Stephenson v. Commissioner of Correction ( 2021 )

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JOSEPH STEPHENSON v. COMMISSIONER
OF CORRECTION
(AC 43166)
Bright, C. J., and Moll and Suarez, Js.
Syllabus
The petitioner, who had been convicted of burglary in the third degree,
attempt to commit tampering with physical evidence and attempt to
commit arson in the second degree, sought a writ of habeas corpus,
claiming that the Commissioner of Correction and the Board of Pardons
and Paroles violated and misapplied the parole eligibility statute (§ 54-
125a) to increase his punishment, delay his parole eligibility date, and
classify him as a violent offender. The habeas court issued an order
declining to issue the writ of habeas corpus because, pursuant to the
rule of practice (§ 23-24 (a)), the court lacked subject matter jurisdiction
and the petition did not present a claim on which the habeas court could
grant relief. Thereafter, the petitioner filed a petition for certification
to appeal, which the habeas court denied, 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: the allegations in the
petition were insufficient to allege a claim under the stigma plus test
because inmates do not have a cognizable liberty interest in parole
eligibility; moreover, assuming that a habeas petitioner could state, as
a matter of law, a viable stigma plus claim on the basis of his classification
as a violent offender, the petitioner failed to allege facts demonstrating
that his classification as a violent offender caused him to suffer conse-
quences that were qualitatively different from the punishments that are
usually suffered by prisoners so that they constituted a major change
in conditions of his confinement amounting to a grievous loss; accord-
ingly, the petitioner failed to sufficiently allege a cognizable liberty
interest invoking the subject matter jurisdiction of the habeas court.
Argued November 16, 2020—officially released March 16, 2021
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., rendered judgment declining to
issue a writ of habeas corpus; thereafter, the court
denied the petition for certification to appeal, and the
petitioner appealed to this court. Appeal dismissed.
Vishal K. Garg, for the appellant (petitioner).
Steven R. Strom, assistant attorney general, with
whom, on the brief were William Tong, attorney gen-
eral, and Clare Kindall, solicitor general, for the appel-
lee (respondent).
Opinion
MOLL, J. The petitioner, Joseph Stephenson, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court declining
to issue a writ of habeas corpus pursuant to Practice
Book § 23-24 (a) (1) and (3).1 On appeal, the petitioner
claims that the court improperly (1) denied his petition
for certification to appeal and (2) declined to issue the
writ of habeas corpus when, in his petition for a writ
of habeas corpus, he sufficiently alleged a claim under
the stigma plus test adopted by our Supreme Court in
Anthony A. v. Commissioner of Correction, 326 Conn.
668, 680–81, 166 A.3d 614 (2017), and, therefore, he
alleged a cognizable liberty interest sufficient to invoke
the subject matter jurisdiction of the court. We con-
clude that the habeas court did not abuse its discretion
in denying the petitioner’s petition for certification to
appeal, and, therefore, we dismiss the appeal.
Our Supreme Court set forth the following facts in
the petitioner’s direct appeal from his conviction. ‘‘A
silent alarm at the [Superior Court for the judicial dis-
trict of Stamford-Norwalk, geographical area number
twenty, located in Norwalk] was triggered at around 11
p.m. on Sunday, March 3, 2013, when the [petitioner]
entered the state’s attorney’s office by breaking a win-
dow on the building’s eastern side. Although the police
were able to respond in about ninety seconds, the [peti-
tioner] successfully evaded capture by running out of
a door on the building’s southern side. Footage from
surveillance cameras introduced by the state at [the
petitioner’s criminal] trial show that the [petitioner]
was inside of the building for slightly more than three
minutes. In the investigation that followed, the police
determined that the broken window belonged to an
office shared by two assistant state’s attorneys. One
of those attorneys was scheduled to commence jury
selection for a criminal trial against the [petitioner] on
certain felony charges only two days after the break-
in occurred. No other cases were scheduled to begin
jury selection that week. Immediately after the break-
in, various case files were discovered in an apparent
state of disarray at the northern end of a central, com-
mon area located outside of that room. Specifically,
several files were found sitting askew on top of a desk
with two open drawers; still other files were scattered
on the floor below in an area adjacent to a horizontal
filing cabinet containing similar files. Photographs
admitted as full exhibits clearly show labels on these
files reading ‘TUL’ and ‘SUM.’ Finally, in a short hallway
at the opposite end of that same common area, the
police found a black bag containing six bottles of indus-
trial strength kerosene with their UPC labels cut off.
The bag and its contents were swabbed, and a report
subsequently generated by the Connecticut Forensic
Science Laboratory included the [petitioner’s] genetic
profile as a contributor to a mixture of DNA discovered
as a result.
‘‘Various other components of the state’s case against
the [petitioner] warrant only a brief summary. The day
after the break-in, the [petitioner] called the public
defender’s office at the Norwalk courthouse to ask
whether the courthouse was open and whether he was
required to come in that day. The state also submitted
evidence showing that the [petitioner] drove a 2002
Land Rover Freelander with an aftermarket push
bumper, a roof rack, and a broken tail light, and that
surveillance videos from the area showed a similar vehi-
cle driving by the courthouse repeatedly in the hours
leading up to the break-in. Finally, the state submitted
recordings of various telephone calls the [petitioner]
made after he had been taken into custody as a result
of his conviction on the criminal charges previously
pending against him in Norwalk. During one such tele-
phone call, the [petitioner] asked his brother, Christo-
pher Stephenson, to get rid of ‘bottles of things’ for a
heater, speculated about how the police located the
vehicle, and attempted to arrange an alibi.’’ (Footnote
omitted.) State v. Stephenson, Conn. , ,
A.3d (2020).
In connection with the events of March, 2013, the
petitioner was arrested on March 21, 2014. On October
28, 2016, following a jury trial, the petitioner was con-
victed of burglary in the third degree in violation of
General Statutes § 53a-103, attempt to commit tamper-
ing with physical evidence in violation of General Stat-
utes § 53a-49 (a) (2) and General Statutes (Rev. to 2013)
§ 53a-155 (a) (1), and attempt to commit arson in the
second degree in violation of General Statutes §§ 53a-
49 (a) (2) and 53a-112 (a) (1) (B). On January 6, 2017, the
petitioner was sentenced to a total effective sentence
of twelve years of incarceration followed by eight years
of special parole. The petitioner filed a direct appeal
from the judgment of conviction, which remains pend-
ing on remand in this court from our Supreme Court.2
On March 15, 2019, the petitioner, representing him-
self, filed a petition for a writ of habeas corpus using
a state supplied form. The petitioner alleged that the
Commissioner of Correction (commissioner) and the
Board of Pardons and Paroles (board) ‘‘ha[d] been mis-
applying and illegally [overbroadening] the scope, plain
meaning and language of [General Statutes] § 54-125a
(b) (2) (B)3 to increase [his] punishment, [delay his]
parole eligibility date, violate [the] prohibition against
ex post facto law, [and] classify [him] as [a] violent
offender beyond what [the] law allows.’’ (Footnote
added.) As relief, the petitioner requested that the court
order the commissioner and the board ‘‘to stop violating
the plain meaning of § 54-125a (b) (2) (B), remove the
violent offender classification, properly classify [him]
to 50 [percent] designation for parole eligibility date,
other relief etc.’’
Appended to the petition was a document entitled
‘‘Petition for Writ of Habeas Corpus’’ in which the peti-
tioner alleged additional facts.4 The appended docu-
ment contained the following relevant allegations. After
the petitioner had been sentenced and committed to
the custody of the commissioner, the board informed
him that, pursuant to § 54-125a, his conviction for
attempted arson in the second degree rendered him
ineligible for parole until he had served 85 percent of
his definite sentence.5 The board’s decision was predi-
cated on a ‘‘schedule’’ generated by the board listing
‘‘ ‘85 [percent]’ ’’ designated offenses, including arson
in the second degree, and a ‘‘brochure’’ providing that
any individual convicted of, inter alia, attempt to com-
mit any of the ‘‘ ‘85 [percent]’ ’’ designated offenses
would be ineligible for parole prior to completing 85
percent of his or her definite sentence. According to
the petitioner, none of the crimes of which he was
convicted was listed or specified in § 54-125a, or
involved ‘‘the use, attempted use or [threatened] use of
physical force against another person’’ as set forth in
§ 54-125a (b) (2) (B), and, as a result, ‘‘[the commis-
sioner and the board] ha[d] abused their discretion,
misapplied, overbroadened the scope and plain mean-
ing and language of [§ 54-125a], to illegally violate [the]
petitioner’s due process and liberty interest rights under
[a]rticle [f]irst, [§§ 1, 8, and 20] of the constitution of
the state of Connecticut as well as the United [States]
constitution. By classifying [the] petitioner as a ‘violent’
offender subject to 85 [percent] designation for parole
eligibility, whereas the plain meaning and language of
the law does not so allow or [prescribe], [the commis-
sioner and the board] ha[d] prejudiced [the] petitioner’s
liberty interest [and] constitutional rights and caused
[the] petitioner to suffer adverse collateral conse-
quences. Such harm include[d] an increase in punish-
ment with a longer period of incarceration than allowed
under the plain meaning of the parole eligibility statute
and per the intent of the legislature in enacting said
statute. Also, [the] petitioner ha[d] been classified to a
higher risk level for [the] application of penological
goals. [The] petitioner also . . . had to endure the
stigma of being publicly [labeled] as a ‘violent offender’
for past, present and future disparate treatment.’’
(Emphasis omitted.)
As relief, the petitioner requested, inter alia, orders
requiring the commissioner and the board (1) to recal-
culate his parole eligibility date such that he would be
eligible for parole when serving 50 percent, or less, of
his definite sentence, (2) to ‘‘cease and desist’’ from
continuing to classify him as a violent offender when
such a classification was improper pursuant to § 54-
125a, and (3) to ‘‘cease and desist’’ from violating,
expanding the scope of, and misapplying § 54-125a.6
On March 26, 2019, the habeas court, Newson, J.,
issued an order declining to issue the writ of habeas
corpus because the court lacked subject matter jurisdic-
tion pursuant to Practice Book § 23-24 (a) (1) and
because the petition did not ‘‘present a claim upon
which the habeas court [could] grant relief pursuant to
. . . § 23-24 (a) (3).’’ On April 23, 2019, the petitioner
filed a motion for reconsideration, which the court sum-
marily denied on April 24, 2019. Thereafter, the peti-
tioner filed a petition for certification to appeal from
the court’s judgment, which the court denied.7 This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
I
We first turn to the petitioner’s claim that the habeas
court abused its discretion in denying his petition for
certification to appeal from the court’s judgment declin-
ing to issue the writ of habeas corpus. We disagree.
General Statutes § 52-470 (g) provides: ‘‘No appeal
from the judgment rendered in a habeas corpus pro-
ceeding brought by or on behalf of a person who has
been convicted of a crime in order to obtain such per-
son’s release may be taken unless the appellant, within
ten days after the case is decided, petitions the judge
before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated
by the Chief Court Administrator, to certify that a ques-
tion is involved in the decision which ought to be
reviewed by the court having jurisdiction and the judge
so certifies.’’
‘‘As our Supreme Court has explained, one of the
goals our legislature intended by enacting this statute
was to limit the number of appeals filed in criminal
cases and hasten the final conclusion of the criminal
justice process . . . . [T]he legislature intended to dis-
courage frivolous habeas appeals. . . . [Section] 52-
470 (b)8 acts as a limitation on the scope of review, and
not the jurisdiction, of the appellate tribunal. . . .
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the [disposition] of his [or her] 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 [or she] must demonstrate that the
denial of his [or her] petition for certification consti-
tuted an abuse of discretion. . . . Second, if the peti-
tioner can show an abuse of discretion, he [or she] must
then prove that the decision of the habeas court should
be reversed on its merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
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. . . .
‘‘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 [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Cita-
tions omitted; footnote in original; internal quotation
marks omitted.) Villafane v. Commissioner of Correc-
tion, 190 Conn. App. 566, 572–73, 211 A.3d 72, cert.
denied, 333 Conn. 902, 215 A.3d 160 (2019).
For the reasons set forth in part II of this opinion,
we conclude that the petitioner has failed to demon-
strate that (1) his claims are debatable among jurists
of reason, (2) a court could resolve the issues in a
different manner, or (3) the questions are adequate to
deserve encouragement to proceed further. Thus, we
conclude that the habeas court did not abuse its discre-
tion in denying the petition for certification to appeal.
II
Turning to the merits of the petitioner’s substantive
claim, the petitioner asserts that the habeas court
improperly declined to issue the writ of habeas corpus.
Specifically, the petitioner contends that the allegations
in the petition sufficiently alleged a claim under the
stigma plus test and, therefore, sufficiently alleged a
cognizable liberty interest invoking the subject matter
jurisdiction of the court. This claim is unavailing.
The following legal principles and standard of review
govern our review of the petitioner’s claim. Initially, as
to the procedural posture of the present case, we note
that the court declined to issue the writ of habeas cor-
pus pursuant to Practice Book § 23-24. As our Supreme
Court explained in Gilchrist v. Commissioner of Cor-
rection, 334 Conn. 548, 223 A.3d 368 (2020), ‘‘[§] 23-24
. . . reverses the usual sequence followed in the ordi-
nary civil case; the habeas petition first is filed with
the [habeas] court, and the writ issues and service of
process occurs only if the court determines, after a
preliminary review of the petition, that the petition
pleads a nonfrivolous claim within the court’s jurisdic-
tion upon which relief can be granted.’’ Id., 557. ‘‘[T]he
screening function of . . . § 23-24 plays an important
role in habeas corpus proceedings, but it is intended
only to weed out obviously and unequivocally defective
petitions, and we emphasize that [b]oth statute and case
law evince a strong presumption that a petitioner for
a writ of habeas corpus is entitled to present evidence
in support of his [or her] claims. . . . Screening peti-
tions prior to the issuance of the writ is intended to
conserve judicial resources by eliminating obviously
defective petitions; it is not meant to close the doors
of the habeas court to justiciable claims. Special consid-
erations ordinarily obtain when a petitioner has pro-
ceeded pro se. . . . [I]n such a case, courts should
review habeas petitions with a lenient eye, allowing
borderline cases to proceed. . . . The justification for
this policy is apparent. If the writ of habeas corpus is
to continue to have meaningful purpose, it must be
accessible not only to those with a strong legal back-
ground or the financial means to retain counsel, but
also to the mass of uneducated, unrepresented prison-
ers. . . . Thus, when borderline cases are detected in
the preliminary review under § 23-24, the habeas court
should issue the writ and appoint counsel so that any
potential deficiencies can be addressed in the regular
course after the proceeding has commenced.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
560–61.
‘‘[I]n order to invoke successfully the jurisdiction of
the habeas court, a petitioner must allege an interest
sufficient to give rise to habeas relief. . . . We have
long held that because [a] determination regarding a
trial court’s subject matter jurisdiction is a question of
law, our review is plenary.’’ (Internal quotation marks
omitted.) Whistnant v. Commissioner of Correction,
199 Conn. App. 406, 420, 236 A.3d 276, cert. denied, 335
Conn. 969, 240 A.3d 286 (2020).
Resolving the petitioner’s claim requires us to review
the allegations contained in his petition for a writ of
habeas corpus, which he filed as a self-represented
party. ‘‘[I]t is the established policy of the Connecticut
courts to be solicitous of pro se litigants and when it
does not interfere with the rights of other parties to
construe the rules of practice liberally in favor of the
pro se party. . . . However, [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. . . . The principle that a plaintiff may rely only
upon what he [or she] 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 [or her] com-
plaint. . . . While the habeas court has considerable
discretion to frame a remedy that is commensurate with
the scope of the established constitutional violations
. . . it does not have the discretion to look beyond the
pleadings . . . to decide claims not raised.’’ (Citation
omitted; internal quotation marks omitted.) Vitale v.
Commissioner of Correction, 178 Conn. App. 844, 850–
51, 178 A.3d 418 (2017), cert. denied, 328 Conn. 923,
181 A.3d 566 (2018). ‘‘In addition, while courts should
not construe pleadings narrowly and technically, courts
also cannot contort pleadings in such a way so as to
strain the bounds of rational comprehension.’’ (Internal
quotation marks omitted.) Whistnant v. Commissioner
of Correction, supra, 199 Conn. App. 418 n.9. ‘‘[W]e take
the facts to be those alleged in the petition, including
those facts necessarily implied from the allegations,
construing them in favor of the petitioner for purposes
of deciding whether the court has subject matter juris-
diction.’’ (Internal quotation marks omitted.) Green v.
Commissioner of Correction, 184 Conn. App. 76, 85–86,
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.’
. . . State v. Matos, 240 Conn. 743, 749, 694 A.2d 775(1997). ‘A liberty interest may arise from the [c]onstitu-
tion 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 trans-
fer to mental institution), or it may arise from an expec-
tation 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 withdrawal 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).’’ Wright v.
Commissioner of Correction, 201 Conn. App. 339, 346–
47, 242 A.3d 756 (2020), cert. denied, 336 Conn. 905,
242 A.3d 1009 (2021).
In Anthony A. v. Commissioner of Correction, supra,
326 Conn. 668, our Supreme Court adopted the stigma
plus test used in federal courts to determine whether
the petitioner had alleged a cognizable liberty interest.
Id., 680–81. In that case, the petitioner filed a petition for
a writ of habeas corpus claiming that the Department
of Correction improperly had classified him as a sex
offender without providing him with procedural due
process. Id., 672. Citing Sandin v. Conner, 515 U.S. 472,
479 n.4, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), our
Supreme Court observed that ‘‘in certain situations, a
different inquiry is appropriate to determine whether
the due process clause directly confers a liberty interest
on inmates.’’ (Internal quotation marks omitted.)
Anthony A. v. Commissioner of Correction, supra, 679.
‘‘Specifically . . . where a state action has ‘’’stigmatiz-
ing consequences’’’ for a prisoner and results in a pun-
ishment that is ‘’’qualitatively different’’’ from that ‘char-
acteristically suffered by a person convicted of crime,’
the protected liberty interest arises from the due pro-
cess clause directly.’’ (Citation omitted.) Id. The court
determined that the stigma plus test was applicable in
the case before it, where the petitioner had ‘‘alleged
that he was stigmatized when the [commissioner]
wrongfully classified him as a sex offender, and
allege[d] as the ‘plus’ that he suffered various negative
consequences, including being compelled to participate
in treatment or risk forfeiting good time credits and
parole eligibility . . . .’’ Id., 680. Thus, the court contin-
ued, the inquiry before it ‘‘focuse[d] on whether the
allegations of the petition demonstrate[d] that the clas-
sification was wrongful and stigmatized the petitioner,
and that the consequences suffered by the petitioner
were ‘qualitatively different’ from the punishments usu-
ally suffered by prisoners, so that they constituted a
major change in the conditions of confinement
amounting to a grievous loss.’’ Id., 680–81. The court
determined that the petitioner had sufficiently alleged
a claim under the stigma plus test and, thus, had suffi-
ciently alleged a protected liberty interest to invoke the
habeas court’s subject matter jurisdiction. Id., 686.
In the present case, the petitioner maintains that, in
his petition, he sufficiently alleged a claim under the
stigma plus test, and, therefore, he sufficiently alleged
a cognizable liberty interest. We disagree and conclude
that the habeas court lacked subject matter jurisdiction
over the petition for two independent reasons.
First, construing the allegations in favor of the peti-
tioner, we do not read the petition to assert a claim
under the stigma plus test; rather, at its crux, the petition
constitutes an attempt by the petitioner to advance his
parole eligibility such that he would be eligible for
parole after serving 50 percent of his definite sentence
under § 54-125a (a), rather than 85 percent of his defi-
nite sentence under § 54-125a (b). This is made apparent
by the petitioner’s repeated references throughout the
petition to his parole eligibility and by his explicit
request for relief that the habeas court order the com-
missioner and the board to reclassify him for parole
eligibility purposes. As our Supreme Court has made
clear, however, an inmate does not have a cognizable
liberty interest in parole eligibility under § 54-125a (a)
and/or (b). See Baker v. Commissioner of Correction,
281 Conn. 241, 261–62, 914 A.2d 1034 (2007) (concluding
that parole eligibility under General Statutes (Rev. to
2001) § 54-125a, as amended by Public Acts, Spec. Sess.,
June, 2001, No. 01-9, § 74,9 ‘‘does not constitute a cogni-
zable liberty interest sufficient to invoke habeas juris-
diction’’); see also Perez v. Commissioner of Correc-
tion, 326 Conn. 357, 371, 163 A.3d 597 (2017) (The court
cited Baker for the proposition that there is no cogniza-
ble liberty interest in parole eligibility under § 54-125a
and, additionally, observed that it is ‘‘[a] fundamental
fact that the determination whether to grant an inmate
parole is entirely at the discretion of the board. It fol-
lows that if an inmate has no vested liberty interest in
the granting of parole, then the timing of when the
board could, in its discretion, grant parole does not
rise to the level of a vested liberty interest either.’’
(Emphasis omitted.)).10 As a result, we conclude that
the habeas court lacked subject matter jurisdiction to
entertain the petition.
Second, even assuming arguendo that a habeas peti-
tioner could state, as a matter of law, a viable stigma
plus claim on the basis of his or her classification as a
violent offender and that the petitioner attempted to
raise such a claim in his petition,11 we conclude that
the allegations in the petition do not sufficiently allege
a stigma plus claim. To plead a stigma plus claim, a
petitioner must allege facts demonstrating that a classi-
fication ‘‘was wrongful and stigmatized the petitioner,
and that the consequences suffered by the petitioner
were ‘qualitatively different’ from the punishments usu-
ally suffered by prisoners, so that they constituted a
major change in the conditions of confinement
amounting to a grievous loss.’’ Anthony A. v. Commis-
sioner of Correction, supra, 326 Conn. 681. In the pres-
ent case, at a minimum, the petitioner failed to suffi-
ciently allege facts satisfying the ‘‘plus’’ portion of the
stigma plus test.12
As our Supreme Court explained in Anthony A., ‘‘[a]
recent decision of the United States Supreme Court
highlights the difficulty of determining what constitutes
a qualitative difference or major change in the condi-
tions of confinement amounting to a grievous loss. [See
Wilkinson v. Austin, supra, 545 U.S. 223.] One cannot
do so without reference to what constitutes ‘typical’ or
‘ordinary’ conditions of confinement for a prisoner.
. . . What must be determined . . . is the degree of
departure from the ‘baseline.’ . . . The emphasis in
Wilkinson on the need to first determine the baseline
requires that our inquiry be a pragmatic one, aimed at
determining the degree to which the conditions alleged
by the petitioner depart from the expected norm of
prison confinement.’’ (Citations omitted.) Anthony A. v.
Commissioner of Correction, supra, 326 Conn. 682–83.
Our Supreme Court further observed that, in consider-
ing whether decisions made by prison officials have
caused ‘‘a major change in the conditions of confine-
ment amounting to a grievous loss, it is relevant to
consider the degree of discretion accorded to the offi-
cials making those decisions. The greater the discretion,
the more difficult it becomes to establish a departure
from the norm.’’ Id., 683.
A careful review of the petition reveals that the only
consequences alleged by the petitioner that stemmed
from his classification as a violent offender were (1)
‘‘an increase in punishment with a longer period of
incarceration than allowed under the plain meaning of
the parole eligibility statute and per the intent of the
legislature in enacting said statute’’ and (2) the peti-
tioner being ‘‘classified to a higher risk level for [the]
application of penological goals.’’ We do not construe
these conclusory allegations as identifying conse-
quences that were ‘‘ ‘qualitatively different’ from the
punishments usually suffered by prisoners, so that they
constituted a major change in the conditions of confine-
ment amounting to a grievous loss.’’ Anthony A. v. Com-
missioner of Correction, supra, 326 Conn. 681; see
Vitale v. Commissioner of Correction, supra, 178 Conn.
App. 870–71 (petitioner’s allegations ‘‘imply[ing] that he
was subject to a condition of parole imposed and/or
monitored by a special sex offender unit’’ were insuffi-
cient to satisfy ‘‘plus’’ portion of stigma plus test); cf.
Anthony A. v. Commissioner of Correction, supra, 686(petitioner’s allegation that he was required to partici-
pate in sex offender treatment or risk losing certain
benefits satisfied ‘‘plus’’ portion of stigma plus test).
Having failed to sufficiently allege a stigma plus claim,
the petitioner has not sufficiently alleged a cognizable
liberty interest over which the habeas court had subject
matter jurisdiction. See, e.g., Vitale v. Commissioner
of Correction, supra, 871 (‘‘[b]ecause the petitioner has
satisfied neither factor of the stigma plus test, we con-
clude that he has failed to allege sufficient facts to assert
a cognizable liberty interest that affords jurisdiction to
the habeas court over his claim’’).
We are mindful of our Supreme Court’s instruction
that Practice Book § 23-24 ‘‘is intended only to weed
out obviously and unequivocally defective petitions,’’
that there is ‘‘a strong presumption that a petitioner for
a writ of habeas corpus is entitled to present evidence
in support of his [or her] claims,’’ and that, in cases
involving self-represented petitioners, ‘‘courts should
review habeas petitions with a lenient eye, allowing
borderline cases to proceed.’’ (Internal quotation marks
omitted.) Gilchrist v. Commissioner of Correction,
supra, 334 Conn. 560. We conclude that the petition
in the present case falls within the category of those
petitions that are ‘‘obviously and unequivocally defec-
tive.’’ Id. The petitioner failed to sufficiently allege a
cognizable liberty interest invoking the subject matter
jurisdiction of the habeas court, and, therefore, the
court properly declined to issue the writ of habeas
corpus under Practice Book § 23-24 (a) (1).13 Accord-
ingly, we further conclude that the court did not abuse
its discretion in denying the petition for certification
to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Practice Book § 23-24 provides: ‘‘(a) 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.
‘‘(b) The judicial authority shall notify the petitioner if it declines to issue
the writ pursuant to this rule.’’
2
On January 8, 2019, this court reversed the judgment of conviction and
remanded the case to the trial court with direction to render a judgment
of acquittal as to all three charges against the petitioner. See State v. Stephen-
son, 187 Conn. App. 20, 39, 201 A.3d 427 (2019), rev’d, Conn. ,
A.3d (2020). On December 18, 2020, after having granted the state’s
petition for certification to appeal, our Supreme Court reversed this court’s
judgment and remanded the case to this court for further proceedings on
the ground that this court had erred in resolving the direct appeal on an
issue of evidentiary sufficiency that the parties had not been afforded an
opportunity to brief or argue. See State v. Stephenson, supra, Conn. .
3
General Statutes § 54-125a (a) provides in relevant part: ‘‘A person con-
victed of one or more crimes who is incarcerated on or after October 1,
1990, who received a definite sentence or total effective sentence of more
than two years, and who has been confined under such sentence or sentences
for not less than one-half of the total effective sentence less any risk reduc-
tion credit earned under the provisions of section 18-98e or one-half of the
most recent sentence imposed by the court less any risk reduction credit
earned under the provisions of section 18-98e, whichever is greater, may
be allowed to go at large on parole (1) in accordance with the provisions
of section 54-125i, or (2) in the discretion of a panel of the Board of Pardons
and Paroles, if (A) it appears from all available information, including any
reports from the Commissioner of Correction that the panel may require,
that there is a reasonable probability that such inmate will live and remain
at liberty without violating the law, and (B) such release is not incompatible
with the welfare of society. . . .’’
General Statutes § 54-125a (b) (2) provides in relevant part: ‘‘A person
convicted of . . . (B) an offense, other than [certain parole ineligible
offenses], 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.’’
General Statutes § 54-125a (c) provides in relevant part: ‘‘The Board of
Pardons and Paroles shall, not later than July 1, 1996, adopt regulations
. . . to ensure that a person convicted of an offense described in subdivision
(2) of subsection (b) of this section is not released on parole until such
person has served eighty-five per cent of the definite sentence imposed by
the court. Such regulations shall include guidelines and procedures for
classifying a person as a violent offender that are not limited to a consider-
ation of the elements of the offense or offenses for which such person was
convicted.’’
In 2015, amendments were made to § 54-125a (a) that have no bearing
on this appeal. See Public Acts 2015, No. 15-84, § 1; Public Acts, Spec. Sess.,
June, 2015, No. 15-2, §§ 12 and 13. Additionally, at the time of the petitioner’s
offenses, General Statutes (Rev. to 2013) § 54-125a (b) (2) provided in rele-
vant part: ‘‘A person convicted of . . . (B) an offense, other than [certain
parole ineligible offenses], 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 less any risk reduction credit earned
under the provisions of section 18-98e.’’ (Emphasis added.) This appeal
does not involve any claim concerning risk reduction credit. Accordingly,
in the interest of simplicity, unless otherwise noted, we refer to the current
revision of the statute.
4
In setting forth the allegations on the state supplied form that he filed,
the petitioner referred to the appended document. We construe the appended
document to be a part of the petition. See Whistnant v. Commissioner of
Correction, 199 Conn. App. 406, 411 n.4, 236 A.3d 276, cert. denied, 335
Conn. 969, 240 A.3d 286 (2020).
5
‘‘[D]efinite sentence is the flat maximum to which a defendant is sen-
tenced . . . .’’ (Internal quotation marks omitted.) Whistnant v. Commis-
sioner of Correction, 199 Conn. App. 406, 409 n.3, 236 A.3d 276, cert. denied,
335 Conn. 969, 240 A.3d 286 (2020).
6
In his prayer for relief, the petitioner also requested an order directing
the commissioner and the board to apply § 54-125a as it existed at the time
of his ‘‘alleged [offenses] . . . to avoid any ex post facto law violation.’’
On appeal, the petitioner does not raise any ex post facto claim.
7
The petitioner applied for, and was granted, a waiver of fees, costs, and
expenses and appointment of counsel on appeal.
8
‘‘Pursuant to No. 12-115, § 1, of the 2012 Public Acts, subsection (b) of
§ 52-470 was redesignated as subsection (g).’’ Villafane v. Commissioner
of Correction, 190 Conn. App. 566, 572 n.1, 211 A.3d 72, cert. denied, 333
Conn. 902, 215 A.3d 160 (2019).
9
General Statutes (Rev. to 2001) § 54-125a, as amended by Public Acts,
Spec. Sess., June, 2001, No. 01-9, § 74, provides in relevant part: ‘‘(a) A
person convicted of one or more crimes who is incarcerated on or after
October 1, 1990, who received a definite sentence or aggregate sentence of
more than two years, and who has been confined under such sentence or
sentences for not less than one-half of the aggregate sentence or one-half
of the most recent sentence imposed by the court, whichever is greater,
may be allowed to go at large on parole in the discretion of the panel of the
Board of Parole [now the Board of Pardons and Paroles] for the institution in
which the person is confined, if (1) it appears from all available information,
including any reports from the Commissioner of Correction that the panel
may require, that there is reasonable probability that such inmate will live
and remain at liberty without violating the law, and (2) such release is not
incompatible with the welfare of society. . . .
‘‘(b) . . . (2) A person convicted of an offense, other than [certain parole
ineligible offenses], 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.
‘‘(c) The Board of Parole [now the Board of Pardons and Paroles] shall,
not later than July 1, 1996, adopt regulations . . . to ensure that a person
convicted of an offense described in subdivision (2) of subsection (b) of
this section is not released on parole until such person has served eighty-
five per cent of the definite sentence imposed by the court. Such regulations
shall include guidelines and procedures for classifying a person as a violent
offender that are not limited to a consideration of the elements of the offense
or offenses for which such person was convicted. . . .’’
10
In Baker, as this court recently summarized, ‘‘the petitioner had alleged
that he improperly had been classified as a violent offender under General
Statutes (Rev. to 2001) § 54-125a (b) (2) and (c), as amended by Public Acts,
Spec. Sess., June, 2001, No. 01-9, § 74, thus rendering him ineligible for
parole until he served 85 percent of his sentence, and that he should have
been classified as a nonviolent offender under subsection (a) of that statute,
which would have made him eligible for parole after he had served 50
percent of his sentence. Baker v. Commissioner of Correction, supra, 281
Conn. 245–46. Our Supreme Court held that the petitioner did not have a
cognizable liberty interest in his parole eligibility status sufficient to invoke
the subject matter jurisdiction of the habeas court. Id., 243, 251–52. In
reaching that conclusion, the court was guided by United States Supreme
Court precedent. See Greenholtz v. Inmates of the Nebraska Penal & Correc-
tional Complex, 442 U.S. 1, 11–12, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979)
(Greenholtz) (holding that mandatory language in state’s parole statute
created cognizable liberty interest); Board of Pardons v. Allen, 482 U.S. 369,
378 n.10, 107 S. Ct. 2415, 96 L. Ed. 2d 303 (1987) (same). In contrast to the
statutes at issue in Greenholtz and Allen, the court in Baker observed that
(1) the ‘only mandatory language in [the amended 2001 revision of § 54-
125a] is that in subsection (b) preventing the board from considering violent
offenders for parole before they have served 85 percent of their sentences’
. . . Baker v. Commissioner of Correction, supra, 255; (2) ‘the broad, discre-
tionary nature of the board’s authority in classifying offenders [as violent]
is underscored in subsection (c) [of § 54-125a]’; id., 255–56; and (3) ‘the
decision to grant parole [under § 54-125a] is entirely within the discretion
of the board.’ Id., 257. In light of the permissive language of § 54-125a, the
court concluded that the petitioner did not possess a cognizable liberty
interest in parole eligibility. See id., 257.’’ (Emphasis omitted; footnote omit-
ted.) Boyd v. Commissioner of Correction, 199 Conn. App. 575, 582–83, 238
A.3d 88, cert. granted, 335 Conn. 962, 239 A.3d 1214 (2020).
Later, in Anthony A., our Supreme Court observed that in Baker, in
‘‘consider[ing] the question of whether the actions of prison officials gave
rise to a protected liberty interest, the court [had] resolved the issue by
relying on authority that predated and was disapproved by [the United States
Supreme Court in Sandin v. Conner, supra, 515 U.S. 472].’’ Anthony A. v.
Commissioner of Correction, supra, 326 Conn. 685. The court determined
that, because (1) the authority on which the court in Baker relied had been
criticized by Sandin and (2) Baker did not appear to involve a petitioner
who had claimed to have been stigmatized by the classification at issue,
Baker did not control the outcome of the case before it regarding the
petitioner’s classification as a sex offender. Id.We do not construe Anthony A. as having vitiated the conclusion reached
in Baker and reaffirmed in Perez that parole eligibility under § 54-125a (a)
and/or (b) is not a cognizable liberty interest. In Wright v. Commissioner
of Correction, supra, 201 Conn. App. 339, this court observed that, notwith-
standing the criticism in Sandin of the methodology used in Greenholtz
and Allen as recognized by Anthony A., ‘‘[i]t remains good law that an
inmate does not have a constitutionally protected liberty interest in early
parole consideration.’’ Id., 349–50 n.4. Additionally, in decisions published
after Anthony A., this court has continued to rely on Baker or Perez for
the proposition that that there is no cognizable liberty interest in parole
eligibility under § 54-125a; see, e.g., State v. Brown, 192 Conn. App. 147, 156
n.4, 217 A.3d 690 (2019); Dinham v. Commissioner of Correction, 191 Conn.
App. 84, 99, 213 A.3d 507, cert. denied, 333 Conn. 927, 217 A.3d 995 (2019);
Vitale v. Commissioner of Correction, supra, 178 Conn. App. 868; Byrd v.
Commissioner of Correction, 177 Conn. App. 71, 80 n.7, 171 A.3d 1103(2017); with the exception of parole eligibility under § 54-125a (f), which
was enacted by the legislature in 2015 and concerns juvenile offenders.
See Boyd v. Commissioner of Correction, supra, 199 Conn. App. 577, 590
(concluding that petitioner had cognizable liberty interest in parole eligibility
under § 54-125a (f)).
11
Following Anthony A., this court has considered the stigma plus test
in habeas cases that, like Anthony A., involved claims that a petitioner
improperly was classified as a sex offender. See Carolina v. Commissioner
of Correction, 192 Conn. App. 296, 301–303, 217 A.3d 1068, cert. denied, 334
Conn. 909, 221 A.3d 43 (2019); Vitale v. Commissioner of Correction, supra,
178 Conn. App. 868–71.
12
The stigma plus test is conjunctive and, therefore, we need not consider
whether the petitioner sufficiently alleged facts satisfying the remaining
portions of the test.
13
The court declined to issue the writ of habeas corpus for lack of subject
matter jurisdiction under Practice Book § 23-24 (a) (1) and for failure to
‘‘present a claim upon which the . . . court can grant relief’’ under § 23-24
(a) (3). Because we conclude that the court properly determined that it
lacked subject matter jurisdiction under § 23-24 (a) (1), we need not address
the court’s separate reliance on § 23-24 (a) (3).