Lawson v. Warden, State Prison

Decision Date11 May 2016
Docket NumberCV144005790S
CourtSuperior Court of Connecticut
PartiesFrederick Lawson (Inmate #276935) v. Warden, State Prison

UNPUBLISHED OPINION

MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS

Vernon D. Oliver, J.

The petitioner, Frederick Lawson, initiated this petition for a writ of habeas corpus and challenged General Statutes § 54-125a as amended by Public Act 13-3. The pro se petition was amended by assigned counsel and now encompasses twelve counts.[1] At the core of the petitioner's allegations is General Statutes § 54-125a, its interrelationship with the wholly discretionary Risk Reduction Earned Credits (RRE credits) he may receive pursuant General Statutes § 18-98e, and how those credits impact his parole and/or release dates.

The respondent filed a motion to dismiss the petition premised on the habeas court lacking subject matter jurisdiction over parole, as well as the petitioner's claims fail to state a claim upon which habeas corpus relief can be granted. The motion to dismiss additionally requests in the alternative should the motion to dismiss be denied, that the matter be stayed pending the outcome of an appeal of the Appellate Court's decision in Petaway v. Commissioner of Correction, 160 Conn.App. 727, 125 A.3d 1053 (2015). The petitioner filed an objection to the motion to dismiss.

The parties appeared before this court on February 1, 2016, for a hearing on the motion to dismiss and the objection thereto. For the reasons articulated more fully below, the motion to dismiss is granted and judgment shall enter dismissing the petition for a writ of habeas corpus.

I MOTION TO DISMISS STANDARD

" A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests inter alia, whether, on the face of the record, the court is without jurisdiction." Filippi v Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). " In ruling upon whether a complaint survives a motion to dismiss a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . ." (Internal citations and quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn.App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). " [A pleading] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. (Internal quotation marks omitted.) Gil v. Gil, 94 Conn.App. 306, 313, 892 A.2d 318 (2006)." Taylor v. Commissioner of Correction, 94 Conn.App. 772, 785, 895 A.2d 246 (2006), rev'd in part on other grounds, 284 Conn. 433, 936 A.2d 611 (2007). Nevertheless, the petitioner " . . . bears the burden of proving that the court has subject matter jurisdiction." Id.

II DISCUSSION

The petitioner was the defendant in a criminal case in which he was convicted of two counts of assault in the first degree. The offense date for both of these offenses was July 27 2004. The petitioner was sentenced on March 11, 2005, to a total effective sentence of fifteen years incarceration in the custody of the Commissioner of Correction (respondent). As a result of his convictions for assault in the first degree, the respondent has designated the petitioner to be a violent offender, thereby making him parole ineligible until he has served at least eighty-five percent of his sentence. General Statutes § 54-125a(b)(2) and (c); see also Johnson v. Commissioner of Correction, 258 Conn. 804, 786 A.2d 1091 (2002) (application of the eighty-five percent rule to that petitioner's circumstances was a cognizable ex post facto claim; eighty-five percent requirement not applicable to sentences imposed for offense dates prior to July 1, 1996).

In 2015, the Appellate Court in Petaway v. Commissioner of Correction, supra, 160 Conn.App. 734, concluded that a habeas court had properly declined to issue a petition for a writ of habeas corpus because it lacked subject matter jurisdiction over the petitioner's RRE credit claims. The Petaway court distinguished that case from Johnson because . . . the petitioner [in Petaway had made] no claim that a change in the law after 2003 extended the length of his incarceration or delayed the date of his first eligibility for parole consideration beyond the time periods in existence at the time of his criminal conduct." Id., 733. Critical to the outcome of Johnson had been the fact that the petitioner in that case had committed offenses prior to the effective date of the change from fifty to eighty-five percent parole eligibility for violent offenses. Id., 732-33. " Although the court [in Johnson ] acknowledged that an inmate has no liberty interest in being granted parole, the court found, nevertheless, that the habeas court had jurisdiction because Johnson had made a cognizable ex post facto claim by asserting that the change in the law between the date of his criminal act and his later incarceration violated the prohibition against ex post facto penal legislating." Id., 733.

However, in Petaway, " unlike in Johnson, the petitioner [made] no claim that a change in the law after 2003 extended the length of his incarceration or delayed the date of his first eligibility for parole consideration beyond the time periods in existence at the time of his criminal conduct. In sum, he [made] no claim rooted in ex post facto jurisprudence. Thus, unlike the petitioner in Johnson, the petitioner in [ Petaway had] not made a colorable ex post facto claim." [2] (Footnote renumbered.) Id., 733-34.

" Shorn of its ex post facto designation, the petitioner's claim [in Petaway was] no more than a complaint that long after he committed robbery and was sentenced, favorable legislation was enacted that gave him, at the respondent's discretion, an opportunity for earlier parole consideration but that legislation was later repealed, putting him back into the same position he had been in 2003 and 2005. The petitioner, however, has no liberty interest in parole eligibility, and, therefore, such a claim does implicate the jurisdiction of the habeas court. See Baker v. Commissioner of Correction, 281 Conn. 241, 914 A.2d 1034 (2007) (parole eligibility under § 54-125a does not constitute cognizable liberty interest sufficient to invoke habeas court's jurisdiction)." Id., 734.

Thus, although there is no liberty interest in parole or parole eligibility, an ex post facto claim may be colorable if there is a change in the law between the date of the petitioner's offense dates and his later incarceration that violated the prohibition against ex post facto penal legislating. In Johnson, the change in the law was that violent offenders would serve a higher percentage of their sentences prior to being considered for discretionary parole release. Whether or not an inmate being considered by the Board of Pardons and Paroles (Board) is suitable or not is an entirely different determination and lies completely with the Board's discretion. See General Statutes § 54-125a(d). Therefore, although parole and parole release do not entail liberty interests because of the discretionary nature of the Board's decisions, the statutory change challenged and reviewed in Johnson involved no discretionary acts. The increase from fifty to eighty-five percent for violent offender parole eligibility had nothing to do with discretionary acts by the Board. By operation of statute, violent offenders were made to serve a greater portion of their sentences before even being eligible for consideration by the Board to act how it saw fit to use its broad discretion on a case-by-case basis.

The Supreme Court in Johnson noted that " The United States Supreme Court has recognized that 'a law need not impair a " vested right" to violate the ex post facto prohibition. Evaluating whether a right has vested is important for claims under the Contracts or Due Process Clauses, which solely protect pre-existing entitlements . . . The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.' (Citations omitted.) Weaver v. Graham, 450 U.S. 24, 29-31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); see also Lynce v. Mathis, 519 U.S. 433, 445, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) ('[the] retroactive alteration of parole or early release provisions, like the retroactive application of provisions that govern initial sentencing, implicates the Ex Post Facto Clause because such credits are one determinant of [the] petitioner's prison term . . . and . . . [the petitioner's] effective sentence is altered once this determinant is changed' [internal quotation marks omitted]).

" The United States Supreme Court also has recognized that '[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause.' Garner v Jones, 529 U.S. 244, 253, 120 S.Ct. 1362, 146...

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