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Holliday v. Commissioner of Correction

Court of Appeals of Connecticut

August 14, 2018

DEAN HOLLIDAY
v.
COMMISSIONER OF CORRECTION

          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 ...


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