Green v. Commissioner of Correction

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COURTNEY GREEN v. COMMISSIONER OF

CORRECTION

(AC 39313)

Alvord, Prescott and Beach, Js.

Syllabus

The petitioner, who had been convicted on a plea of guilty of three counts

of assault in the first degree, sought a writ of habeas corpus, alleging

that he was entitled to certain credits toward his time served under an

administrative directive implemented by the respondent, the Commis-

sioner of Correction, pursuant to the commissioner’s authority under

the statute (§ 18-98e) pertaining to risk reduction earned credits. Specifi-

cally, he alleged that, under an agreement he had signed with staff of

the Department of Correction, he was eligible to be awarded credit at

the rate of five days per month, and that although the commissioner

changed the way risk reduction credits are awarded pursuant to a new

directive, the petitioner should have been ‘‘grandfathered’’ in to receive

credit of five days per month. Pursuant to the rule of practice (§ 23-24)

that provides that the habeas court shall issue the writ unless, inter alia,

it appears that the court lacks jurisdiction, the habeas court disposed

of the petition sua sponte and without a hearing. Thereafter, the court

granted the petition for certification to appeal, and the petitioner

appealed to this court. Held:

1. The petitioner’s claim that the habeas court improperly dismissed his

habeas petition without holding a hearing was unavailing: the petitioner

provided no authority supporting his claim that § 23-24 requires the

habeas court to hold a hearing before declining to issue a writ, and § 23-

24 does not require the habeas court to hold a hearing prior to concluding

that it lacks jurisdiction over the writ, as that rule was intended to

permit a habeas court to conduct a preliminary review of a petition

prior to further adjudication of the writ to weed out those petitions the

adjudication of which would be a waste of precious judicial resources

either because the court lacked jurisdiction over it, the petition was

wholly frivolous, or it sought relief that the court simply could not grant,

and the text of § 23-24 plainly contemplates that the habeas court notify

the petitioner of its actions after it reaches a decision on whether the case

should proceed further and not before taking such actions; moreover,

because requiring the habeas court to appoint counsel for a petitioner

and hold a hearing over this class of petitions would constitute a consid-

erable drain of state resources and frustrate the habeas court’s ability

to focus on those petitions that are worthy of adjudication, this court

declined to graft a hearing requirement onto § 23-24 in the absence of

language mandating such a procedure.

2. The habeas court properly dismissed the habeas petition for lack of

jurisdiction: although the petitioner alleged that he was being deprived

of risk reduction credits to which he was entitled, he did not have a

constitutionally protected liberty interest in risk reduction credits, as

§ 18-98e confers broad discretion on the commissioner to award such

credits, and there was no basis from which the habeas court could have

concluded that the commissioner altered the discretionary nature of

the risk reduction credit program by entering into a binding contract

with the petitioner, who merely alleged a legal conclusion regarding the

existence of a binding contract that was unsupported by any facts alleged

in the petition and failed to append the contract to his petition or to

cite any language from it demonstrating that he was entitled to receive

five days of risk reduction credit per month; moreover, nothing alleged

in the petition supported the petitioner’s assertion, made for the first

time on appeal, that the contract was his offender accountability plan,

and even if the petitioner had properly alleged a breach of contract

claim against the commissioner, it would not have been sufficient to

invoke the habeas court’s jurisdiction because the petitioner, at best,

had a contractual interest in such credits rather than a constitutionally

protected liberty interest, and for the commissioner to have the statutory

authority to enter into an agreement with an inmate that strips away the

commissioner’s discretion in the future administration of risk reduction

credits would contravene the plain language of the statute and the

legislature’s clear intent that the program be discretionary in nature.

Argued April 24—officially released August 7, 2018

Procedural History

Petition for a writ of habeas corpus, brought to the

Superior Court in the judicial district of Tolland, where

the court, Oliver, J., rendered judgment dismissing the

petition, from which the petitioner, on the granting of

certification, appealed to this court. Affirmed.

Nicholas A. Marolda, assigned counsel, with whom

were Temmy Ann Miller, assigned counsel, and, on

the brief, Owen R. Firestone, assigned counsel, for the

appellant (petitioner).

Steven R. Strom, assistant attorney general, with

whom, on the brief, was George Jepsen, attorney gen-

eral, for the appellee (respondent).

Opinion

PRESCOTT, J. The petitioner, Courtney Green,

appeals from the judgment of the habeas court dispos-

ing of his petition for a writ of habeas corpus for lack

of jurisdiction. On appeal, the petitioner claims that the

court improperly disposed of his petition because it (1)

incorrectly concluded that it lacked jurisdiction and

(2) failed to conduct a hearing on that issue prior to

disposing of the petition. We disagree with the claims

of the petitioner and, accordingly, affirm the judgment.

We begin by setting forth the relevant procedural

history. The petitioner currently is serving a sentence

of twenty years of incarceration after pleading guilty

on April 21, 2009, to three counts of assault in the first

degree in violation of General Statutes § 53a-59 (a) (5).

On May 11, 2016, the petitioner, representing himself,

filed a petition for a writ of habeas corpus.

Therein, the petitioner alleged that on or about

August 28, 2011, the respondent, the Commissioner of

Correction (commissioner), implemented1 the Risk

Reduction Earned Credit (RREC) program pursuant to

his authority under General Statutes § 18-98e.2 He stated

that the ‘‘RREC allowed . . . [him] to be awarded time

at the discretion of the commissioner . . . at the rate

of five days per month for participation in programs or

activities [and] good conduct and obedience to depart-

mental rules . . . .’’ Although the petitioner admitted

in his petition that the risk reduction credits were

awarded at the commissioner’s discretion, he also

alleged that he signed an ‘‘agreement with department

staff’’ that entitles him to receive five risk reduction

credits per month.

The petitioner further alleged that on February 1,

2016, the commissioner sent a memo to inmates

informing them that he was changing the way he

awarded risk reduction credits pursuant to a new policy

outlined in Department of Correction, Administrative

Directive 4.2A. The directive provided that, thereafter,

the amount of credits an inmate would be eligible to

receive each month would be based on the inmate’s

risk classification—a level four inmate could earn up

to three days of credit per month, a level two or three

inmate could earn up to four days, and a level one

inmate could earn up to five days. Moreover, a level four

inmate could apply to have reinstated the additional

two credits per month that he was earning previously.

The petitioner further alleged that he continues to

be in compliance with the aforementioned ‘‘agreement’’

and, despite the change in policy, should therefore ‘‘be

grandfathered [in] to receive five days RREC per month,

pursuant to . . . § 18-98e.’’ He thus requested the

habeas court’s intervention and that it ‘‘reinstate the

RREC of five days per month that [he] signed a contract

for . . . .’’

On May 19, 2016, the habeas court, Oliver, J., dis-

posed of the petition sua sponte pursuant to Practice

Book § 23-24 (a) (1)3 because the court lacked subject

matter jurisdiction over it, citing Petaway v. Commis-

sioner of Correction, 160 Conn. App. 727, 125 A.3d 1053

(2015), cert. dismissed, 324 Conn. 912, 153 A.3d 1288

(2017). The court did not hold a hearing prior to reach-

ing this determination.

The petitioner subsequently filed a petition for certifi-

cation to appeal from the court’s dismissal of his peti-

tion on May 31, 2016. On June 1, 2016, the court granted

the petitioner’s certification to appeal, as well as the

petitioner’s application for appointment of counsel. The

petitioner timely filed the present appeal on June 15,

2016.

I

We first address the petitioner’s claim that the habeas

court improperly dismissed his petition because it failed

to first hold a hearing on the issue of whether the court

had jurisdiction.4 The petitioner argues that, pursuant

to this court’s holding in Boyd v. Commissioner of

Correction, 157 Conn. App. 122, 115 A.3d 1123 (2015),

the habeas court cannot dismiss a petition sua sponte

without fair notice to the petitioner and a hearing.

We disagree.

In Boyd, this court concluded that it is an abuse of

discretion for a habeas court to dismiss a petition sua

sponte and without a hearing pursuant to its authority

under Practice Book § 23-29 unless the petition ‘‘alleges

the same grounds for relief sought in a previously

denied petition, and fails to allege new facts or evidence

. . . .’’ Id., 125. In the present case, however, unlike in

Boyd, the court concluded that it lacked jurisdiction

over the petition pursuant to its authority under Prac-

tice Book § 23-24,5 rather than Practice Book § 23-29.

Thus, we must determine whether Practice Book § 23-

24 requires the court to hold a hearing prior to conclud-

ing that it lacks jurisdiction over the habeas petition.

This issue presents a question of law subject to ple-

nary review. See Menard v. Willimantic Waste Paper

Co., 163 Conn. App. 362, 367, 134 A.3d 1248, cert. denied,

321 Conn. 907, 135 A.3d 279 (2016). In determining

whether the court was required to hold a hearing, we

first consider the language of the provision itself. See

Rivers v. New Britain, 288 Conn. 1, 10–11, 950 A.2d 1247

(2008). Practice Book § 23-24 (a) states: ‘‘The judicial

authority shall promptly review any petition for a writ

of habeas corpus to determine whether the writ should

issue. The judicial authority shall issue the writ unless

it appears that: (1) the court lacks jurisdiction; (2) the

petition is wholly frivolous on its face; or (3) the relief

sought is not available.’’ Practice Book § 23-24 (b) pro-

vides: ‘‘The judicial authority shall notify the petitioner

if it declines to issue the writ pursuant to this rule.’’

Thus, there is nothing in the language of Practice Book

§ 23-24 to require the court to hold a hearing before

disposing of the petition for lack of jurisdiction.

In our view, Practice Book § 23-24 is intended to

permit a habeas court to conduct a preliminary review

of a petition prior to further adjudication of the writ

to weed out those petitions the adjudication of which

would be a waste of precious judicial resources either

because the court lacks jurisdiction over it, the petition

is wholly frivolous, or it seeks relief that the court

simply cannot grant. We reach this conclusion for two

reasons. First, the language of the rule plainly contem-

plates that the habeas court notify the petitioner of its

actions after it reaches a decision on whether the case

should proceed further. See Practice Book § 23-24 (b).

If the rule were intended to impose a hearing require-

ment, the drafters would undoubtedly have inserted

language requiring that the petitioner be notified before

the court took such actions.

Second, requiring the habeas court to appoint counsel

for a petitioner and hold a hearing over this class of

petitions would constitute a considerable drain of state

resources and frustrate the habeas court’s ability to

focus on those petitions that are worthy of adjudication.

It is indisputable that the high volume of habeas peti-

tions has been an ongoing source of concern for poli-

cymakers and has prompted legislative reforms in

recent years. See Public Acts 2012, No. 12-115; 55 H.R.

Proc., Pt. 5, 2012 Sess., pp. 1587–91, remarks of Repre-

sentative Gerald M. Fox III; see also 55 H.R. Proc.,

supra, p. 1591 (‘‘one of the things that I always thought

of when I heard about . . . [habeas corpus reform] is

that all parties felt that there was a way to do this better

and that there’s a way to make sure that we can focus

on those claims . . . that do have merit, that are poten-

tially legitimate and weed out those claims that seem

to be bogging down the process and using up a lot of

resources where the end result, in all likelihood, would

be nothing would come of it’’). We therefore decline to

graft a hearing requirement onto Practice Book § 23-24

in the absence of language mandating such a pro-

cedure.6

The petitioner has presented no authority on appeal,

from either this court or our Supreme Court, interpre-

ting Practice Book § 23-24 as requiring the habeas court

to hold a hearing before declining to issue the writ—

nor has our review revealed any such authority. In light

of the lack of authority to the contrary and the apparent

policy reason underlying Practice Book § 23-24, and

because the language of Practice Book § 23-24 does not

explicitly require the court to hold a hearing before

exercising its authority pursuant to that provision, we

conclude that the petitioner was not entitled to a hear-

ing in the present case.

II

Next, we address the petitioner’s claim that the

habeas court improperly dismissed his petition because

it incorrectly concluded that it did not have jurisdiction.

The petitioner argues that although the award of risk

reduction credits ordinarily does not implicate an

inmate’s liberty interest because of the discretionary

nature of the RREC program, he has a contractual right

to such credits in this case that vitiates the discretionary

nature of the program. He further argues that, because

the commissioner’s breach of this contract ‘‘bears

directly on the duration of his sentence,’’ he has invoked

the jurisdiction of the habeas court. For the reasons

set forth herein, we conclude that the court properly

disposed of the petition because it lacked jurisdiction

over it.

We begin with the applicable standard of review and

relevant legal principles. ‘‘Our Supreme Court has long

held that because [a] determination regarding a trial

court’s subject matter jurisdiction is a question of law,

our review is plenary. . . . Moreover, [i]t is a funda-

mental rule that a court may raise and review the issue

of subject matter jurisdiction at any time. . . . Subject

matter jurisdiction involves the authority of the court

to adjudicate the type of controversy presented by the

action before it. . . . [A] court lacks discretion to con-

sider the merits of a case over which it is without

jurisdiction . . . . The subject matter jurisdiction

requirement may not be waived by any party, and also

may be raised by a party, or by the court sua sponte,

at any stage of the proceedings, including on appeal.’’

(Internal quotation marks omitted.) Pentland v. Com-

missioner of Correction, 176 Conn. App. 779, 784–85,

169 A.3d 851, cert. denied, 327 Conn. 978, 174 A.3d

800 (2017).

With respect to the habeas court’s jurisdiction, ‘‘[t]he

scope of relief available through a petition for habeas

corpus is limited. In order to invoke the trial court’s

subject matter jurisdiction in a habeas action, a peti-

tioner must allege that he is illegally confined or has

been deprived of his liberty.’’ (Internal quotation marks

omitted.) Joyce v. Commissioner of Correction, 129

Conn. App. 37, 41, 19 A.3d 204 (2011). In other words,

‘‘a petitioner must allege an interest sufficient to give

rise to habeas relief.’’ (Internal quotation marks omit-

ted.) Perez v. Commissioner of Correction, 326 Conn.

357, 368, 163 A.3d 597 (2017). ‘‘In order to . . . qualify

as a constitutionally protected liberty [interest] . . .

the interest must be one that is assured either by statute,

judicial decree, or regulation.’’ (Emphasis omitted;

internal quotation marks omitted.) Fuller v. Commis-

sioner of Correction, 144 Conn. App. 375, 378, 71 A.3d

689, cert. denied, 310 Conn. 946, 80 A.3d 907 (2013).

We turn now to the petitioner’s claim. At the outset,

we note that because this appeal arises from the habeas

court’s ruling declining to issue the writ pursuant to

Practice Book § 23-24, which is akin to dismissal of the

petition ‘‘on the basis that the court lacked jurisdiction,

we take the facts to be those alleged in the petition,

including those facts necessarily implied from the alle-

gations, construing them in favor of the petitioner for

purposes of deciding whether the court has subject

matter jurisdiction.’’ (Internal quotation marks omit-

ted.) Vitale v. Commissioner of Correction, 178 Conn.

App. 844, 850, 178 A.3d 418 (2017), cert. denied, 328

Conn. 923, 181 A.3d 566 (2018); see also Pentland v.

Commissioner of Correction, supra, 176 Conn. App.

782 (‘‘[i]n deciding whether to sua sponte dismiss the

petitioner’s habeas petition, the court was required . . .

to take the facts to be those alleged in the petition’’).

The petitioner alleged that he is being deprived of risk

reduction credits to which he is entitled, and thereby

is being forced to serve a sentence of longer duration. In

order to determine whether the court had jurisdiction,

therefore, we must decide whether the petitioner has

a constitutionally protected liberty interest in the risk

reduction credits.

In his petition, the petitioner identified § 18-98e as

the source of the commissioner’s authority to imple-

ment the RREC program. Section 18-98e (a) states that

‘‘any person sentenced to a term of imprisonment for

a crime committed on or after October 1, 1994 . . .

may be eligible to earn risk reduction credit toward a

reduction of such person’s sentence, in an amount not

to exceed five days per month, at the discretion of the

Commissioner of Correction . . . .’’ (Emphasis

added.) Pursuant to § 18-98e, then, an inmate is not

guaranteed a certain amount of risk reduction credits

per month—or, in fact, any credits at all. Rather, the

statute provides only that an inmate may be eligible to

receive credits if the commissioner so chooses.

The fact that the commissioner is vested with such

broad discretion in implementing the RREC program

is significant. Our appellate courts have concluded, con-

sistently, that an inmate does not have a constitutionally

protected liberty interest in certain benefits—such as

good time credits, risk reduction credits, and early

parole consideration—if the statutory scheme pursuant

to which the commissioner is authorized to award those

benefits is discretionary in nature.

For example, in Abed v. Commissioner of Correction,

43 Conn. App. 176, 682 A.2d 558, cert. denied, 239 Conn.

937, 684 A.2d 707 (1996), the petitioner filed a habeas

petition challenging ‘‘the prospective denial of statutory

good time credits.’’ Id., 178. Prior to the filing of the

petition, the commissioner administered a policy pursu-

ant to which an inmate who was classified as a ‘‘safety

threat’’ was precluded from earning good time credits.

Id. The commissioner sought dismissal of the petition

on the ground that the court lacked jurisdiction because

the petitioner failed to raise a legally cognizable claim.

Id., 178–79. The habeas court determined that the peti-

tioner ‘‘had a justifiable expectation of earning good

time credits based on the plain reading of’’ General

Statutes § 18-7a (c), but disposed of the petition on

other grounds. (Internal quotation marks omitted.)

Id., 179.

On appeal in Abed, this court considered whether

‘‘the petitioner ha[d] alleged a liberty interest in good

time credits he ha[d] not yet earned so as to raise a

legally cognizable claim in his petition.’’ Id., 180. This

court reasoned that the petitioner’s claim that the

habeas court had jurisdiction to consider the merits of

his petition ‘‘succeed[ed] only if the awarding of good

time in Connecticut is mandatory.’’ Id. The plain lan-

guage of § 18-7a (c), however, provided that ‘‘the com-

missioner may award good time credits at his

discretion.’’ (Emphases altered.) Id. We therefore con-

cluded that ‘‘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.’’ Id., 180–81; see

also Beasley v. Commissioner of Correction, 50 Conn.

App. 421, 434, 435, 718 A.2d 487 (1998) (directive that

precluded inmate in administrative segregation from

earning statutory good time credits was proper use of

commissioner’s authority; § 18-7a [c] allowed commis-

sioner to award credits at his discretion, so ‘‘[t]o con-

clude otherwise would render the discretionary nature

of § 18-7a [c] superfluous’’), aff’d, 249 Conn. 499, 733

A.2d 822 (1999).

Our Supreme Court considered a similar claim in

Perez v. Commissioner of Correction, supra, 326 Conn.

357. In that case, the petitioner filed a petition for a writ

of habeas corpus challenging a statutory amendment

to General Statutes § 54-125a that ‘‘eliminated the lan-

guage [of the earlier version of that statute] that permit-

ted [an inmate’s] parole eligibility date to be advanced

by the application of any earned risk reduction credit.’’

Id., 365. The habeas court dismissed the petition, finding

that it lacked subject matter jurisdiction. Id., 366. On

appeal, our Supreme Court concluded that the basis

for the court’s dismissal was improper but that it never-

theless lacked jurisdiction to consider the merits of the

petition for other reasons. Id., 368, 374.

Specifically, our Supreme Court determined in Perez

that the habeas court lacked jurisdiction because the

petitioner did not have a liberty interest in early parole

eligibility or risk reduction credits. Id., 370–73. It noted

that ‘‘parole eligibility under § 54-125a does not consti-

tute a cognizable liberty interest sufficient to invoke

habeas jurisdiction. . . . [T]he decision to grant parole

is entirely within the discretion of the [Board of Par-

dons and Paroles].’’ (Citation omitted; emphasis added;

internal quotation marks omitted.) Id., 371. It further

noted that, ‘‘[w]ith respect to the risk reduction credit

previously granted to the petitioner, he overlooks the

fact that such credit is not vested in him because it

could be rescinded by the [commissioner] at any time

in the [commissioner’s] discretion for good cause dur-

ing the petitioner’s period of incarceration. The peti-

tioner, in his brief, disputes that the award or revocation

of risk reduction credit is wholly discretionary . . . .

The petitioner’s position, however, is manifestly contra-

dicted by the plain language of § 18-98e (a) . . . .

Although the legislature has provided guidance to the

[commissioner] as to how to exercise his discretion,

the [commissioner] still has broad discretion to award

or revoke risk reduction credit. As such, the statute

does not support an expectation that an inmate will

automatically earn risk reduction credit or will neces-

sarily retain such credit once it has been awarded.’’

(Internal quotation marks omitted.) Id., 372; see also

Petaway v. Commissioner of Correction, supra, 160

Conn. App. 734 (petitioner had no liberty interest in

early parole eligibility because statute gave commis-

sioner discretion in granting inmates parole).

Thus, as precedent from this court and our Supreme

Court makes clear, the petitioner in the present case

does not have a liberty interest in risk reduction credits

because, as the petitioner himself admitted in his peti-

tion, the commissioner has broad discretion to imple-

ment the RREC program. The petitioner fails on appeal

to set forth any persuasive authority that rebuts this

conclusion.7 Instead, his sole argument is that the com-

missioner somehow altered the discretionary nature of

the RREC program by entering into a binding contract

with the petitioner, pursuant to which he is entitled to

receive five days of risk reduction credit per month.

We disagree.

To begin, we note that ‘‘[i]t is the established policy

of the Connecticut courts to be solicitous of [self-repre-

sented] litigants and, when it does not interfere with

the rights of the other parties, to construe the rules

of practice liberally in favor of the [self-represented]

party.’’ (Internal quotation marks omitted.) Vitale v.

Commissioner of Correction, supra, 178 Conn. App.

850. The petition for a writ of habeas corpus, however,

is still ‘‘essentially a pleading and, as such, it should

conform generally to a complaint in a civil action. . . .

The principle that a plaintiff may rely only upon what

he has alleged is basic. . . . It is fundamental in our

law that the right of a plaintiff to recover is limited to

the allegations of his complaint. . . . [T]he habeas

court . . . does not have the discretion to look beyond

the pleadings . . . .’’ (Internal quotation marks omit-

ted.) Id., 851. Moreover, although the habeas court must

accept all well pleaded facts as true, it ‘‘need not admit

legal conclusions or the truth or accuracy of opinions

stated in the pleadings.’’ (Internal quotation marks omit-

ted.) Coleman v. Commissioner of Correction, 137

Conn. App. 51, 56, 46 A.3d 1050 (2012).

The petitioner’s assertion that the agreement he was

referring to in his petition constitutes a binding contract

is a legal conclusion unsupported by any facts alleged in

the petition. The petitioner failed to identify the alleged

contract, attach it to the petition for the court’s consid-

eration, or cite any language from it that would demon-

strate that he is entitled to receive five days of risk

reduction credit per month. Thus, there was no basis

from which the court could have concluded that the

agreement was a binding contract.

The petitioner argues for the first time on appeal

that the agreement he referenced in his petition is his

Offender Accountability Plan (OAP) and that his OAP

is a contract.8 Again, nothing in the petition supports

this assertion—the petitioner never once referenced

his OAP or attached it to the petition for the court’s

consideration. Likewise, he has failed to set forth any

authority on appeal that would support the conclusion

that an OAP is a contract.

Moreover, even if the petitioner had properly alleged

a breach of contract claim against the commissioner,

it would not have been enough to invoke the habeas

court’s jurisdiction because the petitioner, at best, has

a contractual interest in such credits rather than a con-

stitutionally protected liberty interest. See Perez v.

Commissioner of Correction, supra, 326 Conn. 372 (The

commissioner ‘‘has broad discretion to award or revoke

risk reduction credit. As such, the statute does not

support an expectation that an inmate will automati-

cally earn risk reduction credit or will necessarily retain

such credit once it has been awarded.’’).

Finally, we doubt that the commissioner has the stat-

utory authority to enter into an agreement with an

inmate that strips the commissioner of his discretion

in the future administration of the RREC program. Such

action would contravene the plain language of the stat-

ute and frustrate the legislature’s clear intent that the

RREC program be discretionary in nature. See Beasley

v. Commissioner of Correction, supra, 50 Conn. App.

435. Thus, for all the reasons stated herein, we conclude

that the court properly disposed of the habeas petition

for lack of jurisdiction.9

The judgment is affirmed.

In this opinion the other judges concurred.

1

The petitioner did not indicate in his petition the manner in which

the RREC program was implemented. He appears to allege that it was

implemented through Administrative Directive 4.2 (A) (3), although he did

not attach any such directive either to his petition or brief on appeal.

2

Although § 18-98e was the subject of technical amendments in 2018; see

Public Acts 2018, No. 18-155, § 3; those amendments have no bearing on

the merits of this appeal. For purposes of clarity, we refer to the current

revision of the statute.

3

Practice Book § 23-24 is titled ‘‘Preliminary Consideration of Judicial

Authority’’ and provides in subsection (a) that the habeas court ‘‘shall

promptly review any petition for a writ of habeas corpus to determine

whether the writ shall issue. The judicial authority shall issue the writ unless

it appears that: (1) the court lacks jurisdiction; (2) the petition is wholly

frivolous on its face; or (3) the relief sought is not available.’’ If the court

declines to issue the writ, it must notify the petitioner. Practice Book § 23-

24 (b).

Although the habeas court stated in its brief order that it was dismissing

the petition, it explicitly relied upon Practice Book § 23-24 in doing so.

Because that provision authorizes the habeas court to decline to issue the

writ for lack of jurisdiction, we construe the court’s disposition of the

petition to be a decision to decline to ‘‘issue the writ.’’ The meaning of that

phrase can be ascertained by reference to historical practices regarding the

service and issuance of writs of habeas corpus in our state. At one point

in time, a habeas petition was filed with the court prior to it being served

on the commissioner. General Statutes (1918 Rev.) § 6033. The court would

then determine whether to issue the writ. General Statutes (1918 Rev.)

§ 6033. It was only if the court decided to issue the writ that the petition

would be served on the commissioner by an officer of the court and a

subsequent habeas trial be held. General Statutes (1918 Rev.) § 6033; see

also Adamsen v. Adamsen, 151 Conn. 172, 176, 195 A.2d 418 (1963) (‘‘Our

statute requires that the application for a writ of habeas corpus shall be

verified by the affidavit of the applicant for the writ alleging that he verily

believes the person on whose account such writ is sought is illegally confined

or deprived of his liberty. . . . The only purpose served by the application

is to secure the issuance of the writ in the discretion of the court. The issues

on which any subsequent trial is held are framed by the return and the

pleadings subsequent thereto.’’ [Citation omitted; internal quotation marks

omitted.]). Put differently, ‘‘[t]he issuance of the writ did not determine the

validity of the [petition] . . . . On the contrary, it served only to bring the

parties before the court in order that the issue of the alleged illegal restraint

might be solved.’’ Adamsen v. Adamsen, supra, 177.

4

For clarity and ease of analysis, we address the petitioner’s claims in a

different order than they are set forth in his brief. See Lebron v. Commis-

sioner of Correction, 178 Conn. App. 299, 311 n.8, 175 A.3d 46 (2017), cert.

denied, 328 Conn. 913, 179 A.3d 779 (2018).

5

The petitioner argues that Practice Book § 23-24 does not allow the

habeas court to enter a judgment of dismissal. It is true that § 23-24 authorizes

the court to ‘‘decline to issue the writ,’’ rather than dismiss the petition, if

it concludes, among other things, that it lacks jurisdiction. The court’s

decision to refrain from issuing the writ, however, is the functional equivalent

of a dismissal of the petition. Thus, we disagree with the petitioner that the

court’s action was improper. See footnote 3 of this opinion.

6

Although we conclude that the habeas court was not required to hold

a hearing before disposing of the petition in the present case, we urge the

habeas court to exercise this authority sparingly and limit its use to those

instances in which it is plain and obvious that the writ should not issue

under Practice Book § 23-24.

7

The petitioner relies on Santobello v. New York, 404 U.S. 257, 92 S. Ct.

495, 30 L. Ed. 427 (1971), for the proposition that the state must honor a

contract that it enters into with an inmate. We disagree that Santobello

compels such a determination in the present case. The United States

Supreme Court in Santobello considered a prosecutor’s obligation to honor

a plea agreement with a criminal defendant, and the decision reached by

the court depended largely on the unique responsibilities of a prosecutor

and the fairness considerations relevant to that stage of a criminal proceed-

ing. Id., 257–61. The present case, by contrast, presents a completely different

procedural posture. Moreover, neither concern considered by the court in

Santobello dictates our resolution of the petitioner’s claim. Thus, Santobello

is inapposite.

8

The petitioner failed to include his OAP in his appendix to his appellate

brief. The commissioner, however, included a blank OAP in his appendix.

Our review of the blank OAP reveals that it is a form, signed by an inmate,

that designates the specific programs that the inmate should participate in

during his or her period of incarceration in order to avoid negatively

impacting the inmate’s earning of risk reduction credits, chances of obtaining

supervised community release, or being granted parole. Although it notes

that ‘‘[f]ailure to comply with the OAP recommendations . . . shall nega-

tively impact your earning of Risk Reduction Earned Credit,’’ it does not

specify that the inmate will otherwise receive five days of risk reduction

credit per month.

9

The petitioner also argues that Petaway v. Commissioner of Correction,

supra, 160 Conn. App. 727, which the court cited in its short judgment of

dismissal, does not support the court’s conclusion that it lacked jurisdiction.

It is true that the resolution of the appeal in Petaway turned on the fact

that the petitioner did not have a liberty interest in parole eligibility, rather

than risk reduction credits. Id., 734. The court in Petaway, however, con-

cluded that the reason the petitioner did not have a liberty interest is that

the relevant statutory scheme gave the commissioner discretion to determine

parole eligibility. Id. Likewise, § 18-98e gives the commissioner discretion

to award risk reduction credits, which dictates that the petitioner in the

present case does not have a liberty interest in the credits. Petaway therefore

supports the conclusion that the court lacked jurisdiction to consider the

merits of the petition.