Opinion
CV164007650S
03-14-2018
Mark HENDERSON (Inmate #382714) v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
OPINION
Kwak, J.
The petitioner, Mark Henderson, initiated this matter by way of a petition for a writ of habeas corpus filed on November 12, 2015, and amended on February 16, 2017. In the underlying criminal case, the petitioner was charged with robbing a bank on March 31, 2011. On April 29, 2013, the petitioner pleaded guilty to robbery in the first degree in violation of General Statutes § 53a-134(a)(2). On July 16, 2013, the petitioner was sentenced with an enhanced penalty as a persistent dangerous felony offender pursuant to General Statutes § 53a-40(a), and received a total effective sentence of twenty years incarceration.
In his amended petition, the petitioner alleges in count one that his plea was not voluntary, knowing or intelligent due to his trial counsel’s failure to advise him regarding the persistent dangerous felony offender sentence enhancement. In count two, the petitioner alleges that Public Act 15-216, as applied to the petitioner, constitutes an unconstitutional ex post facto law.
On August 15, 2017, the respondent filed a motion to dismiss the petitioner’s amended complaint on the grounds that the habeas court lacks subject matter jurisdiction over the claims pursuant to Practice Book § 23-29. The petitioner filed an objection to the respondent’s motion to dismiss on September 1, 2017. The court heard oral argument on the motion and objection thereto on November 15, 2017. For the reasons articulated more fully below, the respondent’s motion is denied as to count one and granted as to count two and judgment shall enter dismissing count two of the petition.
" [S]ubject matter jurisdiction cannot be waived by any party and can be raised at any state [of] the proceedings." (Internal quotation marks omitted.) J.P. Alexandre, LLC v. Egbuna, 137 Conn.App. 340, 49 A.3d 222, cert. denied, 307 Conn. 913, 53 A.3d 1000 (2012). " A motion to dismiss ... properly attacks the jurisdiction of this court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
In 2011, the General Assembly enacted legislation allowing certain prisoners convicted of crimes committed after October 1, 1994, to be eligible for Risk Reduction Earned Credits (RREC) to be earned and applied to reduce their sentence. Public Acts 2011, No. 11-51, codified in General Statutes (Rev. to 2011) § § 18-98e and 54-125a, effective July 1, 2011. In 2015, the General Assembly enacted Public Acts 2015, No. 15-216, § 9, which amended § 18-98 to exclude offenders convicted of certain crimes, including those convicted as a persistent dangerous felony offender, from earning RREC. The petitioner was convicted as a persistent dangerous felony offender pursuant to § 53a-40(a), and therefore he is now excluded from earning RREC.
In Petaway v. Commissioner of Correction, 160 Conn.App. 727, 125 A.3d 1053 (2015), appeal dismissed, 324 Conn. 912, 153 A.3d 1288 (2017), the habeas petitioner, whose offense date was October 20, 2003, alleged that he was denied the benefit of RREC through changes in the parole statute. See Public Act § 13-3 and General Statutes § 54-125a (Rev. to 2013). The Appellate Court noted that " [s]horn of its ex post facto designation, the petitioner’s claim is no more than a complaint that long after he committed [his offenses] and was sentenced, favorable legislation was enacted that gave him, at the respondent’s discretion, an opportunity for earlier parole consideration but that legislation was later repealed, putting him back into the same position he had been in [when he committed his offenses prior to the enactment of RREC]." Id., 734. The Appellate Court concluded that the habeas court properly declined to issue the writ of habeas corpus for lack of subject matter jurisdiction. Id.
In 2017, the Supreme Court decided Perez v. Commissioner of Correction, 326 Conn. 357, 163 A.3d 597 (2017). The petitioner in Perez committed offenses in November 2010, and through his habeas petition sought RREC on a plethora of legal theories (e.g., various due process grounds, liberty interest, ex post facto, separation of powers, and incorrect interpretation and application of the RREC statute by the Department of Correction). The Supreme Court arrived at several important conclusions. First, that the discretionary nature of RREC meant that there is no liberty interest in such credits. Id., 371-74. Second, that none of the changes to the RREC and parole statutes increased the measure of punishment relative what the statutes provided for on the date of offense. Id., 375-80. Third, that RREC is not constitutionally required and is a matter of legislative grace. Id., 385. " Therefore, ... application of [RREC] to advance an inmate’s parole eligibility date does not impinge on a fundamental right." Id. Fourth, inmates do not have a fundamental right in the opportunity to earn and receive RREC. Id., 386. The Supreme Court concluded that all of the petitioner’s claims either failed to state a claim upon which habeas corpus relief can be granted, or that the habeas court lacked subject matter jurisdiction, or were not cognizable, and affirmed the judgment of the habeas court dismissing the petition for a writ of habeas corpus.
As previously indicated, the petitioner’s offense date in this case is March 31, 2011, which precedes the enactment of RREC and the effective date of § 18-98e on July 1, 2011. Because the petitioner has no right to earn and receive discretionary RREC, and any changes, alterations and even the total elimination of RREC 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 count two of the amended habeas corpus petition and that the petition fails to state a claim for which habeas corpus relief can be granted.
CONCLUSION
Judgment shall enter dismissing count two of the petitioner’s amended habeas petition. Practice Book § 23-29(1), (2) and (5).
It is so ordered.