Opinion
No. CV 04 0004464 S
June 11, 2008
MEMORANDUM OF DECISION ON WRIT OF HABEAS CORPUS PETITION
The petitioner, Frank Vandever, is presently in the custody of the Commissioner of Correction in the State of Connecticut and has brought this habeas corpus petition alleging that he has been wrongfully deprived of statutory good time and seven-day credits. The respondent's return denies petitioner's allegations and that he is entitled to the credits he is seeking. The matter came before the court for a trial on the merits on February 4 and March 3, 2008. Petitioner, Department of Correction (department) Record Specialist II Michelle Deveau, and department Director of Offender Classification Frederick Levesque presented testimonial evidence. Additionally, documentary evidence included numerous department records. The court permitted the parties to file simultaneous post-trial briefs on or before April 3, 2008. Petitioner's post-trial brief was filed on March 28, 2008; respondent did not file a post-trial brief on or before April 3, 2008. Based on the court's review of the testimony and evidence, judgment enters denying the habeas corpus petition.
FINDINGS OF FACT
Petitioner stands convicted of numerous offenses including murder and escape from a correctional institution. On October 21, 1997, subsequent to petitioner's escape from a correctional institution, he was found to be in possession of a National Institute of Justice publication pertaining to perimeter security of prisons. An investigative report for the incident describes the publication as one that ". . . deals with types of perimeter and security levels, towers and detection systems in maximum security institutions, types of intrusion alarm systems, and even components of a maximum security perimeter intrusion system." Petitioner's Exhibit S. The investigator concluded the report by recommending the preparation of an administrative segregation (AS) package to implement heightened security measures and precautions for the petitioner. Id.
See respondent's exhibit 5 for all of petitioner's offenses and total effective sentences.
The full title of the publication is "Stopping Escapes: Perimeter Security." The court applauds petitioner's apparent interest in stopping escapes.
For a good discussion of administrative segregation see Beasley v. Commissioner of Correction, 50 Conn.App. 421, 423-27, 718 A.2d 487 (1998), aff'd, 249 Conn. 499, 773 A.2d 833 (1999).
After a hearing conducted November 21, 1997, the hearing officer did not recommend placing the petitioner on restrictive status (i.e., AS). However, several days later, on November 24, 1997, the inmate classification administrator authorized the petitioner's placement in AS. The reason indicated by the inmate classification administrator was: "Possession of escape related contraband and prior escape and attempts." Respondent's Exhibit 4, pg. 2. The petitioner was placed on AS, effective November 24, 1997, as a result of the October 21, 1997 incident. Petitioner's Exhibit F; Respondent's Exhibit 4. While on AS the petitioner was ineligible to earn statutory good time, including 7-day job credits. Respondent's Exhibit 4, at pg. 4.
The statutory good time credits referred to as 7-day job credits are permitted in accordance with General Statutes § 18-98a.
The department also charged the petitioner, as a result of the October 21, 1997 incident, with the disciplinary violation of conspiracy to commit escape. After a disciplinary hearing on November 3, 1997, the petitioner was found guilty of possession of contraband. The department imposed several sanctions, including the forfeiture of ninety (90) days of good time credits. Respondent's Exhibit 3.
On December 15, 2003, the department credited the petitioner with four hundred (400) days of statutory good time credits This credit resulted from the settlement between the petitioner and the department to resolve his federal civil rights case Frank Vandever v. Larry Meachum et al, Civil No. 3:94CV1404. Petitioner's Exhibits K and L. The four-hundred day credit represented the time period of July 6, 1994 through April 14, 1997, which precedes the October 21, 1997 incident, when the petitioner was not eligible to earn good time credits because he was in restrictive housing. Id.
The stipulated judgment also obligated the department to pay to the petitioner the sum of $2,000.00. The August 12, 2003 stipulated judgment also contains the following clause: "It is further expressly agreed and understood that payment of the aforesaid sum is not an admission of liability on the part of the defendants in said action, or an admission of liability on the part of any other present or former officer, agent or employee of the State of Connecticut or the State of Connecticut itself, but rather constitutes the compromise settlement of the claims made in the actions set forth above." Petitioner's Exhibit L.
The petitioner previously initiated a state habeas action in the judicial district of Tolland, docket number CV 97-2605. That prior habeas challenged the disciplinary ticket issued for petitioner's possession of the National Institute of Justice publication pertaining to perimeter security of prisons. On July 28, 2003, counsel for the respondent indicated that the warden had agreed to withdraw the ticket and restore the 90 days of good time that had been forfeited. Because the prior habeas petition challenged the disciplinary ticket on due process grounds, the department's decision to withdraw the ticket and restore the forfeited 90 days of good time rendered petitioner's claim moot. Petitioner's Exhibit I. The court (Fuger, Jr., J.) rendered a judgment of dismissal based on mootness due to the department's decision to provide the petitioner with the relief he was seeking via the habeas corpus petition. Petitioner's Exhibits G and I. The petitioner did address with the court the issue of unearned good time due to being held in AS. Judge Fuger indicated to the petitioner that he would need to raise that claim in another petition for a writ of habeas corpus.
The instant matter is precisely that other, subsequent habeas corpus petition.
The petitioner in 2004 also filed an action in federal court under 42 U.S.C. §§ 1983 in which he alleged his federal civil rights were violated by the department's actions on and after October 21, 1997. As relief in the §§ 1983 action the petitioner sought damages, restitution, and restoration of both statutory good time and 7-day job credits he did not earn while on AS. Respondent's Exhibit 1. After a trial before a jury, the jury on January 19, 2006 returned a verdict for the defendants (i.e., individuals employed by the department).
A review of petitioner's time sheets maintained by the respondent shows that he was on restricted housing status from December 1, 1997, until July 1, 1999. Since petitioner's release from restricted housing status and/or AS, he has consistently earned both statutory good time and 7-day job credits, thereby continually advancing his projected release date. See Respondent's Exhibit 2 and Petitioner's Exhibit J.
The posting dated December 1, 1997 bears the notation "A/S as of 11/24/1997."
The posting dated July 1, 1997 bears the notation "AS 06/12/1999."
Additional facts will be discussed as necessary.
DISCUSSION
The Appellate Court very recently had occasion in the context of an alleged due process violation to address inmates' right to earn statutory good time. "Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of a sentence imposed by a court of law. In order to state a claim of a violation of due process, an inmate must show a protected liberty interest and a deprivation of that interest without being afforded due process of law. A prisoner's liberty interest to be free from disciplinary segregation is not inherent in the due process clause of the federal constitution. Harris v. Meulemans, 389 F.Sup.2d. 438, 441 (D.Conn. 2005). `Under Connecticut law, the Commissioner of Correction retains discretionary authority to classify prisoners at any security level.' Id., 441; see General Statutes § 18-81 (discussing respondent's duties). The respondent, pursuant to General Statutes § 18-7a, has discretion to award or not award the credit allowed in that statute, but there is no statutory right to good time credit. Harris v. Meulemans, supra, 442. A prisoner has no constitutionally protected interest in or to a particular classification." (Citation omitted; quotation marks omitted.) Martinez v. Commissioner of Correction, 105 Conn.App. 65, 77, 936 A.2d 665 (2007), cert. denied, 285 Conn. 917 (2008).
In Abed v. Commissioner of Correction, 43 Conn.App. 176, 682 A.2d 558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996), and Beasley v. Commissioner of Correction, 50 Conn.App. 421, 423-27, 718 A.2d 487 (1998), aff'd, 249 Conn. 499, 773 A.2d 833 (1999), department directives were challenged on various grounds. In both Abed and Beasley the Appellate Court concluded the directives were not punitive in nature. "In the present case, as in Abed, the challenged directive was not a penal statute and cannot be said to be punitive in nature. The habeas court found, and we agree, that the purpose for the rule precluding inmates from being eligible to earn statutory good time while classified in administrative segregation was not to punish but to aid in controlling the inmate population. Pursuant to the commissioner's authority, such administrative rules are explicitly permitted. See Abed v. Commissioner of Correction, supra, 43 Conn.App. 183." Beasley v. Commissioner of Correction, supra, 50 Conn.App. 432.
"Under the present statutory scheme, good time may be awarded in the amount of ten days per month to those inmates who warrant such diminution of sentence by good conduct and obedience to the rules. See General Statutes § 18-7a(c). Any act of misconduct or refusal to obey the established rules subjects the inmate to the loss of those credits already earned. General Statutes § 18-7a(c). Our Supreme Court has concluded that § 18-7a(c) is plain and unambiguous. Nichols v. Warren, 209 Conn. 191, 196, 550 A.2d 309 (1988). According to the plain language of § 18-7a(c), the commissioner may award good time credits at his discretion. Thus, because § 18-7a(c) does not require the commissioner to award good time credits, that section cannot create a liberty interest on which the petitioner may predicate habeas corpus relief." (Emphasis in original.) Abed v. Commissioner of Correction, supra, 43 Conn.App. 180-81.
The petitioner here both never had or presently has a right to the statutory good time and 7-day job credits he is seeking. The awarding of such credits always has been and remains solely within the respondent's discretion. This discretion is, furthermore, heavily underscored by the respondent's unilateral and discretionary decisions to withdraw the disciplinary ticket and restore the forfeited 90 days, as well as enter into a stipulated judgment providing petitioner with 400 days of unearned good time and $2,000.00. It matters not for purposes of the instant habeas corpus petition why the respondent chose to restore forfeited credits or provide credits by way of a stipulated judgment. Such decisions are discretionary and wholly within the commissioner of correction's purview in accordance with General Statutes § 18-7a.
Based on the foregoing, the writ of habeas corpus is denied. The clerk shall prepare a judgment file should petitioner perfect an appeal.