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Green v. Commissioner of Correction

Court of Appeals of Connecticut

August 7, 2018


          Argued April 24, 2018

         Procedural History

         Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Oliver, J., rendered judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          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), implemented[1] 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.


         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 ...

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