199 Conn.App. 406
Conn. App. Ct.2020Background
- Petitioner Jerry Whistnant committed robbery (9/27/2008), pled guilty (2009) and received 15 years incarceration + 3 years special parole; did not appeal his conviction.
- In 2011 the legislature enacted P.A. 11-51 (§ 18-98e) creating discretionary risk reduction credit (RRC) and amended § 54-125a(b)(2) to allow earned RRC to advance parole eligibility for certain inmates.
- In 2013 P.A. 13-3 amended § 54-125a(b)(2) to remove the ability of RRC to advance parole eligibility for violent offenders; RRC still could reduce the sentence end date.
- Whistnant alleged DOC stopped applying his previously earned RRC to advance his parole eligibility date and filed a pro se habeas petition asserting ex post facto and due process (and bare equal protection) claims.
- The habeas court declined to issue the writ under Practice Book § 23-24(a)(1), concluding it lacked subject matter jurisdiction, and denied certification to appeal; petitioner appealed.
- The Appellate Court affirmed dismissal: petitioner failed to raise a cognizable ex post facto claim and lacked a vested liberty interest in discretionary RRC, so the habeas court properly dismissed for lack of jurisdiction and did not abuse discretion in denying certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether habeas court abused discretion by denying certification to appeal | Denial was improper because issues are debatable and pending in related cases (Holliday) | Denial proper because claims are not legally debatable under controlling precedent | Denial was not an abuse of discretion; appeal dismissed |
| Whether court erred by declining to issue writ without a hearing under Practice Book § 23-24(a)(1) | Court should have held a hearing before declining to issue writ | Review is limited to issues raised in the petition for certification; no basis preserved to challenge lack of hearing | Issue not preserved for appellate review; Golding review unavailable here |
| Whether retroactive application of P.A. 13-3 violates the Ex Post Facto Clause | P.A. 13-3 retroactively increased punishment by removing benefit conferred in 2011 | Changes simply withdrew a post-offense benefit and returned petitioner to pre-offense position; no greater punishment at time of offense | No cognizable ex post facto claim; court lacked jurisdiction over that claim |
| Whether retroactive application of P.A. 13-3 violated due process (vested liberty interest in RRC) | Petitioner had a vested liberty interest in RRC that was applied to his parole date and therefore due process was violated when it was removed | RRC is discretionary and revocable by DOC; no vested right exists in earned but discretionary credit | No vested liberty interest; court lacked jurisdiction over due process claim |
Key Cases Cited
- Perez v. Commissioner of Correction, 326 Conn. 357 (Conn. 2017) (holding no habeas jurisdiction for ex post facto/due process claims where RRC is discretionary and removal returned petitioner to pre-offense position)
- State v. Golding, 213 Conn. 233 (Conn. 1989) (procedural framework for review of unpreserved constitutional claims)
- Simms v. Warden, 229 Conn. 178 (Conn. 1994) (standard for appellate review when habeas court denies certification to appeal)
- Gilchrist v. Commissioner of Correction, 334 Conn. 548 (Conn. 2020) (discussing procedure when court declines to issue writ and limits on appointment of counsel/notice)
- Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1 (U.S. 1979) (no inherent constitutional right to parole; liberty interests depend on statute)
- Holliday v. Commissioner of Correction, 184 Conn. App. 228 (Conn. App. 2018) (applied precedent that P.A. 13-3 dismissal for lack of jurisdiction is proper for pre-2011 offenses)
- Breton v. Commissioner of Correction, 330 Conn. 462 (Conn. 2018) (contrast: ex post facto violation where offense occurred between 2011 amendment and 2013 repeal)