Opinion
No. CV09-4002932 S
October 28, 2009
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS
Respondent's motion to dismiss requests that this court dismiss the amended petition filed by the petitioner on April 30, 2009. The motion to dismiss argues, based on a series of Supreme Court decisions, that the amended petition fails to state a claim for which relief may be granted. The petitioner filed an objection to the motion to dismiss. The parties appeared before the court on July 13, 2009, for a hearing on the motion to dismiss and the objection thereto. For the reasons stated more fully below, judgment shall enter dismissing the petition for a writ of habeas corpus.
DISCUSSION
Practice Book § 23-29 provides in relevant part that: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that: (1) the court lacks jurisdiction; (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted; . . . (5) any other legally sufficient ground for dismissal of the petition exists."
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "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 . . ." (Internal citations and quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn.App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). Nevertheless, the petitioner ". . . bears the burden of proving that the court has subject matter jurisdiction." Id.
The amended petition asserts that the petitioner is seeking both presentence confinement (jail credit) and good time credits. The amended petition alleges that the respondent is illegally applying General Statutes § 53a-38(b)(1). Additionally, the amended petition claims violations of the petitioner's rights to equal protection of the law and due process concerning written notice and a hearing.
The pertinent facts are not in dispute. According to the amended petition, the petitioner was sentenced on April 30, 1997, May 13, 1997, and October 17, 1997 to concurrent sentences in docket numbers CR94-105692, CR94-105595, and CR96-0436240. The two 1994 dockets were eligible to earn statutory good time credits. In the 1996 docket, the petitioner received a sentence of thirteen and one-half (13 1/2) years, to run concurrent with the three and one-half year sentences imposed in each of the 1994 dockets, thereby becoming his controlling sentence upon sentencing on October 17, 1997.
According to the amended petition, from June 1, 1997 to January 31, 1999, the petitioner was awarded ten (10) days a month statutory good time and was credited one hundred and seven (107) days jail credit good time in docket number CR94-105692. From June 1, 1997 to February 20, 1999, the petitioner was awarded ten (10) days a month statutory good time and was credited one hundred and seven (107) days jail credit good time in docket number CR94-105595. The petitioner was credited with two hundred and forty-five (245) days jail credit, from August 28, 1996 to April 30, 1997, in docket number CR96-0436240. On July 5, 2005, the 245 days jail credit were removed from docket number CR96-0436240 by the respondent. The petitioner asserts that he was never given notice and afforded a hearing prior to the removal of the 245 days jail credit.
Based upon the foregoing, the petitioner alleges that he is being denied statutory good time and jail credit good time, that the respondent is illegally applying General Statutes § 53a-38(b)(1), that he is being denied equal protection under the law, and that the failure to provide him with written notice and a hearing deprived him of due process. As relief the petitioner requests that the statutory good time and jail credit good time be merged with his controlling sentence, that the court correct the respondent's illegal application of jail credit and confinement time with respect to concurrent sentences, and that the 245 days of jail credit again be credited to docket number CR96-0436240.
The respondent's motion to dismiss seeks dismissal of the entire petition in accordance with Practice Book § 23-29(1), (2) and (5). The motion to dismiss argues that the ". . . petitioner's jail credit claims are barred by Washington v. Commissioner of Correction, 287 Conn. 792[, 950 A.2d 1220] (2008) (holding that § 18-98d can be applied retroactively to prisoners in custody as of the date of that decision without offending their constitutional or statutory rights). See Hunter v. Commissioner of Correction, 271 Conn. 856[, 860 A.2d 700] (2004); Cox v. Commissioner of Correction, 271 Conn. 844[, 860 A.2d 708] (2004); Harris v. Commissioner of Correction, 271 Conn. 808[, 860 A.2d 715] (2004). Petitioner's claims for statutory good time are barred by Tyson v. Commissioner of Correction, 261 Conn. 806[, 808 A.2d 653] (2002), cert. denied sub nom. Tyson v. Armstrong, 538 U.S. 1005, 123 S.Ct. 1914[, 155 L.Ed.2d 836] (2003)." The respondent also filed an affidavit in support of the motion to dismiss, as well as a supporting memorandum of law.
The petitioner filed an objection to the motion to dismiss. The objection first argues that the motion to dismiss was not timely filed in accordance with Practice Book § 10-30. Second, that his claims are not barred by Washington v. Commissioner of Correction. And third, that his claims are not barred by Tyson v. Commissioner of Correction. As to the first objection, Practice Book § 23-29 controls when motions to dismiss may be filed in habeas corpus matters, not § 10-30. See Practice Book § 23-21 ("Except as otherwise provided herein, the procedures set forth in Sections 23-22 through 23-42 shall apply to any petition for a writ of habeas corpus which sets forth a claim of illegal confinement"). The two other objections are addressed below.
The instant matter presents the court with a somewhat unusual procedural posture. The petitioner has filed an amended petition, but the respondent has not filed a return. Instead, the respondent filed a motion to dismiss seeking dismissal on the grounds that the court lacks jurisdiction, the petition fails to state a claim upon which habeas corpus relief can be granted, and any other existing legally sufficient ground for dismissal. The respondent's supporting affidavit from Department of Correction Records Specialist II, Mary Jane Steele and attached documents, however, would normally be filed in support of a motion for summary judgment. See, e.g., Practice Book § 23-37 ("At any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law"); Pouncey v. Commissioner of Correction, 84 Conn.App. 734, 737, 854 A.2d 1129 (2004).
It is clear from the pleadings in this matter, in spite of the fact that the pleadings are not closed, that there is no dispute regarding any genuine issues of material fact. The July 13, 2009 hearing underscores this conclusion, as the parties only presented legal arguments and there is no apparent dispute as to the material facts necessary to decide this matter. Thus, it would be appropriate for the court to treat the motion to dismiss as a motion for summary judgment. See, e.g., Delgado v. Commissioner of Correction, 114 Conn.App. 609, 612, 970 A.2d 792, cert. denied, 292 Conn. 920, 974 A.2d 721 (2009) (habeas court treated motion to dismiss as motion for summary judgment). Nevertheless, the court will not treat the motion to dismiss as a motion for summary judgment.
The petitioner here first claims that he is being denied statutory good time and jail credit good time because the respondent is "illegally" applying General Statutes § 53a-38(b)(1). The crux of this claim is the petitioner's argument that the manner in which the respondent has applied good time credits violates the § 53a-38(b)(1) requirement that concurrent sentences must be merged. The petitioner asserts that he was told by DOC officials that concurrent sentences are never merged and that each docket is a separate sentence. Therefore, according to the petitioner, the respondent is refusing to merge statutory good time and jail credit good time to the petitioner's controlling sentence.
The petitioner's first claim and his arguments in support thereof show he misunderstands the merger concept of § 53a-38(b)(1). The Supreme Court in Washington indicated that its ". . . case law illustrates the interaction of these statutory provisions, which defines the process by which the respondent calculates a prisoner's anticipated release date. See, e.g., Hunter v. Commissioner of Correction, supra, 271 Conn. 865-66; Cox v. Commissioner of Correction, supra, 271 Conn. 853; Payton v. Albert, 209 Conn. 23, 32, 547 A.2d 1 (1988), overruled in part on other grounds by Rivera v. Commissioner of Correction, 254 Conn. 214, 756 A.2d 1264 (2000). First, the respondent adds the term of the imposed sentence to the date of sentencing to calculate the latest possible release date; then, the respondent applies presentence confinement credit on that docket to reduce the prisoner's term of confinement by the days that he has been in custody prior to the date of sentencing. Finally, if the prisoner has been ordered to serve multiple sentences concurrently, the respondent then merges the sentences, and the longest sentence controls the prisoner's anticipated release date." (Emphasis added.) Washington v. Commissioner of Correction, supra, 287 Conn. 801. "[T]he merger process [dictated by § 53a-38(b)] does not alter the fact that concurrent sentences remain separate terms of imprisonment which the legislature has permitted to be served at one time." Id., at 821 n. 16, citing and quoting Harris v. Commissioner of Correction, supra, 271 Conn. 819.
General Statutes §§ 18-98d and 53a-38(b).
The flaw with the petitioner's assertions is that, according to the petitioner, the three sentences first were merged and then the credit applications occur thereafter. This is readily apparent from the following allegation in the amended petition: "The statutory good time and jail credit good time that was awarded and credited to cases CR94-405692 and CR94-105595 was never merged with the controlling sentence case CR96-0436240." Amended Petition, Paragraph 7. It is readily apparent that the petitioner seeks to have credits only earned on the two 1994 dockets applied to the 1996 docket. There is no legal basis or authority for a habeas court to bestow upon the petitioner a double benefit stemming from the identical good time and jail credit good time credits. Accordingly, the first claim raised by the petitioner is without merit and fails to state a legally cognizable claim upon which relief may be granted.
Additionally, the 1994 dockets both involve offense dates (July 18 and 25, 1994) that precede October 1, 1994. The 1996 docket involves an offense date of June 24, 1996. The 1996 sentence in CR96-0436240 is good time ineligible. "In Velez [v. Commissioner of Correction, 250 Conn. 536, 738 A.2d 604 (1999)], [the Supreme Court] faced the issue of whether § 18-100d renders General Statutes §§ 18-7 and 18-7a(c) (good time statutes) `inapplicable to persons sentenced to terms of imprisonment for crimes committed on or after October 1, 1994.' [The Supreme Court] court concluded that the good time statutes are not applicable to such persons . . . In Tyson [v. Commissioner of Correction, 261 Conn. 806, 816, 808 A.2d 653 (2002), cert. denied sub nom. Tyson v. Armstrong, 538 U.S. 1005, 123 S.Ct. 1914, 155 L.Ed.2d 836 (2003)], [the Supreme Court] went a step further. The dispositive issue in Tyson was whether the petitioner's pre-1994 sentence or post-1994 sentence governed his prison release date, for the purpose of incorporating credit . . . [The Supreme Court] concluded that `the petitioner [may obtain] the benefit of good time credit under § 18-7a(c) with respect to his pre-1994 sentence, as was the intent of the legislature for crimes committed before October 1, 1994, [but that he must satisfy] the legislative mandate that the petitioner serve the full term of his post-1994 sentence . . . In other words, an individual's sentence for a crime committed before October 1, 1994, is eligible for good time credit, while his sentence for a committed after October 1, 1994, is not." (Emphasis in original.) (Internal citations and quotation marks omitted.) George M. v. Commissioner of Correction, 290 Conn. 653, 667-68, 966 A.2d 179 (2009). Given the foregoing, it would be impermissible to apply any good time credits, such as the jail credit good time credits claimed by the petitioner, to the 1996 docket.
The petitioner's second and third claims pertain to the 245 days of jail credit that first were applied to the 1996 docket and subsequently removed. The court first notes that the Supreme Court in Washington addressed the retroactive application of § 18-98d to prisoners in custody as of November 30, 2004, the release date of Harris, Cox, and Hunter, and whether such application offended their constitutional or statutory rights. Washington v. Commissioner of Correction, supra, 287 Conn. 794. The Supreme Court concluded the retroactive application did not violate constitutional or statutory rights.
The petitioner asserts that ". . . 245 days of jail credit were taken away but the jail credit of other prisoners that were similarly effected by the Supreme Court's decision in Harris, Cox, and Hunter cases that discharged between October 20, 1997 to July 5, 2005, was not taken away." Amended Petition, Paragraph 13. As Washington clearly emphasizes, its holding only pertains to those, such as the petitioner, who were somehow in DOC's custody at the time the Harris, Cox, and Hunter decisions were released.
Furthermore, the Supreme Court in Harris undertook an examination of equal protection violation claims in the context of jail credits. "In analyzing those claims, the court determined that `because [presentence confinement] credit is not constitutionally mandated, it is not one of those few rights deemed so fundamental that the state cannot impinge upon it in the absence of a compelling reason.' (Internal quotation marks omitted.) [ Harris v. Commissioner of Correction, supra, 271 Conn. 833]. The court went on to conclude that prisoners do not constitute a suspect class and that the `respondent's method of crediting presentence confinement days when concurrent sentences are imposed on different dates serves the legitimate public purpose of ensuring that a convicted offender serves the full term of each criminal sentence imposed.' Id., 834." Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801-02, 936 A.2d 263 (2007), cert. denied, 289 Conn. 911, 957 A.2d 858 (2008). The petitioner's equal protection claim, therefore, is without merit and fails to state a legally cognizable claim upon which relief may be granted.
Lastly, the petitioner avers that the his due process rights were violated when the 245 days of jail credit were removed without written notice and a hearing. As in Washington, the respondent's actions here corrected an error and removed credits from a docket that never should have had the 245 days applied. The Washington court viewed the invalid transfer of credits, in violation of the statutory prohibition against double counting of jail credits, as being akin to a clerical error. Washington v. Commissioner of Correction, supra, 287 Conn. 820. The petitioner never had a liberty interest in the 245 days of jail credit and, therefore, a notice and hearing prior to removal of these erroneously posted credits from the petitioner's timesheet would be superfluous. See, e.g., Abed v. Commissioner of Correction, 43 Conn.App. 176, 181-82, 682 A.2d 558, cert. denied., 239 Conn. 937, 684 A.2d 707 (1996) (petitioner had no liberty interest in unearned good time credits; failure to raise a legally cognizable claim upon which relief may be granted).
Based upon all the foregoing, the court concludes that the amended petition fails to raise legally cognizable claims. The respondent's motion to dismiss is granted. Judgment shall enter dismissing the petition for a writ of habeas corpus.
It is so ordered.