Sec. 52-466. Application for writ of habeas corpus. Service. Return. - Connecticut Statutes

      Sec. 52-466. Application for writ of habeas corpus. Service. Return. (a)(1) An application for a writ of habeas corpus, other than an application pursuant to subdivision (2) of this subsection, 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 such person's liberty.

      (2) An application for a writ of habeas corpus claiming illegal confinement or deprivation of liberty, made by or on behalf of an inmate or prisoner confined in a correctional facility as a result of a conviction of a crime, shall be made to the superior court, or to 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; P.A. 06-152, S. 5.)

      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; P.A. 06-152 amended Subsec. (a) by designating existing provisions as Subdiv. (1) and amending same by inserting exception for application pursuant to Subdiv. (2), making technical changes and deleting provision re application by person confined in Connecticut Correctional Institution, Enfield-Medium or Carl Robinson Correctional Institution, Enfield, and by adding Subdiv. (2) re application for writ by inmate or prisoner confined in correctional facility.

      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. Id., 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. Id., 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. Id., 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. Cited. 184 C. 366. Cited. 198 C. 138. History and purpose of writ of habeas corpus establish that habeas court lacks power to act on habeas petition absent petitioner's allegedly unlawful custody and therefore custody requirement in section is jurisdictional, and petitioner whose conviction has expired fully prior to filing of habeas petition is not in "custody" on that conviction within meaning of section, despite alleged existence of collateral consequences flowing from that conviction. 274 C. 507. Habeas court lacked jurisdiction over petition for writ of habeas corpus because petitioner was not in custody, as defined by statute, when he filed his petition; the challenged convictions had expired completely by the time he filed his petition and deportation proceedings that resulted from expired larceny conviction were collateral and insufficient to render him in custody. 280 C. 514.

      Cited. 34 CA 129; judgment reversed, see 234 C. 51. 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. Court lacked subject matter jurisdiction to hear petition filed when petitioner was no longer in custody with respect to the challenged conviction. 107 CA 507.

      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. 40 CS 251.

      Subsec. (f):

      Cited. 230 C. 459. Cited. 234 C. 51.

      Cited. 31 CA 400; judgment reversed, see 230 C. 459.