Opinion
No. CV02-0003742
December 4, 2003
MEMORANDUM OF DECISION
This petition for a writ of habeas corpus was initially filed on September 13, 2002, amended on April 30, 2003 and amended for a final time on September 23, 2003. The case came on for trial before the Court, Fuger, J., on November 13, 2003. The petitioner is seeking an order from this Court ordering the Board of Parole to declare that he is eligible for parole after he serves fifty percent of the sentences upon which he is presently being held.
The petitioner has been known by several names. It appears as if the name "Troy Baker" is the correct name, although he has at times been referred to as: "Marlo Macklin" and "Troy Anderson." Lest there be any confusion in the record of this case, these three names all refer to the same individual, currently confined in the custody of the Commissioner of Corrections under Inmate number 200325.
This case is problematic insofar as determining the jurisdiction of this Court. Unlike the vast majority of petitions seeking a writ of habeas corpus, this petition does not allege that the petitioner is being illegally detained. Indeed, the petition does not make any allegations that the respondent warden is holding the petitioner in confinement illegally. He does not attack any of the underlying convictions. Instead, the petitioner argues that the Board of Parole is incorrect when it determined that he would have to serve 85% of the sentence before being eligible for parole. The petitioner argues that he should have been declared to be eligible for parole after service of 50% of the sentence.
The petitioner was sentenced on July 13, 2001 to a total effective sentence of fifteen years, suspended after the service of seven years to be followed by three years probation. All of the offenses were committed on February 19, 2000 with the exception of a violation of probation that has an underlying date of commission of October 10, 1993. Notwithstanding, the Violation of Probation sentence is not the controlling sentence in this case.
Without making any adjustment for potential good time credit, jail credit or any other credit to which the petitioner might otherwise be entitled in computing his sentence (there having been no evidence placed before the court in this regard), the petitioner's maximum release date would be July 12, 2008. Eligibility for parole at the 85% point would be some time in June 2007 with eligibility at the 50% point being sometime in January 2005.
The writ of habeas corpus is an ancient and time-honored component of our Anglo-American jurisprudence. "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: `the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is `a writ antecedent to statute, and throwing its root deep into the genius of our common law . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint at confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I." Fay v. Noia, 372 U.S. 391 at 399 (1963). When the United States achieved independence from England, the writ was embodied in our law as well. "Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat. 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a `great constitutional privilege.' Ex parte Bollman and Swartwout, 4 Cranch 75, 95." Fay v. Noia, infra at 400 (1963).
Edward I reigned in England in the late 13th century AD.
Here, the petitioner does not make the claim of illegal detention. It is cleat that eligibility for parole is different from suitability for parole and that under the current law of the state of Connecticut there is no right to be released on parole. "Since it is clear that an innate has no liberty interest in or right to parole release, it follows a fortiori that he cannot invoke a court's subject matter jurisdiction in a habeas action by claiming his confinement is illegal based on a parole board's failure to adhere to rulemaking procedures." Vincenzo v. Warden, 26 Conn. App. 132 at 143-44 (1991). Given that the petitioner does not have-a cognizable liberty interest at stake in this petition, it is clear that this Court lacks the requisite jurisdiction. "While we remain mindful of the unique and critically important role of habeas corpus in our jurisprudence, we cannot permit litigants who have no cognizable claim of illegal detention to leapfrog into court by ignoring the threshold element of a habeas action in order to surmount our jurisdictional requirements." Vincenzo v. Warden, 26 Conn. App. 132 at 144 (1991).
As noted by the petitioner in his own trial brief (#122.00): "suitability for parole is not determinative of eligibility for parole."
There is some confusion as regards to applicability of our Supreme Court's decisions in Robinson v. Commissioner of Corrections, 258 Conn. 830 (2002) and Johnson v. Commissioner of Corrections, 258 Conn. 812 (2002). In these two cases the petitioners were serving sentences for offenses committed prior to the effective date of Public Act 95-255. The effective date of this Act was July 1, 1996. Prior to that date, a person convicted of any offense for which parole was available was deemed to be eligible for parole after having served 50% of the sentence. For offenses committed on or after July 1, 1996, a person convicted of an offense "where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person" was required to serve 85% of the sentence before becoming eligible for parole. In Robinson and Johnson, the respondent applied this 85% eligibility rule to offenses that had been committed prior to July 1, 1996. The respondent claimed that since there was no liberty interest in parole as per Vincenzo, the habeas court therefore lacked jurisdiction to order relief. Without disavowing or overruling Vincenzo, our Supreme Court held that the retroactive application of Public Act 95-255 did give the habeas court jurisdiction to order relief.
Notwithstanding, the case at bar does not present that type of situation. Here the petitioner is not being held in custody pursuant to a mittimus issued on the basis of an offense committed before July 1, 1996. Given that there is no retroactive application of Public Act 95-255, the reasoning of our Supreme Court in Johnson and Robinson is not applicable here. Since Public Act 95-255 is being properly applied here, the petitioner must have alleged illegal detention in order to successfully invoke the jurisdiction of this Court to issue a writ of habeas corpus. That has not been done.
The petitioner's controlling sentence in this case is a sentence of fifteen years, suspended after the service of seven years to be followed by three years probation. This sentence was due to a conviction for the sale of narcotics in violation of CGS § 21a-277 (a) that took place on February 19, 2000.
Now codified as CGS §§ 54-125a-1 et seq.
"Habeas corpus provides a special and extraordinary legal remedy for illegal detention . . . The deprivation of legal rights is essential before the writ may be issued . . . Questions which do not concern the lawfulness of the detention cannot properly be reviewed on habeas corpus . . . When a habeas petition is properly before a court the remedies it may award depend on the constitutional rights being vindicated . . . Further, any remedy must be commensurate with the scope of the constitutional violations that have been established." (Citations omitted; internal quotation marks omitted.) Vincenzo v. Warden, supra, 26 Conn. App. 135-38.
The petitioner has attempted to argue that the sale of narcotics is not an offense "where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person." Therefore, parole eligibility must be established after the service of 50% of the sentence. While it may be true that narcotics violations are, in general, non-violent offenses, the petitioner is incorrect that this, in and of itself, entitles him to eligibility for parole at the 50% point. In doing so, the petitioner ignores CGS § 54-125a-4 (b) which provides that "where the underlying act or acts constituting the offense or any offenses for which the inmate is serving a sentence of imprisonment, or any other relevant information, demonstrate that the inmate is a violent offender" such person shall "be ineligible for parole until he or she has served not less than 85% of his or her definite sentence." Given that the Board of Parole has declared the petitioner to be a violent offender, there is no constitutional problem with their finding that he must serve 85% of the sentence imposed for those crimes committed on and after July 1, 1996.
It is true that the Hearing Division Supervisor, Mr. Gregory Everett, testified that the Board considered the totality of the petitioner's lengthy and sometimes violent criminal record in determining that he was a "violent offender." Some of the incidents and crimes that were looked at did predate the critical July 1, 1996 date. This, however, does not give rise to a claim of an ex post facto violation. The sentence of which the petitioner is being required to serve 85% before being eligible for parole was adjudged on July 12, 2001 and was for an offense committed in February 2000. Clearly, by that point, Public Act 95-255 was already in effect.
Notwithstanding the venerable history and importance of this writ, it is clear in this case that the petitioner has not stated any claim upon which habeas relief can be granted. There is no illegal confinement. There is no ex post facto application of Public Act No. 95-255. The petitioner has no right to ever have a parole hearing nor to be deemed suitable for release on parole. Taylor v. Rodriquez, 171 Conn. 691 at 697 (1976). Consequently, it is clear that the petitioner has failed to implicate any liberty interest or any other constitutional right sufficient to state any claim upon which habeas relief can be afforded.
". . . from the time the writ originated in seventeenth century England, its central purpose has been to test the legality of detention . . . The history of our own jurisprudence is wholly in accord with these principles. Habeas corpus provides a special and extraordinary legal remedy for illegal detention . . . The deprivation of legal rights is essential before the writ may be issued . . . Questions which do not concern the lawfulness of the detention cannot properly be reviewed on habeas corpus . . . When a habeas petition is properly before a court, the remedies it may award depend on the constitutional rights being vindicated . . . Further, any remedy must be commensurate with the scope of the constitutional violations that have been established." Johnson v. Commissioner of Corrections, 258 Conn. 804 at 813 (2002).
As noted earlier, the petitioner is serving a concurrent sentence of five years for a violation of probation that was imposed on July 13, 2001. The original offense date was October 10, 1993. Arguably, it might be a retroactive application of Public Act 95-255 to this particular offense. However, this sentence is not the controlling sentence.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
S.T. FUGER, JR, JUDGE