Opinion
No. TSR CV05 4000600-S
February 8, 2007
MEMORANDUM OF DECISION
On August 11, 2005, petitioner filed a pro se petition for a writ of habeas corpus, which was amended on October 25, 2006. The amended petition essentially alleges that the board of pardons and paroles (board) is incorrectly interpreting and applying Gen. Stat. § 54-125a. This alleged misinterpretation has resulted in the board's incorrectly establishing petitioner's parole eligibility at a date later than under petitioner's interpretation of § 54-125a. The respondents' return denies petitioner's claims and raises five affirmative defenses: first, that this court lacks subject matter jurisdiction; second, that the petition fails to state a claim upon which habeas corpus relief may be granted; third, that petitioner is seeking relief for which the habeas court has no legal authority to grant; fourth, that this court has no jurisdiction over the board's authority to classify inmates as being parole eligible; and fifth, that the board has properly considered petitioner's parole eligibility in accordance with the controlling statutes and regulations. Petitioner filed a reply denying all affirmative defenses.
The matter came before the court on November 22, 2006 for a trial on the merits. Witnesses included Mary Jane Steele and Richard Sparaco. The court finds the testimony of Steele and Sparaco to be highly credible. The court has reviewed and considered the testimony, the exhibits, the parties' memoranda of law and their closing arguments. After applying the law to the facts, judgment of dismissal shall enter on the grounds that the court lacks subject matter jurisdiction.
Department of corrections records specialist II.
FINDINGS OF FACT
On March 26, 2002, at approximately 3:00 p.m., New Haven police responded to a report of a domestic violence incident occurring at 160 Hazel Street, New Haven, Connecticut. Upon arrival New Haven officers observed Tyshon Scott to be crying, upset and "shaking all over." They also observed that Scott had a cut to her hand, blood emanating from her mouth and welts forming on her forehead and left side of her face. After much coaxing, Scott reluctantly informed the officers that Tremain Brown, the petitioner in this case, had repeatedly punched her about the face, then had choked her and pushed her against the refrigerator. Scott also told the officers that petitioner had threatened if she called the police, he or his associates would kill her, kill her children and destroy her apartment.
Scott was subsequently transported to Yale-New Haven Hospital for treatment of her injuries.
After speaking to Scott, the officers entered her apartment and found petitioner lying on a bed in her children's bedroom. Petitioner was placed under arrest. As he was being escorted from the apartment, at Scott's request petitioner gave her a set of keys. Scott noticed, however, that her front door key was missing. Petitioner was searched by the police but the key could not be located. Scott then asked the officers to assist her in finding it. Scott, Scott's brother and the officers searched both outside and inside the apartment to no avail. While searching the children's bedroom, Scott's brother located a Sturm Ruger .40 caliber pistol and ten rounds of ammunition in a dresser drawer lying on the floor of the bedroom. When questioned about the gun, Scott told the officers that it was petitioner's gun which he generally wore in the waistband of his pants. Scott further stated that when home, petitioner kept the gun between the mattress and box spring of Scott's bed. Scott also stated that the only reason the officers found it in the children's bedroom was that petitioner must have been carrying it on his person when the officers arrived. The officers reported that throughout the incident Scott was terrified of petitioner and what he might do to her and her children.
While at 160 Hazel Street, officers also received information that petitioner had been selling narcotics from the residence. As a result, police obtained a search and seizure warrant which was executed approximately ninety minutes after they responded to the domestic incident. Seized from the residence was 115.1 grams of cocaine, 14 bags of crack cocaine, a digital scale, packaging material and $1,800.00 in currency.
New Haven police assigned the domestic violence and firearms offenses case #02-17150; and the narcotics offenses case #02-17170. The arrest paperwork was submitted to the Superior Court — geographical area #23 where the domestic incident was assigned docket number CR23-3034 and the narcotics incident docket number CR23-3037. On August 14, 2002 petitioner pleaded guilty under the Alford doctrine to assault in the second degree and criminal possession of a firearm in CR23-3034; and to possession of narcotics with intent to sell in CR23-3037. After canvassing the pleas, the court (Brunetti, J.) committed petitioner to the custody of the commissioner of corrections for a period of one year on the assault conviction, two years on the firearms conviction and seven years on the narcotics conviction. All sentences were ordered by the court to run concurrently. Thus the total effective sentence for all three convictions was seven years to serve.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
General Statutes § 53a-60.
General Statutes § 53a-217.
General Statutes § 21a-277a.
Thereafter on September 11, 2002, the board conducted its statutorily mandated parole eligibility date determination for petitioner. In making its decision, the board had before it, inter alia, the two mittimuses for petitioner's sentences, his prior criminal history, his corrections "movement" sheet and the police incident report for the domestic violence and firearms offenses. At the conclusion of the hearing, the board classified petitioner as a violent offender and thus determined that he would be required to serve 85% of his sentence before he would be deemed eligible for parole. Petitioner's eligibility date was, therefore, set at March 7, 2008.
General Statutes § 54-125a.
If petitioner had been deemed eligible at 50%, his parole eligibility date would have been September 27, 2005.
At the habeas trial, Richard Sparaco, parole supervisor for the board, testified about the statutes and regulations applicable to the board's parole eligibility date decisions and the procedures used by the board in making such a determination. Sparaco testified that under its procedures, the board does not parole an inmate from one sentence to another. Thus to calculate an eligibility date for an inmate with more than one sentence, first the board aggregates all of the inmate's uncompleted sentences whether concurrent or consecutive. Thereafter the board determines whether the inmate should be classified as a violent offender or as a non-violent offender. If the inmate is considered a violent offender, he is required to serve 85% of his aggregated sentences before he is eligible for parole. If, however, an inmate is classified as a non-violent offender, he is required to serve 50% of his aggregated sentences before he is eligible for parole. According to Sparaco in classifying an offender as violent or non-violent the board is authorized by statute and by regulation to consider an offender's present offenses including the facts underlying the offenses as well as the offender's prior criminal history. Additionally at the time of petitioner's hearing in September 2002, the board was required to disqualify any offender found in possession of a firearm within 1500 feet of a school.
See footnote 7.
Regs., Conn. State Agencies § 54-125a et seq.
In 2002, Gen. Stat. § 54-125a(b)(1) provided that: "No person convicted of any of the following offenses . . . shall be eligible for parole under subsection (a) of this section . . . any offense committed with a firearm . . . within one thousand five hundred feet of the real property comprising a public . . . elementary . . . school." P.A.04-234 repealed this provision of Gen. Stat. § 54-125a(b)(1).
Applying these principals to petitioner's case, the board aggregated petitioner's three concurrent sentences and determined that the controlling sentence was seven years to serve. Thereafter, based upon their review of petitioner's file, the board classified petitioner as a violent offender who thereby was required to serve 85% of his sentence before eligibility for parole. Sparaco did not participate in the eligibility determination for petitioner and thus was not able to testify as to what exact information the board relied upon in making its determination in petitioner's case. Under the applicable statutes and regulations, petitioner could lawfully have been classified by the board as a violent offender in any one of several ways: by virtue of his conviction of a violent offense; by virtue of his possession of a firearm within 1500 feet of a school; or by virtue of any information before the board which demonstrated a propensity for violence toward another person. Any one of these reasons, in and of itself, would have been sufficient for the board to classify petitioner as a violent offender.
General Statutes § 54-125a(b)(2).
General Statutes § 54-125a(c) and Regs., Conn. State Agencies § 54-125a-5(b).
In the present case, petitioner was convicted of a per se violent offense, assault in the second degree. Further, according to the New Haven police report, he had been in possession of a handgun within 1500 feet of a school. Additionally, the police report set forth ample facts to demonstrate that petitioner was a threat to public safety and thus warranted classification as a violent offender. That information included Scott's statements about petitioner's propensity to carry a handgun, his stated threats to kill Scott and her family, the violent nature of his assault on Scott and the well-known association between drug dealing and violence and drug dealing and firearms.
160 Hazel Street, New Haven, Connecticut is located one block away from Martin Luther King Elementary School.
"Connecticut courts repeatedly have noted that `[t]here is a well established correlation between drug dealing and firearms.' State v. Cooper, 227 Conn. 417, 426 n. 5 (1993); See also, e.g., State v. Carter, 228 Conn. 412, 424 n. 15 (1994); State v. Delossantos, 211 Conn. 258, 281, cert. denied 493 U.S. 866, 110 S.Ct. 188, 107 L.Ed.2d (1989). Federal courts have also recognized this fact of life. E.g., Michigan v. Summers, [ 452 U.S. 692, 702 n. 17, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)] (recognizing that execution of search warrant for narcotics `may give rise to violence'); United States v. $109,179 in United States Currency, 228 F.3d 1080, 1084 (9th Cir. 2000) (officer had reasonable suspicion to believe that defendant involved in narcotics operation might be armed); United States v. Rivera, 844 F.2d 916, 926 (2d Cir. 1988) ('weapons are . . ."tools of the [narcotics] trade'"); United States v. Barlin, 686 F.2d 81, 87 (2d Cir. 1982) (search of woman's handbag for weapons considered reasonable self-protective `minimal intrusion' when owner of handbag entered apartment at which search warrant was being executed and with individuals known to be dealing in narcotics)." State v. Clark, 255 Conn. 268, 284 (2001).
In the present petition for a writ of habeas corpus, petitioner claims that the board has improperly calculated his parole eligibility date.
DISCUSSION Respondents have first raised as a special defense that this court does not have subject matter jurisdiction over the instant habeas corpus petition. More specifically, respondents assert that this court lacks jurisdiction because there is no unlawful detention or illegal confinement, as well as there is no constitutionally protected liberty interest in parole eligibility. Whether this court has jurisdiction over the instant petition is categorically addressed by the Supreme Court decision in Baker v. Commissioner of Correction, 281 Conn. (2007). In Baker, the Supreme Court explicitly held, after reviewing relevant statutes, regulations and case law, that " . . . parole eligibility under § CT Page 2600 54-125a does not constitute a cognizable liberty interest sufficient to invoke habeas jurisdiction." Consequently, and based on the Supreme Court's decision in Baker, the instant petition must be dismissed for lack of subject matter jurisdiction.Accordingly, judgment of dismissal shall enter based on the lack of subject matter jurisdiction. Petitioner's counsel shall prepare and file the judgment file within thirty days.
PATRICIA A. SWORDS
JUDGE OF THE SUPERIOR COURT
CT Page 2601