Superior Court of Connecticut, Judicial District of Tolland, Somers
MEMORANDUM OF DECISION ON RESPONDENT'S MOTION TO
Stanley T. Fuger, Jr., Senior Judge.
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.
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.
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. 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.
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). 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.
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 .
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
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).
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).
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
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.
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,  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