Green v. Commissioner of Correction ( 2018 )

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COURTNEY GREEN v. COMMISSIONER OF
CORRECTION
(AC 39313)
Alvord, Prescott and Beach, Js.
Syllabus
The petitioner, who had been convicted on a plea of guilty of three counts
of assault in the first degree, sought a writ of habeas corpus, alleging
that he was entitled to certain credits toward his time served under an
administrative directive implemented by the respondent, the Commis-
sioner of Correction, pursuant to the commissioner’s authority under
the statute (§ 18-98e) pertaining to risk reduction earned credits. Specifi-
cally, he alleged that, under an agreement he had signed with staff of
the Department of Correction, he was eligible to be awarded credit at
the rate of five days per month, and that although the commissioner
changed the way risk reduction credits are awarded pursuant to a new
directive, the petitioner should have been ‘‘grandfathered’’ in to receive
credit of five days per month. Pursuant to the rule of practice (§ 23-24)
that provides that the habeas court shall issue the writ unless, inter alia,
it appears that the court lacks jurisdiction, the habeas court disposed
of the petition sua sponte and without a hearing. Thereafter, the court
granted the petition for certification to appeal, and the petitioner
appealed to this court. Held:
1. The petitioner’s claim that the habeas court improperly dismissed his
habeas petition without holding a hearing was unavailing: the petitioner
provided no authority supporting his claim that § 23-24 requires the
habeas court to hold a hearing before declining to issue a writ, and § 23-
24 does not require the habeas court to hold a hearing prior to concluding
that it lacks jurisdiction over the writ, as that rule was intended to
permit a habeas court to conduct a preliminary review of a petition
prior to further adjudication of the writ to weed out those petitions the
adjudication of which would be a waste of precious judicial resources
either because the court lacked jurisdiction over it, the petition was
wholly frivolous, or it sought relief that the court simply could not grant,
and the text of § 23-24 plainly contemplates that the habeas court notify
the petitioner of its actions after it reaches a decision on whether the case
should proceed further and not before taking such actions; moreover,
because requiring the habeas court to appoint counsel for a petitioner
and hold a hearing over this class of petitions would constitute a consid-
erable drain of state resources and frustrate the habeas court’s ability
to focus on those petitions that are worthy of adjudication, this court
declined to graft a hearing requirement onto § 23-24 in the absence of
language mandating such a procedure.
2. The habeas court properly dismissed the habeas petition for lack of
jurisdiction: although the petitioner alleged that he was being deprived
of risk reduction credits to which he was entitled, he did not have a
constitutionally protected liberty interest in risk reduction credits, as
§ 18-98e confers broad discretion on the commissioner to award such
credits, and there was no basis from which the habeas court could have
concluded that the commissioner altered the discretionary nature of
the risk reduction credit program by entering into a binding contract
with the petitioner, who merely alleged a legal conclusion regarding the
existence of a binding contract that was unsupported by any facts alleged
in the petition and failed to append the contract to his petition or to
cite any language from it demonstrating that he was entitled to receive
five days of risk reduction credit per month; moreover, nothing alleged
in the petition supported the petitioner’s assertion, made for the first
time on appeal, that the contract was his offender accountability plan,
and even if the petitioner had properly alleged a breach of contract
claim against the commissioner, it would not have been sufficient to
invoke the habeas court’s jurisdiction because the petitioner, at best,
had a contractual interest in such credits rather than a constitutionally
protected liberty interest, and for the commissioner to have the statutory
authority to enter into an agreement with an inmate that strips away the
commissioner’s discretion in the future administration of risk reduction
credits would contravene the plain language of the statute and the
legislature’s clear intent that the program be discretionary in nature.
Argued April 24—officially released August 7, 2018
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Oliver, J., rendered judgment dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
Nicholas A. Marolda, assigned counsel, with whom
were Temmy Ann Miller, assigned counsel, and, on
the brief, Owen R. Firestone, assigned counsel, 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
PRESCOTT, J. The petitioner, Courtney Green,
appeals from the judgment of the habeas court dispos-
ing of his petition for a writ of habeas corpus for lack
of jurisdiction. On appeal, the petitioner claims that the
court improperly disposed of his petition because it (1)
incorrectly concluded that it lacked jurisdiction and
(2) failed to conduct a hearing on that issue prior to
disposing of the petition. We disagree with the claims
of the petitioner and, accordingly, affirm the judgment.
We begin by setting forth the relevant procedural
history. The petitioner currently is serving a sentence
of twenty years of incarceration after pleading guilty
on April 21, 2009, to three counts of assault in the first
degree in violation of General Statutes § 53a-59 (a) (5).
On May 11, 2016, the petitioner, representing himself,
filed a petition for a writ of habeas corpus.
Therein, the petitioner alleged that on or about
August 28, 2011, the respondent, the Commissioner of
Correction (commissioner), implemented1 the Risk
Reduction Earned Credit (RREC) program pursuant to
his authority under General Statutes § 18-98e.2 He stated
that the ‘‘RREC allowed . . . [him] to be awarded time
at the discretion of the commissioner . . . at the rate
of five days per month for participation in programs or
activities [and] good conduct and obedience to depart-
mental rules . . . .’’ Although the petitioner admitted
in his petition that the risk reduction credits were
awarded at the commissioner’s discretion, he also
alleged that he signed an ‘‘agreement with department
staff’’ that entitles him to receive five risk reduction
credits per month.
The petitioner further alleged that on February 1,
2016, the commissioner sent a memo to inmates
informing them that he was changing the way he
awarded risk reduction credits pursuant to a new policy
outlined in Department of Correction, Administrative
Directive 4.2A. The directive provided that, thereafter,
the amount of credits an inmate would be eligible to
receive each month would be based on the inmate’s
risk classification—a level four inmate could earn up
to three days of credit per month, a level two or three
inmate could earn up to four days, and a level one
inmate could earn up to five days. Moreover, a level four
inmate could apply to have reinstated the additional
two credits per month that he was earning previously.
The petitioner further alleged that he continues to
be in compliance with the aforementioned ‘‘agreement’’
and, despite the change in policy, should therefore ‘‘be
grandfathered [in] to receive five days RREC per month,
pursuant to . . . § 18-98e.’’ He thus requested the
habeas court’s intervention and that it ‘‘reinstate the
RREC of five days per month that [he] signed a contract
for . . . .’’
On May 19, 2016, the habeas court, Oliver, J., dis-
posed of the petition sua sponte pursuant to Practice
Book § 23-24 (a) (1)3 because the court lacked subject
matter jurisdiction over it, citing Petaway v. Commis-
sioner of Correction, 160 Conn. App. 727, 125 A.3d 1053
(2015), cert. dismissed, 324 Conn. 912, 153 A.3d 1288
(2017). The court did not hold a hearing prior to reach-
ing this determination.
The petitioner subsequently filed a petition for certifi-
cation to appeal from the court’s dismissal of his peti-
tion on May 31, 2016. On June 1, 2016, the court granted
the petitioner’s certification to appeal, as well as the
petitioner’s application for appointment of counsel. The
petitioner timely filed the present appeal on June 15,
2016.
I
We first address the petitioner’s claim that the habeas
court improperly dismissed his petition because it failed
to first hold a hearing on the issue of whether the court
had jurisdiction.4 The petitioner argues that, pursuant
to this court’s holding in Boyd v. Commissioner of
Correction, 157 Conn. App. 122, 115 A.3d 1123 (2015),
the habeas court cannot dismiss a petition sua sponte
without fair notice to the petitioner and a hearing.
We disagree.
In Boyd, this court concluded that it is an abuse of
discretion for a habeas court to dismiss a petition sua
sponte and without a hearing pursuant to its authority
under Practice Book § 23-29 unless the petition ‘‘alleges
the same grounds for relief sought in a previously
denied petition, and fails to allege new facts or evidence
. . . .’’ Id., 125. In the present case, however, unlike in
Boyd, the court concluded that it lacked jurisdiction
over the petition pursuant to its authority under Prac-
tice Book § 23-24,5 rather than Practice Book § 23-29.
Thus, we must determine whether Practice Book § 23-
24 requires the court to hold a hearing prior to conclud-
ing that it lacks jurisdiction over the habeas petition.
This issue presents a question of law subject to ple-
nary review. See Menard v. Willimantic Waste Paper
Co., 163 Conn. App. 362, 367, 134 A.3d 1248, cert. denied,
321 Conn. 907, 135 A.3d 279 (2016). In determining
whether the court was required to hold a hearing, we
first consider the language of the provision itself. See
Rivers v. New Britain, 288 Conn. 1, 10–11, 950 A.2d 1247
(2008). Practice Book § 23-24 (a) states: ‘‘The judicial
authority shall promptly review any petition for a writ
of habeas corpus to determine whether the writ should
issue. The judicial authority shall issue the writ unless
it appears that: (1) the court lacks jurisdiction; (2) the
petition is wholly frivolous on its face; or (3) the relief
sought is not available.’’ Practice Book § 23-24 (b) pro-
vides: ‘‘The judicial authority shall notify the petitioner
if it declines to issue the writ pursuant to this rule.’’
Thus, there is nothing in the language of Practice Book
§ 23-24 to require the court to hold a hearing before
disposing of the petition for lack of jurisdiction.
In our view, Practice Book § 23-24 is intended to
permit a habeas court to conduct a preliminary review
of a petition prior to further adjudication of the writ
to weed out those petitions the adjudication of which
would be a waste of precious judicial resources either
because the court lacks jurisdiction over it, the petition
is wholly frivolous, or it seeks relief that the court
simply cannot grant. We reach this conclusion for two
reasons. First, the language of the rule plainly contem-
plates that the habeas court notify the petitioner of its
actions after it reaches a decision on whether the case
should proceed further. See Practice Book § 23-24 (b).
If the rule were intended to impose a hearing require-
ment, the drafters would undoubtedly have inserted
language requiring that the petitioner be notified before
the court took such actions.
Second, requiring the habeas court to appoint counsel
for a petitioner and hold a hearing over this class of
petitions would constitute a considerable drain of state
resources and frustrate the habeas court’s ability to
focus on those petitions that are worthy of adjudication.
It is indisputable that the high volume of habeas peti-
tions has been an ongoing source of concern for poli-
cymakers and has prompted legislative reforms in
recent years. See Public Acts 2012, No. 12-115; 55 H.R.
Proc., Pt. 5, 2012 Sess., pp. 1587–91, remarks of Repre-
sentative Gerald M. Fox III; see also 55 H.R. Proc.,
supra, p. 1591 (‘‘one of the things that I always thought
of when I heard about . . . [habeas corpus reform] is
that all parties felt that there was a way to do this better
and that there’s a way to make sure that we can focus
on those claims . . . that do have merit, that are poten-
tially legitimate and weed out those claims that seem
to be bogging down the process and using up a lot of
resources where the end result, in all likelihood, would
be nothing would come of it’’). We therefore decline to
graft a hearing requirement onto Practice Book § 23-24
in the absence of language mandating such a pro-
cedure.6
The petitioner has presented no authority on appeal,
from either this court or our Supreme Court, interpre-
ting Practice Book § 23-24 as requiring the habeas court
to hold a hearing before declining to issue the writ—
nor has our review revealed any such authority. In light
of the lack of authority to the contrary and the apparent
policy reason underlying Practice Book § 23-24, and
because the language of Practice Book § 23-24 does not
explicitly require the court to hold a hearing before
exercising its authority pursuant to that provision, we
conclude that the petitioner was not entitled to a hear-
ing in the present case.
II
Next, we address the petitioner’s claim that the
habeas court improperly dismissed his petition because
it incorrectly concluded that it did not have jurisdiction.
The petitioner argues that although the award of risk
reduction credits ordinarily does not implicate an
inmate’s liberty interest because of the discretionary
nature of the RREC program, he has a contractual right
to such credits in this case that vitiates the discretionary
nature of the program. He further argues that, because
the commissioner’s breach of this contract ‘‘bears
directly on the duration of his sentence,’’ he has invoked
the jurisdiction of the habeas court. For the reasons
set forth herein, we conclude that the court properly
disposed of the petition because it lacked jurisdiction
over it.
We begin with the applicable standard of review and
relevant legal principles. ‘‘Our Supreme Court has 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 funda-
mental rule that a court may raise and review the issue
of subject matter jurisdiction 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 con-
sider 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 proceedings, including on appeal.’’
(Internal quotation marks omitted.) Pentland v. Com-
missioner of Correction, 176 Conn. App. 779, 784–85,
169 A.3d 851, cert. denied, 327 Conn. 978, 174 A.3d
800 (2017).
With respect to the habeas court’s jurisdiction, ‘‘[t]he
scope of relief available through a petition for habeas
corpus is limited. In order to invoke the trial court’s
subject matter jurisdiction in a habeas action, a peti-
tioner must allege that he is illegally confined or has
been deprived of his liberty.’’ (Internal quotation marks
omitted.) Joyce v. Commissioner of Correction, 129
Conn. App. 37, 41, 19 A.3d 204 (2011). In other words,
‘‘a petitioner must allege an interest sufficient to give
rise to habeas relief.’’ (Internal quotation marks omit-
ted.) Perez v. Commissioner of Correction, 326 Conn.
357, 368, 163 A.3d 597 (2017). ‘‘In order to . . . qualify
as a constitutionally protected liberty [interest] . . .
the interest must be one that is assured either by statute,
judicial decree, or regulation.’’ (Emphasis omitted;
internal quotation marks omitted.) Fuller v. Commis-
sioner of Correction, 144 Conn. App. 375, 378, 71 A.3d
689, cert. denied, 310 Conn. 946, 80 A.3d 907 (2013).
We turn now to the petitioner’s claim. At the outset,
we note that because this appeal arises from the habeas
court’s ruling declining to issue the writ pursuant to
Practice Book § 23-24, which is akin to dismissal of the
petition ‘‘on the basis that the court lacked jurisdiction,
we take the facts to be those alleged in the petition,
including those facts necessarily implied from the alle-
gations, construing them in favor of the petitioner for
purposes of deciding whether the court has subject
matter jurisdiction.’’ (Internal quotation marks omit-
ted.) Vitale v. Commissioner of Correction, 178 Conn.
App. 844, 850, 178 A.3d 418 (2017), cert. denied, 328
Conn. 923, 181 A.3d 566 (2018); see also Pentland v.
Commissioner of Correction, supra, 176 Conn. App.
782 (‘‘[i]n deciding whether to sua sponte dismiss the
petitioner’s habeas petition, the court was required . . .
to take the facts to be those alleged in the petition’’).
The petitioner alleged that he is being deprived of risk
reduction credits to which he is entitled, and thereby
is being forced to serve a sentence of longer duration. In
order to determine whether the court had jurisdiction,
therefore, we must decide whether the petitioner has
a constitutionally protected liberty interest in the risk
reduction credits.
In his petition, the petitioner identified § 18-98e as
the source of the commissioner’s authority to imple-
ment the RREC program. Section 18-98e (a) states that
‘‘any person sentenced to a term of imprisonment for
a crime committed on or 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 discretion of the
Commissioner of Correction . . . .’’ (Emphasis
added.) Pursuant to § 18-98e, then, an inmate is not
guaranteed a certain amount of risk reduction credits
per month—or, in fact, any credits at all. Rather, the
statute provides only that an inmate may be eligible to
receive credits if the commissioner so chooses.
The fact that the commissioner is vested with such
broad discretion in implementing the RREC program
is significant. Our appellate courts have concluded, con-
sistently, that an inmate does not have a constitutionally
protected liberty interest in certain benefits—such as
good time credits, risk reduction credits, and early
parole consideration—if the statutory scheme pursuant
to which the commissioner is authorized to award those
benefits is discretionary in nature.
For example, in Abed v. Commissioner of Correction,
43 Conn. App. 176, 682 A.2d 558, cert. denied, 239 Conn.
937, 684 A.2d 707 (1996), the petitioner filed a habeas
petition challenging ‘‘the prospective denial of statutory
good time credits.’’ Id., 178. Prior to the filing of the
petition, the commissioner administered a policy pursu-
ant to which an inmate who was classified as a ‘‘safety
threat’’ was precluded from earning good time credits.
Id. The commissioner sought dismissal of the petition
on the ground that the court lacked jurisdiction because
the petitioner failed to raise a legally cognizable claim.
Id., 178–79. The habeas court determined that the peti-
tioner ‘‘had a justifiable expectation of earning good
time credits based on the plain reading of’’ General
Statutes § 18-7a (c), but disposed of the petition on
other grounds. (Internal quotation marks omitted.)
Id., 179.
On appeal in Abed, this court considered whether
‘‘the petitioner ha[d] alleged a liberty interest in good
time credits he ha[d] not yet earned so as to raise a
legally cognizable claim in his petition.’’ Id., 180. This
court reasoned that the petitioner’s claim that the
habeas court had jurisdiction to consider the merits of
his petition ‘‘succeed[ed] only if the awarding of good
time in Connecticut is mandatory.’’ Id. The plain lan-
guage of § 18-7a (c), however, provided that ‘‘the com-
missioner may award good time credits at his
discretion.’’ (Emphases altered.) Id. We therefore con-
cluded that ‘‘because § 18-7a (c) does not require the
commissioner to award good time credits, that section
cannot create a liberty interest on which the petitioner
may predicate habeas corpus relief.’’ Id., 180–81; see
also Beasley v. Commissioner of Correction, 50 Conn.
App. 421, 434, 435, 718 A.2d 487 (1998) (directive that
precluded inmate in administrative segregation from
earning statutory good time credits was proper use of
commissioner’s authority; § 18-7a [c] allowed commis-
sioner to award credits at his discretion, so ‘‘[t]o con-
clude otherwise would render the discretionary nature
of § 18-7a [c] superfluous’’), aff’d, 249 Conn. 499, 733
A.2d 822 (1999).
Our Supreme Court considered a similar claim in
Perez v. Commissioner of Correction, supra, 326 Conn.
357. In that case, the petitioner filed a petition for a writ
of habeas corpus challenging a statutory amendment
to General Statutes § 54-125a that ‘‘eliminated the lan-
guage [of the earlier version of that statute] that permit-
ted [an inmate’s] parole eligibility date to be advanced
by the application of any earned risk reduction credit.’’
Id., 365. The habeas court dismissed the petition, finding
that it lacked subject matter jurisdiction. Id., 366. On
appeal, our Supreme Court concluded that the basis
for the court’s dismissal was improper but that it never-
theless lacked jurisdiction to consider the merits of the
petition for other reasons. Id., 368, 374.
Specifically, our Supreme Court determined in Perez
that the habeas court lacked jurisdiction because the
petitioner did not have a liberty interest in early parole
eligibility or risk reduction credits. Id., 370–73. It noted
that ‘‘parole eligibility under § 54-125a does not consti-
tute a cognizable liberty interest sufficient to invoke
habeas jurisdiction. . . . [T]he decision to grant parole
is entirely within the discretion of the [Board of Par-
dons and Paroles].’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) Id., 371. It further
noted that, ‘‘[w]ith 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 [commissioner] at any time
in the [commissioner’s] discretion for good cause dur-
ing the petitioner’s period of incarceration. The peti-
tioner, in his brief, disputes that the award or revocation
of risk reduction credit is wholly discretionary . . . .
The petitioner’s position, however, is manifestly contra-
dicted by the plain language of § 18-98e (a) . . . .
Although the legislature has provided guidance to the
[commissioner] as to how to exercise his discretion,
the [commissioner] still has broad discretion 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 neces-
sarily retain such credit once it has been awarded.’’
(Internal quotation marks omitted.) Id., 372; see also
Petaway v. Commissioner of Correction, supra, 160
Conn. App. 734 (petitioner had no liberty interest in
early parole eligibility because statute gave commis-
sioner discretion in granting inmates parole).
Thus, as precedent from this court and our Supreme
Court makes clear, the petitioner in the present case
does not have a liberty interest in risk reduction credits
because, as the petitioner himself admitted in his peti-
tion, the commissioner has broad discretion to imple-
ment the RREC program. The petitioner fails on appeal
to set forth any persuasive authority that rebuts this
conclusion.7 Instead, his sole argument is that the com-
missioner somehow altered the discretionary nature of
the RREC program by entering into a binding contract
with the petitioner, pursuant to which he is entitled to
receive five days of risk reduction credit per month.
We disagree.
To begin, we note that ‘‘[i]t is the established policy
of the Connecticut courts to be solicitous of [self-repre-
sented] litigants and, when it does not interfere with
the rights of the other parties, to construe the rules
of practice liberally in favor of the [self-represented]
party.’’ (Internal quotation marks omitted.) Vitale v.
Commissioner of Correction, supra, 178 Conn. App.
850. The petition for a writ of habeas corpus, however,
is still ‘‘essentially a pleading and, as such, it should
conform generally to a complaint in a civil action. . . .
The principle that a plaintiff may rely only upon what
he has alleged is basic. . . . It is fundamental in our
law that the right of a plaintiff to recover is limited to
the allegations of his complaint. . . . [T]he habeas
court . . . does not have the discretion to look beyond
the pleadings . . . .’’ (Internal quotation marks omit-
ted.) Id., 851. Moreover, although the habeas court must
accept all well pleaded facts as true, it ‘‘need not admit
legal conclusions or the truth or accuracy of opinions
stated in the pleadings.’’ (Internal quotation marks omit-
ted.) Coleman v. Commissioner of Correction, 137
Conn. App. 51, 56, 46 A.3d 1050 (2012).
The petitioner’s assertion that the agreement he was
referring to in his petition constitutes a binding contract
is a legal conclusion unsupported by any facts alleged in
the petition. The petitioner failed to identify the alleged
contract, attach it to the petition for the court’s consid-
eration, or cite any language from it that would demon-
strate that he is entitled to receive five days of risk
reduction credit per month. Thus, there was no basis
from which the court could have concluded that the
agreement was a binding contract.
The petitioner argues for the first time on appeal
that the agreement he referenced in his petition is his
Offender Accountability Plan (OAP) and that his OAP
is a contract.8 Again, nothing in the petition supports
this assertion—the petitioner never once referenced
his OAP or attached it to the petition for the court’s
consideration. Likewise, he has failed to set forth any
authority on appeal that would support the conclusion
that an OAP is a contract.
Moreover, even if the petitioner had properly alleged
a breach of contract claim against the commissioner,
it would not have been enough to invoke the habeas
court’s jurisdiction because the petitioner, at best, has
a contractual interest in such credits rather than a con-
stitutionally protected liberty interest. See Perez v.
Commissioner of Correction, supra, 326 Conn. 372 (The
commissioner ‘‘has broad discretion to award or revoke
risk reduction credit. As such, the statute does not
support an expectation that an inmate will automati-
cally earn risk reduction credit or will necessarily retain
such credit once it has been awarded.’’).
Finally, we doubt that the commissioner has the stat-
utory authority to enter into an agreement with an
inmate that strips the commissioner of his discretion
in the future administration of the RREC program. Such
action would contravene the plain language of the stat-
ute and frustrate the legislature’s clear intent that the
RREC program be discretionary in nature. See Beasley
v. Commissioner of Correction, supra, 50 Conn. App.
435. Thus, for all the reasons stated herein, we conclude
that the court properly disposed of the habeas petition
for lack of jurisdiction.9
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner did not indicate in his petition the manner in which
the RREC program was implemented. He appears to allege that it was
implemented through Administrative Directive 4.2 (A) (3), although he did
not attach any such directive either to his petition or brief on appeal.
2
Although § 18-98e was the subject of technical amendments in 2018; see
Public Acts 2018, No. 18-155, § 3; those amendments have no bearing on
the merits of this appeal. For purposes of clarity, we refer to the current
revision of the statute.
3
Practice Book § 23-24 is titled ‘‘Preliminary Consideration of Judicial
Authority’’ and provides in subsection (a) that the habeas court ‘‘shall
promptly review any petition for a writ of habeas corpus to determine
whether the writ shall issue. The judicial authority shall issue the writ unless
it appears that: (1) the court lacks jurisdiction; (2) the petition is wholly
frivolous on its face; or (3) the relief sought is not available.’’ If the court
declines to issue the writ, it must notify the petitioner. Practice Book § 23-
24 (b).
Although the habeas court stated in its brief order that it was dismissing
the petition, it explicitly relied upon Practice Book § 23-24 in doing so.
Because that provision authorizes the habeas court to decline to issue the
writ for lack of jurisdiction, we construe the court’s disposition of the
petition to be a decision to decline to ‘‘issue the writ.’’ The meaning of that
phrase can be ascertained by reference to historical practices regarding the
service and issuance of writs of habeas corpus in our state. At one point
in time, a habeas petition was filed with the court prior to it being served
on the commissioner. General Statutes (1918 Rev.) § 6033. The court would
then determine whether to issue the writ. General Statutes (1918 Rev.)
§ 6033. It was only if the court decided to issue the writ that the petition
would be served on the commissioner by an officer of the court and a
subsequent habeas trial be held. General Statutes (1918 Rev.) § 6033; see
also Adamsen v. Adamsen, 151 Conn. 172, 176, 195 A.2d 418 (1963) (‘‘Our
statute requires that the application for a writ of habeas corpus shall be
verified by the affidavit of the applicant for the writ alleging that he verily
believes the person on whose account such writ is sought is illegally confined
or deprived of his liberty. . . . The only purpose served by the application
is to secure the issuance of the writ in the discretion of the court. The issues
on which any subsequent trial is held are framed by the return and the
pleadings subsequent thereto.’’ [Citation omitted; internal quotation marks
omitted.]). Put differently, ‘‘[t]he issuance of the writ did not determine the
validity of the [petition] . . . . On the contrary, it served only to bring the
parties before the court in order that the issue of the alleged illegal restraint
might be solved.’’ Adamsen v. Adamsen, supra, 177.
4
For clarity and ease of analysis, we address the petitioner’s claims in a
different order than they are set forth in his brief. See Lebron v. Commis-
sioner of Correction, 178 Conn. App. 299, 311 n.8, 175 A.3d 46 (2017), cert.
denied, 328 Conn. 913, 179 A.3d 779 (2018).
5
The petitioner argues that Practice Book § 23-24 does not allow the
habeas court to enter a judgment of dismissal. It is true that § 23-24 authorizes
the court to ‘‘decline to issue the writ,’’ rather than dismiss the petition, if
it concludes, among other things, that it lacks jurisdiction. The court’s
decision to refrain from issuing the writ, however, is the functional equivalent
of a dismissal of the petition. Thus, we disagree with the petitioner that the
court’s action was improper. See footnote 3 of this opinion.
6
Although we conclude that the habeas court was not required to hold
a hearing before disposing of the petition in the present case, we urge the
habeas court to exercise this authority sparingly and limit its use to those
instances in which it is plain and obvious that the writ should not issue
under Practice Book § 23-24.
7
The petitioner relies on Santobello v. New York, 404 U.S. 257, 92 S. Ct.
495, 30 L. Ed. 427 (1971), for the proposition that the state must honor a
contract that it enters into with an inmate. We disagree that Santobello
compels such a determination in the present case. The United States
Supreme Court in Santobello considered a prosecutor’s obligation to honor
a plea agreement with a criminal defendant, and the decision reached by
the court depended largely on the unique responsibilities of a prosecutor
and the fairness considerations relevant to that stage of a criminal proceed-
ing. Id., 257–61. The present case, by contrast, presents a completely different
procedural posture. Moreover, neither concern considered by the court in
Santobello dictates our resolution of the petitioner’s claim. Thus, Santobello
is inapposite.
8
The petitioner failed to include his OAP in his appendix to his appellate
brief. The commissioner, however, included a blank OAP in his appendix.
Our review of the blank OAP reveals that it is a form, signed by an inmate,
that designates the specific programs that the inmate should participate in
during his or her period of incarceration in order to avoid negatively
impacting the inmate’s earning of risk reduction credits, chances of obtaining
supervised community release, or being granted parole. Although it notes
that ‘‘[f]ailure to comply with the OAP recommendations . . . shall nega-
tively impact your earning of Risk Reduction Earned Credit,’’ it does not
specify that the inmate will otherwise receive five days of risk reduction
credit per month.
9
The petitioner also argues that Petaway v. Commissioner of Correction,
supra, 160 Conn. App. 727, which the court cited in its short judgment of
dismissal, does not support the court’s conclusion that it lacked jurisdiction.
It is true that the resolution of the appeal in Petaway turned on the fact
that the petitioner did not have a liberty interest in parole eligibility, rather
than risk reduction credits. Id., 734. The court in Petaway, however, con-
cluded that the reason the petitioner did not have a liberty interest is that
the relevant statutory scheme gave the commissioner discretion to determine
parole eligibility. Id. Likewise, § 18-98e gives the commissioner discretion
to award risk reduction credits, which dictates that the petitioner in the
present case does not have a liberty interest in the credits. Petaway therefore
supports the conclusion that the court lacked jurisdiction to consider the
merits of the petition.