Vandever v. Commissioner of Correction ( 2014 )

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FRANK VANDEVER v. COMMISSIONER
OF CORRECTION
(SC 19036)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued May 1—officially released December 30, 2014
Frank Vandever, self-represented, the appellant
(petitioner).
Madeline A. Melchionne, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, and Terrence M. O’Neill, assistant attorney gen-
eral, for the appellee (respondent).
Emily Gerrick, law student intern, with whom were
Hope Metcalf, David McGuire, and, on the brief, Sandra
Staub, for the Allard K. Lowenstein International
Human Rights Clinic et al. as amici curiae.
Opinion
PALMER, J. Under Sandin v. Conner, 515 U.S. 472,
483–84, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), and
Wilkinson v. Austin, 545 U.S. 209, 222–23, 125 S. Ct.
2384, 162 L. Ed. 2d 174 (2005), prison inmates have a
protected liberty interest in avoiding certain conditions
of confinement if, pursuant to state statute or regula-
tion, they can be subjected to such conditions only
if certain procedural requirements are met, and those
conditions impose an atypical and significant hardship
in relation to the ordinary incidents of prison life. This
certified appeal raises the question of whether Connect-
icut prisoners have a liberty interest in avoiding admin-
istrative segregation1 at Northern Correctional Insti-
tution (Northern), the state’s maximum security prison
and, if so, whether the self-represented petitioner,
Frank Vandever, was afforded due process before his
transfer to Northern. The petitioner appeals from the
judgment of the Appellate Court, which dismissed his
appeal from the habeas court’s denial of his petition
for certification to appeal from that court’s judgment
denying his petition for a writ of habeas corpus.2 The
petitioner claims that the Appellate Court incorrectly
concluded, contrary to the holdings in Sandin and Wil-
kinson, that prisoners in Connecticut do not have a
liberty interest in avoiding administrative segregation
because the respondent, the Commissioner of Correc-
tion, has unfettered discretion to classify them at any
security level. See Vandever v. Commissioner of Cor-
rection, 135 Conn. App. 735, 741–42, 42 A.3d 494 (2012).
He further claims that his due process rights were vio-
lated because the evidence presented at the hearing
that he was afforded to contest his placement in admin-
istrative segregation at Northern does not support the
respondent’s placement decision. We agree with the
petitioner that the Appellate Court was incorrect insofar
as it indicated that under no circumstances can Con-
necticut prisoners establish a liberty interest in avoiding
administrative segregation. We also conclude that the
Appellate Court incorrectly determined that the habeas
court acted within its discretion in denying the petition
for certification to appeal from the judgment of the
habeas court because, as we explain more fully herein-
after, the habeas court’s reason for denying that petition
was itself unsupportable. We nevertheless conclude
that it is apparent from the record that, even if the
petitioner had a liberty interest in avoiding his transfer
to Northern, he received all of the process he was due
prior to that transfer. We therefore reverse the judgment
of the Appellate Court and direct that court to affirm
the habeas court’s judgment.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. The
petitioner is serving sentences for numerous convic-
tions, including murder and escape from a correctional
institution. In October, 1997, shortly after Department
of Correction (department) officials transferred the
petitioner to the general population at MacDougall Cor-
rectional Institution following his December 31, 1991
escape from what is now the Osborn Correctional Insti-
tution (Osborn), certain department personnel found
the petitioner in possession of a National Institute of
Justice (NIJ) publication entitled ‘‘Stopping Escapes:
Perimeter Security,’’ which discusses perimeter secu-
rity at prisons in the United States. The petitioner was
charged with a disciplinary violation in connection with
this incident and, following a hearing, was found guilty
of possession of contraband. As a result, the department
sanctioned the petitioner by revoking ninety days of
previously earned statutory good time credits, as
authorized by General Statutes (Rev. to 1987) § 18-7a
(c). Thereafter, the department’s Offender Classifica-
tion and Population Management Unit notified the peti-
tioner that it would conduct a hearing to determine
whether he should be placed on administrative segrega-
tion status.3 Following the hearing, at which the peti-
tioner was permitted to present witnesses and to testify
on his own behalf, the hearing officer recommended
that the petitioner’s security classification be increased
in level, ‘‘with high security monitoring available,’’ but
that he not be placed on administrative segregation
status. Thereafter, the Inmate Classification Adminis-
trator overruled the hearing officer’s recommendation
and ordered that the petitioner be placed on administra-
tive segregation status. The petitioner was in adminis-
trative segregation between November, 1997, and June,
1999, or approximately 570 days. Pursuant to depart-
ment policy, prisoners in administrative segregation are
ineligible to earn statutory good time credits and seven
day job credits.4
In a prior habeas proceeding, the petitioner had chal-
lenged the disciplinary report that was issued in connec-
tion with his possession of the NIJ publication. On July
28, 2003, the respondent agreed to withdraw that report
and to restore the ninety days of statutory good time
that had been revoked as a result of his possession of
the NIJ publication.5 In light of this agreement, the prior
habeas petition was dismissed as moot. At that time,
the petitioner argued that the department also should
credit his sentence to include the good time credits and
seven day job credits that he was ineligible to earn
while he was in administrative segregation, but the
habeas court noted that he would have to raise that
claim in a separate habeas petition.
In November, 2003, the petitioner filed the present
habeas petition, alleging, inter alia, that the respondent
improperly had placed him in administrative segrega-
tion on the basis of a disciplinary report that later was
expunged. In his prayer for relief, the petitioner claimed
that he was entitled to receive the good time and seven
day job credits that, under the department’s administra-
tive directives, he was ineligible to earn while in admin-
istrative segregation.
At the trial on the petitioner’s habeas petition, Freder-
ick Levesque, the department’s Director of Offender
Classification, testified on behalf of the respondent. He
explained that, although a disciplinary violation often
is the precipitating event that leads to the review of an
inmate’s eligibility for administrative segregation sta-
tus, an administrative segregation hearing is not a disci-
plinary hearing, and placement in administrative segre-
gation is not a form of punishment; rather, it is a man-
agement tool that is used to control inmates who are
perceived to present the greatest safety and security
threats. According to Levesque, the petitioner was
placed in administrative segregation after a routine
search of his cell turned up the NIJ publication on prison
perimeter security. Levesque stated that the petitioner’s
possession of such a publication so soon after being
released from administrative segregation following his
escape from Osborn was deemed ‘‘highly suspicious’’
and caused department officials to conclude that the
petitioner posed a danger ‘‘to the safety and security
of . . . [the] facility.’’ With respect to the decision to
place the petitioner in administrative segregation, Lev-
esque explained that the petitioner ‘‘ha[d] already
proven . . . that he [was] very good at escaping. [The]
. . . number one mission . . . is to protect the public.
Unfortunately, back in 1991, we didn’t do a very good
job of that. [The petitioner] actually escaped and went
and committed . . . additional crime[s] . . . .’’ Lev-
esque also observed that, in addition to his successful
escape in 1991, the petitioner also had attempted to
escape from prison two other times.
In its memorandum of decision, the habeas court, in
denying the habeas petition, made no findings as to
whether the petitioner’s placement in administrative
segregation was improper on the ground that the evi-
dence presented at the administrative segregation hear-
ing was insufficient to support the respondent’s place-
ment decision. Instead, the court denied the habeas
petition on the basis of its determination that the peti-
tioner was not entitled to the relief that he was seeking.
Specifically, the court stated that ‘‘[t]he petitioner . . .
never had or presently has a right to the statutory good
time and seven day job credits he is seeking. The award-
ing of such credits always has been and remains solely
within the respondent’s discretion. . . . Such deci-
sions are discretionary and wholly within the [respon-
dent’s] purview in accordance with General Statutes
§ 18-7a.’’6 The habeas court also denied the petitioner’s
petition for certification to appeal from its judgment.
The petitioner appealed to the Appellate Court, claim-
ing that the habeas court had abused its discretion in
denying his petition for certification to appeal because,
inter alia, the habeas court had not addressed his con-
tention that, under Sandin and Wilkinson, his place-
ment in administrative segregation violated his right to
due process. See Vandever v. Commissioner of Correc-
tion, Conn. Appellate Court Records & Briefs, March
Term, 2012, Petitioner’s Brief pp. 12–22. The petitioner
maintained that he had a right to due process prior to
his placement in administrative segregation, and that
he was deprived of that right because that placement
was based on an expunged disciplinary report and a
prior escape for which he already had completed his
period of administrative segregation. See id., pp. 23–27.
The petitioner further explained that, contrary to the
determination of the habeas court, he had not claimed
a constitutional or statutory right to the good time and
work credits that he was ineligible to earn while in
administrative segregation; rather, he had claimed only
that he should be awarded those credits to remedy the
due process violation stemming from his unjustifiable
placement in administrative segregation. See id., p. 17.
The Appellate Court rejected the petitioner’s claims.
See Vandever v. Commissioner of Correction, 135
Conn. App. 741–43. In contrast to the habeas court,
the Appellate Court did not base its conclusion on the
discretionary nature of the award of good time and
work credits. See id., 741–42. But cf. id., 743 (noting
that ‘‘the respondent ha[s] the discretion to award [or
not to award statutory] good time credits . . . and
ha[s] the authority to promulgate rules that make an
inmate ineligible to earn statutory good time’’ in con-
cluding that ‘‘[t]he petitioner had no protected liberty
interest in ‘good time’ not yet credited’’ [citation omit-
ted]). Like the habeas court, however, the Appellate
Court did not address the petitioner’s contention that,
under Sandin, he had a protected liberty interest in
avoiding administrative segregation, or that the process
that he received prior to his transfer to Northern was
constitutionally deficient. The Appellate Court con-
cluded, instead, that ‘‘[i]nmates do not have a constitu-
tionally protected right to a particular classification.
. . . Discipline by prison officials in response to a wide
range of misconduct falls within the expected perime-
ters of a sentence imposed by a court of law. . . . In
order to state a claim of a violation of due process, an
inmate must show a protected liberty interest and a
deprivation of that interest without being afforded due
process of law. A prisoner’s liberty interest to be free
from disciplinary segregation is not inherent in the due
process clause of the federal constitution. . . . Under
Connecticut law, the Commissioner of Correction
retains discretionary authority to classify prisoners at
any security level. . . . A prisoner has no constitution-
ally protected interest in or to a particular classifica-
tion.’’ (Citations omitted; internal quotation marks
omitted.) Id., 741–42. The Appellate Court ultimately
determined that the habeas court had not abused its
discretion in denying the petition for certification to
appeal and dismissed the petitioner’s appeal. Id., 743.
On appeal to this court following our grant of certifi-
cation, the petitioner reasserts his claim that he had
a protected liberty interest in avoiding administrative
segregation and that his transfer to Northern violated
his right to due process because it was based on a
disciplinary report that later was expunged, and a prior
escape for which he already had completed his period
of administrative segregation. At oral argument before
this court, the respondent conceded, as he must, that
the Appellate Court incorrectly concluded, contrary
to the rule in Sandin and Wilkinson, that, as a matter
of law, Connecticut inmates cannot establish a liberty
interest in avoiding administrative segregation. The
respondent argues, however, that Wilkinson and
Sandin make clear that, when a prisoner has a liberty
interest in avoiding administrative segregation, the
require-ments of due process are met as long as
the prisoner receives notice and an opportunity to be
heard prior to being placed in administrative segrega-
tion, and there is at least some evidence to support that
placement decision. The respondent further contends
that, even if the petitioner had a liberty interest in
avoiding placement in administrative segregation at
Northern, he received all of the process that he was
due prior to his transfer there.7 We agree with the
respondent.8
The following principles guide our analysis of the
petitioner’s claim. ‘‘In order to prevail on his due pro-
cess claim, the [petitioner] must prove that: (1) he has
been deprived of a property [or liberty] interest cogniza-
ble under the due process clause; and (2) the depriva-
tion of the property [or liberty] interest has occurred
without due process of law.’’ (Internal quotation marks
omitted.) State v. Matos, 240 Conn. 743, 749, 694 A.2d
775 (1997). Although ‘‘the [c]onstitution itself does not
give rise to a liberty interest in avoiding transfer to
more adverse conditions of confinement . . . a liberty
interest in avoiding particular conditions of confine-
ment may arise from state policies or regulations
. . . .’’ (Citations omitted.) Wilkinson v. Austin, supra,545 U.S. 221–22. ‘‘States may under certain circum-
stances create liberty interests [that] are protected by
the [d]ue [p]rocess [c]lause. . . . But these interests
will be generally limited to freedom from restraint
which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the
[d]ue [p]rocess [c]lause of its own force . . . nonethe-
less imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison
life.’’ (Citations omitted.) Sandin v. Conner, supra, 515
U.S. 483–84; see also Sealey v. Giltner, 116 F.3d 47, 52
(2d Cir. 1997) (‘‘a prisoner has a liberty interest only if
the deprivation of which he complains is atypical and
significant and the state has created the interest by
statute or regulation’’). Thus, to establish a liberty inter-
est in avoiding administrative segregation, the peti-
tioner was required to prove that state regulations
required a hearing before he could be placed in adminis-
trative segregation and that the conditions of his con-
finement at Northern imposed an atypical and signi-
ficant hardship in relation to the ordinary incidents of
prison life.
The respondent does not dispute that, pursuant to
one of the department’s administrative directives, the
petitioner was entitled to notice and a hearing prior to
being transferred to Northern, and that the respondent
was required to proffer a reason or reasons for conclud-
ing that the petitioner poses a threat to safety and secu-
rity. The first requirement of Sandin is therefore met.9
The respondent maintains, however, that the record
is inadequate to review whether the second prong of
Sandin has been met because the petitioner failed to
present evidence concerning the conditions of his con-
finement at Northern, and, consequently, it is impossi-
ble for this court to determine whether those conditions
resulted in an atypical and significant hardship in rela-
tion to the conditions ordinarily incident to prison life.
In response, the petitioner and amici curiae10 argue that
this court can decide whether the second prong of San-
din has been met as a matter of law, first, because it
is clear from the department’s administrative directive
that the conditions of confinement at Northern are
every bit as harsh as those experienced by the inmates
in Wilkinson, which the United States Supreme Court
concluded ‘‘impose[d] an atypical and significant hard-
ship under any plausible baseline’’; Wilkinson v. Austin,
supra, 545 U.S. 223; and, second, because the Second
Circuit Court of Appeals has determined that 305 days
in administrative segregation in a New York maximum
security prison, a far shorter period of time than the
petitioner spent at Northern, is sufficiently atypical of
ordinary prison life to establish conclusively an inmate’s
liberty interest in avoiding such confinement. See Colon
v. Howard, 215 F.3d 227, 229, 231–32 (2d Cir. 2000). As
we previously indicated, however, we need not resolve
this issue because, even if we assume that the petitioner
had a liberty interest in avoiding administrative segrega-
tion at Northern, he received all of the process to which
he was constitutionally entitled.
In Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74
L. Ed. 2d 675 (1983), the United States Supreme Court
considered the process that is due to a prisoner prior
to his placement in administrative segregation. ‘‘The
requirements imposed by the [due process] [c]lause
are, of course, flexible and variable [depending on] the
particular situation being examined. . . . In determin-
ing what is due process in the prison context, we are
reminded that one cannot automatically apply proce-
dural rules designed for free citizens in an open society
. . . to the very different situation presented by a disci-
plinary proceeding in a state prison. . . . Prison admin-
istrators . . . should be accorded wide-ranging
deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve
internal order and discipline and to maintain institu-
tional security. . . . These considerations convince
[the court] that [prison officials are] obligated to engage
only in an informal, nonadversary review of the informa-
tion supporting [an inmate’s] administrative confine-
ment, including whatever statement [the inmate]
wishe[s] to submit, within a reasonable time after
[placement in] administrative segregation.’’ (Citations
omitted; internal quotation marks omitted.) Id., 472; see
also Taylor v. Rodriguez, 238 F.3d 188, 192 (2d Cir.
2001) (‘‘[t]he [United States] Supreme Court requires
that, assuming the existence of a liberty interest, a pris-
oner placed in administrative segregation be provided
some notice of the charges against him and an opportu-
nity to present his views to the prison official charged
with deciding whether to transfer him to administrative
segregation’’ [internal quotation marks omitted]).
‘‘In a variety of contexts, [including the prison con-
text] the [United States Supreme] Court has [also] rec-
ognized that a governmental decision resulting in the
loss of an important liberty interest violates due process
if the decision is not supported by any evidence.’’ Super-
intendent v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 86
L. Ed. 2d 356 (1985); see also Taylor v. Rodriguez,
supra, 238 F.3d 194 (when inmate has liberty interest
in avoiding transfer to more restrictive conditions of
confinement, decision to transfer must be supported
by ‘‘ ‘some evidence’ ’’). This standard is a lenient one,
requiring only ‘‘a modicum of evidence’’ to support the
challenged decision. Superintendent v. Hill, supra, 455.
‘‘Ascertaining whether this standard is satisfied does
not require examination of the entire record, indepen-
dent assessment of the credibility of witnesses, or
weighing of the evidence. Instead, the relevant question
is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary
board.’’ Id., 455–56; see also Castro v. Terhune, 712
F.3d 1304, 1314 (9th Cir. 2013) (characterizing test as
‘‘ ‘minimally stringent’ ’’).
In the present case, the petitioner does not dispute
that the procedures that he was afforded prior to being
placed in administrative segregation exceeded those to
which he was constitutionally entitled under Hewitt.
As we discussed previously, prior to being transferred
to Northern, the petitioner was provided with written
notice of the reasons for the transfer followed by a
hearing at which he was allowed to present evidence
and argument as to why the transfer was unwarranted.
The petitioner was also given the option of having a staff
advocate represent him at the hearing. The petitioner’s
contention, rather, is that the respondent’s reasons for
placing him in administrative segregation were invalid
because the disciplinary report relating to his posses-
sion of the NIJ publication was subsequently expunged,
and because he already had completed his period of
administrative segregation following his escape.
The petitioner provides no authority for the proposi-
tion that department officials were not permitted to
consider his interest in learning about perimeter secu-
rity, and the fact that he previously had escaped from
Osborn and attempted to escape on two other occa-
sions, in evaluating whether he should be placed in
administrative segregation, and our independent
research has uncovered no such authority. This is not
surprising, because we cannot perceive of any reason
why it was improper for department officials to con-
sider this information. To the contrary, it is well estab-
lished that prison officials, in determining the appro-
priate security classification for inmates, often and for
good reason must rely on an inmate’s past conduct
as a predictor of his or her future behavior. See, e.g.,
Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 49
L. Ed. 2d 451 (1976) (‘‘[t]ransfers between institutions,
for example, are made for a variety of reasons and often
involve no more than informed predictions as to what
would best serve institutional security or the safety and
welfare of the inmate’’); Crawford v. Lappin, 446 Fed.
Appx. 413, 415 (3d Cir. 2011) (rejecting inmate’s claim
that his placement in administrative segregation vio-
lated due process because decision was predicated, in
part, on conduct for which he already had been disci-
plined, and explaining that ‘‘due process is not violated
by placing an inmate in administrative custody based
on past conduct when that conduct provides a basis
for predicting [future misconduct]’’); Shoats v. Horn,
213 F.3d 140, 146 (3d Cir. 2000) (‘‘[e]ven [if the court]
conclude[d] that [the prisoner’s] continued confine-
ment in administrative custody [was] based solely on his
past crimes, the process he received would nonetheless
pass constitutional muster, because predictions of
likely future behavior based on a generally volatile crim-
inal character have been upheld by the [United States]
Supreme Court’’).
Moreover, as Levesque explained at the habeas trial,
the prior hearing relating to the petitioner’s possession
of the NIJ publication was a disciplinary proceeding
held for the purpose of determining whether the peti-
tioner had violated any prison rules. The fact that it
was later determined that that publication was not con-
traband—apparently because it had been approved by
prison mail room personnel—was immaterial to the
issue of whether the petitioner could be safely managed
in the general population in light of his undiminished
interest in perimeter security and all that that interest
implied for an inmate with his escape history. Levesque
testified that, as far as he was concerned, there was
absolutely no legitimate reason for any inmate to con-
cern himself with a prison’s perimeter security system,
much less so an inmate with the petitioner’s prior his-
tory of escapes, and that it was for this reason—to
ensure the safety and security of the prison as well as
the public—that department officials ultimately con-
cluded that the petitioner should be returned to admin-
istrative segregation. Although the petitioner obviously
disagrees with this decision, we cannot conclude that
it was unjustified, or that the evidence otherwise did
not support it.11
In this regard, it bears emphasis that ‘‘a prison’s inter-
nal security is peculiarly a matter normally left to the
discretion of prison administrators. In assessing the
seriousness of a threat to institutional security, prison
administrators necessarily draw on more than the spe-
cific facts surrounding a particular incident; instead,
they must consider the character of the inmates con-
fined in the institution, recent and longstanding rela-
tions between prisoners and guards, prisoners inter se,
and the like. In the volatile atmosphere of a prison, an
inmate easily may constitute an unacceptable threat to
the safety of other prisoners and guards even if he
himself has committed no misconduct; rumor, reputa-
tion, and even more imponderable factors may suffice
to spark potentially disastrous incidents. The judgment
of prison officials in this context, like that of those
making parole decisions, turns largely on purely subjec-
tive evaluations and on predictions of future behavior
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Hewitt v. Helms, supra, 459 U.S. 474. It there-
fore is not the role of this court to second-guess that
decision, especially when, as in the present case, there
is ample reason, based on the undisputed evidence, to
support it. See, e.g., Superintendent v. Hill, supra, 472
U.S. 455 (‘‘that due process requires some evidentiary
basis for a decision . . . does [not] imply that a disci-
plinary board’s . . . decisions . . . are subject to sec-
ond-guessing upon review’’); Bell v. Wolfish, 441 U.S.
520, 547, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) (‘‘[p]rison
administrators . . . should be accorded wide-ranging
deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve
internal order and discipline and to maintain institu-
tional security’’).
As we have explained, however, the habeas court
apparently misunderstood the petitioner’s claim, and,
as a result, its reason for rejecting the claim is unsustain-
able. See footnotes 6 and 7 of this opinion. Conse-
quently, the Appellate Court incorrectly determined
that the habeas court acted within its discretion in dis-
missing the petitioner’s petition for certification to
appeal from the habeas court’s judgment. Because,
however, the petitioner cannot prevail on his claim that
he was denied due process prior to being placed in
administrative segregation, we conclude that the
habeas court properly had determined that the petition-
er’s habeas petition must be denied.
The form of the judgment of the Appellate Court
is improper, the judgment of the Appellate Court is
reversed, and the case is remanded to that court with
direction to affirm the judgment of the habeas court
denying the petition for a writ of habeas corpus.
In this opinion the other justices concurred.
1
Department of Correction Administrative Directive 9.4 (3) (B) defines
‘‘administrative segregation’’ as ‘‘[p]lacement of an inmate on a restrictive
housing status that results in segregation of the inmate whose behavior or
management factors pose a threat to the security of the facility or a risk to
the safety of staff or other inmates and that the inmate can no longer be
safely managed in general population.’’
2
We granted the petitioner’s petition for certification to appeal, limited
to the following question: ‘‘Did the Appellate Court improperly conclude,
contrary to the rule of Sandin v. Conner, [supra, 515 U.S. 472], and Wilkinson
v. Austin, [supra, 545 U.S. 209], that the petitioner had no liberty interest
in avoiding administrative segregation?’’ Vandever v. Commissioner of Cor-
rection, 307 Conn. 909, 53 A.3d 999 (2012).
3
The hearing notice provided in relevant part: ‘‘Reason for Hearing: On
[October 21, 1997] . . . you received a [c]ontraband [c]lass A disciplinary
report substituted for [c]onspiracy to [c]ommit [e]scape. The contraband
you possessed was documentation detailing electronic perimeter technology
found in correctional facilities. The documentation you recently held, com-
bined with your escape record, may pose a threat to the safety and security
of the institutional community. Therefore, a special classification hearing
will be held . . . to consider you for placement on [a]dministrative [s]egre-
gation status. You will have the opportunity, at this hearing, to offer any
statements on your behalf . . . .
‘‘[You may request] a staff advocate to act [on] your behalf . . . . A
reasonable number of relevant and nonredundant witnesses may appear on
your behalf. . . .’’
4
General Statutes § 18-98a provides: ‘‘Each person committed to the cus-
tody of the Commissioner of Correction who is employed within the institu-
tion to which he was sentenced, or outside as provided by section 18-100,
for a period of seven consecutive days, except for temporary interruption
of such period as excused by the commissioner for valid reasons, may have
one day deducted from his sentence for such period, in addition to any
other earned time, at the discretion of the Commissioner of Correction.’’
Department of Correction Administrative Directive 9.4 (5) provides: ‘‘An
inmate shall not earn or receive statutory good time, seven-day work credit,
restoration of lost good time or outstanding meritorious performance awards
while on Administrative Segregation, Close Custody, Chronic Discipline
Status or Special Needs Management.’’
5
The record indicates that the disciplinary report ultimately was with-
drawn due to concerns over whether the NIJ publication actually constituted
contraband in light of the fact that it inadvertently had been stamped
‘‘approved’’ by officials in the mail room at Osborn.
6
In reaching this determination, the habeas court relied on Abed v. Com-
missioner of Correction, 43 Conn. App. 176, 682 A.2d 558, cert. denied, 239
Conn. 937, 684 A.2d 707 (1996), and Beasley v. Commissioner of Correction,
50 Conn. App. 421, 718 A.2d 487 (1998), aff’d, 249 Conn. 499, 733 A.2d 833(1999). As we explain more fully hereinafter; see footnote 7 of this opinion;
the habeas court misunderstood the petitioner to be claiming a statutory
or constitutional right to the good time and work credits that he was ineligible
to earn while in administrative segregation. It is clear from the record,
however, that the petitioner recognized that the foregoing authority pre-
cluded such a claim, and that he sought the credits only as a remedy for
the due process violation that he allegedly had suffered.
7
We note that the respondent also asserted at oral argument that the
petitioner never claimed in the habeas court that he had a liberty interest
in avoiding administrative segregation, only that he had a right to the statu-
tory good time credit that he was ineligible to earn while he was in administra-
tive segregation. A review of the record, however, reveals that the petitioner’s
claim was squarely before the habeas court, and that that court simply failed
to address it. In his habeas petition, which he initiated on a form provided
to him, the petitioner selected box ‘‘6c,’’ indicating that his ‘‘hearing on . . .
classification . . . [was] improper . . . .’’ In an attachment to his petition,
he clarified that he was referring to his administrative segregation hearing.
The petitioner also argued in his posttrial brief to the habeas court that
‘‘placement of an [inmate in administrative segregation] mandates a proper
due process . . . and is not any discretional or classification process. . . .
The placement of an [inmate in administrative segregation] creates a liberty
interest because [statutory good time] is denied, and it represents an atypical
and significant hardship from ordinary prison life.’’ (Citations omitted; inter-
nal quotation marks omitted.) In support of this claim, the petitioner
expressly relied on Sandin, which establishes the framework for evaluating
whether a prisoner has a liberty interest in avoiding administrative segrega-
tion. Accordingly, the habeas court’s reason for denying the habeas petition,
namely, that the award of good time and work credits is entirely within the
discretion of the respondent, cannot be sustained because it is based on a
claim that the petitioner never made.
8
Appellate review of the habeas court’s denial of a petition for certification
to appeal is governed by General Statutes § 52-470 (g), which provides: ‘‘No
appeal from the judgment rendered in a habeas corpus proceeding brought
by or on behalf of a person who has been convicted of a crime in order to
obtain such person’s release may be taken unless the appellant, within ten
days after the case is decided, petitions the judge before whom the case
was tried or, if such judge is unavailable, a judge of the Superior Court
designated by the Chief Court Administrator, to certify that a question is
involved in the decision which ought to be reviewed by the court having
jurisdiction and the judge so certifies.’’
We previously have explained that, in enacting this statute, ‘‘the legislature
intended to discourage frivolous habeas appeals. . . . A habeas appeal . . .
is not . . . frivolous and warrants appellate review if the appellant can
show: that the issues are debatable among jurists of reason; that a court
could resolve the issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further. . . . [I]f an appeal
is not frivolous, the habeas court’s failure to grant certification to appeal
is an abuse of discretion. . . .
‘‘In determining whether the habeas court abused its discretion in denying
the petitioner’s request for certification, we necessarily must consider the
merits of the petitioner’s underlying claims to determine whether the habeas
court reasonably determined that the petitioner’s appeal was frivolous. In
other words, we review the petitioner’s substantive claims for the purpose
of ascertaining whether those claims satisfy one or more of the three criteria
[that we have] identified . . . for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Citations omitted; internal
quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn.
433, 448–49, 936 A.2d 611 (2007).
9
Department of Correction Administrative Directive 9.4 (12) provides
that, before an inmate can be placed on administrative segregation status, he
must receive ‘‘notice and a hearing’’ that comply with the specific procedures
outlined in subparagraphs (A) and (B) of 9.4 (12) of the directive. Pursuant
to 9.4 (12) (C), the hearing officer is also required to issue a written recom-
mendation that includes the information he or she relied on and the reasoning
behind the recommendation.
This directive satisfies the first prong of Sandin because it requires, ‘‘in
language of an unmistakably mandatory character, that a prisoner not suffer
a particular deprivation’’—in this case, placement in administrative segrega-
tion at Northern—‘‘absent specified predicates.’’ (Internal quotation marks
omitted.) Vega v. Lantz, 596 F.3d 77, 83 (2d Cir. 2010).
10
We granted the application of the American Civil Liberties Union of
Connecticut and the Allard K. Lowenstein International Human Rights Clinic
(Human Rights Clinic) to file a brief as amici curiae in support of the
petitioner’s claim of a due process violation, and we also granted permission
to the Human Rights Clinic to present oral argument in this court not to
exceed ten minutes.
11
To the extent that the petitioner contends that his double jeopardy
rights were violated by his placement in administrative segregation on the
basis of conduct that previously had resulted in prison discipline, that claim
also is without merit because the double jeopardy clause is not implicated
by such a placement. See, e.g., Crawford v. Lappin, supra, 446 Fed. Appx.
415 (‘‘Nor is there any basis for [the petitioner’s] claim that placement [in
administrative segregation] based on previously disciplined conduct consti-
tutes a double jeopardy violation. See United States v. Newby, 11 F.3d 1143,
1144 (3d Cir. 1993) ([A] prison disciplinary hearing is not a prosecution for
[d]ouble [j]eopardy [c]lause purposes.).’’ [Internal quotation marks
omitted.]).