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LUIS ARIEL RIVERA v. COMMISSIONER
OF CORRECTION
(AC 38837)
Alvord, Moll and Eveleigh, Js.
Syllabus
The petitioner, who had been convicted, on a guilty plea, in 2009 of the
crime of manslaughter in the first degree in violation of statute (§ 53a-
55), sought a writ of habeas corpus, alleging that the application to him
of a 2015 amendment to the earned risk reduction credit statute (§ 18-
98e) violated the constitutional prohibition against ex post facto laws
and resulted in discrimination. In 2011, the legislature enacted legisla-
tion, later codified in § 18-98e, that permitted certain classes of inmates,
who were not expressly disqualified, to earn credits toward a reduction
of their sentences at the discretion of the Commissioner of Correction,
who also was conferred with the discretion to revoke the credits for
good cause. Pursuant to the 2011 legislation, the petitioner became
eligible to earn risk reduction credit. The 2015 amendment expanded
the list of persons ineligible to earn risk reduction credit, including
persons who had been sentenced for violating § 53a-55, and, as a result,
the petitioner was no longer eligible to earn risk reduction credit toward
the reduction of his sentence. The habeas court, sua sponte, dismissed
the habeas petition on the ground that it lacked subject matter jurisdic-
tion. Thereafter, the habeas court granted the petition for certification
to appeal, and the petitioner appealed to this court. Subsequently, in
accordance with this court’s order, the habeas court issued an articula-
tion of its decision. Held:
1. The habeas court properly dismissed the habeas petition on the ground
that it lacked subject matter jurisdiction over the petitioner’s ex post
facto claim; the petitioner did not have a constitutionally protected
liberty interest in earning future risk reduction credit and there was no
colorable basis for his ex post facto claim, as the 2015 amendment
simply returned the petitioner to the position that he was in at the time
he committed the subject offense, the petitioner’s interest in earned
risk reduction credit, as alleged, was not assured by § 18-98e, which
confers broad discretion on the commissioner to award such credits,
and, therefore, the petitioner failed to allege a cognizable liberty interest
sufficient to implicate the subject matter jurisdiction of the habeas court
over his ex post facto claim.
2. This court having concluded that the habeas court lacked subject matter
jurisdiction over the petitioner’s claims, it was not necessary to address
his remaining claim that the habeas court’s articulation constituted an
improper and untimely modification of its judgment.
Argued September 13—officially released December 11, 2018
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland and
tried to the court, Oliver, J.; judgment dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to this court; thereafter, the
court, Oliver, J., issued an articulation of its deci-
sion. Affirmed.
Temmy Ann Miller, assigned counsel, for the appel-
lant (petitioner).
Steven R. Strom, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (respondent).
Opinion
MOLL, J. The petitioner, Luis Ariel Rivera, appeals,
following the granting of his petition for certification
to appeal, from the judgment of the habeas court dis-
missing his petition for a writ of habeas corpus for lack
of jurisdiction pursuant to Practice Book § 23-29 (1).1
On appeal, the petitioner claims that (1) the habeas
court’s articulation constitutes an improper modifica-
tion of its original judgment and must be stricken from
the record, and (2) the habeas court improperly dis-
missed his petition for lack of jurisdiction. We conclude
that the habeas court lacked jurisdiction over the peti-
tion and, accordingly, affirm the judgment.
The following procedural and statutory background
is relevant to this appeal. In 2007, the petitioner was
arrested and charged with manslaughter in the first
degree in violation of General Statutes § 53a-55.2 In
2009, the petitioner pleaded guilty to that charge and
was sentenced to twenty years of incarceration, execu-
tion suspended after fifteen years, followed by five
years of probation. As a result of his conviction, the
petitioner remains in the custody of the respondent,
the Commissioner of Correction.
In 2011, while the petitioner was incarcerated, the
General Assembly enacted No. 11-51, § 22, of the 2011
Public Acts (P.A. 11-51), later codified in General Stat-
utes § 18-98e (original legislation).3 The original legisla-
tion provided that certain classes of prisoners, which
included the petitioner, convicted of crimes 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 Correc-
tion’’ for certain positive, statutorily described conduct.
P.A. 11-51, § 22. The original legislation also conferred
on the respondent the discretion to revoke earned (and
even unearned) risk reduction credits for good cause.
P.A. 11-51, § 22.4 Because a sentence for a violation of
§ 53a-55 was not disqualifying at the time, the original
legislation rendered the petitioner eligible to earn risk
reduction credit toward the advancement of his end of
sentence date. In 2015, the General Assembly passed
No. 15-216, § 9, of the 2015 Public Acts (P.A. 15-216),
which amended § 18-98e to expand the list of persons
ineligible to earn risk reduction credit toward the reduc-
tion of their sentences, including persons who have
been sentenced for violating § 53a-55,5 the offense of
which the petitioner had been convicted. Consequently,
once the amendment became effective on October 1,
2015, the petitioner was no longer eligible to earn risk
reduction credit toward the reduction of his sentence.
See P.A. 15-216, § 9.
On December 11, 2015, the petitioner, representing
himself, filed his petition alleging that the application
of P.A. 15-216 resulted in ‘‘[d]iscrimination’’ and ‘‘the
violation of ex post facto.’’6 He alleged that, as of Octo-
ber 1, 2015, he became ineligible to earn risk reduction
credit toward the reduction of his sentence, even
though he had been earning such credit since the origi-
nal legislation went into effect.7 The petitioner does not
claim that he has been deprived of risk reduction credit
already earned. On December 21, 2015, the habeas court
dismissed the petition, sua sponte, pursuant to Practice
Book § 23-29 (1), for lack of jurisdiction ‘‘over the claims
set forth in the petition concerning the change in the
[p]etitioner’s eligibility date for parole consideration.’’
The court did not hold a hearing prior to dismissing
the petition.
On December 31, 2015, the petitioner filed a petition
for certification to appeal, contending that his petition
was dismissed based on a ground not raised therein.
On January 4, 2016, the habeas court granted the peti-
tion for certification to appeal. On January 11, 2016,
the petitioner filed a request for the appointment of
counsel and an application for waiver of fees, costs,
and expenses. On January 13, 2016, the habeas court
granted his request for appointment of counsel and
application for waiver. This appeal followed.
On May 31, 2016, the petitioner filed a motion for
articulation, stating that ‘‘[t]he need for an articulation
motion arises from the fact that the dismissal refers to
a parole eligibility claim, and the claim raised is not
such a claim. Articulation is needed because it is not
clear how the perceived lack of jurisdiction over a
‘change in the petitioner’s eligibility date for parole
consideration’ pertains to the dismissal of a claim unre-
lated to parole eligibility.’’ On July 12, 2016, the habeas
court denied the motion for articulation. On July 19,
2016, the petitioner filed with this court a motion for
review of the denial of his motion for articulation. On
September 21, 2016, this court granted in part the peti-
tioner’s motion for review and ordered the habeas court
‘‘to articulate the legal basis for the court’s determina-
tion that it lacks jurisdiction over the claims set forth
in the petition concerning the change in the petitioner’s
eligibility for parole consideration.’’
On January 17, 2017, in accordance with this court’s
order, the habeas court issued an articulation. The
habeas court concluded that the application of P.A. 15-
216 to the petitioner does not violate the ex post facto
clause because it does not increase his term of confine-
ment. The habeas court also concluded that the pro-
spective opportunity to earn risk reduction credit
pursuant to § 18-98e, as amended by P.A. 15-216, does
not implicate a liberty interest upon which the peti-
tioner may predicate habeas relief because the legisla-
tive amendment has at its foundation discretionary
language authorizing, but not requiring, the respondent
to grant such credit to qualifying inmates.
I
We first address the petitioner’s claim that the habeas
court improperly dismissed his petition for lack of juris-
diction.8 The petitioner argues that, pursuant to the
proper jurisdictional analysis, the allegations in his peti-
tion are sufficient to invoke the jurisdiction of the
habeas court. Additionally, the petitioner argues that a
liberty interest in future unearned risk reduction credit
is not required to establish jurisdiction over his discrimi-
nation9 and ex post facto claims. The respondent argues,
to the contrary, that the habeas court properly dis-
missed the petition for lack of subject matter jurisdic-
tion because the petitioner lacks a cognizable liberty
interest in earning future risk reduction credit, and
there is no colorable basis for an ex post facto claim.
We agree with the respondent.
To begin, we set forth the relevant standard of review
and legal principles that govern the petitioner’s claim
on appeal. ‘‘[A] determination regarding a trial court’s
subject matter jurisdiction is a question of law and,
therefore, we employ the plenary standard of review
and decide whether the court’s conclusions are legally
and logically correct and supported by the facts in the
record.’’ (Internal quotation marks omitted.) Petaway
v. Commissioner of Correction, 160 Conn. App. 727,
731, 125 A.3d 1053 (2015), cert. dismissed, 324 Conn.
912, 153 A.3d 1288 (2017). ‘‘[T]o 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); see also Perez
v. Commissioner of Correction, 326 Conn. 357, 368, 163
A.3d 597 (2017) (to invoke habeas court’s jurisdiction,
petitioner must allege interest sufficient to give rise to
habeas relief). ‘‘In order . . . to qualify as a constitu-
tionally protected liberty . . . the interest must be one
that is assured either by statute, judicial decree, or
regulation.’’ (Emphasis in original; internal quotation
marks omitted.) Vitale v. Commissioner of Correction,
178 Conn. App. 844, 867–68, 178 A.3d 418 (2017), cert.
denied, 328 Conn. 923, 181 A.3d 566 (2018).
As this court previously has explained, ‘‘[o]ur appel-
late courts have concluded, consistently, that an inmate
does not have a constitutionally protected liberty inter-
est in certain benefits—such as good time credits, risk
reduction credits, and early parole consideration—if
the statutory scheme pursuant to which the commis-
sioner is authorized to award those benefits is discre-
tionary in nature.’’ Green v. Commissioner of
Correction, 184 Conn. App. 76, 86–87, A.3d
(2018); see Holliday v. Commissioner of Correction,
184 Conn. App. 228, 235, A.3d (2018) (habeas
court properly dismissed for lack of subject matter juris-
diction ex post facto claim based on 2013 statutory
change regarding application of earned risk reduction
credit toward parole eligibility); see also Perez v. Com-
missioner of Correction, supra, 326 Conn. 370–73 (no
liberty interest in early parole eligibility or risk reduc-
tion credit); Petaway v. Commissioner of Correction,
supra, 160 Conn. App. 733–34 (affirming judgment of
habeas court based on lack of jurisdiction over ex post
facto claim asserted in absence of allegation that 2013
statutory change regarding parole eligibility extended
length of incarceration or delayed parole eligibility
beyond time periods that existed at time of offense);
Abed v. Commissioner of Correction, 43 Conn. App.
176, 182–83, 682 A.2d 558 (petitioner failed to state
cognizable ex post facto claim based on prospective
denial of discretionary, statutory good time credits),
cert. denied, 239 Conn. 937, 684 A.2d 707 (1996).
In the present case, the statutory scheme that created
the opportunity to earn risk reduction credit did not
exist at the time of the petitioner’s offense. It was not
until 2011, upon the passage of the original legislation,
that the petitioner became eligible to earn risk reduction
credit toward the reduction of his sentence pursuant
to § 18-98e. Although the petitioner was no longer eligi-
ble to earn risk reduction credit after the passage of
P.A. 15-216, the 2015 amendments did not increase the
petitioner’s overall sentence. Rather, the 2015 amend-
ments simply returned the petitioner to the position
that he was in at the time of his offense. See Perez v.
Commissioner of Correction, supra, 326 Conn. 378–80
(ex post facto inquiry requires comparison of chal-
lenged statute with statute in effect at time of offense).
Furthermore, during the period in which the peti-
tioner was eligible to earn risk reduction credit pursuant
to § 18-98e, such credit could be awarded only at the
discretion of the respondent. See P.A. 11-51, § 22 (‘‘any
person sentenced to a term of imprisonment for a crime
committed on or after October 1, 1994, and committed
to the custody of the Commissioner of Correction on
or after said date . . . may be eligible to earn risk
reduction credit toward a reduction of such person’s
sentence . . . at the discretion of the Commissioner
of Correction’’); General Statutes (Rev. to 2013) § 18-
98e (same). That is, the interest in earning risk reduction
credit, as alleged by the petitioner, was not assured by
§ 18-98e at any time. Accordingly, the petitioner has not
alleged a constitutionally protected liberty interest that
would give rise to habeas relief. We conclude, therefore,
that the habeas court lacked subject matter jurisdiction
over the petitioner’s ex post facto claim, and the petition
was properly dismissed. See Perez v. Commissioner of
Correction, supra, 326 Conn. 369 (‘‘if the habeas court
reached the correct decision, but on mistaken grounds,
this court will sustain the habeas court’s action if proper
grounds exist to support it’’).
II
We next turn to the petitioner’s claim that the habeas
court’s articulation improperly modified its original
judgment and must be stricken from the record. The
petitioner contends that, rather than issuing a proper
articulation, the habeas court improperly offered an
entirely new legal basis for its original judgment of
dismissal. The petitioner argues further that the habeas
court issued its modified decision more than four
months after the original judgment in violation of Gen-
eral Statutes § 52-212a. Because we conclude, in part I
of this opinion, that the habeas court lacked subject
matter jurisdiction over the petitioner’s claims regard-
ing his eligibility to earn risk reduction credit pursuant
to § 18-98e, we need not address the petitioner’s
remaining contention that the habeas court’s articula-
tion constitutes an improper and untimely modification
of the original judgment of dismissal. See id.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion or upon motion of the respondent,
dismiss the petition, or any count thereof, if it determines that: (1) the court
lacks jurisdiction . . . .’’
2
General Statutes § 53a-55 provides: ‘‘(a) A person is guilty of manslaugh-
ter in the first degree when: (1) With intent to cause serious physical injury
to another person, he causes the death of such person or of a third person;
or (2) with intent to cause the death of another person, he causes the death
of such person or of a third person under circumstances which do not
constitute murder because he committed the proscribed act or acts under
influence of extreme emotional disturbance, as provided in subsection (a)
of section 53a-54a, except that the fact that homicide was committed under
the influence of extreme emotional disturbance constitutes a mitigating
circumstance reducing murder to manslaughter in the first degree and need
not be proved in any prosecution initiated under this subsection; or (3)
under circumstances evincing an extreme indifference to human life, he
recklessly engages in conduct which creates a grave risk of death to another
person, and thereby causes the death of another person.
‘‘(b) Manslaughter in the first degree is a class B felony.’’
3
Number 11-51 of the 2011 Public Acts, § 22, provides in relevant part:
‘‘(a) Notwithstanding any provision of the general statutes, any person sen-
tenced to a term of imprisonment for a crime committed on or after October
1, 1994, and committed to the custody of the Commissioner of Correction
on or after said date, except a person sentenced for a violation of section
53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-70a or 53a-100aa, 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 for conduct as provided in subsection (b) of
this section occurring on or after April 1, 2006.
‘‘(b) An inmate may earn risk reduction credit for adherence to the inmate’s
offender accountability plan, for participation in eligible programs and activi-
ties, and for good conduct and obedience to institutional rules as designated
by the commissioner, provided (1) good conduct and obedience to institu-
tional rules alone shall not entitle an inmate to such credit, and (2) the
commissioner or the commissioner’s designee may, in his or her discretion,
cause the loss of all or any portion of such earned risk reduction credit
for any act of misconduct or insubordination or refusal to conform to
recommended programs or activities or institutional rules occurring at any
time during the service of the sentence or for other good cause. If an inmate
has not earned sufficient risk reduction credit at the time the commissioner
or the commissioner’s designee orders the loss of all or a portion of earned
credit, such loss shall be deducted from any credit earned by such inmate
in the future.’’
4
At the time of the original legislation, and again in 2013, the General
Assembly amended the parole eligibility provisions set forth in General
Statutes § 54-125a. Public Acts 2011, No. 11-51, § 25; Public Acts 2013, No.
13-3, § 59. The 2011 and 2013 amendments to § 54-125a are not at issue in
this appeal.
5
After the passage of P.A. 15-216, § 9, General Statutes § 18-98e provided
in relevant part that ‘‘any person sentenced to a term of imprisonment for
a crime committed on or after October 1, 1994, and committed to the custody
of the Commissioner of Correction on or after said date, except a person
sentenced for a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-
55, 53a-55a, 53a-70a, 53a-70c or 53a-100aa, or is a persistent dangerous
felony offender or persistent dangerous sexual offender pursuant to section
53a-40, 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.)
6
See U.S. Const., art. I, § 10.
7
The petitioner filed his petition using a state supplied form. In his petition,
the petitioner stated in relevant part: ‘‘6. This petition claims that my incarcer-
ation/sentence is illegal because . . .
‘‘6d. Other (be specific): Due to Public Act 15-216, as of Oct[ober] 1,
2015, I am ineligible to earn [risk reduction earned credit] toward the
reduction of my sentence, which I have been getting since pass[ed] into
law. Going back to 5/1/09.
‘‘6e. State all facts and details regarding your claim: Discrimination. The
effect of a law or established practice that confers privileges on a certain
class. And the violation of ex post facto. Done or made after the fact having
retroactive force of effect. . . .
‘‘I am asking the court to . . .
‘‘5. Other (specify) Judge order correction the restart on my [risk reduc-
tion earned credit] from Oct[ober] 1, 2015, and retroactively until the
present day of the order. That correction see that they are in violation of
ex post facto. And discrimination.’’ (Emphasis added.)
8
Because our resolution of this claim is dispositive of the petitioner’s
appeal, we address this claim first.
9
Neither the petition nor the petitioner’s principal brief in this court
elaborates on the nature of his claim that the application of P.A. 15-216
results in discrimination. The petitioner specifies for the first time in his
reply brief that his claim sounds in equal protection but goes no further.
Construing the petition in a manner most favorable to the petitioner, we
conclude that he failed to allege sufficient facts to invoke the jurisdiction
of the habeas court over his discrimination claim.