Byrd v. Commissioner of Correction

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HOWARD BYRD v. COMMISSIONER
OF CORRECTION
(AC 38491)
Lavine, Mullins and West, Js.
Syllabus
The petitioner sought a writ of habeas corpus, claiming, inter alia, that an
ex post facto law passed after he was sentenced improperly invalidated
the application of risk reduction credits toward his parole eligibility
date. Following cross motions for summary judgment filed by the parties,
the habeas court rendered judgment dismissing the petition and, there-
after, denied the petition for certification to appeal, and the petitioner
appealed to this court. He claimed that the habeas court abused its
discretion in denying his petition for certification to appeal because it
committed a number of procedural errors in rendering its decision and
improperly concluded that it lacked subject matter jurisdiction over the
petition. Held:
1. The habeas court properly dismissed count one of the petition for a writ
of habeas corpus, which alleged the improper application of an ex post
facto law, for lack of subject matter jurisdiction: the petitioner made
no claim that legislation regarding eligibility for parole consideration
became more onerous after the date of his criminal behavior, but rather
claimed that new legislation enacted in 2011, one year after his criminal
conduct, conferred a benefit on him that was taken away in 2013, which
did not implicate the ex post facto prohibition because the changes that
occurred between 2011 and 2013 had no bearing on the punishment to
which the petitioner’s criminal conduct exposed him when he committed
the crime for which he was convicted in 2010; accordingly, the habeas
court did not abuse its discretion in denying the petition for certification
to appeal as to count one.
2. The habeas court properly dismissed count two of the habeas petition,
in which the petitioner alleged that he suffered from a heart condition
and that, due to the stress of litigating count one, he was entitled to
additional credits and conditional medical parole: parole eligibility under
statute (§ 54-125a) does not constitute a cognizable liberty interest suffi-
cient to invoke habeas jurisdiction, the claim in count two was wholly
dependent on count one, over which this court lacked subject matter
jurisdiction, and it was unclear what relief was sought in count two by
the petitioner, who asked the court for medical compensation and an
early release due to his failing health, but did not assert that he was
illegally confined or that he had been wrongly deprived of his liberty;
accordingly, the habeas court properly determined that it lacked subject
matter jurisdiction over count two and did not abuse its discretion in
denying the petition for certification to appeal as to that count.
Argued May 24—officially released October 10, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Fuger, J., denied the petition-
er’s motion for summary judgment, and granted the
respondent’s motion for summary judgment and ren-
dered judgment dismissing the habeas petition; there-
after, the court denied the petition for certification to
appeal, and the petitioner appealed to this court; subse-
quently, the court issued an articulation of its deci-
sion. Dismissed.
Temmy Ann Miller, assigned counsel, for the appel-
lant (petitioner).
Madeline A. Melchionne, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, and Terrence O’Neill, assistant attorney gen-
eral, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Howard Byrd, appeals fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court dismiss-
ing his second amended petition for a writ of habeas
corpus (petition).1 He asserts a number of claims on
appeal, but his primary claim is that the habeas court
improperly concluded that it did not have subject matter
jurisdiction over his ex post facto claim alleged in count
one of his petition. We conclude that the habeas court
properly determined that it lacked subject matter juris-
diction over both counts of his petition2 and, therefore,
did not abuse its discretion by denying the petitioner’s
petition for certification to appeal.3 Accordingly, we
dismiss the appeal.4
The facts and procedural history of this case present
us with a tangled web of litigation. On September 13,
2010, the petitioner was arrested and was held in pre-
sentence confinement by the respondent, the Commis-
sioner of Correction, for a crime that took place on
that same day. On January 27, 2012, he pleaded guilty
to burglary in the first degree in violation of General
Statutes § 53a-101 (a) (1), and the trial court, Kavanew-
sky, J., sentenced him to eight years imprisonment, five
years of which was mandatory, followed by eight years
of special parole.
In 2010, the year in which the petitioner committed
the criminal act underlying his conviction, there was
no statutory provision that permitted inmates to earn
‘‘good time credits’’ to reduce the length of their senten-
ces. In addition, due to the violent nature of the offense
for which he was convicted, the petitioner was not
eligible for parole consideration before serving 85 per-
cent of his sentence. See General Statutes (Rev. to 2013)
§ 54-125a (b).
In 2011, after the petitioner committed the criminal
act but before he was sentenced, the General Assembly
passed Number 11-51 of the 2011 Public Acts (P.A. 11-
51), codified at General Statutes § 18-98e. Section 18-
98e (a) provides that certain inmates who were con-
victed of crimes committed after October 1, 1994, ‘‘may
be eligible to earn risk reduction credit toward a reduc-
tion of such person’s sentence, in an amount not to
exceed five days per month, at the discretion of the
Commissioner of Correction . . . .’’ At the same time,
the General Assembly amended § 54-125a (b), providing
that a person convicted of a violent crime would not
be eligible for parole consideration ‘‘until such person
has served not less than [85 percent] of the definite
sentence imposed less any risk reduction credit earned
under the provisions of [section 18-98e].’’ (Emphasis
added.) P.A. 11-51, § 25.
Thus, when the petitioner was sentenced in 2012,
he was entitled to earn and be awarded, within the
discretion of the respondent, risk reduction credits that
would reduce the length of his sentence and also
advance the date of his first eligibility for parole consid-
eration. See Petaway v. Commissioner of Correction,
160 Conn. App. 727, 730, 125 A.3d 1053 (2015), appeal
dismissed, 324 Conn. 912, 153 A.3d 1288 (2017). In fact,
the respondent credited the petitioner with risk reduc-
tion credits for each month that he was eligible to earn
such credits.
In 2013, however, the General Assembly again
amended § 54-125a (b) by removing the phrase ‘‘less
any risk reduction credit earned under the provisions
of section 18-98e.’’ See Pubic Acts 2013, No. 13-3, § 59.
The 2013 version, which is in effect today, requires
inmates who were convicted of a violent offense to
serve 85 percent of their sentences before they become
eligible for parole consideration. In the present case,
therefore, the petitioner may earn and be awarded risk
reduction credits, but such credits can no longer be
used to advance the date on which he is eligible to be
considered for parole. Notably, the petitioner has not
lost any risk reduction credits he has earned, and he
may still reduce the total length of his sentence of incar-
ceration.
On August 7, 2014, the petitioner, self-represented,
filed the operative petition. In count one, he alleged
that even though the 2013 version of § 54-125a (b) pre-
vents ‘‘risk reduction earned credit(s) to be applied
toward parole eligibility dates, his sentence . . . must
be [commutated] under [the 2011 version of § 54-125a
(b)], as that was the enforceable law at the time he
became sentenced.’’ In count two, he alleged that he
suffered from a heart disease and that ‘‘[d]ue to [the]
. . . stress . . . [stemming] from the petitioner having
to struggle with his disease and litigation . . . [t]he
petitioner not only seeks the return of all [risk reduction
credits] to be properly calculated toward his parole
eligibility date but . . . respectfully moves this court
to grant relief [and] remedy by the granting of additional
credits, and conditional medical parole.’’
On August 11, 2014, before the respondent responded
to the petitioner’s petition, the petitioner filed a motion
for summary judgment.5 In the motion, he alleged that
(1) there was no issue of material fact that his ‘‘claim
is entirely based on the language of the sovereign law
that was in effect at the time [he] became sentenced,’’
(2) there was no issue of material fact that he was
‘‘entitled to have all ‘earned risk reduction credits’ be
applied toward [his] parole eligibility,’’ and (3) ‘‘[a]s the
new law was passed after [he] was sentenced,’’ applying
the 2013 version of § 54-125a (b) to him violated ‘‘Article
I, section 10 of the United States Constitution . . . .’’
On November 3, 2014, the respondent filed a cross
motion for summary judgment. In his motion, he argued
that the respondent was entitled to a judgment as a
matter of law because ‘‘there exists no constitutional
right to receive [risk reduction credits] or to have these
credits applied to reduce an inmate’s parole eligibility
date . . . [and] there exists no constitutional right to
parole.’’ The respondent also filed a memorandum of
law in support of his motion for summary judgment, in
which he relied heavily on the decision of the habeas
court, Kwak, J., in Petaway v. Commissioner of Correc-
tion, Superior Court, judicial district of Tolland, Docket
No. CV-13-4005684 (April 7, 2014), aff’d, 160 Conn. App.
727, 125 A.3d 1053 (2015). The respondent attached
Judge Kwak’s order to his motion.6
On August 17, 2015, the habeas court, Fuger, J., held
a hearing to address both parties’ motions for summary
judgment. Following argument from both parties, the
habeas court issued its oral decision. In ruling for the
respondent, the habeas court wholly adopted and relied
on Judge Kwak’s reasoning in Petaway.
On August 24, 2015, the petitioner filed a petition for
certification to appeal, which the habeas court denied.
On April 27, 2016, the petitioner filed in this court a
motion for permission to file a late motion for articula-
tion of the habeas court’s ruling. On May 25, 2016, this
court denied the petitioner’s motion but, sua sponte,
ordered that the habeas court ‘‘articulate whether it
intended to dismiss the petition . . . for lack of juris-
diction or whether it intended to render summary judg-
ment in favor of the [respondent], and the factual and
legal basis for the court’s decision.’’ In addition, this
court, sua sponte, ordered the habeas court to ‘‘articu-
late whether it has disposed of the second count of the
petitioner’s . . . petition.’’
On June 21, 2016, the habeas court filed its articula-
tion. It clarified that when it made its oral ruling on
August 17, 2015, it intended to dismiss count one of the
petition for lack of subject matter jurisdiction. It also
stated that it disposed of count two for lack of subject
matter jurisdiction because the petitioner failed to state
a claim upon which relief could be granted.
On July 5, 2016, the petitioner filed in this court a
motion for review of the habeas court’s articulation.
On July 19, 2016, this court granted the petitioner’s
motion for review but denied his relief requested. This
appeal followed.
On appeal, the petitioner argues that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal because it committed a number of proce-
dural errors in rendering its decision and improperly
concluded that it lacked subject matter jurisdiction.
Before we proceed on the merits of the petitioner’s
claims on appeal, however, it is the obligation of this
court to first determine whether the habeas court
abused its discretion by denying the petitioner’s certifi-
cation to appeal because it did not have subject matter
jurisdiction over the petitioner’s petition.
‘‘Faced with the habeas court’s denial of certification
to appeal . . . a petitioner’s first burden is to demon-
strate that the habeas court’s ruling constituted an
abuse of discretion. . . . A habeas appeal . . . war-
rants appellate review if the appellant can show: that
the issues are debatable among jurists of reason; that
a court could resolve the issues [in a different manner];
or that the questions are adequate to deserve encourage-
ment to proceed further. . . .
‘‘[B]ecause [a] determination regarding a trial court’s
subject matter jurisdiction is a question of law, our
review is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) Rodriguez v. Commissioner of
Correction, 159 Conn. App. 162, 164–65, 122 A.3d 709
(2015).
We will, therefore, conduct a plenary review of the
petitioner’s petition to determine whether the habeas
court properly concluded that it lacked subject matter
jurisdiction to consider the petition.
I
The petitioner argued in count one of his petition
that the application of the 2013 version of § 54-125a (b)
violated his constitutional right against ex post facto
laws. In dismissing count one, the habeas court stated
in relevant part: ‘‘This court explicitly adopted Judge
Kwak’s reasoning as articulated in his April 7, 2014
order, which the respondent attached as exhibit F to
the motion for summary judgment. This court, upon
reconsideration of the entire matter, articulates that
it intended to dismiss the petition for lack of subject
matter jurisdiction.’’7
‘‘[F]or a law to violate the prohibition [against ex
post facto laws], it must feature some change from the
terms of a law in existence at the time of the criminal
act. That feature is entirely sensible, as a core purpose
in prohibiting ex post facto laws is to ensure fair notice
to a person of the consequences of criminal behavior.
. . . [L]aws that impose a greater punishment after the
commission of a crime than annexed to the crime at
the time of its commission run afoul of the ex post
facto prohibition because such laws implicate the cen-
tral concerns of the ex post facto clause: the lack of fair
notice and governmental restraint when the legislature
increases punishment beyond what was prescribed
when the crime was consummated.’’ (Internal quotation
marks omitted.) Petaway v. Commissioner of Correc-
tion, supra, 160 Conn. App. 731–32. Thus, to determine
whether a habeas court has subject matter jurisdiction
over a petitioner’s ex post facto claim, ‘‘[t]he controlling
inquiry . . . [is] whether retroactive application of the
change in [the] law create[s] a sufficient risk of increas-
ing the measure of punishment attached to the covered
crimes. . . . [A] habeas petitioner need only make a
colorable showing that the new law creates a genuine
risk that he or she will be incarcerated longer under that
new law than under the old law.’’ (Citations omitted;
internal quotation marks omitted.) Johnson v. Commis-
sioner of Correction, 258 Conn. 804, 818, 786 A.2d
1091 (2002).
Just as in Petaway, the petitioner in the present case
‘‘makes no claim that legislation regarding eligibility for
parole consideration became more onerous after the
date of his criminal behavior. Rather, he claims that
new legislation enacted in 2011, [a year] after his crimi-
nal conduct . . . conferred a benefit on him that was
then taken away in 2013. Such a claim, however, does
not implicate the ex post facto prohibition because the
changes that occurred between 2011 and 2013 have no
bearing on the punishment to which the petitioner’s
criminal conduct exposed him when he committed’’ the
robbery in 2010. (Emphasis added.) Petaway v. Com-
missioner of Correction, supra, 160 Conn. App. 732.
We conclude that the habeas court properly con-
cluded that it did not have subject matter jurisdiction
over count one of the petitioner’s petition. Therefore,
we also conclude that the habeas court did not abuse
its discretion in denying the petitioner’s petition for
certification to appeal count one.
II
The petitioner alleged in count two of his petition
that he suffered from a heart condition, and due to
the ‘‘stress’’ of litigating count one, he was entitled to
additional credits and conditional medical parole. In
dismissing count two, the habeas court stated in rele-
vant part: ‘‘The court notes that count two does not
really state a claim at all. Instead, the petitioner makes
various allegations that his health has suffered as a
result of his efforts in litigating his claims and not receiv-
ing the [risk reduction] credits he believes he is entitled
to. At the beginning of count two the petitioner indicates
that he is seeking compensatory relief, but later it
becomes apparent that count two in reality is seeking an
early release through the application of [risk reduction]
credits, additional credits or the granting of medical
parole. Count two does not allege that the petitioner’s
medical treatment somehow violates the Eighth Amend-
ment’s prohibition against cruel and unusual punish-
ment. Therefore, count two fails to invoke a habeas
court’s subject matter jurisdiction . . . .’’
‘‘The principal purpose of the writ of habeas corpus
is to serve as a bulwark against convictions that violate
fundamental fairness. . . . [I]n order to invoke suc-
cessfully the jurisdiction of the habeas court, a peti-
tioner must allege an interest sufficient to give rise to
habeas relief. . . . In order to invoke the trial court’s
subject matter jurisdiction in a habeas action, a peti-
tioner must allege that he is illegally confined or has
been deprived of his liberty.’’ (Internal quotation marks
omitted.) Anthony A. v. Commissioner of Correction,
159 Conn. App. 226, 235, 122 A.3d 730 (2015), aff’d, 326
Conn. 668, A.3d (2017). ‘‘In order . . . to qualify
as a constitutionally protected ‘liberty’ . . . the inter-
est must be one that is assured either by statute, judicial
decree, or regulation.’’ (Emphasis in original; internal
quotation marks omitted.) Baker v. Commissioner of
Correction, 281 Conn. 241, 252, 914 A.2d 1034 (2007).
Specifically, ‘‘parole eligibility under § 54-125a does not
constitute a cognizable liberty interest sufficient to
invoke habeas jurisdiction.’’ Id., 261–62.
In the present case, it appears that count two is wholly
dependent on the success of count one, and because
we conclude that the habeas court properly concluded
that it lacked subject matter jurisdiction over count one,
it follows that count two must fail as well. Moreover,
it is unclear what relief the petitioner sought in count
two; it seems as though he asked the habeas court for
medical compensation while simultaneously asking for
an early release due to his failing health. What is clear,
however, is that he did not assert that he was illegally
confined or that he had been wrongly deprived of his
liberty.
We conclude that the habeas court properly con-
cluded that it lacked subject matter jurisdiction over
count two. Therefore, we also conclude that the habeas
court did not abuse its discretion in denying the petition-
er’s petition for certification to appeal count two.
Because the petitioner failed to allege a liberty inter-
est sufficient to invoke the subject matter jurisdiction
of the habeas court, we conclude that the habeas court
properly dismissed his petition. Furthermore, we con-
clude 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
This appeal arises from the habeas court’s oral decision issued following
the August 17, 2015 hearing held for both the petitioner’s motion for summary
judgment and the respondent’s cross motion for summary judgment. Both
parties contend on appeal that the habeas court granted the respondent’s
motion for summary judgment at the hearing. Notwithstanding some confu-
sion within the record, a review of the habeas court’s subsequent articulation
ordered by this court reveals that it did not rule on either party’s motion
for summary judgment but dismissed count one of the petition for lack of
subject matter jurisdiction and count two for lack of subject matter jurisdic-
tion and for failure to state a claim upon which habeas corpus relief could
be granted. We conclude that because the court dismissed the case for lack
of jurisdiction, it did not have the authority to rule on the merits of the
respondent’s motion. See State v. Bozelko, 154 Conn. App. 750, 766, 108
A.3d 262 (2015) (‘‘[o]nce the court determined that it lacked subject matter
jurisdiction, it had no authority to decide the case’’).
2
In his petition, filed on August 7, 2014, the petitioner alleges two counts.
Count one is labeled ‘‘Risk Reduction Earned Credit,’’ and count two is
labeled ‘‘Health Issue.’’
3
The petitioner claims that the habeas court committed a number of
procedural errors in rendering judgment in favor of the respondent in viola-
tion of his constitutional right to due process. In light of our conclusion
that the habeas court lacked subject matter jurisdiction, we need not address
these claims. See, e.g., Arriaga v. Commissioner of Correction, 120 Conn.
App. 258, 265, 990 A.2d 910 (2010), appeal dismissed, 303 Conn. 698, 36 A.3d
224 (2012); Gonzalez v. Commissioner of Correction, 107 Conn. App. 507,
516, 946 A.2d 252, cert. denied, 289 Conn. 902, 957 A.2d 870 (2008).
4
During oral argument before this court, counsel for the petitioner raised
the issue of mootness because the Board of Pardons and Parole approved the
petitioner for placement in a halfway house. This court ordered supplemental
briefing on the issue of mootness. We conclude that this case falls within
an exception to the mootness doctrine because the issue presented is capable
of repetition, yet evades review. See, e.g., In re Angel R., 157 Conn. App.
826, 835–7, 118 A.3d 117, cert. denied, 317 Conn. 923, 118 A.3d 549 (2015).
5
The petitioner did not articulate whether the motion for summary judg-
ment was directed at both counts of his petition or whether it was only for
count one.
6
In Petaway, the petitioner, who also was classified as a violent offender,
alleged that ‘‘his parole eligibility date [was] illegal because it violate[d] the
ex post facto clause of the constitution.’’ Petaway v. Commissioner of
Correction, supra, Superior Court, Docket No. CV-13-4005684, *1. Judge
Kwak, ‘‘declined to issue the writ pursuant to Practice Book § 23-24a (1)’’
and because ‘‘[p]arole . . . is not a valid habeas claim.’’ (Internal quotation
marks omitted.) Id., *2. The petitioner filed a petition for certification to
appeal, which Judge Kwak denied. The petitioner subsequently filed a motion
for reconsideration, in which he argued that the habeas court did have
subject matter jurisdiction because his claim was ‘‘an ex post facto claim’’
as opposed to a ‘‘parole eligibility’’ claim. Judge Kwak agreed with the
petitioner that the issue of whether it had subject matter jurisdiction over
the petitioner’s ex post facto claim was a question in which ‘‘reasonable
jurists could disagree . . . .’’ Id. He concluded, however, that the habeas
court did not have subject matter jurisdiction because ‘‘[i]t [was] uncertain
and highly speculative whether the wholly discretionary awarding of risk
reduction credits creates a ‘genuine risk’ of petitioners such as . . . Petaway
being incarcerated longer under the [2013 version of § 54-125a (b)] versus
the [2011 version of § 54-125a (b)].’’ Id., *5. Judge Kwak vacated his previous
order, and he dismissed the petitioner’s petition but granted his petition
for certification to appeal limited to the following question: ‘‘[W]hether
retroactive application of [Public Act] § 13-3, and changes impacting parole
eligibility dates as established by the wholly discretionary award of risk
reduction credits, and not by pure operation of statute, gives rise to a
colorable claim sufficient to establish subject matter jurisdiction?’’ Id.
7
The petitioner argues on appeal that the habeas court improperly failed
to consider his second claim in support of count one of his petition. Relying
on Johnson v. Commissioner of Correction, 258 Conn. 804, 786 A.2d 1091
(2002), he argued in his petition that ‘‘the 2013 changes to [risk reduction
earned credit] could not be applied retroactively to him because the legisla-
ture did not express an intention to apply the changes retroactively,’’ which
was distinct from his ex post facto claim. On the basis of our liberal reading
of the language in his petition; see Mourning v. Commissioner of Correction,
120 Conn. App. 612, 624–25, 992 A.2d 1169, cert. denied, 297 Conn. 919, 996
A.2d 1192 (2010); we agree that the petitioner made two claims in support
of count one. This reading, nevertheless, does not change our overall conclu-
sion for two reasons. First, the petitioner’s second claim misconstrues our
Supreme Court’s analysis in Johnson. In that case, the court concluded it
did have subject matter jurisdiction and that the legislature did not intend
for Number 95-225, § 1, of the 1995 Public Acts to have a retroactive effect.
Johnson v. Commissioner of Correction, supra, 819, 829. Its conclusion,
however, was not addressing a separate ‘‘legislative intent’’ claim but, rather,
was part of the court’s analysis as to whether the retroactive application
of the law violated the petitioner’s right against ex post facto laws. Second,
to the extent that the petitioner’s argument was a ‘‘parole eligibility’’ or ‘‘due
process’’ claim, our jurisprudence expressly provides that parole eligibility
is not a cognizable liberty interest sufficient to invoke a habeas court’s
jurisdiction. See Baker v. Commissioner of Correction, 281 Conn. 241, 252–
62, 914 A.2d 1034 (2007); Fuller v. Commissioner of Correction, 144 Conn.
App. 375, 378–80, 71 A.3d 689, cert. denied, 310 Conn. 946, 80 A.3d 907
(2013). Thus, the habeas court lacked subject matter jurisdiction over the
petitioner’s second claim.