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White v. Warden

Superior Court of Connecticut, Judicial District of Tolland, Somers

June 23, 2016

Antuan White (Inmate #267920)


          Stanley T. Fuger, Jr., Senior Judge.

         The petitioner initiated the instant matter by way of a pro se petition for a writ of habeas corpus filed on September 12, 2013, and twice amended thereafter by appointed counsel. The petitioner's 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 renewed his motion to dismiss, pursuant to Practice Book § § 23-24 and 23-29(1), (2), (4) and (5), which is 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 respondent's initial motion to dismiss. The parties appeared before this court on April 21, 2016, for a hearing on the renewed motion to dismiss and the objection thereto. For the reasons articulated more fully below, the motion to dismiss is granted.


         " A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). " In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . ." (Internal citations and quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn.App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). " [A pleading] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Internal quotation marks omitted.) Gil v. Gil, 94 Conn.App. 306, 313, 892 A.2d 318 (2006). Taylor v. Commissioner of Correction, 94 Conn.App. 772, 785, 895 A.2d 246 (2006), rev'd in part on other grounds, 284 Conn. 433, 936 A.2d 611 (2007). Nevertheless, the petitioner " . . . bears the burden of proving that the court has subject matter jurisdiction." Id.

         The second amended petition asserts that the petitioner pleaded guilty in several docket numbers for offenses committed during March and June of 2005. The petitioner was, sentenced on November 22, 2005, to a total effective sentence of fifteen years of incarceration.[1] The petitioner's pro se petition also indicates that the petitioner's fifteen-year sentence is followed by five years of special parole. The pro se petition further indicates that the petitioner was held in presentence confinement for 129 days.

         The respondent argues that this court lacks subject matter jurisdiction over the petitioner's claims and that there is no habeas corpus relief that can be granted. The respondent relies on several recent cases in support of the arguments that the petition should be dismissed, in particular Petaway v. Commissioner of Correction, 160 Conn.App. 727, 125 A.3d 1053 (2015), and Perez v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-13-4005719-S, (August 26, 2015) (2015 WL 5626407).[2] The respondent's memorandum argues that several of the petitioner's claims, namely counts one through four, are barred by Petaway . The respondent further argues that " [i]mportantly, the Amended Petition 'does not implicate the ex post facto prohibition because the [relevant statutory] changes that occurred between 2011 and 2013 have no bearing on the punishment to which the petitioner's conduct exposed him when he committed' the crimes for which he is convicted and sentence [sic], which crimes were committed in March 2005, and also in June 2005. (Amended Petition 'AP' at P1.) Petaway, at 732." Memorandum, pp. 1-2. The memorandum makes separate and distinct legal arguments in support of dismissal of counts five through thirteen.

         In Perez, this court articulated its grounds for dismissing the petition in its entirety. These grounds remain persuasive to this court, especially in light of the Appellate Court's decision in Petaway . Therefore, the court will rely on and restate its grounds as articulated in Perez .

         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 RIRE 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, as it did in Perez, 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, [3] 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 ...

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