Dinham v. Commissioner of Correction , 191 Conn. App. 84 ( 2019 )

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TREVELLE DINHAM v. COMMISSIONER OF
CORRECTION
(AC 41625)
Keller, Elgo and Harper, Js.
Syllabus
The petitioner, who had been convicted, on a plea of guilty, of manslaughter
in the first degree with a firearm, sought a writ of habeas corpus. The
habeas court rendered judgment dismissing the habeas petition for lack
of subject matter jurisdiction and for the failure to state a claim on
which habeas relief could be granted, from which the petitioner, on the
granting of certification, appealed to this court. On appeal, he claimed,
inter alia, that the habeas court improperly dismissed his claims that
the respondent, the Commissioner of Correction, misconstrued and mis-
applied the statute (§ 54-125a) pertaining to parole suitability hearings
and the application of risk reduction credit toward the advancement of
a parole eligibility date, and the statute (§ 18-98e) pertaining to risk
reduction credit. Specifically, the petitioner claimed that the respondent
had misinterpreted and misapplied certain 2013 amendments to § 54-
125a, as set forth in No. 13-3 of the 2013 Public Acts (P.A. 13-3) and
No. 13-247 of the 2013 Public Acts (P.A. 13-247), which made a parole
suitability hearing discretionary rather than mandatory and eliminated
the use of risk reduction credits to advance the parole eligibility date
of inmates convicted of certain crimes, including manslaughter in the
first degree with a firearm, and certain 2015 amendments to § 18-98e,
as set forth in No. 15-216 of the 2015 Public Acts (P.A. 15-216), which
prohibited inmates who committed certain crimes, including manslaugh-
ter in the first degree with a firearm, from earning any risk reduction
credit in the future. Held:
1. The petitioner could not prevail on his claim that the habeas court improp-
erly dismissed his claim that, when he pleaded guilty in 2012 to man-
slaughter in the first degree with a firearm, he relied on governmental
representations that he would receive risk reduction credits to advance
his parole eligibility date and reduce the total length of his sentence:
although the petitioner claimed in his appellate brief that he had pleaded
guilty to manslaughter in the first degree with a firearm, which carried
a twenty-eight year term of imprisonment, rather than murder, which
carried a twenty-five year term of imprisonment, on the basis of represen-
tations by either the trial court or the prosecutor that, if he pleaded
guilty to the manslaughter charge, he would be eligible to earn risk
reduction credits that would advance his parole eligibility date and
would reduce the total length of his sentence to under twenty-five years,
the petitioner failed to plead in his amended habeas petition any factual
basis on which his claim relied, as the petitioner only broadly alleged
that he had a liberty interest in being able to rely on governmental
representations when deciding how to resolve his pending criminal case,
without any factual allegations of what the representations were or who
made them; accordingly, the habeas court did not err in dismissing the
petitioner’s claim for failure to state a claim on which habeas relief
could be granted.
2. The habeas court properly dismissed the petitioner’s claim that the respon-
dent misconstrued and misapplied P.A. 13-247, P.A. 13-3 and P.A. 15-
216, which was based on his claim that those public acts amending the
applicable statutes were substantive rather than procedural in nature
and, therefore, should not apply retroactively to him; the petitioner’s
claim related to P.A. 13-247 was not ripe for adjudication because the
petitioner had not yet been denied a hearing and, thus, it was impossible
to determine whether a hearing would take place in the future, and with
respect to P.A. 13-3 and P.A. 15-216, the petitioner had to assert a
cognizable liberty interest sufficient to invoke the habeas court’s subject
matter jurisdiction, which he failed to do, as he did not have a constitu-
tionally protected liberty interest in certain benefits, such as good time
credits, risk reduction credits, and early parole consideration, because
the statutory scheme pursuant to which the respondent was authorized
to award those benefits was discretionary in nature, and, therefore, the
habeas court lacked subject matter jurisdiction over the petitioner’s
claims.
3. The petitioner could not prevail on his claim that the habeas court improp-
erly dismissed certain counts in his petition for lack of subject matter
jurisdiction and for the failure to state a claim on which habeas relief
could be granted, which was based on his assertion that his claims
established a cognizable liberty interest by alleging that the respondent,
through his customary practices, had created a liberty interest: there is
no liberty interest in earning risk reduction credit or having it applied
to further an inmate’s parole eligibility date due to the discretionary
nature of the respective statutory schemes, there is no liberty interest
in parole or the procedure by which parole is granted or denied, and
it would be contrary to our case law to hold in the present case that
the petitioner has a vested liberty interest in earning future risk reduction
credits, in having those credits utilized to advance his parole eligibility
date, and in having a mandatory parole suitability hearing, when those
interests were not assured by statute, judicial decree, or regulation;
moreover, the legislature has made it clear in its amendments to §§ 54-
125a and 18-98e that the respondent is no longer authorized to utilize
risk reduction credits to advance an inmate’s parole eligibility date and
that he may no longer issue risk reduction credits to inmates such as
the petitioner, and this court will not interfere with the legislature’s
clear mandate.
Argued February 5—officially released July 2, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Hon. Edward J. Mullarkey,
judge trial referee, sua sponte, rendered judgment dis-
missing the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Vishal K. Garg, for the appellant (petitioner).
Zenobia G. Graham-Days, assistant attorney general,
with whom, on the brief, was George Jepsen, former
attorney general, for the appellee (respondent).
Opinion
HARPER, J. The petitioner, Trevelle Dinham, appeals
from the judgment of the habeas court dismissing his
petition for a writ of habeas corpus. On appeal, the
petitioner argues that the court improperly dismissed
his claims for lack of subject matter jurisdiction and
for the failure to state a claim upon which habeas relief
can be granted. Specifically, the petitioner argues that
the court improperly dismissed his claims that (1) he
relied on ‘‘governmental representations’’ that he would
receive risk reduction credit when he pleaded guilty to
manslaughter in the first degree with a firearm, (2) the
respondent, the Commissioner of Correction, miscon-
strued and misapplied several statutes pertaining to the
petitioner receiving a parole suitability hearing, earning
risk reduction credit in the future, and applying risk
reduction credit toward the advancement of the peti-
tioner’s parole eligibility date, and (3) the respondent’s
customary practices have created a vested liberty inter-
est in receiving a parole suitability hearing, earning
future risk reduction credits, and applying risk reduc-
tion credits to advance his parole eligibility date. We
disagree and, accordingly, affirm the judgment of the
habeas court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. On April 2, 2012,
the petitioner pleaded guilty to one count of manslaugh-
ter in the first degree with a firearm in violation of
General Statutes § 53a-55a, which he committed on or
about September 24, 1999,1 and for which he was sen-
tenced to twenty-eight years of imprisonment. There-
after, the then self-represented petitioner commenced
this action by filing a petition for a writ of habeas
corpus. On November 15, 2017, the petitioner, after
obtaining counsel, filed an eighteen count amended
habeas petition. On March 19, 2018, the court, sua
sponte, dismissed the amended petition for lack of sub-
ject matter jurisdiction and for the failure to state a
claim upon which habeas relief may be granted.2 See
Practice Book § 23-29.3 Instead of addressing the peti-
tioner’s claims individually, the court broadly deter-
mined that it lacked subject matter jurisdiction over
the habeas petition and that the petition had failed to
state a claim upon which habeas relief can be granted.4
The court granted the petitioner’s petition for certifica-
tion to appeal.5 The petitioner timely filed the present
appeal, challenging the dismissal of ten of his claims.
Additional facts will be set forth as necessary.
Before addressing the petitioner’s individual claims,
we first set forth the standards of review and relevant
legal principles applicable to the petitioner’s appeal.
‘‘Subject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it
is without jurisdiction . . . . The subject matter juris-
diction requirement may not be waived by any party,
and also may be raised by a party, or by the court sua
sponte, at any stage of the proceedings, including on
appeal.’’ (Internal quotation marks omitted.) Pentland
v. Commissioner of Correction, 176 Conn. App. 779,
784–85, 169 A.3d 851, cert. denied, 327 Conn. 978, 174
A.3d 800 (2017). ‘‘[I]n order to invoke successfully the
jurisdiction of the habeas court, a petitioner must allege
an interest sufficient to give rise to habeas relief. . . .
We have long held that because [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary.’’ (Citation omit-
ted; internal quotation marks omitted.) Perez v. Com-
missioner of Correction, 326 Conn. 357, 368, 163 A.3d
597 (2017). ‘‘With respect to the habeas court’s jurisdic-
tion, [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.’’ (Internal quotation
marks omitted.) Boria v. Commissioner of Correction,
186 Conn. App. 332, 342, 199 A.3d 1127 (2018).
‘‘Likewise, [w]hether a habeas court properly dis-
missed a petition pursuant to Practice Book § 23-29 (2),
on the ground that it fails to state a claim upon which
habeas corpus relief can be granted, presents a question
of law over which our review is plenary.’’ (Internal
quotation marks omitted.) Perez v. Commissioner of
Correction, supra, 326 Conn. 368. ‘‘In reviewing whether
a petition states a claim for habeas relief, we accept
its allegations as true.’’ Coleman v. Commissioner of
Correction, 137 Conn. App. 51, 55, 46 A.3d 1050 (2012).
For ease of discussion, we next provide a brief summary
of the relevant laws pertaining to the petitioner’s ability
to receive a parole suitability hearing, to earn future risk
reduction credit, and to apply his earned risk reduction
credit toward the advancement of his parole eligibil-
ity date.
Pursuant to No. 04-234 of the 2004 Public Acts, codi-
fied at General Statutes § 54-125a (e), the Board of
Pardons and Paroles (board) was required to hold a
parole suitability hearing for any person eligible for
parole who had completed 85 percent of his or her
sentence. General Statutes (Rev. to 2013) § 54-125a (e)
subsequently was amended by No. 13-247 of the 2013
Public Acts (P.A. 13-247), to make the board’s parole
suitability hearing discretionary, rather than manda-
tory.6 If the board declines to hold a hearing, however,
§ 54-125a (e) requires the board to document specific
reasons for declining to hold a hearing and to provide
those reasons to the person denied a hearing.
As to risk reduction credits, our Supreme Court has
summarized the relevant statutes as follows: ‘‘In July,
2011 . . . General Statutes § 18-98e7 became effective,
pursuant to which the respondent had discretion to
award risk reduction credit toward a reduction of an
inmate’s sentence, up to five days per month, for posi-
tive conduct. General Statutes § 18-98e (a) and (b). The
respondent also was vested with discretion to revoke
such credit, even credit yet to be earned, for good cause.
See General Statutes § 18-98e (b). At the same time,
the legislature amended the parole eligibility provision
to provide: ‘A person convicted of . . . an offense . . .
where the underlying facts and circumstances of the
offense involve the use, attempted use or threatened
use of physical force against another person shall be
ineligible for parole under subsection (a) of this section
until such person has served not less than eighty-five
per cent of the definite sentence imposed less any risk
reduction credit earned under the provisions of section
18-98e.’ . . . General Statutes (Rev. to 2011) § 54-125a
(b) (2), as amended by Public Acts 2011, No. 11-51, § 25
(P.A. 11-51). The subsection of § 54-125a addressing
parole hearings was similarly amended to account for
earned risk reduction credit. General Statutes (Rev. to
2011) § 54-125a (e), as amended by P.A. 11-51, § 25.
Accordingly, under the 2011 amendments, earned risk
reduction credit was to be applied to an inmate’s defi-
nite sentence to advance the inmate’s end of sentence
date, and the parole eligibility date calculated as a per-
centage of the sentence would advance in similar mea-
sure. . . .
‘‘Under the 2011 amendments to § 54-125a and § 18-
98e, any risk reduction credit earned by an inmate, and
not subsequently revoked, would have both reduced
his sentence and rendered him eligible for a hearing to
determine whether he should be granted parole after
he had served 85 percent of that reduced sentence.
‘‘Effective July 1, 2013, the legislature again amended
§ 54-125a. Specifically, with regard to offenses like one
of those of which the petitioner was convicted, the
legislature eliminated the language that permitted the
parole eligibility date to be advanced by the application
of any earned risk reduction credit. See [Public Acts
2013, No. 13-3, § 59 (P.A. 13-3)].’’ (Emphasis in original;
footnote altered.) Perez v. Commissioner of Correc-
tion, supra, 326 Conn. 363–65.
General Statutes (Rev. to 2015) § 18-98e (a) subse-
quently was amended by No. 15-216 of the 2015 Public
Acts (P.A. 15-216),8 so that inmates convicted of certain
violent crimes, including manslaughter in the first
degree with a firearm, were ineligible to earn risk reduc-
tion credits in the future.9 Mindful of the foregoing legal
principles, we now turn to the specific claims raised
by the petitioner in this appeal.
I
The petitioner’s first argument is that the court
improperly dismissed his claims that, when he pleaded
guilty in 2012 to manslaughter in the first degree with
a firearm, he relied on ‘‘governmental representations’’10
that he would receive risk reduction credits to advance
his parole eligibility date and reduce the total length of
his sentence.11 Specifically, the petitioner claims in his
appellate brief that he pleaded guilty to manslaughter
in the first degree with a firearm, which carried a
twenty-eight year term of imprisonment, rather than
murder, which carried a twenty-five year term of impris-
onment, because either the court or the prosecutor
represented that, if he pleaded guilty to the manslaugh-
ter charge, he would be eligible to earn risk reduction
credits that would advance his parole eligibility date
and would reduce the total length of his sentence to
under twenty-five years. The petitioner, relying on San-
tobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L.
Ed. 2d 427 (1971),12 argues that his operative petition
states a cognizable liberty interest by virtue of his ‘‘right
to rely on governmental representations,’’ which con-
fers subject matter jurisdiction on the court. Moreover,
he asserts that the facts pleaded in his petition state a
claim upon which habeas relief can be granted. We
disagree.
The petitioner failed to plead in his amended petition
any factual basis upon which his claim relies. The peti-
tioner only broadly alleged, citing to Santobello, that
he has a liberty interest in ‘‘being able to rely on govern-
mental representations in the decision how to resolve
his pending case,’’ without any factual allegations of
what the representations were or who made them. ‘‘It
is well settled that [t]he petition for a writ of habeas
corpus is essentially a pleading and, as such, it should
conform generally to a complaint in a civil action. . . .
The principle that a plaintiff may rely only upon what
he has alleged is basic.’’ (Internal quotation marks omit-
ted.) Arriaga v. Commissioner of Correction, 120
Conn. App. 258, 262, 990 A.2d 910 (2010), appeal dis-
missed, 303 Conn. 698, 36 A.3d 224 (2012). ‘‘[A] habeas
petitioner is limited to the allegations in his petition,
which are intended to put the [respondent] on notice
of the claims made, to limit the issues to be decided,
and to prevent surprise.’’ (Internal quotation marks
omitted.) Moye v. Commissioner of Correction, 316
Conn. 779, 789, 114 A.3d 925 (2015). Accordingly, we
conclude that the court did not err in dismissing the
petitioner’s claims for failure to state a claim upon
which habeas relief can be granted.13
II
The petitioner next argues that the court improperly
dismissed several counts of his operative habeas peti-
tion, which allege that three public acts amending §§ 54-
125a or 18-98e are substantive rather than procedural
in nature and, therefore, should not apply retroactively
to him.14 Specifically, the petitioner claims that the
respondent has misinterpreted and misapplied (1) P.A.
13-247, which amended General Statutes (Rev. to 2013)
§ 54-125a (e) to make a parole suitability hearing discre-
tionary rather than mandatory, (2) P.A. 13-3, which
amended General Statutes (Rev. to 2013) § 54-125a to
eliminate the use of risk reduction credits to advance
the parole eligibility date of inmates convicted of certain
crimes, including manslaughter in the first degree with
a firearm, and (3) P.A. 15-216, which amended General
Statutes (Rev. to 2015) § 18-98e to prohibit inmates who
committed certain crimes, including first degree man-
slaughter with a firearm, from earning any further risk
reduction credit. We disagree.
As to the petitioner’s claim regarding P.A. 13-247,
even though it is unclear on what basis the court relied
in concluding that it lacked subject matter jurisdiction
and that the petition had failed to state a claim upon
which habeas relief could be granted, our plenary
review leads us to conclude that, as argued by the
respondent in his principal brief, there is another basis
for finding a lack of subject matter jurisdiction, namely,
that the petitioner’s claim is not ripe for adjudication.
‘‘The subject matter jurisdiction requirement may not
be waived by any party, and also may be raised by a
party, or by the court sua sponte, at any stage of the
proceedings, including on appeal.’’ (Internal quotation
marks omitted.) Pentland v. Commissioner of Correc-
tion, supra, 176 Conn. App. 785. ‘‘[A] trial court must
be satisfied that the case before [it] does not present
a hypothetical injury or a claim contingent [on] some
event that has not and indeed may never transpire. . . .
[R]ipeness is a sine qua non of justiciability . . . .’’
(Internal quotation marks omitted.) Perez v. Commis-
sioner of Correction, supra, 326 Conn. 387–88. In Perez,
our Supreme Court stated that, even if the petitioner
in that case had stated a statutory claim upon which
habeas relief could be granted, his challenge to P.A. 13-
247 would not be ripe for adjudication because it was
impossible to determine whether the board would
decline to conduct a hearing on the petitioner’s parole
eligibility date.15 Id. In the present case, the petitioner
also has not yet been denied a hearing, and it is impossi-
ble to determine whether a hearing will take place in
the future.16 Accordingly, the petitioner’s claim related
to P.A. 13-247 is not ripe for review.
Turning to P.A. 13-3 and P.A. 15-216, in his appellate
brief, the petitioner cites to Johnson v. Commissioner
of Correction, 258 Conn. 804, 786 A.2d 1091 (2002), for
the proposition that this court must hold that the public
acts relevant to his claim are substantive in nature and,
therefore, cannot be applied retroactively to him.17 In
Johnson, our Supreme Court determined that the peti-
tioner had made a cognizable ex post facto claim, which
invoked the habeas court’s subject matter jurisdiction.
Id., 818–19. An ex post facto claim, however, is not
dependent on the existence of a cognizable liberty inter-
est. See Breton v. Commissioner of Correction, 330
Conn. 462, 471, 196 A.3d 789 (2018) (‘‘[t]he presence
or absence of an affirmative, enforceable right is not
relevant . . . to the ex post facto prohibition, which
forbids the imposition of punishment more severe than
the punishment assigned by law when the act to be
punished occurred’’ [internal quotation marks omit-
ted]); see also Baker v. Commissioner of Correction,
281 Conn. 241, 261, 914 A.2d 1034 (2007).
In the present case, the petitioner has stated that his
claim is not an ex post facto claim but, rather, a statu-
tory interpretation claim. Accordingly, Johnson is mate-
rially distinguishable from the present case. Citing to
Perez v. Commissioner of Correction, supra, 326 Conn.
387–88, the petitioner asserts that his claim is not con-
trolled by the question of whether he has alleged a
cognizable liberty interest in receiving risk reduction
credit. In essence, the petitioner asks for this court to
reach the merits of his claim without him first alleging
a cognizable liberty interest sufficient to establish a
basis for the court’s subject matter jurisdiction. Such
a reading of Perez would run contrary to our jurispru-
dence, which has consistently held that ‘‘[i]n 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.’’ (Internal
quotation marks omitted.) Boria v. Commissioner of
Correction, supra, 186 Conn. App. 342. Accordingly,
the petitioner must assert a cognizable liberty interest
sufficient to invoke the habeas court’s subject matter
jurisdiction.
‘‘Our appellate courts have concluded, consistently,
that an inmate does not have a constitutionally pro-
tected 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 [respondent] is authorized to award those
benefits is discretionary in nature.’’ Green v. Commis-
sioner of Correction, 184 Conn. App. 76, 86–87, 194
A.3d 857, cert. denied, 330 Conn. 933, 195 A.3d 383
(2018); see Perez v. Commissioner of Correction, supra,
326 Conn. 370–73 (no liberty interest in risk reduction
credits or application of risk reduction credits to
advance parole eligibility date); see also Rivera v. Com-
missioner of Correction, 186 Conn. App. 506, 514, 200
A.3d 701 (2018), cert. denied, 331 Conn. 901, 201 A.3d
402 (2019), and cases cited therein. Because the peti-
tioner has failed to assert a cognizable liberty interest
in his claims, we conclude that the court lacked subject
matter jurisdiction over them.
III
Finally, the petitioner claims that the court improp-
erly dismissed five counts in his petition for lack of
subject matter jurisdiction and for the failure to state
a claim upon which habeas relief can be granted
because his claims established a cognizable liberty
interest by alleging that the respondent, through his
customary practices, has created a liberty interest.18 We
are not persuaded.
As previously mentioned, our Supreme Court has
held that, ‘‘[i]n order to . . . qualify as a constitution-
ally protected liberty [interest] . . . the interest must
be one that is assured either by statute, judicial decree,
or regulation.’’ (Internal quotation marks omitted.)
Boria v. Commissioner of Correction, supra, 186 Conn.
App. 342. There is no liberty interest in earning risk
reduction credit or having it applied to further an
inmate’s parole eligibility date due to the discretionary
nature of the respective statutory schemes. See part II
of this opinion. Furthermore, there is no liberty interest
in parole or the procedure by which parole is granted
or denied. See Perez v. Commissioner of Correction,
supra, 326 Conn. 373 (‘‘[w]here . . . an inmate has no
vested liberty interest in parole itself, then it follows
that the procedure by which the board exercises its
discretion to award or deny the petitioner parole does
not implicate a vested liberty interest’’). Thus, it would
be contrary to our case law to hold in the present case
that the petitioner has a vested liberty interest in earning
future risk reduction credits, in having those credits
utilized to advance his parole eligibility date, and in
having a mandatory parole suitability hearing, all of
which are not assured either by statute, judicial decree,
or regulation.
The petitioner primarily relies on two federal cases
to support the proposition that the respondent’s cus-
tomary practices created a cognizable liberty interest
sufficient to confer subject matter jurisdiction over his
petition. First, he cites to Vitek v. Jones, 445 U.S. 480,
487–88, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980), in which
the United States Supreme Court held that an inmate
had a cognizable liberty interest in not being transferred
to a mental health facility for treatment. Specifically,
the court found that such a liberty interest was created
from an expectation based on Nebraska statutes and
the prison’s practice that an inmate would not be trans-
ferred unless he suffered from a mental disease or
defect that could not be treated at the prison. Id., 489–
90. Importantly, the court also factored into its conclu-
sion the stigma created by an involuntary confinement
to a mental health institution, which it opined could
negatively impact the inmate. Id., 492.
Second, the petitioner cites to Arsberry v. Sielaff,
586 F.2d 37, 47 (7th Cir. 1978), in which the plaintiffs
claimed that, on the basis of prison policy and customs,
they were entitled to earn good time credit during their
segregation from the general prison population. The
court acknowledged that, absent a liberty interest pro-
tected by the United States constitution, it must look
primarily to state law to determine if a liberty interest
was created. Id., 45–46. In addition to state statutes and
prison administrative regulations, the court determined
that a liberty interest may also be found in official
policies or practices if a prisoner could show ‘‘some
restriction upon the prison officials’ discretion to
remove the benefit sought.’’ Id., 46–48. In light of new
evidence that four prison directives provided guidelines
for denying good time credit in the event a prisoner
was segregated from the general prison population, the
court remanded the case to the trial court for an eviden-
tiary hearing as to whether the directives created a state
law entitlement. Id., 47.
A key distinction between the cases relied on by the
petitioner and the present case is that, when looking to
our state law, the legislature has barred the respondent
from awarding further risk reduction credits to the peti-
tioner or from applying the credits the petitioner has
earned to advance his parole eligibility date. Indeed,
the legislature has made it clear in its amendments to
§§ 54-125a and 18-98e that the respondent is no longer
authorized to utilize risk reduction credits to advance
an inmate’s parole eligibility date and that he may no
longer issue risk reduction credits to inmates such as
the petitioner. In other words, if we were to hold in
this case that a liberty interest has been created in the
earning of future risk reduction credit, the application
of risk reduction credit to advance the petitioner’s
parole eligibility date, and in receiving a parole suitabil-
ity hearing, we would usurp the power vested in the
legislature, which broadly dictates to the respondent,
a member of the executive branch, how to administer
and apply risk reduction credit and conduct parole suit-
ability hearings. ‘‘Because the ultimate power rests in
the people and has been allocated to the separate
branches of government, it is our duty to ensure that
each branch, including the judiciary, does not usurp the
power of its coequal branches. It is especially important
that we take pains to restrain this branch, because a
usurpation of legislative or executive power is, in effect,
a usurpation of the people’s power.’’ (Emphasis in origi-
nal.) State v. Peeler, 321 Conn. 375, 464, 140 A.3d 811
(2016) (Zarella, J., dissenting). Therefore, we decline
to interfere with the legislature’s clear mandate.
Accordingly, the court properly dismissed the petition-
er’s operative habeas petition for lack of subject matter
jurisdiction and for the failure to state a claim upon
which habeas corpus relief can be granted.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court’s memorandum of decision states that the offense occurred
on or before August 29, 2009. This appears to be an error that does not
affect the propriety of the court’s judgment.
2
Prior to dismissing the amended petition, the court notified the parties
that they should be prepared to present arguments, at any time, addressing
the court’s subject matter jurisdiction.
3
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion . . . dismiss the [habeas] petition,
or any count thereof, if it determines that . . . (1) the court lacks jurisdic-
tion . . . (2) the petition, or a count thereof, fails to state a claim upon
which habeas corpus relief can be granted . . . .’’
4
The court concluded in its memorandum of decision that ‘‘[b]ecause the
petitioner has no right to earn and receive discretionary [risk reduction
credit], and any changes, alterations and even the total elimination of [risk
reduction credit] at most can only revert the petitioner to the precise measure
of punishment in place at the time of the offense, the court concludes that
it lacks subject matter jurisdiction over the habeas corpus petition and
that the petition fails to state a claim for which habeas corpus relief can
be granted.’’
5
Specifically, the court certified the appeal on two grounds: ‘‘(1) Did the
habeas court err in concluding that it lacked subject matter jurisdiction?;
and (2) Did the habeas court err in concluding that the petition failed to
state a claim upon which habeas corpus relief can be granted?’’
6
General Statutes (Rev. to 2013) § 54-125a (e), as amended by P.A. 13-
247, § 376, provides in relevant part: ‘‘The Board of Pardons and Paroles
may hold a hearing to determine the suitability for parole release of any
person whose eligibility for parole release is subject to the provisions of
subdivision (2) of subsection (b) of this section upon completion by such
person of eighty-five per cent of such person’s definite or aggregate sentence.
. . . If a hearing is not held, the board shall document the specific reasons
for not holding a hearing and provide such reasons to such person. . . .’’
(Emphasis added.)
7
Section 18-98e was amended by No. 15-216 of the 2015 Public Acts, as
subsequently addressed in this opinion. Section 18-98e was also amended
in 2018. See footnote 9 of this opinion.
8
General Statutes § 18-98e (a), as amended by P.A. 15-216, § 9, provides
in relevant part: ‘‘Notwithstanding any provision of the general statutes, any
person sentenced to a term of imprisonment for a crime committed on or
after October 1, 1994, and committed to the custody of the Commissioner
of Correction on or after said date, except a person sentenced for a violation
of section . . . 53a-55a . . . 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 conduct as provided in subsection (b) of this section occurring on or
after April 1, 2006.’’ (Emphasis added.)
9
Additional amendments were made to § 18-98e pursuant to No. 18-155
of the 2018 Public Acts, but they are of no consequence to the matters
raised in this appeal.
10
We note that the petitioner, at points in his appellate brief, utilizes
‘‘representations’’ and ‘‘promise’’ interchangeably. We do not believe these
words to be synonymous. Although either the prosecutor or the court may
have in fact represented that the petitioner would be eligible to earn risk
reduction credits, which would have been an accurate statement of the law
at the time the petitioner pleaded guilty, such statements cannot reasonably
be construed as a promise, which would imply that the prosecutor or the
court had entered into a binding agreement with the petitioner.
11
In his brief, the petitioner frames the issue as ‘‘whether [the habeas court]
improperly dismissed counts twelve and sixteen of’’ his operative petition.
12
In Santobello v. New York, supra, 404 U.S. 258, the defendant had reached
a plea agreement with the prosecutor in which the prosecutor would permit
him to plead guilty to a lesser offense and would not make a recommendation
as to the length of the sentence. At the defendant’s sentencing, a different
prosecutor who did not negotiate the plea agreement recommended the
maximum sentence, which the court imposed, in violation of the agreement.
Id., 259–60. The United States Supreme Court held that, ‘‘the adjudicative
element inherent in accepting a plea of guilty, must be attended by safeguards
to [e]nsure the defendant what is reasonably due in the circumstances.
Those circumstances will vary, but a constant factor is that when a plea
rests in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.’’ Id., 262.
13
In the petitioner’s appellate brief, he insinuates that we should look to
the facts pleaded in his initial petition, which he believes sets forth the
factual basis for his claim. We are mindful, however, that ‘‘[w]hen an
amended pleading is filed, it operates as a waiver of the original pleading.
The original pleading drops out of the case and although it remains in the
file, it cannot serve as the basis for any future judgment . . . .’’ (Internal
quotation marks omitted.) Lund v. Milford Hospital, Inc., 326 Conn. 846,
850, 168 A.3d 479 (2017). Thus, the petitioner’s amended petition supersedes
his initial petition and, accordingly, he cannot rely on the factual allegations
made solely in his initial petition. See, e.g., Wesley v. DeFonce Contracting
Corp., 153 Conn. 400, 404, 216 A.2d 811 (1966) (amended complaint ‘‘entirely
supersedes’’ original complaint).
14
The petitioner framed the issue in his appellate brief as whether ‘‘the
habeas court improperly dismissed counts two, six, and eighteen of the
petitioner’s amended petition for a writ of habeas corpus.’’
15
Our Supreme Court first determined that the petitioner in that case had
failed to state a claim upon which habeas relief could be granted. Perez v.
Commissioner of Correction, supra, 326 Conn. 387.
16
The petitioner, citing Abbott Laboratories v. Gardner, 387 U.S. 136,
152–53, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967), argues that, even if an injury
has not yet been suffered, the case is ripe for review because the respondent’s
interpretation of P.A. 13-247 impacts his present actions while incarcerated.
In Abbott Laboratories, the United States Supreme Court held that a chal-
lenge to a federal regulation before it was enforced was ripe for adjudication
where a drug manufacturer either had to comply with the regulation or wait
until it was a defendant in an enforcement action, where it would face
serious civil and criminal penalties for failing to comply, before challenging
the regulation. Id., 153. We do not find these considerations applicable in
the present case.
17
Even if we were to acquiesce to the petitioner’s request to engage in a
statutory analysis of the pertinent public acts to determine if they are sub-
stantive or procedural in nature and, thus, whether they should apply retroac-
tively to the petitioner, he has not adequately briefed the issue. The petitioner
simply distinguishes a substantive statute from a procedural statute and
concludes that the relevant public acts are substantive statutes without
providing any analysis of the language at issue in the statutes and without
citing to any legislative history to evince the legislature’s intent. See, e.g.,
Andersen Consulting, LLP v. Gavin, 255 Conn. 498, 517–18, 767 A.2d 692
(2001) (discussing test to determine whether statute applies retroactively
or prospectively). ‘‘Claims are inadequately briefed when they are merely
mentioned and not briefed beyond a bare assertion. . . . Claims are also
inadequately briefed when they . . . consist of conclusory assertions . . .
with no mention of relevant authority and minimal or no citations from the
record . . . .’’ (Internal quotation marks omitted.) Estate of Rock v. Univer-
sity of Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016).
18
The petitioner claims in his appellate brief that ‘‘the habeas court improp-
erly dismissed counts three, four, seven, nine, and seventeen of the petition-
er’s amended petition for a writ of habeas corpus.’’