Whistnant v. Commissioner of Correction, 080420 CTCA, AC 42894

Docket Nº:AC 42894
Opinion Judge:MOLL, J.
Party Name:JERRY LEWIS WHISTNANT v. COMMISSIONER OF CORRECTION
Attorney:Deborah G. Stevenson, assigned counsel, for the appellant (petitioner). Zenobia G. Graham-Days, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Clare Kindall, solicitor general, for the appellee (respondent).
Judge Panel:DiPentima, C. J., and Moll and Flynn, Js
Case Date:August 04, 2020
Court:Appellate Court of Connecticut
 
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JERRY LEWIS WHISTNANT

v.

COMMISSIONER OF CORRECTION

No. AC 42894

Court of Appeals of Connecticut

August 4, 2020

Argued March 12, 2020.

Procedural History

Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Bhatt, J., rendered judgment declining to issue a writ of habeas corpus; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

Deborah G. Stevenson, assigned counsel, for the appellant (petitioner).

Zenobia G. Graham-Days, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Clare Kindall, solicitor general, for the appellee (respondent).

DiPentima, C. J., and Moll and Flynn, Js. [*]

OPINION

MOLL, J.

The petitioner, Jerry Lewis Whistnant, 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 for lack of subject matter jurisdiction pursuant to Practice Book § 23-24 (a) (1).[1] On appeal, the petitioner claims that the court improperly (1) denied his petition for certification to appeal, (2) declined to issue the writ of habeas corpus pursuant to § 23-24 (a) (1) without conducting a hearing, and (3) concluded that it lacked subject matter jurisdiction over the claims raised in his petition for a writ of habeas corpus. 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.

The following facts, procedural history, and statutory history are relevant to our disposition of the appeal. On September 27, 2008, the petitioner was arrested and charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4).2 On May 8, 2009, after the petitioner pleaded guilty to the charge, the trial court, Alexander, J., sentenced him to fifteen years of incarceration, followed by three years of special parole. The petitioner did not appeal from the judgment of conviction. As a result of his conviction, the petitioner remains in the custody of the respondent, the Commissioner of Correction.

At the time that the petitioner committed the robbery on September 27, 2008, General Statutes (Rev. to 2007) § 54-125a (b) (2), as amended during a special session in January, 2008; see Public Acts, Spec. Sess., January, 2008, No. 08-1, § 5; provided in relevant part: ‘‘A person convicted of . . . (B) an offense, other than [certain parole ineligible offenses], where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed. . . .''3 The crime of robbery in the first degree fell within this class of violent offenses. See Holliday v. Commissioner of Correction, 184 Conn.App. 228, 231 n.2, 194 A.3d 867 (2018) (‘‘robbery in the first degree . . . involves the [use] or threat-en[ed] . . . immediate use of physical force upon another person'' (internal quotation marks omitted)), cert. granted on other grounds, 335 Conn. 901, 225 A.3d 960 (2020). Therefore, at the time that he had committed the robbery, the petitioner was ineligible for parole until he had served no less than 85 percent of his sentence.

In 2011, about three years after his commission of the robbery and long after his May 8, 2009 date of conviction, while the petitioner was incarcerated, the legislature enacted No. 11-51, § 22, of the 2011 Public Acts (P.A. 11-51), later codified in General Statutes § 18-98e. Pursuant to § 18-98e (a), certain inmates, including the petitioner, convicted of crimes committed on or 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 [respondent], '' for certain positive, statutorily described behavior. The respondent has the discretion to ‘‘cause the loss of'' such credit, including credit yet to be earned, for good cause. General Statutes § 18-98e (b). Additionally, in2011, the legislature amended § 54-125a (b) (2) to provide in relevant part: ‘‘A person convicted of . . . (B) an offense, other than [certain parole ineligible offenses], where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18-98e.'' (Emphasis added.) General Statutes (Rev. to 2011) § 54-125a (b) (2), as amended by Public Acts 2011, No. 11-51, § 25. Thus, following the enactment of § 18-98e and the 2011 amendment to § 54-125a (b) (2), the petitioner was eligible to earn risk reduction credit to advance both the end date of his sentence and his parole eligibility date. See Perez v. Commissioner of Correction, 326 Conn. 357, 364, 163 A.3d 597 (2017).

In 2013, the legislature enacted No. 13-3, § 59, of the 2013 Public Acts (P.A. 13-3), which amended, inter alia, § 54-125a (b) (2) by removing the language permitting risk reduction credit earned under § 18-98e to advance the parole eligibility date of violent offenders, such as the petitioner. Accordingly, following the enactment of P.A. 13-3, although risk reduction credit earned by the petitioner, and not subsequently revoked, could still be used to advance the end date of his sentence, the credit could not be applied to advance his parole eligibility date. See Perez v. Commissioner of Correction, supra, 326 Conn. 365.

On February 19, 2019, the petitioner, acting as a self-represented party, filed a petition for a writ of habeas corpus using a state supplied form (petition). Therein, he alleged that the Department of Correction (department) was ‘‘not applying [his] [risk reduction credit] to [his] [p]arole [e]ligibility date.'' The petitioner requested that the habeas court provide the following relief: ‘‘Apply [his] [risk reduction credit] to [his] parole eligibility date.''

The petitioner appended several exhibits to the petition, including a document titled ‘‘Habeas Corpus, '' in which he alleged additional facts in support of the petition.4 Therein, the petitioner alleged that, prior to the enactment of P.A. 13-3, he had earned risk reduction credit that the respondent had applied to advance his parole eligibility date to November 24, 2020, but, following the enactment of P.A. 13-3, the respondent stopped applying the credit that he had earned to advance his parole eligibility date. On the basis of those allegations, the petitioner asserted that P.A. 13-3, as applied to him retroactively, violated the ex post facto clause of the United States constitution.5 In addition, the petitioner raised an equal protection claim under the fifth and fourteenth amendments to the United States constitution, in support of which he alleged ‘‘all persons similarly situated should be treated alike, and . . . there is no legitimate penological interest to justify the [department] and/or [the] [s]tate of Connecticut in cancelling provisional early release credits awarded to [him] that applies to his parole eligibility date.'' Under the heading of his equal protection claim, the petitioner also alleged that he ‘‘already received his [risk reduction credit] that applied to his parole eligibility date in 2011 until 2013. He already received the benefit from the [risk reduction credit] which created a liberty interest.''

On March 4, 2019, the habeas court, Bhatt, J., issued an order declining to issue the writ of habeas corpus6pursuant to Practice Book § 23-24 (a) (1). Specifically, the court stated: ‘‘Upon a review of the facts and allegations contained in the [petition], the court declines to issue the writ pursuant to [§ 23-24 (a) (1)]. This court is without jurisdiction to consider the claims raised in the petition, to wit: that the retroactive application of P.A. 13-3 violates the prohibition against ex post facto laws and the equal protection clause. The petitioner committed the instant offense in 2008, before the enactment of P.A. 11-51, which created the [risk reduction credit] program . . . .

‘‘Our Supreme Court and Appellate Court have repeatedly held that this court lacks jurisdiction over claims involving an offense date that is prior to the enactment of the [risk reduction credit] statute. Specifically on point is Perez v. Commissioner of Correction, [supra, 326 Conn. 357], in which our Supreme Court rejected ex post facto, due process and equal protection challenges to the retroactive application of P.A. 13-3 in the case of a petitioner whose offense date was in 2010, prior to the enactment of [the risk reduction credit statute]. See also Boria v. Commissioner of Correction, 186 Conn.App. 332, 199 A.3d 1127 (2018), [cert. granted on other grounds, 335 Conn. 901, 225 A.3d 685 (2020)]; Holliday v. Commissioner of Correction, [supra, 184 Conn.App. 228].

‘‘The holdings of those cases make clear that this court has no jurisdiction to consider the claims raised in the petition. If, however, the petitioner is claiming that credits that have already been earned and applied in the past have been unconstitutionally forfeited by the [department] . . . as opposed to [the department's] failure to allow the petitioner to continue to earn and apply new credits to his sentence, then the petitioner is...

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