Petaway v. Commissioner of Correction ( 2015 )

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WILLIAM PETAWAY v. COMMISSIONER
OF CORRECTION
(AC 36772)
Beach, Mullins and Bishop, Js.
Argued April 14—officially released October 27, 2015
(Appeal from Superior Court, judicial district of
Tolland, Kwak, J.)
Temmy Ann Pieszak, resource attorney for habeas
corpus matters, for the appellant (petitioner).
Steven R. Strom, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (respondent).
Opinion
BISHOP, J. Practice Book § 23-24 provides in relevant
part that when a petition for a writ of habeas corpus
is filed, the court, on review of the petition, ‘‘shall issue
the writ unless it appears that: (1) the court lacks juris-
diction . . . .’’ In this matter, the habeas court, in the
performance of its function pursuant to § 23-24,
declined to issue the petitioner, William Petaway, a writ
of habeas corpus, reasoning that it lacked jurisdiction
over the claims set forth in his petition concerning the
change in his eligibility date for parole consideration.
On appeal, the petitioner claims that the court incor-
rectly concluded that it lacked jurisdiction on the basis
of his assertion that a 2013 statutory change that oper-
ates to delay his earliest date of parole eligibility violates
the constitutional protection afforded to him against
the ex post facto application of penal statutes. We affirm
the judgment of the habeas court.
The following procedural history and factual under-
layment are pertinent to our review of the petitioner’s
claim. On August 19, 2005, the petitioner was sentenced
to twelve and one-half years imprisonment on the basis
of his conviction for robbery in the first degree, arising
from an incident that took place on October 20, 2003.
The petitioner’s conviction was affirmed by this court.
State v. Petaway, 107 Conn. App. 730, 946 A.2d 906,
cert. denied, 289 Conn. 926, 958 A.2d 162 (2008). The
petitioner remains in the custody of the respondent,
the Commissioner of Correction.
In 2003, at the time of the petitioner’s criminal con-
duct, and in 2005, when he was convicted, there was
no statutory provision that permitted inmates to earn
credits toward reducing the length of their sentences.1
Also, due to the nature of the offense for which he was
convicted, the petitioner, at the time of his conviction,
was not eligible for parole consideration before serving
85 percent of his sentence. See General Statutes § 54-
125a (b).
On July 9, 2013, the petitioner filed a petition for a
writ of habeas corpus in which he acknowledged that
at the time of his conviction there was no statutory
provision that permitted inmates to earn good time
credit to reduce their sentences.2 He alleged, as well,
that in 2011, the General Assembly enacted No. 11-51,
§ 22, of the 2011 Public Acts, later codified in General
Statutes § 18-98e. This legislation provided that certain
prisoners convicted for crimes committed after October
1, 1994, ‘‘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 discre-
tion of the Commissioner of Correction’’ for certain
specified positive behaviors. General Statutes § 18-98e
(a). This legislation was enacted in conjunction with a
revision to § 54-125a (b) regarding parole, which pro-
vided in relevant part that a person convicted of a vio-
lent crime would not be eligible for parole consideration
‘‘until such person has served not less than eighty-five
percent of the definite sentence imposed less any risk
reduction credit earned under the provisions of section
18-98e.’’ (Emphasis added.) General Statutes (Rev. to
2013) § 54-125a (b). Accordingly, as of the date of the
2011 enactments, the petitioner was eligible, at the
respondent’s discretion, to earn risk reduction credit
toward his sentence and also toward the date of his
first eligibility of parole consideration. Pursuant to this
legislation, the Department of Correction did, in fact,
award the petitioner credits, measured in days, toward
his sentence as well as toward his earliest parole eligibil-
ity date.
The 2011 revision to § 54-125a (b), however, was
short lived. In 2013, the General Assembly again
amended § 54-125a (b). The 2013 enactment provided
that a violent offender, such as the petitioner, must
serve 85 percent of the definite sentence imposed
before becoming eligible for parole. See General Stat-
utes § 54-125a (b). The effect of this change is that the
credits that an inmate may earn toward his sentence no
longer operate to advance that person’s earliest parole
eligibility date. It is the change in the legislation between
2011 and 2013 that the petitioner alleges violates his
constitutional protection against ex post facto legisla-
tion. We are not persuaded.
At the outset, we set forth the standard of review. It
is well settled that ‘‘[a] determination regarding a trial
court’s subject matter jurisdiction is a question of law
and, therefore, we employ the plenary standard of
review and decide whether the court’s conclusions are
legally and logically correct and supported by the facts
in the record.’’ (Internal quotation marks omitted.) State
v. Williamson, 155 Conn. App. 215, 219, 109 A.3d 924
(2015).
Next, we consider the nature of the prohibition
against ex post facto laws. In Peugh v. United States,
U.S. , 133 S. Ct. 2072, 186 L. Ed. 2d 84 (2013),
the United States Supreme Court referred to its 1798
opinion in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.
Ed. 648 (1798), in which Justice Samuel Chase, speaking
for the majority, outlined the nature of an ex post facto
law as follows: ‘‘[First]. Every law that makes an action
done before the passing of the law, and which was
innocent when done, criminal; and punishes such
action. [Second]. Every law that aggravates a crime, or
makes it greater than it was, when committed. [Third].
Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime,
when committed. [Fourth]. Every law that alters the
legal rules of evidence, and receives less, or different,
testimony, than the law required at the time of the
commission of the offence, in order to convict the
offender.’’ (Emphasis omitted.)
A review of Justice Chase’s discussion of the nature
of an ex post facto law reveals, as a significant common
feature, that for a law to violate the prohibition, it must
feature some change from the terms of a law in exis-
tence at the time of the criminal act. That feature is
entirely sensible, as a core purpose in prohibiting ex
post facto laws is to ensure fair notice to a person of
the consequences of criminal behavior. As explained
by the United States Supreme Court, laws that impose
a greater punishment after the commission of a crime
than annexed to the crime at the time of its commission
run afoul of the ex post facto prohibition because such
laws implicate the central concerns of the ex post facto
clause: ‘‘the lack of fair notice and governmental
restraint when the legislature increases punishment
beyond what was prescribed when the crime was con-
summated.’’ Weaver v. Graham, 450 U.S. 24, 30, 101 S.
Ct. 960, 67 L. Ed. 2d 17 (1981). None of those concerns
pertains to the appeal at hand.
Here, the petitioner makes no claim that legislation
regarding eligibility for parole consideration became
more onerous after the date of his criminal behavior.
Rather, he claims that new legislation enacted in 2011,
several years after his criminal conduct and subsequent
incarceration, conferred a benefit on him that was then
taken away in 2013. Such a claim, however, does not
implicate the ex post facto prohibition because the
changes that occurred between 2011 and 2013 have no
bearing on the punishment to which the petitioner’s
criminal conduct exposed him when he committed a
robbery in 2003.
In support of his claim, the petitioner relies on our
Supreme Court’s opinion in Johnson v. Commissioner
of Correction, 258 Conn. 804, 786 A.2d 1091 (2002).
The petitioner’s reliance is misplaced. In Johnson, our
Supreme Court stated that the petitioner had asserted
a cognizable ex post facto claim when he alleged that
application of the ‘‘85 percent rule’’ to his circumstances
violated the ex post facto probation. Id., 818–19. A
review of Johnson reveals that, in 1995, when Dwayne
Johnson committed the crimes for which he was sen-
tenced in 1996, similarly situated offenders were first
eligible for parole consideration after completing 50
percent of their sentences but that, as a result of legisla-
tion enacted after his criminal conduct, Johnson would
not be eligible for parole until completing 85 percent
of his sentence. Id., 809–10. Although the court acknowl-
edged that an inmate has no liberty interest in being
granted parole, the court found, nevertheless, that the
habeas court had jurisdiction because Johnson had
made a cognizable ex post facto claim by asserting that
the change in the law between the date of his criminal
act and his later incarceration violated the prohibition
against ex post facto penal legislation. Id., 818–19. Nei-
ther the underlying facts in Johnson nor the court’s
reasoning supports the petitioner’s claim in the pre-
sent case.
In Johnson, the court, in determining that Johnson
had made a colorable ex post facto claim, observed:
‘‘Critical to relief under the Ex Post Facto Clause is not
an individual’s right to less punishment, but the lack
of fair notice and governmental restraint when the legis-
lature increases punishment beyond what was pre-
scribed when the crime was consummated. Thus, even
if a statute merely alters penal provisions accorded by
the grace of the legislature, it violates the Clause if it
is both retrospective and more onerous than the law
in effect on the date of the offense.’’ (Internal quotation
marks omitted.) Id., 817.
Here, unlike in Johnson, the petitioner makes no
claim that a change in the law after 2003 extended the
length of his incarceration or delayed the date of his
first eligibility for parole consideration beyond the time
periods in existence at the time of his criminal conduct.
In sum, he makes no claim rooted in ex post facto
jurisprudence. Thus, unlike the petitioner in Johnson,
the petitioner in the present case has not made a color-
able ex post facto claim.3 A merely conclusory allega-
tion of an ex post facto violation without any legally
supporting factual allegations is insufficient to consti-
tute a colorable ex post facto claim.
Shorn of its ex post facto designation, the petitioner’s
claim is no more than a complaint that long after he
committed robbery and was sentenced, favorable legis-
lation was enacted that gave him, at the respondent’s
discretion, an opportunity for earlier parole consider-
ation but that legislation was later repealed, putting
him back into the same position he had been in in
2003 and 2005. The petitioner, however, has no liberty
interest in parole eligibility, and, therefore, such a claim
does not implicate the jurisdiction of the habeas court.
See Baker v. Commissioner of Correction, 281 Conn.
241, 914 A.2d 1034 (2007) (parole eligibility under § 54-
125a does not constitute cognizable liberty interest suf-
ficient to invoke habeas court’s jurisdiction). We con-
clude that because the petitioner has no liberty interest
in being granted parole and his petition does not assert a
colorable ex post facto claim, the habeas court properly
declined to issue the writ of habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Prior to 1994, Connecticut had a statute in effect through which an
inmate committed to custody of the respondent could earn credits at the
rate of a certain number of days per month toward advancing his or her
anticipated release date. Before the petitioner’s criminal conduct took place,
however, the General Assembly repealed the statutory provisions for good
time credits.
2
It is important to note the procedural posture that brings the present
appeal before this court. On November 26, 2013, the habeas court declined
to issue the writ of habeas corpus pursuant to Practice Book § 23-24 (a)
(1), holding that it lacked jurisdiction and indicating that ‘‘[p]arole eligibility
is not a valid habeas claim.’’ On December 17, 2013, the court denied the
petitioner’s motion to reconsider the order declining to issue the writ. On
January 16, 2014, the petitioner filed a petition for certification to appeal,
identifying the claim in his habeas petition as being an ex post facto claim
and specifically arguing that the habeas court had jurisdiction over his ex
post facto claim. The court initially denied the petition for certification to
appeal, however, pursuant to a motion for reconsideration, the court granted
the petition on April 7, 2014.
3
Indeed, it appears that the petitioner has benefitted from the enactment
of §§ 54-125a and 18-98e because he has received risk reduction credits
toward a reduction of his sentence, a benefit not available to him at the
time he committed the robbery for which he is serving a sentence of impris-
onment.