Whistnant v. Commissioner of Correction

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JERRY LEWIS WHISTNANT v. COMMISSIONER
OF CORRECTION
(AC 42894)
DiPentima, C. J., and Moll and Flynn, Js.*
Syllabus
The petitioner, who had been convicted on a guilty plea in 2009, of the
crime of robbery in the first degree in connection with a robbery he
committed in 2008, sought a writ of habeas corpus, claiming, inter alia,
a violation of the ex post facto clause of the United States constitution.
In 2011, the legislature enacted a statute (§ 18-98e) that permitted certain
inmates, including the petitioner, to earn risk reduction credit toward
the reduction of their sentences, at the discretion of the respondent,
the Commissioner of Correction, and amended the statute (§ 54-125a
(b) (2)) governing parole eligibility to permit risk reduction credit to
be applied to advance the parole eligibility date of inmates convicted
of certain violent offenses. In 2013, the legislature enacted an amendment
(P.A. 13-3, § 59) to § 54-125a (b) (2) that removed the language that
permitted the risk reduction credit earned under § 18-98e to advance
the parole eligibility date of violent offenders. The petitioner claimed,
inter alia, that the 2013 amendment, as applied retroactively to him,
violated the ex post facto clause of the federal constitution. The habeas
court rendered judgment declining to issue a writ of habeas corpus
pursuant to the applicable rule of practice (§ 23-24 (a) (1)) on the ground
that it lacked subject matter jurisdiction. Thereafter, the habeas court
denied the petitioner’s petition for certification to appeal, and the peti-
tioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal, as the petitioner failed to demonstrate that his
claims were debatable among jurists of reason, that a court could have
resolved the issues in a different manner or that the questions were
adequate to deserve encouragement to proceed further.
2. The petitioner’s claim that the habeas court improperly failed to conduct
a hearing before declining to issue a writ of habeas corpus under Practice
Book § 23-24 (a) (1) was outside the scope of this court’s appellate
review; pursuant to the applicable statute (§ 52-470 (g)), this court’s
review was confined to the issues presented in the petitioner’s petition
for certification to appeal, which incorporated two grounds for appeal,
and, because neither ground indicated that the petitioner sought to
challenge the habeas court’s judgment on the basis that the court did
not conduct a hearing, review pursuant to State v. Golding (213 Conn.
233) was unavailable because permitting a petitioner, in an appeal from
a habeas judgment following the denial of a petition for certification to
appeal, to seek Golding review of a claim that was not raised in, or
incorporated into, the petition for certification to appeal would circum-
vent the requirements of § 52-470 (g) and undermine the goals that the
legislature sought to achieve in enacting it.
3. The petitioner could not prevail on his claim that the habeas court improp-
erly concluded that it lacked subject matter over the claims in his
habeas petition:
a. The habeas court lacked subject matter jurisdiction over the petitioner’s
claim that the retroactive application of the 2013 amendment to § 54-
125a (b) (2) to him violated the ex post facto clause of the federal
constitution, the petitioner having failed to raise a cognizable ex post
facto claim in the habeas petition; 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, 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 robbery in 2008,
and, with regard to parole eligibility, the 2013 amendment merely
returned the petitioner to the same position that he was in at the time
of his offense.
b. The habeas court lacked subject matter jurisdiction over the petitioner’s
claim that the retroactive application of the 2013 amendment to § 54-
125a (b) (2) to him violated his right to due process, as the petitioner
lacked a vested liberty interest in the risk reduction credit that he had
earned that, following the enactment of the 2013 amendment, was no
longer being applied to advance his parole eligibility date.
Argued March 12—officially released August 4, 2020
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Bhatt, 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.
Deborah G. Stevenson, assigned counsel, for the
appellant (petitioner).
Zenobia G. Graham-Days, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, and Clare Kindall, solicitor general, for the
appellee (respondent).
Opinion
MOLL, J. The petitioner, Jerry Lewis Whistnant,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
declining to issue a writ of habeas corpus for lack of
subject matter jurisdiction pursuant to Practice Book
§ 23-24 (a) (1).1 On appeal, the petitioner claims that
the court improperly (1) denied his petition for certifica-
tion to appeal, (2) declined to issue the writ of habeas
corpus pursuant to § 23-24 (a) (1) without conducting a
hearing, and (3) concluded that it lacked subject matter
jurisdiction over the claims raised in his petition for a
writ of habeas corpus. We conclude that the habeas
court did not abuse its discretion in denying the petition-
er’s petition for certification to appeal, and, therefore,
we dismiss the appeal.
The following facts, procedural history, and statutory
history are relevant to our disposition of the appeal.
On September 27, 2008, the petitioner was arrested and
charged with robbery in the first degree in violation of
General Statutes § 53a-134 (a) (4).2 On May 8, 2009,
after the petitioner pleaded guilty to the charge, the
trial court, Alexander, J., sentenced him to fifteen years
of incarceration, followed by three years of special
parole. The petitioner did not appeal from the judgment
of conviction. As a result of his conviction, the peti-
tioner remains in the custody of the respondent, the
Commissioner of Correction.
At the time that the petitioner committed the robbery
on September 27, 2008, General Statutes (Rev. to 2007)
§ 54-125a (b) (2), as amended during a special session
in January, 2008; see Public Acts, Spec. Sess., January,
2008, No. 08-1, § 5; provided 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. . . .’’3 The crime of robbery
in the first degree fell within this class of violent
offenses. See Holliday v. Commissioner of Correction,
184 Conn. App. 228, 231 n.2, 194 A.3d 867 (2018) (‘‘rob-
bery in the first degree . . . involves the [use] or threat-
en[ed] . . . immediate use of physical force upon
another person’’ (internal quotation marks omitted)),
cert. granted on other grounds, 335 Conn. 901, 225 A.3d
960 (2020). Therefore, at the time that he had committed
the robbery, the petitioner was ineligible for parole until
he had served no less than 85 percent of his sentence.
In 2011, about three years after his commission of
the robbery and long after his May 8, 2009 date of
conviction, while the petitioner was incarcerated, the
legislature enacted No. 11-51, § 22, of the 2011 Public
Acts (P.A. 11-51), later codified in General Statutes § 18-
98e. Pursuant to § 18-98e (a), certain inmates, including
the petitioner, convicted of crimes committed on or
after October 1, 1994, ‘‘may be eligible to earn risk
reduction credit toward a reduction of such person’s
sentence, in an amount not to exceed five days per
month, at the discretion of the [respondent],’’ for certain
positive, statutorily described behavior. The respondent
has the discretion to ‘‘cause the loss of’’ such credit,
including credit yet to be earned, for good cause. Gen-
eral Statutes § 18-98e (b). Additionally, in 2011, the legis-
lature amended § 54-125a (b) (2) to provide 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 less any risk
reduction credit earned under the provisions of section
18-98e.’’ (Emphasis added.) General Statutes (Rev. to
2011) § 54-125a (b) (2), as amended by Public Acts 2011,
No. 11-51, § 25. Thus, following the enactment of § 18-
98e and the 2011 amendment to § 54-125a (b) (2), the
petitioner was eligible to earn risk reduction credit to
advance both the end date of his sentence and his parole
eligibility date. See Perez v. Commissioner of Correc-
tion, 326 Conn. 357, 364, 163 A.3d 597 (2017).
In 2013, the legislature enacted No. 13-3, § 59, of the
2013 Public Acts (P.A. 13-3), which amended, inter alia,
§ 54-125a (b) (2) by removing the language permitting
risk reduction credit earned under § 18-98e to advance
the parole eligibility date of violent offenders, such as
the petitioner. Accordingly, following the enactment of
P.A. 13-3, although risk reduction credit earned by the
petitioner, and not subsequently revoked, could still be
used to advance the end date of his sentence, the credit
could not be applied to advance his parole eligibility
date. See Perez v. Commissioner of Correction, supra,
326 Conn. 365.
On February 19, 2019, the petitioner, acting as a self-
represented party, filed a petition for a writ of habeas
corpus using a state supplied form (petition). Therein,
he alleged that the Department of Correction (depart-
ment) was ‘‘not applying [his] [risk reduction credit] to
[his] [p]arole [e]ligibility date.’’ The petitioner requested
that the habeas court provide the following relief:
‘‘Apply [his] [risk reduction credit] to [his] parole eligi-
bility date.’’
The petitioner appended several exhibits to the peti-
tion, including a document titled ‘‘Habeas Corpus,’’ in
which he alleged additional facts in support of the peti-
tion.4 Therein, the petitioner alleged that, prior to the
enactment of P.A. 13-3, he had earned risk reduction
credit that the respondent had applied to advance his
parole eligibility date to November 24, 2020, but, follow-
ing the enactment of P.A. 13-3, the respondent stopped
applying the credit that he had earned to advance his
parole eligibility date. On the basis of those allegations,
the petitioner asserted that P.A. 13-3, as applied to him
retroactively, violated the ex post facto clause of the
United States constitution.5 In addition, the petitioner
raised an equal protection claim under the fifth and
fourteenth amendments to the United States constitu-
tion, in support of which he alleged ‘‘all persons simi-
larly situated should be treated alike, and . . . there
is no legitimate penological interest to justify the
[department] and/or [the] [s]tate of Connecticut in can-
celling provisional early release credits awarded to
[him] that applies to his parole eligibility date.’’ Under
the heading of his equal protection claim, the petitioner
also alleged that he ‘‘already received his [risk reduction
credit] that applied to his parole eligibility date in 2011
until 2013. He already received the benefit from the
[risk reduction credit] which created a liberty interest.’’
On March 4, 2019, the habeas court, Bhatt, J., issued
an order declining to issue the writ of habeas corpus6
pursuant to Practice Book § 23-24 (a) (1). Specifically,
the court stated: ‘‘Upon a review of the facts and allega-
tions contained in the [petition], the court declines to
issue the writ pursuant to [§ 23-24 (a) (1)]. This court
is without jurisdiction to consider the claims raised in
the petition, to wit: that the retroactive application of
P.A. 13-3 violates the prohibition against ex post facto
laws and the equal protection clause. The petitioner
committed the instant offense in 2008, before the enact-
ment of P.A. 11-51, which created the [risk reduction
credit] program . . . .
‘‘Our Supreme Court and Appellate Court have
repeatedly held that this court lacks jurisdiction over
claims involving an offense date that is prior to the
enactment of the [risk reduction credit] statute. Specifi-
cally on point is Perez v. Commissioner of Correction,
[supra, 326 Conn. 357], in which our Supreme Court
rejected ex post facto, due process and equal protection
challenges to the retroactive application of P.A. 13-3 in
the case of a petitioner whose offense date was in 2010,
prior to the enactment of [the risk reduction credit
statute]. See also Boria v. Commissioner of Correction,
186 Conn. App. 332, 199 A.3d 1127 (2018), [cert. granted
on other grounds, 335 Conn. 901, 225 A.3d 685 (2020)];
Holliday v. Commissioner of Correction, [supra, 184
Conn. App. 228].
‘‘The holdings of those cases make clear that this
court has no jurisdiction to consider the claims raised
in the petition. If, however, the petitioner is claiming
that credits that have already been earned and applied
in the past have been unconstitutionally forfeited by
the [department] . . . as opposed to [the depart-
ment’s] failure to allow the petitioner to continue to
earn and apply new credits to his sentence, then the
petitioner is invited to refile the petition.’’
Thereafter, the petitioner filed a petition for certifica-
tion to appeal from the court’s judgment, which the
court denied.7 This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
We first address 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 under Practice
Book § 23-24 (a) (1). 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
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . .
‘‘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 parts II and III of this
opinion, we conclude that the petitioner has failed to
demonstrate 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
discretion in denying the petition for certification to
appeal.
II
Turning to the petitioner’s first substantive claim on
appeal, the petitioner asserts that the habeas court
improperly failed to conduct a hearing before declining
to issue the writ of habeas corpus under Practice Book
§ 23-24 (a) (1). For the reasons that follow, we conclude
that this claim is outside of the scope of our appel-
late review.
‘‘As our standard of review set forth [in part I of this
opinion] makes clear, an appeal following the denial of
a petition for certification to appeal from the judgment
[disposing of] a petition for a writ of habeas corpus is
not the appellate equivalent of a direct appeal from a
criminal conviction. Our limited task as a reviewing
court is to determine whether the habeas court abused
its discretion in concluding that the petitioner’s appeal
is frivolous. Thus, we review whether the issues for
which certification to appeal was sought are debatable
among jurists of reason, a court could resolve the issues
differently or the issues are adequate to deserve encour-
agement to proceed further. . . . Because it is impossi-
ble to review an exercise of discretion that did not
occur, we are confined to reviewing only those issues
which were brought to the habeas court’s attention
in the petition for certification to appeal.’’ (Citation
omitted.) Tutson v. Commissioner of Correction, 144
Conn. App. 203, 216, 72 A.3d 1162, cert. denied, 310
Conn. 928, 78 A.3d 145 (2013).
‘‘It is well established that a petitioner cannot demon-
strate that the habeas court abused its discretion in
denying a petition for certification to appeal if the issue
raised on appeal was never raised before the court at
the time that it considered the petition for certification
to appeal as a ground on which certification should
be granted. See, e.g., Henderson v. Commissioner of
Correction, 181 Conn. App. 778, 792, 189 A.3d 135, cert.
denied, 329 Conn. 911, 186 A.3d 707 (2018); Tutson v.
Commissioner of Correction, [supra, 144 Conn. App.
216–17]; Perry v. Commissioner of Correction, 131
Conn. App. 792, 796–97, 28 A.3d 1015, cert. denied, 303
Conn. 913, 32 A.3d 966 (2011); Mercado v. Commis-
sioner of Correction, 85 Conn. App. 869, 872, 860 A.2d
270 (2004), cert. denied, 273 Conn. 908, 870 A.2d 1079
(2005).’’ Villafane v. Commissioner of Correction,
supra, 190 Conn. App. 573–74.
The petitioner did not set forth any grounds on which
he proposed to appeal in his petition for certification
to appeal; instead, he elected to incorporate by refer-
ence the grounds set forth in his application for a waiver
of fees, costs, and expenses and appointment of counsel
on appeal (application), filed on the same day as his
petition for certification to appeal. In the application,
the petitioner proposed to appeal on the following two
grounds: (1) ‘‘[The] [t]rial judge incorrectly cited Holli-
day v. Commissioner of Correction, [supra, 184 Conn.
App. 228] . . . which is still pending before the Con-
necticut Supreme Court’’; and (2) ‘‘[c]laims involving
an offense date that is prior to the enactment of the
[risk reduction credit] statute, with emphasis on the
equal protection challenges to the retroactive applica-
tion of P.A. 13-3, are still pending in Holliday v. [Com-
missioner] of Correction, [supra, 228], which is before
the Supreme Court.’’ We construe those grounds as
implicating the court’s conclusion that it lacked subject
matter jurisdiction to entertain the claims set forth in
the petition. Neither of those grounds, however, indi-
cates that the petitioner sought to challenge the court’s
judgment on the basis that the court did not conduct a
hearing.9 Therefore, the petitioner cannot demonstrate
that the habeas court abused its discretion in denying
the petition for certification to appeal on this ground.
The petitioner maintains that his claim is preserved,
but, in the alternative, he seeks review of his claim
pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015).10 We conclude
that Golding review is unavailable to the petitioner in
this appeal. Section 52-470 (g) conscribes our appellate
review to the issues presented in the petition for certifi-
cation to appeal, which incorporated the grounds set
forth in the application. Permitting a habeas petitioner,
in an appeal from a habeas judgment following the
denial of a petition for certification to appeal, to seek
Golding review of a claim that was not raised in, or
incorporated into, the petition for certification to appeal
would circumvent the requirements of § 52-470 (g) and
undermine the goals that the legislature sought to
achieve in enacting § 52-470 (g).11 See Villafane v. Com-
missioner of Correction, supra, 190 Conn. App. 572.
Accordingly, the petitioner’s claim is not subject to
Golding review.12
III
The petitioner’s next substantive claim on appeal is
that the habeas court improperly concluded that it
lacked subject matter jurisdiction over the claims in
the petition. Specifically, he asserts that the court had
subject matter jurisdiction to entertain his claims that
the retroactive application of P.A. 13-3 to him violated
(1) the ex post facto clause of the United States constitu-
tion and (2) his federal constitutional right to due pro-
cess.13 We disagree.14
‘‘[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.’’ (Citation omitted; internal
quotation marks omitted.) Perez v. Commissioner of
Correction, supra, 326 Conn. 368.
A
We first turn to the petitioner’s assertion that the
habeas court improperly concluded that it lacked sub-
ject matter jurisdiction over the ex post facto claim
raised in the petition. We are not persuaded.
‘‘[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. . . . 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 appli-
cation of the change in [the] law create[s] a sufficient
risk of increasing 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.’’ (Citation
omitted; internal quotation marks omitted.) Byrd v.
Commissioner of Correction, 177 Conn. App. 71, 80,
171 A.3d 1103 (2017).
In the petition, the petitioner alleged in relevant part
that, following the enactment of § 18-98e and the 2011
amendment to § 54-125a (b) (2), he earned risk reduc-
tion credit that the respondent applied to advance his
parole eligibility date, but, following the enactment of
P.A. 13-3, the respondent stopped applying the credit
earned by him to advance his parole eligibility date.
Critically, however, the petitioner made ‘‘no claim that
legislation regarding eligibility for parole consideration
became more onerous after the date of his criminal
behavior. Rather, he claim[ed] that new legislation
enacted in 2011 . . . after his criminal 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 offense for which
he is incarcerated].’’ Petaway v. Commissioner of Cor-
rection, 160 Conn. App. 727, 732, 125 A.3d 1053 (2015),
cert. dismissed, 324 Conn. 912, 153 A.3d 1288 (2017).
Indeed, with regard to his parole eligibility, P.A. 13-3
returned the petitioner to the same position that he was
in at the time that he committed the robbery in 2008.
In light of the foregoing, we conclude that the peti-
tioner failed to raise a cognizable ex post facto claim in
the petition, and, therefore, the habeas court correctly
concluded that it lacked subject matter jurisdiction over
the ex post facto claim. See Perez v. Commissioner
of Correction, supra, 326 Conn. 378–80 (habeas court
lacked subject matter jurisdiction over ex post facto
claim predicated on retroactive application of P.A. 13-
3 to petitioner when petitioner committed offense for
which he was incarcerated before enactment of 2011
amendment to § 54-125a (b) (2)); see, e.g., James E. v.
Commissioner of Correction, 326 Conn. 388, 394–95,
163 A.3d 593 (2017) (same); Holliday v. Commissioner
of Correction, supra, 184 Conn. App. 233–35 (same);
Byrd v. Commissioner of Correction, supra, 177 Conn.
App. 81 (same); Petaway v. Commissioner of Correc-
tion, supra, 160 Conn. App. 732–34 (same); see also
Boria v. Commissioner of Correction, supra, 186 Conn.
App. 341–45 (habeas court properly dismissed, for lack
of subject matter jurisdiction, claim that P.A. 13-3 and
amendment to § 18-98e enacted in 2015 violated ex post
facto clause when petitioner was in same position fol-
lowing amendments as he was in at time of commission
of offense for which he was incarcerated); cf. Breton
v. Commissioner of Correction, 330 Conn. 462, 484–86,
196 A.3d 789 (2018) (retroactive application of P.A. 13-
3 to petitioner who committed offenses between enact-
ment of 2011 amendment to § 54-125a (b) (2) and enact-
ment of P.A. 13-3 constituted violation of ex post facto
clause, and, therefore, habeas court improperly dis-
missed petition for writ of habeas corpus).15 Accord-
ingly, we also conclude that the court did not abuse its
discretion in denying the petition for certification to
appeal as to this claim.
B
We next address the petitioner’s assertion that the
habeas court improperly concluded that it lacked sub-
ject matter jurisdiction to entertain the due process
claim raised in the petition. Specifically, the petitioner
contends that he had a vested liberty interest in the
risk reduction credit that he had earned and that had
been applied to advance his parole eligibility date, such
that the retroactive application of P.A. 13-3 to him vio-
lated his right to due process. This claim is unavailing
in light of our Supreme Court’s decision in Perez v.
Commissioner of Correction, supra, 326 Conn. 357.
In Perez, similar to the petitioner in the present
action, a habeas petitioner filed a petition for a writ of
habeas corpus alleging that he ‘‘had been awarded risk
reduction credit by the respondent and that prior to
July 1, 2013,16 the respondent had applied that credit
to advance [his] parole eligibility date,’’ such that the
retroactive application of P.A. 13-3 to him, inter alia,
violated his right to due process. (Footnote added.)
Id., 365–66. The habeas court dismissed the petition,
concluding that it lacked subject matter jurisdiction
over the petition and that the petition failed to state a
claim on which relief could be granted, and the peti-
tioner appealed. Id., 366.
On appeal, our Supreme Court concluded that the
habeas court lacked subject matter jurisdiction over
the petitioner’s due process claim.17 Id., 374. The court
began by stating that ‘‘[a]n essential predicate’’ to the
due process claim ‘‘is a cognizable liberty interest. When
a petitioner seeks habeas relief on the basis of a pur-
ported liberty interest in parole eligibility, he [or she]
is invoking a liberty interest protected by the [d]ue
[p]rocess [c]lause of the [f]ourteenth amendment which
may not be terminated absent appropriate due process
safeguards. . . . In order . . . to qualify as a constitu-
tionally protected liberty, [however] the interest must
be one that is assured either by statute, judicial decree,
or regulation. . . . Evaluating whether a right has
vested is important for claims under the . . . [d]ue
[p]rocess [c]lause, which solely protect[s] pre-existing
entitlements.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Id., 370.
The court then stated: ‘‘ ‘The [United States] Supreme
Court has recognized that, ‘‘[t]here is no constitutional
or inherent right of a convicted person to be condition-
ally released before the expiration of a valid sentence.
. . . A state may . . . establish a parole system, but it
has no duty to do so.’’ . . . Greenholtz v. Inmates of
the Nebraska Penal & Correctional Complex, 442 U.S.
1, 7, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). Accordingly,
whether and to what extent a state creates a liberty
interest in parole by state statute is entirely at the discre-
tion of the state.’ ’’ Perez v. Commissioner of Correc-
tion, supra, 326 Conn. 370–71. In addition, the court
noted that it ‘‘previously has held that parole eligibility
under § 54-125a does not constitute a cognizable liberty
interest sufficient to invoke habeas jurisdiction.’’ (Inter-
nal quotation marks omitted.) Id., 371.
Turning to the petitioner’s claim regarding the risk
reduction credit previously granted to him, the court,
citing § 18-98e (a) and (b) (2), determined that the peti-
tioner ‘‘overlook[ed] the fact that such credit is not
vested in him because it could be rescinded by the
respondent at any time in the respondent’s discretion
for good cause during the petitioner’s period of incar-
ceration. . . . Although the legislature has provided
guidance to the respondent as to how to exercise his
discretion, the respondent still has broad discretion to
award or revoke risk reduction credit. As such, the
statute does not support an expectation that an inmate
will automatically earn risk reduction credit or will
necessarily retain such credit once it has been
awarded.’’ Id., 372. Then, observing that the petitioner
was relying ‘‘on the monthly calculation of his parole
eligibility date that he purportedly receives from the
respondent, which included his earned risk reduction
credit prior to July 1, 2013, as evidence that he has a
vested interest in continuing to have that earned risk
reduction credit reflected in his parole eligibility date,’’
the court determined that ‘‘[t]he petitioner misappre-
hend[ed] the significance of the respondent’s monthly
parole eligibility date calculation. Under the scheme
even prior to 2013, because the respondent could have
rescinded any or all of that earned credit in his discre-
tion, the monthly parole eligibility date is nothing more
than an estimate of the inmate’s parole eligibility date.
As such, the monthly parole eligibility date calculation
is simply an informational tool to allow the respondent
and an inmate to know at any given time how close to
parole eligibility the inmate would be if nothing
changed. Accordingly, the petitioner lacked a vested
right in the application of the risk reduction credit pre-
viously granted to advance his parole eligibility date.’’
Id., 373.
Pursuant to Perez, the petitioner in the present action
lacked a vested liberty interest in the risk reduction
credit that he had earned that, following the enactment
of P.A. 13-3, was no longer being applied to advance
his parole eligibility date. Therefore, we conclude that
the habeas court did not have subject matter jurisdic-
tion over his due process claim.18 See also Holliday v.
Commissioner of Correction, supra, 184 Conn. App.
232, 235 (citing Perez to conclude that petitioner did
not demonstrate liberty interest in risk reduction credit
earned toward parole eligibility, and, therefore, habeas
court lacked subject matter jurisdiction over petition-
er’s due process and equal protection claims challeng-
ing retroactive application of P.A. 13-3 to him). Accord-
ingly, we also conclude that the court did not abuse its
discretion in denying the petition for certification to
appeal as to this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
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
General Statutes § 53a-134 (a) provides in relevant part: ‘‘A person is
guilty of robbery in the first degree when, in the course of the commission
of the crime of robbery as defined in section 53a-133 or of immediate flight
therefrom, he or another participant in the crime . . . (4) displays or threat-
ens the use of what he represents by his words or conduct to be a pistol,
revolver, rifle, shotgun, machine gun or other firearm . . . .’’
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
In box ‘‘6e’’ of the petition, which requested that the petitioner ‘‘[s]tate
all facts and details regarding [his] claim,’’ the petitioner wrote: ‘‘[S]ee
attached.’’
‘‘The purpose of the [petition for a writ of habeas corpus] is to put the
[respondent] on notice of the claims made, to limit the issues to be decided,
and to prevent surprise. . . . The 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 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 complaint.’’ (Citations
omitted; internal quotation marks omitted.) Lorthe v. Commissioner of
Correction, 103 Conn. App. 662, 668, 931 A.2d 348, cert. denied, 284 Conn.
939, 937 A.2d 696 (2007). ‘‘A complaint includes all exhibits attached to it.
See Practice Book § 10-29; Streicher v. Resch, 20 Conn. App. 714, 716, 570
A.2d 230 (1990).’’ Lorthe v. Commissioner of Correction, supra, 668–69.
5
Article one, § 10, of the United States constitution provides in relevant
part: ‘‘No State shall . . . pass any . . . ex post facto Law . . . .’’
6
As our Supreme Court recently explained in Gilchrist v. Commissioner
of Correction, 334 Conn. 548, 557 n.7, 223 A.3d 368 (2020), a petition for a
writ of habeas corpus submitted to a habeas court for preliminary review
under Practice Book § 23-24 (a) ‘‘is more accurately described as an applica-
tion for issuance of the writ’’ and ‘‘that the ‘writ’ sought by the application,
although called a ‘writ of habeas corpus,’ functions essentially as a writ of
summons in that it commands the marshal to summon the respondent, who
has custody of the petitioner, to appear and show cause why the petition
should not be granted.’’ Like our Supreme Court in Gilchrist, unless other-
wise indicated, our use of the term ‘‘writ’’ in this opinion ‘‘refer[s] to the
writ issued by the court to initiate the habeas proceeding rather than the
ultimate relief sought by the great writ, i.e., the release of the prisoner from
custody.’’ Id.
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
We note that in Holliday, in addition to concluding that the habeas court
properly dismissed a petition for a writ of habeas corpus for lack of subject
matter jurisdiction pursuant to Practice Book § 23-29 (1); Holliday v. Com-
missioner of Correction, supra, 184 Conn. App. 233–35; this court concluded
that the court was not obligated to conduct a hearing before dismissing the
petition at issue. Id., 235–38. We do not construe the petitioner’s citation
to Holliday in the application as suggesting that he sought to appeal on the
ground that the court failed to hold a hearing before declining to issue the
writ of habeas corpus. In its memorandum of decision, the court cited
Holliday for the proposition that it did not have subject matter jurisdiction
over the claims in the petition. The court did not consider whether it was
obligated to conduct a hearing. Moreover, the issue in Holliday was whether
a habeas petitioner was entitled to a hearing before a petition for a writ of
habeas corpus could be dismissed pursuant to Practice Book § 23-29 (1),
which is distinct from the petitioner’s claim in this appeal that the habeas
court was obligated to conduct a hearing before declining to issue the writ
of habeas corpus pursuant to Practice Book § 23-24 (a) (1).
We are mindful that the petitioner was self-represented when he filed the
petition for certification to appeal and the application. ‘‘[I]t is the established
policy of the Connecticut courts to be solicitous of [self-represented] litigants
and when it does not interfere with the rights of other parties to construe
the rules of practice liberally in favor of the [self-represented] party. . . .
The modern trend . . . is to construe pleadings broadly and realistically,
rather than narrowly and technically. . . . The courts adhere to this rule
to ensure that [self-represented] litigants receive a full and fair opportunity
to be heard, regardless of their lack of legal education and experience. . . .
This rule of construction has limits, however. Although we allow [self-
represented] litigants some latitude, the right of self-representation provides
no attendant license not to comply with relevant rules of procedural and
substantive law. . . . A habeas court does not have the discretion to look
beyond the pleadings and trial evidence to decide claims not raised. . . .
In addition, while courts should not construe pleadings narrowly and techni-
cally, courts also cannot contort pleadings in such a way so as to strain the
bounds of rational comprehension.’’ (Internal quotation marks omitted.)
Henderson v. Commissioner of Correction, supra, 181 Conn. App. 793. We
conclude that the only reasonable explanation for the petitioner’s citation
to Holliday in the application is that he was addressing the court’s reliance
on Holliday to conclude that it lacked subject matter jurisdiction.
10
‘‘[The Golding doctrine] permits a [petitioner] to prevail on [an unpre-
served] claim of constitutional error . . . only if all of the following condi-
tions are met: (1) the record is adequate to review the alleged claim of
error; (2) the claim is of constitutional magnitude alleging the violation of
a fundamental right; (3) the alleged constitutional violation . . . exists and
. . . deprived the [petitioner] of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. . . . [T]he first two
[prongs of Golding] involve a determination of whether the claim is review-
able; the second two . . . involve a determination of whether the [peti-
tioner] may prevail.’’ (Internal quotation marks omitted.) Cator v. Commis-
sioner of Correction, 181 Conn. App. 167, 177–78, 185 A.3d 601, cert. denied,
329 Conn. 902, 184 A.3d 1214 (2018).
11
We acknowledge that our Supreme Court has stated that Golding review
is available to petitioners in habeas appeals ‘‘[i]nasmuch as [a] petitioner
challenges the actions of the habeas court itself . . . .’’ Mozell v. Commis-
sioner of Correction, 291 Conn. 62, 67 n.2, 967 A.2d 41 (2009); see also Moye
v. Commissioner of Correction, 316 Conn. 779, 786–87, 114 A.3d 925 (2015)
(citing Mozell to explain that, ‘‘[i]n 2009, [our Supreme Court] clarified that
Golding review is not categorically unavailable in habeas appeals. In Mozell
. . . [our Supreme Court] stated that Golding review is available on appeal
‘[i]nasmuch as [a] petitioner challenges the actions of the habeas court itself
. . . .’ ’’). Notably, in Mozell and Moye, the habeas courts granted the habeas
petitioners’ petitions for certification to appeal the judgments rendered in
those cases. See Mozell v. Commissioner of Correction, supra, 67; Moye v.
Commissioner of Correction, 147 Conn. App. 325, 328, 81 A.3d 1222 (2013),
aff’d, 316 Conn. 779, 114 A.3d 925 (2015). In a habeas appeal following the
granting of a petition for certification to appeal, in the absence of prejudice
to the opposing party, appellate review is not limited to the issues presented
in, or incorporated into, the petition for certification to appeal. See Logan
v. Commissioner of Correction, 125 Conn. App. 744, 752 n.7, 9 A.3d 776
(2010), cert. denied, 300 Conn. 918, 14 A.3d 333 (2011). Thus, Mozell and
Moye do not address the specific issue raised here—that is, whether Golding
review is available on appeal to a habeas petitioner, following the denial of
a petition for certification to appeal, when the claim at issue was not raised
in, or incorporated into, the petition for certification to appeal.
12
Even if the petitioner’s claim were properly before us, it would be
unavailing. See Green v. Commissioner of Correction, 184 Conn. App. 76,
81–84, 194 A.3d 857 (concluding that petitioner was not entitled to hearing
before habeas court declined to issue writ of habeas corpus under Practice
Book § 23-24 (a) (1)), cert. denied, 330 Conn. 933, 195 A.3d 383 (2018); see
also Gilchrist v. Commissioner of Correction, 334 Conn. 548, 563, 223 A.3d
368 (2020) (concluding that habeas court should have declined to issue writ
of habeas corpus under Practice Book § 23-24 (a) (1) rather than dismissing
case under Practice Book § 23-29 (1) and stating, at conclusion of opinion,
‘‘[b]ecause it is undisputed that the petitioner is not entitled to the appoint-
ment of counsel or notice and an opportunity to be heard in connection
with the [habeas] court’s decision to decline to issue the writ, this concludes
[our Supreme Court’s] review’’ (emphasis added)).
13
The petitioner also asserts violations of his rights under our state consti-
tution. The petitioner has failed to provide an independent analysis under
our state constitution, and, therefore, we deem his state constitutional claims
abandoned. See Andrews v. Commissioner of Correction, 194 Conn. App.
178, 179 n.1, 220 A.3d 229, cert. denied, 334 Conn. 907, 220 A.3d 36 (2019).
14
In his appellate brief, the petitioner also makes a bare assertion that
the retroactive application of P.A. 13-3 to him violated the ‘‘equal protection
clauses of the [United States] and Connecticut [c]onstitutions.’’ The peti-
tioner has failed to provide any meaningful analysis of that claim, and,
therefore, we decline to review it. See Villafane v. Commissioner of Correc-
tion, supra, 190 Conn. App. 578–79 (‘‘Ordinarily, [c]laims are inadequately
briefed when they are merely mentioned and not briefed beyond a bare
assertion. . . . Claims are also inadequately briefed when they . . . consist
of conclusory assertions . . . with no mention of relevant authority and
minimal or no citations from the record . . . . As a general matter, the
dispositive question in determining whether a claim is adequately briefed
is whether the claim is reasonably discernible [from] the record . . . . We
are not required to review issues that have been improperly presented to
this court through an inadequate brief. . . . Analysis, rather than mere
abstract assertion, is required in order to avoid abandoning an issue by
failure to brief the issue properly.’’ (Internal quotation marks omitted.)).
15
As our Supreme Court observed in Breton, ‘‘only a relatively small
percentage of inmates—namely, those inmates who . . . are incarcerated
for committing a violent crime between 2011 and 2013—will be affected by
[its] holding [in Breton].’’ Breton v. Commissioner of Correction, supra, 330
Conn. 485.
16
P.A. 13-3 became effective on July 1, 2013.
17
Our Supreme Court also concluded that the habeas court lacked subject
matter jurisdiction over the petitioner’s related claim asserting a violation
of his right to personal liberty pursuant to article first, § 9, of the Connecticut
constitution. See Perez v. Commissioner of Correction, supra, 326 Conn. 374.
18
In his appellate brief, the petitioner repeatedly asserts that the risk
reduction credit that he had earned was ‘‘forfeited’’ by the respondent follow-
ing the enactment of P.A. 13-3. In the petition, however, the petitioner did
not allege forfeiture of the credit that he had earned; instead, we construe,
as did the habeas court, his allegations to be that the respondent stopped
applying the credit that the petitioner had earned to advance his parole
eligibility date. Thus, like our Supreme Court in Perez, ‘‘we need not decide
whether a deprivation of [the petitioner’s] actual earned risk reduction credit
would violate due process. See Abed v. Armstrong, 209 F.3d 63, 66–67 (2d
Cir. 2000) (inmates have liberty interest in good time credit they have already
earned, but no liberty interest in opportunity to earn credit under discretion-
ary scheme).’’ Perez v. Commissioner of Correction, supra, 326 Conn.
369 n.5.