Wright v. Commissioner of Correction ( 2020 )

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IAN WRIGHT v. COMMISSIONER OF CORRECTION
(AC 43170)
Moll, Suarez and DiPentima, Js.
Syllabus
The petitioner, a Jamaican national who previously had been convicted of
various crimes, including murder, sought a writ of habeas corpus, claim-
ing that his federal and state constitutional rights to due process were
violated when he was denied a deportation parole eligibility hearing
pursuant to statute (§ 54-125d (c)) after serving 50 percent of his sen-
tence. The habeas court rendered judgment dismissing the habeas peti-
tion, concluding that it lacked subject matter jurisdiction because the
petitioner had no liberty interest in a deportation parole eligibility hear-
ing. The habeas court denied the petition for certification to appeal,
and the petitioner appealed to this court. Held that the habeas court
did not abuse its discretion in denying the petition for certification to
appeal, that court having properly determined that the petitioner lacked
a liberty interest in a deportation parole eligibility hearing pursuant to
§ 54-125d; the due process clause does not provide the petitioner with
a constitutionally protected liberty interest in a deportation parole hear-
ing, as there is no constitutional or inherent right of a convicted person
to be conditionally released before the expiration of a valid sentence;
furthermore, § 54-125d did not create a liberty interest in parole eligibility
or a parole eligibility hearing as the mandatory language ‘‘shall,’’ used
in § 54-125d (c), was inapplicable to the petitioner and is limited to
those persons whose eligibility for parole is restricted pursuant to a
different statute (§ 54-125a (b) (2)), which does not include the crime
for which the petitioner was convicted, namely, murder; moreover, § 54-
125d (b) vests the Department of Correction with discretion over depor-
tation parole eligibility determinations and, thus, did not create an
‘‘expectancy of release,’’ but only a possibility of parole; additionally,
although a sentencing court may refer a convicted person who is an
alien to the Board of Pardons and Paroles for deportation, it cannot do
so for a person convicted of a capital felony or a class A felony, and,
as murder is a class A felony, the sentencing court did not have the
discretion to refer the petitioner to the Board of Pardons and Paroles.
Argued September 10—officially released November 17, 2020
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Newson, J., rendered judg-
ment dismissing the petition; thereafter, the court
denied the petition for certification to appeal, and the
petitioner appealed to this court. Appeal dismissed.
Ian Wright, self-represented, the appellant (peti-
tioner).
Zenobia G. Graham-Days, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, and Clare E. Kindall, solicitor general, for the
appellee (respondent).
Opinion
DiPENTIMA, J. The self-represented petitioner, Ian
Wright, appeals following the habeas court’s denial of
his petition for certification to appeal from that court’s
dismissal of his petition for a writ of habeas corpus
due to lack of subject matter jurisdiction. On appeal,
the petitioner claims that the court (1) abused its discre-
tion in denying his petition for certification to appeal
and (2) improperly concluded that it lacked subject
matter jurisdiction over his petition when it reasoned
that the petitioner did not have a liberty interest in a
deportation parole eligibility hearing pursuant to Gen-
eral Statutes § 54-125d.1 We dismiss the appeal.
The petitioner’s claim on appeal centers on subsec-
tion (c) of § 54-125d, which concerns deportation
parole. Section 54-125d provides in relevant part: ‘‘(a)
The Board of Pardons and Paroles shall enter into an
agreement with the United States Immigration and Nat-
uralization Service for the deportation of parolees who
are aliens as described in 8 USC 1252a (b) (2) and for
whom an order of deportation has been issued pursuant
to 8 USC 1252 (b) or 8 USC 1252a (b).
‘‘(b) The Department of Correction shall determine
those inmates who shall be referred to the Board of
Pardons and Paroles based on intake interviews by the
department and standards set forth by the United States
Immigration and Naturalization Service for establishing
immigrant status.
‘‘(c) Notwithstanding the provisions of subdivision
(2) of subsection (b) of section 54-125a, any person
whose eligibility for parole is restricted under said sub-
division shall be eligible for deportation parole under
this section after having served fifty per cent of the
definite sentence imposed by the court. . . .’’2
The petitioner is a Jamaican national who was con-
victed in 2002, following a jury trial, of murder in viola-
tion of General Statutes § 53a-54a and carrying a pistol
or revolver without a permit in violation of General
Statutes § 29-35. The petitioner was sentenced to a total
effective term of thirty-five years of incarceration,
including a sentence enhancement pursuant to General
Statutes § 53-202k. His conviction was affirmed on
direct appeal. State v. Wright, 77 Conn. App. 80, 822
A.2d 940, cert. denied, 266 Conn. 913, 833 A.2d 466(2003). In 2013, the United States Immigration Court
ruled that the petitioner be removed from the United
States to Jamaica.
The self-represented petitioner filed an amended peti-
tion for a writ of habeas corpus in May, 2018. He alleged
that he has made several attempts to contact the Board
of Pardons and Paroles (board) for the purpose of
obtaining a deportation parole eligibility hearing. He
claimed that his due process rights were violated
hearing pursuant to § 54-125d (c) after having served
50 percent of his sentence. In a separate action filed in
March, 2018, the plaintiff initiated a civil rights action
pursuant to 42 U.S.C. § 1983, in which he similarly
argued that his federal and state constitutional rights
to due process were violated when he was not given a
deportation parole eligibility hearing. See Wright v.
Giles, 201 Conn. App. , A.3d (2020).
On September 19, 2018, pursuant to Practice Book
§ 23-29, the habeas court provided notice of a hearing to
determine whether, inter alia, the court lacked subject
matter jurisdiction over the petition.3 The respondent,
the Commissioner of Correction, thereafter filed a
motion to dismiss and, in a memorandum of law in
support thereof, argued that the court lacked subject
matter jurisdiction over the petition because the peti-
tioner failed to raise a liberty interest. Following oral
argument on November 9, 2018, the court issued an
order allowing the petitioner additional time to submit
written responses to the issues raised by the court’s
notice and the respondent’s motion to dismiss. The
petitioner filed a ‘‘Memorandum of Law In Support of
Objection to Respondent’s Motion to Dismiss,’’ which
included exhibits in support of his arguments, and later
filed a ‘‘Supplemental Memorandum of Law In Support
of Objection to Respondent’s Motion to Dismiss.’’ A
second hearing was held on February 22, 2019.
In a memorandum of decision filed May 10, 2019, the
court dismissed the petition for lack of subject matter
jurisdiction. The court rejected the petitioner’s interpre-
tation of § 54-125d (c) that parole eligibility was manda-
tory once 50 percent of a sentence is served and con-
cluded that, in light of § 54-125d (b), the statute did
not convey a liberty interest. The court reasoned that
deportation parole eligibility does not ‘‘simply rest on
the amount of a sentence that has been served, as
argued by the petitioner, but requires an interview pro-
cess, and vests discretion with [the United States Immi-
gration and Naturalization Service] to determine the
standards a particular inmate must meet in that pro-
cess.’’ The court further reasoned, citing Baker v. Com-
missioner of Correction, 281 Conn. 241, 914 A.2d 1034(2007), that permissive language in parole statutes does
not give rise to a liberty interest and, because ‘‘the
operative language of this statute clearly contemplates
an eligibility determination process, the petitioner has
no inherent recognized liberty interest, nor any state
created liberty interest, in a deportation parole eligibil-
ity hearing.’’ (Internal quotation marks omitted.) The
petitioner filed a petition for certification to appeal,
which the court denied. This appeal followed.
I
The petitioner first claims that the court erred in
denying his petition for certification to appeal from
the court’s dismissal of his petition for lack of subject
matter jurisdiction.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . Sec-
ond, if the petitioner can show an abuse of discretion,
he must then prove that the decision of the habeas
court should be reversed on the merits. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling . . . [and]
[r]eversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done.’’ (Citations omitted; internal quotation marks
omitted.) Perry v. Commissioner of Correction, 131
Conn. App. 792, 795–96, 28 A.3d 1015, cert. denied, 303
Conn. 913, 32 A.3d 966 (2011).
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court
must be affirmed.’’ (Internal quotation marks omitted.)
Mourning v. Commissioner of Correction, 169 Conn.
App. 444, 448, 150 A.3d 1166 (2016), cert. denied, 324
Conn. 908, 152 A.3d 1246 (2017). We conclude, on the
basis of our review of the petitioner’s substantive claim,
that he cannot prevail under the two-pronged test in
Simms because he has not demonstrated that the court
abused its discretion in denying certification to appeal.
II
The petitioner claims that the court improperly dis-
missed his petition for lack of subject matter jurisdic-
tion. He contends that the court has subject matter
jurisdiction over his petition because he has a cogniza-
ble liberty interest in a deportation parole hearing and/
or eligibility on the basis of the mandatory language
‘‘shall’’ used in § 54-125d (c) concerning deportation
parole eligibility. He argues that, because he has served
50 percent of his sentence, he ‘‘shall be eligible for
deportation parole’’ according to § 54-125d (c). We
disagree.
‘‘The standard of review of a motion to dismiss is . . .
well established. In ruling upon whether a complaint
survives a motion to dismiss, a court must take the
facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader. . . . The conclusions reached by the trial
court in its decision to dismiss [a] habeas petition are
matters of law, subject to plenary review. . . . [When]
the legal conclusions of the court are challenged, [the
reviewing court] must determine whether they are
legally and logically correct . . . and whether they find
support in the facts that appear in the record.’’ (Citation
omitted; internal quotation marks omitted.) Woods v.
Commissioner of Correction, 197 Conn. App. 597, 606–
607, 232 A.3d 63 (2020).
‘‘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 has no right to due pro-
cess . . . unless a liberty interest has been deprived
. . . . Our first inquiry, therefore, is whether the peti-
tioner has alleged a protected liberty interest. That ques-
tion implicates the subject matter jurisdiction of the
habeas court.’’ (Citation omitted; internal quotation
marks omitted.) Anthony A. v. Commissioner of Cor-
rection, 326 Conn. 668, 674–75, 166 A.3d 614 (2017).
‘‘[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 petitioner 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 constitutionally protected liberty [interest] . . . the
interest must be one that is assured either by statute,
judicial decree, or regulation.§ (Citations omitted; inter-
nal quotation marks omitted.) Green v. Commissioner
of Correction, 184 Conn. App. 76, 85, 194 A.3d 857, cert.
denied, 330 Conn. 933, 195 A.3d 383 (2018).
‘‘Liberty interests protected by the [f]ourteenth
[a]mendment may arise from two sources—the [d]ue
[p]rocess [c]lause itself and the laws of the [s]tates.’’
(Internal quotation marks omitted.) State v. Matos, 240
Conn. 743, 749, 694 A.2d 775 (1997). ‘‘A liberty interest
may arise from the [c]onstitution itself, by reason of
guarantees implicit in the word ‘liberty,’ see, e.g., Vitek
v. Jones, 445 U.S. 480, [493–94], 100 S. Ct. 1254, 63 L. Ed.
2d 552 (1980) (liberty interest in avoiding involuntary
psychiatric treatment and transfer to mental institu-
tion), or it may arise from an expectation or interest
created by state laws or policies, see, e.g., Wolff v.
McDonnell, 418 U.S. 539, [556–58], 94 S. Ct. 2963, 41 L.
Ed. 2d 935 (1974) (liberty interest in avoiding with-
drawal of state-created system of good-time credits).’’
Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384,
162 L. Ed. 2d 174 (2005). It is clear that the first of
those two sources does not provide the petitioner in
this case with a liberty interest in a deportation parole
hearing. The United States Supreme Court has held
that ‘‘[t]here is no constitutional or inherent right of a
convicted person to be conditionally released before
the expiration of a valid sentence. . . . A state may
. . . establish a parole system, but it has no duty to do
so." (Citations omitted.) Greenholtz v. Inmates of the
Nebraska Penal & Correctional Complex, 442 U.S. 1,
7, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979); see also
Swarthout v. Cooke, 562 U.S. 216, 220, 131 S. Ct. 859,
178 L. Ed. 2d 732 (2011).
The second source, state law, does not provide the
petitioner in this case with a cognizable liberty interest.
In Greenholtz v. Inmates of Nebraska Penal & Correc-
tional Complex, supra, 442 U.S. 7, which specifically
concerned whether inmates had been unconstitution-
ally denied parole pursuant to a state parole statute,
the United States Supreme Court determined that the
existence of a state-created liberty interest was to be
determined on a "case-by-case" basis and, that under
the circumstances present in Greenholtz, the court
accepted the inmates’ argument that the use of the
mandatory language "shall" in a state parole statute
created a legitimate "expectancy of release" that was
entitled to constitutional protection. Id., 12. In Board
of Pardons v. Allen, 482 U.S. 369, 107 S. Ct. 2415, 96 L.
Ed. 2d 303 (1987), which also specifically concerned a
state’s parole regulations, the United States Supreme
Court determined that the state statute created a due
process liberty interest in parole because the statute
"uses mandatory language (‘shall’) to creat[e] a pre-
sumption that parole release will be granted when the
designated findings are made."4 (Footnote omitted;
internal quotation marks omitted.) Id., 377–78. In the
recent decision of Dinham v. Commissioner of Correc-
tion, 191 Conn. App. 84, 97–98, 213 A.3d 507, cert.
denied, 333 Conn. 927, 217 A.3d 995 (2019), this court
stated: "Our appellate courts have concluded, consis-
tently, 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 [respondent] is authorized to award those
benefits is discretionary in nature." (Internal quotation
marks omitted.)
In Boyd v. Commissioner of Correction, 199 Conn.
App. 575, 581–90, A.3d , cert. granted, 335 Conn.
962, A.3d (2020), this court examined a state
parole statute for mandatory or discretionary language
to determine whether the legislature vested the peti-
tioner with a liberty interest in parole eligibility suffi-
cient to invoke the subject matter jurisdiction of the
habeas court. This court held that the language of the
statute for determining parole eligibility of juvenile
offenders, General Statutes ’’ 54-125a (f), vested the
petitioner with a cognizable liberty interest in parole
eligibility status because, according to the language of
the statute, the board was ‘‘required to hold a hearing
[w]henever a person becomes eligible for parole
release, and the petitioner . . . will become eligible
for parole release after serving 60 percent of his fifty
year sentence . . . .’’ (Internal quotation marks omit-
ted.) Id., 587. But see Perez v. Commissioner of Correc-
tion, 326 Conn. 357, 371, 163 A.3d 597 (2017) (parole
eligibility pursuant to § 54-125a does not constitute cog-
nizable liberty interest sufficient to invoke habeas juris-
diction because decision to grant parole entirely is
within discretion of board); Rivera v. Commissioner
of Correction, 186 Conn. App. 506, 515, 200 A.3d 701(2018) (petitioner did not have constitutionally pro-
tected liberty interest because applicable risk reduction
credit statute provided that credit be awarded at respon-
dent’s discretion), cert. denied, 331 Conn. 901, 201 A.3d
402 (2019); Boria v. Commissioner of Correction, 186
Conn. App. 332, 344, 199 A.3d 1127 (2018) (risk reduc-
tion credits provided to inmates at discretion of respon-
dent pursuant to General Statutes § 18-98e (a)), cert.
granted on other grounds, 335 Conn. 901, 225 A.3d 685(2020); Green v. Commissioner of Correction, 184
Conn. App. 76, 86–87, 194 A.3d 857 (no liberty interest
in risk reduction credits where award credits discretion-
ary pursuant to § 18-98e), cert. denied, 330 Conn. 933,
195 A.3d 383 (2018); Byrd v. Commissioner of Correc-
tion, 177 Conn. App. 71, 82, 171 A.3d 1103 (2017) (to
constitute constitutionally protected liberty interest,
interest must be assured by state statute, judicial decree
or regulation).
In the present case, the deportation parole statute,
§ 54-125d, does not create a liberty interest in parole
eligibility or a parole eligibility hearing.5 First, the peti-
tioner’s argument that the parole deportation statute
creates a liberty interest rests on the use of the manda-
tory language ‘‘shall’’ in § 54-125d (c). That subsection,
however, does not apply to the petitioner. Section 54-
125d (c) provides that, ‘‘[n]otwithstanding the provi-
sions of subdivision (2) of subsection (b) of section 54-
125a, any person whose eligibility for parole is
restricted under said subdivision shall be eligible for
deportation parole under this section after having
served fifty per cent of the definite sentence imposed
by the court.’’ (Emphasis added.) By its plain terms,
the applicability of § 54-125d (c) is limited to persons
whose eligibility for parole is restricted pursuant to
§ 54-125a (b) (2). Section 54-125a (b) (2) provides that
‘‘[a] person convicted of (A) a violation of section 53a-
100aa or 53a-102, or (B) an offense, other than an
offense specified in subdivision (1) of this subsection,
where the underlying facts and circumstances of the
offense involve the use, attempted use or threatened
use of physical force against another person shall be
ineligible for parole under subsection (a) of this section
until such person has served not less than eighty-five
per cent of the definite sentence imposed.’’ Thus, § 54-
125a (b) (2) does not include the crime for which the
petitioner had been convicted, murder in violation of
§ 53a-54a, which crime is specified in § 54-125a (b) (1)
(E). Accordingly, because the word ‘‘shall’’ as used in
§ 54-125d (c) does not apply to the petitioner, that lan-
guage cannot form the basis for the petitioner’s claimed
liberty interest.
Second, subsection (b) of § 54-125d vests the Depart-
ment of Correction (department) with discretion over
deportation parole eligibility determinations. Subsec-
tion (b) provides that ‘‘[t]he Department of Correction
shall determine those inmates who shall be referred
to the Board of Pardons and Paroles based on intake
interviews by the department and standards set forth
by the United States Immigration and Naturalization
Service for establishing immigrant status.’’ General Stat-
utes § 54-125d (b). As a result, whether a particular
inmate is referred to the board depends on the result
of intake interviews conducted by the department.
Accordingly, because of the discretion that the plain
language of § 54-125d (b) confers on the department in
the interview process, the deportation parole statute
does not create an ‘‘expectancy of release’’; Greenholtz
v. Inmates of Nebraska Penal & Correctional Complex,
supra, 442 U.S. 12. The deportation parole statute only
creates the possibility of parole, provided multiple fac-
tors are satisfied, including a discretionary determina-
tion by the department following an interview process.
‘‘That the state holds out the possibility of parole pro-
vides no more than a mere hope that the benefit will
be obtained . . . a hope which is not protected by due
process.’’ (Citation omitted; emphasis omitted.) Id., 11.
Additionally, according to § 54-125d (d), ‘‘a sentenc-
ing court may refer any person convicted of an offense
other than a capital felony or a class A felony who
is an alien to the Board of Pardons and Paroles for
deportation under this section.’’ According to the plain
language of this subsection, the referral process is dis-
cretionary. Moreover, because murder is a class A fel-
ony; see General Statutes § 53a-35a (2); State v. Adams,
308 Conn. 263, 272–73, 63 A.3d 934 (2013); the sentenc-
ing court is not given discretion to refer the petitioner
to the board.
For the foregoing reasons, the petitioner has not
alleged a constitutionally protected liberty interest that
invokes the jurisdiction of the habeas court. The peti-
tioner has failed to sustain his burden that the denial
of his petition for certification to appeal was a clear
abuse of discretion or that an injustice has been done.
See Simms v. Warden, supra, 230 Conn. 612; see also
Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860,
112 L. Ed. 2d 956 (1991). Therefore, we conclude that
the habeas court did not abuse its discretion in denying
the petitioner’s petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner also claims that, in failing to grant him a deportation
parole eligibility hearing, the respondent, the Commissioner of Correction,
failed to adhere to the Uniform Administrative Procedures Act for rule
making. See General Statutes § 4-183 et seq. Because we determine that the
habeas court properly concluded that the petitioner did not have a liberty
interest in deportation parole eligibility, we decline to address this claim.
For the petitioner’s claim to be cognizable in a habeas action, the petitioner
would have to have at least some type of constitutional or statutorily created
liberty interest in deportation parole eligibility. See Vincenzo v. Warden, 26
Conn. App. 132, 138, 599 A.2d 31 (1991). Because the petitioner does not
have such a liberty interest, the habeas court lacked subject matter jurisdic-
tion over this claim. See id., 143–44. ‘‘Unless a liberty interest in parole
exists, the procedures followed in the parole determination are not required
to comport with standards of fundamental fairness.’’ Id., 144. ‘‘[A] court
lacks discretion to consider the merits of a case over which it is without
jurisdiction . . . .’’ (Internal quotation marks omitted.) Green v. Commis-
sioner of Correction, 184 Conn. App. 76, 85, 194 A.3d 857, cert. denied, 330
Conn. 933, 195 A.3d 383 (2018).
2
General Statutes § 54-125a (b) provides: ‘‘(1) No person convicted of any
of the following offenses, which was committed on or after July 1, 1981,
shall be eligible for parole under subsection (a) of this section: (A) Capital
felony, as provided under the provisions of section 53a-54b in effect prior
to April 25, 2012, (B) murder with special circumstances, as provided under
the provisions of section 53a-54b in effect on or after April 25, 2012, (C)
felony murder, as provided in section 53a-54c, (D) arson murder, as provided
in section 53a-54d, (E) murder, as provided in section 53a-54a, or (F) aggra-
vated sexual assault in the first degree, as provided in section 53a-70a. (2)
A person convicted of (A) a violation of section 53a-100aa or 53a-102, or
(B) an offense, other than an offense specified in subdivision (1) of this
subsection, where the underlying facts and circumstances of the offense
involve the use, attempted use or threatened use of physical force against
another person shall be ineligible for parole under subsection (a) of this
section until such person has served not less than eighty-five per cent of
the definite sentence imposed.’’
3
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion or upon motion of the respondent,
dismiss the petition, or any count thereof, if it determines that: (1) the court
lacks jurisdiction . . . .’’
4
In Sandin v. Conner, 515 U.S. 472, 479–84, 115 S. Ct. 2293,132 L. Ed. 2d 418(1995), which concerned internal prison regulations concerning disciplinary
segregation, the United States Supreme Court criticized the methodology
that had been used in a long line of cases, including Greenholtz, of searching
for mandatory language in order to determine whether a state-created liberty
interest existed. The court instead favored an analysis for determining state-
created liberty interests that focused on the nature of the deprivation, namely
whether an ‘‘atypical and significant hardship’’ has been placed ‘‘on the
inmate in relation to the ordinary incidents of prison life.’’ Sandin v. Conner,
supra, 515 U.S. 484. In Anthony A. v. Commissioner of Correction, supra,
326 Conn. 675–79, our Supreme Court noted Sandin’s criticism of such
mandatory versus discretionary methodology in the context of an inmate’s
claim that he was incorrectly classified as a sex offender, to which claim
our Supreme Court applied the stigma plus test. Id., 675–81 (in applying
stigma plus test, court asked ‘‘whether the allegations of the petition demon-
strate that the classification was wrongful and stigmatized the petitioner,
and that the consequences suffered by the petitioner were ‘qualitatively
different’ from the punishments usually suffered by prisoners, so that they
constituted a major change in the conditions of confinement amounting to
a grievous loss").
The approach of applying the methodology in Greenholtz to claims regard-
ing alleged liberty interests in parole eligibility and interpreting Sandin as
not applying to such claims has been adopted by other courts. The United
States Court of Appeals for the District of Columbia Circuit aptly describes
the reasoning involved in such an interpretation in Ellis v. District of Colum-
bia, 84 F.3d 1413 (D.C. Cir. 1996): "The Sandin test relates to claims dealing
with the day-to-day management of prisons. It seems ill-fitted to parole
eligibility determinations. Parole is, in the words of Sandin, surely a freedom
from restraint but the restraint itself will always be an ordinary incident of
prison life. . . . In other words, if a prisoner is denied parole—if, in terms
of Sandin, the prisoner is restrained—the prisoner will never suffer an
atypical or significant hardship as compared to other prisoners. He will
continue to serve his sentence under the same conditions as his fellow
inmates. There is no room for an argument that the denial of parole always
imposes extraordinary hardship by extending the length of incarceration,
and therefore gives rise to a liberty interest protected by the [d]ue [p]rocess
[c]lause. That is simply a recasting of the argument—rejected in Greenholtz
. . . and unaffected by Sandin—that a liberty interest in parole stems
directly from the [c]onstitution without regard to state law. And yet given
Greenholtz and Allen, an inferior court could not accept an argument that,
no matter what state law provides, a prisoner’s interest in parole can never
amount to a liberty interest protected by the [d]ue [p]rocess [c]lause. Where
does this leave us? Sandin did not overrule Greenholtz or Allen or any
other Supreme Court decision. . . . To be sure, it abandoned the reasoning
embodied in those opinions, at least insofar as applied to prisoners challeng-
ing the conditions of their confinement or the administration of the prison.
In this situation, we think the only course open to us is to comply with the
rule expressed in Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989): ‘If a precedent of
this [c]ourt has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to this [c]ourt the prerogative of
overruling its own decisions.’ [Id., 484] . . . . Until the [c]ourt instructs us
otherwise, we must follow Greenholtz and Allen because, unlike Sandin,
they are directly on point. Both cases deal with a prisoner’s liberty interest
in parole; Sandin does not." (Citation omitted; internal quotation marks
omitted.) Ellis v. District of Columbia, supra, 1418.
In the present case, we apply the mandatory versus discretionary analysis
used in Greenholtz and Allen. It remains good law that an inmate does not
have a constitutionally protected liberty interest in early parole consider-
ation. See, e.g., 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).
5
The respondent argues that the petitioner does not have a liberty interest
in deportation parole eligibility pursuant to ’’ 54-125d for the additional
reason that the petitioner was convicted of murder in violation of § 53a-
54a, and § 54-125a (b) (1) (E) provides that ‘‘[n]o person convicted of any
of the following offenses, which was committed on or after July 1, 1981,
shall be eligible for parole under subsection (a) of this section . . . murder,
as provided in section 53a-54a . . . .’’ (Emphasis added.) By its terms,
however, § 54-125a (b) (1) (E) applies only to the ineligibility for parole
under § 54-125a (a).