Green v. Comm'r of Corr.

184 Conn.App. 76

194 A.3d 857

Courtney GREEN

v.COMMISSIONER OF CORRECTION

AC 39313

Appellate Court of Connecticut.

Argued April 24, 2018

Officially released August 7, 2018

Nicholas A. Marolda, assigned counsel, with whom were Temmy Ann Miller, assigned counsel, and, on the brief, Owen R. Firestone, assigned counsel, for the appellant (petitioner).

Steven R. Strom, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (respondent).

Alvord, Prescott and Beach, Js.

PRESCOTT, J.

The petitioner, Courtney Green, appeals from the judgment of the habeas court disposing of his petition for a writ of habeas corpus for lack of jurisdiction. On appeal, the petitioner claims that the court improperly disposed of his petition because it (1) incorrectly concluded that it lacked jurisdiction and (2) failed to conduct a hearing on that issue prior to disposing of the petition. We disagree with the claims of the petitioner and, accordingly, affirm the judgment.

We begin by setting forth the relevant procedural history. The petitioner currently is serving a sentence of twenty years of incarceration after pleading guilty on April 21, 2009, to three counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5).

On May 11, 2016, the petitioner, representing himself, filed a petition for a writ of habeas corpus.

Therein, the petitioner alleged that on or about August 28, 2011, the respondent, the Commissioner of Correction (commissioner), implemented¹ the Risk Reduction Earned Credit (RREC) program pursuant to his authority under General Statutes § 18-98e.² He stated that the "RREC allowed ... [him] to be awarded time at the discretion of the commissioner ... at the rate of five days per month for participation in programs or activities [and] good conduct and obedience to departmental rules ...." Although the petitioner admitted in his petition that the risk reduction credits were awarded at the commissioner's discretion, he also alleged that he signed an "agreement with department staff" that entitles him to receive five risk reduction credits per month.

The petitioner further alleged that on February 1, 2016, the commissioner sent a memo to inmates informing them that he was changing the way he awarded risk reduction credits pursuant to a new policy outlined in Department of Correction, Administrative Directive 4.2A. The directive provided that, thereafter, the amount of credits an inmate would be eligible to receive each month would be based on the inmate's risk classification—a level four inmate could earn up to three days of credit per month, a level two or three inmate could earn up to four days, and a level one inmate could earn up to five days. Moreover, a level four inmate could apply to have reinstated the additional two credits per month that he was earning previously.

The petitioner further alleged that he continues to be in compliance with the aforementioned "agreement" and, despite the change in policy, should therefore "be grandfathered [in] to receive five days RREC per month, pursuant to ... § 18-98e." He thus requested the habeas court's intervention and that it "reinstate the RREC of five days per month that [he] signed a contract for ...."

On May 19, 2016, the habeas court, Oliver, J. , disposed of the petition sua sponte pursuant to Practice Book § 23-24 (a) (1)³ because the court lacked subject matter jurisdiction over it, citing Petaway v. Commissioner of Correction , 160 Conn. App. 727, 125 A.3d 1053 (2015), cert. dismissed, 324 Conn. 912, 153 A.3d 1288 (2017). The court did not hold a hearing prior to reaching this determination.

The petitioner subsequently filed a petition for certification to appeal from the court's dismissal of his petition on May 31, 2016. On June 1, 2016, the court granted the petitioner's certification to appeal, as well as the petitioner's application for appointment of counsel. The petitioner timely filed the present appeal on June 15, 2016.

I

We first address the petitioner's claim that the habeas court improperly dismissed his petition because it failed to first hold a hearing on the issue of whether the court had jurisdiction.⁴ The petitioner argues that, pursuant to this court's holding in Boyd v. Commissioner of Correction , 157 Conn. App. 122, 115 A.3d 1123 (2015), the habeas court cannot dismiss a petition sua sponte without fair notice to the petitioner and a hearing. We disagree.

In Boyd , this court concluded that it is an abuse of discretion for a habeas court to dismiss a petition sua sponte and without a hearing pursuant to its authority under Practice Book § 23-29 unless the petition "alleges the same grounds for relief sought in a previously denied petition, and fails to allege new facts or evidence ...." Id., at 125, 115 A.3d 1123. In the present case, however, unlike in Boyd , the court concluded that it lacked jurisdiction over the petition pursuant to its authority under Practice Book § 23-24,⁵ rather than Practice Book § 23-29. Thus, we must determine whether Practice Book § 23-24 requires the court to hold a hearing prior to concluding that it lacks jurisdiction over the habeas petition.

This issue presents a question of law subject to plenary review. See Menard v. Willimantic Waste Paper Co. , 163 Conn. App. 362, 367, 134 A.3d 1248, cert. denied, 321 Conn. 907, 135 A.3d 279 (2016). In determining whether the court was required to hold a hearing, we first consider the language of the provision itself. See Rivers v. New Britain , 288 Conn. 1, 10–11, 950 A.2d 1247 (2008). Practice Book § 23-24 (a) states: "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." Practice Book § 23-24 (b) provides: "The judicial authority shall notify the petitioner if it declines to issue the writ pursuant to this rule." Thus, there is nothing in the language of Practice Book § 23-24 that requires the court to hold a hearing before disposing of the petition for lack of jurisdiction.

In our view, Practice Book § 23-24 is intended to permit a habeas court to conduct a preliminary review of a petition prior to further adjudication of the writ to weed out those petitions the adjudication of which would be a waste of precious judicial resources either because the court lacks jurisdiction over it, the petition is wholly frivolous, or it seeks relief that the court simply cannot grant. We reach this conclusion for two reasons. First, the language of the rule plainly contemplates that the habeas court notify the petitioner of its actions after it reaches a decision on whether the case should proceed further. See Practice Book § 23-24 (b). If the rule were intended to impose a hearing requirement, the drafters would undoubtedly have inserted language requiring that the petitioner be notified before the court took such actions.

Second, requiring the habeas court to appoint counsel for a petitioner and hold a hearing over this class of petitions would constitute a considerable drain of state resources and frustrate the habeas court's ability to focus on those petitions that are worthy of adjudication. It is indisputable that the high volume of habeas petitions has been an ongoing source of concern for policymakers and has prompted legislative reforms in recent years. See Public Acts 2012, No. 12-115; 55 H.R. Proc., Pt. 5, 2012 Sess., pp. 1587–91, remarks of Representative Gerald M. Fox III; see also 55 H.R. Proc., supra, p. 1591 ("one of the things that I always thought of when I heard about ... [habeas corpus reform] is that all parties felt that there was a way to do this better and that there's a way to make sure that we can focus on those claims ... that do have merit, that are potentially legitimate and weed out those claims that seem to be bogging down the process and using up a lot of resources where the end result, in all likelihood, would be nothing would come of it"). We therefore decline to graft a hearing requirement onto Practice Book § 23-24 in the absence of language mandating such a procedure.⁶

The petitioner has presented no authority on appeal, from either this court or our Supreme Court, interpreting Practice Book § 23-24 as requiring the habeas court to hold a hearing before declining to issue the writ—nor has our review revealed any such authority. In light of the lack of authority to the contrary and the apparent policy reason underlying Practice Book § 23-24, and because the language of Practice Book § 23-24 does not explicitly require the court to hold a hearing before exercising its authority pursuant to that provision, we conclude that the petitioner was not entitled to a hearing in the present case.

II

Next, we address the petitioner's claim that the habeas court improperly dismissed his petition because it incorrectly concluded that it did not have jurisdiction. The petitioner argues that although the award of risk reduction credits ordinarily does not implicate an inmate's liberty interest because of the discretionary nature of the RREC program, he has a contractual right to such credits in this case that vitiates the discretionary nature of the program. He further argues that, because the commissioner's breach of this contract "bears directly on the duration of his sentence," he has invoked the jurisdiction of the habeas court. For the reasons set forth herein, we conclude that the court properly disposed of the petition because it lacked jurisdiction over it.

We begin with the applicable standard of review and relevant legal principles. "Our Supreme Court has long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.... Moreover, [i]t is a fundamental rule...