Holliday v. Comm'r of Corr.

• Decision Date: 14 August 2018
• Docket Number: AC 39234
• Citation: 194 A.3d 867,184 Conn.App. 228
• Court: Connecticut Court of Appeals
• Parties: Dean HOLLIDAY v. COMMISSIONER OF CORRECTION

184 Conn.App. 228

194 A.3d 867

Dean HOLLIDAY

v.COMMISSIONER OF CORRECTION

AC 39234

Appellate Court of Connecticut.

Argued May 15, 2018

Officially released August 14, 2018

Nicholas Marolda, assigned counsel, with whom, on the brief, was Temmy Ann Miller, assigned counsel, for the appellant (petitioner).

Michael A. Martone, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Terrence M. O'Neill, assistant attorney general, for the appellee (respondent).

DiPentima, C.J., and Prescott and Eveleigh, Js.

EVELEIGH, J.

The petitioner, Dean Holliday, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner claims that the habeas court erred in dismissing his petition (1) for lack of jurisdiction on the basis of Petaway v. Commissioner of Correction , 160 Conn. App. 727, 125 A.3d 1053 (2015), appeal dismissed, 324 Conn. 912, 153 A.3d 1288 (2017), and (2) without notice or a hearing. For the reasons set forth herein, we disagree and, accordingly, affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of this appeal. In April, 2002, following a jury trial, the petitioner was convicted of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), and attempt to commit robbery in the second degree in violation of General Statutes §§ 53a-49 and 53a-135 (a) (1). The petitioner was sentenced to a total effective term of forty years in prison.¹ This court affirmed the petitioner's conviction on direct appeal. See State v. Holliday , 85 Conn. App. 242, 243, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004). The petitioner remains in the custody of the respondent, the Commissioner of Correction.

In 2001, at the time of the petitioner's criminal conduct, and in 2003, when he was convicted, no statutory provision existed that permitted inmates to earn credits toward reducing the length of their sentences. In 2011, while the petitioner was incarcerated, the General Assembly enacted No. 11-51, § 22, of the 2011 Public Acts, later codified in General Statutes § 18-98e. This legislation provided that certain prisoners convicted of crimes committed after October 1, 1994, "may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction" for certain positive behaviors. General Statutes § 18-98e (a). Section 18-98e (a) was enacted in conjunction with a revision to General Statutes § 54-125a (b), which provided, in relevant part, that a person convicted of a violent crime would not be eligible for parole consideration "until such person has served not less than eighty-five percent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18-98e." (Emphasis added.) General Statutes (Rev. to 2013) § 54-125a (b). The petitioner's crimes qualified as violent under § 54-125a (b).² See State v. Holliday , supra, 85 Conn. App. at 247, 856 A.2d 1041. Under the 2011 revisions of §§ 18-98e and 54-125a (b), the petitioner earned credits toward his discharge date and parole eligibility date.

In July, 2013, the General Assembly amended § 54-125a (b), striking the language that allowed credits earned under § 18-98e to reduce the time served by violent offenders before becoming eligible for parole.

This revision meant that violent offenders, like the petitioner, were required to serve 85 percent of their definite sentence³ before becoming eligible for parole. Credits the petitioner had earned toward his discharge date and parole eligibility date were revoked following the revision.

On December 24, 2014, the self-represented petitioner filed a petition for a writ of habeas corpus in which he alleged that the 2013 legislative change violated the ex post facto clause of the United States constitution, article one, § 10, by revoking credits he had earned under § 18-98e. In support of his claim, the petitioner cited Teague v. Quarterman , 482 F.3d 769 (5th Cir. 2007), and Cleburne v. Cleburne Living Center , 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed. 2d 313 (1985), cases that address rights under the due process and equal protection clauses, respectively. On March 29, 2016, the habeas court dismissed the petition on its own motion pursuant to Practice Book § 23-29 (1) for lack of jurisdiction. The habeas court's decision did not analyze the petitioner's due process and equal protection arguments, but, citing this court's opinion in Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 727, 125 A.3d 1053, concluded that the habeas court lacked subject matter jurisdiction.

The petitioner filed a petition for certification to appeal on April 15, 2016, which the habeas court granted on April 25, 2016. The petitioner, then represented by appointed counsel, filed a motion for articulation on November 7, 2016, which the court denied on November 21, 2016.⁴ This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

On appeal, the petitioner claims that the habeas court erred in dismissing his habeas petition for lack of subject matter jurisdiction. Specifically, the petitioner argues the court improperly relied on Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 727, 125 A.3d 1053, in dismissing not only his ex post facto claim, but also his due process and equal protection claims. The respondent argues that the habeas court's dismissal for lack of jurisdiction was proper because the habeas court lacked subject matter jurisdiction over the petition on the basis of Petaway , Perez v. Commissioner of Correction , 326 Conn. 357, 163 A.3d 597 (2017), and James E. v. Commissioner of Correction , 326 Conn. 388, 163 A.3d 593 (2017).⁵ We agree with the respondent.

We first set forth our standard of review and applicable legal principles. "It is well settled that [a] determination regarding a trial court's subject matter jurisdiction is a question of law and, therefore, we employ the plenary standard of review and decide whether the court's conclusions are legally and logically correct and supported by the facts in the record." (Internal quotation marks omitted.) Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 731, 125 A.3d 1053.

The habeas court's subject matter jurisdiction is predicated on the deprivation of a recognized liberty interest. See General Statutes § 52-466 (a) (2) ; Santiago v. Commissioner of Correction , 39 Conn. App. 674, 679, 667 A.2d 304 (1995). The petitioner's failure to demonstrate a liberty interest implicated by his loss of risk reduction credit is dispositive of this appeal. Pursuant to Practice Book § 23-29, the habeas court "may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (1) the court lacks jurisdiction ...." The only interest implicated by the present petition is credit toward parole eligibility. This court and our Supreme Court have held there is no liberty interest in the application of risk reduction eligibility credit toward an inmate's parole eligibility. Perez v. Commissioner of Correction , supra, 326 Conn. at 372–73, 163 A.3d 597 (no vested liberty interest in risk reduction credit granted under § 18-98e ); Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 734, 125 A.3d at 1057 (no liberty interest in parole eligibility under § 54-125a [b] ).

Even if the petitioner had a liberty interest in risk reduction credit and the habeas court had been able to reach the merits of his ex post facto claim, the claim would fail in light of Petaway , which the petitioner recognized as dispositive at oral argument before this court.⁶ In Petaway , this court adjudicated nearly identical factual and legal issues to those in the present case. Petaway v. Commissioner of Correction , supra, 160 Conn. App. at 727, 125 A.3d 1053. Petaway involved a habeas petition that alleged that the retroactive application of the 2013 amendment to § 54-125a (b) violated the ex post facto clause.⁷ Id., at 729–30, 125 A.3d 1053. The petitioner in that case was convicted of a violent crime before the relevant 2011 enactments and had earned credits toward his parole eligibility, but was unable to apply those credits to his parole eligibility date after the General Assembly made the statute inapplicable to inmates convicted of violent crimes. Id., at 730–31, 125 A.3d 1053. The court in Petaway held that the petitioner had not asserted a colorable ex post facto claim because his only complaint was that favorable legislation, enacted after his conviction, was later repealed, putting him back in the same position as when he was first convicted. Id., at 734, 125 A.3d 1053. The same is true of the petitioner here.⁸ Accordingly, we conclude that the habeas court properly dismissed the petitioner's ex post facto claim for lack of subject matter jurisdiction.

The petitioner also argues that the habeas court erred in dismissing his petition in its entirety because the failure of his ex post facto claim did not deprive the habeas court of jurisdiction to hear his due process and equal protection claims. We disagree. Our Supreme Court in Perez rejected the argument that the due process and equal protection claims regarding risk reduction credit independently implicate the subject matter jurisdiction of the habeas court, concluding that "[a]n essential predicate to all of these claims is a cognizable liberty interest."

Perez v. Commissioner of Correction , supra, 326 Conn. at 370, 163 A.3d 597. Accordingly, because the petitioner has not demonstrated a liberty interest in credits toward parole eligibility, we conclude...