Holliday v. Commissioner of Correction

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
DEAN HOLLIDAY v. COMMISSIONER
OF CORRECTION
(AC 39234)
DiPentima, C. J., and Prescott and Eveleigh, Js.
Syllabus
The petitioner, who had been convicted in 2002 of several crimes in connec-
tion with an attempted robbery in 2001, sought a writ of habeas corpus,
alleging that a 2013 revision to the parole eligibility statute (§ 54-125a
[b]) operated to delay his earliest parole eligibility date by requiring
him, as a violent offender, to serve 85 percent of his definite sentence
before becoming eligible for parole. The 2013 revision had revoked a
portion of 2011 legislation that had revised § 54-125a (b) to permit him
to earn credits toward a reduction in his sentence. The petitioner claimed
that 2013 revision to § 54-125a (b) violated his rights to due process
and equal protection, and the constitutional prohibition against ex post
facto laws. The habeas court dismissed the petition for a writ of habeas
corpus on its own motion, pursuant to the applicable rule of practice
(§ 23-29 [1]), on the ground that it lacked subject matter jurisdiction.
Thereafter, the habeas court granted the petition for certification to
appeal, and the petitioner appealed to this court. Held:
1. The habeas court properly dismissed the habeas petition on the ground
that it lacked subject matter jurisdiction over the petitioner’s ex post
facto, due process and equal protection claims: the petitioner failed to
demonstrate a recognized liberty interest that was implicated by his
loss of risk reduction credits toward parole eligibility, and even if he
had a liberty interest in risk reduction credit, he could not assert a
colorable ex post facto claim because his only complaint was that favor-
able legislation that was enacted in 2011, after his conviction, was later
repealed in 2013, which thereby put him back in the same position as
he was when he was first convicted; moreover, our Supreme Court
previously has rejected a claim that due process and equal protection
claims regarding risk reduction credit independently implicate the sub-
ject matter jurisdiction of the habeas court.
2. The petitioner’s claim that the habeas court improperly dismissed his
habeas petition without notice or a hearing was unavailing; that court
was not obligated to grant the petitioner a hearing before dismissing
the petition, as § 23-29 (1) authorized the court to dismiss the petition
on its own motion, and although the petitioner has a right under the
applicable rule of practice (§ 23-40) to be present when an evidentiary
hearing is held, such hearings are not always required and the petitioner’s
right to a hearing before the habeas court was not absolute where, as
here, he failed to allege facts sufficient to invoke the habeas court’s juris-
diction.
Argued May 15—officially released August 14, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Oliver, J., rendered judgment
dismissing the petition, from which the petitioner, on
the granting of certification, appealed to this court.
Affirmed.
Nicholas Marolda, assigned counsel, with whom, on
the brief, was Temmy Ann Miller, assigned counsel,
for the appellant (petitioner).
Michael A. Martone, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Terrence M. O’Neill, assistant attorney general,
for the appellee (respondent).
Opinion
EVELEIGH, J. The petitioner, Dean Holliday, appeals
from the judgment of the habeas court dismissing his
petition for a writ of habeas corpus. The petitioner
claims that the habeas court erred in dismissing his
petition (1) for lack of jurisdiction on the basis of Peta-
way v. Commissioner of Correction, 160 Conn. App.
727, 125 A.3d 1053 (2015), appeal dismissed, 324 Conn.
912, 153 A.3d 1288 (2017), and (2) without notice or a
hearing. For the reasons set forth herein, we disagree
and, accordingly, affirm the judgment of the habeas
court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In April, 2002,
following a jury trial, the petitioner was convicted of
attempt to commit robbery in the first degree in viola-
tion of General Statutes §§ 53a-49 and 53a-134 (a) (2),
conspiracy to commit robbery in the first degree in
violation of General Statutes §§ 53a-48 and 53a-134 (a)
(2), and attempt to commit robbery in the second degree
in violation of General Statutes §§ 53a-49 and 53a-135
(a) (1). The petitioner was sentenced to a total effective
term of forty years in prison.1 This court affirmed the
petitioner’s conviction on direct appeal. See State v.
Holliday, 85 Conn. App. 242, 243, 856 A.2d 1041, cert.
denied, 271 Conn. 945, 861 A.2d 1178 (2004). The peti-
tioner remains in the custody of the respondent, the
Commissioner of Correction.
In 2001, at the time of the petitioner’s criminal con-
duct, and in 2003, when he was convicted, no statutory
provision existed that permitted inmates to earn credits
toward reducing the length of their sentences. In 2011,
while the petitioner was incarcerated, the General
Assembly enacted No. 11-51, § 22, of the 2011 Public
Acts, later codified in General Statutes § 18-98e. This
legislation provided that certain prisoners convicted of
crimes committed after October 1, 1994, ‘‘may be eligi-
ble to earn risk reduction credit toward a reduction of
such person’s sentence, in an amount not to exceed
five days per month, at the discretion of the Commis-
sioner of Correction’’ for certain positive behaviors.
General Statutes § 18-98e (a). Section 18-98e (a) was
enacted in conjunction with a revision to General Stat-
utes § 54-125a (b), which provided, in relevant part, that
a person convicted of a violent crime would not be
eligible for parole consideration ‘‘until such person has
served not less than eighty-five percent of the definite
sentence imposed less any risk reduction credit earned
under the provisions of section 18-98e.’’ (Emphasis
added.) General Statutes (Rev. to 2013) § 54-125a (b).
The petitioner’s crimes qualified as violent under § 54-
125a (b).2 See State v. Holliday, supra, 85 Conn. App.
247. Under the 2011 revisions of §§ 18-98e and 54-125a
(b), the petitioner earned credits toward his discharge
date and parole eligibility date.
In July, 2013, the General Assembly amended § 54-
125a (b), striking the language that allowed credits
earned under § 18-98e to reduce the time served by
violent offenders before becoming eligible for parole.
This revision meant that violent offenders, like the peti-
tioner, were required to serve 85 percent of their defi-
nite sentence3 before becoming eligible for parole.
Credits the petitioner had earned toward his discharge
date and parole eligibility date were revoked following
the revision.
On December 24, 2014, the self-represented petitioner
filed a petition for a writ of habeas corpus in which he
alleged that the 2013 legislative change violated the
ex post facto clause of the United States constitution,
article one, § 10, by revoking credits he had earned
under § 18-98e. In support of his claim, the petitioner
cited Teague v. Quarterman, 482 F.3d 769 (5th Cir.
2007), and Cleburne v. Cleburne Living Center, 473
U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985), cases
that address rights under the due process and equal
protection clauses, respectively. On March 29, 2016, the
habeas court dismissed the petition on its own motion
pursuant to Practice Book § 23-29 (1) for lack of juris-
diction. The habeas court’s decision did not analyze the
petitioner’s due process and equal protection argu-
ments, but, citing this court’s opinion in Petaway v.
Commissioner of Correction, supra, 160 Conn. App.
727, concluded that the habeas court lacked subject
matter jurisdiction.
The petitioner filed a petition for certification to
appeal on April 15, 2016, which the habeas court granted
on April 25, 2016. The petitioner, then represented by
appointed counsel, filed a motion for articulation on
November 7, 2016, which the court denied on November
21, 2016.4 This appeal followed. Additional facts and
procedural history will be set forth as necessary.
I
On appeal, the petitioner claims that the habeas court
erred in dismissing his habeas petition for lack of sub-
ject matter jurisdiction. Specifically, the petitioner
argues the court improperly relied on Petaway v. Com-
missioner of Correction, supra, 160 Conn. App. 727, in
dismissing not only his ex post facto claim, but also
his due process and equal protection claims. The
respondent argues that the habeas court’s dismissal
for lack of jurisdiction was proper because the habeas
court lacked subject matter jurisdiction over the peti-
tion on the basis of Petaway, Perez v. Commissioner
of Correction, 326 Conn. 357, 163 A.3d 597 (2017), and
James E. v. Commissioner of Correction, 326 Conn.
388, 163 A.3d 593 (2017).5 We agree with the respondent.
We first set forth our standard of review and applica-
ble legal principles. ‘‘It is well settled that [a] determina-
tion regarding a trial court’s subject matter jurisdiction
is a question of law and, therefore, we employ the ple-
nary standard of review and decide whether the court’s
conclusions are legally and logically correct and sup-
ported by the facts in the record.’’ (Internal quotation
marks omitted.) Petaway v. Commissioner of Correc-
tion, supra, 160 Conn. App. 731.
The habeas court’s subject matter jurisdiction is pred-
icated on the deprivation of a recognized liberty inter-
est. See General Statutes § 52-466 (a) (2); Santiago v.
Commissioner of Correction, 39 Conn. App. 674, 679,
667 A.2d 304 (1995). The petitioner’s failure to demon-
strate a liberty interest implicated by his loss of risk
reduction credit is dispositive of this appeal. Pursuant
to Practice Book § 23-29, the habeas court ‘‘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 jurisdic-
tion . . . .’’ The only interest implicated by the present
petition is credit toward parole eligibility. This court
and our Supreme Court have held there is no liberty
interest in the application of risk reduction eligibility
credit toward an inmate’s parole eligibility. Perez v.
Commissioner of Correction, supra, 326 Conn. 372–73
(no vested liberty interest in risk reduction credit
granted under § 18-98e); Petaway v. Commissioner of
Correction, supra, 160 Conn. App. 734 (no liberty inter-
est in parole eligibility under § 54-125a [b]).
Even if the petitioner had a liberty interest in risk
reduction credit and the habeas court had been able to
reach the merits of his ex post facto claim, the claim
would fail in light of Petaway, which the petitioner
recognized as dispositive at oral argument before this
court.6 In Petaway, this court adjudicated nearly identi-
cal factual and legal issues to those in the present case.
Petaway v. Commissioner of Correction, supra, 160
Conn. App. 727. Petaway involved a habeas petition
that alleged that the retroactive application of the 2013
amendment to § 54-125a (b) violated the ex post facto
clause.7 Id., 729–30. The petitioner in that case was
convicted of a violent crime before the relevant 2011
enactments and had earned credits toward his parole
eligibility, but was unable to apply those credits to his
parole eligibility date after the General Assembly made
the statute inapplicable to inmates convicted of violent
crimes. Id., 730–31. The court in Petaway held that the
petitioner had not asserted a colorable ex post facto
claim because his only complaint was that favorable
legislation, enacted after his conviction, was later
repealed, putting him back in the same position as when
he was first convicted. Id., 734. The same is true of
the petitioner here.8 Accordingly, we conclude that the
habeas court properly dismissed the petitioner’s ex post
facto claim for lack of subject matter jurisdiction.
The petitioner also argues that the habeas court erred
in dismissing his petition in its entirety because the
failure of his ex post facto claim did not deprive the
habeas court of jurisdiction to hear his due process
and equal protection claims. We disagree. Our Supreme
Court in Perez rejected the argument that the due pro-
cess and equal protection claims regarding risk reduc-
tion credit independently implicate the subject matter
jurisdiction of the habeas court, concluding that ‘‘[a]n
essential predicate to all of these claims is a cognizable
liberty interest.’’ Perez v. Commissioner of Correction,
supra, 326 Conn. 370. Accordingly, because the peti-
tioner has not demonstrated a liberty interest in credits
toward parole eligibility, we conclude that the habeas
court properly dismissed his due process and equal
protection claims.
II
The petitioner also argues that the habeas court erred
in dismissing the petition on its own motion, without
notice or a hearing. The respondent argues that the
plain meaning of Practice Book § 23-29 (1) and this
court’s decision in Pentland v. Commissioner of Cor-
rection, 176 Conn. App. 779, 169 A.3d 851, cert. denied,
327 Conn. 978, 174 A.3d 800 (2017), show that the habeas
court was not required to provide notice or a hearing
before dismissing the petition. We agree with the
respondent.9
‘‘[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.’’ (Internal quotation marks omitted.) Ajadi
v. Commissioner of Correction, 280 Conn. 514, 549, 911
A.2d 712 (2006). Habeas petitioners generally have ‘‘the
right to be present at any evidentiary hearing and at
any hearing or oral argument on a question of law which
may be dispositive of the case . . . .’’ Practice Book
§ 23-40. However, Practice Book § 23-40 speaks only to
the petitioner’s right to be present at an evidentiary
hearing when such a hearing is held.10 Such hearings are
not always required, as Practice Book § 23-29 authorizes
the court to dismiss a habeas petition on its own motion.
As we indicated in Green v. Commissioner of Correc-
tion, 184 Conn. App. 76, 83 n.6, A.3d (2018),
‘‘we urge the habeas court to exercise this authority
[to dispose of a petition without a hearing] sparingly
and limit its use to those instances in which it is plain
and obvious’’ that the court lacks jurisdiction over the
habeas petition.
Notwithstanding this policy, a petitioner’s right to a
hearing before a habeas court is not absolute. In Pent-
land v. Commissioner of Correction, supra, 176 Conn.
App. 787, this court held that the habeas court acted
properly in dismissing a habeas petition pursuant to
Practice Book § 23-29 without first holding a hearing
because it could ‘‘be determined from a review of the
petition [that] the petitioner had not satisfied his obliga-
tion to allege sufficient facts in his pleading’’ to establish
jurisdiction.11 Here, the petitioner similarly failed to
allege sufficient facts to establish jurisdiction. The pre-
sent petition alleged only the deprivation of risk reduc-
tion eligibility credit, which this court and our Supreme
Court have held is insufficient to invoke the habeas
court’s jurisdiction. See Perez v. Commissioner of Cor-
rection, supra, 326 Conn. 357; see also Petaway v. Com-
missioner of Correction, supra 160 Conn. App. 727.
In light of binding precedent establishing the habeas
court’s lack of subject matter jurisdiction, we find that
the habeas court was not obligated to grant the peti-
tioner a hearing before dismissing the petition and acted
properly in dismissing the petition.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In August, 2005, the petitioner’s sentence was modified to twenty-five
years in prison by the sentence review division. State v. Holliday, Superior
Court, judicial district of New Britain, Docket No. CR-011-94794, 2005 WL
2358544, *3 (August 22, 2005).
2
General Statutes (Rev. to 2013) § 54-125a (b) (1) prohibits the use of
risk reduction credit toward parole eligibility by ‘‘[a] person convicted of
. . . an offense . . . where the underlying facts and circumstances of the
offense involve the use, attempted use or threatened use of physical force
against another person . . . until such person has served not less than
eighty-five per cent of the definite sentence imposed . . . .’’
A jury found the petitioner guilty of, among other crimes, robbery in the
first degree, which involves the ‘‘[use] or threaten[ed] . . . immediate use
of physical force upon another person . . . .’’ (Internal quotation marks
omitted.) State v. Holliday, supra, 85 Conn. App. 247.
3
‘‘[D]efinite sentence is the flat maximum to which a defendant is sen-
tenced . . . .’’ State v. Adam H., 54 Conn. App. 387, 393, 735 A.2d 839, cert.
denied, 251 Conn. 905, 738 A.2d 1091 (1999).
4
The petitioner filed a motion for review of the habeas court’s denial of
his motion for articulation on December 5, 2016. This court granted the
petitioner’s motion for review but denied the relief requested therein.
5
Our Supreme Court decided Perez and James E. v. Commissioner of
Correction, supra, 326 Conn. 388, on the same day. In James E. v. Commis-
sioner of Correction, supra, 394, the court stated that the ‘‘ex post facto
claim raised by the petitioner in the present case is identical to [the ex
post facto] claim raised in Perez’’ and that the petitioners were ‘‘identically
situated.’’ The claims and facts in these cases are also indistinguishable
from those in Petaway.
6
See footnote 4 of this opinion.
7
Whereas the habeas court here dismissed the petition pursuant to Prac-
tice Book § 23-29 (1), the court in Petaway v. Commissioner of Correction,
supra, 160 Conn. App. 728, declined pursuant to Practice Book § 23-24 to
issue a writ of habeas corpus. This distinction does not change the applicabil-
ity of Petaway to the present case, as both provisions stand for the proposi-
tion that a habeas court must have subject matter jurisdiction to grant a
habeas petition.
8
We note that two cases alleging an ex post facto violation on the basis
of the 2013 amendment to § 54-125a (b) are currently on appeal before our
Supreme Court. See Breton v. Commissioner of Correction, SC 19928, and
Garner v. Commissioner of Correction, SC 19927. These cases, however,
are factually distinguishable from the present case. While the present case
involves a petitioner who was convicted before the enactment of the 2011
provisions, thereby defeating the timing requirement for an ex post facto
claim, the petitioners in Breton and Warden committed their crimes between
the enactment of the 2011 and 2013 amendments.
9
It should be noted that, on June 13, 2018, our Supreme Court granted
a petition for certification to appeal this court’s decision in Gilchrist v.
Commissioner of Correction, 180 Conn. App. 56, 182 A.3d 690 (2018). Certifi-
cation to appeal was granted only as to the following issue: ‘‘Did the Appellate
Court properly affirm the habeas court’s dismissal of the petition when the
habeas court took no action on the petitioner’s request for counsel and did
not give the petitioner notice and an opportunity to be heard on the court’s
own motion to dismiss the petition pursuant to Practice Book § 23-29?’’
Gilchrist v. Commissioner of Correction, 329 Conn. 908, A.3d (2018).
10
‘‘[T]he rules of practice were promulgated to create one harmonious
and consistent body of law. . . . If courts can by any fair interpretation
find a reasonable field of operation for two [rules of practice] without
destroying their evident meaning, it is the duty of the courts to do so,
thus reconciling them and according to them concurrent effect.’’ (Citation
omitted; internal quotation marks omitted.) Farmington v. Dowling, 22
Conn. App. 564, 566, 577 A.2d 1128, cert. denied, 216 Conn. 816, 580 A.2d
66 (1990). To give effect to both Practice Book §§ 23-29 and 23-40, the latter
section should be read to give a petitioner the right to be present at an
evidentiary hearing if one is held, not to give a petitioner the absolute right
to an evidentiary hearing itself.
11
The petitioner argues that the habeas court erred in dismissing the
petition without a hearing because, in Boyd v. Commissioner of Correction,
157 Conn. App. 122, 126, 115 A.3d 1123 (2015), this court held that dismissal
without a hearing is permitted ‘‘only under narrowly defined circumstances
. . . .’’ In Boyd, this court held that a petitioner was entitled to a hearing
before his petition was dismissed under Practice Book § 23-29 (3), which
allows the habeas court to dismiss a petition if ‘‘the petition presents the
same ground as a prior petition previously denied and fails to state new
facts or to proffer new evidence not reasonably available at the time of the
prior petition . . . .’’ The present case is distinguishable in that the habeas
court dismissed the petition under a different subdivision of § 23-29. In Boyd
v. Commissioner of Correction, supra, 126, the court found dismissal under
§ 23-29 (3), without a hearing, was improper because the petition ‘‘contained
a new ground for habeas relief.’’ The petition in the present case failed to
implicate a liberty interest, placing it squarely within the grounds for dis-
missal in § 23-29 (1).