

successive claim under the doctrine of res judicata. Id.

This court held that the claim was dismissed on

improper grounds because the petitioner had not raised

the identical claim in any of his prior habeas petitions.

Id., 309. This court, however, affirmed the dismissal

of the petitioner’s claim on the alternative ground of

collateral estoppel under Practice Book § 23-29 (5).11

Id., 312.

We agree with the commissioner that the central factual allegation necessary to sustain the petitioner’s

claim of an involuntary plea was fully and fairly litigated

and decided adversely to the petitioner in the first

habeas action. In the first petition, the petitioner set

forth a claim of ineffective assistance of counsel premised on an allegation that his counsel failed to inform

him of the applicable charges against him. In adjudicating that claim of ineffective assistance of counsel, the

first habeas court was required to decide whether his

defense counsel had failed to inform him of all of the

charges, including the persistent dangerous felony

offender charge. In the third petition, the petitioner

claims that his plea was involuntary because he was not

aware that he was pleading guilty to being a persistent

dangerous felony offender. Therefore, although the first

and third petitions present different claims, they are

predicated on the same underlying factual allegation,

namely, that the petitioner was not aware of the charges
pending against him. The claim presented in the third

petition depends on this factual allegation, which was

fully and fairly litigated in the previous habeas proceeding and was decided adversely to him in that case by

the habeas court.

Specifically, in its memorandum of decision denying

the first habeas petition, the habeas court, Newson, J.,

found that counsel credibly testified that the petitioner

was informed that he was being charged as a persistent

dangerous felony offender. The memorandum of decision stated that the court credited defense counsel’s

testimony that defense counsel had properly discussed

and advised the petitioner of the facts and circumstances of the case. The court found that the petitioner

had admitted that he understood the fact that he was

facing a part B information as a persistent dangerous

felony offender and that he was exposed to a sixty

year sentence.

Further, Judge Newson stated, ‘‘[a]nd so again, the

substance and the length of the visits is not necessarily

a correlation to the quality or the information that’s

delivered in those visits and the court credits counsel’s

testimony that the petitioner was aware. Additionally,

there’s a plea canvass which the petitioner appears to

have made it through without any significant issues,

any questions, any lack of understanding, and the law

indicates that the court is allowed to rely on those

answers and responses as credible and accurate when

given. And when an individual is asked if he or she has

any questions or lacks any understanding during the

plea canvass and can answer that in the negative, then

the court is allowed to accept that as accurate and

truthful when given and that again presents issues when

a petitioner later comes in a habeas and claims that he

did not or does not understand.’’

Finally, the court stated, ‘‘[a]nd again, so the record

is clear . . . I found in general that counsel appeared

to be competent and knowledgeable . . . I credit her

testimony that she provided the petitioner with all of

the information necessary for him to make a knowing,

intelligent, and voluntary guilty plea.’’ (Emphasis

added.) Therefore, whether the petitioner entered his

plea knowing that he was pleading guilty to being a

persistent dangerous felony offender was a fact that was

fairly litigated and actually decided by the habeas court.

Because the habeas court necessarily decided

adversely to the petitioner the underlying issue of

whether he knew that he was pleading guilty to being

a persistent dangerous felony offender in a previous

habeas hearing, the petitioner is precluded by collateral

estoppel from litigating the same issue in regard to his

claim of an involuntary plea. The habeas court thus

properly dismissed the third petition pursuant to Practice Book § 23-29.
The judgment is affirmed.

In this opinion MOLL, J., concurred.

1 Practice Book § 23-29 provides: ‘‘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;

‘‘(2) the petition, or a count thereof, fails to state a claim upon which

habeas corpus relief can be granted;

‘‘(3) the petition presents the same ground as a prior petition previously

denied and fails to state new facts or to proffer new evidence not reasonably

available at the time of the prior petition;

‘‘(4) the claims asserted in the petition are moot or premature;

‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’

2 The constitution of the United States, article one, § 10, provides in relevant part: ‘‘No State shall . . . pass any . . . ex post facto Law . . . .’’

3

‘‘[I]t is axiomatic that [w]e may affirm a proper result of the trial court

for a different reason.’’ (Internal quotation marks omitted.) Coleman v.

Commissioner of Correction, 111 Conn. App. 138, 140 n.1, 958 A.2d 790

(2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009).

4 Practice Book § 23-24 (a) provides in relevant part: ‘‘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 . . . .’’

The petitioner, through appellate counsel, filed a motion for rectification

and articulation asking the habeas court to articulate the legal and factual

bases for its dismissal of the second petition, including, ‘‘what the [c]ourt

understands the petitioner’s claim(s) to be.’’ The habeas court denied the

motion for articulation and rectification, and the petitioner filed a motion

for review of the habeas court’s denial of that motion. This court granted

the motion for review but denied the relief requested therein.

5 Although the second petition appears to have significant overlap with

the first claim of the underlying petition in the present appeal, the respondent, the Commissioner of Correction, did not move for the habeas court

to dismiss the claim under the prior pending action doctrine; see Gainey

v. Commissioner of Correction, 181 Conn. App. 377, 380 n.5, 186 A.3d 784

(2018); or for being an improper successive petition.

6 Public Acts 2013, No. 13-3, § 59, amended subsections (b) (2), (c) and (e)

of General Statutes § 54-125a to delete provisions permitting the reduction

of time off of a prisoner’s parole eligibility date for risk reduction credit

earned under § 18-98e.

7 For purposes of clarity, we address these claims in a different order

than they were presented by the petitioner in his principal appellate brief.

8 As we indicated in Holliday, ‘‘we urge the habeas court to exercise [the]

authority [to dispose of a petition without a hearing] sparingly and limit its

use to those instances in which it is plain and obvious that the court lacks

jurisdiction over the habeas petition.’’ (Internal quotation marks omitted.)

Holliday v. Commissioner of Correction, supra, 184 Conn. App. 237.

9 Although the analysis contained in Judge Bishop’s concurrence has some

appeal, we note that our Supreme Court has granted the petition for certification to appeal from this court’s decision in Gilchrist v. Commissioner of

Correction, supra, 180 Conn. App. 56, in order to decide whether a habeas

petition may be disposed of pursuant to Practice Book § 23-29 by the habeas

court without a hearing. Under these circumstances, and in light of the fact

that we are bound by Holliday, we believe it is more prudent not to weigh

in further with respect to this issue.

10 ‘‘That the court relied on a wrong theory does not render the judgment

erroneous. We can sustain a right decision although it may have been placed

on a wrong ground.’’ (Internal quotation marks omitted.) Tyson v. Commissioner of Correction, 155 Conn. App. 96, 105 n.4, 109 A.3d 510, cert. denied,

315 Conn. 931, 110 A.3d 432 (2015).

11 In Johnson, we stated that ‘‘[t]o establish that third habeas counsel was

ineffective for failing to allege a claim that trial counsel was ineffective for

failing to move for a competency evaluation, the petitioner would be required

to prove that trial counsel was ineffective for failing to move for a competency evaluation. This already was decided, after a full evidentiary hearing,

by the fifth habeas court . . . .’’ Johnson v. Commissioner of Correction,

supra, 168 Conn. App. 311–12. Therefore, the petitioner’s claim involving

third habeas counsel ‘‘[was] barred by collateral estoppel because litigation
of that claim necessarily required relitigation of an issue that already [had]

been fully and fairly decided in the fifth habeas action, specifically, whether

trial counsel was ineffective for failing to move for a competency evaluation;’’

id., 311; and an earlier habeas proceeding ‘‘necessarily resolved an issue

that would need relitigation if the claim involving third habeas counsel were

to proceed . . . .’’ Id.