Opinion
No. 565525
January 16, 2004
MEMORANDUM OF DECISION
By his petition filed April 15, 2003, petitioner seeks a writ of habeas corpus. In his petition, it is alleged that petitioner is being denied a parole hearing by an unconstitutional ex post facto application of Connecticut General Statutes § 54-125a(b). By way of relief, petitioner seeks a parole hearing and notice of such hearing.
The facts derived from the evidence are not greatly in dispute and may be summarized as follows:
On July 24, 1996 in the Superior Court at Waterbury, petitioner was convicted of conspiracy to murder in violation of Connecticut General Statutes § 53a-48 and § 53a-54a and hindering prosecution in violation of § 53a-166. These offenses were committed in 1995. As a result of such conviction, petitioner received a total effective sentence of fifteen years. At present, he is in custody of the respondent serving this sentence.
At the time he was convicted, petitioner's public defender informed him that he would be eligible for parole upon the completion of 50 percent of his sentence. The same information was given to him at Walker C.I. and other institutions where he has been confined. In response to a request for specific information, petitioner was informed by a parole officer that his parole hearing date would be November 14, 2002.
When November 14, 2002 passed and he did not have a parole hearing, petitioner contacted the parole board. He was then informed that he was not eligible for parole and would have to serve his entire sentence.
Connecticut General Statutes § 54-125a sets forth the basic statutory parameters for parole eligibility. Subsection (b)(1) of this statute provides that persons convicted of certain offenses would not be eligible for parole. Murder, as defined by § 53a-54a, is listed as such an offense. Conspiracy to commit murder was not listed in the statute.
In 1999, the Statement of Organization and Procedures promulgated by the Board of Parole was amended and the following section was added:
Policy Based
Statutory eligibility notwithstanding, the Board will not review the cases of individuals who, at the point of eligibility:
1. Are designated by the Connecticut Department of Connection as a Security Risk Group (SRG) member or SRG Safety Threat Member;
2. Are classified by the Connecticut Department of Correction as an overall risk level "5";
3. Are housed in a Connecticut Department of Correction Chronic Disciplinary Unit; or
4. Have criminal charges pending in the State of Connecticut. These cases will be reviewed for parole consideration only upon disposition of such charges;
5. Are convicted of accessory, conspiracy, attempt or criminal liability where the underlying offense is not eligible by statute is considered ineligible.
Petitioner, having been convicted of conspiracy with murder as the underlying offense, would not be eligible for parole consideration under paragraph 5 of the policy.
It is a fundamental principle of law in this state that the parole laws are discretionary and do not grant inmates the automatic right to demand or receive a parole hearing. A petitioner, such as petitioner here, has no liberty interest in a claim for release on parole. Vincenzo v. Warden, 26 Conn. App. 132 (1991).
Petitioner has based his claim on an ex post facto violation of his rights. An affirmative, enforceable right is not relevant to an ex post facto claim which forbids the imposition of punishment more serious than the punishment assigned by law when the act to be punished occurred. Johnson v. Commissioner, 258 Conn. 804, 817 (2002). The primary focus of an ex post facto claim is the probability of increased punishment. Id.
To establish a cognizable claim, petitioner must make a colorable showing that the new policy established by the parole board in 1999 creates a genuine risk that he will be incarcerated longer under this new policy than under the previous situation. Id.
In this case, Greg Everett, a supervisor in the parole board's hearing division, testified to facts underlying the policy in question. Mr. Everett's testimony indicated that the various classification offenders included in the five sections of the policy covered inmates who would normally be excluded by parole because their release would constitute a risk to society. By publishing the policy, the parole board sought to avoid hearings which would serve no purpose.
Mr. Everett, who had many years of service with the parole board, testified that he was familiar with petitioner's case. He stated that in considering an inmate for parole, the board normally looks into the facts underlying the inmate's criminal offense. Mr. Everett testified that the information concerning petitioner's offense disclosed that, among other things, petitioner fired a shot into the victim's head to make certain that he was dead. Under all of the circumstances of petitioner's case, Mr. Everett stated that petitioner would not be granted parole by the board.
The facts of this case differ from the situation in Johnson v. Commissioner, supra, 258 Conn. 804, where the Supreme Court determined that Public Act 95-255 § 1 applied prospectively and not retrospectively. In this case, the parole board merely promulgated a policy which reflected the general principles which the Board had been following.
As previously noted, petitioner, as a sentenced prisoner, has no liberty interest in a claim for release on parole. Vincenzo v. Warden, supra, 26 Conn. App. 132. From the evidence, it is found that petitioner suffered no increase in punishment as a result of the policy promulgated by the parole board in 1999. For this reason, there is no ex post facto violation of petitioner's rights.
Because of this decision, the court will not consider whether any practical relief could be granted where the parole board has not been made a respondent.
Accordingly, the petition is dismissed.
JOSEPH J. PURTILL JUDGE TRIAL REFEREE.