Opinion
CV134005255S
02-25-2019
ANTHONY A. (Inmate #332139) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
The petitioner initiated this matter by way of a petition for a writ of habeas corpus challenging his classification by the Department of Correction (DOC). The petitioner, who represented himself, proceeded to trial. Instead of a decision on the merits of the claims, however, the habeas court dismissed the petition. The petitioner appealed from the granted petition for certification to appeal. In Anthony A. v. Commissioner of Correction, 159 Conn.App. 226, 122 A.3d 730 (2015), the Appellate Court reversed the judgment of the habeas court and remanded the case for further proceedings. The respondent then petitioned the Supreme Court for permission to appeal from the judgment of the Appellate Court. Such permission was granted and the Supreme Court affirmed the judgment of the Appellate Court in Anthony A. v. Commissioner of Correction, 326 Conn. 668, 166 A.3d 614 (2017).
The matter then came before this court for a trial on the merits on the claims asserted in the operative petition filed by assigned counsel. The parties appeared before the court on July 10 and 30, 2018, for a trial on the merits. Both the petitioner and the respondent entered numerous documents, primarily consisting of court and DOC records and documents, into evidence. The petitioner testified and also presented testimony from DOC Correctional Counselor Supervisor Elizabeth Tugie; Chief Probation Officer Thomas Canny; Parole Manager Jessica Bullard; DOC Director of Offender Classification David Maiga; DOC Supervising Psychologist I, Joslyn Cruz; and Dr. Amanda Kingston, an expert in forensic psychiatry. The parties filed post-trial briefs.
For the reasons articulated more fully below, the petition for a writ of habeas corpus is denied.
DISCUSSION
I. Procedural History
The Appellate Court summarized the procedural history and relevant facts up to the point of its decision. "On July 5, 2012, the petitioner was sentenced to an effective term of three years and six months incarceration after pleading guilty to unlawful restraint in the first degree, failure to appear and violation of probation. The state entered a nolle prosequi as to an additional charge of sexual assault in a spousal relationship.
"The petitioner received a sentence of five years incarceration, execution suspended after forty-two months, and three years of probation on the unlawful restraint charge. He received an unconditional discharge on the failure to appear charge. The petitioner also was found to have violated his probation in connection with a previous conviction, and his probation was revoked in that case."
"The charges of unlawful restraint in the first degree and sexual assault in a spousal relationship both arose in connection with an incident that occurred on July 19, 2011. The police responded to a report of a domestic dispute at the petitioner’s residence. The petitioner and his wife were intoxicated and had been smoking crack cocaine."
"Shortly after being sentenced, the petitioner learned that [DOC] had classified him as a sex offender and had assigned him a sex offender treatment need score. The department provided the petitioner with an Offender Accountability Plan (plan) that listed ‘sex treatment referral’ as a ‘specific program recommendation.’ The plan expressly provided that ‘[f]ailure to comply with [the plan’s] recommendations, or conduct which results in discipline or increases in risk level, shall negatively impact your earning of Risk Reduction Earned Credit ... and/or chances of [the department’s] supervised community release and/or parole.’
"The petitioner refused to sign the plan and requested a hearing to prove he had not sexually assaulted his wife. He claimed that the sex offender designation and treatment recommendation should be removed from his plan. The department responded: ‘You had a hearing on 7/7/2012, and it was found to be verified in the police report that there was nonconsensual sexual contact. Therefore, your [sex offender treatment need] score ... is accurate and will not be changed.’ The petitioner’s repeated efforts to modify his plan to delete the sex offender designation were all unsuccessful.
"In addition to the undisputed fact that the charge of sexual assault in a spousal relationship had been nolled, the petitioner relied on his wife’s letter to the Superior Court, in which his wife stated that she did not wish to pursue the charges against the petitioner, that the ‘police report [was] inaccurate, ’ and that the petitioner ‘never sexually assaulted me.’ "
"The petitioner was sentenced on July 5, 2012. According to the department’s response, he had a hearing two days later on July 7, 2012."
"On February 20, 2013, the petitioner filed a petition for a writ of habeas corpus. In his petition, the self-represented petitioner claimed: (1) he was informed by the assessment counselor that the department had classified him as a sex offender; (2) the classification was made on the basis of an inaccurate police report; (3) he was told that he risked forfeiting ‘good time, parole [and] early release’ if he did not participate in a sex offender treatment program; (4) he was wrongfully classified as a sex offender; (5) his wife, the alleged victim, wrote a letter to the Superior Court stating that she never was sexually assaulted by the petitioner and that the police report was inaccurate; (6) he never has been convicted of a sexual offense; and (7) he was deprived of a liberty interest without due process of law. The respondent’s return alleged, inter alia, that the petitioner had not stated a claim for which relief could be granted." (Footnotes omitted and renumbered.) Anthony A. v. Commissioner of Correction, supra, 159 Conn.App. 229-31.
"After the appeal was filed, the petitioner finished serving his sentence of incarceration. On April 1, 2015, he contacted the appellate clerk’s office and advised [the Appellate Court] that he had been released from prison and that he planned to appear for oral argument. On April 10, 2015, he again contacted the appellate clerk’s office and stated that he had been arrested on April 6, 2015, for violation of a protective order and for disorderly conduct. He further stated that he had not posted bond in connection with the new charges and was being detained at New Haven Correctional Center." Id., 232.
The Appellate Court first had to address whether the petitioner’s claim was rendered moot because of his release. After a mootness analysis, the Appellate Court indicated that "[w]ith the petitioner’s new arrest, [it was] persuaded that there is a reasonable possibility that, should he return to prison, he will again be classified as being in need of sex offender treatment because the department assigned him a sex offender treatment need score with a recommended sex offender treatment referral during his previous incarceration. Accordingly, the petitioner’s appeal [was] not moot." Id., 234.
"At issue under the factual circumstances of this case is the characterization of the petitioner as a sex offender and the consequences that flow from that characterization. The petitioner alleges that he has no history of sexual offenses and that the incident relied on by the respondent as set forth in the police report was expressly discredited by the alleged victim. He claims that the stigma of being labeled a sex offender subjects him to atypical and significant hardship in the penal system, as does the plan’s recommendation for sex offender treatment. Because the petitioner claims that he is not a sex offender and can prove that he is not a sex offender, he refused to sign the plan acknowledging that status and his need for sex offender treatment. By refusing to participate in the recommended treatment program, the petitioner alleges that he forfeited ‘good time, parole and early release.’" Id., 239.
The Appellate Court ultimately "... conclude[d] that the petitioner’s habeas petition ha[d] sufficiently alleged the violation of a protected liberty interest under the fourteenth amendment. By alleging that he was deprived of this cognizable liberty interest without procedural due process, he is entitled to a hearing on the merits of his claim in the habeas court. At the hearing, the petitioner will, of course, have to prove the allegations in his petition to prevail. The habeas court will need to determine what procedural due process was provided to the petitioner prior to his classification as a sex offender and whether that process was adequate under the circumstances ..." (Footnote omitted; footnote renumbered.) Id., 241.
"The department’s procedures for classifying an inmate in need of sex treatment, as contained in the department’s objective classification manual, may or may not have been followed in the petitioner’s case[. This was not determined because the habeas court dismissed the petition after concluding that the petitioner had no liberty interest at stake in his petition.] This, too, may be a factor to be considered in determining whether he was afforded the procedural process that he was due ..." (Emphasis added; citation and internal reference omitted.)
The Supreme Court affirmed the Appellate Court’s judgment. Anthony A. v. Commissioner of Correction, supra, 326 Conn. 670. Central to the Supreme Court’s conclusion that the petitioner was entitled to a hearing on the merits of his habeas claims was its determination that the petition sufficiently alleged a protected liberty interest: classification as a sex offender, with the resultant participation in sex offender treatment and the ensuing risk of forfeiting, as a consequence of non-participation in the mandated treatment, parole eligibility, community release, and good time credits. Id., 686.
Approximately two years after the release of the Appellate Court’s decision, the Supreme Court also noted the following: "It appears that, on July 7, 2012, a hearing was held to determine the petitioner’s classification. The petitioner represents that he was not present at the hearing, as was his right pursuant to the department’s Objective Classification Manual, and was informed of his classification as a sex offender only after the issue had been resolved." Id., 672 n.4.
The Appellate Court decided the petitioner’s appeal on August 11, 2015. The Supreme Court decided the ensuing appeal on August 29, 2017.
Whether or not the appeal had been rendered moot remained a concern. After summarizing the Appellate Court’s mootness discussion, Id., 673-74, the Supreme Court noted that "[t]he petitioner’s current status is not clear from the record. That is, the record does not reveal whether the petitioner was convicted of new charges, and, if so, whether he was sentenced to a term of incarceration and once again classified as a sex offender. It remains possible, however, that the respondent could, if the petitioner is again incarcerated, classify him as a sex offender because the previous classification establishes that he now has a prior history as an alleged sex offender. Accordingly, [the Supreme Court] agree[d] with the Appellate Court that the collateral consequences exception to the mootness doctrine applie[d]." Id., 674 n.6.
Discussing his burden in this case, the Supreme Court indicated that "[a]s far as the petitioner’s burden to demonstrate that the classification is wrongful, for purposes of jurisdiction, that requirement is satisfied by effective pleading and verified in a threshold inquiry— -the petitioner simply must claim that the classification is false ... In the present case, the petitioner has satisfied this requirement by claiming that he did not sexually assault his wife and pointing to her retraction of her initial statements to the contrary." (Citation omitted.) Id., 681-82.
The petitioner received assigned counsel to represent him in this habeas matter subsequent to the remand for a trial on the merits. Assigned counsel amended the petition several times, with the operative petition (Third Amended Petition, or amended petition), filed on April 18, 2018, asserting claims in four distinct counts. First, that his right to procedural due process under the federal and state constitutions was violated in one or more of nine enumerated ways (see paragraph 53, (A) through (I); second, that his right to substantive due process under the federal and state constitutions was violated in one or more of four enumerated ways (see paragraph 64, (A) through (D); third, that the petitioner’s right to be punished except in cases clearly warranted by law, under article first, § 9, of the Connecticut constitution, was violated for one or more reasons (see paragraph 70, (A) through (D); and fourth, that the petitioner’s right to be free from cruel and unusual punishment under the federal and state constitutions was violated in one or more of five ways (see paragraph 75, (A) through (E)). The respondent’s return denies that petitioner’s material allegations and avers that he has been appropriately classified, as well as that his prison hearing provided him with the due process required in a prison hearing.
Assigned counsel filed an appearance on October 24, 2017, about two months after the Supreme Court released its decision.
The petitioner’s post-trial brief abandoned this fourth claim. Petitioner’s Post-Trial Brief, p. 2, n.2.
Factual findings will be made as necessary to address each of the three remaining counts.
II. Count One— Violation of Procedural Due Process
The petitioner’s first claim is that his right to procedural due process was violated when DOC assigned him a sexual treatment needs score (STN) of S-3, which the petitioner alleges wrongfully labels him as a sex offender, when he has never been convicted of a sex offense. The petitioner also has averred, as the Supreme Court noted, that this label is incorrect because he did not sexually assault his wife and that she retracted her statements that he sexually assaulted her. Anthony A. v. Commissioner of Correction, supra, 326 Conn. 681-82.
The petitioner specifies nine ways in which DOC’s assignment of a S-3 score violated his right to procedural due process: (A) DOC did not allow him to be represented by counsel during the classification hearing; (B) DOC did not allow him to present testimony from live witnesses; (C) DOC did not provide him the opportunity to cross examine his accusers; (D) DOC did not provide him sufficient notice of the evidence to be relied upon in classifying him; (E) the hearing was not administered by an independent decision-maker; (F) DOC did not provide him a sufficient explanation of the reasons for the decision to assign him a STN of S-3; (G) DOC ignored medical evidence submitted by the petitioner, and did not provide a reasonable explanation for ignoring that evidence; (H) DOC did not adequately assess the credibility or reliability of the hearsay statements relied upon in assigning him a STN of S-3; and (I) DOC’s decision to assign him a STN of S-3 was not supported by sufficient evidence.
The petitioner’s post-trial brief only addresses four allegations in the following order: (B) refusal to allow the petitioner to call witnesses; (I) insufficient reliable evidence to support the respondent’s decision; (D) inadequate notice of evidence to be used against the petitioner; and (E) decision not rendered by an impartial decision maker. The court will only address the briefed claims and deem the others not briefed to be abandoned. See, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ("[R]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court "); Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796, 981 A.2d 517 (2009), cert. denied, 294 Conn . 926, 986 A.2d 1053 (2010) ("The petitioner’s failure to brief his first claim to the habeas court, namely, improper preparation and investigation by trial counsel, resulted in an abandonment of that claim").
The petitioner was charged with several offenses while his appeal was pending in the Supreme Court. The petitioner was sentenced on those matters in July of 2017. On or about November 29, 2017, DOC notified the petitioner that a hearing would be held on December 27, 2017, to determine whether the petitioner would receive a STN score greater than S-1. See Petitioner’s Exhibit 5. The notification indicated that DOC intended to rely on the Meriden Police report for the events of July 19, 2011. A reclassification form dated January 31, 2018, assigned the petitioner a sexual offender score of S-3. Petitioner’s Exhibit 6. On or about February 1, 2018, DOC notified the petitioner of that score.
This court notes that in spite of the various convictions that have occurred, and any of the petitioner’s releases from custody and subsequent readmissions, the central issue— DOC’s reliance on the petitioner’s alleged sexual behavior toward the victim on July 18-19, 2011, as contained in the Meriden Police report— remains. The petitioner’s classification for sexual treatment needs and his STN-3 score are inextricably linked to his purported sexual misconduct.
The court further notes that although the petitioner asserts that he has been labeled as a sex offender by DOC, he has only been classified as in inmate who has sexual treatment needs. The petition that was previously dismissed alleged that the petitioner was labeled as a sex offender. "On appeal, the respondent [then sought] to dispute the facts as alleged in the petition. For example, the respondent argue[d] in his brief to [the Supreme Court] that the petitioner was merely assigned a ‘sexual needs treatment score, ’ which the respondent contends is not the equivalent of labeling the petitioner a sex offender. Even if [that court] were not required on appeal to take the facts as alleged in the [dismissed] petition for purposes of determining whether the court had jurisdiction, the respondent waived this claim at the hearing on the petition. At that time, the respondent had the opportunity to contest the petitioner’s allegation that he had been labeled a sex offender. The respondent failed to do so. Specifically, during the hearing, the court asked the respondent whether he had any objection to the court taking the facts from the allegations in the petition for the purpose of determining whether the petitioner had alleged a cognizable liberty interest, and the respondent answered: ‘No objection, Your Honor.’ Later, the court stated: ‘I’m prepared to rule on this matter and in my ruling I’m going to assume for purposes of this ruling that the factual allegations by [the petitioner] are correct, in that he has been classified as a sex offender when he was not really a sex offender.’ At that point, the respondent could have disputed the petitioner’s allegation that the respondent had classified him as a sex offender, but he elected not to do so. Therefore, the respondent effectively ha[d] waived— at least for purposes of determining whether the court has jurisdiction— -any disputes he may have as to the facts alleged in the petition." Anthony A. v. Commissioner of Correction, supra, 326 Conn. 670 n.2.
The amended petition alleges that the assignment of a STN S-3 score classifies the petitioner as a sex offender. Amended Petition, p. 5, paragraph (27). The respondent’s return only admits that the petitioner was required to participate in sexual treatment as part of his OAP. Return, p. 2, paragraph (27). The respondent merely has classified the petitioner as having sexual treatment needs, not as being a sex offender.
A. Refusal to Allow Witnesses
As to the petitioner’s claim that his right to due process is being violated by DOC’s refusal to permit the petitioner to call witnesses at the classification hearing, Counselor Supervisor Tugie testified about the significant security concerns related to outside witnesses testifying inside correctional facilities. According to Tugie, it is not DOC policy to permit live witness testimony because of safety and security concerns. Outside witnesses would have to gain admission not only into the correctional facility itself, but the location where the hearings actually occur. These safety and security concerns are even greater when considering the presence of the complainant at such a hearing.
In Wolff v. McDonnell, 418 U.S. 539, 566-68, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court was "of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. We should not be too ready to exercise oversight and put aside the judgment of prison administrators. It may be that an individual threatened with serious sanction would normally be entitled to present witnesses and relevant documentary evidence; but here we must balance the inmate’s interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases. Any less flexible rule appears untenable as a constitutional matter, at least on the record made in this case. The operation of a correctional institution is at best an extraordinary difficult undertaking. Many prison officials, on the spot and with the responsibility for the safety of inmates and staff, are reluctant to extend the unqualified right to call witnesses; and in our view, they must have the necessary discretion without being subject to unduly crippling constitutional impediments. There is much play in the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents.
"Confrontation and cross examination present greater hazards to institutional interests ... If confrontation and cross examination of those furnishing evidence against an inmate were to be allowed as a matter of course, as in criminal trials, there would be considerable potential for havoc inside the prison walls. Proceedings would inevitably be longer and tend to unmanageability. These procedures are essential in criminal trials where the accused, if found guilty, may be subjected to the most serious deprivation, ... or where a person may lose his job in society ... But they are not rights universally applicable to all hearings ... Rules of procedure may be shaped by consideration of the risks of error, ... and should also be shaped by the consequences which will follow their adoption. Although some States do seem to allow cross examination in disciplinary hearings, we are not apprised of the conditions under which the procedure may be curtailed; and it does not appear that confrontation and cross examination are generally required in this context. We think that the Constitution should not be read to impose the procedure at the present time and that adequate bases for decision in prison disciplinary cases can be arrived at without cross examination."
Wolff involved a disciplinary hearing of an inmate and fellow inmates as witnesses at such a hearing. The court in Wolff discussed the different potential safety and security concerns depending on the fellow inmate or inmates another inmate wants to cross examine. Id., 568-69. "There may be a class of cases where the facts are closely disputed, and the character of the parties minimizes the dangers involved. However, any constitutional rule tailored to meet these situations would undoubtedly produce great litigation and attendant costs in a much wider range of cases. Further, in the last analysis, even within the narrow range of cases where interest balancing may well dictate cross examination, courts will be faced with the assessment of prison officials as to the dangers involved, and there would be a limited basis for upsetting such judgments. The better course at this time, in a period where prison practices are diverse and somewhat experimental, is to leave these matters to the sound discretion of the officials of state prisons." Id., 569.
The safety and security concerns if outside civilians were permitted to be at such hearings would be greater by any measure. Internal prison hearings, whether disciplinary or classification, are distinguishable from criminal proceedings— the former are not adversarial proceedings, where a criminal defendant has an umbrella of constitutional protections. There are limited constitutional protections attendant with prison disciplinary or classification hearings: minimal due process requirements. "Because of the unique requirements of prison security, ‘[t]he full panoply of rights due a defendant during a criminal trial are not available in a prison disciplinary hearing.’ Taylor v. Rodriguez, 238 F.3d 188, 192, 194 (2d Cir. 2000). As Wolff demonstrates, however, certain minimum requirements of procedural due process must be observed. Id. ‘Due process is satisfied if the prison disciplinary board shows some evidence that supports the revocation of good time credit ... Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.’ (Citation omitted; emphasis added; internal quotation marks omitted.) Jolley v. Commissioner of Correction, [ 60 Conn.App. 560, 561, 760 A.2d 146 (2000), cert. denied, 274 Conn. 913, 879 A.2d 892 (2005).] Moreover, ‘the "some evidence" standard may be met even where the only evidence was supplied by a confidential informant, as long as there has been some examination of indicia relevant to [the informant’s] credibility.’ Gaston v. Coughlin, 249 F.3d 156, 163 (2d Cir. 2001)." (Internal quotation marks omitted.) Torres v. Commissioner of Correction, 84 Conn.App. 113, 118-19, 851 A.2d 1252, cert. denied, 271 Conn. 941, 861 A.2d 517 (2004).
In Gaston, the indicia of the informant’s credibility was the hearing officer receiving testimony about the previous reliability of the confidential informant, and not merely a report on the informant’s statement. Gaston v. Coughlin, supra, 249 F.3d 163. The Second Circuit opinion details the measures employed by New York prison officials for a hearing at which an inmate requested to call three fellow inmates as witnesses and certain confidential information. Two of the inmate witnesses testified via telephone and, although the request for the confidential information was denied, the hearing officer reviewed that information. Some of the testimony was presented outside the presence of Gaston and was sealed. Id., 159-60. Connecticut DOC Directive Number 9.5(27) and (31) provides for similar procedures.
The petitioner’s post-trial brief posits that because other inmates would not be called as witnesses in the petitioner’s classification hearing, the security concerns are lessened. The court does not agree with that assertion. Instead, the court concurs with the respondent’s concerns regarding the safety and security of witnesses such as those contemplated by the petitioner. The petitioner identifies some of the witnesses that he would have called if permitted: police officers, his attorney from the underlying conviction, and Dr. Kingston. Although the petitioner’s post-trial brief does not include the complainant as a potential witness, the petitioner argues that it was vital that he be permitted to challenge the reliability of her statements to the police. As Wolff and its progeny show, however, prison hearings are not adversarial proceedings akin to criminal trials. The petitioner’s requested witnesses and envisioned proceeding would essentially elevate the prison hearing to the functional equivalent of a criminal trial.
A criminal protective order prevents the petitioner from having any contact with the complainant. The petitioner’s current incarceration is in part due to violating the criminal protective order. See Respondent’s Exhibit O.
The court concludes that the petitioner does not have a due process right to present the testimony of live witnesses, in particular not civilians such as the complainant, who is the protected person in a Criminal Protective Order issued by a court. The respondent had a reasonable basis to exclude such witnesses and properly used discretion when denying the petitioner’s request to present live witnesses at the classification hearing. Here, the petitioner submitted an inmate request form prior to his classification hearing. Respondent’s Exhibit G. The petitioner requested the ability to present the live testimony of witnesses. In a written response dated December 21, 2017, Tugie indicated that "[f]or institutional safety and security reasons you can present testimony but it must be submitted in writing. Live testimony will not be permitted as it is not necessary, and is not consistent with institutional safety concerns." Respondent’s Exhibit H.
There is no evidence that the petitioner or his counsel requested alternative ways to present such testimony. For example, live testimony could have been requested to be presented via interactive audio-visual device or a telephone conference. This court’s review of the DOC administrative directives in evidence does not indicate that such alternative means are precluded. Nor does relevant case law support the contention that due process mandates such alternative means or that there is a blanket rule barring all testimony from outside witnesses. Creative solutions may be feasible, although DOC must assess the safety and security concerns of any proposed alternative manner in which witness testimony is presented. The decision by DOC officials barring or limiting requested witness testimony may provide a basis for a due process challenge.
The documents considered by Tugie at the December 27, 2017 hearing were entered into evidence at the habeas trial. Respondent’s Exhibit O. The packet of documents consists of the following: the sentencing transcript of July 5, 2012; two case/incident reports of the November 4, 2016 incident that resulted in a violation of protective order charge; a printout of the petitioner’s name and known aliases; a list of the petitioner’s arrests and convictions, commonly referred to as a rap sheet; the petitioner’s statement dated December 26, 2017 to the hearing officer; documents relating to a violation of protective order charge arising from an incident on April 27, 2015; a letter from the petitioner’s former attorney, now judge, Tejas Bhatt, dated December 26, 2017; documents from the Meriden Police Department regarding the July 18-19, 2011 incident; the February 21, 2012 transcript of the change of plea proceeding; documents from the Bridgeport Police Department relating to various incidents and arrests between 2005 and 2010; a letter from the complainant dated August 17, 2011; an arrest warrant application from September 2011, prepared for a violation of probation charge arising out of the petitioner’s arrest on July 19, 2011; and the petitioner’s mental health interdisciplinary treatment plan.
One page of the Meriden Police Department Incident Report by Detective Rivera was not included in the materials considered by Tugie. The missing page is contained in Petitioner’s Exhibit 3.
The date of the complainant’s statement is approximately one month after the incident that led to the petitioner’s arrest, and precedes the petitioner’s change of plea by approximately six months.
The petitioner submitted to the hearing officer documentation that supported his contention that he was wrongfully classified based on the Meriden Police report. That documentation was considered by Tugie. Especially given that the complainant’s retraction of her allegation was based on her indication that she could not remember what happened, this court fails to discern how her live testimony, whether in person, via video conference, or by way of a telephone call, would have called into question the reliability of her statements to the police when they arrived, at the hospital, and at the police station. The complainant’s statements to the responding officers and investigating detectives were consistent. The complainant’s subsequent indication that she could not remember does not negate or disprove her initial consistent statements to law enforcement officials, and her later retraction is not proven by her lack of memory. As to other live witnesses such as police officers, former counsel, etc., the court finds that the documents submitted to the hearing officer do not need supplementing by live testimony at the classification hearing. There were sufficient security and safety concerns supporting DOC’s decision to not approve the petitioner’s request to present live witness testimony. The court concludes, therefore, that in the present case, DOC’s use of discretion in not permitting live witnesses did not result in a due process violation.
The court notes that it does not conclude that a blanket rule never permitting live witness in all instances would be overbroad and unsupported by Wolff and its progeny. Wolff clearly supports allowing live witnesses, subject to reasonable limitations by corrections officials. Additionally, Wolff underscored that prison hearings should not become like criminal trials, nor be full adversarial proceedings.
B. Insufficient Reliable Evidence to Support the Respondent’s Classification Decision
The petitioner alleges that DOC’s designation of him does not meet the "some evidence" standard. More specifically, because the petitioner was not permitted to cross examine the complainant, it was incumbent on the hearing officer (i.e., Tugie) to conduct an independent assessment of the complainant’s credibility. Simply relying on the police statement, according to the petitioner, was not sufficient evidence to support the petitioner’s STN S-3 designation. "Thus, due process is not satisfied when the evidence supporting his or her initial allegation, the inmate was not allowed to cross examine his accuser, and the hearing officer did not conduct independent credibility assessment." Petitioner’s Post-Trial Brief, p. 20. The petitioner cites to Sira v. Morton, 380 F.3d 57, 78 (2d Cir. 2004), and Luna v. Piro, 356 F.3d 481, 489 (2d. Cir. 2004) in support of his contentions.
By the time of the petitioner’s change of plea proceeding on February 21, 2012, the complainant had retracted her complaint and was no longer a cooperating witness. The prosecutor represented that the complainant did not recall the conversation with the police and now believed that something different happened instead of what she had reported to the police. The complainant no longer viewed what occurred as the petitioner sexually assaulting her. The complainant also indicated that she had hit her head, had a seizure, and that the seizure caused her to lose her memory or even believe things that are not actually true. The transcript of this proceeding was part of the record considered by Tugie. Respondent’s Exhibit O. A letter from the petitioner’s former counsel submitted for the classification hearing similarly reflects that the complainant also apprised defense counsel and the victim’s advocate that the events she reported to the police may not have transpired as reported to them. The complainant’s use of crack cocaine and later self-reported seizures were claimed by her to have impacted her memory of the events. Importantly, the complainant could not recall what transpired, which means that what she initially reported to the police is precisely what may have happened, but that she is unable to recall.
This court’s review of the documents considered by Tugie shows that the complainant called 911 on July 19, 2011, to report that the petitioner was intoxicated and had struck her with his fist. Four police officers responded to the domestic complaint. The complainant, who acknowledged to the police that she had also used crack cocaine that evening together with the petitioner, spoke with the police officers, who observed several injuries to her body. The complainant was transported to a hospital for evaluation and treatment. At the hospital, the complainant reported to two police officers that the petitioner has physically and sexually assaulted her. The complainant was eventually released from the hospital and transported to the police headquarters. A detective investigating the incident and a crisis intervention specialist spoke with the complainant. The interview was recorded with a digital voice recorder and a video system. The complainant then again described the physical and sexual assaults in ways that did not materially deviate from her initial report.
The Meriden Police Department report also contains the petitioner’s version of the events. After completing the interview of the complainant, the investigating detective went to the petitioner’s lockup cell, took the petitioner to an interview room where he signed consent to search and notice of rights forms, and then interviewed the petitioner. The interview was also recorded via video and digital voice recorder. According to the petitioner, he touched the complainant’s vagina on the outside and inside, and the complainant kept saying "no" to the petitioner and that she was not in the mood. The complainant turned to her side and pushed the petitioner’s fingers out of her vagina. The petitioner then waited for a period of time and repeated his contact with the complainant’s vagina several times throughout the night. The petitioner indicated that the complainant got tired of him putting his fingers inside her vagina and threw her cell phone at the petitioner, who snapped it in half.
It must be emphasized that DOC evaluates new, incoming inmates, and then reevaluates those already in custody. An STN score such as the petitioner’s results in a referral to determine if sexual offender treatment is recommended. In the petitioner’s case, such treatment was not recommended, yet his STN S-3 score was not removed.
The hearing conducted by Tugie resulted in her assigning the petitioner a STN score of 3VN. Tugie testified at the habeas trial that her basis for that score was the Meriden Police Report, which in turn had been the basis for the original charges involving sexual assault. The petitioner’s subsequent violation of a criminal protective order highlighted that the complainant was being repeatedly victimized by the petitioner. Such repeated victimization is not uncommon in domestic violence and/or spousal abuse cases, in Tugie’s experience, and can result in victims recanting their original statements about abuse so as to protect the abuser. Tugie viewed the complainant’s retraction of her original statements as fitting that pattern. The comparison of the detailed initial reports by the complainant to the police with the subsequent retraction resulted in Tugie crediting the initial statements. The court finds Tugie’s reliance on the complainant’s initial statements to be reasonable given the circumstances of this case and more significant, the petitioner’s own statement regarding several attempts at initiating sex by digitally penetrating the complainant’s vagina, despite her saying no, repeatedly.
Connecticut DOC Objective Classification Manual (Rev. 4/12) defines "S-3," "V," and "N." The STN designation "S-3" is defined as: "These individuals have a current conviction, pending charge or known history of sexual offenses involving physical contact with the victim(s) (necrophilia included). The offenses may include coercion, manipulation, or exploitation. This includes an offender who takes advantage of an opportunity where drugs and alcohol are being used as a tool. An inmate who engages in predatory sexual behavior while incarcerated will be given a score of S-3" Respondent’s Exhibit F, pp. 36-37. The subcodes "V" and "N" mean the following: "V" = "Verified: Information used to classify the individual is documented in the official record and is considered accurate[, ]" and "N" = "Denotes score based on non-conviction information." Id., p. 38.
The petitioner presented the testimony of Dr. Kingston in support of his contention that he is not a sex offender and should not be required to undergo sex offender treatment. As the court has already noted, DOC has determined that the petitioner has sexual treatment needs, but is not recommended to undergo sex offender treatment. Tugie testified that her classification of the petitioner would not have changed despite Dr. Kingston’s opinion. Furthermore, Dr. Kingston acknowledged that had she learned of the petitioner’s self-described attempts at initiating sex, despite the complainant’s protestations, that it could have altered her opinion regarding the petitioner’s sexual treatment needs if his actions were driven by sexual gratification or were sexually driven exclusively without any presence of psychiatric illnesses.
Especially given that the complainant’s retraction itself is premised on her assertion that she could not recall the events of the night of the incident, the court fails to see how a statement or testimony from the complainant at the classification hearing or even the habeas trial would shed any light on the reliability of her statements to the police. The complainant described the sexual assault to the responding police officers, repeated that description to police officers while she was at the hospital, and yet again repeated her description thereafter at the police station.
The petitioner faults Tugie and Maiga for not conducting an investigation into the complainant’s background and reputation for truthfulness, for not speaking to the police officers who took the complainant’s statements on the night of the incident, and for not obtaining the video of her interview with the police. The court is unaware of any legal authority, nor does the petitioner identify such authority, that places such burdens on hearing officers for purposes of inmate classification hearings.
The respondent had "some evidence" that supported its decision to assign the petitioner a STN score of S-3. The complainant’s initial reports to the police were consistent and are indicia of reliability, and her subsequent retraction based on her indication that she could not remember the events does not undermine her reliability. In this court’s analysis, the retraction based on a later-professed loss of memory has questionable reliability. The Luna v. Pico and Sira v. Morton cases cited to by the petitioner, which held that the "some evidence" rule entails reliable evidence, do not alter this court’s analysis in this case.
Consequently, given the unusual and unique circumstances of this case, the court concludes that there was sufficient reliable evidence to support the respondent’s decision.
C. Failure to Provide Notice of Evidence Used Against the Petitioner
Next, the petitioner claims and argues that his right to due process was violated because the respondent failed to notify him of the only evidence in the record that Tugie identified as supporting the complainant’s accusations. The petitioner describes this evidence as police reports and similar documents relating to his other arrests and incidents, some of which also involved domestic violence.
The notification of the classification hearing provided to the petitioner indicated that there was additional information that the hearing officer would rely upon for classification purposes: the arrest report from the Meriden Police Department and "CT State Rap Sheets." Petitioner’s Exhibit 5. Tugie’s decision and its grounds are explained in writing. Respondent’s Exhibit I. The decision notes that multiple documents were provided by the petitioner’s counsel for the hearing. Id. The decision further notes that the petitioner was provided with an exception to the standard practice for issuing decisions. By agreement between counsel for the petitioner and the respondent, the hearing itself was delayed to enable counsel for the petitioner to submit documents for the hearing. The decision was also delayed, by agreement of counsel, for thirty days after the hearing. Tugie acknowledged that she did additional research after the hearing and would not have apprised the petitioner of any documents that she obtained.
According to Tugie, she based her decision on the Meriden Police report. She also reviewed other police and probation reports to determine whether the complainant and the petitioner had been involved in other incidents. The petitioner was not notified that Tugie would be looking at these other reports. Tugie indicated that she was exercising due diligence in reviewing all law enforcement documents to see if the complainant and the petitioner were involved in other incidents. The STN score was not based on these other documents, although Tugie considered them in deciding whether the evidence presented about the complainant at the classification hearing was reliable. The court finds Tugie’s holistic review of the petitioner’s history with law enforcement to not violate due process. See, e.g., Chambers v. Colorado Department of Corrections, 205 F.3d 1237, 1242 (10th Cir. 2000) ("[I]n rehabilitative matters, prison officials may consider any history established in the inmate’s record which it may determine requires treatment").
The petitioner was notified prior to the hearing that his criminal record (i.e., his rap sheet) would be considered. The court finds that to be sufficient notice that any law enforcement documents relating to his arrests and convictions could be reviewed. The court credits Tugie’s testimony that the sole basis for the STN score she gave the petitioner was contained in the Meriden Police reports. The most significant aspect of the reports was, according to Tugie, the details provided by the complainant to the police about the sexual assault, and the petitioner’s own statement that he repeatedly digitally penetrated the complainant’s vagina to induce her to consent to sex. The petitioner has not shown that his ability to present his case or defense was restricted by not knowing Tugie would review other law enforcement documents. Therefore, the court concludes that the petitioner has not proven a due process violation.
D. Hearing Not Administered by an Independent or Impartial Decision Maker
The petitioner alleges in the amended petition that his classification hearing was not administered by an independent decision maker. The petitioner’s post-trial brief, however, argues a more expansive claim: that the classification decision was not rendered by an impartial decision maker. The post-trial brief in detail describes other involvements that Tugie and Maiga have had with the petitioner’s classification since he was first incarcerated, including that Maiga decided the petitioner’s appeal from Tugie’s classification decision. Respondent’s Exhibit L.
The court fails to discern how Tugie, the hearing officer, was not impartial. Her role in the classification process is not limited to presiding over the hearing in a manner akin to neutral magistrates presiding over actual court matters. Individuals such as Tugie investigate the bases for classifications and review the submitted materials prior to rendering a decision. There is no evidence that shows Tugie was not impartial. Similarly, there is no evidence that Maiga was not impartial when reviewing the petitioner’s administrative appeal. This claim is both without merit and unsupported by evidence.
III. Count Two— Violation of the Petitioner’s Substantive Due Process Rights
The petitioner’s second claim in the amended petition is that the respondent has violated his right to substantive due process. In support of this claim, the petitioner alleges that he has never committed, nor been convicted of, a sex offense. The petitioner further alleges that he has never received a disciplinary citation from DOC for sexual misconduct, has never been diagnosed with a sexual disorder, that no sexual offender treatment has ever been prescribed by any mental health professional, and that sex offender treatment is not medically or psychiatrically appropriate for him. The petitioner asserts that he has a fundamental right to refuse unwanted psychiatric treatment that is not medically or psychiatrically appropriate.
The respondent’s post-trial brief aptly summarizes Connecticut’s classification system, the authority for the system and how DOC classifies the treatment needs of inmates, including sexual treatment needs, as well as the functions of the various DOC Administrative Directives. Respondent’s Post-Trial Brief, pp. 5-9. DOC has an affirmative duty to manage the inmate population and promote the rehabilitation of inmates to ensure their successful transition into society upon release. DOC also has the duty and the right to assess and classify inmates according to their treatment needs. This assessment includes sexual treatment needs, regardless of inmates’ lack of sexual assault convictions. Although there is the potential for a stigma to attach to the STN S-3 classification, a sexual treatment needs designation and score such as the petitioner’s are not punishment, but components of DOC’s efforts to treat and rehabilitate inmates.
See, e.g., Coleman v. Dretke, 395 F.3d 216, 224-25 (5th Cir. 2004) (parolee convicted of non-sexual offenses required to register as a sex offender and undergo therapy when the underlying facts involved sexual acts;" ... sex offender treatment serves the government interest in protecting members of the community from future sex offenses"); Kirby v. Siegelman, 195 F.3d 1285, 1292 (11th Cir. 1999) ("An inmate who has never been convicted of a sex crime is entitled to due process before the state declares him to be a sex offender").
DOC’s classification procedures require an initial assessment of new inmates. Petitioner’s Exhibit 13. Initial assessments are periodically reevaluated. Id., 5. In the petitioner’s case, he was assessed and assigned a STN S-3 score, which results in a referral to have his sexual treatment needs determined. The petitioner was determined to not require sexual offender treatment, and none was ordered or required by DOC. The petitioner’s OAP does not, therefore, impose any sexual offender treatment’ on the petitioner. The petitioner has steadfastly refused to sign his OAP because DOC will not remove the STN S-3 score. The petitioner’s disciplinary ticket and loss or inability to earn RREC emanate from his refusal to sign his OAP, even though it does not require sex offender treatment.
The petitioner’s post-trial briefs outline an argument as to why strict scrutiny should apply in the petitioner’s case: his classification is inherently suspect because he has mental disabilities, as well as that the classification procedures target individuals with mental disabilities (i.e., sexual disorders). The petitioner then argues that the respondent’s decision to classify the petitioner as a sex offender fails a strict scrutiny test. The petitioner has not presented any evidence that sexual disorders are mental disabilities, nor is there any evidence that DOC targets such individuals.
Essentially, the petitioner’s second claim attacks the STN classification process in its entirety because they are not narrowly tailored to serve the state’s compelling interest in prison security. The petitioner conveniently overlooks other compelling state interests: rehabilitating inmates and preparing them for reentry into society. The petitioner’s own cycling in-and-out of prisons in recent years due to violating the criminal protective order as to the complainant underscores the state’s compelling interest in providing services and treatment to the petitioner.
"Although the federal constitution does not expressly enumerate any suspect classes, the United States Supreme Court has identified three such classifications, namely, race, alienage and national origin ... In contrast to the federal constitution, the state constitution identifies certain inherently suspect classifications ... These classifications, which are set forth in article first, § 20, of the Connecticut constitution, as amended by articles five and twenty-one of the amendments, include religion, race, color, ancestry, national origin, sex, physical disability and mental disability. Because the members of those classes have been deemed to be ‘especially subject to discrimination[, ]’ ... their "rights are protected by requiring encroachments on [those] rights to pass a strict scrutiny test ...
"Additionally, for purposes of federal equal protection analysis, the United States Supreme Court also ‘has developed an intermediate level of scrutiny that lies [b]etween [the] extremes of rational basis review and strict scrutiny ... Intermediate scrutiny typically is used to review laws that employ quasi-suspect classifications ... such as gender, ... or [il]legitimacy, ... On occasion intermediate scrutiny has been applied to review of a law that affects an important, though not constitutional, right ... Under intermediate scrutiny, the government must show that the challenged legislative enactment is substantially related to an important governmental interest." (Internal citations and quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 159-60, 957 A.2d 407 (2008); see also Harris v. Commissioner of Correction, 271 Conn. 808, 831, 860 A.2d 715 (2004) ("If, in distinguishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard [under which] the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest ... If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge"), citing and quoting Hammond v. Commissioner of Correction, 259 Conn. 855, 877, 792 A.2d 774 (2002).
The court does not conclude that DOC’s classification of inmates and assigning them sexual treatment needs scores warrants application of a strict scrutiny test. Inmates convicted of sexual offenses, or where the circumstances of offenses involved sexual components, are not a suspect class, nor is a fundamental right triggered when DOC evaluates such inmates to determine if treatment needs warrant programmatic efforts to rehabilitate such inmates. The state has a compelling interest in managing the inmate population, assessing inmates for treatment while incarcerated, and facilitating their eventual transition back into society in a manner that safeguards society from repeat offenses. Furthermore, DOC has a rational and legitimate basis— to monitor inmates and ensure compliance with OAPs— to leave an STN S-3 score in place even though an inmate with such a score is not required to undergo sex offender treatment.
See, e.g., Renchenski v. Williams, 622 F.3d 315, 338 (3rd Cir. 2010) ("While we do not doubt being labeled a sex offender caused Renchenski stress and anxiety, dubbing him a sex offender and mandating behavioral modification therapy does not constitute a deprivation of any basic human need").
Consequently, and based upon the foregoing, the court concludes that the petitioner has not demonstrated that his right to substantive due process has been violated.
IV. Violation of the Petitioner’s Right Not to be Punished
The petitioner’s final claim in the amended petition is that his right under Article one, section nine of the state constitution, is being violated by DOC’s wrongful classification. The petitioner posits that his classification is punishment and not warranted by law. The crux of the petitioner’s arguments is that he has never been convicted of a sex offense and that there is insufficient credible evidence that there were acts of sexual violence against the complainant.
The court has extensively discussed the insufficient credible evidence allegations and relies on that prior discussion to conclude that the petitioner is not being punished by being assigned a STN S-3 score. On or about February 20, 2018, the petitioner was presented with his Offender Accountability Plan (OAP) Revision Form. The petitioner, consistent with past refusals, again refused to sign the OAP on the ground that he is not a sexual offender. The disciplinary report indicates that the petitioner was apprised of the negative consequences (i.e., disciplinary sanctions and loss of earned credit) that could result from his refusal to accede to the OAP. Petitioner’s Exhibit 8.
"The OAP is a tool designed to identify and address specific areas that need to be modified in order to assist the offender in a successful reintegration into the community. The foundation of the OAP is accountability, with each individual accepting responsibility to engage in productive actions." Petitioner’s Exhibit 18, p. 3. The petitioner has punished himself by not signing his OAP and then receiving a disciplinary ticket for that refusal. Petitioner’s Exhibit 24. The negative consequences emanating from his own decision to not sign the OAP have resulted in the loss of RREC previously earned, the inability to earn RREC, and inability to be confined in a lower security level facility where additional programs are available. According to Maiga, when the petitioner signs his OAP, he would be eligible to receive RECC.
CONCLUSION
The petitioner’s claims in the third amended petition for a writ of habeas are denied. Judgment shall enter for the respondent. It is so ordered.