Wright v. Comm'r of Corr.

• Decision Date: 17 November 2020
• Docket Number: AC 43170
• Citation: 201 Conn.App. 339,242 A.3d 756
• Parties: Ian WRIGHT v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

201 Conn.App. 339

242 A.3d 756

Ian WRIGHT

v.COMMISSIONER OF CORRECTION

AC 43170

Appellate Court of Connecticut.

Argued September 10, 2020

Officially released November 17, 2020

Ian Wright, self-represented, the appellant (petitioner).

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

Moll, Suarez and DiPentima, Js.

DiPENTIMA, J.

The self-represented petitioner, Ian Wright, appeals following the habeas court's denial of his petition for certification to appeal from that court's dismissal of his petition for a writ of habeas corpus due to lack of subject matter jurisdiction. On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly concluded that it lacked subject matter jurisdiction over his petition when it reasoned that the petitioner did not have a liberty interest in a deportation parole eligibility hearing pursuant to General Statutes § 54-125d.¹ We dismiss the appeal.

The petitioner's claim on appeal centers on subsection (c) of § 54-125d, which concerns deportation parole. Section 54-125d provides in relevant part: "(a) The Board of Pardons and Paroles shall enter into an agreement with the United States Immigration and Naturalization Service for the deportation of parolees who are aliens as described in 8 USC 1252a (b) (2) and for whom an order of deportation has been issued pursuant to 8 USC 1252 (b) or 8 USC 1252a (b).

"(b) The Department of Correction shall determine those inmates who shall be referred to the Board of Pardons and Paroles based on intake interviews by the department and standards set forth by the United States Immigration and Naturalization Service for establishing immigrant status.

"(c) Notwithstanding the provisions of subdivision (2) of subsection (b) of section 54-125a, any person whose eligibility for parole is restricted under said subdivision shall be eligible for deportation parole under this section after having served fifty per cent of the definite sentence imposed by the court. ..."²

The petitioner is a Jamaican national who was convicted in 2002, following a jury trial, of murder in violation of General Statutes § 53a-54a and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. The petitioner was sentenced to a total effective term of thirty-five years of incarceration, including a sentence enhancement pursuant to General Statutes § 53-202k. His conviction was affirmed on direct appeal. State v. Wright , 77 Conn. App. 80, 822 A.2d 940, cert. denied, 266 Conn. 913, 833 A.2d 466 (2003). In 2013, the United States Immigration Court ruled that the petitioner be removed from the United States to Jamaica.

The self-represented petitioner filed an amended petition for a writ of habeas corpus in May, 2018. He alleged that he has made several attempts to contact the Board of Pardons and Paroles (board) for the purpose of obtaining a deportation parole eligibility hearing. He claimed that his due process rights were violated because he was denied a deportation parole eligibility hearing pursuant to § 54-125d (c) after having served 50 percent of his sentence. In a separate action filed in March, 2018, the plaintiff initiated a civil rights action pursuant to 42 U.S.C. § 1983, in which he similarly argued that his federal and state constitutional rights to due process were violated when he was not given a deportation parole eligibility hearing. See Wright v. Giles , 201 Conn. App. 353, 242 A.3d 146 (2020).

On September 19, 2018, pursuant to Practice Book § 23-29, the habeas court provided notice of a hearing to determine whether, inter alia, the court lacked subject matter jurisdiction over the petition.³ The respondent, the Commissioner of Correction, thereafter filed a motion to dismiss and, in a memorandum of law in support thereof, argued that the court lacked subject matter jurisdiction over the petition because the petitioner failed to raise a liberty interest. Following oral argument on November 9, 2018, the court issued an order allowing the petitioner additional time to submit written responses to the issues raised by the court's notice and the respondent's motion to dismiss. The petitioner filed a "Memorandum of Law In Support of Objection to Respondent's Motion to Dismiss," which included exhibits in support of his arguments, and later filed a "Supplemental Memorandum of Law In Support of Objection to Respondent's Motion to Dismiss." A second hearing was held on February 22, 2019.

In a memorandum of decision filed May 10, 2019, the court dismissed the petition for lack of subject matter jurisdiction. The court rejected the petitioner's interpretation of § 54-125d (c) that parole eligibility was mandatory once 50 percent of a sentence is served and concluded that, in light of § 54-125d (b), the statute did not convey a liberty interest. The court reasoned that deportation parole eligibility does not "simply rest on the amount of a sentence that has been served, as argued by the petitioner, but requires an interview process, and vests discretion with [the United States Immigration and Naturalization Service] to determine the standards a particular inmate must meet in that process." The court further reasoned, citing Baker v. Commissioner of Correction , 281 Conn. 241, 914 A.2d 1034 (2007), that permissive language in parole statutes does not give rise to a liberty interest and, because "the operative language of this statute clearly contemplates an eligibility determination process, the petitioner has no inherent recognized liberty interest, nor any state created liberty interest, in a deportation parole eligibility hearing." (Internal quotation marks omitted.) The petitioner filed a petition for certification to appeal, which the court denied. This appeal followed.

I

The petitioner first claims that the court erred in denying his petition for certification to appeal from the court's dismissal of his petition for lack of subject matter jurisdiction.

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. ... To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling ... [and] [r]eversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Citations omitted; internal quotation marks omitted.) Perry v. Commissioner of Correction , 131 Conn. App. 792, 795–96, 28 A.3d 1015, cert. denied, 303 Conn. 913, 32 A.3d 966 (2011).

"In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... adopted by this court for determining the propriety of the habeas court's denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed." (Internal quotation marks omitted.) Mourning v. Commissioner of Correction , 169 Conn. App. 444, 448, 150 A.3d 1166 (2016), cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017). We conclude, on the basis of our review of the petitioner's substantive claim, that he cannot prevail under the two-pronged test in Simms because he has not demonstrated that the court abused its discretion in denying certification to appeal.

II

The petitioner claims that the court improperly dismissed his petition for lack of subject matter jurisdiction. He contends that the court has subject matter jurisdiction over his petition because he has a cognizable liberty interest in a deportation parole hearing and/or eligibility on the basis of the mandatory language "shall" used in § 54-125d (c) concerning deportation parole eligibility. He argues that, because he has served 50 percent of his sentence, he "shall be eligible for deportation parole" according to § 54-125d (c). We disagree.

"The standard of review of a motion to dismiss is ... well established. 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. ... The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. ... [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record." (Citation omitted; internal quotation marks omitted.)

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