208 Conn.App. 204
Conn. App. Ct.2021Background:
- Petitioner Anthony Johnson committed the underlying offense on December 7, 2008, pleaded guilty to first‑degree manslaughter with a firearm in 2009, and received a 30‑year sentence (execution suspended after 18 years).
- In 2011, P.A. 11‑51 created a risk reduction earned credit program (§ 18‑98e) and permitted such credit to advance parole eligibility for certain offenders via § 54‑125a; P.A. 13‑3 (2013) removed that parole‑advancement provision for violent offenders.
- Johnson filed a pro se habeas petition in 2019 asserting that P.A. 13‑3, as applied retroactively, violated the federal ex post facto clause; the habeas court (Bhatt, J.) declined to issue the writ for lack of subject‑matter jurisdiction because Johnson’s offense predated the 2011 statute and invited refiling if his claim was limited to forfeiture of already‑earned credits.
- Johnson filed a second petition alleging the Department of Correction had unconstitutionally forfeited risk reduction credits already earned and applied; the habeas court (Newson, J.) declined to issue the writ as "identical" to the first petition and denied certification to appeal.
- On appeal, the respondent conceded the court erred in characterizing the petitions as identical, but argued the court nonetheless correctly declined to issue the writ for lack of jurisdiction; the Appellate Court agreed and affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the habeas court abused its discretion by declining to issue the writ and denying certification on the ground the second petition was "identical" to the first | Johnson: petitions are not identical—the second alleges forfeiture of credits already earned and applied, a distinct claim | Commissioner: court conceded the "identical" rationale was improper but contends there is an alternative basis to affirm (lack of jurisdiction) | Court: abuse of discretion to decline on "identical" ground, because § 23‑24 contains no such basis and petitions differed |
| Whether the habeas court properly declined to issue the writ for lack of subject‑matter jurisdiction under Practice Book § 23‑24(a)(1) because the offense predated the 2011 credit program (ex post facto claim) | Johnson: P.A. 13‑3 retroactive application unlawfully forfeited earned credits, violating ex post facto clause | Commissioner: petitioners whose offenses predate P.A. 11‑51 cannot prevail on ex post facto claims based on P.A. 13‑3; court lacks jurisdiction | Court: affirmed on alternative ground—lack of jurisdiction (P.A. 13‑3 returned petitioner to pre‑offense position; ex post facto claim not cognizable) |
Key Cases Cited
- Perez v. Commissioner of Correction, 326 Conn. 357 (2017) (holding habeas courts lack jurisdiction over ex post facto challenges where the offense predates the risk‑reduction statute)
- James E. v. Commissioner of Correction, 326 Conn. 388 (2017) (applies Perez to dismiss ex post facto claims for lack of jurisdiction)
- Gilchrist v. Commissioner of Correction, 334 Conn. 548 (2020) (clarifies Practice Book §23‑24 screening role and presumption favoring issuance of the writ; distinguishes §23‑29 post‑writ dismissal)
- Whistnant v. Commissioner of Correction, 199 Conn. App. 406 (2020) (applies Perez in §23‑24 context and affirms declining to issue writ where offense predates program)
- Stephen S. v. Commissioner of Correction, 199 Conn. App. 230 (2020) (reverses a decline‑to‑issue when petition not obviously defective or identical to prior petitions)