Opinion
CV144005790S
05-11-2016
Frederick Lawson (Inmate #276935) v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO DISMISS
Vernon D. Oliver, J.
The petitioner, Frederick Lawson, initiated this petition for a writ of habeas corpus and challenged General Statutes § 54-125a as amended by Public Act 13-3. The pro se petition was amended by assigned counsel and now encompasses twelve counts. At the core of the petitioner's allegations is General Statutes § 54-125a, its interrelationship with the wholly discretionary Risk Reduction Earned Credits (RRE credits) he may receive pursuant General Statutes § 18-98e, and how those credits impact his parole and/or release dates.
These twelve counts are captioned as follows: (1) ex post facto violation of P.A. 13-247; (2) ex post facto violation re P.A. 13-3; (3) retroactive application of P.A. 13-247: statutory construction; (4) retroactive application of P.A. 13-3: statutory construction; (5) due process re P.A. 13-247; (6) due process re P.A. 13-3; (7) separation of powers; (8) right of personal liberty re P.A. 13-247; (9) right of personal liberty re P.A. 13-3; (10) denial of equal protection re: P.A. 13-3; (11) denial of substantive due process; and (12) due process: enforcement of governmental representations.
The respondent filed a motion to dismiss the petition premised on the habeas court lacking subject matter jurisdiction over parole, as well as the petitioner's claims fail to state a claim upon which habeas corpus relief can be granted. The motion to dismiss additionally requests in the alternative, should the motion to dismiss be denied, that the matter be stayed pending the outcome of an appeal of the Appellate Court's decision in Petaway v. Commissioner of Correction, 160 Conn.App. 727, 125 A.3d 1053 (2015). The petitioner filed an objection to the motion to dismiss.
The parties appeared before this court on February 1, 2016, for a hearing on the motion to dismiss and the objection thereto. For the reasons articulated more fully below, the motion to dismiss is granted and judgment shall enter dismissing the petition for a writ of habeas corpus.
I
MOTION TO DISMISS STANDARD
" 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). " [A pleading] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. (Internal quotation marks omitted.) Gil v. Gil, 94 Conn.App. 306, 313, 892 A.2d 318 (2006)." Taylor v. Commissioner of Correction, 94 Conn.App. 772, 785, 895 A.2d 246 (2006), rev'd in part on other grounds, 284 Conn. 433, 936 A.2d 611 (2007). Nevertheless, the petitioner " . . . bears the burden of proving that the court has subject matter jurisdiction." Id.
II
DISCUSSION
The petitioner was the defendant in a criminal case in which he was convicted of two counts of assault in the first degree. The offense date for both of these offenses was July 27, 2004. The petitioner was sentenced on March 11, 2005, to a total effective sentence of fifteen years incarceration in the custody of the Commissioner of Correction (respondent). As a result of his convictions for assault in the first degree, the respondent has designated the petitioner to be a violent offender, thereby making him parole ineligible until he has served at least eighty-five percent of his sentence. General Statutes § 54-125a(b)(2) and (c); see also Johnson v. Commissioner of Correction, 258 Conn. 804, 786 A.2d 1091 (2002) (application of the eighty-five percent rule to that petitioner's circumstances was a cognizable ex post facto claim; eighty-five percent requirement not applicable to sentences imposed for offense dates prior to July 1, 1996).
In 2015, the Appellate Court in Petaway v. Commissioner of Correction, supra, 160 Conn.App. 734, concluded that a habeas court had properly declined to issue a petition for a writ of habeas corpus because it lacked subject matter jurisdiction over the petitioner's RRE credit claims. The Petaway court distinguished that case from Johnson because . . . the petitioner [in Petaway had made] no claim that a change in the law after 2003 extended the length of his incarceration or delayed the date of his first eligibility for parole consideration beyond the time periods in existence at the time of his criminal conduct." Id., 733. Critical to the outcome of Johnson had been the fact that the petitioner in that case had committed offenses prior to the effective date of the change from fifty to eighty-five percent parole eligibility for violent offenses. Id., 732-33. " Although the court [in Johnson ] acknowledged that an inmate has no liberty interest in being granted parole, the court found, nevertheless, that the habeas court had jurisdiction because Johnson had made a cognizable ex post facto claim by asserting that the change in the law between the date of his criminal act and his later incarceration violated the prohibition against ex post facto penal legislating." Id., 733.
However, in Petaway, " unlike in Johnson, the petitioner [made] no claim that a change in the law after 2003 extended the length of his incarceration or delayed the date of his first eligibility for parole consideration beyond the time periods in existence at the time of his criminal conduct. In sum, he [made] no claim rooted in ex post facto jurisprudence. Thus, unlike the petitioner in Johnson, the petitioner in [ Petaway had] not made a colorable ex post facto claim." (Footnote renumbered.) Id., 733-34.
" Indeed, it appears that the petitioner [in Petaway had] benefitted from the enactment of § § 54-125a and 18-98e because he has received risk reduction credits toward a reduction of his sentence, a benefit not available to him at the time he committed the robbery for which he is serving a sentence of imprisonment."
" Shorn of its ex post facto designation, the petitioner's claim [in Petaway was] no more than a complaint that long after he committed robbery and was sentenced, favorable legislation was enacted that gave him, at the respondent's discretion, an opportunity for earlier parole consideration but that legislation was later repealed, putting him back into the same position he had been in 2003 and 2005. The petitioner, however, has no liberty interest in parole eligibility, and, therefore, such a claim does implicate the jurisdiction of the habeas court. See Baker v. Commissioner of Correction, 281 Conn. 241, 914 A.2d 1034 (2007) (parole eligibility under § 54-125a does not constitute cognizable liberty interest sufficient to invoke habeas court's jurisdiction)." Id., 734.
Thus, although there is no liberty interest in parole or parole eligibility, an ex post facto claim may be colorable if there is a change in the law between the date of the petitioner's offense dates and his later incarceration that violated the prohibition against ex post facto penal legislating. In Johnson, the change in the law was that violent offenders would serve a higher percentage of their sentences prior to being considered for discretionary parole release. Whether or not an inmate being considered by the Board of Pardons and Paroles (Board) is suitable or not is an entirely different determination and lies completely with the Board's discretion. See General Statutes § 54-125a(d). Therefore, although parole and parole release do not entail liberty interests because of the discretionary nature of the Board's decisions, the statutory change challenged and reviewed in Johnson involved no discretionary acts. The increase from fifty to eighty-five percent for violent offender parole eligibility had nothing to do with discretionary acts by the Board. By operation of statute, violent offenders were made to serve a greater portion of their sentences before even being eligible for consideration by the Board to act how it saw fit to use its broad discretion on a case-by-case basis.
The Supreme Court in Johnson noted that " The United States Supreme Court has recognized that 'a law need not impair a " vested right" to violate the ex post facto prohibition. Evaluating whether a right has vested is important for claims under the Contracts or Due Process Clauses, which solely protect pre-existing entitlements . . . The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.' (Citations omitted.) Weaver v. Graham, 450 U.S. 24, 29-31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); see also Lynce v. Mathis, 519 U.S. 433, 445, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) ('[the] retroactive alteration of parole or early release provisions, like the retroactive application of provisions that govern initial sentencing, implicates the Ex Post Facto Clause because such credits are one determinant of [the] petitioner's prison term . . . and . . . [the petitioner's] effective sentence is altered once this determinant is changed' [internal quotation marks omitted]).
" The United States Supreme Court also has recognized that '[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause.' Garner v. Jones, 529 U.S. 244, 253, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). Rather, '[t]he controlling inquiry . . . [is] whether retroactive application of the change in [the] law create[s] a sufficient risk of increasing the measure of punishment attached to the covered crimes.' (Internal quotation marks omitted.) Id., at 250, 120 S.Ct. 1362; see also id., at 251, 120 S.Ct. 1362 ('[t]he question is whether the [new law] creates a significant risk of prolonging [the inmate's] incarceration'). Thus, unlike a due process claim, 'the . . . focus [of which is] primarily on the degree of discretion enjoyed by the [governmental] authority, not on the estimated probability that the authority will act favorably in a particular case'; (internal quotation marks omitted) Giaimo v. New Haven, 257 Conn. 481, 508-09, 778 A.2d 33 (2001), quoting Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 323, 627 A.2d 909 (1993); the primary focus of an ex post facto claim is the probability of increased punishment. To establish a cognizable claim under the ex post facto clause, therefore, a habeas petitioner need only make a colorable showing that the new law creates a genuine risk that he or she will be incarcerated longer under that new law than under the old law. Having made a colorable showing that he likely will serve more prison time as a result of the extension of his parole eligibility date from 50 percent to 85 percent of his sentence, the petitioner has established a cognizable claim of an ex post facto violation." (Footnote renumbered.) Johnson v. Commissioner of Correction, supra, 258 Conn. 817-19.
" Of course, we recognize that the relative degrees of discretion enjoyed by the governmental authority under the old law and under the new law may be relevant in determining the probability of increased punishment under the new law. The essential point, however, is that, even if the governmental authority enjoyed broad discretion under the old law, that fact alone would not necessarily foreclose a claim under the ex post facto clause."
The changes in the law wrought by the implementation of the RRE credit statute, § 18-98e, are fundamentally different from the change applicable to violent criminal offenders in which they are not eligible for parole consideration until they have served eighty-five percent of their sentences. General Statutes § 18-98e created a means by which the respondent can manage the inmate population through the discretionary awarding of credits " for adherence to the inmate's offender accountability plan, for participation in eligible programs and activities, and for good conduct and obedience to institutional rules as designated by the commissioner . . ." General Statutes § 18-98e(b). The discretionary nature of these credits is further emphasized by the provision that " good conduct and obedience to institutional rules alone shall not entitle an inmate to such credit[.]" General Statutes § 18-98e(b)(1). The commissioner or a designee also " may, in his or her discretion, cause the loss of all or any portion of such earned risk reduction credit for any act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause." General Statutes § 18-98e(b)(2).
The court concludes that the changes in the law implemented by § 18-98e are merely means by which the respondent can better administer the entire inmate population. The statute is infused and teeming with discretion and is not, as was the eighty-five percent parole eligibility statute, § 54-125a(b), a change in the law that supports a colorable ex post facto claim because § 18-98e in no way increases an inmate's term of confinement. Petaway v. Commissioner of Correction, supra, 160 Conn.App. 734 n.3 (The Appellate Court intimating that the changes wrought by General Statutes § § 54-125a and 18-98e benefitted the petitioner and shortened, as opposed to lengthened, the term of incarceration). The petitioner's punishment is no more onerous, and in no way greater, than when he committed the offenses. The petitioner and others who may be the beneficiaries of RRE credits cannot claim that their punishments are greater as a result of such credits, nor can they claim that they somehow were not put on notice that they faced a genuine, let alone increased, risk of longer incarceration. The petitioner's designation of some of his claims as being ex post facto based does not transform them into in fact being substantive ex post facto claims. In other words, the petition fails to state cognizable and colorable ex post facto claims.
Based upon the foregoing, the court concludes that it lacks subject matter jurisdiction over the petitioner's RRE credit claims and how they may impact his parole, and the petition is dismissed pursuant to Practice Book § 23-29(1).
The court additionally concludes that there is no relief that it could grant to the petitioner. Overseeing the administration of the prison population by the respondent through tools such as RRE credits is not a habeas court's function. See, e.g., State v. Fernandez, 254 Conn. 637, 656, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001) (" . . . not within the province of the judiciary to micromanage prisons"). " Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism . . ." (Citation omitted.) Washington v. Meachum, 238 Conn. 692, 733-34, 680 A.2d 262 (1996).
General Statutes § 18-98e gives the respondent and his or her designee the discretionary authority to use RRE credits to administer the inmate population. Any credits such as those awarded by General Statutes § 18-98 and other statutes are, of course, solely a matter of legislative grace. See, e.g., Magee v. Commissioner of Correction, 105 Conn.App. 210, 218-19, 937 A.2d 72, cert. denied, 286 Conn. 901, 943 A.2d 1102 (2008); Mitchell v. Commissioner of Correction, 94 Conn.App. 210, 213, 893 A.2d 445, cert. denied, 278 Conn. 917, 899 A.2d 622 (2006); Hammond v. Commissioner of Correction, 259 Conn. 855, 878, 792 A.2d 774 (2002); Johnson v. Manson, 196 Conn. 309, 321 n.12, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 (1986). Habeas courts in particular must be circumspect in enmeshing themselves in prison administration matters that courts are ill equipped to deal with. The amended petition and its myriad claims are no more than an invitation for a habeas court to enmesh itself in prison matters that the highest courts of this state and country have warned courts to not resolve by decree.
Consequently, the court also concludes that the petition must be dismissed on the ground that there is no habeas corpus relief that can be granted. Practice Book § 23-29(2).
CONCLUSION
Judgment shall enter dismissing the petition for a writ of habeas corpus because the court lacks jurisdiction over the claims and there is no relief that the court can grant. Practice Book § 23-29(1) and (2).
It is so ordered.