Law360 (October 22, 2026, 9:34 PM EDT) -- The Connecticut Supreme Court wrestled Thursday with the definition of the term "in custody" for purposes of habeas jurisdiction, with multiple justices asking the state to clarify when a person's liberty has been restricted enough that a judge can hear his or her claims for relief.

At issue in two back-to-back oral arguments is whether habeas courts have jurisdiction over claims from two petitioners who are on conditional discharge after pleading guilty to violating protective orders. The state's corrections commissioner advocated for a case-by-case approach, while counsel for the two men, who were turned away by habeas courts, urged the justices to adopt a new bright-line rule that would expand jurisdiction.

Justices Andrew J. McDonald and Steven D. Ecker at times seemed the most sympathetic to the arguments advanced by petitioners Jake Batura Ratches and Stephen Riccio, who said their conditional discharge put them at risk of prison and therefore served as a severe restriction on their liberty that is stricter than what the general public must endure.

"It's a daily restraint," Justice McDonald told Rebecca Z. Oestreicher, a deputy assistant state's attorney. "They can't do something, whatever the condition is."

Case law including the Third Circuit's 1975 decision in United States ex rel. Wojtycha v. Hopkins, held that a suspended sentence is a speculative threat and insufficient to establish custody, Oestreicher said.

Justice McDonald said the case reminded him of jurisprudence around "fighting words." He pointed to the 1942 U.S. Supreme Court opinion in Chaplinsky v. New Hampshire  holding that "damned fascist" qualifies as fighting words that are not protected by the First Amendment.

"And then we got ourselves into a spot where we were line-drawing, saying what words were in and what words were out," Justice McDonald said. "And it's confounding, and it's very difficult for trial courts to understand what's in and what's out, and I think the same thing applies here."

Justice Ecker added, "The case-by-case becomes almost arbitrary or, certainly, subjective, and it just might be easier going forward for people, 'Oh, unconditional discharge? You're not in custody. If it's conditional discharge, you are,' or whatever the rule is."

Oestreicher rejected the justice's concern that the state's preferred approach would create a "complicated patchwork," arguing instead that it establishes a "workable standard" that advances the interests of justice and crime victims.

Counsel for Ratches told the justices that the question is "very straightforward." Attorney Judie Marshall said conditional discharge should be treated the same way as probation, which qualifies as "in custody" for habeas purposes under Connecticut General Statutes Section 52-466.

She noted that in each situation, someone who is accused of violating the terms goes through a process with fewer protections than those who face a fresh criminal charge. If someone on conditional discharge violates a court order to avoid a new arrest, evidentiary and hearsay rules will not apply in the revocation proceedings, there is no "beyond a reasonable doubt" standard and a violation can be found even without a guilty verdict in the new case, she said.

Those on conditional discharge and probationers "are subject to the same unsuspended period of a sentence if there is a revocation proceeding," Marshall said. "That happens without the procedural safeguards. They are subject to the same enlargement or modification of the conditions."

She said Ratches is subject to "a very broad protective order" that requires him to stay away from the victim, her place of employment and certain people she knows, further restricting his liberty.

Oestreicher said there is "no liberty in committing crimes or engaging in unlawful activities," and speculation that someone could be found in violation is not a severe restraint.

Arguing for Riccio, Nicole Britt of the Law Office of Christopher Duby LLC said the state's position would burden pro se petitioners trying to navigate the habeas process.

"Why are we making this more difficult if there are legitimate claims that could be done?" she said. "Conditional discharge is still conditional liberty."

Justice Gregory T. D'Auria said bright-line jurisdictional rules help people to properly exhaust their state court remedies before bringing their cases to federal court.

Chief Justice Raheem L. Mullins' questions sought to parse the difference between conditional discharge and nonreporting probation. Oestreicher said there is no supervision or control over a person on conditional discharge, and the only way an alleged violation can be acted upon is through a warrant issued by a state's attorney's office.

The two cases are related because the Connecticut Appellate Court reversed the habeas court's finding that it lacked jurisdiction over Riccio's petition, but because that decision is still on appeal, it did not prevent Ratches' habeas case from being dismissed for the same reason. The justices are hearing the corrections commissioner's challenge to Riccio's appellate victory, and they let Ratches skip over the intermediate court and argue before the high court directly.

The appellate panel found that Riccio was serving a sentence that could be modified or revoked "without the procedural safeguards afforded to a member of the general public," according to a judicial branch case summary. The court also found no distinction between conditional discharge and probation or parole.

Riccio contends that his three-year conditional discharge following a 2014 Alford plea qualified as a restraint on his liberty, so he should be able to pursue his claim that his counsel rendered ineffective assistance. He was sentenced to one year in prison with four years suspended for violating a protective order, third-degree assault and interfering with a police officer.

Ratches pleaded guilty to violating a protective order and received a five-year sentence, suspended after six months, plus three years of conditional discharge that began in 2023. He also claimed ineffective assistance, but the habeas court dismissed his petition because he was not "in custody" during his conditional discharge, citing the habeas decision in Riccio's case.

During the two hours of oral argument, all six sitting justices peppered each side with questions, testing the limits of their interpretation of case law and offering hypotheticals. Interim Justice Melanie L. Cradle wrote the opinion favoring Riccio while she served as the appellate court's chief judge; she did not participate in the argument.

Justice William H. Bright Jr. asked Oestreicher if a shoplifter who is ordered to stay away from all Stop & Shop grocery stores for six months could be considered "in custody" because his freedom of movement is limited.

"Custody is established through required physical presence at particular times and locations," she said. "It is not established by incidental effects on movement … if that is the only condition imposed."

The outcome might be different if the petitioner worked at Stop & Shop or he had another legitimate reason for going there, she added.

"What if it's the only supermarket in town?" Justice McDonald said.

"That sells kosher chicken," Justice Ecker chimed in.

Oestreicher said that situation is different because it may implicate a petitioner's religious liberties. Habeas courts, she said, can parse such matters.

Justice Bright asked Marshall, Ratches' attorney, why habeas jurisdiction would not simply attach once a violation is alleged. She said that would give special treatment to violators and incentivize people to disobey the courts.

Ratches, she said, took a plea and therefore has no access to a direct appeal.

Justice Ecker told Oestreicher that an order barring Riccio from unwanted contact with the victim is a restriction on his constitutional rights to free speech and association, which he called "a pretty big deal."

"There's no question under the case law that you have a right to approach somebody in public and say things that they may not want to hear, as long as it's not fighting words, et cetera, et cetera," he said.

Oestreicher said it may be a restraint, but it's not a "severe" restraint under the 2017 Second Circuit decision in Vega v. Schneiderman, and  it does not restrict his movements.

Justice Nora R. Dannehy pointed out that Riccio must "stay away from all situations" in which he might encounter the victim, but the general public does not have that same restriction.

The state is represented in both cases by Rebecca Z. Oestreicher of the Office of the Chief State's Attorney, Appellate Bureau.

Riccio is represented by Nicole Britt and Christopher Y. Duby of the Law Office of Christopher Duby LLC.

Ratches is represented by Judie Marshall.

The cases are Stephen Riccio v. Commissioner of Correction, case number SC 21197, and Jake Batura Ratches v. Commissioner of Correction, case number SC 21238, both in the Connecticut Supreme Court.

--Editing by Karin Roberts.

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