CHAPTER 915*
HABEAS CORPUS

      *Cited. 154 C. 363, 365. A hearing on a second application for a writ of habeas corpus is required if the second application is based upon a different ground from any relied on in the initial application. 180 C. 153, 157. Cited. 184 C. 366, 369.

Table of Contents

Sec. 52-466. Application for writ of habeas corpus. Service. Return.
Sec. 52-467. Punishment for refusal to obey writ or accept copy.
Sec. 52-468. Commitment for contempt; application for discharge.
Sec. 52-469. Averments of return may be denied or other facts alleged.
Sec. 52-470. Summary disposal of the case. Appeal by person convicted of crime.

      Sec. 52-466. Application for writ of habeas corpus. Service. Return. (a) An application for a writ of habeas corpus 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 his liberty, provided any application made by or on behalf of a person confined in the Connecticut Correctional Institution, Enfield-Medium or the Carl Robinson Correctional Institution, Enfield, shall be made to the superior court or a judge thereof for the judicial district of Tolland.

      (b) The application shall be verified by the affidavit of the applicant for the writ alleging that he truly believes that the person on whose account the writ is sought is illegally confined or deprived of his liberty.

      (c) The writ shall be directed to some proper officer to serve and return, who shall serve the same by putting a true and attested copy of it into the hands of the person who has the custody of the body of the person who is directed to be presented upon the writ. If the officer fails to make immediate return of the writ, with his actions thereon, he shall pay fifty dollars to the person so held in custody.

      (d) Any judge of the Superior Court to whom an application for a writ of habeas corpus is made may make the writ returnable before any other judge of the court, the consent of the other judge being first obtained; and the other judge shall thereupon proceed with the matter with the same authority as though the application had been originally presented to him.

      (e) If the application is made to a judge, the judge may certify the proceedings into court and the case shall thereupon be entered upon the docket and proceeded with as though the application had originally been made to the court.

      (f) A foster parent or an approved adoptive parent shall have standing to make application for a writ of habeas corpus regarding the custody of a child currently or recently in his care for a continuous period of not less than ninety days in the case of a child under three years of age at the time of such application and not less than one hundred eighty days in the case of any other child.

      (1949 Rev., S. 8202; 1949, S. 3212d; 1963, P.A. 459, S. 2; February, 1965, P.A. 604; P.A. 76-436, S. 410, 681; P.A. 78-280, S. 1, 110, 127; P.A. 82-160, S. 169; P.A. 83-5; P.A. 85-69; P.A. 86-186, S. 18; P.A. 87-282, S. 19; P.A. 88-332, S. 3, 4.)

      History: 1963 act added proviso re application by or on behalf of person confined in State Prison; 1965 act added alternative of application to court or judge in Tolland county to said proviso; P.A. 76-436 removed court of common pleas from purview of section, reflecting transfer of all trial jurisdiction to superior court, and added references to judicial districts, effective July 1, 1978; P.A. 78-280 restated provisions, deleting special provisions re conditions of making application to judges applicable dependent upon whether court was or was not in session to reflect fact that court now sits continuously and, deleting references to counties generally, substituted judicial district of Tolland for Tolland county and judicial district of Hartford-New Britain for Hartford county; P.A. 82-160 rephrased the section and inserted Subsec. indicators; P.A. 83-5 amended Subsec. (a) by deleting the provision which allowed an inmate at the correctional institution at Somers to make his application to either the Tolland judicial district or the Hartford-New Britain judicial district; P.A. 85-69 amended Subsec. (a) by requiring an inmate at the correctional institution at Enfield to make his application to the Tolland judicial district; P.A. 86-186 replaced the "Connecticut Correctional Institution, Enfield" with the "Connecticut Correctional Institution, Enfield-Medium or the Connecticut Correctional Institution, Enfield-Minimum"; P.A. 87-282 changed the name of the Connecticut Correctional Institution, Enfield-Minimum to the Carl Robinson Correctional Institution, Enfield; P.A. 88-332 added Subsec. (f) which gives a foster parent or an approved adoptive parent standing to make application for a writ of habeas corpus.

      See Sec. 51-186 re hearings on petitions for writ of habeas corpus held at Connecticut Correctional Institution, Somers.

      Annotations to former statute:

      Imprisonment on mesne process of one fraudulently decoyed from another state for the purpose is illegal, and the debtor may be released on this writ. 32 C. 589. Mere irregularities of procedure or the sufficiency of evidence are not reviewable on such a writ. 59 C. 386; 67 C. 349. Demurrer to return, and also an answer raising an issue of fact, cannot be pending at the same time. 67 C. 358. Where answer to return sets up facts upon which jurisdiction is claimed and demurrer is filed, court will determine jurisdiction on facts so alleged. 93 C. 361. As applied to determination of custody of child; 69 C. 291; 91 C. 156; 97 C. 442; 100 C. 207; detention of person for extradition; bail. 78 C. 150. Trial court may admit to bail pending appeal from decision dismissing writ. 100 C. 296. Habeas corpus will not lie as between coordinate courts while court first taking jurisdiction has power, upon same representations, to discharge prisoner; truth of jurisdictional recitals in judgment of court of general jurisdiction cannot be attacked collaterally on writ of habeas corpus claiming judgment a nullity. Id., 499. Bond or recognizance for costs not required. 113 C. 740.

      Court of common pleas is possessed of power in habeas corpus proceedings to consider matters affecting the custody of minor children. 10 CS 275. Where defendant father from whom custody of a nonresident child is sought is not resident in this state, court has no jurisdiction under this section. 20 CS 1. Writ of habeas corpus should not be used as substitute for appeal of an original action, or for a writ of error, or for a petition for a new trial. 21 CS 73.

      Annotations to present section:

      Where no showing of law of Norway re modification of custody orders, court entitled to assume Norwegian law same as ours. 151 C. 172. Where there is material change in circumstances, custody order could be modified. Id. Not violation of full faith and credit to Rhode Island custody decree where shown, under that forum's law, that court lost jurisdiction. 151 C. 315. Where defendant had moved to erase support order entered in habeas corpus proceeding brought by plaintiff to determine custody of minor children, claiming lack of jurisdiction, held that motion was properly denied since habeas corpus proceeding is by its nature equitable and the court, having assumed jurisdiction to do complete justice, had jurisdiction to enter the order of support. 152 C. 464, 465. Where plaintiff's appeal under this section was taken after he had served his sentence and had been released from jail and the original period of probation had expired, held that, since he is no longer "confined or deprived of his liberty", the issues he sought to raise are moot and the appeal should be dismissed. 153 C. 206, 207. Where information charging defendant as a second offender was correct except for a mistake in naming the crime committed and he pleaded guilty to the charge, raising no claim of error, held he established no right to relief by habeas corpus in the absence of a showing that he had suffered prejudice or injustice. 153 C. 599, 602. Habeas corpus to review eleven-year-old conviction upon grounds it resulted from unlawfully obtained evidence and incriminating statements denied; rules in Miranda v. Arizona (384 U.S. 436) and Mapp v. Ohio (367 U.S. 643) not retroactive. 155 C. 316. Cited. 156 C. 205. Cited. 183 C. 383, 386. Cited. 184 C. 366, 369. Cited. 198 C. 138, 140.

      Cited. 34 CA 129, 132; judgment reversed, see 234 C. 51 et seq. Cited. 43 CA 176. To satisfy custody requirement the petitioner must be under some legal restraint, e.g. imprisoned or paroled, at the time petition is filed. 83 CA 10.

      Cited. 23 CS 298. Claim of brutal treatment of a prisoner may not be considered in a habeas corpus proceeding. 25 CS 519. Habeas corpus does not lie when the petitioner is out on bail as he is presently at liberty. 26 CS 430. Habeas corpus is available to challenge illegality of confinement under unchallenged judgment of criminal conviction, as when petitioner has been deprived of constitutional rights beyond those curtailed by judgment. 34 CS 89. Probationer does fit within the second prong of section because to reach a contrary conclusion would be to totally deprive person whose sentence consists solely of a period of probation of the right to file a habeas petition attacking that conviction and that could not have been legislature's intent in enacting section. 48 CS 470.

      Subsec. (a):

      Cited. 43 CA 176.

      Cited. 40 CS 251, 252.

      Subsec. (f):

      Cited. 230 C. 459, 463, 464, 466, 468. Cited. 234 C. 51, 60, 61, 63.

      Cited. 31 CA 400, 406, 412, 413, 415, 417, 423, 438; judgment reversed, see 230 C. 459 et seq.

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      Sec. 52-467. Punishment for refusal to obey writ or accept copy. If any person having the custody of the body of anyone directed to be presented to the court or to a judge by a writ of habeas corpus duly served fails to present the body according to the command in the writ, or refuses to accept the copy of the writ offered in service, or in any way fraudulently avoids presenting the body according to the command, or, having presented the body, does not make return of the cause of detaining the person in custody, he shall be guilty of a contempt of court and may be punished for contempt by the court or judge by commitment, and shall pay to the person so held in custody two hundred dollars.

      (1949 Rev., S. 8203; P.A. 82-160, S. 170.)

      History: P.A. 82-160 rephrased the section.

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      Sec. 52-468. Commitment for contempt; application for discharge. The court may commit to prison, for any contempt of which the respondent has been guilty in this proceeding, for a period not exceeding sixty days; and the respondent may, at any time within such time of imprisonment, appear before the court which made the order of commitment, and apply for a discharge from imprisonment, which the court may, for sufficient cause shown, direct.

      (1949 Rev., S. 8204; 1967, P.A. 656, S. 48; P.A. 78-280, S. 111, 127.)

      History: 1967 act substituted "when the court is not sitting" for "in vacation"; P.A. 78-280 removed judges from purview of section and deleted distinctions re procedure depending on whether court is in or out of session, reflecting fact that court now sits continuously.

      Commitment under this statute may clearly not be for more than sixty days, and respondent may apply for discharge upon purging himself of contempt or for other sufficient cause. 111 C. 252.

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      Sec. 52-469. Averments of return may be denied or other facts alleged. Section 52-469 is repealed.

      (1949 Rev., S. 8205; 1961, P.A. 517, S. 69.)

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      Sec. 52-470. Summary disposal of the case. Appeal by person convicted of crime. (a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.

      (b) No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person's release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.

      (1949 Rev., S. 8206; 1957, P.A. 482; 1967, P.A. 182; P.A. 82-160, S. 171; June Sp. Sess. P.A. 83-29, S. 47, 82; P.A. 02-132, S. 78.)

      History: 1967 act provides for petition by appellant within ten days after case is decided rather than certification by judge within said period; P.A. 82-160 inserted Subsec. indicators and made minor wording change in Subsec. (b); June Sp. Sess. P.A. 83-29 included reference to appellate court and deleted reference to supreme court and substituted the court "having jurisdiction" in lieu thereof in Subsec. (b); P.A. 02-132 amended Subsec. (b) by replacing "a judge of the Supreme Court or Appellate Court" with "if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator" and making technical changes.

      The judgment may be reversed on error. 33 C. 328. Applicant may demur to the return, deny it or confess and avoid its effect. 67 C. 358. Cited. 111 C. 251; 151 C. 746; 153 C. 75; id., 673. "In a summary way" construed. 117 C. 265. Constitutionality of out-of-state conviction and punishment not proper subjects for review in Connecticut upon a writ of habeas corpus. 146 C. 509. Where defendant had been represented by a special public defender who failed to proceed with his appeal on grounds that he could not do so conscientiously and court denied his motion for appointment of other counsel, his rights have been violated under equal protection clause of fourteenth amendment to the Constitution of the United States and there was no error in habeas corpus proceeding directing that he be discharged from prison unless, at his further request, counsel is appointed and necessary extensions of time to perfect the appeal are granted. 152 C. 504-507. In latter case, plaintiff cannot demand that other counsel be appointed if new counsel also concludes that there is no substantial error which he can assign on appeal. Id., 505. Where on habeas corpus it has been properly determined that a right of appeal required by the federal constitution has been denied, any rule restricting an appeal because of lapse of time is inapplicable. Id., 508. Petitioner may collaterally raise federal constitutional claims in habeas corpus proceeding even though he has failed to appeal his federal constitutional claims if he alleges and proves that he did not deliberately bypass direct appeal. 154 C. 363. Review allowed where plaintiff claimed conviction based on unlawfully obtained evidence and incriminating statements. Plaintiff permitted to pursue appeal in forma pauperis. 155 C. 316. Cited. 156 C. 341. Mere occurrence of constitutional violation is not sufficient to render plea of guilty involuntary and subject to nullification in habeas corpus proceeding. Court's finding that plaintiff voluntarily pleaded guilty because his photograph was taken and his companion informed and not because his room had been illegally searched was supported by the record. 157 C. 143. Cited. Id., 400. Where there is complete lack of merit to plaintiff's claim, case should not be certified for review. 158 C. 45. Appellee's direct challenge to late filing of appeal can only be made pursuant to section 697 of practice book within ten days from time of filing appeal and may not be effectively challenged by motion to dismiss for lack of jurisdiction. 158 C. 486. Cited. 159 C. 150. Cited. 161 C. 337. Plaintiff's petition for certification of an appeal to the Connecticut Supreme Court denied. 168 C. 254. Cited. 170 C. 121. Cited. 178 C. 207, 208. Section serves only to delineate the proper scope of a hearing if one is legally required; does not address whether a hearing is, in the first instance, legally required. 180 C. 153, 157, 158. Cited. 187 C. 109, 124. Writ of error, not habias corpus, is appropriate method to review a summary, criminal contempt citation. 189 C. 663, 669. Cited. 191 C. 142, 145. Cited. 194 C. 510, 518, 519, 528. Habeas court has no discretion to consider untimely petition for certification to appeal. 222 C. 254, 257-261; judgment overruled and reversed to extent stated, see 242 C. 689 et seq. and 242 C. 723 et seq. Cited. 226 C. 757, 763. Cited. 229 C. 178, 181. Cited. Id., 397, 413. Cited. 230 C. 608, 611, 614. Cited. 234 C. 139, 148. Cited. 242 C. 689. Cited. Id., 723.

      Cited. 10 CA 520, 523. Cited. 23 CA 559, 563, 564. Cited. 29 CA 274, 281. Cited. 36 CA 695, 696. Cited. 39 CA 473, 475. Cited. 46 CA 486.

      Does not preclude any right of appeal. 15 CS 274. Right of indigent accused to appeal to state supreme court cannot be defeated by time limitations if he was deprived of federal constitutional right at his trial. 28 CS 464, 466. Cited. 42 CS 371, 373, 375.

      Subsec. (a):

      Cited. 222 C. 254, 256-258; judgment overruled and reversed to extent stated, see 242 C. 689 et seq. and 242 C. 723 et seq. Cited. 229 C. 397, 415, 422. Cited erroneously as Sec. 54-470(a). Id., 397, 432. Cited. 230 C. 88, 89, 93. Section required defendant be granted specific performance of plea agreement. Judgment of appellate court in Melley v. Commissioner of Correction, 35 CA 374, reversed. 235 C. 413, 417. Cited. 46 CA 689.

      Cited. 10 CA 520, 524. Cited. 29 CA 162, 178, 180; judgment reversed, see 229 C. 397 et seq. Cited. 39 CA 485, 491. Cited. 41 CA 515, 524, 527. Cited. 42 CA 17. Cited. 46 CA 486.

      Subsec. (b):

      Cited. 191 C. 142, 143. Cited. 193 C. 439, 440. Cited. 200 C. 553, 555. Cited. 213 C. 38, 40. Cited. Id., 97, 112. Cited. 218 C. 479-483. Cited. 222 C. 87, 88. Cited. Id., 254-256, 258, 260. Cited. 223 C. 180, 181. Cited. Id., 411, 412. Cited. 227 C. 124, 125. Cited. Id., 147, 148. Cited. 229 C. 178, 181-185, 187-189. Cited. Id., 193, 202. Cited. Id., 397, 413. Cited. 230 C. 608, 611, 613-616. Cited. 234 C. 139, 149, 150. Cited. 235 C. 82, 100. Cited. 240 C. 708. Ten-day limitation on filing for certification to appeal from judgment does not implicate subject matter jurisdiction; judgment of appellate court reversed in Iovieno v. Commissioner of Correction, 222 C. 254, to the extent it conflicts with this decision, overruled. 242 C. 689. Judgment of appellate court reversed in accordance with decision in Iovieno v. Commissioner of Correction, 242 C. 689. Id., 723. In absence of demonstrable prejudice, legislature did not intend terms of the habeas court's grant of certification to be limitation on specific issues subject to appellate review. 245 C. 132.

      Cited. 5 CA 277. Cited. 6 CA 518. Cited. 12 CA 343, 344. Cited. 19 CA 686, 688, 692, 693. Cited. 23 CA 63, 64; judgment reversed and case remanded to appellate court with direction to remand the matter to superior court with direction to render judgment granting writ of habeas corpus and ordering new trial for petitioner, see 220 C. 112 et seq. Cited. 26 CA 48, 49. Cited. 28 CA 195, 197. Cited. 31 CA 771, 773; judgment reversed, see 230 C. 88-90, 92, 94. Cited. 33 CA 902. Cited. 35 CA 762, 763, 765. Cited. 39 CA 473, 475, 476. Cited. 40 CA 553, 555, 556, 558. Cited. 42 CA 17. Cited. 43 CA 374. Cited. Id., 698. Subsection intended to discourage frivolous habeas appeals. 61 CA 350. Petitioner's claim that the habeas court abused its discretion in denying a petition for certification to appeal must be predicated on an issue that was an underlying claim in the habeas petition. 68 CA 1.

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