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Perez v. Warden

Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19

August 26, 2015

Dominic Perez #203715


Stanley T. Fuger, J.

The petitioner initiated the instant matter by way of a pro se petition for a writ of habeas corpus filed on September 11, 2013, and amended by appointed counsel several times thereafter. The petitioner's corrected second amended petition raises claims in no less than thirteen separate counts, which need not be discussed in detail. At the heart of all of the petitioner's various claims is his assertion that he is entitled to receive statutory Risk Reduction Earned Credits (RRE credits) and to have those credits posted by the Commissioner of Correction (respondent), thereby perhaps advancing his release on parole.

The respondent has filed the instant motion to dismiss, pursuant to Practice Book § § 23-24 and 23-29(1), (2), (4) and (5), accompanied by a supporting memorandum of law, seeking dismissal of the amended petition premised on lack of subject matter jurisdiction and the failure to state a claim for relief. The petitioner filed an objection to the motion to dismiss and a supporting memorandum. The parties appeared before this court on August 4, 2015, for a hearing on the motion to dismiss and the objection thereto. For the reasons articulated more fully below, the motion to dismiss is granted.


The corrected second amended petition contains no factual pleadings pertaining to the underlying offenses. However, the pro se petition indicates that the petitioner pleaded guilty to a violation of probation and manslaughter in the first degree with a firearm. The pro se petition further indicates that the petitioner was arrested on November 26, 2010, was sentenced on May 3, 2013 to a total effective sentence of fifteen years to serve, and that the petitioner was held in presentence confinement for 889 days.

In 2004, the legislature amended General Statutes § 54-125a, effective July 1, 2004, to require that the Board of Pardons and Paroles (board) hold hearings to determine parole eligibility at certain percentages of an inmate's sentence. For violent offenders that percentage was set by the legislature at 85%. In 2011, through Public Act 11-51, section 22, the legislature enacted RRE credits, codified at General Statutes § 18-98e, and effective July 1, 2011. Inmates may, except for several exempt offenses not at issue in the case at bar, earn RRE credits at the discretion of the commissioner through good conduct and obedience to institutional rules; however, at the discretion of the commissioner or the commissioner's designee, RRE credits can also be taken away for misconduct and other negative disciplinary behavior. Additionally, RRE credits can only be earned during the period of time when an inmate is a sentenced prisoner.

It is obvious from the language used by the legislature in General Statutes § 18-98e that the commissioner has the discretion to both award RRE credits and, as appropriate, take them away. Thus, § 18-98e explicitly ascribes to the commissioner the discretion to administer RRE credits and use them as a tool to administer the inmate population " for adherence to the inmate's offender accountability plan, for participation in eligible programs and activities, and for good conduct and obedience to institutional rules, " as well as through " caus[ing] the loss of all or any portion of such [RRE credits] for an act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules[.]" General Statutes § 18-98e(b).

Courts have long recognized that " [i]t is not within the province of the judiciary to micromanage prisons." State v. Fernandez, 254 Conn. 637, 656, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L.Ed.2d 153 (2001). " Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism . . ." (Citation omitted.) Washington v. Meachum, 238 Conn. 692, 733-34, 680 A.2d 262 (1996).

Any RRE credits earned by the petitioner are wholly at the discretion of the commissioner, who also has the discretion to cause the loss of such earned credits and even the loss of credits not yet earned. See General Statutes § 18-98e(b). The forfeiture of earned credits may have minimal due process rights that must be adhered to, but otherwise inmates have absolutely no rights associated with RRE credits. See, e.g., Beasley v. Commissioner of Correction, 50 Conn.App. 421, 437-38, 718 A.2d 487 (1998), aff'd, 249 Conn. 499, 733 A.2d 833 (1999); Abed v. Commissioner of Correction, 43 Conn.App. 176, 181-82, 682 A.2d 558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996). To hold otherwise thwarts the clear intent of the legislature to give the commissioner the discretion to use RRE credits as a tool to administer the inmate population. Any credits such as those awarded by General Statutes § 18-98 and other statutes are, of course, solely a matter of legislative grace. See, e.g., Magee v. Commissioner of Correction, 105 Conn.App. 210, 218-19, 937 A.2d 72, cert. denied, 286 Conn. 901, 943 A.2d 1102 (2008); Mitchell v. Commissioner of Correction, 94 Conn.App. 210, 213, 893 A.2d 445, cert. denied, 278 Conn. 917, 899 A.2d 622 (2006); Hammond v. Commissioner of Correction, 259 Conn. 855, 878, 792 A.2d 774 (2002); Johnson v. Manson, 196 Conn. 309, 321 n.12, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 (1986).

The court finds, based upon the foregoing, that RRE credits are nothing more than a tool given by legislature's grace to the commissioner for the express purpose of administering the inmate population. Consequently, courts must be circumspect in enmeshing themselves, as the petitioner seeks to have this court do, in the administration of the inmate population. To do otherwise would amount to " judicial legislation, " a term applied with great disapprobation to a court's ruling, usually by the non-prevailing party.

The respondent seeks dismissal of the petition because a habeas court lacks subject matter jurisdiction over the petitioner's RRE credit claims. Given the speculative nature of the credits, [1] and the commissioner's discretion to both award and take them away as an administrative tool to manage the inmate population, this court concludes that it lacks subject matter jurisdiction over the present petition and that it fails to state a claim upon which habeas corpus relief can be granted.


Based upon all the foregoing, the respondent's motion to dismiss is granted as to all counts. Practice Book § § 23-29(1), (2) and (5). Judgment shall enter for the respondent and the petition for a writ of habeas corpus is dismissed. Counsel for the petitioner shall prepare a judgment ...

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