Argued
May 15, 2018
Procedural
History
Amended
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 Marolda, assigned counsel, with whom, on the brief,
was Temmy Ann Miller, assigned counsel, for the appellant
(petitioner).
Michael A. Martone, assistant attorney general, with whom, on
the brief, were George Jepsen, attorney general, and Terrence
M. O'Neill, assistant attorney general, for the appellee
(respondent).
DiPentima, C. J., and Prescott and Eveleigh, Js.
OPINION
EVELEIGH, J.
The
petitioner, Dean Holliday, appeals from the judgment of the
habeas court dismissing his petition for a writ of habeas
corpus. The petitioner claims that the habeas court erred in
dismissing his petition (1) for lack of jurisdiction on the
basis of Peta-way v. Commissioner of
Correction, 160 Conn.App. 727, 125 A.3d 1053 (2015),
appeal dismissed, 324 Conn. 912, 153 A.3d 1288 (2017), and
(2) without notice or a hearing. For the reasons set forth
herein, we disagree and, accordingly, affirm the judgment of
the habeas court.
The
following facts and procedural history are relevant to our
resolution of this appeal. In April, 2002, following a jury
trial, the petitioner was convicted of attempt to commit
robbery in the first degree in violation of General Statutes
§§ 53a-49 and 53a-134 (a) (2), conspiracy to commit
robbery in the first degree in violation of General Statutes
§§ 53a-48 and 53a-134 (a) (2), and attempt to
commit robbery in the second degree in violation of General
Statutes §§ 53a-49 and 53a-135 (a) (1). The
petitioner was sentenced to a total effective term of forty
years in prison.[1] This court affirmed the petitioner's
conviction on direct appeal. See State v.
Holliday, 85 Conn.App. 242, 243, 856 A.2d 1041,
cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004). The
petitioner remains in the custody of the respondent, the
Commissioner of Correction.
In
2001, at the time of the petitioner's criminal conduct,
and in 2003, when he was convicted, no statutory provision
existed that permitted inmates to earn credits toward
reducing the length of their sentences. In 2011, while the
petitioner was incarcerated, the General Assembly enacted No.
11-51, § 22, of the 2011 Public Acts, later codified in
General Statutes § 18-98e. This legislation provided
that certain prisoners convicted of crimes committed after
October 1, 1994, ‘‘may be eligible to earn risk
reduction credit toward a reduction of such person's
sentence, in an amount not to exceed five days per month, at
the discretion of the Commissioner of Correction''
for certain positive behaviors. General Statutes §
18-98e (a). Section 18-98e (a) was enacted in conjunction
with a revision to General Statutes § 54-125a (b), which
provided, in relevant part, that a person convicted of a
violent crime would not be eligible for parole consideration
‘‘until such person has served not less than
eighty-five percent of the definite sentence imposed less
any risk reduction credit earned under the provisions of
section 18-98e.'' (Emphasis added.) General
Statutes (Rev. to 2013) § 54-125a (b). The
petitioner's crimes qualified as violent under §
54-125a (b).[2] See State v. Holliday,
supra, 85 Conn.App. 247. Under the 2011 revisions of
§§ 18-98e and 54-125a (b), the petitioner earned
credits toward his discharge date and parole eligibility
date.
In
July, 2013, the General Assembly amended § 54-125a (b),
striking the language that allowed credits earned under
§ 18-98e to reduce the time served by violent offenders
before becoming eligible for parole. This revision meant that
violent offenders, like the petitioner, were required to
serve 85 percent of their definite sentence[3] before becoming
eligible for parole. Credits the petitioner had earned toward
his discharge date and parole eligibility date were revoked
following the revision.
On
December 24, 2014, the self-represented petitioner filed a
petition for a writ of habeas corpus in which he alleged that
the 2013 legislative change violated the ex post facto clause
of the United States constitution, article one, § 10, by
revoking credits he had earned under § 18-98e. In
support of his claim, the petitioner cited Teague v.
Quarterman, 482 F.3d 769 (5th Cir. 2007), and
Cleburne v. Cleburne Living Center, 473
U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), cases that
address rights under the due process and equal protection
clauses, respectively. On March 29, 2016, the habeas court
dismissed the petition on its own motion pursuant to Practice
Book § 23-29 (1) for lack of jurisdiction. The habeas
court's decision did not analyze the petitioner's due
process and equal protection arguments, but, citing this
court's opinion in Petaway v. Commissioner
of Correction, supra, 160 Conn.App. 727,
concluded that the habeas court lacked subject matter
jurisdiction.
The
petitioner filed a petition for certification to appeal on
April 15, 2016, which the habeas court granted on April 25,
2016. The petitioner, then represented by appointed counsel,
filed a motion for articulation on November 7, 2016, which
the court denied on November 21, 2016.[4] This appeal
...