Opinion
CV154007610
03-31-2017
Shaquan McBride #283215 v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE RESPONDENT'S MOTION TO DISMISS
Vernon D. Oliver, J.
The petitioner, Shaquan McBride, brings this petition for a writ of habeas corpus, challenging changes in law that affect the Risk Reduction Earned Credits (RRE credits) he receives. The pro se petition was amended by assigned counsel and now encompasses three counts in which the petitioner asserts that Public Act 15-216, § 9, Public Act 13-247, § 376 and Public Act 13-3, § 59, as applied to the petitioner, constitute unconstitutional ex post facto laws.
The respondent denies the substance of the claims and asserts two special defenses, asserting that the habeas court lacks subject matter jurisdiction over the petitioner's parole eligibility and discretionary RRE credits, and that the petitioner lacks any liberty interest in RRE credits he did not yet earn.
On May 3, 2016, the respondent filed a motion to dismiss the proceedings pursuant to Practice Book § § 23-24 and 23-29, claiming that the habeas court lacks subject matter jurisdiction over the petitioner's parole eligibility and discretionary RRE credits pursuant to 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 respondent's motion to dismiss on October 7, 2016. The court heard oral argument on the motion and objection thereto on December 6, 2016. For the reasons articulated more fully below, the respondent's motion is granted and judgment shall enter dismissing the petition for a writ of habeas corpus.
This motion was originally before the court as a short calendar matter on June 23, 2016, but no action was taken due to an amended scheduling order filed on May 6, 2016. Therefore, it is now properly before this court.
The petitioner filed a motion for summary judgment and memorandum of law in support on August 26, 2016. In his objection to the respondent's motion to dismiss, the petitioner incorporated by reference all of the arguments set forth in the memorandum of law in support of his motion for summary judgment.
I
STANDARD
" [S]ubject matter jurisdiction cannot be waived by any party and can be raised at any state [of] the proceedings." (Internal quotation marks omitted.) J.P. Alexandre, LLC v. Egbuna, 137 Conn.App. 340, 49 A.3d 222, cert. denied, 307 Conn. 913, 53 A.3d 1000 (2012). " A motion to dismiss . . . properly attacks the jurisdiction of this 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." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
II
PROCEDURAL HISTORY
The petitioner was convicted of manslaughter in the first degree, in violation of General Statutes § 53a-55(a)(3), in docket number CR00-0159692. The manslaughter offense date was December 1, 1998. On May 11, 2001, the petitioner was sentenced to twenty years incarceration, suspended after ten years, with five years probation.
The petitioner was subsequently arrested on May 2, 2013, and pleaded guilty to criminal possession of a firearm, in violation of General Statutes § 53a-217, carrying a pistol without a permit, in violation of General Statutes § 29-35(a), and possession of narcotics, in violation of General Statutes § 21a-279, in docket number CR13-0271904. On November 20, 2013, the petitioner was sentenced to a total effective sentence of five years incarceration for these convictions.
On that same date, the petitioner admitted to a violation of probation stemming from the period of probation imposed for his manslaughter conviction in docket number CR00-0159692. The petitioner was sentenced to ten years incarceration, suspended after five years, with forty-six months probation, for the violation of probation.
III
DISCUSSION
A
In 2011, the General Assembly enacted legislation allowing certain prisoners convicted of crimes committed after October 1, 1994, to be eligible for RRE credits to be earned and applied to reduce their sentence. Public Acts 2011, No. 11-51, codified in General Statutes (Rev. to 2011) § § 18-98e and 54-125a. In 2015, the General Assembly enacted Public Acts 2015, No. 15-216, § 9, which amended § 18-98 to exclude offenders convicted of certain crimes, including manslaughter in the first degree, from earning RRE credits to reduce his sentence. As a result of his manslaughter conviction, the petitioner is now excluded from earning RRE credits to reduce his sentence.
" To establish a cognizable claim under the ex post facto clause . . . 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." Johnson v. Commissioner of Correction, 258 Conn. 804, 818, 786 A.2d 1091 (2002). The Johnson court found that the petitioner established a cognizable claim of an ex post facto violation through a colorable showing that he would likely serve more prison time as a result of the extension of his parole eligibility date from fifty percent to eighty-five percent of his sentence resulting from an amendment to General Statutes § 54-125a. Id., 818-19. 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 in legislation. Id., 809-10. Additionally, by operation of the amendment to § 54-125a at issue in Johnson, violent criminal offenders were now required to serve a higher percentage of their sentences prior to their consideration for discretionary parole release.
In 2015, the Appellate Court in Petaway v. Commissioner of Correction, supra, 160 Conn.App. 734, determined that a habeas court 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 made] no claim that a change in the law after [the date of the petitioner's offenses] 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 omitted.) Id., 733-34.
The Petaway court further concluded that " [s]horn of its ex post facto designation, the petitioner's claim 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." Petaway v. Commissioner of Correction, supra, 160 Conn.App. 734.
In the present case, as in Petaway, the crime committed by the petitioner occurred prior to the 2011 implementation of the RRE credit legislation. The petitioner argues that the offending conduct that formed the basis for the petitioner's current incarceration was the violation of probation committed on May 2, 2013. However, a violation of probation does not create a new sentence. Rather, the petitioner's present sentence for a violation of probation is a continuation of the original sentence for the underlying manslaughter conviction that had been previously suspended. See General Statutes § 53a-32; Cox v. Comm'r of Corr., 271 Conn. 844, 853, 860 A.2d 708 (2004) (violation of probation was continuation of petitioner's original sentence); Carmona v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-06-4001360-S, (December 21, 2007) (noting " original sentence now modified by sentence imposed for a violation of probation relates back to the original offense and sentence"). Therefore, the petitioner's offense date was December 1, 1998. Because the petitioner's controlling offense date occurred prior to the creation of the RRE credit legislation, the application of the 2015 amendment cannot support a claim rooted in ex post facto jurisprudence.
Further, the changes in the law implemented by § 18-98e are merely means by which the respondent can better administer the inmate population. The statute is infused and teeming with discretion and is not, as was the change in the law at issue in Johnson, a change in the law that supports a colorable ex post facto claim because the statute in no way increases an inmate's term of confinement. See Petaway v. Commissioner of Correction, supra, 160 Conn.App. 734 n.3 (suggesting that the changes wrought by General Statutes § § 54-125a and 18-98e benefitted the petitioner and shortened, as opposed to lengthened, his term of incarceration). The petitioner's punishment is no more onerous, and in no way greater, than when he committed the offenses. Thus, count one fails to set forth a cognizable and colorable ex post facto claim. Pursuant to the foregoing, the court concludes that it lacks subject matter jurisdiction over count one of the petition, and it is dismissed pursuant to Practice Book § 23-29(1).
B
In 2013, the General Assembly enacted Public Acts 2013, No. 13-247, § 376, amending the parole hearing requirement in General Statutes § 54-125a. Prior to its passage, the Board of Pardons and Paroles (the Board) was required to hold a hearing to determine suitability for parole release when certain inmates, including those convicted of manslaughter in the first degree, reached eighty-five percent of their aggregate sentence. Pursuant to the amendment, the petitioner's suitability hearing is now discretionary.
" 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." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 258 Conn. 817.
" [T]he presence of discretion does not displace the protections of the Ex Post Facto Clause . . . 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 . . . 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[, ] 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." (Citations omitted; internal quotation marks omitted; footnote omitted.) Johnson v. Commissioner of Correction, supra, 258 Conn. 818.
In Johnson, the statutory change impacted parole eligibility by requiring violent offenders to now serve 85 percent of their sentences instead of 50 percent under the prior version of the statute. That change to General Statutes § 54-125a inherently entailed an increased amount of prison time which must be served before the inmate would be eligible for parole because the Board lacked the statutory authority to release a violent offender prior to the 85 percent threshold. The Supreme Court concluded that the petitioner had " made a colorable showing that he will likely serve more prison time as a result of the extension of his parole eligibility date from 50 percent to 85 percent of his sentence, [and had] established a cognizable claim of an ex post facto violation." Johnson v. Commissioner of Correction, supra, 258 Conn. 818-19.
The change implemented by Public Act 13-247 is markedly different. The prior version of § 54-125a required the Board to hold a suitability hearing, however the Board had complete discretion to release an inmate to parole. Public Act 13-247 made such a hearing discretionary by substituting the word " shall" with " may." However, Public Act 13-247 made additional changes by adding provisions that required the Board to document specific reasons for not holding a hearing, and allowed no person to be released without a hearing. Therefore, while Public Act 13-247 increased the Board's discretion over the process by making the hearings optional instead of mandatory, it also required the Board to articulate and document the reasons why the Board would not hold a hearing or would not release an inmate to parole after a hearing was completed. Pursuant to the amended statute, a person who did not receive a suitability hearing could not be released to parole; however, a hearing does not mean, let alone guarantee, that an inmate will be released to parole at the Board's discretion.
General Statutes § 54-125a(d) now provides in relevant part: " If a hearing is held, and if the board determines that continued confinement is necessary, the board shall articulate for the record the specific reasons why such person and the public would not benefit from such person serving a period of parole supervision while transitioning from incarceration to the community. If a hearing is not held, the board shall document the specific reasons for not holding a hearing and provide such reasons to such person. No person shall be released on parole without receiving a hearing. The decision of the board under this subsection shall not be subject to appeal."
As a result of the foregoing, the court fails to discern how the application of Public Act 13-247 to the petitioner constitutes a cognizable ex post facto claim by creating a genuine risk that the petitioner will be incarcerated longer as a result of the amendment. Therefore, the court also lacks subject matter jurisdiction over count two of the petition, and it is dismissed pursuant to Practice Book § 23-29(1).
C
In 2013, the General Assembly enacted Public Acts 2013, No. 13-3, § 59, which amended § 54-125a to require that an inmate classified as a violent criminal offender must serve eighty-five percent of the definite sentence imposed before becoming eligible for parole. See General Statutes § 54-125a(b). As a result of this amendment, RRE credits earned by a violent criminal offender no longer advance that inmate's earliest parole eligibility date. Due to his manslaughter conviction, the respondent designated the petitioner as a violent criminal offender, thereby making him parole ineligible until he has served at least eighty-five percent of his sentence pursuant to General Statutes § 54-125a.
This claim fails squarely within the ambit of the Petaway decision. " [In 2011, the RRE credit] legislation was enacted in conjunction with a revision to § 54-125a(b) regarding parole, which provided in relevant part that a person convicted of a violent crime would not be eligible for parole consideration until such person has served not less than eighty-five percent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18-98e . . . General Statutes (Rev. to 2013) § 54-125a(b) . . .
" The 2011 revision to § 54-125a(b), however, was short lived. In 2013, the General Assembly again amended § 54-125a(b). The 2013 enactment provided that a violent offender, such as the petitioner, must serve 85 percent of the definite sentence imposed before becoming eligible for parole. See General Statutes § 54-125a(b). The effect of this change is that the credits that an inmate may earn toward his sentence no longer operate to advance that person's earliest parole eligibility date." (Emphasis in original; internal quotation marks omitted.) Petaway v. Commissioner of Correction, supra, 160 Conn.App. 730. The Petaway court indicated that it was unpersuaded that " the change in legislation between 2011 and 2013 that the petitioner alleges violates his constitutional protection against ex post facto legislation." Id., 731. The court found that " [s]uch a claim . . . does not implicate the ex post facto prohibition because the changes that occurred between 2011 and 2013 have no bearing on the punishment to which the petitioner's criminal conduct exposed him when he committed a robbery in 2003." Id.
As in Petaway, the petitioner's offending conduct occurred prior to the enactment of the RRE legislation, and therefore no discretionary time credit program existed when he committed his crimes. As a result, he cannot legitimately claim that he has been harmed by ex post facto legislation. The legislative changes that occurred between 2011 and 2013 have no bearing on the punishment to which the petitioner's criminal conduct exposed him when he committed manslaughter in 1998. See Petaway v. Commissioner of Correction, supra, 160 Conn.App. 731. Therefore, the court also lacks subject matter jurisdiction over count three of the petition, and it is dismissed pursuant to Practice Book § 23-29(1).
D
Additionally, the court 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) (noting that it is " 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 expertise, comprehensive planning, and the commitment of resources, all 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." (Internal quotation marks omitted.) Washington v. Meachum, 238 Conn. 692, 733-34, 680 A.2d 262 (1996).
General Statutes § 18-98e gives the respondent and the respondent's designee the discretionary authority to use RRE credits to administer the inmate population. Any credits such as those awarded by § 18-98e and other statutes are 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 petitioner's 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 claims must be dismissed on the ground that there is no habeas corpus relief that can be granted. Practice Book § 23-29(2).
III
CONCLUSION
Judgment shall enter dismissing all three counts of the petition for a writ of habeas corpus because the court lacks jurisdiction over the claims, and as to count one there is also no relief that the court can grant. Practice Book § 23-29(1) and (2).
It is so ordered.