Perez v. Commissioner of Correction , 326 Conn. 357 ( 2017 )

 DOMINIC PEREZ v. COMMISSIONER
OF CORRECTION
(SC 19855)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa,
Robinson and Vertefeuille, Js.*
Syllabus
Pursuant to statute ([Rev. to 2009] § 54-125a [b] [2], as amended by P.A. 10-
36), a person convicted of an offense involving the use of physical force
against another person shall be ineligible for parole until he has served
not less than 85 percent of the definite sentence imposed.
Pursuant further to statute ([Rev. to 2009] § 54-125a [e]), the Board of
Pardons and Paroles shall hold a hearing to determine the suitability
for parole of any person whose eligibility for such parole is subject to
the provisions of § 54-125a (b) (2) upon his completion of 85 percent
of his definite or aggregate sentence.
The petitioner, who had been convicted of manslaughter in the first degree
and carrying a pistol without a permit for conduct occurring in 2010,
filed a petition for a writ of habeas corpus, claiming, inter alia, that
amendments in 2013 (P.A. 13-3 and P.A. 13-247) to § 54-125a violated
his constitutional rights to due process and equal protection, the ex
post facto clause of the United States constitution, and the separation
of powers doctrine. In 2011, while the petitioner’s criminal case was
pending, the legislature enacted a statute (§ 18-98e) pursuant to which
the respondent, the Commissioner of Correction, was vested with discre-
tion to award risk reduction credit toward the reduction of an inmate’s
sentence, up to five days per month, for positive conduct. The legislature
also amended § 54-125a (b) (2) and (e) in 2011 to provide that risk
reduction credit earned under § 18-98e was to be applied to an inmate’s
definite sentence to advance the inmate’s end of sentence date, and
rendered that inmate eligible for a parole hearing after he had served
85 percent of that reduced sentence. After the petitioner had been
sentenced, the legislature again amended § 54-125a in 2013, eliminating
the language that permitted the parole eligibility date to be advanced
by the application of earned risk reduction credit, and eliminating the
requirement that the Board of Pardons and Paroles ‘‘shall’’ hold a parole
hearing after an inmate has completed 85 percent of his sentence. Under
the 2013 amendments, which became effective July 1, 2013, any risk
reduction credit earned by an inmate, and not subsequently revoked by
the respondent, would still be applied to reduce an inmate’s sentence
but would not be applied to advance his parole eligibility date, and,
once that eligibility date arises, the parole board may decline to hold a
hearing. In his habeas petition, the petitioner challenged the application
of the 2013 amendments to the calculation of his parole eligibility date
and to his right to a hearing on his suitability for parole, alleging that
he had already been awarded risk reduction credit by the respondent,
and that, prior to the 2013 amendments, the respondent had applied
that credit to advance his parole eligibility date. The habeas court granted
the respondent’s motion to dismiss all counts of the habeas petition,
concluding that all of the petitioner’s claims failed given the speculative
nature of earned risk reduction credit and the respondent’s discretion
to award and revoke such credit, and concluding that, because the
petition failed to state a claim on which habeas relief could be granted,
the court lacked subject matter jurisdiction over the petition. The habeas
court thereafter rendered judgment dismissing the petition, from which
the petitioner, on the granting of certification, appealed. Held that the
habeas court properly dismissed the petition for a writ of habeas corpus,
this court having determined that, although the habeas court improperly
dismissed many of the petitioner’s claims solely on the basis of the
speculative nature of earned risk reduction credit, the habeas court
lacked jurisdiction over all of the petitioner’s claims:
1. The petitioner could not prevail on his claims that the 2013 amendments
to § 54-125a that eliminated the application of prior earned risk reduction
credit to advance his parole eligibility date and the mandate that a parole
hearing be held violated his right to due process under the federal and
state constitutions and his right to personal liberty pursuant to the state
constitution: the petitioner failed to establish a vested liberty interest
in either the granting of parole, the timing of when parole is granted or
the procedure by which the parole board exercises its discretion to
award or deny parole, as the granting of parole is within the discretion
of the parole board, and the petitioner also failed to establish a vested
right in the application of the risk reduction credit previously granted
to advance his parole eligibility date, as that credit was subject to
revocation at the discretion of the respondent for good cause; moreover,
the monthly parole eligibility calculation that the respondent provided
to the petitioner was simply an informational tool to allow the respon-
dent and the petitioner to estimate his parole eligibility date, provided
the respondent did not rescind any of the earned credit.
2. The petitioner’s claim that the 2013 amendments to the parole hearing
and eligibility provisions of § 54-125a violated the ex post facto clause
of the federal constitution was not cognizable, as the parole hearing
provision did not increase the petitioner’s overall sentence, alter his
initial parole eligibility date, change the standard used by the parole
board to determine parole suitability, or increase the punishment
imposed for the petitioner’s offense, and the parole eligibility amend-
ment restored the parole eligibility calculation to 85 percent of the
petitioner’s definite sentence, thereby returning the petitioner to the
position he was in at the time of his offense.
3. This court found unavailing the petitioner’s claim that the parole board’s
established policy of not awarding parole to any inmate whose parole
eligibility date was within six months of the date he would have com-
pleted serving his definite sentence violated the doctrine of separation
of powers in that such a policy converted a legislatively determined
parole eligible offense into an offense that, by virtue of executive action,
was rendered parole ineligible: the petitioner failed to allege that the
determination of parole eligibility was a power solely vested in the
legislature and may not be delegated to the executive branch, and the
circumstances giving rise to such a constitutional defect were extraordi-
narily speculative because, even if the petitioner earned the maximum
possible risk reduction credit, the respondent was vested with discretion
to revoke such credit, and, thus, the claim therefore was premature;
moreover, the petitioner did not address or challenge a 2015 amendment
to § 18-98e (a) that rendered him ineligible to earn any further risk
reduction credit.
4. The petitioner could not be granted habeas relief on his claim that the
2013 amendment to the parole eligibility provision of § 54-125a as applied
to him violated the equal protection clause of the federal constitution
because there was disparate treatment of classes of inmates by the
parole board when that board calculated the parole eligibility dates for
certain inmates who had been granted parole as of July 1, 2013, by
including earned risk reduction credit, but did not include such credit
in the calculation of the parole eligibility date for the petitioner and
other inmates who had not yet been granted parole; even if the two
classes of inmates were similarly situated, the timing of parole eligibility
was not a fundamental right and inmates, or subsets of inmates differenti-
ated only by the timing of when they were considered for parole, are
not a suspect class, and, accordingly, the application of earned risk
reduction credit to parole eligibility based on whether an inmate had
already been granted parole prior to July 1, 2013, did not violate equal
protection when there was a rational basis for such differentiation, that
basis being the parole board’s determination that its decision not to
revoke a grant of parole that had already been awarded supported clarity
in the administration of parole and an understanding that revocation of
parole due to no action on the part of the offender could have a negative
impact on the offender’s rehabilitation and reintroduction into society.
5. The petitioner could not obtain habeas relief on his claim that § 18-98e
facially violates the equal protection clause of the federal constitution
on the ground that it does not permit offenders to earn risk reduction
credit while held in presentence confinement and, as a result, offenders
like the petitioner, who cannot afford bail, do not earn risk reduction
credit for the entire period of their confinement, whereas offenders who
can afford bail are able to benefit from the award of risk reduction
credit during their entire sentence; even if these two classes of offenders
are similarly situated, an inmate has no fundamental right in the opportu-
nity to earn risk reduction credit because such credit is a statutory
creation and is not constitutionally required, the petitioner has not
alleged that, as a result of § 18-98e, he, or other indigent individuals, have
been imprisoned beyond the maximum period authorized by statute, the
class’ status as indigent individuals did not constitute a suspect class, and
there are numerous rational bases for treating presentence confinement
differently under a credit statute, including the different purposes of
presentence confinement and incarceration after sentencing.
6. The petitioner could not be granted habeas relief on his statutory claim
that a proper interpretation of the 2013 amendments to the parole eligibil-
ity and hearing provisions of § 54-125a would limit application of those
provisions prospectively to inmates who were committed to the respon-
dent’s custody to begin serving their sentences on or after July 1, 2013,
that claim having been premature; it was uncertain whether the parole
board would decline to conduct a parole hearing when the petitioner
became eligible for parole, and if the parole board decided to hold a
hearing or if the petitioner did not have any earned risk reduction credit
remaining that would have advanced his parole eligibility date under
the 2011 parole eligibility provision, then retroactive application to the
petitioner of the 2013 amendments would not cause the petitioner to
suffer an actual injury.
Argued April 6—officially released July 25, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Fuger, J., granted the respon-
dent’s motion to dismiss and rendered judgment dis-
missing the petition, from which the petitioner, on the
granting of certification, appealed. Affirmed.
Temmy Ann Miller, assigned counsel, for the appel-
lant (petitioner).
Steven R. Strom, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (respondent).
Opinion
McDONALD, J. This case presents challenges to the
constitutionality of substantive and procedural amend-
ments to General Statutes (Rev. to 2013) § 54-125a,
which governs parole eligibility for persons who
received a definite sentence or aggregate sentence of
more than two years, as applied to an offender who was
sentenced before the amendments took effect. More
specifically, we consider statutory amendments (1)
eliminating earned risk reduction credit from the calcu-
lation of a violent offender’s parole eligibility date, when
such credit was not available at the time the offense
was committed; Public Acts 2013, No. 13-3, § 59 (P.A.
13-3); and (2) altering parole eligibility hearing proce-
dures to allow the Board of Pardons and Paroles to
forgo holding a hearing. Public Acts 2013, No. 13-247,
§ 376 (P.A. 13-247). The petitioner, Dominic Perez,
appeals1 from the judgment of the habeas court dismiss-
ing his petition claiming that application of these 2013
amendments to him violated his state and federal due
process and liberty rights, the ex post facto clause of
the United States constitution, the separation of powers
doctrine, and the equal protection clause of the United
States constitution, and is contrary to the language of
§ 54-125a. The petitioner contends that the habeas court
improperly dismissed his claims on the ground that it
would be speculative whether the statutory changes
would cause any injury to the petitioner because the
award of risk reduction credit by the respondent, the
Commissioner of Correction, is discretionary. We agree
with the petitioner to the extent that the habeas court
improperly dismissed many of the claims raised in the
petition solely on the basis of the ‘‘speculative nature’’
of earned risk reduction credit. Nevertheless, applying
the proper test to each claim raised by the petitioner,
we hold that the habeas court lacked jurisdiction over
the petitioner’s claims. We therefore affirm the judg-
ment of the habeas court dismissing the petition.
I
The following procedural and statutory history is rele-
vant to this appeal. The petitioner committed the
offenses giving rise to his incarceration, which involved
his use of deadly force, in November, 2010. At that time,
the relevant parole eligibility provision of § 54-125a pro-
vided in relevant part: ‘‘A person convicted of . . . an
offense, other than [certain parole ineligible offenses]
where the underlying facts and circumstances of the
offense involve the use, attempted use or threatened
use of physical force against another person shall be
ineligible for parole under subsection (a) of this section
until such person has served not less than eighty-five
per cent of the definite sentence imposed.’’ General
Statutes (Rev. to 2009) § 54-125a (b) (2), as amended
by Public Acts 2010, No. 10-36, § 30. At that time, the
relevant parole hearing provision of § 54-125a provided
that the board ‘‘shall hold a hearing to determine the
suitability for parole release of any person whose eligi-
bility for parole release is subject to the provisions of
subdivision (2) of subsection (b) of this section upon
completion by such person of eighty-five percent of
such person’s definite or aggregate sentence. . . .’’
(Emphasis added.) General Statutes (Rev. to 2009) § 54-
125a (e).
In July, 2011, while the petitioner’s criminal case was
pending before the trial court, General Statutes § 18-
98e2 became effective, pursuant to which the respon-
dent had discretion to award risk reduction credit
toward a reduction of an inmate’s sentence, up to five
days per month, for positive conduct. General Statutes
§ 18-98e (a) and (b). The respondent also was vested
with discretion to revoke such credit, even credit yet
to be earned, for good cause. See General Statutes § 18-
98e (b). At the same time, the legislature amended the
parole eligibility provision to provide: ‘‘A person con-
victed 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 shall be ineligible for parole
under subsection (a) of this section until such person
has served not less than eighty-five per cent of the
definite sentence imposed less any risk reduction
credit earned under the provisions of section 18-98e.’’
(Emphasis added.) General Statutes (Rev. to 2011) § 54-
125a (b) (2), as amended by Public Acts 2011, No. 11-
51, § 25 (P.A. 11-51). The subsection of § 54-125a
addressing parole hearings was similarly amended to
account for earned risk reduction credit. General Stat-
utes (Rev. to 2011) § 54-125 (e), as amended by P.A.
11-51, § 25. Accordingly, under the 2011 amendments,
earned risk reduction credit was to be applied to an
inmate’s definite sentence to advance the inmate’s end
of sentence date, and the parole eligibility date calcu-
lated as a percentage of the sentence would advance
in similar measure.
In May, 2013, the petitioner was sentenced to a total
effective sentence of fifteen years incarceration after
he pleaded guilty to manslaughter in the first degree
with a firearm in violation of General Statutes § 53a-
55a, and carrying a pistol without a permit in violation
of General Statutes (Rev. to 2009) § 29-35 (a), for the
2010 offense. Under the 2011 amendments to § 54-125a
and § 18-98e, any risk reduction credit earned by an
inmate, and not subsequently revoked, would have both
reduced his sentence and rendered him eligible for a
hearing to determine whether he should be granted
parole after he had served 85 percent of that reduced
sentence.
Effective July 1, 2013, the legislature again amended
§ 54-125a. Specifically, with regard to offenses like one
of those of which the petitioner was convicted, the
legislature eliminated the language that permitted the
parole eligibility date to be advanced by the application
of any earned risk reduction credit. See P.A. 13-3. The
legislature also eliminated the requirement that the
board ‘‘shall’’ hold a parole hearing after such inmates
had completed 85 percent of their definite or aggregate
sentences. See P.A. 13-247. Instead, under the revised
statute, the board ‘‘may’’ hold such a hearing, but ‘‘[i]f
a hearing is not held, the board shall document the
specific reasons for not holding a hearing and provide
such reasons to such person. . . .’’ General Statutes
(Supp. 2014) § 54-125a (e). Thus, under the 2013 amend-
ments, any risk reduction credit earned by an inmate,
and not subsequently revoked, would still be applied
to reduce his sentence, but would not be applied to
advance his parole eligibility date. In other words, he
would only be eligible for a hearing to determine
whether he should be granted parole after he had served
85 percent of his original sentence (in the petitioner’s
case, after twelve years and nine months). Moreover,
the board may decline to hold a hearing once that eligi-
bility date arises.
The petitioner thereafter filed his petition for a writ
of habeas corpus challenging the application of the 2013
amendments to the calculation of his parole eligibility
date and to his right to a hearing on his suitability
for parole. In the operative thirteen count petition, the
petitioner alleged that he already had been awarded
risk reduction credit by the respondent and that prior
to July 1, 2013, the respondent had applied that credit
to advance the petitioner’s parole eligibility date. The
petitioner challenged the application of these amend-
ments to him by the respondent3 as a violation of his
constitutional rights under the federal and/or state con-
stitution—specifically, claims related to due process,
liberty interests, the ex post facto clause, the separation
of powers doctrine and the equal protection clause—
and as contrary to the statutory text. Subsequently,
the respondent filed a motion to dismiss all counts of
the petition.
After a hearing, the habeas court granted the respon-
dent’s motion to dismiss the petition. The habeas court’s
decision did not analyze each claim separately. Rather,
it concluded that all of the petitioner’s claims failed on
the same basis, namely, that ‘‘[g]iven the speculative
nature of [earned risk reduction credit], and the
[respondent’s] discretion to both award and take [it]
away as an administrative tool to manage the inmate
population, [the habeas] court . . . lacks subject mat-
ter jurisdiction over the . . . petition and . . . [the
petition] fails to state a claim upon which habeas corpus
relief can be granted.’’ This appeal followed.
II
The petitioner asserts that the habeas court improp-
erly dismissed all of his claims based on lack of justicia-
bility, a conclusion that he contends the habeas court
would not have reached had it properly analyzed each
claim separately under the appropriate respective juris-
dictional test. The petitioner argues that the habeas
court improperly interpreted his claims as dependent
on the future award of risk reduction credit to the
petitioner, and, therefore, too speculative a basis for
habeas relief. He contends that the claims challenging
the hearing provision are not dependent on whether
earned risk reduction credit is applied to determine his
parole eligibility date. He further asserts that the claims
challenging the parole eligibility provision are not
dependent on any future award of risk reduction credit
because he already had been awarded credit, which the
respondent used to calculate his new parole eligibility
date prior to July 1, 2013.
The respondent asserts that the habeas court prop-
erly dismissed all of the petitioner’s claims, even though
it did not address each claim separately in its analysis,
because the claims were so clearly without a legal or
factual basis that no analysis was required. The respon-
dent further asserts that even if the reason stated by
the habeas court for dismissing the entire petition was
improper, the court nevertheless lacked jurisdiction
over each claim, and this court may affirm the habeas
court’s granting of the respondent’s motion to dismiss
on alternative grounds.4 We conclude that, under a
proper analysis of the individual claims, the habeas
court properly dismissed the petition in its entirety.
Practice Book § 23-29 provides: ‘‘The judicial author-
ity 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; (3) the petition presents the same ground
as a prior petition previously denied and fails to state
new facts or to proffer new evidence not reasonably
available at the time of the prior petition; (4) the claims
asserted in the petition are moot or premature; (5) any
other legally sufficient ground for dismissal of the peti-
tion exists.’’
‘‘[I]n order to invoke successfully the jurisdiction of
the habeas court, a petitioner must allege an interest
sufficient to give rise to habeas relief.’’ (Internal quota-
tion marks omitted.) Baker v. Commissioner of Correc-
tion, 281 Conn. 241, 251, 914 A.2d 1034 (2007). ‘‘We
have long held that because [a] determination regarding
a trial court’s subject matter jurisdiction is a question
of law, our review is plenary.’’ (Internal quotation marks
omitted.) Ajadi v. Commissioner of Correction, 280
Conn. 514, 532, 911 A.2d 712 (2006). Likewise,
‘‘[w]hether a habeas court properly dismissed a petition
pursuant to Practice Book § 23-29 (2), on the ground
that it ‘fails to state a claim upon which habeas corpus
relief can be granted,’ presents a question of law over
which our review is plenary.’’ Kaddah v. Commissioner
of Correction, 324 Conn. 548, 559, 153 A.3d 1233 (2017).
As reflected in the analysis that follows, we conclude
that the habeas court improperly based its dismissal of
all of the petitioner’s claims, challenging the effect of
the 2013 amendments, solely on the basis of the ‘‘specu-
lative nature’’ of the future award of risk reduction
credit. Insofar as the habeas court intended ‘‘specula-
tive nature’’ to encompass both the discretionary nature
of the risk reduction credit scheme and the prematurity
of any claim based on the future award of such credit,
we agree that those aspects of earned risk reduction
credit are relevant to some of the petitioner’s claims
challenging the parole eligibility provision. The peti-
tioner has raised a variety of claims challenging the
parole eligibility and hearing provisions, however, not
all of which implicate the discretionary or prospective
nature of earned risk reduction credit. See Baker v.
Commissioner of Correction, supra, 281 Conn. 260–61
(comparing jurisdictional requirements for ex post
facto claim with due process claim). Nonetheless, if
the habeas court reached the correct decision, but on
mistaken grounds, this court will sustain the habeas
court’s action if proper grounds exist to support it.
Perez-Dickson v. Bridgeport, 304 Conn. 483, 540, 43
A.3d 69 (2012) (Palmer, J., concurring). Therefore, we
conduct a plenary review to determine if the habeas
court lacked jurisdiction over each claim raised in the
petition, and we analyze the petitioner’s claims together
only insofar as they turn on the same legal framework.
A
The petitioner points to the fact that, prior to the
effective date of the 2013 amendments, he had already
earned risk reduction credit. In reliance solely on that
‘‘earned’’ credit, the petitioner claims that the 2013
amendment eliminating the application of that credit
to advance his parole eligibility date5 violates his right
to due process under the federal and state constitutions
and his right to personal liberty pursuant to article first,
§ 9, of the Connecticut constitution.6 See P.A. 13-3. The
petitioner similarly claims that the 2013 amendment
eliminating the parole hearing mandate violates his right
to due process under the federal and state constitutions
and his right to personal liberty pursuant to article first,
§ 9, of the Connecticut constitution. See P.A. 13-247.
We disagree with these claims.
An essential predicate to all of these claims is a cogni-
zable liberty interest. When a petitioner seeks habeas
relief on the basis of a purported liberty interest in
parole eligibility, he is invoking ‘‘a liberty interest pro-
tected by the [d]ue [p]rocess [c]lause of the [f]ourteenth
amendment which may not be terminated absent appro-
priate due process safeguards.’’ (Footnote omitted.)
Baker v. Commissioner of Correction, supra, 281 Conn.
252. ‘‘In order . . . to qualify as a constitutionally pro-
tected liberty, [however] the interest must be one that
is assured either by statute, judicial decree, or regula-
tion.’’ (Emphasis in original; internal quotation marks
omitted.) Id. ‘‘Evaluating whether a right has vested is
important for claims under the . . . [d]ue [p]rocess
[c]lause, which solely protect[s] pre-existing entitle-
ments.’’ (Internal quotation marks omitted.) Id., 261.
‘‘The [United States] Supreme Court has recognized
that, ‘[t]here is no constitutional or inherent right of a
convicted person to be conditionally released before
the expiration of a valid sentence. . . . A state may
. . . establish a parole system, but it has no duty to do
so.’ . . . Greenholtz v. Inmates of the Nebraska
Penal & Correctional Complex, 442 U.S. 1, 7, 99 S. Ct.
2100, 60 L. Ed. 2d 668 (1979). Accordingly, whether and
to what extent a state creates a liberty interest in parole
by state statute is entirely at the discretion of the state.’’
Baker v. Commissioner of Correction, supra, 281
Conn. 253.
This court previously has held that ‘‘parole eligibility
under § 54-125a does not constitute a cognizable liberty
interest sufficient to invoke habeas jurisdiction.’’ Id.,
261–62. In reaching this conclusion, we noted that ‘‘the
decision to grant parole is entirely within the discretion
of the board. Indeed, this court squarely has held that,
‘[t]here is no statutory requirement that the panel [of
the board] actually consider the eligibility of any inmate
for parole, the statute does not vest an inmate with
the right to demand parole, and there is no statutory
provision which even permits an inmate to apply for
parole. . . . For even if the inmate has complied with
the minimum requirements of [the parole statute], the
statute does not require the board to determine his
eligibility for parole.’ . . . Taylor v. Robinson, [171
Conn. 691, 697–98, 372 A.2d 102 (1976)].’’7 Baker v.
Commissioner of Correction, supra, 281 Conn. 257. We
further noted that ‘‘the parole eligibility statute is not
within the terms of the sentence imposed.’’ (Internal
quotation marks omitted.) Id., 260.
In the present case, neither the substantive (parole
eligibility calculation) nor the procedural (hearing)
changes under the 2013 amendments altered the funda-
mental fact that the determination whether to grant an
inmate parole is entirely at the discretion of the board.
It follows that if an inmate has no vested liberty interest
in the granting of parole, then the timing of when the
board could, in its discretion, grant parole does not rise
to the level of a vested liberty interest either. The lack
of a vested interest giving rise to a due process claim
is further compounded by the fact that under the provi-
sions effective in 2011; P.A. 11-51; the award of risk
reduction credit itself is at the discretion of the
respondent.
With respect to the risk reduction credit previously
granted to the petitioner, he overlooks the fact that
such credit is not vested in him because it could be
rescinded by the respondent at any time in the respon-
dent’s discretion for good cause during the petitioner’s
period of incarceration. The petitioner, in his brief, dis-
putes that the award or revocation of risk reduction
credit is wholly discretionary, but does not provide any
analysis to support this assertion, instead claiming that
the scope of the respondent’s discretion is not neces-
sary to resolve this motion to dismiss and would be
addressed in a trial on the merits. The petitioner’s posi-
tion, however, is manifestly contradicted by the plain
language of § 18-98e (a), which provides that an inmate
may be eligible to earn risk reduction credit ‘‘at the
discretion of the [respondent] for conduct as provided
in subsection (b) of this section,’’ and § 18-98e (b) (2),
which provides that ‘‘the [respondent] . . . may, in his
or her discretion, cause the loss of all or a portion of
such earned risk reduction credit for any act of miscon-
duct or insubordination or refusal to conform to recom-
mended programs or activities or institutional rules
occurring at any time during the service of the sentence
or for other good cause.’’ Although the legislature has
provided guidance to the respondent as to how to exer-
cise his discretion, the respondent still has broad discre-
tion to award or revoke risk reduction credit. As such,
the statute does not support an expectation that an
inmate will automatically earn risk reduction credit or
will necessarily retain such credit once it has been
awarded.
The petitioner further relies on the monthly calcula-
tion of his parole eligibility date that he purportedly
receives from the respondent, which included his
earned risk reduction credit prior to July 1, 2013, as
evidence that he has a vested interest in continuing to
have that earned risk reduction credit reflected in his
parole eligibility date. See General Statutes § 18-98e (a)
(inmate is ‘‘eligible to earn risk reduction credit toward
a reduction of such person’s sentence, in an amount
not to exceed five days per month’’). The petitioner
misapprehends the significance of the respondent’s
monthly parole eligibility date calculation. Under the
scheme even prior to 2013, because the respondent
could have rescinded any or all of that earned credit
in his discretion, the monthly parole eligibility date is
nothing more than an estimate of the inmate’s parole
eligibility date. As such, the monthly parole eligibility
date calculation is simply an informational tool to allow
the respondent and an inmate to know at any given
time how close to parole eligibility the inmate would be
if nothing changed. Accordingly, the petitioner lacked a
vested right in the application of the risk reduction
credit previously granted to advance his parole eligibil-
ity date.
Similarly, the pre-2013 language providing that the
board ‘‘shall’’ hold a parole hearing did not alter the
fact that the determination of whether to grant an
inmate parole is entirely at the discretion of the board.
General Statutes (Rev. to 2009) § 54-125a (e). Where,
as here, an inmate has no vested liberty interest in
parole itself, then it follows that the procedure by which
the board exercises its discretion to award or deny the
petitioner parole does not implicate a vested liberty
interest. See Baker v. Commissioner of Correction,
supra, 281 Conn. 257 (‘‘[T]here is no statutory require-
ment that the [board] actually consider the eligibility
of any inmate for parole, the statute does not vest an
inmate with the right to demand parole, and there is
no statutory provision [that] even permits an inmate to
apply for parole. . . . For even if the inmate has com-
plied with the minimum requirements of [the parole
statute], the statute does not require the board to deter-
mine his eligibility for parole.’’ [Internal quotation
marks omitted.]). Therefore, the habeas court lacked
jurisdiction over the petitioner’s due process and state
liberty interest claims.
B
The petitioner also claims that the retroactive appli-
cation of the 2013 amendments to him, when he commit-
ted his offense and was sentenced prior to the
amendments’ effective date, violates the ex post facto
clause of the United States constitution. Specifically,
he points to the fact that the elimination of earned
risk reduction credit from the calculation of his parole
eligibility date will require him to serve a longer portion
of his sentence before he may be considered for parole,
and, even then, the elimination of a mandatory hearing
upon his parole eligibility date will result in a significant
risk that he will be subject to a longer period of incarcer-
ation than under the mandatory hearing provision.
We disagree.
‘‘A law may be considered to violate the ex post
facto clause if it punishes as a crime an act previously
committed, which was innocent when done; which
makes more burdensome the punishment for a crime,
after its commission, or which deprives one charged
with [a] crime of any defense available according to
law at the time when the act was committed . . . .’’
(Internal quotation marks omitted.) State v. Banks, 321
Conn. 821, 844–45, 146 A.3d 1 (2016). The petitioner’s
claims in the present case implicate the second aspect
of the ex post facto clause.
In contrast to a claim grounded in the due process
clause, ‘‘[t]he presence or absence of an affirmative,
enforceable right is not relevant . . . to the ex post
facto prohibition, which forbids the imposition of pun-
ishment more severe than the punishment assigned by
law when the act to be punished has occurred. Critical
to relief under the [e]x [p]ost [f]acto [c]lause 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 [c]lause 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 Correc-
tion, 258 Conn. 804, 817, 786 A.2d 1091 (2002); see also
State v. Banks, supra, 321 Conn. 845 (‘‘[i]n order to
run awry of the ex post facto clause, a law must be
retrospective—that is, it must apply to events occurring
before its enactment—and it must disadvantage the
offender affected by it’’ [internal quotation marks
omitted]).
‘‘[T]he 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, there-
fore, 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.’’ (Footnote omitted.) Johnson v.
Commissioner of Correction, supra, 258 Conn. 818.
We begin with the petitioner’s challenge to the retro-
active application of the 2013 parole hearing provision,
P.A. 13-247. As we indicated in part I of this opinion,
the statute in effect when the petitioner committed his
offense stated that the board shall conduct a hearing
when a person has completed 85 percent of his total
effective sentence. General Statutes (Rev. to 2009) § 54-
125a (e). The 2013 amendment provides that the board
may conduct a hearing at that time, but requires that,
in the event that the board declines to hold a hearing,
it must document the specific reasons for not doing so
and provide such reasons to the offender. See P.A. 13-
247. Therefore, under both the pre-2013 and post-2013
scheme, the board could not release an offender on
parole without having conducted a hearing.8
Our conclusion that the 2013 parole hearing provision
did not violate the ex post facto clause is guided by the
United States Supreme Court’s decision in California
Dept. of Corrections v. Morales, 514 U.S. 499, 115 S. Ct.
1597, 131 L. Ed. 2d 588 (1995). In that case, the court
held that a change in the frequency of parole hearings
for certain offenders did not constitute an ex post facto
violation. Id., 510, 514. Under the statute in place at the
time of that offender’s crime, an offender was entitled
to an initial parole hearing upon his parole eligibility
date, and, if denied parole, he was thereafter entitled
to annual hearings. Id., 503. The legislature amended
the statute to provide that, after the initial hearing,
the parole board could elect to wait three years for a
subsequent hearing if it determined at the initial hear-
ing, or at any hearing thereafter, that the offender was
unlikely to become suitable for parole within three
years. Id. In reaching its conclusion that retroactive
application of this change was permissible, the court
explained that ‘‘the focus of the ex post facto inquiry
is not on whether a legislative change produces some
ambiguous sort of ‘disadvantage,’ nor . . . on whether
an amendment affects a prisoner’s ‘opportunity to take
advantage of provisions for early release’ . . . but on
whether any such change alters the definition of crimi-
nal conduct or increases the penalty by which a crime
is punishable.’’ (Citation omitted; emphasis omitted.)
Id., 506–507 n.3; see also Garner v. Jones, 529 U.S. 244,
251–52, 120 S. Ct. 1362, 146 L. Ed. 2d 236 (2000) (noting
that ex post facto clause must not be used as tool to
micromanage legislative adjustments to parole proce-
dures and is only violated when retroactive application
of procedural changes creates significant risk of
increased punishment). The court further explained
that ‘‘[i]f a delay in parole hearings raises ex post facto
concerns, it is because that delay effectively increases
a prisoner’s term of confinement, and not because the
hearing itself has independent constitutional signifi-
cance.’’ California Dept. of Corrections v. Morales,
supra, 509 n.4. The court noted that the amended provi-
sion at issue did not alter the offender’s parole eligibility
date or otherwise increase his sentence. Id., 507. The
court also noted that the board was required to hold
the initial hearing and make findings before delaying
the next hearing for three years. Id., 511.
In the present case, as in Morales, the challenged
parole hearing provision does not increase the petition-
er’s overall sentence, alter his initial parole eligibility
date, or change the standard used by the board to deter-
mine parole suitability. Although the board is no longer
required to provide an initial hearing, it must document
its reasons if it declines to do so. Because the parole
hearing provision does not alter the calculation of when
an inmate is eligible for parole, and because the board
must still consider the inmate’s parole suitability at that
time, the elimination of a mandatory hearing in the
2013 parole hearing provision does not increase the
punishment imposed for the petitioner’s offense. There-
fore, the habeas court lacked jurisdiction to consider
the petitioner’s ex post facto claim concerning the
parole hearing provision.
We next turn to the petitioner’s challenge to the 2013
amendment to the parole eligibility provision, P.A. 13-
3. As noted in part I of this opinion, when the petitioner
committed his offense in 2010, a violent offender for
whom parole was available would become eligible for
parole after he had served 85 percent of his definite
sentence. See General Statutes (Rev. to 2009) § 54-125a
(e). Although a short-lived 2011 amendment altered this
calculation to include earned risk reduction credit; P.A.
11-51, § 25; the challenged 2013 amendment restored
the parole eligibility calculation to 85 percent of the
violent offender’s definite sentence. Far from creating
a genuine risk that the petitioner would be incarcerated
for a longer period of time, the 2013 parole eligibility
provision simply returned the petitioner to the position
that he was in at the time of his offense.9
The petitioner contends, however, that, in conducting
the ex post facto inquiry, this court is not limited to
comparing the challenged statute with the statute in
effect at the time the offense was committed. Rather,
the petitioner contends that Lynce v. Mathis, 519 U.S.
433, 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997), supports the
proposition that a court also may consider the statute in
effect at the time of his plea and sentencing. We disagree
that Lynce supports this proposition.
In Lynce, the Supreme Court held that the habeas
court had jurisdiction to consider a petitioner’s claim
that a Florida statute eliminating good time credit,
which resulted in the revocation of the petitioner’s
parole based on such credit and his rearrest, violated
the ex post facto clause. Id., 438–39, 449. At the time
of the commission of the offense at issue in Lynce,
mandatory good time credit was issued to eligible
inmates when the inmate population exceeded a spe-
cific percentage of prison capacity. Id., 437–39. Prior
to the petitioner’s sentencing, an amendment took
effect that decreased the percentage of prisoner capac-
ity that triggered the mandatory issuance of credit. Id.,
438. The petitioner was released on parole on the basis
of the various credits issued to him. Id. Thereafter, the
legislature amended the statute to eliminate altogether
credit based on prison population for certain classes
of inmates. Id., 438–39. The petitioner’s credits were
revoked and he was rearrested. Id., 439. Notably, in
concluding that the habeas court had jurisdiction over
the petitioner’s ex post facto claim, the court relied on
the fact that the provision enacted after the petitioner
committed his criminal offense, and that resulted in his
initial release on parole, was ‘‘essentially the same’’ as
the provision in effect at the time of his offense, differing
only in the percentage of prison capacity that triggered
the award, and, therefore, the fact that the petitioner
was awarded credit based on the statute in effect at
the time of his sentencing, rather than the statute in
effect at the time of his offense, ‘‘[did] not affect the
petitioner’s core ex post facto claim.’’ Id., 448–49. The
court emphasized, however, ‘‘that although the differ-
ences in the statutes did not affect [the] petitioner’s
central entitlement to [credit], they may have affected
the precise amount of [credit] he received.’’ Id., 449.
Because it was unclear from the record whether, and
to what extent, the petitioner would have been issued
credit under the statute in effect at the time of the
commission of his crime—the focal point of the ex post
facto inquiry—the court remanded the case for further
proceedings to determine the merits of the ex post facto
claim. Id. The court pointed out that, if the conditions
had not occurred that would have triggered the issuance
of credit under that statute, then ‘‘there is force to the
argument that [revocation of credit earned under the
statute in effect at the time of sentencing] did not violate
the [e]x [p]ost [f]acto [c]lause.’’ Id. The mandatory
nature of the good time credit scheme made it possible
for the habeas court to determine on remand whether
the petitioner would have received credit had the
scheme not been changed from the time of his offense.
Thus, the court looked past the statute in effect at
the time the petitioner was sentenced and pursuant to
which he had been awarded credit, and instead com-
pared the statute in effect at the time of the criminal
offense to the challenged statute repealing the credit.
Accordingly, Lynce supports the traditional
approach, comparing the statute in effect at the time
of the petitioner’s offense to the challenged statute, not
the one advocated by the petitioner in the present case.
Under that approach, the petitioner does not state a
cognizable ex post facto claim.
C
The petitioner also claims that the board’s application
of the 2013 parole eligibility provision violates the doc-
trine of separation of powers by converting a legisla-
tively determined parole eligible offense into an offense
that, by virtue of executive action, is rendered parole
ineligible. Specifically, the petition alleges that the
board has an established policy of not awarding parole
to any inmate whose parole eligibility date is within
six months of the date on which the inmate will have
completed serving his definite sentence. He further
alleges that if he continues to earn ‘‘all possible’’ risk
reduction credit—five days per month, every month—
his sentence will be reduced to within six months of his
parole eligibility date under the 2013 parole eligibility
provision—85 percent of his original sentence. As such,
he contends that the board will not consider him for
parole, even though the legislature has deemed his
offense parole eligible, in violation of the separation of
powers doctrine.
Putting aside the significant problem that the peti-
tioner has failed to allege that the determination of
parole eligibility is a power solely vested in the legisla-
ture and may not be delegated to the executive branch,
an essential element of a viable separation of powers
claim; see generally Massameno v. Statewide Griev-
ance Committee, 234 Conn. 539, 552–53, 663 A.2d 317
(1995); he ignores the fact that the circumstance that
he claims purportedly would give rise to such a constitu-
tional defect is extraordinarily speculative. He not only
would have to earn the maximum possible credit, but
would also have to have had none of the credit revoked,
both acts wholly left to the respondent’s discretion.
Even if such a circumstance could arise, any claim
based on such facts would be premature. Further, the
petitioner has ignored the fact that a 2015 amendment to
§ 18-98e (a), which he has not challenged in his petition,
rendered him ineligible to earn any risk reduction credit
as of October 1, 2015. See Public Acts 2015, No. 15-216,
§ 9. Accordingly, for a host of reasons, the habeas court
properly concluded that it lacked subject matter juris-
diction over this claim. See Janulawicz v. Commis-
sioner of Correction, 310 Conn. 265, 270–71, 77 A.3d
113 (2013).
D
The petitioner raises two equal protection chal-
lenges—an as applied challenge to the parole eligibility
provision of § 54-125a and a facial challenge to § 18-
98e.10 First, he contends that the 2013 parole eligibility
provision as applied to him violates the equal protection
clause of the United States constitution because violent
offenders who were granted parole between the effec-
tive dates of the 2011 and 2013 amendments (from July
1, 2011 through June 30, 2013), but who had not yet
been physically released on parole until July 1, 2013
or later, benefited from the inclusion of earned risk
reduction credit in the calculation of their parole eligi-
bility dates, whereas, violent offenders who were not
yet granted parole as of July 1, 2013, including the
petitioner, will not benefit from the inclusion of such
credit in the calculation of their parole eligibility dates.
Put differently, he contends that there is disparate treat-
ment because the board does not eliminate the inclusion
of earned risk reduction credit from the parole eligibility
calculation for the first class and in turn revoke their
grant of parole calculated on the basis of that credit.
Second, he contends that § 18-98e facially violates equal
protection because it does not permit offenders to earn
risk reduction credit while held in presentence confine-
ment, as was the petitioner. As a result, offenders like
the petitioner who cannot afford bail do not earn risk
reduction credit for the entire period of their confine-
ment, whereas offenders who can afford bail are able
to benefit from the award of risk reduction credit during
their entire sentence. We are not persuaded that the
petitioner has stated a claim on which habeas relief
may be granted.
‘‘[T]o implicate the equal protection [clause] . . . it
is necessary that the state statute . . . in question,
either on its face or in practice, treat persons standing
in the same relation to it differently. . . . [Conse-
quently], the analytical predicate [of consideration of
an equal protection claim] is a determination of who
are the persons similarly situated.’’ (Internal quotation
marks omitted.) Hammond v. Commissioner of Correc-
tion, 259 Conn. 855, 877 n.22, 792 A.2d 774 (2002). Hav-
ing determined the persons who are similarly situated,
the court must then establish ‘‘the standard by which
the challenged statute’s constitutional validity will be
determined. 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 gov-
ernment purpose in order to withstand an equal protec-
tion challenge.’’ (Internal quotation marks omitted.)
Harris v. Commissioner of Correction, 271 Conn. 808,
831, 860 A.2d 715 (2004).
This court concluded in Harris that application of
presentence confinement credit to all sentences
imposed on a single day in a single location, but not to
all sentences imposed on separate dates or locations,
does not violate equal protection. Id., 836. The court
determined that presentence confinement credit, as a
matter of legislative grace, is not a fundamental right,
persons who receive concurrent sentences on different
dates are not a suspect class, and there was a rational
basis to treat such individuals differently from persons
sentenced to concurrent sentences on a single date.
Id., 833–34; see also Hammond v. Commissioner of
Correction, supra, 259 Conn. 877–89 (presentence con-
finement credit is not fundamental right and persons
detained in another state while contesting extradition
are not suspect class). The court relied on settled law
holding that prisoners do not constitute a suspect class.
Harris v. Commissioner of Correction, supra, 836; see
also Johnson v. Daley, 339 F.3d 582, 585–86 (7th Cir.
2003), cert. denied, 541 U.S. 935, 124 S. Ct. 1654, 158
L. Ed. 2d 354 (2004); Benjamin v. Jacobson, 172 F.3d
144, 152 (2d Cir.), cert. denied, 528 U.S. 824, 120 S. Ct.
72, 145 L. Ed. 2d 61 (1999); Tucker v. Branker, 142 F.3d
1294, 1300 (D.C. Cir. 1998). Notably, the court rejected
a claim that the respondent’s method of applying pre-
sentence confinement credit violated equal protection
on the basis of the petitioner’s indigency. Harris v.
Commissioner of Correction, supra, 836–41. The court
held that indigent persons who cannot afford bail were
not a suspect class under the scheme because applica-
tion of the statute did not enable the state to imprison
a defendant beyond the maximum period authorized
by statute because of his indigency. Id., 838–40 (poverty
itself is not suspect class; classification based on pov-
erty can become suspect class only if statutory scheme
enables state to imprison defendant beyond maximum
period authorized by statute because of indigency).
Turning to the petitioner’s challenge to the parole
eligibility provision in the present case, even if we
assume that the two classes are similarly situated, the
petitioner’s claim would fail. See State v. Wright, 246
Conn. 132, 143, 716 A.2d 870 (1998) (court has frequently
assumed, for equal protection purposes, that categories
of defendants are similarly situated with respect to chal-
lenged statute). Like the presentence confinement
credit at issue in Harris, the award and application of
risk reduction credit is not constitutionally required
and is a matter of legislative grace. Further, the timing
of parole eligibility itself is not a fundamental right. See
Baker v. Commissioner of Correction, supra, 281 Conn.
253 (‘‘[t]here is no constitutional or inherent right of a
convicted person to be conditionally released before
the expiration of a valid sentence’’ [internal quotation
marks omitted]); see also McGinnis v. Royster, 410
U.S. 263, 270, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973)
(‘‘determination of an optimal time for parole eligibility
elicit[s] multiple legislative classifications and group-
ings, which . . . require only some rational basis to
sustain them’’). Therefore, it follows that application
of earned risk reduction credit to advance an inmate’s
parole eligibility date does not impinge on a fundamen-
tal right. As inmates are not a suspect class; Harris v.
Commissioner of Correction, supra, 271 Conn. 833; it
follows that subsets of inmates differentiated only by
the timing of when they were considered for parole are
also not a suspect class. The petitioner has not alleged
any other basis for considering as a suspect class those
inmates who were awarded risk reduction credit prior
to July 1, 2013, but had not yet been granted parole. In
the absence of a fundamental right or suspect class,
the application of earned risk reduction credit to parole
eligibility based on whether an inmate had already been
granted parole prior to July 1, 2013, does not violate
equal protection if there is a rational basis for such
differentiation. The determination by the board that it
would not revoke a grant of parole that had already
been awarded supports clarity in the administration of
parole and also an understanding that revocation of
parole due to no action on the part of the offender
could have a negative impact on the offender’s rehabili-
tation and reintroduction into society. Therefore, the
petitioner has failed to state a claim for which habeas
relief may be granted with regard to the parole eligibil-
ity provision.
With respect to the petitioner’s claim of disparate
treatment under § 18-98e, even if we assume that indi-
gent individuals who cannot afford bail and are held
in presentence confinement prior to sentencing and
nonindigent individuals who are not held in presentence
confinement prior to sentencing are similarly situated,
the petitioner’s claim is without merit. As previously
noted, an inmate has no fundamental right in the oppor-
tunity to earn risk reduction credit because such credit
is a creature of statute and not constitutionally required.
The petitioner has not alleged that the earned risk
reduction credit statute has caused him, or other indi-
gent individuals, to be imprisoned beyond the maximum
period authorized by statute. Therefore, the class’ status
as indigent individuals does not constitute a suspect
class. In the absence of a fundamental right or a suspect
class, the exclusion of indigent individuals held in pre-
sentence confinement from the earned risk reduction
credit scheme does not violate equal protection if there
is a rational basis for such treatment. In McGinnis v.
Royster, supra, 410 U.S. 264–65, 277, the United States
Supreme Court rejected an equal protection challenge
to a substantially similar New York good time credit
statute that did not permit the award of credit during
presentence confinement. The court identified numer-
ous rational bases for treating presentence confinement
differently under the credit statute, including the vastly
different purposes of presentence confinement and
incarceration after sentencing. Id., 270–73. In the con-
text of the rational bases identified in McGinnis, there-
fore, the petitioner also has failed to state a claim for
which habeas relief may be granted with regard to the
earned risk reduction credit statute.
E
The petition summarily alleges that the respondent’s
construction of the 2013 amendments is contrary to the
language of § 54-125a and the intent of the legislature
without pointing to any particular statutory language
being contravened or identifying the intent of the legis-
lature in enacting either the 2011 or 2013 amendments.
On the basis of the petitioner’s brief to this court, we
understand his claim to be that a proper interpretation
of the 2013 parole eligibility and parole hearing provi-
sions would limit application of those provisions pro-
spectively to inmates who were committed to the
respondent’s custody to begin serving their sentences
on or after July 1, 2013, the effective date of those
provisions.11 In determining whether the habeas court
had jurisdiction over the petitioner’s claim, however,
we are limited to the allegations in the petition. See
Oliphant v. Commissioner of Correction, 274 Conn.
563, 570, 877 A.2d 761 (2005). Limiting our inquiry to
the conclusory allegations in the petition, the petitioner
has failed to allege a statutory application claim upon
which habeas relief could be granted.
Further, even if we assume that the petitioner had
sufficiently alleged the statutory claims he described
in his brief to this court, and that those claims were
claims upon which habeas relief could be granted, the
petitioner’s claims would be premature. ‘‘[A] trial court
must be satisfied that the case before [it] does not
present a hypothetical injury or a claim contingent [on]
some event that has not and indeed may never transpire.
. . . [R]ipeness is a sine qua non of justiciability . . . .’’
(Internal quotation marks omitted.) Janulawicz v.
Commissioner, supra, 310 Conn. 271. It is impossible
to know at this time whether the board will decline to
conduct a hearing upon the petitioner’s parole eligibility
date. As discussed more fully in our analysis of the
petitioner’s due process claims in part II A of this opin-
ion, even though the petitioner had previously been
awarded risk reduction credit, it is uncertain whether
the petitioner will have any earned risk reduction credit
remaining in the future that would have advanced his
parole eligibility date under the 2011 parole eligibility
provision. See General Statutes § 18-98e (b) (authoriz-
ing respondent to revoke credit, and if earned credit is
insufficient, to deduct from future earned credit). If the
board decides to hold a hearing or the petitioner does
not have any earned risk reduction credit remaining,
then retroactive application of the 2013 amendments
would not create an actual injury to the petitioner.
Therefore, the petitioner’s statutory application claims
would be premature in any event.
The judgment is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Eveleigh,
McDonald, Espinosa, Robinson and Vertefeuille. Although Justices Palmer
and Espinosa were not present when the case was argued before the court,
they have read the briefs and appendices, and listened to a recording of the
oral argument prior to participating in this decision.
1
The habeas court granted the petitioner’s petition for certification to
appeal pursuant to General Statutes § 52-470 (g). The petitioner subsequently
appealed from the judgment of the habeas court to the Appellate Court,
and we transferred the appeal to this court pursuant to General Statutes
§ 51-199 (c) and Practice Book § 65-1.
2
General Statutes § 18-98e provides in relevant part: ‘‘(a) Notwithstanding
any provision of the general statutes, any person sentenced to a term of
imprisonment for a crime committed on or after October 1, 1994, and commit-
ted to the custody of the Commissioner of Correction on or after said date
. . . may be eligible to earn risk reduction credit toward a reduction of
such person’s sentence, in an amount not to exceed five days per month,
at the discretion of the Commissioner of Correction for conduct as provided
in subsection (b) of this section occurring on or after April 1, 2006.
‘‘(b) An inmate may earn risk reduction credit for adherence to the inmate’s
offender accountability plan, for participation in eligible programs and activi-
ties, and for good conduct and obedience to institutional rules as designated
by the commissioner, provided (1) good conduct and obedience to institu-
tional rules alone shall not entitle an inmate to such credit, and (2) the
commissioner or the commissioner’s designee may, in his or her discretion,
cause the loss of all or any portion of such earned risk reduction credit for an
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. If an inmate has not
earned sufficient risk reduction credit at the time the commissioner or the
commissioner’s designee orders the loss of all or a portion of earned credit,
such loss shall be deducted from any credit earned by such inmate in the
future. . . .
‘‘(d) Any credit earned under this section may only be earned during the
period of time that the inmate is sentenced to a term of imprisonment and
committed to the custody of the commissioner and may not be transferred
or applied to a subsequent term of imprisonment. . . .’’
We note that § 18-98e was amended in 2015; see Public Acts 2015, No.
15-216, § 9; to include additional offenses for which conviction renders an
inmate ineligible to earn risk reduction credit, including General Statutes
§ 53a-55a, one of the two offenses of which the petitioner is convicted. The
majority of the petitioner’s claims are based on previously awarded risk
reduction credit and, therefore, the 2015 amendment is not relevant to those
claims. Insofar as the petitioner’s separation of powers claim relies on the
future award of risk reduction credit, however, this amendment is addressed
in part II C of this opinion.
3
The petitioner did not name the Board of Pardons and Paroles as a party
to his habeas petition. Because we conclude that the habeas court lacked
jurisdiction over all of the petitioner’s claims, we do not reach the issue of
whether the board was a necessary or indispensable party. Further, ‘‘[e]ven
if it is assumed that the board is a necessary or indispensable party, the
failure to join the board is not a jurisdictional defect depriving the habeas
court or this court of subject matter jurisdiction.’’ Robinson v. Commis-
sioner of Correction, 258 Conn. 830, 837 n.9, 786 A.2d 1107 (2002).
4
The respondent also asserts that the petitioner, in his appeal, has aban-
doned counts seven through thirteen of his petition, in which he raises
equal protection, separation of powers, and several due process claims, by
inadequately briefing them. Reading the petitioner’s brief fairly, we have
determined that he has adequately asserted that the habeas court dismissed
those claims for an improper reason and explained why the reason was
improper. We conclude that the petitioner’s brief is minimally sufficient for
us to address whether the habeas court lacked jurisdiction as to those counts.
5
The petitioner is not claiming that he has been deprived of his earned
risk reduction credit, but merely that the credit he has earned is no longer
being applied to advance his parole eligibility date. Therefore, we need not
decide whether a deprivation of his actual earned risk reduction credit
would violate due process. See Abed v. Armstrong, 209 F.3d 63, 66–67 (2d
Cir. 2000) (inmates have liberty interest in good time credit they have already
earned, but no liberty interest in opportunity to earn credit under discretion-
ary scheme).
6
In his petition, the petitioner alleges that he has a right to personal
liberty under article first, § 10, of the Connecticut constitution. We construe
this allegation as a typographical error and note that the right to personal
liberty is found in article first, § 9, of the Connecticut constitution. The
petition does not allege, and the petitioner’s briefs to this court do not
contend, that the petitioner’s right to personal liberty under the state consti-
tution entitles him to any greater protection than he is due under the due
process clause of the federal constitution. For purposes of this appeal,
therefore, we treat those provisions as embodying the same level of protec-
tion. E.g., Florestal v. Government Employees Ins. Co., 236 Conn. 299, 314
n.8, 673 A.2d 474 (1996); see also State v. Lamme, 216 Conn. 172, 177, 579 A.2d
484 (1990) (article first, § 9, is state constitutional provision guaranteeing due
process of law).
7
‘‘In Board of Pardons v. Allen, [482 U.S. 369, 378–79 n.10, 107 S. Ct. 2415,
96 L. Ed. 2d 303 (1987)], the Supreme Court noted that circuit courts had
held that, ‘statutes or regulations that provide that a parole board ‘‘may’’
release an inmate on parole do not give rise to a protected liberty interest.’ ’’
Baker v. Commissioner of Correction, supra, 281 Conn. 256 n.13.
8
The respondent asserts that the 2013 parole hearing provision merely
resolved conflicting language in General Statutes (Rev. to 2009) §§ 54-124a
(h) and 54-125a (e) regarding when a hearing must be held and codified the
accepted practice of the board. Because we conclude that the parole hearing
provision does not create a genuine risk that the petitioner will be incarcer-
ated for a longer period of time than that under the provision in place at
the time of his offense, we decline to reach the issue of whether the purported
practice of the board prior to 2013 is an appropriate consideration in
determining whether the petitioner has raised a valid ex post facto claim
in the context of a motion to dismiss.
9
We understand the petitioner’s argument before this court at oral argu-
ment to include the assertion that, if he were to earn near the maximum
amount of risk reduction credit authorized by § 18-98e (a)—five days per
month, every month—the 2013 parole eligibility provision would not place
him in the same position that he would have been in pursuant to the parole
eligibility provision in effect at the time of his offense because, under those
circumstances, he would be denied any possibility of parole. Although we
explore and explain this speculative factual scenario in connection with the
petitioner’s separation of powers claim in part II C of this opinion, we note
that the petitioner did not raise this argument in the ex post facto section
of his petition or his brief to this court. Therefore, we decline to reach the
issue of whether the court would have jurisdiction over his ex post facto
claim based on such circumstances. See Grimm v. Grimm, 276 Conn. 377,
393, 886 A.2d 391 (2005) (‘‘claims [raised] on appeal must be adequately
briefed, and cannot be raised for the first time at oral argument before the
reviewing court’’), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed.
2d 815 (2006).
10
The petitioner also claims a violation of equal protection under article
first, § 20, of the Connecticut constitution, but he has failed to provide an
independent analysis under the state constitution. For purposes of this
appeal, therefore, we treat both provisions as embodying the same level of
protection. E.g., Florestal v. Government Employees Ins. Co., 236 Conn.
299, 314 n.8, 673 A.2d 474 (1996).
11
The petitioner does not provide this court with any analysis as to why
the 2013 amendments must be applied prospectively only. This court has
undertaken analysis to determine whether a criminal statute is prospective
or retroactive when the statute is silent as to whether it applies retroactively.
See State v. Nathaniel S., 323 Conn. 290, 294–95, 146 A.3d 988 (2016) (in
absence of clear legislative guidance, substantive statutes apply prospec-
tively and procedural statutes apply retroactively).