Opinion
No. CV 06 4001258S
May 30, 2008
MEMORANDUM OF DECISION
The petitioner, Leroy Harris, filed the present petition for a writ of habeas corpus on August 25, 2006, challenging the calculation of his parole eligibility date by the Department of Corrections. The respondent, by amended return dated February 7, 2008, denies that his parole eligibility date is incorrect.
FACTUAL BACKGROUND
The petitioner was arrested on September 18, 1984, and charged with three counts of robbery in the first degree in violation of General Statutes §§ 53a-134(a)(4) and 53a-8 and one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a). After fleeing custody, the petitioner was reapprehended in 1988, and was tried and convicted on all four counts on April 11, 1989. Thereafter, he was sentenced to twenty years on each count, consecutively to each other, for a total of eighty years incarceration. The sentence was originally to be served consecutively to his prior sentence on the assault and escape charges, but was later modified to be served concurrently with that sentence. See State v. Harris, Superior Court, judicial district of New Haven, Docket No. CR6-234689 (November 7, 1991, Purtill, Norko, Stanley Js.) He appealed his convictions, which were upheld by the Appellate Court. State v. Harris, 22 Conn.App. 329, 577 A.2d 1077 (1990).
The petitioner pleaded guilty on a separate information to one count of assault on a corrections officer and onecount of escape, and was sentenced to nineteen years incarceration on March 31, 1989.
The petitioner then sought a writ of habeas corpus based on ineffective assistance of both trial and appellate counsel, which was denied by the habeas court; this decision was affirmed on appeal. See Harris v. Commissioner of Correction, 40 Conn.App. 250, 671 A.2d 359 (1996). He filed an amended petition in the Superior Court that was dismissed; Harris v. Commissioner of Correction, Superior Court, judicial district of New Haven, Docket No. CV 00 0439473 (August 22, 2003, Hadden, J.); and dismissed on appeal, Harris v. Commissioner of Correction, 86 Conn.App. 903 (2004), cert. denied, 272 Conn. 919, CT Page 9231 866 A.2d 1286 (2005). He then filed yet another habeas petition, which was dismissed by the court, Fuger, J. The decision was affirmed on appeal, and the Supreme Court denied certification to appeal. See Harris v. Commissioner of Correction, 97 Conn.App. 382, 904 A.2d 280, cert. denied, 280 Conn. 926, (2006).
On October 19, 2006, the petitioner filed the present amended petition alleging that his conviction was illegal due to prosecutorial misconduct and the trial court's bias against the petitioner. He also alleged that his sentence calculation was improper and that he should be eligible for parole after serving 35% of his sentence rather than 50%. The respondent filed a return on January 7, 2008 and an amended return on February 7, 2008 in which it denied that the petitioner is entitled to supervised home release (SHR) and asserts that the petitioner is not entitled to consideration for parole until he has served at least 50% of his sentence. At the habeas trial, the petitioner prosecuted only the claim regarding his sentence calculation. Trial was held on May 1, 2008; testifying were the petitioner and George Camp, a counselor and supervisor involved with the supervised home release program at the department of corrections. At all times during the current proceedings the petitioner has represented himself, pro se.
The remainder of the claims raised in the petition are deemed abandoned. Error! Main Document OnIy. Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007).
The petitioner claims that at the time he was arrested, he was eligible for the now-defunct supervised home release program, under which prisoners were permitted to be conditionally released after serving a portion of their sentences at times as low as 10 to 35%. Therefore, he contends, he should now be eligible for parole after serving 35% of his sentence rather than the 50% provided by General Statutes § 54-125a. The respondent counters that the supervised home release program was, in 1990, to be abolished and phased out over the next three years. Subsequent to that date, the 50% rule established by § 54-125a was applied even to inmates who had been sentenced prior to the abolition of community release.
DISCUSSION
Section 54-125a provides in relevant part: "(a) A person convicted of one or more crimes who is incarcerated on or after October 1, 1990, who received a definite sentence or aggregate sentence of more than two years, and who has been confined under such sentence or sentences for not less than one-half of the aggregate sentence or one-half of the most recent sentence imposed by the court, whichever is greater, may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which the person is confined, if (1) it appears from all available information, including any reports from the Commissioner of Correction that the panel may require, that there is reasonable probability that such inmate will live and remain at liberty without violating the law, and (2) such release is not incompatible with the welfare of society. At the discretion of the panel, and under the terms and conditions as may be prescribed by the panel including requiring the parolee to submit personal reports, the parolee shall be allowed to return to the parolee's home or to reside in a residential community center, or to go elsewhere. The parolee shall, while on parole, remain under the jurisdiction of the board until the expiration of the maximum term or terms for which the parolee was sentenced . . ." This section was enacted in 1990 by Public Act 90-261, Sec. 5.
Prior to Public Act 90-261, prisoners were eligible for "supervised home release" under General Statutes § 18-100(e), which provided in relevant part that: "the commissioner of correction . . . may transfer any person from one correctional institution to another or to any public or private nonprofit halfway house, group home or mental health facility, or to an approved community residence with the concurrence of the warden, superintendent or person in charge of the facility to which said person is being transferred. Any inmate so transferred shall remain under the jurisdiction of said commissioner. Any inmate transferred to an approved community residence shall also be subject to specifically prescribed supervision by personnel of the department of correction until his definite or indeterminate sentence is completed." General Statutes (Rev. to 1989) § 18-100(e). In 1990, this section was amended, and General Statutes § 18-100b was amended to provide that "(b) except as provided in subsection (d) of this section, the commissioner of correction shall not release from confinement to an approved community residence pursuant to subsection (e) of section 18-100, as amended by section 1 of public act 89-383, any prisoner who is convicted and incarcerated for an offense which occurs on or after October 1, 1991, unless such prisoner has served at least twenty-five per cent of the definite sentence imposed. (c) except as provided in subsection (d) of this section, the commissioner of correction shall not release from confinement to an approved community residence pursuant to subsection (e) of section 18-100, as amended by section 1 of public act 89-383, any prisoner who is convicted and incarcerated for an offense which occurs on or after October 1, 1992, unless such prisoner has served at least forty per cent of the definite sentence imposed . . . (e) notwithstanding any provision of the General Statutes, the Commissioner of Correction shall not release from confinement any prisoner to an approved community residence after June 30, 1993." General Statutes (Rev. to 1990) § 18-100b.
In short, after October 1, 1991, newly sentenced prisoners with terms over one year were only eligible for release to a community residence after completing 25% of their sentence, which increased to forty percent in 1992, and after 1993, newly sentenced prisoners with sentences over two years were no longer eligible for community residence release at all. Although the provisions of the amended § 18-100b did not expressly apply to prisoners sentenced before 1990, the department of correction began applying the parole provisions of newly-enacted § 54-125a for prisoners with determinate sentences of over a year to those sentenced before 1990, a practice upheld by the Superior Court. E.g., Schildge v. Commissioner of Correction, Superior Court, judicial district of New London, Docket No. 516136 (July 31, 1991, Axelrod, J.) [4 Conn. L. Rptr. 352]; cf. Wylie v. Warden, 33 Conn.App. 902, 632 A.2d 1133 (1993) (petitioner violated § 21a-278 before but was sentenced after Public Act 89-383 amended § 18-100b to prohibit community release for offenders of § 21a-278).
But see Connelly v. Lantz, United States District Court, district of Connecticut, Civil Action No. 3:00-CV-720 (November 5, 2007), criticizing the Appellate Court's holding in Wylie.
In 1995, however, § 18-100b was repealed; Public Acts 1995, No. 95-152, Sec. 2; and in 2004, § 18-100(e) was amended to revive the option of community release. Public Acts 2004, No. 04-234, Sec. 30. The current statute, effective June 8, 2004, provides: "If the Commissioner of Correction deems that the purposes of this section may thus be more effectively carried out, the commissioner may transfer any person from one correctional institution to another or to any public or private nonprofit halfway house, group home or mental health facility or, after satisfactory participation in a residential program, to any approved community or private residence. Any inmate so transferred shall remain under the jurisdiction of said commissioner." (Emphasis added.) General Statutes § 18-100(e).
Section 18-100 deals with work-and education-release programs; subsection (e), permitting community residence release, is to be employed "[i]f the Commissioner of Correction deems that the purposes of this section may thus be more effectively carried out . . ." The history of the statute throughout the case law makes it unclear whether the availability of community residence release somehow diverged from this overall scheme in response to the problem of overcrowding in prisons, allowing the release of prisoners to SHR regardless of their participation in work-or education-release programs. But see Oliphant v. Wezner, United States District Court, District of Connecticut, Civil Docket No. 3:99CV01894 (April 27, 2005) ("in their memorandum in support of the instant motion the defendants cite to Conn. Gen. Stat. § 18-100(e) for the proposition that the Commissioner may transfer prisoners at his discretion, thereby precluding the creation of a protectable liberty interest to the plaintiff. But that statute is inapposite because it addresses the narrow category of transfers of inmates participating in work-release and education-release programs"). The petitioner has not alleged that he would be eligible for a work or educational release program.
At trial, however, the petitioner claimed that he is not requesting that he be considered for supervised home release; rather, he alleged that he should be eligible for parole after completing only 35% of his sentence. This claim is entirely without merit. Courts have upheld the refusal of consideration for community release even to inmates sentenced before 1990. See, e.g., Schildge v. Commissioner of Correction, supra, Docket No. 516136 (petitioner convicted and sentenced for sale of narcotics on April 7, 1989, before Public Act 89-383 prohibited community release for these offenders). Never has there been any authority for the Department of Correction to authorize parole for an inmate in the petitioner's position, with a definite sentence of eighty years, well beyond the two years provided by § 54-125a, after serving only 35% of his sentence.
It is without question that a habeas court cannot grant relief to a petitioner seeking eligibility for community release. "[W]hether SHR implicates a statutorily created liberty interest . . . was decided in the negative by the District Court in the federal habeas sequel to Asherman, Asherman v. Meachum, 739 F.Sup. 718 (D. Conn. 1990), [aff'd, 923 F.2d 845 (2d cir. 1990), vacated on other grounds, 957 F.2d 978 (2d. cir. 1992).] The District Court's reasoning, focusing on the statutory discretion afforded to the department in SHR revocation, is equally persuasive in connection with the statutory discretion afforded to the department in granting SHR. It was on the ground of this discretion that Smith v. Liburdi, 26 Conn.App. 254, 258-59, [ 221 Conn. 910, 602 A.2d 9] (1991), held that there is no constitutional or statutory entitlement to SHR sufficient to involve due process." Miller v. Warden, Superior Court, judicial district of Tolland at Somers, Docket No. CV 91 1268 S (November 18, 1992, Fineberg, J.) [7 Conn. L. Rptr. 609]; see also Carrero v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 91 0001234 (January 3, 1992, Scheinblum, J.T.R.) [5 Conn. L. Rptr. 425].
See also Guida v. Commissioner of Correction, 221 Conn. 402, 604 A.2d 356 (1992), wherein the petitioner committed the crimes before the community residence statute was amended to preclude application to inmates convicted of first degree assault but was sentenced afterwards, and held to be ineligible. While the present case differs in that the petitioner both committed the crimes and was sentenced before the change in the statute, the concerns that typically arise in such circumstances about the petitioner pleading guilty in the expectation of a shortened sentence are vitiated by the fact that the petitioner here decided to go to trial.
The availability of either community release or parole to an inmate is completely discretionary. "[T]he decision to grant parole is entirely within the discretion of the board . . . [T]here is no statutory requirement that the panel [of the board] actually consider the eligibility of any inmate for parole, the statute does not vest an inmate with the right to demand parole, and there is no statutory provision which even permits an inmate to apply for parole . . . [E]ven if the inmate has complied with the minimum requirements of [the parole statute], the statute does not require the board to determine his eligibility for parole." (Internal quotation marks omitted.) Baker v. Commissioner of Correction, 281 Conn. 241, 257, 914 A.2d 1034 (2007); see also Schildge v. Commissioner of Correction, supra, Docket No. 516136 ("The DOC informs inmates that there are no legitimate expectations that an inmate may be classified to supervised home release"). While an inmate who has been granted parole or supervised home release status may have acquired some degree of state created liberty interest in maintaining that right; see Reid v. Commissioner of Correction, 93 Conn.App. 95, 104, 887 A.2d 937, cert. denied, 278 Conn. 921, 901 A.2d 1221 (2006); there is no inviolate right to parole or community release under any circumstances before such status is conferred. Cf. Vicenzo v. Warden, 26 Conn.App. 132, 599 A.2d 31 (1991), where the petitioner challenged the denial of his parole application because the parole board had not adopted procedures in accordance with the Uniform Administrative Procedure Act. The court held that he was unable to challenge this decision in a habeas petition because "[u]nless a liberty interest in parole exists, the procedures followed in the parole determination are not required to comport with standards of fundamental fairness." Id., 144.
The petitioner in Vicenzo filed a subsequent action based on the Uniform Administrative Procedure Act. The trial court, treating the action as a habeas petition, dismissed the action, but the Appellate Court reversed on the ground that the plaintiff was not seeking habeas relief, but a declaratory judgment. It did not reach the merits of the petitioner's claim, and did not overrule its original decision; noting, in fact, that it "agree[d] with the court that the plaintiff did not possess a liberty interest in parole release that would allow him to challenge the conditions of his parole in a habeas corpus action." Vicenzo v. Warden, 64 Conn.App. 258, 259, 779 A.2d 843 (2001).
George Camp, a witness for the respondent, testified that the petitioner is "not close to being eligible" for supervised home release and would not be eligible for parole until April 11, 2029, after serving 50% of his eighty-year sentence. The only evidence the petitioner could muster in support of his interpretation of the statutes was his own opinion. This court sees no legal basis for the petitioner's claim to a right to be eligible for parole after serving 35% of his sentence. Therefore, the petition for a writ of habeas corpus is DENIED. Should the petitioner decide to pursue an appeal, the clerk shall submit a judgment file to the court within thirty days.