Boria v. Commissioner of Correction (Concurrence)
Boria v. Commissioner of Correction (Concurrence)
Opinion
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McDONALD, J., concurring in the judgment. I concur in the result because I agree with the majority that the judgment of the Appellate Court should be reversed and the case remanded to the habeas court so that it can determine whether any grounds exist for it to decline to issue the writ of habeas corpus pursuant to Practice Book § 23-24. For the reasons stated in my concurrence in the companion case that we also decide today; see Brown v. Commissioner of Correction, 345 Conn. 1, , A.3d (2022) (McDonald, J., concurring); I do not agree with the majority’s conclusion that, if the writ is issued and the court thereafter dismisses the petition on its own motion pursuant to Practice Book § 23-29, the court need only provide the petitioner with notice and an opportunity to submit a written brief. As I discussed in detail in my concurrence in Brown, I believe that petitioners are also entitled to a hearing, as of right, prior to a court’s dismissal of the petition pursuant to § 23-29. Because a habeas corpus action is a civil action; see, e.g., Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970); and because the habeas sec- tion of our rules of practice does not provide a ‘‘more specific [rule],’’ I would apply the ‘‘ordinary rules of civil procedure’’ to the present case. (Internal quotation marks omitted.) Gilchrist v. Commissioner of Correc- tion, 334 Conn. 548, 555, 223 A.3d 368 (2020). The appli- cation of these rules leads to the conclusion that a habeas petitioner is entitled to notice, the right to sub- mit a written opposition, and an opportunity to be heard before a petition may be dismissed pursuant to § 23- 29. Accordingly, I respectfully concur in the judgment.
Reference
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