Jordan v. Commissioner of Correction , 190 Conn. App. 557 ( 2019 )

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BRYAN JORDAN v. COMMISSIONER
OF CORRECTION
(AC 41750)
Keller, Elgo and Harper, Js.
Syllabus
The petitioner, who had been convicted of the crimes of manslaughter in
the first degree with a firearm and carrying a pistol or revolver without
a permit, sought a writ of habeas corpus, claiming that the respondent,
the Commissioner of Correction, by having the petitioner sign an
offender accountability plan, had entered into, and subsequently
breached, a purported contract to award him risk reduction credit in
exchange for his adherence to his offender accountability plan. The
habeas court, sua sponte, rendered judgment dismissing the habeas
petition for lack of subject matter jurisdiction and failure to state a
claim on which habeas relief could be granted, from which the petitioner,
on the granting of certification, appealed to this court. Held that the
habeas court properly dismissed the petitioner’s breach of contract
claim for lack of subject matter jurisdiction: both this court and our
Supreme Court have consistently held that an inmate does not have a
cognizable liberty interest in earning future risk reduction credit, and
the petitioner’s claim that he had a contractual interest in earning risk
reduction credit by virtue of his offender accountability plan with the
respondent that was sufficient to invoke the habeas court’s subject
matter jurisdiction was unavailing, as certain case law on which the
petitioner relied in support of his claim holding that a prosecutor has
an obligation to honor a plea agreement was distinguishable from the
present case, which did not involve the plea bargaining process, and
because the petitioner has not been segregated from the general prison
population, there was no concern that he has not been afforded due
process in avoiding segregation and his claim, thus, did not give rise
to a cognizable liberty interest; moreover, there was no merit to the
petitioner’s claim that if he had not signed the offender accountability
plan he would not be subject to the same punishment, as it would defy
logic that the respondent would be unable to discipline an inmate for
disobedience in the absence of an offender accountability plan.
Argued February 5—officially released June 11, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Hon. Edward J. Mullarkey,
judge trial referee, sua sponte, rendered judgment dis-
missing the petition for lack of subject matter jurisdic-
tion, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
Arthur L. Ledford, special public defender, for the
appellant (petitioner).
Steven R. Strom, assistant attorney general, with
whom, on the brief, was George Jepsen, former attorney
general, for the appellee (respondent).
Opinion
HARPER, J. The petitioner, Bryan Jordan, appeals
from the judgment of the habeas court dismissing his
petition for a writ of habeas corpus for lack of subject
matter jurisdiction and for the failure to state a claim
upon which habeas relief can be granted. The petition-
er’s sole claim on appeal is that the habeas court
improperly dismissed his claim that the respondent, the
Commissioner of Correction, entered into, and subse-
quently breached, a purported contract with the peti-
tioner to award him risk reduction credit in exchange
for his adherence to his offender accountability plan.
We disagree and, accordingly, affirm the judgment of
the habeas court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. The petitioner was
found guilty, following a jury trial, of manslaughter in
the first degree with a firearm in violation of General
Statutes § 53a-55a (a) and carrying a pistol or revolver
without a permit in violation of General Statutes § 29-
35 (a). The charges stemmed from a shooting death
that occurred on September 19, 2005. See State v. Jor-
dan, 117 Conn. App. 160, 161, 978 A.2d 150, cert. denied,
294 Conn. 904, 982 A.2d 648 (2009). On April 27, 2007, the
petitioner was sentenced to a total effective sentence
of forty-five years of incarceration.1 The petitioner’s
conviction was upheld on direct appeal by this court.
See id.Thereafter, the then self-represented petitioner initi-
ated this action by filing a petition for a writ of habeas
corpus. On November 6, 2017, the petitioner, after
obtaining counsel, filed the operative amended petition
alleging, inter alia, breach of contract. Specifically, the
petitioner’s breach of contract claim alleges that the
respondent, by virtue of having the petitioner sign his
offender accountability plan, agreed to award the peti-
tioner five days of risk reduction credit per month in
exchange for the petitioner’s adherence to the offender
accountability plan. Further, he alleges that, once No.
15-216 of the 2015 Public Acts (P.A. 15-216) came into
effect, which rendered the petitioner unable to earn
further risk reduction credit, the respondent nonethe-
less breached the parties’ agreement by failing to award
further risk reduction credit.
On March 19, 2018, the court, sua sponte, dismissed
the amended petition for lack of subject matter jurisdic-
tion and failure to state a claim on which habeas relief
could be granted.2 See Practice Book § 23-29.3 The court
in its memorandum of decision did not address each of
the petitioner’s counts but, instead, broadly concluded
that the court did not have subject matter jurisdiction
over the petitioner’s claims and that the petitioner had
failed to state a claim on which habeas relief could be
granted. The court subsequently granted the petition
for certification to appeal, which was timely filed in
this court. Additional facts will be set forth as necessary.
We begin our analysis with the applicable standards
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 fundamental 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 contro-
versy 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 mat-
ter 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.
‘‘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. . . . In other words, a
petitioner must allege an interest sufficient to give rise
to habeas relief. . . . In order to . . . qualify as a con-
stitutionally protected liberty [interest] . . . the inter-
est must be one that is assured either by statute, judicial
decree, or regulation.’’ (Citations omitted; internal quo-
tation marks omitted.) Green v. Commissioner of Cor-
rection, 184 Conn. App. 76, 85, 194 A.3d 857, cert.
denied, 330 Conn. 933, 195 A.3d 383 (2018).
‘‘Likewise, [w]hether a habeas court properly dis-
missed 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.’’ (Internal
quotation marks omitted.) Perez v. Commissioner of
Correction, 326 Conn 357, 368, 163 A.3d 597 (2017). ‘‘It
is well settled that [t]he petition for a writ of habeas
corpus is essentially a pleading and, as such, it should
conform generally to a complaint in a civil action.’’
(Internal quotation marks omitted.) Pentland v. Com-
missioner of Correction, 176 Conn. App. 779, 786, 169
A.3d 851, cert. denied, 327 Conn. 978, 174 A.3d 800(2017). ‘‘In reviewing whether a petitioner states a claim
for habeas relief, we accept its allegations as true.’’
Coleman v. Commissioner of Correction, 137 Conn.
App. 51, 55, 46 A.3d 1050 (2012). We next turn to a
brief discussion of the relevant law pertaining to risk
reduction credit.
Pursuant to General Statutes (Rev. to 2011) § 18-98e,
the respondent had discretion to award risk reduction
credit to reduce an inmate’s sentence, up to five days
per month, for good conduct. Section 18-98e subse-
quently was amended, however, by P.A. 15-216, such
that inmates convicted of certain violent crimes, includ-
ing manslaughter in the first degree with a firearm, are
no longer eligible to earn future risk reduction credit.4
Both our Supreme Court and this court have consis-
tently held that an inmate does not have a cognizable
liberty interest in earning future risk reduction credit.
See Perez v. Commissioner of Correction, supra, 326
Conn. 370–73; Rivera v. Commissioner of Correction,
186 Conn. App. 506, 514, 200 A.3d 701 (2018), cert.
denied, 331 Conn. 901, 201 A.3d 402 (2019) (collecting
cases). With these legal principles in mind, we now
turn to the petitioner’s claim.
The petitioner argues that his claim that the respon-
dent breached a contract by failing to award him risk
reduction credit in exchange for adherence to his
offender accountability plan implicates a cognizable
liberty interest sufficient to invoke the court’s subject
matter jurisdiction. The petitioner does not dispute our
well established jurisprudence that there is no liberty
interest in risk reduction credit. See Perez v. Commis-
sioner of Correction, supra, 326 Conn. 370–73. Rather,
the petitioner essentially argues that he has a contrac-
tual interest in earning risk reduction credit by virtue
of his alleged agreement with the respondent to adhere
to his offender accountability plan in exchange for risk
reduction credit.5 To bolster this claim, the petitioner
argues that, pursuant to Santobello v. New York, 404
U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), his
breach of contract claim is sufficient to invoke the
court’s subject matter jurisdiction. We do not find San-
tobello to be applicable in the present case.6
In Santobello, the defendant agreed to plead guilty
to a lesser offense if the prosecutor agreed not to make
a recommendation as to the length of the defendant’s
sentence. Id., 258. At the time of the defendant’s sen-
tencing, a different prosecutor, who was unaware of the
plea agreement, recommended the maximum sentence,
which the court imposed, in violation of the agreement.
Id., 259. The court held that a prosecutor has an obliga-
tion to honor a plea agreement with a criminal defen-
dant. Id., 262. Central to the court’s holding was the
importance of plea bargaining to our judicial system
and the need to ensure fairness during that phase of
the judicial process. Id. (‘‘[t]his [plea bargaining] phase
of the process of criminal justice, and the adjudicative
element inherent in accepting a plea of guilty, must be
attended by safeguards to insure the defendant what
is reasonably due in the circumstances’’).
By contrast, in the present case, the alleged
agreement between the petitioner and the respondent
did not take place during the plea bargaining process,
but, rather, after the petitioner had been convicted and
was incarcerated. Thus, the concerns regarding fairness
during the plea bargaining process are not present here
as they were in Santobello. Moreover, our reading and
application of Santobello in the present case is consis-
tent with our prior holding in Green v. Commissioner
of Correction, supra, 184 Conn. App. 84, in which this
court addressed a petitioner’s claim that he entered into
a binding contract with the respondent that allegedly
conferred on him a contractual right to earn risk reduc-
tion credit. This court rejected the petitioner’s assertion
in that case that the respondent, pursuant to Santobello,
was required to honor the purported contract because it
found that the habeas action ‘‘present[ed] a completely
different procedural posture’’ than the plea bargaining
process. Id., 89 n.7. Additionally, this court concluded
that, even if the petitioner properly had alleged a breach
of contract claim against the respondent,7 a breach of
contract claim did not invoke the habeas court’s subject
matter jurisdiction because ‘‘the petitioner, at best, has
a contractual interest in such [credit] rather than a
constitutionally protected liberty interest.’’ Id., 91.
The petitioner, citing to Vandever v. Commissioner
of Correction, 315 Conn. 231, 106 A.3d 266 (2014), also
argues that his claim raises a valid liberty interest
because, if he does not comply with his offender
accountability plan, he can potentially receive a disci-
plinary ticket and, as a result, may be segregated from
the general inmate population. In Vandever, our
Supreme Court recognized that ‘‘prison inmates have
a protected liberty interest in avoiding certain condi-
tions of confinement if, pursuant to state statute or
regulation, they can be subjected to such conditions
only if certain procedural requirements are met, and
those conditions impose an atypical and significant
hardship in relation to the ordinary incidents of prison
life.’’ Id., 232–33. The court therefore examined whether
the petitioner in that case had a liberty interest in
avoiding administrative segregation and was accord-
ingly afforded due process before his segregation.
Id., 233.
In the present case, the petitioner has not been segre-
gated from the general prison population and, as a
result, there is no concern that he has not been afforded
due process in avoiding segregation. We also find dubi-
ous the petitioner’s assertion in his appellate brief that,
if he had not signed the offender accountability plan,
he would not be subject to the same punishment. It
defies logic that the respondent would be unable to
discipline an inmate for disobedience in the absence
of an offender accountability plan. Accordingly,
because the petitioner’s claim in the present case does
not give rise to a cognizable liberty interest,8 we con-
clude that the habeas court properly dismissed the peti-
tioner’s breach of contract claim for lack of subject
matter jurisdiction.9
The judgment is affirmed.
In this opinion the other judges concurred.
1
Specifically, the petitioner was sentenced to forty years of incarceration
for manslaughter with a firearm in the first degree and five years of incarcera-
tion for carrying a pistol without a permit, to be served consecutively.
2
In a separate proceeding on a different petition for a writ of habeas
corpus alleging ineffective assistance of counsel, the habeas court vacated
the petitioner’s manslaughter conviction and remanded the case to the trial
court for a new trial, after which the respondent filed an appeal to this
court. See Jordan v. Warden, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX-S (October 1, 2018). This court has yet to rule
on that matter.
3
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion . . . dismiss the [habeas] petition,
or any count thereof, if it determines that: (1) the court lacks jurisdiction;
[or] (2) the petition, or count thereof, fails to state a claim upon which
habeas corpus relief can be granted . . . .’’
4
General Statutes (Supp. 2016) 18-98e (a) provides in relevant part: ‘‘Not-
withstanding 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 committed to the custody of the Commissioner of Correction on
or after said date, except a person sentenced for a violation of . . . [§] 53a-
55a . . . 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.’’ (Empha-
sis added.)
We also note that an additional amendment was made to § 18-98e pursuant
to No. 18-155 of the 2018 Public Acts, but it is of no consequence to the
matters raised in this appeal.
5
A review of the petitioner’s offender accountability plan reveals that it
is a document which recommends and sets forth the expectation that an
inmate should participate in various programs, services, and activities while
incarcerated. The plan states that the failure to comply with the offender
accountability plan ‘‘shall negatively impact your earning of [r]isk [r]eduction
[e]arned [c]redit . . . .’’ Furthermore, the document states above the signa-
ture line that the inmate has reviewed the recommendations made in the
plan and that he or she is expected to enroll in the recommended programs.
6
The petitioner cites to Orcutt v. Commissioner of Correction, 284 Conn.
724, 937 A.2d 656 (2007), for the proposition that our Supreme Court has
recognized that habeas courts have subject matter jurisdiction over Santobe-
llo claims. Because Santobello is not applicable in the present case, however,
Orcutt is inapposite.
7
The petitioner in Green failed to identify in his operative habeas petition
the contract between him and the respondent that was allegedly breached.
Green v. Commissioner of Correction, supra, 184 Conn. App. 90. It was not
until his appeal to this court that the petitioner in that case alleged that his
offender accountability plan was a binding contract between him and the
respondent. Id., 91.
8
Moreover, in his appellate brief, the petitioner makes a conclusory state-
ment that his case is analogous to Anthony A. v. Commissioner of Correc-
tion, 326 Conn. 668, 166 A.3d 614 (2017), because he will suffer negative
consequences as a disciplinary problem if he does not adhere to his offender
accountability plan. Our Supreme Court in Anthony A., however, specifically
addressed the stigmatizing effect of being classified as a sex offender. Id.,
681. The petitioner in his appellate brief fails to elaborate on why being
classified as a disciplinary problem is akin to being classified as a sex
offender. Accordingly, we reject his claim as inadequately briefed. ‘‘Claims
are inadequately briefed when they are merely mentioned and not briefed
beyond a bare assertion. . . . Claims are also inadequately briefed when
they . . . consist of conclusory assertions . . . with no mention of relevant
authority and minimal or no citations from the record . . . .’’ (Internal
quotation marks omitted.) Estate of Rock v. University of Connecticut, 323
Conn. 26, 33, 144 A.3d 420 (2016).
9
Even if the court had subject matter jurisdiction over the petitioner’s
claim, it still properly dismissed the petitioner’s petition for its failure to
state a claim on which habeas relief can be granted because there was no
contract formed between the petitioner and respondent. Nowhere in the
offender accountability plan is there a promise made by the respondent
that, in exchange for adherence to the plan, the petitioner would receive a
certain amount of risk reduction credit per month. Accordingly, a contract
was not formed between the parties because there was no bargained for
exchange. ‘‘[C]onsideration is [t]hat which is bargained-for by the promisor
and given in exchange for the promise by the promisee . . . . Consideration
consists of a benefit to the party promising, or a loss or detriment to the
party to whom the promise is made.’’ (Internal quotation marks omitted.)
Willamette Management Associates, Inc. v. Palczynski, 134 Conn. App. 58,
70, 38 A.3d 1212 (2012).
We also note, as this court did in Green v. Commissioner of Correction,
supra, 184 Conn. App. 91–92, that, given the discretion that the legislature
has bestowed on the respondent to issue or revoke risk reduction credit
pursuant to § 18-98e, it is doubtful that the respondent has the statutory
authority to enter into a contract with an inmate by which it subsequently
bargains away its discretion to award risk reduction credit. ‘‘Such action
would contravene the plain language of the statute and frustrate the legisla-
ture’s clear intent that the [risk reduction credit] program be discretionary
in nature.’’ Id.
Further, even if, arguendo, a valid contract was formed, the legislature
has stripped the respondent of the authority to award future risk reduction
credit to the petitioner, thus rendering the respondent’s performance under
the contract legally impossible. ‘‘Where, after a contract is made, a party’s
performance is made impracticable without his fault by the occurrence of
an event the nonoccurrence of which was a basic assumption on which the
contract was made, his duty to render that performance is discharged, unless
the language or the circumstances indicate the contrary.’’ (Internal quotation
marks omitted.) West Haven Sound Development Corp. v. West Haven,
201 Conn. 305, 313, 514 A.2d 734 (1986) (quoting 2 Restatement [Second],
Contracts § 261 [1981]).