Anthony A. v. Commissioner of Correction ( 2015 )

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ANTHONY A. v. COMMISSIONER OF CORRECTION
(AC 37168)
Alvord, Sheldon and Norcott, Js.
Argued April 20—officially released August 11, 2015
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Anthony A., self-represented, the appellant (peti-
tioner).
Edward Wilson, Jr., assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Terrence M. O’Neill, assistant attorney general,
for the appellee (respondent).
Opinion
ALVORD, J. Following a grant of certification to
appeal by the habeas court, the petitioner, Anthony A.,
appeals from the judgment of the habeas court dismiss-
ing his petition for a writ of habeas corpus. On appeal,
the petitioner claims that the court improperly dis-
missed his petition for lack of subject matter jurisdic-
tion on the ground that he failed to state a claim upon
which relief could be granted. The petitioner’s habeas
claim was that the respondent, the Commissioner of
Correction, deprived him of a protected liberty interest
under the fourteenth amendment to the United States
constitution1 by ‘‘falsely’’ classifying him as a sex
offender without due process of law. We agree that the
court did not lack subject matter jurisdiction over the
habeas petition and, accordingly, we reverse the judg-
ment of the habeas court and remand the case for fur-
ther proceedings.
The record reveals the following relevant facts and
procedural history. On July 5, 2012, the petitioner was
sentenced to an effective term of three years and six
months incarceration after pleading guilty to unlawful
restraint in the first degree, failure to appear and viola-
tion of probation.2 The state entered a nolle prosequi
as to an additional charge of sexual assault in a spou-
sal relationship.3
Shortly after being sentenced, the petitioner learned
that the Department of Correction (department) had
classified him as a sex offender and had assigned him
a sex offender treatment need score. The department
provided the petitioner with an Offender Accountability
Plan (plan) that listed ‘‘sex treatment referral’’ as a
‘‘specific program recommendation.’’ The plan
expressly provided that ‘‘[f]ailure to comply with [the
plan’s] recommendations, or conduct which results in
discipline or increases in risk level, shall negatively
impact your earning of Risk Reduction Earned Credit4
. . . and/or chances of [the department’s] supervised
community release and/or parole.’’
The petitioner refused to sign the plan and requested
a hearing to prove he had not sexually assaulted his
wife. He claimed that the sex offender designation and
treatment recommendation should be removed from his
plan.5 The department responded: ‘‘You had a hearing on
7/7/2012,6 and it was found to be verified in the police
report that there was non-consensual sexual contact.
Therefore, your [sex offender treatment need] score
. . . is accurate and will not be changed.’’ The petition-
er’s repeated efforts to modify his plan to delete the
sex offender designation were all unsuccessful.
On February 20, 2013, the petitioner filed a petition
for a writ of habeas corpus. In his petition, the self-
represented petitioner claimed: (1) he was informed
by the assessment counselor that the department had
classified him as a sex offender; (2) the classification
was made on the basis of an inaccurate police report;
(3) he was told that he risked forfeiting ‘‘good time,
parole [and] early release’’ if he did not participate in a
sex offender treatment program; (4) he was wrongfully
classified as a sex offender; (5) his wife, the alleged
victim, wrote a letter to the Superior Court stating that
she never was sexually assaulted by the petitioner and
that the police report was inaccurate; (6) he never has
been convicted of a sexual offense; and (7) he was
deprived of a liberty interest without due process of
law. The respondent’s return alleged, inter alia, that the
petitioner had not stated a claim for which relief could
be granted.
A hearing was scheduled before the habeas court on
July 31, 2014. At the beginning of the proceeding, the
court stated that it had reviewed the material submitted
by the parties and that there was a preliminary issue
as to whether the petitioner’s claim could be afforded
habeas relief. The court asked the respondent if the
court could consider the allegations in the petition and
the attached affidavits as factual information for an
offer of proof as to the petitioner’s claim, to which
the respondent had no objection. The self-represented
petitioner and the respondent then presented their argu-
ments addressed to the issue of whether the claim as
stated alleged the violation of a protected liberty inter-
est under the fourteenth amendment7 and whether a
habeas court could provide relief for such a claim.
At the conclusion of the arguments, the court stated:
‘‘I [am] prepared to rule on this matter and in my ruling,
I [am] going to assume for purposes of this ruling that
the factual allegations by [the petitioner] are correct,
in that he has been classified as a sex offender when
he was not really a sex offender.’’8 The court determined
that habeas corpus relief was not an available remedy
for the petitioner’s ‘‘misclassification’’ and that ‘‘parole
eligibility under [General Statutes] § 54-125 does not
constitute a cognizable liberty interest sufficient to
invoke habeas corpus jurisdiction.’’9 Accordingly, the
court rendered judgment as follows: ‘‘[F]or the reasons
that I [have] indicated, I must find that the claim here,
even assuming that the factual allegations are true, can-
not provide a basis for habeas corpus relief and the
petition is dismissed.’’ This appeal followed.
After the appeal was filed, the petitioner finished
serving his sentence of incarceration. On April 1, 2015,
he contacted the appellate clerk’s office and advised
this court that he had been released from prison and
that he planned to appear for oral argument. On April
10, 2015, he again contacted the appellate clerk’s office
and stated that he had been arrested on April 6, 2015,
for violation of a protective order and for disorderly
conduct. He further stated that he had not posted bond
in connection with the new charges and was being
detained at New Haven Correctional Center.
Because the petitioner was released from prison prior
to oral argument before this court, we must decide
whether his claim in this appeal is moot under Patterson
v. Commissioner of Correction, 112 Conn. App. 826,
964 A.2d 1234 (2009). ‘‘Mootness is a question of justicia-
bility that must be determined as a threshold matter
because it implicates [this] court’s subject matter juris-
diction . . . .’’ (Internal quotation marks omitted.) Id.,
829. ‘‘[A]n actual controversy must exist not only at
the time the appeal is taken, but also throughout the
pendency of the appeal. . . . When, during the pen-
dency of an appeal, events have occurred that preclude
an appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot.’’ (Internal quotation marks omitted.) Id., 830.
‘‘This court cannot provide any practical relief after the
petitioner has served his sentence in its entirety. . . .
Unless the petitioner’s claim falls under an exception
to the mootness doctrine, we must dismiss his appeal
for lack of subject matter jurisdiction.’’ (Citations omit-
ted.) Id., 830–31.
Here, as in Patterson, the petitioner cannot satisfy
the ‘‘limited duration’’ requirement of the capable of
repetition, yet evading review exception to the moot-
ness doctrine. Id., 836. Inmates who are classified as
being in need of sexual offender treatment by the
department may face a wide range of sentences. The
department’s classification of the petitioner is not of
such a limited duration that the substantial majority of
cases raising a question about such a classification will
become moot before they can be fully litigated.
We conclude, however, that the collateral conse-
quences exception to the mootness doctrine, as set
forth in State v. McElveen, 261 Conn. 198, 802 A.2d 74(2002), is applicable under the circumstances of this
case. In McElveen, our Supreme Court stated: ‘‘[F]or a
litigant to invoke successfully the collateral conse-
quences doctrine, the litigant must show that there is
a reasonable possibility that prejudicial collateral con-
sequences will occur. Accordingly, the litigant must
establish these consequences by more than mere con-
jecture, but need not demonstrate that these conse-
quences are more probable than not. This standard
provides the necessary limitations on justiciability
underlying the mootness doctrine itself. Where there is
no direct practical relief available from the reversal of
the judgment, as in this case, the collateral conse-
quences doctrine acts as a surrogate, calling for a deter-
mination whether a decision in the case can afford the
litigant some practical relief in the future. The reviewing
court therefore determines, based upon the particular
situation, whether the prejudicial collateral conse-
quences are reasonably possible.’’ Id., 208.
With the petitioner’s new arrest, we are persuaded
that there is a reasonable possibility that, should he
return to prison, he will again be classified as being in
need of sex offender treatment because the department
assigned him a sex offender treatment need score with
a recommended sex offender treatment referral during
his previous incarceration. Accordingly, the petitioner’s
appeal is not moot.
We now address the merits of the petitioner’s claim
that the habeas court improperly determined that it
lacked subject matter jurisdiction because he failed to
state a claim upon which relief could be granted. ‘‘Sub-
ject matter jurisdiction for adjudicating habeas peti-
tions is conferred on the Superior Court by General
Statutes § 52-466, which gives it the authority to hear
those petitions that allege illegal confinement or depri-
vation of liberty. . . . 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.
. . . Moreover, [i]t is a fundamental rule that a court
may raise and review the issue of subject matter juris-
diction at any time. . . . Subject matter jurisdiction
involves the authority of the court to adjudicate the
type of controversy presented by the action before it.
. . . [A] court lacks discretion to consider the merits
of a case over which it is without jurisdiction . . . .
The subject matter jurisdiction requirement may not be
waived by any party, and also may be raised by a party,
or by the court sua sponte, at any stage of the proceed-
ings, including on appeal.’’ (Citation omitted; internal
quotation marks omitted.) Fernandez v. Commissioner
of Correction, 139 Conn. App. 173, 177–78, 55 A.3d
588 (2012).
‘‘The principal purpose of the writ of habeas corpus
is to serve as a bulwark against convictions that violate
fundamental fairness. . . . The writ has been
described as a unique and extraordinary legal remedy.
. . . Our Supreme Court has recognized that the writ
of habeas corpus, as it is employed in the twentieth
century . . . does not focus solely upon a direct attack
on the underlying judgment or upon release from con-
finement.’’ (Citations omitted; internal quotation marks
omitted.) Joyce v. Commissioner of Correction, 129
Conn. App. 37, 39–40, 19 A.3d 204 (2011). ‘‘Nonetheless,
despite this expansion of the writ beyond its initial
objective of securing immediate release from illegal
detention, in order to invoke successfully the jurisdic-
tion of the habeas court, a petitioner must allege an
interest sufficient to give rise to habeas relief. . . . In
order to invoke the trial court’s subject matter jurisdic-
tion in a habeas action, a petitioner must allege that he
is illegally confined or has been deprived of his liberty.’’
(Citation omitted; internal quotation marks omitted.)
Id., 40–41.
‘‘In order to state a claim for a denial of procedural
due process . . . a prisoner must allege that he pos-
sessed a protected liberty interest, and was not afforded
the requisite process before being deprived of that lib-
erty interest. . . . A petitioner had no right to due pro-
cess . . . unless a liberty interest has been deprived
. . . . To constitute a deprivation of liberty, a restraint
must have imposed an atypical and significant hardship
. . . in relation to the ordinary incidents of prison life.’’
(Internal quotation marks omitted.) Id., 42–43.
In the present case, the habeas court in its oral ruling,
citing Fuller v. Commissioner of Correction, 144 Conn.
App. 375, 71 A.3d 689,10 cert. denied, 310 Conn. 946,
80 A.3d 907 (2013), and Coleman v. Commissioner of
Correction, 111 Conn. App. 138, 958 A.2d 790 (2008),11
cert. denied, 290 Conn. 905, 962 A.2d 793 (2009), con-
cluded that the petitioner had failed to allege the depri-
vation of a protected liberty interest. The habeas court
determined that it lacked jurisdiction over the petition-
er’s claim of ‘‘misclassification’’ because prison classifi-
cation, parole eligibility and eligibility for rehabilitative
programs were not cognizable liberty interests suffi-
cient to invoke habeas corpus jurisdiction under our
case law.12
The dispositive substantive issue in this appeal is
whether the petitioner has alleged a cognizable liberty
interest that affords jurisdiction to the habeas court
over his claim. Specifically, is the petitioner, who
alleges that he has never been convicted of a sexual
offense and has no history of problematic sexual behav-
ior, entitled to procedural due process before being
classified as a sexual offender and referred for sex
offender treatment by the department? If the habeas
court correctly determined that the petitioner’s claim
was not an alleged violation of a cognizable liberty
interest, then it properly concluded that it lacked juris-
diction over the claim and could not consider the merits
of that claim. If the petitioner did allege the violation
of a cognizable liberty interest, the habeas court
improperly dismissed the petitioner’s petition and the
matter must be remanded to that court for a hearing
on the merits of the petitioner’s claim. We conclude,
for the reasons discussed herein, that the allegations
of the habeas petition were sufficient to allege the viola-
tion of a cognizable liberty interest, and, thus, we
remand the case to the habeas court for further pro-
ceedings.
‘‘Lawful imprisonment necessarily makes unavailable
many rights and privileges of the ordinary citizen, a
retraction justified by the considerations underlying our
penal system. . . . But though his rights may be dimin-
ished by the needs and exigencies of the institutional
environment, a prisoner is not wholly stripped of consti-
tutional protections when he is imprisoned for crime.
There is no iron curtain drawn between the Constitution
and the prisons of this country.’’ (Citation omitted; inter-
nal quotation marks omitted.) Wolff v. McDonnell, 418
U.S. 539, 555–56, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).
‘‘Following Wolff, we recognize that States may under
certain circumstances create liberty interests which are
protected by the Due Process Clause. . . . But these
interests will be generally limited to freedom from
restraint which, while not exceeding the sentence in
such an unexpected manner as to give rise to protection
by the Due Process Clause of its own force . . . none-
theless imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison
life.’’ (Citations omitted.) Sandin v. Connor, 515 U.S.
472, 483–84, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995).13
Although there is no appellate case law in this state
adopting a ‘‘stigma plus’’ test for claims alleging the
deprivation of a liberty interest without due process of
law,14 we find that test to be particularly appropriate
under the facts of the present case. Although not labeled
as the ‘‘stigma plus’’ test, it was utilized by the United
States Supreme Court in Vitek v. Jones, 445 U.S. 480,
100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980). In Vitek, the issue
was whether the due process clause of the fourteenth
amendment entitled a prisoner to certain procedural
protections, including notice and a hearing, before he
could be transferred involuntarily from the prison to a
state mental hospital for treatment of a mental disease
or defect. Id., 482–83. The Court concluded: ‘‘[H]ere,
the stigmatizing consequences of a transfer to a mental
hospital for involuntary psychiatric treatment, coupled
with the subjection of the prisoner to mandatory behav-
ior modification as a treatment for mental illness, con-
stitute the kind of deprivations of liberty that requires
procedural protections.’’ Id., 494.
At issue under the factual circumstances of this case
is the characterization of the petitioner as a sex offender
and the consequences that flow from that characteriza-
tion. The petitioner alleges that he has no history of
sexual offenses and that the incident relied on by the
respondent as set forth in the police report was
expressly discredited by the alleged victim. He claims
that the stigma of being labeled a sex offender subjects
him to atypical and significant hardship in the penal
system, as does the plan’s recommendation for sex
offender treatment. Because the petitioner claims that
he is not a sex offender and can prove that he is not a
sex offender, he refused to sign the plan acknowledging
that status and his need for sex offender treatment. By
refusing to participate in the recommended treatment
program, the petitioner alleges that he forfeited ‘‘good
time, parole and early release.’’
To satisfy the ‘‘stigma’’ element of the test, the peti-
tioner must set forth allegations which, if true, demon-
strate that the department has characterized him in a
way that is sufficiently derogatory so as to injure his
reputation, that this characterization is capable of being
proved false, and that the characterization is false. To
satisfy the ‘‘plus’’ element of the test, the petitioner
must allege that this mischaracterization has caused
him to experience a governmentally imposed burden
that significantly altered his status as a matter of state
law. See Paul v. Davis, 424 U.S. 693, 710–711, 96 S. Ct.
1155, 47 L. Ed. 2d 405 (1976).
We agree with the petitioner that his allegations sat-
isfy the stigma plus test. ‘‘We can hardly conceive of a
state’s action bearing more stigmatizing consequences
than the labeling of a prison inmate as a sex offender.
. . . One need only look to the increasingly popular
Megan’s laws, whereby states require sex offenders to
register with law enforcement officials who are then
authorized to release information about the sex
offender to the public, to comprehend the stigmatizing
consequences of being labeled a sex offender. The clas-
sification of an inmate as a sex offender is precisely
the type of atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison
life that the Supreme Court held created a protected
liberty interest. Sandin [v. Connor, supra, 515 U.S. 483–
84].’’ (Internal quotation marks omitted.) Neal v. Shi-
moda, 131 F.3d 818, 829 (9th Cir. 1997).15
Having labeled the petitioner as a sex offender, the
department provided him with a plan recommending
sex offender treatment. The plan specifically provides
that failure to comply with the plan’s recommendations
will negatively impact his earning of risk reduction cred-
its, and his eligibility for parole and participation in
supervised community release programs. The statute
pertaining to earned risk reduction credits; General
Statutes § 18-98e; likewise provides that an inmate may
earn such credits by adhering to his offender account-
ability plan. Coerced participation in sex offender treat-
ment, when the petitioner alleges he is not a sex
offender, that he has never been convicted of a sex
offense, that he has no history of problematic sexual
behavior, and that he can prove that he is not an
offender, is sufficient to satisfy the ‘‘plus’’ element of
the test.
In summary, we conclude that the petitioner’s habeas
petition has sufficiently alleged the violation of a pro-
tected liberty interest under the fourteenth amendment.
By alleging that he was deprived of this cognizable
liberty interest without procedural due process, he is
entitled to a hearing on the merits of his claim in the
habeas court. At the hearing, the petitioner will, of
course, have to prove the allegations in his petition to
prevail. The habeas court will need to determine what
procedural due process was provided to the petitioner
prior to his classification as a sex offender16 and
whether that process was adequate under the circum-
stances.17
For these reasons, we conclude that the habeas court
incorrectly dismissed the petition for a writ of habeas
corpus on the ground that it lacked subject matter juris-
diction.
The judgment is reversed and the case is remanded
to the habeas court for further proceedings according
to law.
In this opinion the other judges concurred.
1
Section 1 of the fourteenth amendment to the United States constitution
provides in relevant part: ‘‘No State shall . . . deprive any person of life,
liberty or property, without due process of law . . . .’’
2
The petitioner received a sentence of five years incarceration, execution
suspended after forty-two months, and three years of probation on the
unlawful restraint charge. He received an unconditional discharge on the
failure to appear charge. The petitioner also was found to have violated his
probation in connection with a previous conviction, and his probation was
revoked in that case.
3
The charges of unlawful restraint in the first degree and sexual assault
in a spousal relationship both arose in connection with an incident that
occurred on July 19, 2011. The police responded to a report of a domestic
dispute at the petitioner’s residence. The petitioner and his wife were intoxi-
cated and had been smoking crack cocaine.
4
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 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. . . .’’
5
In addition to the undisputed fact that the charge of sexual assault in a
spousal relationship had been nolled, the petitioner relied on his wife’s letter
to the Superior Court, in which his wife stated that she did not wish to
pursue the charges against the petitioner, that the ‘‘police report [was]
inaccurate,’’ and that the petitioner ‘‘never sexually assaulted me.’’
6
The petitioner was sentenced on July 5, 2012. According to the depart-
ment’s response, he had a hearing two days later on July 7, 2012.
7
During his argument at the habeas proceeding, the self-represented peti-
tioner argued that the duration of his sentence was affected by his sex
offender classification, that his sex offender treatment need score was deter-
mined without him being present or having the ‘‘opportunity to defend’’
himself or to ‘‘face [his] accusers,’’ that he had never committed a sexual
offense and did not have a history of sexual offenses, that his noncompliance
with recommended sex offender treatment in the plan had deprived him of
risk reduction earned credit and other rehabilitation programs, and that the
sex offender classification had stigmatized him and made him fearful for
his safety in the prison environment.
8
The court made its ruling immediately following the parties’ arguments
as to whether a habeas court could afford relief on the petitioner’s claim.
There was no evidence presented during the habeas proceeding as to
whether the petitioner was notified and participated in a department hearing
prior to the sex offender classification, how the petitioner had been stigma-
tized by that determination, or the specific details regarding the impact of
his failure to participate in a sex offender treatment program on the length
of his confinement. The habeas court, having determined that it lacked
subject matter jurisdiction, did not reach the merits of the petitioner’s
claims.
9
The petitioner’s Classification Review Sheet indicates that his release
date was March 29, 2015, and that his parole eligibility date was September
18, 2014.
10
In Fuller v. Commissioner of Correction, supra, 144 Conn. App. 380,
this court concluded that the petitioner’s claim that the respondent failed
to make available to her the programs she needed to complete her offender
accountability plan did not constitute a cognizable liberty interest sufficient
to invoke habeas jurisdiction.
11
In Coleman v. Commissioner of Correction, supra, 111 Conn. App. 142,
this court concluded that the petitioner was not entitled to due process
prior to being classified as a security risk group member and that his transfer
from Cheshire Correctional Institution to Northern Correctional Institution
did not implicate a liberty interest.
12
We note that after the habeas court in this action rendered its judgment,
our Supreme Court decided Vandever v. Commissioner of Correction, 315
Conn. 231, 106 A.3d 266 (2014). In Vandever, the petitioner claimed that his
due process rights were violated because the evidence presented at the
department hearing that he was afforded to contest his placement in adminis-
trative segregation did not support the respondent’s placement decision.
Id., 233. On appeal to this court, we determined that ‘‘[a] prisoner has
no constitutionally protected interest in or to a particular classification.’’
(Internal quotation marks omitted.) Vandever v. Commissioner of Correc-
tion, 135 Conn. App. 735, 742, 42 A.3d 494 (2012), rev’d, 315 Conn. 231,
106 A.3d 266 (2014). On the granting of certification, our Supreme Court
determined that this court was ‘‘incorrect insofar as it indicated that under
no circumstances can Connecticut prisoners establish a liberty interest in
avoiding administrative segregation.’’ Vandever v. Commissioner of Correc-
tion, supra, 315 Conn. 233–34. Nevertheless, the Supreme Court concluded
that the petitioner had received all of the process that he was due under
the factual circumstances of that case. Id., 234.
13
We realize that Wolff v. McDonnell, supra, 418 U.S. 539, and Sandin v.
Connor, supra, 515 U.S. 472, involve due process claims under 42 U.S.C.
§ 1983. Nevertheless, the claims in those cases concern conditions of confine-
ment, and we find the language addressing § 1983 challenges to conditions
of confinement to be instructive in evaluating the petitioner’s due process
claim in this habeas action.
14
This court, in State v. Pierce, 69 Conn. App. 516, 530–33, 794 A.2d 1123(2002), rev’d, 269 Conn. 442, 849 A.2d 375 (2004), concluded that due process
requires a hearing to enable a trial court to make a finding as to whether
a felony was committed for a ‘‘ ‘sexual purpose’ ’’ in accordance with General
Statutes § 54-254 (a). We reasoned that the sexual offender registration
system satisfied the ‘‘ ‘stigma plus’ ’’ test, thereby giving rise to a cognizable
liberty interest. Our Supreme Court reversed that decision, however, on the
ground that this court improperly had invoked the plain error doctrine in
reaching that conclusion, because we raised the due process issue sua
sponte and the trial court’s actions were in conformity with a presumptively
valid statute. State v. Pierce, 269 Conn. 442, 452–54, 849 A.2d 375 (2004).
Our Supreme Court did not express an opinion as to whether a liberty
interest was implicated.
15
Applying Vitek v. Jones, supra, 445 U.S. 480, the Third, Fifth, Ninth and
Eleventh Circuit Courts of Appeals have held that prisoners who have not
been convicted of a sex offense have a liberty interest and are entitled to
due process before being classified as sex offenders. See Renchenski v.
Williams, 622 F.3d 315, 326 (3rd Cir. 2010) (holding sex offender conditions
may be imposed on inmate only after inmate afforded due process); Coleman
v. Dretke, 395 F.3d 216, 223 (5th Cir. 2004) (holding petitioner had liberty
interest in freedom from stigma and compelled treatment and state required
to provide procedural due process before imposing such conditions); Kirby
v. Siegelman, 195 F.3d 1285, 1292 (11th Cir. 1999) (holding state’s classifica-
tion of prisoner as sex offender and requirement that he complete sex
offender treatment as precondition to parole eligibility implicated liberty
interest under due process clause); Neal v. Shimoda, supra, 131 F.3d 829(holding state required to provide hearing before classifying prisoner as sex
offender and requiring him to complete treatment program as condition to
parole eligibility).
16
The department’s procedures for classifying an inmate in need of sex
treatment, as contained in the department’s objective classification manual,
may or may not have been followed in the petitioner’s case. See footnote
8 of this opinion. This, too, may be a factor to be considered in determining
whether he was afforded the procedural process that he was due. ‘‘[A] liberty
interest in avoiding particular conditions of confinement may arise from
state policies or regulations . . . .’’ (Internal quotation marks omitted.)
Vandever v. Commissioner of Correction, 315 Conn. 231, 242, 106 A.3d
266 (2014).
17
‘‘The requirements imposed by the [due process] [c]lause are, of course,
flexible and variable [depending on] the particular situation being exam-
ined.’’ (Internal quotation marks omitted.) Vandever v. Commissioner of
Correction, 315 Conn. 231, 244, 106 A.3d 266 (2014).