KENNETH RICHARDSON v. COMMISSIONER OF CORRECTION, SC 18541
Judicial District of Tolland at Somers
Habeas Corpus; Whether the "In Custody" Requirement is Satisfied Where the Petitioner is Confined for a Conviction That is Not the Subject of the Habeas Petition; Whether Habeas Petition Should Have Been Treated as Writ of Error Coram Nobis. Following a guilty plea to the charge of sale of a controlled substance, the petitioner, on December 9, 1996, was sentenced to three years incarceration, execution suspended, followed by three years of probation. While still on probation, the petitioner was arrested and imprisoned on federal drug charges. Subsequently, after his state sentence expired, the petitioner, in 2000, was convicted and sentenced on the federal drug charges. Based on his state conviction, the petitioner received a mandatory minimum life sentence as a three-time felony drug offender. In 2008, the petitioner filed this habeas petition, challenging the legality of his state drug conviction. General Statutes § 52-466 requires that a petitioner be in custody on the conviction under attack at the time the habeas petition is filed. The "in custody" requirement of § 52-466 has been held to be subject matter jurisdictional. See Lebron v. Commissioner of Correction, 274 Conn. 507 (2005). The petitioner claimed that, since his 1996 state conviction was used to enhance his federal sentence and because he was in custody for the federal conviction at the time he filed his habeas petition, he satisfied the "in custody" requirement of § 52-466. In support of his position, the petitioner cited Garlotte v. Fordice, 515 U.S. 39 (1995), which held that, if a petitioner is serving consecutive sentences, a court has jurisdiction over a habeas petition challenging a conviction whose sentence has expired if it can be shown that the expired sentence effectively extended the petitioner's release date. The rationale for the Garlotte ruling was that consecutive sentences were a "continuous stream" and that, therefore, a petitioner remains "in custody" until all of his sentences are served. The habeas court found that Garlotte was inapplicable, stating that two periods of confinement that coincidentally run in sequence without interruption, as is the case here, do not constitute "consecutive sentences" within the meaning of Garlotte. Thereafter, the court dismissed the habeas petition, stating that it was well established that a habeas petitioner does not remain in custody for a conviction whose sentence is expired merely because that conviction is used to enhance a subsequent sentence. On appeal, the petitioner claims that the in custody requirement is satisfied as long as a petitioner, at the time the habeas petition is filed, is confined for any conviction, not necessarily for the conviction that is the subject of the habeas petition, and it can be shown that the reversal of the challenged conviction would reduce the length of his confinement. Should the court conclude that he does not satisfy the "in custody" requirement, the petitioner alternatively claims that the dismissal of his action was nevertheless improper because the habeas court should have treated his petition as a writ of error coram nobis, which, unlike a writ of habeas corpus, affords relief even when the petitioner is no longer in custody for the applicable conviction.