In its return to the amended petition, see Practice Book §§ 23-30 and 23-35(b), the respondent may raise one or more defenses and seek the dismissal of the petition. So, with the exception of the defense of successive petition, the habeas court must hold an evidentiary hearing before the motion can get granted. See Mercer v. Commissioner, 230 Conn. 88, 93 (1994)(“absent an explicit exception, an evidentiary hearing is always required before a habeas petition may be dismissed”); see also Carter v. Commissioner, 109 Conn. App. 300, 305-06 (2008)(Also remember, evidentiary hearing always required unless previous petition and current petition allege the same grounds and current petition fails to state new facts or evidence not reasonably available at prior hearing).
So, the respondent, in its return, may contend that the habeas court lacks subject matter jurisdiction and that the habeas petition should get dismissed pursuant to Practice Book §§ 23-24(a)(1)(2)(3), 23 -29(1), 23-30(b), 23-34 and/or 23-37. Also, this is generally seen when the aim of the petition is something other than illegal confinement or the infringement of a constitutional right.
“A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy…Subject matter jurisdiction for adjudicating habeas petitions is conferred on the [habeas court] by General Statutes § 52-466, which gives it the authority to hear those petitions that allege illegal confinement or deprivation of liberty.” (citation omitted) also see Abed v. Commissioner, 43 Conn. App. 176, 179, cert. denied, 239 Conn. 937 (1996); also see Santiago v. Commissioner, 39 Conn. App. 674, 679 (1995)
Also, (“The 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.”); see, e.g. Baker v. Commissioner , 281 Conn. 241 (2007)(habeas court lacks jurisdiction of claims concerning inmate classification and parole eligibility dates, as there is no liberty interest in parole eligibility); also see Vincenzo v. Warden, 26 Conn. App. 132, 142-43 (1991) (habeas court lacks jurisdiction because no liberty interest in release on parole).
Reply and Merit of Defense
Then, in reply, see Practice Book §§ 23-31and 29-35(c), habeas counsel should deny the allegation if counsel believes that subject matter jurisdiction exists. However, if habeas counsel believes there is merit to the defense, counsel should move to amend the pleading, citing Practice Book §§ 23-32 and 23-33, so as to allege the deprivation of a legally recognized constitutional right.
In addition, In Reeves v. Commissioner , 119 Conn. App. 852, cert. denied , 296 Conn. 906 (2010), the Connecticut Appellate Court stated: “While our courts have been liberal in permitting amendments … this liberality has limitations. Amendments should get made seasonably. Factors for consideration in passing on a motion to amend constitute the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.” (internal quotation marks omitted; citation omitted) Id. at 864-65. Also, these factors should be addressed in the motion.