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*********************************************** 
JERRY LEWIS WHISTNANT v. COMMISSIONER

OF CORRECTION

(AC 42894)

DiPentima, C. J., and Moll and Flynn, Js.*

Syllabus

The petitioner, who had been convicted on a guilty plea in 2009, of the

crime of robbery in the first degree in connection with a robbery he

committed in 2008, sought a writ of habeas corpus, claiming, inter alia,

a violation of the ex post facto clause of the United States constitution.

In 2011, the legislature enacted a statute (§ 18-98e) that permitted certain

inmates, including the petitioner, to earn risk reduction credit toward

the reduction of their sentences, at the discretion of the respondent,

the Commissioner of Correction, and amended the statute (§ 54-125a

(b) (2)) governing parole eligibility to permit risk reduction credit to

be applied to advance the parole eligibility date of inmates convicted

of certain violent offenses. In 2013, the legislature enacted an amendment

(P.A. 13-3, § 59) to § 54-125a (b) (2) that removed the language that

permitted the risk reduction credit earned under § 18-98e to advance

the parole eligibility date of violent offenders. The petitioner claimed,

inter alia, that the 2013 amendment, as applied retroactively to him,

violated the ex post facto clause of the federal constitution. The habeas

court rendered judgment declining to issue a writ of habeas corpus

pursuant to the applicable rule of practice (§ 23-24 (a) (1)) on the ground

that it lacked subject matter jurisdiction. Thereafter, the habeas court

denied the petitioner’s petition for certification to appeal, and the petitioner appealed to this court. Held:

1. The habeas court did not abuse its discretion in denying the petition for

certification to appeal, as the petitioner failed to demonstrate that his

claims were debatable among jurists of reason, that a court could have

resolved the issues in a different manner or that the questions were

adequate to deserve encouragement to proceed further.

2. The petitioner’s claim that the habeas court improperly failed to conduct

a hearing before declining to issue a writ of habeas corpus under Practice

Book § 23-24 (a) (1) was outside the scope of this court’s appellate

review; pursuant to the applicable statute (§ 52-470 (g)), this court’s

review was confined to the issues presented in the petitioner’s petition

for certification to appeal, which incorporated two grounds for appeal,

and, because neither ground indicated that the petitioner sought to

challenge the habeas court’s judgment on the basis that the court did

not conduct a hearing, review pursuant to State v. Golding (213 Conn.

233) was unavailable because permitting a petitioner, in an appeal from

a habeas judgment following the denial of a petition for certification to

appeal, to seek Golding review of a claim that was not raised in, or

incorporated into, the petition for certification to appeal would circumvent the requirements of § 52-470 (g) and undermine the goals that the

legislature sought to achieve in enacting it.

3. The petitioner could not prevail on his claim that the habeas court improperly concluded that it lacked subject matter over the claims in his

habeas petition:

a. The habeas court lacked subject matter jurisdiction over the petitioner’s

claim that the retroactive application of the 2013 amendment to § 54-

125a (b) (2) to him violated the ex post facto clause of the federal

constitution, the petitioner having failed to raise a cognizable ex post

facto claim in the habeas petition; the petitioner made no claim that

legislation regarding eligibility for parole consideration became more

onerous after the date of his criminal behavior but, rather, claimed that

new legislation enacted in 2011, after his criminal conduct, conferred

a benefit on him that was taken away in 2013, which did not implicate

the ex post facto prohibition because the changes that occurred between

2011 and 2013 had no bearing on the punishment to which the petitioner’s

criminal conduct exposed him when he committed the robbery in 2008,

and, with regard to parole eligibility, the 2013 amendment merely

returned the petitioner to the same position that he was in at the time
of his offense.

b. The habeas court lacked subject matter jurisdiction over the petitioner’s

claim that the retroactive application of the 2013 amendment to § 54-

125a (b) (2) to him violated his right to due process, as the petitioner

lacked a vested liberty interest in the risk reduction credit that he had

earned that, following the enactment of the 2013 amendment, was no

longer being applied to advance his parole eligibility date.

Argued March 12—officially released August 4, 2020

Procedural History

Petition for a writ of habeas corpus, brought to the

Superior Court in the judicial district of Tolland, where

the court, Bhatt, J., rendered judgment declining to

issue a writ of habeas corpus; thereafter, the court

denied the petition for certification to appeal, and the

petitioner appealed to this court. Appeal dismissed.

Deborah G. Stevenson, assigned counsel, for the

appellant (petitioner).

Zenobia G. Graham-Days, assistant attorney general,

with whom, on the brief, were William Tong, attorney

general, and Clare Kindall, solicitor general, for the

appellee (respondent).
Opinion

MOLL, J. The petitioner, Jerry Lewis Whistnant,

appeals following the denial of his petition for certification to appeal from the judgment of the habeas court

declining to issue a writ of habeas corpus for lack of

subject matter jurisdiction pursuant to Practice Book

§ 23-24 (a) (1).1 On appeal, the petitioner claims that

the court improperly (1) denied his petition for certification to appeal, (2) declined to issue the writ of habeas

corpus pursuant to § 23-24 (a) (1) without conducting a

hearing, and (3) concluded that it lacked subject matter

jurisdiction over the claims raised in his petition for a

writ of habeas corpus. We conclude that the habeas

court did not abuse its discretion in denying the petitioner’s petition for certification to appeal, and, therefore,

we dismiss the appeal.

The following facts, procedural history, and statutory

history are relevant to our disposition of the appeal.

On September 27, 2008, the petitioner was arrested and

charged with robbery in the first degree in violation of

General Statutes § 53a-134 (a) (4).2 On May 8, 2009,

after the petitioner pleaded guilty to the charge, the

trial court, Alexander, J., sentenced him to fifteen years

of incarceration, followed by three years of special

parole. The petitioner did not appeal from the judgment

of conviction. As a result of his conviction, the petitioner remains in the custody of the respondent, the

Commissioner of Correction.

At the time that the petitioner committed the robbery

on September 27, 2008, General Statutes (Rev. to 2007)

§ 54-125a (b) (2), as amended during a special session

in January, 2008; see Public Acts, Spec. Sess., January,

2008, No. 08-1, § 5; provided in relevant part: ‘‘A person

convicted of . . . (B) an offense, other than [certain

parole ineligible offenses], where the underlying facts

and circumstances of the offense involve the use,

attempted use or threatened use of physical force

against another person shall be ineligible for parole

under subsection (a) of this section until such person

has served not less than eighty-five per cent of the

definite sentence imposed. . . .’’3 The crime of robbery

in the first degree fell within this class of violent

offenses. See Holliday v. Commissioner of Correction,

184 Conn. App. 228, 231 n.2, 194 A.3d 867 (2018) (‘‘robbery in the first degree . . . involves the [use] or threaten[ed] . . . immediate use of physical force upon

another person’’ (internal quotation marks omitted)),

cert. granted on other grounds, 335 Conn. 901, 225 A.3d

960 (2020). Therefore, at the time that he had committed

the robbery, the petitioner was ineligible for parole until

he had served no less than 85 percent of his sentence.

In 2011, about three years after his commission of

the robbery and long after his May 8, 2009 date of

conviction, while the petitioner was incarcerated, the
legislature enacted No. 11-51, § 22, of the 2011 Public

Acts (P.A. 11-51), later codified in General Statutes § 18-

98e. Pursuant to § 18-98e (a), certain inmates, including

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 [respondent],’’ for certain

positive, statutorily described behavior. The respondent

has the discretion to ‘‘cause the loss of’’ such credit,

including credit yet to be earned, for good cause. General Statutes § 18-98e (b). Additionally, in 2011, the legislature amended § 54-125a (b) (2) to provide in relevant

part: ‘‘A person convicted of . . . (B) an offense, other

than [certain parole ineligible offenses], where the

underlying facts and circumstances of the offense

involve the use, attempted use or threatened use of

physical force against another person shall be ineligible

for parole under subsection (a) of this section until

such person has served not less than eighty-five per

cent of the definite sentence imposed less any risk

reduction credit earned under the provisions of section

18-98e.’’ (Emphasis added.) General Statutes (Rev. to

2011) § 54-125a (b) (2), as amended by Public Acts 2011,

No. 11-51, § 25. Thus, following the enactment of § 18-

98e and the 2011 amendment to § 54-125a (b) (2), the

petitioner was eligible to earn risk reduction credit to

advance both the end date of his sentence and his parole

eligibility date. See Perez v. Commissioner of Correction, 326 Conn. 357, 364, 163 A.3d 597 (2017).

In 2013, the legislature enacted No. 13-3, § 59, of the

2013 Public Acts (P.A. 13-3), which amended, inter alia,

§ 54-125a (b) (2) by removing the language permitting

risk reduction credit earned under § 18-98e to advance

the parole eligibility date of violent offenders, such as

the petitioner. Accordingly, following the enactment of

P.A. 13-3, although risk reduction credit earned by the

petitioner, and not subsequently revoked, could still be

used to advance the end date of his sentence, the credit

could not be applied to advance his parole eligibility

date. See Perez v. Commissioner of Correction, supra,

326 Conn. 365.

On February 19, 2019, the petitioner, acting as a selfrepresented party, filed a petition for a writ of habeas

corpus using a state supplied form (petition). Therein,

he alleged that the Department of Correction (department) was ‘‘not applying [his] [risk reduction credit] to

[his] [p]arole [e]ligibility date.’’ The petitioner requested

that the habeas court provide the following relief:

‘‘Apply [his] [risk reduction credit] to [his] parole eligibility date.’’

The petitioner appended several exhibits to the petition, including a document titled ‘‘Habeas Corpus,’’ in

which he alleged additional facts in support of the petition.4 Therein, the petitioner alleged that, prior to the
enactment of P.A. 13-3, he had earned risk reduction

credit that the respondent had applied to advance his

parole eligibility date to November 24, 2020, but, following the enactment of P.A. 13-3, the respondent stopped

applying the credit that he had earned to advance his

parole eligibility date. On the basis of those allegations,

the petitioner asserted that P.A. 13-3, as applied to him

retroactively, violated the ex post facto clause of the

United States constitution.5

In addition, the petitioner

raised an equal protection claim under the fifth and

fourteenth amendments to the United States constitution, in support of which he alleged ‘‘all persons similarly situated should be treated alike, and . . . there

is no legitimate penological interest to justify the

[department] and/or [the] [s]tate of Connecticut in cancelling provisional early release credits awarded to

[him] that applies to his parole eligibility date.’’ Under

the heading of his equal protection claim, the petitioner

also alleged that he ‘‘already received his [risk reduction

credit] that applied to his parole eligibility date in 2011

until 2013. He already received the benefit from the

[risk reduction credit] which created a liberty interest.’’

On March 4, 2019, the habeas court, Bhatt, J., issued

an order declining to issue the writ of habeas corpus6

pursuant to Practice Book § 23-24 (a) (1). Specifically,

the court stated: ‘‘Upon a review of the facts and allegations contained in the [petition], the court declines to

issue the writ pursuant to [§ 23-24 (a) (1)]. This court

is without jurisdiction to consider the claims raised in

the petition, to wit: that the retroactive application of

P.A. 13-3 violates the prohibition against ex post facto

laws and the equal protection clause. The petitioner

committed the instant offense in 2008, before the enactment of P.A. 11-51, which created the [risk reduction

credit] program . . . .

‘‘Our Supreme Court and Appellate Court have

repeatedly held that this court lacks jurisdiction over

claims involving an offense date that is prior to the

enactment of the [risk reduction credit] statute. Specifically on point is Perez v. Commissioner of Correction,

[supra, 326 Conn. 357], in which our Supreme Court

rejected ex post facto, due process and equal protection

challenges to the retroactive application of P.A. 13-3 in

the case of a petitioner whose offense date was in 2010,

prior to the enactment of [the risk reduction credit

statute]. See also Boria v. Commissioner of Correction,

186 Conn. App. 332, 199 A.3d 1127 (2018), [cert. granted

on other grounds, 335 Conn. 901, 225 A.3d 685 (2020)];

Holliday v. Commissioner of Correction, [supra, 184

Conn. App. 228].

‘‘The holdings of those cases make clear that this

court has no jurisdiction to consider the claims raised

in the petition. If, however, the petitioner is claiming

that credits that have already been earned and applied

in the past have been unconstitutionally forfeited by
the [department] . . . as opposed to [the department’s] failure to allow the petitioner to continue to

earn and apply new credits to his sentence, then the

petitioner is invited to refile the petition.’’

Thereafter, the petitioner filed a petition for certification to appeal from the court’s judgment, which the

court denied.7 This appeal followed. Additional facts

and procedural history will be set forth as necessary.

I

We first address the petitioner’s claim that the habeas

court abused its discretion in denying his petition for

certification to appeal from the court’s judgment declining to issue the writ of habeas corpus under Practice

Book § 23-24 (a) (1). We disagree.

General Statutes § 52-470 (g) provides: ‘‘No appeal

from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has

been convicted of a crime in order to obtain such person’s release may be taken unless the appellant, within

ten days after the case is decided, petitions the judge

before whom the case was tried or, if such judge is

unavailable, a judge of the Superior Court designated

by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be

reviewed by the court having jurisdiction and the judge

so certifies.’’

‘‘As our Supreme Court has explained, one of the

goals our legislature intended by enacting this statute

was to limit the number of appeals filed in criminal

cases and hasten the final conclusion of the criminal

justice process . . . . [T]he legislature intended to discourage frivolous habeas appeals. . . . [Section] 52-

470 (b)8 acts as a limitation on the scope of review, and

not the jurisdiction, of the appellate tribunal. . . .

‘‘Faced with a habeas court’s denial of a petition for

certification to appeal, a petitioner can obtain appellate

review of the [disposition] of his [or her] petition for

habeas corpus only by satisfying the two-pronged test

enunciated by our Supreme Court in Simms v. Warden,

229 Conn. 178, 640 A.2d 601 (1994), and adopted in

Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126

(1994). First, he [or she] must demonstrate that the

denial of his [or her] petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he [or she] must

then prove that the decision of the habeas court should

be reversed on its merits. . . .

‘‘To prove an abuse of discretion, the petitioner must

demonstrate that the [resolution of the underlying claim

involves issues that] are debatable among jurists of

reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to

deserve encouragement to proceed further. . . .
‘‘In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must consider the merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by [our Supreme

Court] for determining the propriety of the habeas

court’s denial of the petition for certification.’’ (Citations omitted; footnote in original; internal quotation

marks omitted.) Villafane v. Commissioner of Correction, 190 Conn. App. 566, 572–73, 211 A.3d 72, cert.

denied, 333 Conn. 902, 215 A.3d 160 (2019).

For the reasons set forth in parts II and III of this

opinion, we conclude that the petitioner has failed to

demonstrate that (1) his claims are debatable among

jurists of reason, (2) a court could resolve the issues

in a different manner, or (3) the questions are adequate

to deserve encouragement to proceed further. Thus,

we conclude that the habeas court did not abuse its

discretion in denying the petition for certification to

appeal.

II

Turning to the petitioner’s first substantive claim on

appeal, the petitioner asserts that the habeas court

improperly failed to conduct a hearing before declining

to issue the writ of habeas corpus under Practice Book

§ 23-24 (a) (1). For the reasons that follow, we conclude

that this claim is outside of the scope of our appellate review.

‘‘As our standard of review set forth [in part I of this

opinion] makes clear, an appeal following the denial of

a petition for certification to appeal from the judgment

[disposing of] a petition for a writ of habeas corpus is

not the appellate equivalent of a direct appeal from a

criminal conviction. Our limited task as a reviewing

court is to determine whether the habeas court abused

its discretion in concluding that the petitioner’s appeal

is frivolous. Thus, we review whether the issues for

which certification to appeal was sought are debatable

among jurists of reason, a court could resolve the issues

differently or the issues are adequate to deserve encouragement to proceed further. . . . Because it is impossible to review an exercise of discretion that did not

occur, we are confined to reviewing only those issues

which were brought to the habeas court’s attention

in the petition for certification to appeal.’’ (Citation

omitted.) Tutson v. Commissioner of Correction, 144

Conn. App. 203, 216, 72 A.3d 1162, cert. denied, 310

Conn. 928, 78 A.3d 145 (2013).

‘‘It is well established that a petitioner cannot demonstrate that the habeas court abused its discretion in
denying a petition for certification to appeal if the issue

raised on appeal was never raised before the court at

the time that it considered the petition for certification

to appeal as a ground on which certification should

be granted. See, e.g., Henderson v. Commissioner of

Correction, 181 Conn. App. 778, 792, 189 A.3d 135, cert.

denied, 329 Conn. 911, 186 A.3d 707 (2018); Tutson v.

Commissioner of Correction, [supra, 144 Conn. App.

216–17]; Perry v. Commissioner of Correction, 131

Conn. App. 792, 796–97, 28 A.3d 1015, cert. denied, 303

Conn. 913, 32 A.3d 966 (2011); Mercado v. Commissioner of Correction, 85 Conn. App. 869, 872, 860 A.2d

270 (2004), cert. denied, 273 Conn. 908, 870 A.2d 1079

(2005).’’ Villafane v. Commissioner of Correction,

supra, 190 Conn. App. 573–74.

The petitioner did not set forth any grounds on which

he proposed to appeal in his petition for certification

to appeal; instead, he elected to incorporate by reference the grounds set forth in his application for a waiver

of fees, costs, and expenses and appointment of counsel

on appeal (application), filed on the same day as his

petition for certification to appeal. In the application,

the petitioner proposed to appeal on the following two

grounds: (1) ‘‘[The] [t]rial judge incorrectly cited Holliday v. Commissioner of Correction, [supra, 184 Conn.

App. 228] . . . which is still pending before the Connecticut Supreme Court’’; and (2) ‘‘[c]laims involving

an offense date that is prior to the enactment of the

[risk reduction credit] statute, with emphasis on the

equal protection challenges to the retroactive application of P.A. 13-3, are still pending in Holliday v. [Commissioner] of Correction, [supra, 228], which is before

the Supreme Court.’’ We construe those grounds as

implicating the court’s conclusion that it lacked subject

matter jurisdiction to entertain the claims set forth in

the petition. Neither of those grounds, however, indicates that the petitioner sought to challenge the court’s

judgment on the basis that the court did not conduct a

hearing.9 Therefore, the petitioner cannot demonstrate

that the habeas court abused its discretion in denying

the petition for certification to appeal on this ground.

The petitioner maintains that his claim is preserved,

but, in the alternative, he seeks review of his claim

pursuant to State v. Golding, 213 Conn. 233, 239–40,

567 A.2d 823 (1989), as modified by In re Yasiel R., 317

Conn. 773, 781, 120 A.3d 1188 (2015).10 We conclude

that Golding review is unavailable to the petitioner in

this appeal. Section 52-470 (g) conscribes our appellate

review to the issues presented in the petition for certification to appeal, which incorporated the grounds set

forth in the application. Permitting a habeas petitioner,

in an appeal from a habeas judgment following the

denial of a petition for certification to appeal, to seek

Golding review of a claim that was not raised in, or

incorporated into, the petition for certification to appeal

would circumvent the requirements of § 52-470 (g) and
undermine the goals that the legislature sought to

achieve in enacting § 52-470 (g).11 See Villafane v. Commissioner of Correction, supra, 190 Conn. App. 572.

Accordingly, the petitioner’s claim is not subject to

Golding review.12

III

The petitioner’s next substantive claim on appeal is

that the habeas court improperly concluded that it

lacked subject matter jurisdiction over the claims in

the petition. Specifically, he asserts that the court had

subject matter jurisdiction to entertain his claims that

the retroactive application of P.A. 13-3 to him violated

(1) the ex post facto clause of the United States constitution and (2) his federal constitutional right to due process.13 We disagree.14

‘‘[I]n order to invoke successfully the jurisdiction of

the habeas court, a petitioner must allege an interest

sufficient to give rise to habeas relief. . . . We have

long held that because [a] determination regarding a

trial court’s subject matter jurisdiction is a question of

law, our review is plenary.’’ (Citation omitted; internal

quotation marks omitted.) Perez v. Commissioner of

Correction, supra, 326 Conn. 368.

A

We first turn to the petitioner’s assertion that the

habeas court improperly concluded that it lacked subject matter jurisdiction over the ex post facto claim

raised in the petition. We are not persuaded.

‘‘[F]or a law to violate the prohibition [against ex

post facto laws], it must feature some change from the

terms of a law in existence at the time of the criminal

act. That feature is entirely sensible, as a core purpose

in prohibiting ex post facto laws is to ensure fair notice

to a person of the consequences of criminal behavior.

. . . [L]aws that impose a greater punishment after the

commission of a crime than annexed to the crime at

the time of its commission run afoul of the ex post

facto prohibition because such laws implicate the central concerns of the ex post facto clause: the lack of fair

notice and governmental restraint when the legislature

increases punishment beyond what was prescribed

when the crime was consummated. . . . Thus, to

determine whether a habeas court has subject matter

jurisdiction over a petitioner’s ex post facto claim, [t]he

controlling inquiry . . . [is] whether retroactive application of the change in [the] law create[s] a sufficient

risk of increasing the measure of punishment attached

to the covered crimes. . . . [A] habeas petitioner need

only make a colorable showing that the new law creates

a genuine risk that he or she will be incarcerated longer

under that new law than under the old law.’’ (Citation

omitted; internal quotation marks omitted.) Byrd v.

Commissioner of Correction, 177 Conn. App. 71, 80,

171 A.3d 1103 (2017).
In the petition, the petitioner alleged in relevant part

that, following the enactment of § 18-98e and the 2011

amendment to § 54-125a (b) (2), he earned risk reduction credit that the respondent applied to advance his

parole eligibility date, but, following the enactment of

P.A. 13-3, the respondent stopped applying the credit

earned by him to advance his parole eligibility date.

Critically, however, the petitioner made ‘‘no claim that

legislation regarding eligibility for parole consideration

became more onerous after the date of his criminal

behavior. Rather, he claim[ed] that new legislation

enacted in 2011 . . . after his criminal conduct . . .

conferred a benefit on him that was then taken away

in 2013. Such a claim, however, does not implicate the

ex post facto prohibition because the changes that

occurred between 2011 and 2013 have no bearing on the

punishment to which the petitioner’s criminal conduct

exposed him when he committed [the offense for which

he is incarcerated].’’ Petaway v. Commissioner of Correction, 160 Conn. App. 727, 732, 125 A.3d 1053 (2015),

cert. dismissed, 324 Conn. 912, 153 A.3d 1288 (2017).

Indeed, with regard to his parole eligibility, P.A. 13-3

returned the petitioner to the same position that he was

in at the time that he committed the robbery in 2008.

In light of the foregoing, we conclude that the petitioner failed to raise a cognizable ex post facto claim in

the petition, and, therefore, the habeas court correctly

concluded that it lacked subject matter jurisdiction over

the ex post facto claim. See Perez v. Commissioner

of Correction, supra, 326 Conn. 378–80 (habeas court

lacked subject matter jurisdiction over ex post facto

claim predicated on retroactive application of P.A. 13-

3 to petitioner when petitioner committed offense for

which he was incarcerated before enactment of 2011

amendment to § 54-125a (b) (2)); see, e.g., James E. v.

Commissioner of Correction, 326 Conn. 388, 394–95,

163 A.3d 593 (2017) (same); Holliday v. Commissioner

of Correction, supra, 184 Conn. App. 233–35 (same);

Byrd v. Commissioner of Correction, supra, 177 Conn.

App. 81 (same); Petaway v. Commissioner of Correction, supra, 160 Conn. App. 732–34 (same); see also

Boria v. Commissioner of Correction, supra, 186 Conn.

App. 341–45 (habeas court properly dismissed, for lack

of subject matter jurisdiction, claim that P.A. 13-3 and

amendment to § 18-98e enacted in 2015 violated ex post

facto clause when petitioner was in same position following amendments as he was in at time of commission

of offense for which he was incarcerated); cf. Breton

v. Commissioner of Correction, 330 Conn. 462, 484–86,

196 A.3d 789 (2018) (retroactive application of P.A. 13-

3 to petitioner who committed offenses between enactment of 2011 amendment to § 54-125a (b) (2) and enactment of P.A. 13-3 constituted violation of ex post facto

clause, and, therefore, habeas court improperly dismissed petition for writ of habeas corpus).15 Accordingly, we also conclude that the court did not abuse its
discretion in denying the petition for certification to

appeal as to this claim.

B

We next address the petitioner’s assertion that the

habeas court improperly concluded that it lacked subject matter jurisdiction to entertain the due process

claim raised in the petition. Specifically, the petitioner

contends that he had a vested liberty interest in the

risk reduction credit that he had earned and that had

been applied to advance his parole eligibility date, such

that the retroactive application of P.A. 13-3 to him violated his right to due process. This claim is unavailing

in light of our Supreme Court’s decision in Perez v.

Commissioner of Correction, supra, 326 Conn. 357.

In Perez, similar to the petitioner in the present

action, a habeas petitioner filed a petition for a writ of

habeas corpus alleging that he ‘‘had been awarded risk

reduction credit by the respondent and that prior to

July 1, 2013,16 the respondent had applied that credit

to advance [his] parole eligibility date,’’ such that the

retroactive application of P.A. 13-3 to him, inter alia,

violated his right to due process. (Footnote added.)

Id., 365–66. The habeas court dismissed the petition,

concluding that it lacked subject matter jurisdiction

over the petition and that the petition failed to state a

claim on which relief could be granted, and the petitioner appealed. Id., 366.

On appeal, our Supreme Court concluded that the

habeas court lacked subject matter jurisdiction over

the petitioner’s due process claim.17 Id., 374. The court

began by stating that ‘‘[a]n essential predicate’’ to the

due process claim ‘‘is a cognizable liberty interest. When

a petitioner seeks habeas relief on the basis of a purported liberty interest in parole eligibility, he [or she]

is invoking a liberty interest protected by the [d]ue

[p]rocess [c]lause of the [f]ourteenth amendment which

may not be terminated absent appropriate due process

safeguards. . . . In order . . . to qualify as a constitutionally protected liberty, [however] the interest must

be one that is assured either by statute, judicial decree,

or regulation. . . . Evaluating whether a right has

vested is important for claims under the . . . [d]ue

[p]rocess [c]lause, which solely protect[s] pre-existing

entitlements.’’ (Citations omitted; emphasis in original;

internal quotation marks omitted.) Id., 370.

The court then stated: ‘‘ ‘The [United States] Supreme

Court has recognized that, ‘‘[t]here is no constitutional

or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.

. . . A state may . . . establish a parole system, but it

has no duty to do so.’’ . . . Greenholtz v. Inmates of

the Nebraska Penal & Correctional Complex, 442 U.S.

1, 7, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). Accordingly,

whether and to what extent a state creates a liberty
interest in parole by state statute is entirely at the discretion of the state.’ ’’ Perez v. Commissioner of Correction, supra, 326 Conn. 370–71. In addition, the court

noted that it ‘‘previously has held that parole eligibility

under § 54-125a does not constitute a cognizable liberty

interest sufficient to invoke habeas jurisdiction.’’ (Internal quotation marks omitted.) Id., 371.

Turning to the petitioner’s claim regarding the risk

reduction credit previously granted to him, the court,

citing § 18-98e (a) and (b) (2), determined that the petitioner ‘‘overlook[ed] the fact that such credit is not

vested in him because it could be rescinded by the

respondent at any time in the respondent’s discretion

for good cause during the petitioner’s period of incarceration. . . . Although the legislature has provided

guidance to the respondent as to how to exercise his

discretion, the respondent 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

necessarily retain such credit once it has been

awarded.’’ Id., 372. Then, observing that the petitioner

was relying ‘‘on the monthly calculation of his parole

eligibility date that he purportedly receives from the

respondent, which included his earned risk reduction

credit prior to July 1, 2013, as evidence that he has a

vested interest in continuing to have that earned risk

reduction credit reflected in his parole eligibility date,’’

the court determined that ‘‘[t]he petitioner misapprehend[ed] the significance of the respondent’s monthly

parole eligibility date calculation. Under the scheme

even prior to 2013, because the respondent could have

rescinded any or all of that earned credit in his discretion, the monthly parole eligibility date is nothing more

than an estimate of the inmate’s parole eligibility date.

As such, the monthly parole eligibility date calculation

is simply an informational tool to allow the respondent

and an inmate to know at any given time how close to

parole eligibility the inmate would be if nothing

changed. Accordingly, the petitioner lacked a vested

right in the application of the risk reduction credit previously granted to advance his parole eligibility date.’’

Id., 373.

Pursuant to Perez, the petitioner in the present action

lacked a vested liberty interest in the risk reduction

credit that he had earned that, following the enactment

of P.A. 13-3, was no longer being applied to advance

his parole eligibility date. Therefore, we conclude that

the habeas court did not have subject matter jurisdiction over his due process claim.18 See also Holliday v.

Commissioner of Correction, supra, 184 Conn. App.

232, 235 (citing Perez to conclude that petitioner did

not demonstrate liberty interest in risk reduction credit

earned toward parole eligibility, and, therefore, habeas

court lacked subject matter jurisdiction over petitioner’s due process and equal protection claims challeng-
ing retroactive application of P.A. 13-3 to him). Accordingly, we also conclude that the court did not abuse its

discretion in denying the petition for certification to

appeal as to this claim.

The appeal is dismissed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 Practice Book § 23-24 provides: ‘‘(a) 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.

‘‘(b) The judicial authority shall notify the petitioner if it declines to issue

the writ pursuant to this rule.’’

2 General Statutes § 53a-134 (a) provides in relevant part: ‘‘A person is

guilty of robbery in the first degree when, in the course of the commission

of the crime of robbery as defined in section 53a-133 or of immediate flight

therefrom, he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol,

revolver, rifle, shotgun, machine gun or other firearm . . . .’’

3

‘‘[D]efinite sentence is the flat maximum to which a defendant is sentenced . . . .’’ State v. Adam H., 54 Conn. App. 387, 393, 735 A.2d 839, cert.

denied, 251 Conn. 905, 738 A.2d 1091 (1999).

4

In box ‘‘6e’’ of the petition, which requested that the petitioner ‘‘[s]tate

all facts and details regarding [his] claim,’’ the petitioner wrote: ‘‘[S]ee

attached.’’

‘‘The purpose of the [petition for a writ of habeas corpus] is to put the

[respondent] on notice of the claims made, to limit the issues to be decided,

and to prevent surprise. . . . The petition for a writ of habeas corpus is

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.’’ (Citations

omitted; internal quotation marks omitted.) Lorthe v. Commissioner of

Correction, 103 Conn. App. 662, 668, 931 A.2d 348, cert. denied, 284 Conn.

939, 937 A.2d 696 (2007). ‘‘A complaint includes all exhibits attached to it.

See Practice Book § 10-29; Streicher v. Resch, 20 Conn. App. 714, 716, 570

A.2d 230 (1990).’’ Lorthe v. Commissioner of Correction, supra, 668–69.

5 Article one, § 10, of the United States constitution provides in relevant

part: ‘‘No State shall . . . pass any . . . ex post facto Law . . . .’’

6 As our Supreme Court recently explained in Gilchrist v. Commissioner

of Correction, 334 Conn. 548, 557 n.7, 223 A.3d 368 (2020), a petition for a

writ of habeas corpus submitted to a habeas court for preliminary review

under Practice Book § 23-24 (a) ‘‘is more accurately described as an application for issuance of the writ’’ and ‘‘that the ‘writ’ sought by the application,

although called a ‘writ of habeas corpus,’ functions essentially as a writ of

summons in that it commands the marshal to summon the respondent, who

has custody of the petitioner, to appear and show cause why the petition

should not be granted.’’ Like our Supreme Court in Gilchrist, unless otherwise indicated, our use of the term ‘‘writ’’ in this opinion ‘‘refer[s] to the

writ issued by the court to initiate the habeas proceeding rather than the

ultimate relief sought by the great writ, i.e., the release of the prisoner from

custody.’’ Id.

7 The petitioner applied for, and was granted, a waiver of fees, costs, and

expenses and appointment of counsel on appeal.

8

‘‘Pursuant to No. 12-115, § 1, of the 2012 Public Acts, subsection (b) of

§ 52-470 was redesignated as subsection (g).’’ Villafane v. Commissioner

of Correction, 190 Conn. App. 566, 572 n.1, 211 A.3d 72, cert. denied, 333

Conn. 902, 215 A.3d 160 (2019).

9 We note that in Holliday, in addition to concluding that the habeas court

properly dismissed a petition for a writ of habeas corpus for lack of subject

matter jurisdiction pursuant to Practice Book § 23-29 (1); Holliday v. Commissioner of Correction, supra, 184 Conn. App. 233–35; this court concluded

that the court was not obligated to conduct a hearing before dismissing the

petition at issue. Id., 235–38. We do not construe the petitioner’s citation

to Holliday in the application as suggesting that he sought to appeal on the
ground that the court failed to hold a hearing before declining to issue the

writ of habeas corpus. In its memorandum of decision, the court cited

Holliday for the proposition that it did not have subject matter jurisdiction

over the claims in the petition. The court did not consider whether it was

obligated to conduct a hearing. Moreover, the issue in Holliday was whether

a habeas petitioner was entitled to a hearing before a petition for a writ of

habeas corpus could be dismissed pursuant to Practice Book § 23-29 (1),

which is distinct from the petitioner’s claim in this appeal that the habeas

court was obligated to conduct a hearing before declining to issue the writ

of habeas corpus pursuant to Practice Book § 23-24 (a) (1).

We are mindful that the petitioner was self-represented when he filed the

petition for certification to appeal and the application. ‘‘[I]t is the established

policy of the Connecticut courts to be solicitous of [self-represented] litigants

and when it does not interfere with the rights of other parties to construe

the rules of practice liberally in favor of the [self-represented] party. . . .

The modern trend . . . is to construe pleadings broadly and realistically,

rather than narrowly and technically. . . . The courts adhere to this rule

to ensure that [self-represented] litigants receive a full and fair opportunity

to be heard, regardless of their lack of legal education and experience. . . .

This rule of construction has limits, however. Although we allow [selfrepresented] litigants some latitude, the right of self-representation provides

no attendant license not to comply with relevant rules of procedural and

substantive law. . . . A habeas court does not have the discretion to look

beyond the pleadings and trial evidence to decide claims not raised. . . .

In addition, while courts should not construe pleadings narrowly and technically, courts also cannot contort pleadings in such a way so as to strain the

bounds of rational comprehension.’’ (Internal quotation marks omitted.)

Henderson v. Commissioner of Correction, supra, 181 Conn. App. 793. We

conclude that the only reasonable explanation for the petitioner’s citation

to Holliday in the application is that he was addressing the court’s reliance

on Holliday to conclude that it lacked subject matter jurisdiction.

10 ‘‘[The Golding doctrine] permits a [petitioner] to prevail on [an unpreserved] claim of constitutional error . . . only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of

error; (2) the claim is of constitutional magnitude alleging the violation of

a fundamental right; (3) the alleged constitutional violation . . . exists and

. . . deprived the [petitioner] of a fair trial; and (4) if subject to harmless

error analysis, the state has failed to demonstrate harmlessness of the alleged

constitutional violation beyond a reasonable doubt. . . . [T]he first two

[prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the [petitioner] may prevail.’’ (Internal quotation marks omitted.) Cator v. Commissioner of Correction, 181 Conn. App. 167, 177–78, 185 A.3d 601, cert. denied,

329 Conn. 902, 184 A.3d 1214 (2018).

11 We acknowledge that our Supreme Court has stated that Golding review

is available to petitioners in habeas appeals ‘‘[i]nasmuch as [a] petitioner

challenges the actions of the habeas court itself . . . .’’ Mozell v. Commissioner of Correction, 291 Conn. 62, 67 n.2, 967 A.2d 41 (2009); see also Moye

v. Commissioner of Correction, 316 Conn. 779, 786–87, 114 A.3d 925 (2015)

(citing Mozell to explain that, ‘‘[i]n 2009, [our Supreme Court] clarified that

Golding review is not categorically unavailable in habeas appeals. In Mozell

. . . [our Supreme Court] stated that Golding review is available on appeal

‘[i]nasmuch as [a] petitioner challenges the actions of the habeas court itself

. . . .’ ’’). Notably, in Mozell and Moye, the habeas courts granted the habeas

petitioners’ petitions for certification to appeal the judgments rendered in

those cases. See Mozell v. Commissioner of Correction, supra, 67; Moye v.

Commissioner of Correction, 147 Conn. App. 325, 328, 81 A.3d 1222 (2013),

aff’d, 316 Conn. 779, 114 A.3d 925 (2015). In a habeas appeal following the

granting of a petition for certification to appeal, in the absence of prejudice

to the opposing party, appellate review is not limited to the issues presented

in, or incorporated into, the petition for certification to appeal. See Logan

v. Commissioner of Correction, 125 Conn. App. 744, 752 n.7, 9 A.3d 776

(2010), cert. denied, 300 Conn. 918, 14 A.3d 333 (2011). Thus, Mozell and

Moye do not address the specific issue raised here—that is, whether Golding

review is available on appeal to a habeas petitioner, following the denial of

a petition for certification to appeal, when the claim at issue was not raised

in, or incorporated into, the petition for certification to appeal.

12 Even if the petitioner’s claim were properly before us, it would be

unavailing. See Green v. Commissioner of Correction, 184 Conn. App. 76,

81–84, 194 A.3d 857 (concluding that petitioner was not entitled to hearing
before habeas court declined to issue writ of habeas corpus under Practice

Book § 23-24 (a) (1)), cert. denied, 330 Conn. 933, 195 A.3d 383 (2018); see

also Gilchrist v. Commissioner of Correction, 334 Conn. 548, 563, 223 A.3d

368 (2020) (concluding that habeas court should have declined to issue writ

of habeas corpus under Practice Book § 23-24 (a) (1) rather than dismissing

case under Practice Book § 23-29 (1) and stating, at conclusion of opinion,

‘‘[b]ecause it is undisputed that the petitioner is not entitled to the appointment of counsel or notice and an opportunity to be heard in connection

with the [habeas] court’s decision to decline to issue the writ, this concludes

[our Supreme Court’s] review’’ (emphasis added)).

13 The petitioner also asserts violations of his rights under our state constitution. The petitioner has failed to provide an independent analysis under

our state constitution, and, therefore, we deem his state constitutional claims

abandoned. See Andrews v. Commissioner of Correction, 194 Conn. App.

178, 179 n.1, 220 A.3d 229, cert. denied, 334 Conn. 907, 220 A.3d 36 (2019).

14 In his appellate brief, the petitioner also makes a bare assertion that

the retroactive application of P.A. 13-3 to him violated the ‘‘equal protection

clauses of the [United States] and Connecticut [c]onstitutions.’’ The petitioner has failed to provide any meaningful analysis of that claim, and,

therefore, we decline to review it. See Villafane v. Commissioner of Correction, supra, 190 Conn. App. 578–79 (‘‘Ordinarily, [c]laims are inadequately

briefed when they are merely mentioned and not briefed beyond a bare

assertion. . . . Claims are also inadequately briefed when they . . . consist

of conclusory assertions . . . with no mention of relevant authority and

minimal or no citations from the record . . . . As a general matter, the

dispositive question in determining whether a claim is adequately briefed

is whether the claim is reasonably discernible [from] the record . . . . We

are not required to review issues that have been improperly presented to

this court through an inadequate brief. . . . Analysis, rather than mere

abstract assertion, is required in order to avoid abandoning an issue by

failure to brief the issue properly.’’ (Internal quotation marks omitted.)).

15 As our Supreme Court observed in Breton, ‘‘only a relatively small

percentage of inmates—namely, those inmates who . . . are incarcerated

for committing a violent crime between 2011 and 2013—will be affected by

[its] holding [in Breton].’’ Breton v. Commissioner of Correction, supra, 330

Conn. 485.

16 P.A. 13-3 became effective on July 1, 2013.

17 Our Supreme Court also concluded that the habeas court lacked subject

matter jurisdiction over the petitioner’s related claim asserting a violation

of his right to personal liberty pursuant to article first, § 9, of the Connecticut

constitution. See Perez v. Commissioner of Correction, supra, 326 Conn. 374.

18 In his appellate brief, the petitioner repeatedly asserts that the risk

reduction credit that he had earned was ‘‘forfeited’’ by the respondent following the enactment of P.A. 13-3. In the petition, however, the petitioner did

not allege forfeiture of the credit that he had earned; instead, we construe,

as did the habeas court, his allegations to be that the respondent stopped

applying the credit that the petitioner had earned to advance his parole

eligibility date. Thus, like our Supreme Court in Perez, ‘‘we need not decide

whether a deprivation of [the petitioner’s] actual earned risk reduction credit

would violate due process. See Abed v. Armstrong, 209 F.3d 63, 66–67 (2d

Cir. 2000) (inmates have liberty interest in good time credit they have already

earned, but no liberty interest in opportunity to earn credit under discretionary scheme).’’ Perez v. Commissioner of Correction, supra, 326 Conn.

369 n.5.