Stephenson v. Comm'r of Corr.

• Decision Date: 16 March 2021
• Docket Number: AC 43166
• Citation: 203 Conn.App. 314,248 A.3d 34
• Court: Connecticut Court of Appeals
• Parties: Joseph STEPHENSON v. COMMISSIONER OF CORRECTION

203 Conn.App. 314

248 A.3d 34

Joseph STEPHENSON

v.COMMISSIONER OF CORRECTION

AC 43166

Appellate Court of Connecticut.

Argued November 16, 2020

Officially released March 16, 2021

Vishal K. Garg, West Hartford, for the appellant (petitioner).

Steven R. Strom, assistant attorney general, with whom, on the brief were William Tong, attorney general, and Clare Kindall, solicitor general, for the appellee (respondent).

Bright, C. J., and Moll and Suarez, Js.

MOLL, J.

The petitioner, Joseph Stephenson, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court declining to issue a writ of habeas corpus pursuant to Practice Book § 23-24 (a) (1) and (3).¹ On appeal, the petitioner claims that the court improperly (1) denied his petition for certification to appeal and (2) declined to issue the writ of habeas corpus when, in his petition for a writ of habeas corpus, he sufficiently alleged a claim under the stigma plus test adopted by our Supreme Court in Anthony A. v. Commissioner of Correction , 326 Conn. 668, 680–81, 166 A.3d 614 (2017), and, therefore, he alleged a cognizable liberty interest sufficient to invoke the subject matter jurisdiction of the court. We conclude that the habeas court did not abuse its discretion in denying the petitioner's petition for certification to appeal, and, therefore, we dismiss the appeal.

Our Supreme Court set forth the following facts in the petitioner's direct appeal from his conviction. "A silent alarm at the [Superior Court for the judicial district of Stamford-Norwalk, geographical area number twenty, located in Norwalk] was triggered at around 11 p.m. on Sunday, March 3, 2013, when the [petitioner] entered the state's attorney's office by breaking a window on the building's eastern side. Although the police were able to respond in about ninety seconds, the [petitioner] successfully evaded capture by running out of a door on the building's southern side. Footage from surveillance cameras introduced by the state at [the petitioner's criminal] trial show that the [petitioner] was inside of the building for slightly more than three minutes. In the investigation that followed, the police determined that the broken window belonged to an office shared by two assistant state's attorneys. One of those attorneys was scheduled to commence jury selection for a criminal trial against the [petitioner] on certain felony charges only two days after the break-in occurred. No other cases were scheduled to begin jury selection that week. Immediately after the break-in, various case files were discovered in an apparent state of disarray at the northern end of a central, common area located outside of that room. Specifically, several files were found sitting askew on top of a desk with two open drawers; still other files were scattered on the floor below in an area adjacent to a horizontal filing cabinet containing similar files. Photographs admitted as full exhibits clearly show labels on these files reading ‘TUL’ and ‘SUM.’ Finally, in a short hallway at the opposite end of that same common area, the police found a black bag containing six bottles of industrial strength kerosene with their UPC labels cut off. The bag and its contents were swabbed, and a report subsequently generated by the Connecticut Forensic Science Laboratory included the [petitioner's] genetic profile as a contributor to a mixture of DNA discovered as a result.

"Various other components of the state's case against the [petitioner] warrant only a brief summary. The day after the break-in, the [petitioner] called the public defender's office at the Norwalk courthouse to ask whether the courthouse was open and whether he was required to come in that day. The state also submitted evidence showing that the [petitioner] drove a 2002 Land Rover Freelander with an aftermarket push bumper, a roof rack, and a broken tail light, and that surveillance videos from the area showed a similar vehicle driving by the courthouse repeatedly in the hours leading up to the break-in. Finally, the state submitted recordings of various telephone calls the [petitioner] made after he had been taken into custody as a result of his conviction on the criminal charges previously pending against him in Norwalk. During one such telephone call, the [petitioner] asked his brother, Christopher Stephenson, to get rid of ‘bottles of things’ for a heater, speculated about how the police located the vehicle, and attempted to arrange an alibi." (Footnote omitted.) State v. Stephenson , ––– Conn. ––––, ––––, ––– A.3d ––––, 2020 WL 8257814 (2020).

In connection with the events of March, 2013, the petitioner was arrested on March 21, 2014. On October 28, 2016, following a jury trial, the petitioner was convicted of burglary in the third degree in violation of General Statutes § 53a-103, attempt to commit tampering with physical evidence in violation of General Statutes § 53a-49 (a) (2) and General Statutes (Rev. to 2013) § 53a-155 (a) (1), and attempt to commit arson in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-112 (a) (1) (B). On January 6, 2017, the petitioner was sentenced to a total effective sentence of twelve years of incarceration followed by eight years of special parole. The petitioner filed a direct appeal from the judgment of conviction, which remains pending on remand in this court from our Supreme Court.²

On March 15, 2019, the petitioner, representing himself, filed a petition for a writ of habeas corpus using a state supplied form. The petitioner alleged that the Commissioner of Correction (commissioner) and the Board of Pardons and Paroles (board) "ha[d] been misapplying and illegally [overbroadening] the scope, plain meaning and language of [General Statutes] § 54-125a (b) (2) (B)³ to increase [his] punishment, [delay his] parole eligibility date, violate [the] prohibition against ex post facto law, [and] classify [him] as [a] violent offender beyond what [the] law allows." (Footnote added.) As relief, the petitioner requested that the court order the commissioner and the board "to stop violating the plain meaning of § 54-125a (b) (2) (B), remove the violent offender classification, properly classify [him] to 50 [percent] designation for parole eligibility date, other relief etc."

Appended to the petition was a document entitled "Petition for Writ of Habeas Corpus" in which the petitioner alleged additional facts.⁴ The appended document contained the following relevant allegations. After the petitioner had been sentenced and committed to the custody of the commissioner, the board informed him that, pursuant to § 54-125a, his conviction for attempted arson in the second degree rendered him ineligible for parole until he had served 85 percent of his definite sentence.⁵ The board's decision was predicated on a "schedule" generated by the board listing " ‘85 [percent]’ " designated offenses, including arson in the second degree, and a "brochure" providing that any individual convicted of, inter alia, attempt to commit any of the " ‘85 [percent]’ " designated offenses would be ineligible for parole prior to completing 85 percent of his or her definite sentence. According to the petitioner, none of the crimes of which he was convicted was listed or specified in § 54-125a, or involved "the use, attempted use or [threatened] use of physical force against another person" as set forth in § 54-125a (b) (2) (B), and, as a result, "[the commissioner and the board] ha[d] abused their discretion, misapplied, overbroadened the scope and plain meaning and language of [ § 54-125a ], to illegally violate [the] petitioner's due process and liberty interest rights under [a]rticle [f]irst, [§§ 1, 8, and 20] of the constitution of the state of Connecticut as well as the United [States] constitution. By classifying [the] petitioner as a ‘violent’ offender subject to 85 [percent] designation for parole eligibility, whereas the plain meaning and language of the law does not so allow or [prescribe], [the commissioner and the board] ha[d] prejudiced [the] petitioner's liberty interest [and] constitutional rights and caused [the] petitioner to suffer adverse collateral consequences. Such harm include[d] an increase in punishment with a longer period of incarceration than allowed under the plain meaning of the parole eligibility statute and per the intent of the legislature in enacting said statute. Also, [the] petitioner ha[d] been classified to a higher risk level for [the] application of penological goals. [The] petitioner also ... had to endure the stigma of being publicly [labeled] as a ‘violent offender’ for past, present and future disparate treatment." (Emphasis omitted.)

As relief, the petitioner requested, inter alia, orders requiring the commissioner and the board (1) to recalculate his parole eligibility date such that he would be eligible for parole when serving 50 percent, or less, of his definite sentence, (2) to "cease and desist" from continuing to classify him as a violent offender when such a classification was improper pursuant to § 54-125a, and (3) to "cease and desist" from violating, expanding the scope of, and misapplying § 54-125a.⁶

On March 26, 2019, the habeas court, Newson, J. , issued an order declining to issue the writ of habeas corpus because the court lacked subject matter jurisdiction pursuant to Practice Book § 23-24 (a) (1) and because the petition did not "present a claim upon which the habeas court [could] grant relief pursuant to ... § 23-24 (a) (3)." On April 23, 2019, the petitioner filed a motion for reconsideration, which the court summarily denied on April 24, 2019. Thereafter, the petitioner filed a petition for certification to appeal from the court's judgment, which the court denied.⁷ This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

We first turn to the petitioner's claim that the habeas court abused...