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Boria v. Commissioner of Correction

Court of Appeals of Connecticut

December 4, 2018

PETER BORIA
v.
COMMISSIONER OF CORRECTION

          Argued September 14, 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 habeas petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Nicholas A. Marolda, assigned counsel, with whom, on the brief, was Temmy Ann Miller, assigned counsel, for the appellant (petitioner).

          Kathryn W. Bare, assistant state's attorney, and Stephen R. Finucane, assistant attorney general, with whom, on the brief, was Maureen Platt, state's attorney, for the appellee (respondent).

          Prescott, Moll and Bishop, Js.

          OPINION

          PRESCOTT, J.

         The petitioner, Peter Boria, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court dismissing his petition for a writ of habeas corpus pursuant to Practice Book § 23-29.[1] The petitioner claims that the habeas court improperly dismissed his claim (1) that amendments to the risk reduction earned credits statute in 2013 and 2015 violated the ex post facto clause of the United States constitution[2] and (2) that his right to due process had been violated because his guilty plea in his underlying criminal case was not knowingly and voluntarily made. As to the first claim, we disagree and, accordingly, affirm that aspect of the judgment of the habeas court. As to the second claim, although we agree with the petitioner that the habeas court should not have dismissed that claim as an improper successive petition under Practice Book § 23-29, we affirm that aspect of the judgment on the alternative ground that it was barred by collateral estoppel.[3]

         The following undisputed facts and procedural history are relevant to our resolution of this appeal. The petitioner currently is serving a sentence of twenty years of incarceration after pleading guilty on October 6, 2009, to the charges of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and to being a persistent dangerous felony offender in violation of General Statutes § 53a-40.

         On July 18, 2011, the petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States constitution (first petition). Among other things, the first petition specifically alleged that, prior to his election to plead guilty, ‘‘[d]efense counsel failed to inform the petitioner of the applicable [charges] against him, '' including that the petitioner was being charged as a persistent dangerous felony offender. On July 13, 2013, the habeas court issued an oral ruling denying the first petition, and the petitioner did not appeal therefrom.

         On February 8, 2016, the petitioner filed two additional habeas petitions. One petition, docketed as TSR-CV-16-4007851-S (second petition), was filed pro se and sought the restoration of good time credits that the petitioner claimed he was eligible for and had been receiving. The habeas court, Oliver, J., dismissed the second petition for lack of jurisdiction pursuant to Practice Book § 23-24 (a) (1).[4] The petitioner filed a petition for certification to appeal, which was granted by the habeas court. The petitioner's appeal from the dismissal of the second petition was heard alongside this appeal, and the judgment of the habeas court was summarily affirmed by this court in a memorandum decision (AC 39028).[5]

         The other petition was docketed as TSR-CV-16-4008315-S (third petition), and it is that petition that underlies the present appeal. In the third petition, the petitioner raised several claims, including an ex post facto challenge to legislative amendments to the risk reduction earned credit statutes and that his guilty plea was not voluntarily made. The risk reduction earned credit statutes provide 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 while incarcerated. General Statutes § 18-98e (a). Number 13-3, § 59, of the 2013 Public Acts, effective July 1, 2013, eliminated statutory language that previously permitted a prisoner's parole eligibility date to be advanced by the application of risk reduction earned credits.[6] Number 15-216, § 9, of the 2015 Public Acts, effective October 1, 2015, amended General Statutes § 18-98e to exclude inmates convicted of being a persistent dangerous felony offender from earning risk reduction credits.

         On September 7, 2016, the habeas court, Oliver, J., sua sponte dismissed the third petition pursuant to Practice Book § 23-29. With respect to the petitioner's ex post facto claim regarding risk reduction earned credits, the court dismissed that claim for lack of jurisdiction because it concluded that there was no cognizable liberty interest in such credits. See Practice Book § 23-29 (1).

         Additionally, the habeas court dismissed the petitioner's challenge to the voluntariness of his guilty plea as an improper successive claim. See Practice Book § 23-29 (3). Regarding that claim, the court stated in its judgment of dismissal that ‘‘the instant petition presents the same ground as a prior petition previously denied (TSR-CV-11-4004269-S) and fails to state new facts or proof of new evidence reasonably available at the time of the prior petition.'' The habeas court also concluded that, in a prior habeas proceeding, the habeas court found that the ‘‘petitioner was made aware of his persistent felony offender status and the prosecuting authority's filing of a ‘part B' information.'' The court granted certification to appeal, and this appeal followed.

         We begin by setting forth our standard of review for a challenge to the dismissal of a petition for a writ of habeas corpus. ‘‘The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [If] the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . . To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous.'' (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 168 Conn.App. 294, 301-302, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d 385 (2016).

         I

         We first address the petitioner's claim that the habeas court improperly dismissed that portion of the third petition alleging an ex post facto violation regarding statutory amendments to the earned risk reduction credit program. There are two aspects to this claim. The petitioner argues that the court improperly (1) failed to hold a hearing before dismissing the petition, and (2) dismissed the claim for lack of jurisdiction.[7] We are not persuaded by the petitioner's contentions.

         A

         The petitioner first argues that the habeas court improperly dismissed the third petition on its own motion without holding a hearing. Specifically, the petitioner argues that the court's failure to hold a hearing on the third petition violated Practice Book § 23-40 and deprived him of his right to such a hearing under Mercer v. Commissioner of Correction, 230 Conn. 88, 644 A.2d 340 (1994), General Statutes § 52-470, and Practice Book § 23-29. We disagree that a hearing was required in this case.

         Whether the habeas court was required to hold a hearing prior to dismissing a habeas petition presents a question of law subject to plenary review. Green v. Commissioner of Correction, 184 Conn.App. 76, 82, A.3d, cert. denied, 330 Conn. 933, A.3d (2018). ‘‘Pursuant to Practice Book § 23-29, the habeas court may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . . (1) the court lacks jurisdiction . . . .'' (Internal quotation marks omitted.) Holliday v. Commissioner of Correction, 184 Conn.App. 228, 234, A.3d (2018); see also Gilchrist v. Commissioner of Correction, 180 Conn.App. 56, 182 A.3d 690 (habeas court had no obligation to conduct hearing before dismissing petition pursuant to Practice Book § 23-29), cert. granted, 329 Conn. 908, 186 A.3d 13 (2018).

         In Holliday, the petitioner filed a petition for a writ of habeas corpus in which he alleged that legislative changes to the risk reduction earned credit statute violated the ex post facto clause of the United States constitution. Holliday v. Commissioner of Correction, supra, 184 Conn.App. 232. The habeas court dismissed the petition pursuant to Practice Book § 23-29, and the petitioner appealed from the judgment claiming that the court erred in dismissing his petition (1) for lack of jurisdiction and (2) without notice or a hearing. Id., 230. This court held that, for purposes of the habeas court's subject matter jurisdiction, which is predicated on the deprivation of a recognized liberty interest, there is no liberty interest in the application of risk reduction earned credit toward an inmate's parole eligibility. Id., 233-34. Additionally, this court held that the habeas court was not required to provide notice or a hearing before dismissing the petition. Id., 236.

         Although, under Practice Book § 23-40, ‘‘[h]abeas petitioners generally have the right to be present at any evidentiary hearing and at any hearing or oral argument on a question of law which may be dispositive of the case . . . Practice Book § 23-40 speaks only to the petitioner's right to be present at an evidentiary hearing when such a hearing is held. Such hearings are not always required, as Practice Book § 23-29 authorizes the court to dismiss a habeas petition on its own motion. . . .

         ‘‘[A] petitioner's right to a hearing before a habeas court is not absolute. . . . [T]his court [has] held that the habeas court acted properly in dismissing a habeas petition pursuant to Practice Book § 23-29 without first holding a hearing because it could be determined from a review of the petition [that] the petitioner had not satisfied his obligation to allege sufficient facts in his pleading to establish jurisdiction.'' (Citations omitted; footnote omitted; internal quotation marks omitted.) Holliday v. Commissioner of Correction, supra, 184 Conn.App. 236-37.[8]

         Here, as in Holliday, the habeas court could determine from a review of the third petition that the petitioner had failed to allege sufficient facts to establish jurisdiction. The third petition alleged only the deprivation of risk reduction earned credit, which our Supreme Court and this court have held is insufficient to invoke the habeas court's jurisdiction. See Perez v. Commissioner of Correction, 326 Conn. 357, 373-74, 163 A.3d 597 (2017); Holliday v. Commissioner of Correction, supra, 237-38. Therefore, in light of binding precedent establishing the habeas court's lack of subject matter jurisdiction, [9] we find that the habeas court was not obligated to grant the petitioner a hearing before dismissing the petition and acted properly in dismissing this portion of the third petition.

         B

         The petitioner next argues that the habeas court improperly dismissed for lack of jurisdiction that portion of the third petition alleging an ex post facto violation regarding statutory amendments to the earned risk reduction credit program. Although the petitioner recognizes that ordinarily the habeas court's subject matter jurisdiction is predicated on the deprivation of a recognized liberty interest, the petitioner argues that ‘‘no liberty interest is required for the petitioner to raise a cognizable ex post facto claim, '' and that being excluded from earning risk reduction credits guarantees that the petitioner will be incarcerated longer, violating the ex post facto clause. We disagree.

         The following additional facts are relevant to this claim. In 2011, while the petitioner was incarcerated, the legislature enacted General Statutes § 18-98e. Section 18-98e authorizes the Commissioner of Correction to award, in his or her discretion, risk reduction earned credits. The risk reduction earned credit program allows an eligible convicted prisoner to earn credit toward a reduction of his or her sentence. In 2015, the General Assembly amended § 18-98e, rendering persistent dangerous felony offenders, such as the petitioner, ineligible to earn risk reduction credits. See Public Acts 2015, No. 15-216, § 9 (a).

         We turn to our standard of review and applicable legal principles for this claim. ‘‘It is well settled that [a] determination regarding a trial court's subject matter jurisdiction is a question of law and, therefore, we employ the plenary standard of review and decide whether the court's conclusions are legally and logically correct and supported by the facts in the record.'' (Internal quotation marks omitted.) Petaway v. Commissioner of Correction, 160 Conn.App. 727, 731, 125 A.3d 1053 (2015), cert. dismissed, 324 Conn. 912, 153 A.3d 1288 (2017).

         ‘‘With respect to the habeas court's jurisdiction, [t]he scope of relief available through a petition for habeas corpus is limited. In order to invoke the trial court's subject matter jurisdiction in a habeas action, a petitioner must allege that he is illegally confined or has been deprived of his liberty. . . . In other words, a petitioner must allege an interest sufficient to give rise to habeas relief. . . . In order to . . . qualify as a constitutionally protected liberty [interest] . . . the interest must be one that is assured either by statute, judicial decree, or regulation.'' (Citations omitted; internal quotation marks omitted.) Green v. Commissioner of Correction, supra, 184 Conn.App. 85. Our Supreme Court and this court have held that there is no liberty interest in the application of risk reduction eligibility credit toward an inmate's parole eligibility. Perez v. Commissioner of Correction, supra, 326 Conn. 371; Green v. Commissioner of Correction, supra, 85.

         In the present case, the petitioner argues that ‘‘[t]he court's basis for concluding that it lacked jurisdiction- that there [is] no recognized liberty interest in parole eligibility . . . cannot support the court's dismissal.'' (Internal quotation marks omitted.) The petitioner states that ‘‘parole eligibility is irrelevant'' and that the statutory changes at issue ‘‘do not affect when the petitioner will become eligible for parole'' but rather, ‘‘they affect only his end of sentence date.'' In other words, the petitioner attempts to draw a distinction between circumstances in which the loss of risk reduction credit affects a prisoner's end of sentence date from those in which it affects a prisoner's parole eligibility date. Specifically, the petitioner argues that ‘‘by excluding [him] from the opportunity to earn [risk reduction credits] . . . the probability that his sentence will increase, and that he will be incarcerated longer . . . is guaranteed, '' and that this is a violation of the ex post facto clause.

         ‘‘Pursuant to § 18-98e . . . an inmate is not guaranteed a certain amount of risk reduction credits per month-or, in fact, any creditsat all.''Green v. Commissioner of Correction, supra, 184 Conn.App. 86. As we stated in Green, ‘‘[t]he fact that the commissioner is vested with such broad discretion in implementing the [risk reduction earned credit] program is significant. Our appellate courts have concluded, consistently, that an inmate does not have a constitutionally protected liberty interest in certain benefits-such as good time credits, risk reduction credits, and early parole consideration-if the statutory scheme pursuant to which the commissioner is authorized to award those benefits is discretionary in nature.'' Id., 86-87.

         ‘‘[T]he plain language of § 18-98e (a) . . . provides that an inmate may be eligible to earn risk reduction credit at the discretion of the [respondent] . . . [who] may, in his or her discretion, cause the loss of all or a portion of such earned risk reduction credit for any act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause. Although the legislature has provided guidance to the respondent as to how to exercise his discretion, the respondent still has broad discretion to award or revoke risk reduction credit. As such, the statute does not support an expectation that an inmate will automatically earn risk reduction credit or will necessarily retain such credit once it has been awarded.'' (Citations omitted; internal quotation marks omitted.) Perez v. Commissioner of Correction, supra, 326 Conn. 372.

         Like parole eligibility, there is no cognizable liberty interest in earning risk reduction credits in order to obtain an earlier end of sentence date. In Green, we held that, although the petitioner argued that the loss of risk reduction credit ‘‘[bore] directly on the duration of his sentence, '' the court did not have jurisdiction over the claim. Green v. Commissioner of Correction, supra, 184 Conn.App. 84. Moreover, the claim fails to implicate the ex post facto clause. The traditional approach in determining whether a colorable ex post facto claim exists requires us to compare the statute that was in effect at the time of the petitioner's offense to the challenged statute. See Perez v. Commissioner of Correction, supra, 326 Conn. 378-80. In the present case, the petitioner committed the robbery underlying his conviction in 2009, prior to the enactment of the risk reduction earned credits statutes. Therefore, the statutory amendment excluding persistent dangerous felony offenders for risk reduction earned credit eligibility simply put the petitioner in the same position that he was in when he committed the offense for which he was sentenced. The fact that the claimed liberty interest in the present matter pertains to the petitioner's maximum release date, rather than his date of parole eligibility, is immaterial because the sentence ...


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