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FRANK VANDEVER v. COMMISSIONER

OF CORRECTION

(SC 19036)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,

Espinosa and Robinson, Js.

Argued May 1—officially released December 30, 2014

Frank Vandever, self-represented, the appellant
(petitioner).

Madeline A. Melchionne, assistant attorney general,

with whom, on the brief, were George Jepsen, attorney

general, and Terrence M. O’Neill, assistant attorney general, for the appellee (respondent).

Emily Gerrick, law student intern, with whom were

Hope Metcalf, David McGuire, and, on the brief, Sandra

Staub, for the Allard K. Lowenstein International

Human Rights Clinic et al. as amici curiae.
Opinion

PALMER, J. Under Sandin v. Conner, 515 U.S. 472,

483–84, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), and

Wilkinson v. Austin, 545 U.S. 209, 222–23, 125 S. Ct.

2384, 162 L. Ed. 2d 174 (2005), prison inmates have a

protected liberty interest in avoiding certain conditions

of confinement if, pursuant to state statute or regulation, they can be subjected to such conditions only

if certain procedural requirements are met, and those

conditions impose an atypical and significant hardship

in relation to the ordinary incidents of prison life. This

certified appealraises the question of whether Connecticut prisoners have a liberty interest in avoiding administrative segregation1 at Northern Correctional Institution (Northern), the state’s maximum security prison

and, if so, whether the self-represented petitioner,

Frank Vandever, was afforded due process before his

transfer to Northern. The petitioner appeals from the

judgment of the Appellate Court, which dismissed his

appeal from the habeas court’s denial of his petition

for certification to appeal from that court’s judgment

denying his petition for a writ of habeas corpus.2 The

petitioner claims that the Appellate Court incorrectly

concluded, contrary to the holdings in Sandin and Wilkinson, that prisoners in Connecticut do not have a

liberty interest in avoiding administrative segregation

because the respondent, the Commissioner of Correction, has unfettered discretion to classify them at any

security level. See Vandever v. Commissioner of Correction, 135 Conn. App. 735, 741–42, 42 A.3d 494 (2012).

He further claims that his due process rights were violated because the evidence presented at the hearing

that he was afforded to contest his placement in administrative segregation at Northern does not support the

respondent’s placement decision. We agree with the

petitionerthat theAppellateCourt was incorrectinsofar

as it indicated that under no circumstances can Connecticut prisoners establish a liberty interest in avoiding

administrative segregation. We also conclude that the

Appellate Court incorrectly determined that the habeas

court acted within its discretion in denying the petition

for certification to appeal from the judgment of the

habeas court because, as we explain more fully hereinafter, the habeas court’s reason for denying that petition

was itself unsupportable. We nevertheless conclude

that it is apparent from the record that, even if the

petitioner had a liberty interest in avoiding his transfer

to Northern, he received all of the process he was due

priorto that transfer. We therefore reverse the judgment

of the Appellate Court and direct that court to affirm

the habeas court’s judgment.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. The

petitioner is serving sentences for numerous convictions, including murder and escape from a correctional
institution. In October, 1997, shortly after Department

of Correction (department) officials transferred the

petitioner to the general population at MacDougall Correctional Institution following his December 31, 1991

escape from what is now the Osborn Correctional Institution (Osborn), certain department personnel found

the petitioner in possession of a National Institute of

Justice (NIJ) publication entitled ‘‘Stopping Escapes:

Perimeter Security,’’ which discusses perimeter security at prisons in the United States. The petitioner was

charged with a disciplinary violation in connection with

this incident and, following a hearing, was found guilty

of possession of contraband. As a result, the department

sanctioned the petitioner by revoking ninety days of

previously earned statutory good time credits, as

authorized by General Statutes (Rev. to 1987) § 18-7a

(c). Thereafter, the department’s Offender Classification and Population Management Unit notified the petitioner that it would conduct a hearing to determine

whether he should be placed on administrative segregation status.3 Following the hearing, at which the petitioner was permitted to present witnesses and to testify

on his own behalf, the hearing officer recommended

that the petitioner’s security classification be increased

in level, ‘‘with high security monitoring available,’’ but

that he not be placed on administrative segregation

status. Thereafter, the Inmate Classification Administrator overruled the hearing officer’s recommendation

and ordered that the petitioner be placed on administrative segregation status. The petitioner was in administrative segregation between November, 1997, and June,

1999, or approximately 570 days. Pursuant to department policy, prisoners in administrative segregation are

ineligible to earn statutory good time credits and seven

day job credits.4

In a prior habeas proceeding, the petitioner had challenged the disciplinary report that was issued in connection with his possession of the NIJ publication. On July

28, 2003, the respondent agreed to withdraw that report

and to restore the ninety days of statutory good time

that had been revoked as a result of his possession of

the NIJ publication.5In light of this agreement, the prior

habeas petition was dismissed as moot. At that time,

the petitioner argued that the department also should

credit his sentence to include the good time credits and

seven day job credits that he was ineligible to earn

while he was in administrative segregation, but the

habeas court noted that he would have to raise that

claim in a separate habeas petition.

In November, 2003, the petitioner filed the present

habeas petition, alleging, inter alia, that the respondent

improperly had placed him in administrative segregation on the basis of a disciplinary report that later was

expunged. In his prayerforrelief, the petitioner claimed

that he was entitled to receive the good time and seven

day job credits that, under the department’s administra-
tive directives, he was ineligible to earn while in administrative segregation.

At the trial on the petitioner’s habeas petition, Frederick Levesque, the department’s Director of Offender

Classification, testified on behalf of the respondent. He

explained that, although a disciplinary violation often

is the precipitating event that leads to the review of an

inmate’s eligibility for administrative segregation status, an administrative segregation hearing is not a disciplinary hearing, and placement in administrative segregation is not a form of punishment; rather, it is a management tool that is used to control inmates who are

perceived to present the greatest safety and security

threats. According to Levesque, the petitioner was

placed in administrative segregation after a routine

search of his cellturned up the NIJ publication on prison

perimeter security. Levesque stated that the petitioner’s

possession of such a publication so soon after being

released from administrative segregation following his

escape from Osborn was deemed ‘‘highly suspicious’’

and caused department officials to conclude that the

petitioner posed a danger ‘‘to the safety and security

of . . . [the] facility.’’ With respect to the decision to

place the petitioner in administrative segregation, Levesque explained that the petitioner ‘‘ha[d] already

proven . . . that he [was] very good at escaping. [The]

. . . number one mission . . . is to protect the public.

Unfortunately, back in 1991, we didn’t do a very good

job of that. [The petitioner] actually escaped and went

and committed . . . additional crime[s] . . . .’’ Levesque also observed that, in addition to his successful

escape in 1991, the petitioner also had attempted to

escape from prison two other times.

In its memorandum of decision, the habeas court, in

denying the habeas petition, made no findings as to

whether the petitioner’s placement in administrative

segregation was improper on the ground that the evidence presented at the administrative segregation hearing was insufficient to support the respondent’s placement decision. Instead, the court denied the habeas

petition on the basis of its determination that the petitioner was not entitled to the relief that he was seeking.

Specifically, the court stated that ‘‘[t]he petitioner . . .

never had or presently has a right to the statutory good

time and seven day job credits he is seeking. The awarding of such credits always has been and remains solely

within the respondent’s discretion. . . . Such decisions are discretionary and wholly within the [respondent’s] purview in accordance with General Statutes

§ 18-7a.’’6 The habeas court also denied the petitioner’s

petition for certification to appeal from its judgment.

The petitioner appealed to the Appellate Court, claiming that the habeas court had abused its discretion in

denying his petition for certification to appeal because,

inter alia, the habeas court had not addressed his con-
tention that, under Sandin and Wilkinson, his placement in administrative segregation violated his right to

due process. See Vandever v. Commissioner of Correction, Conn. Appellate Court Records & Briefs, March

Term, 2012, Petitioner’s Brief pp. 12–22. The petitioner

maintained that he had a right to due process prior to

his placement in administrative segregation, and that

he was deprived of that right because that placement

was based on an expunged disciplinary report and a

prior escape for which he already had completed his

period of administrative segregation. See id., pp. 23–27.

The petitioner further explained that, contrary to the

determination of the habeas court, he had not claimed

a constitutional or statutory right to the good time and

work credits that he was ineligible to earn while in

administrative segregation; rather, he had claimed only

that he should be awarded those credits to remedy the

due process violation stemming from his unjustifiable

placement in administrative segregation. See id., p. 17.

The Appellate Court rejected the petitioner’s claims.

See Vandever v. Commissioner of Correction, 135

Conn. App. 741–43. In contrast to the habeas court,

the Appellate Court did not base its conclusion on the

discretionary nature of the award of good time and

work credits. See id., 741–42. But cf. id., 743 (noting

that ‘‘the respondent ha[s] the discretion to award [or

not to award statutory] good time credits . . . and

ha[s] the authority to promulgate rules that make an

inmate ineligible to earn statutory good time’’ in concluding that ‘‘[t]he petitioner had no protected liberty

interest in ‘good time’ not yet credited’’ [citation omitted]). Like the habeas court, however, the Appellate

Court did not address the petitioner’s contention that,

under Sandin, he had a protected liberty interest in

avoiding administrative segregation, or that the process

that he received prior to his transfer to Northern was

constitutionally deficient. The Appellate Court concluded, instead, that ‘‘[i]nmates do not have a constitutionally protected right to a particular classification.

. . . Discipline by prison officials in response to a wide

range of misconduct falls within the expected perimeters of a sentence imposed by a court of law. . . . In

order to state a claim of a violation of due process, an

inmate must show a protected liberty interest and a

deprivation of that interest without being afforded due

process of law. A prisoner’s liberty interest to be free

from disciplinary segregation is not inherent in the due

process clause of the federal constitution. . . . Under

Connecticut law, the Commissioner of Correction

retains discretionary authority to classify prisoners at

any security level. . . . A prisoner has no constitutionally protected interest in or to a particular classification.’’ (Citations omitted; internal quotation marks

omitted.) Id., 741–42. The Appellate Court ultimately

determined that the habeas court had not abused its

discretion in denying the petition for certification to
appeal and dismissed the petitioner’s appeal. Id., 743.

On appeal to this court following our grant of certification, the petitioner reasserts his claim that he had

a protected liberty interest in avoiding administrative

segregation and that his transfer to Northern violated

his right to due process because it was based on a

disciplinary report that later was expunged, and a prior

escape for which he already had completed his period

of administrative segregation. At oral argument before

this court, the respondent conceded, as he must, that

the Appellate Court incorrectly concluded, contrary

to the rule in Sandin and Wilkinson, that, as a matter

of law, Connecticut inmates cannot establish a liberty

interest in avoiding administrative segregation. The

respondent argues, however, that Wilkinson and

Sandin make clear that, when a prisoner has a liberty

interest in avoiding administrative segregation, the

require-ments of due process are met as long as

the prisoner receives notice and an opportunity to be

heard prior to being placed in administrative segregation, and there is at least some evidence to support that

placement decision. The respondent further contends

that, even if the petitioner had a liberty interest in

avoiding placement in administrative segregation at

Northern, he received all of the process that he was

due prior to his transfer there.7 We agree with the

respondent.8

The following principles guide our analysis of the

petitioner’s claim. ‘‘In order to prevail on his due process claim, the [petitioner] must prove that: (1) he has

been deprived of a property [orliberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred

without due process of law.’’ (Internal quotation marks

omitted.) State v. Matos, 240 Conn. 743, 749, 694 A.2d

775 (1997). Although ‘‘the [c]onstitution itself does not

give rise to a liberty interest in avoiding transfer to

more adverse conditions of confinement . . . a liberty

interest in avoiding particular conditions of confinement may arise from state policies or regulations

. . . .’’ (Citations omitted.) Wilkinson v. Austin, supra,

545 U.S. 221–22. ‘‘States may under certain circumstances create liberty interests [that] are protected by

the [d]ue [p]rocess [c]lause. . . . But these interests

will be generally limited to freedom from restraint

which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the

[d]ue [p]rocess [c]lause of its own force . . . nonetheless imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison

life.’’ (Citations omitted.) Sandin v. Conner, supra, 515

U.S. 483–84; see also Sealey v. Giltner, 116 F.3d 47, 52

(2d Cir. 1997) (‘‘a prisoner has a liberty interest only if

the deprivation of which he complains is atypical and

significant and the state has created the interest by

statute or regulation’’). Thus, to establish a liberty inter-
est in avoiding administrative segregation, the petitioner was required to prove that state regulations

required a hearing before he could be placed in administrative segregation and that the conditions of his confinement at Northern imposed an atypical and significant hardship in relation to the ordinary incidents of

prison life.

The respondent does not dispute that, pursuant to

one of the department’s administrative directives, the

petitioner was entitled to notice and a hearing prior to

being transferred to Northern, and that the respondent

was required to proffer a reason or reasons for concluding that the petitioner poses a threat to safety and security. The first requirement of Sandin is therefore met.9

The respondent maintains, however, that the record

is inadequate to review whether the second prong of

Sandin has been met because the petitioner failed to

present evidence concerning the conditions of his confinement at Northern, and, consequently, it is impossible forthis court to determine whetherthose conditions

resulted in an atypical and significant hardship in relation to the conditions ordinarily incident to prison life.

In response, the petitioner and amici curiae10 argue that

this court can decide whether the second prong of Sandin has been met as a matter of law, first, because it

is clear from the department’s administrative directive

that the conditions of confinement at Northern are

every bit as harsh as those experienced by the inmates

in Wilkinson, which the United States Supreme Court

concluded ‘‘impose[d] an atypical and significant hardship under any plausible baseline’’; Wilkinson v. Austin,

supra, 545 U.S. 223; and, second, because the Second

Circuit Court of Appeals has determined that 305 days

in administrative segregation in a New York maximum

security prison, a far shorter period of time than the

petitioner spent at Northern, is sufficiently atypical of

ordinary prison life to establish conclusively an inmate’s

liberty interest in avoiding such confinement. See Colon

v. Howard, 215 F.3d 227, 229, 231–32 (2d Cir. 2000). As

we previously indicated, however, we need not resolve

this issue because, even if we assume that the petitioner

had a liberty interest in avoiding administrative segregation at Northern, he received all of the process to which

he was constitutionally entitled.

In Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74

L. Ed. 2d 675 (1983), the United States Supreme Court

considered the process that is due to a prisoner prior

to his placement in administrative segregation. ‘‘The

requirements imposed by the [due process] [c]lause

are, of course, flexible and variable [depending on] the

particular situation being examined. . . . In determining what is due process in the prison context, we are

reminded that one cannot automatically apply procedural rules designed for free citizens in an open society

. . . to the very different situation presented by a disciplinary proceeding in a state prison. . . . Prison admin-
istrators . . . should be accorded wide-ranging

deference in the adoption and execution of policies and

practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional security. . . . These considerations convince

[the court] that [prison officials are] obligated to engage

only in an informal, nonadversary review of the information supporting [an inmate’s] administrative confinement, including whatever statement [the inmate]

wishe[s] to submit, within a reasonable time after

[placement in] administrative segregation.’’ (Citations

omitted; internal quotation marks omitted.) Id., 472; see

also Taylor v. Rodriguez, 238 F.3d 188, 192 (2d Cir.

2001) (‘‘[t]he [United States] Supreme Court requires

that, assuming the existence of a liberty interest, a prisoner placed in administrative segregation be provided

some notice of the charges against him and an opportunity to present his views to the prison official charged

with deciding whether to transfer him to administrative

segregation’’ [internal quotation marks omitted]).

‘‘In a variety of contexts, [including the prison context] the [United States Supreme] Court has [also] recognized that a governmental decision resulting in the

loss of an important liberty interest violates due process

if the decision is not supported by any evidence.’’ Superintendent v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 86

L. Ed. 2d 356 (1985); see also Taylor v. Rodriguez,

supra, 238 F.3d 194 (when inmate has liberty interest

in avoiding transfer to more restrictive conditions of

confinement, decision to transfer must be supported

by ‘‘ ‘some evidence’ ’’). This standard is a lenient one,

requiring only ‘‘a modicum of evidence’’ to support the

challenged decision. Superintendent v. Hill, supra, 455.

‘‘Ascertaining whether this standard is satisfied does

not require examination of the entire record, independent assessment of the credibility of witnesses, or

weighing of the evidence. Instead, the relevant question

is whether there is any evidence in the record that could

support the conclusion reached by the disciplinary

board.’’ Id., 455–56; see also Castro v. Terhune, 712

F.3d 1304, 1314 (9th Cir. 2013) (characterizing test as

‘‘ ‘minimally stringent’ ’’).

In the present case, the petitioner does not dispute

that the procedures that he was afforded prior to being

placed in administrative segregation exceeded those to

which he was constitutionally entitled under Hewitt.

As we discussed previously, prior to being transferred

to Northern, the petitioner was provided with written

notice of the reasons for the transfer followed by a

hearing at which he was allowed to present evidence

and argument as to why the transfer was unwarranted.

The petitioner was also given the option of having a staff

advocate represent him at the hearing. The petitioner’s

contention, rather, is that the respondent’s reasons for

placing him in administrative segregation were invalid

because the disciplinary report relating to his posses-
sion of the NIJ publication was subsequently expunged,

and because he already had completed his period of

administrative segregation following his escape.

The petitioner provides no authority for the proposition that department officials were not permitted to

consider his interest in learning about perimeter security, and the fact that he previously had escaped from

Osborn and attempted to escape on two other occasions, in evaluating whether he should be placed in

administrative segregation, and our independent

research has uncovered no such authority. This is not

surprising, because we cannot perceive of any reason

why it was improper for department officials to consider this information. To the contrary, it is well established that prison officials, in determining the appropriate security classification for inmates, often and for

good reason must rely on an inmate’s past conduct

as a predictor of his or her future behavior. See, e.g.,

Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 49

L. Ed. 2d 451 (1976) (‘‘[t]ransfers between institutions,

for example, are made for a variety of reasons and often

involve no more than informed predictions as to what

would best serve institutional security or the safety and

welfare of the inmate’’); Crawford v. Lappin, 446 Fed.

Appx. 413, 415 (3d Cir. 2011) (rejecting inmate’s claim

that his placement in administrative segregation violated due process because decision was predicated, in

part, on conduct for which he already had been disciplined, and explaining that ‘‘due process is not violated

by placing an inmate in administrative custody based

on past conduct when that conduct provides a basis

for predicting [future misconduct]’’); Shoats v. Horn,

213 F.3d 140, 146 (3d Cir. 2000) (‘‘[e]ven [if the court]

conclude[d] that [the prisoner’s] continued confinementin administrative custody [was] based solely on his

past crimes, the process he received would nonetheless

pass constitutional muster, because predictions of

likely future behavior based on a generally volatile criminal character have been upheld by the [United States]

Supreme Court’’).

Moreover, as Levesque explained at the habeas trial,

the prior hearing relating to the petitioner’s possession

of the NIJ publication was a disciplinary proceeding

held for the purpose of determining whether the petitioner had violated any prison rules. The fact that it

was later determined that that publication was not contraband—apparently because it had been approved by

prison mail room personnel—was immaterial to the

issue of whether the petitioner could be safely managed

in the general population in light of his undiminished

interest in perimeter security and all that that interest

implied for an inmate with his escape history. Levesque

testified that, as far as he was concerned, there was

absolutely no legitimate reason for any inmate to concern himself with a prison’s perimeter security system,

much less so an inmate with the petitioner’s prior his-
tory of escapes, and that it was for this reason—to

ensure the safety and security of the prison as well as

the public—that department officials ultimately concluded that the petitioner should be returned to administrative segregation. Although the petitioner obviously

disagrees with this decision, we cannot conclude that

it was unjustified, or that the evidence otherwise did

not support it.11

In this regard, it bears emphasis that ‘‘a prison’s internal security is peculiarly a matter normally left to the

discretion of prison administrators. In assessing the

seriousness of a threat to institutional security, prison

administrators necessarily draw on more than the specific facts surrounding a particular incident; instead,

they must consider the character of the inmates confined in the institution, recent and longstanding relations between prisoners and guards, prisoners inter se,

and the like. In the volatile atmosphere of a prison, an

inmate easily may constitute an unacceptable threat to

the safety of other prisoners and guards even if he

himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice

to spark potentially disastrous incidents. The judgment

of prison officials in this context, like that of those

making parole decisions, turns largely on purely subjective evaluations and on predictions of future behavior

. . . .’’ (Citation omitted; internal quotation marks

omitted.) Hewitt v. Helms, supra, 459 U.S. 474. It therefore is not the role of this court to second-guess that

decision, especially when, as in the present case, there

is ample reason, based on the undisputed evidence, to

support it. See, e.g., Superintendent v. Hill, supra, 472

U.S. 455 (‘‘that due process requires some evidentiary

basis for a decision . . . does [not] imply that a disciplinary board’s . . . decisions . . . are subject to second-guessing upon review’’); Bell v. Wolfish, 441 U.S.

520, 547, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979)(‘‘[p]rison

administrators . . . should be accorded wide-ranging

deference in the adoption and execution of policies and

practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional security’’).

As we have explained, however, the habeas court

apparently misunderstood the petitioner’s claim, and,

as a result, its reason forrejecting the claim is unsustainable. See footnotes 6 and 7 of this opinion. Consequently, the Appellate Court incorrectly determined

that the habeas court acted within its discretion in dismissing the petitioner’s petition for certification to

appeal from the habeas court’s judgment. Because,

however, the petitioner cannot prevail on his claim that

he was denied due process prior to being placed in

administrative segregation, we conclude that the

habeas court properly had determined that the petitioner’s habeas petition must be denied.
The form of the judgment of the Appellate Court

is improper, the judgment of the Appellate Court is

reversed, and the case is remanded to that court with

direction to affirm the judgment of the habeas court

denying the petition for a writ of habeas corpus.

In this opinion the other justices concurred.

1 Department of Correction Administrative Directive 9.4 (3) (B) defines

‘‘administrative segregation’’ as ‘‘[p]lacement of an inmate on a restrictive

housing status that results in segregation of the inmate whose behavior or

management factors pose a threat to the security of the facility or a risk to

the safety of staff or other inmates and that the inmate can no longer be

safely managed in general population.’’

2 We granted the petitioner’s petition for certification to appeal, limited

to the following question: ‘‘Did the Appellate Court improperly conclude,

contrary to the rule of Sandin v. Conner, [supra, 515 U.S. 472], and Wilkinson

v. Austin, [supra, 545 U.S. 209], that the petitioner had no liberty interest

in avoiding administrative segregation?’’ Vandever v. Commissioner of Correction, 307 Conn. 909, 53 A.3d 999 (2012).

3 The hearing notice provided in relevant part: ‘‘Reason for Hearing: On

[October 21, 1997] . . . you received a [c]ontraband [c]lass A disciplinary

report substituted for [c]onspiracy to [c]ommit [e]scape. The contraband

you possessed was documentation detailing electronic perimetertechnology

found in correctional facilities. The documentation you recently held, combined with your escape record, may pose a threat to the safety and security

of the institutional community. Therefore, a special classification hearing

will be held . . . to consider you for placement on [a]dministrative [s]egregation status. You will have the opportunity, at this hearing, to offer any

statements on your behalf . . . .

‘‘[You may request] a staff advocate to act [on] your behalf . . . . A

reasonable number of relevant and nonredundant witnesses may appear on

your behalf. . . .’’

4 General Statutes § 18-98a provides: ‘‘Each person committed to the custody of the Commissioner of Correction who is employed within the institution to which he was sentenced, or outside as provided by section 18-100,

for a period of seven consecutive days, except for temporary interruption

of such period as excused by the commissioner for valid reasons, may have

one day deducted from his sentence for such period, in addition to any

other earned time, at the discretion of the Commissioner of Correction.’’

Department of Correction Administrative Directive 9.4 (5) provides: ‘‘An

inmate shall not earn or receive statutory good time, seven-day work credit,

restoration of lost good time or outstanding meritorious performance awards

while on Administrative Segregation, Close Custody, Chronic Discipline

Status or Special Needs Management.’’

5 The record indicates that the disciplinary report ultimately was withdrawn due to concerns over whetherthe NIJ publication actually constituted

contraband in light of the fact that it inadvertently had been stamped

‘‘approved’’ by officials in the mail room at Osborn.

6

In reaching this determination, the habeas court relied on Abed v. Commissioner of Correction, 43 Conn. App. 176, 682 A.2d 558, cert. denied, 239

Conn. 937, 684 A.2d 707 (1996), and Beasley v. Commissioner of Correction,

50 Conn. App. 421, 718 A.2d 487 (1998), aff’d, 249 Conn. 499, 733 A.2d 833

(1999). As we explain more fully hereinafter; see footnote 7 of this opinion;

the habeas court misunderstood the petitioner to be claiming a statutory

or constitutionalright to the good time and work credits that he was ineligible

to earn while in administrative segregation. It is clear from the record,

however, that the petitioner recognized that the foregoing authority precluded such a claim, and that he sought the credits only as a remedy for

the due process violation that he allegedly had suffered.

7 We note that the respondent also asserted at oral argument that the

petitioner never claimed in the habeas court that he had a liberty interest

in avoiding administrative segregation, only that he had a right to the statutory good time creditthat he was ineligible to earn while he was in administrative segregation. Areview ofthe record, however,reveals thatthe petitioner’s

claim was squarely before the habeas court, and that that court simply failed

to address it. In his habeas petition, which he initiated on a form provided

to him, the petitioner selected box ‘‘6c,’’ indicating that his ‘‘hearing on . . .

classification . . . [was] improper . . . .’’ In an attachment to his petition,

he clarified that he was referring to his administrative segregation hearing.
The petitioner also argued in his posttrial brief to the habeas court that

‘‘placement of an [inmate in administrative segregation] mandates a proper

due process . . . and is not any discretional or classification process. . . .

The placement of an [inmate in administrative segregation] creates a liberty

interest because [statutory good time] is denied, and it represents an atypical

and significant hardship from ordinary prison life.’’ (Citations omitted; internal quotation marks omitted.) In support of this claim, the petitioner

expressly relied on Sandin, which establishes the framework for evaluating

whether a prisoner has a liberty interest in avoiding administrative segregation. Accordingly, the habeas court’s reason for denying the habeas petition,

namely, that the award of good time and work credits is entirely within the

discretion of the respondent, cannot be sustained because it is based on a

claim that the petitioner never made.

8 Appellate review of the habeas court’s denial of a petition for certification

to appeal is governed by General Statutes § 52-470 (g), which 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.’’

We previously have explained that, in enacting this statute, ‘‘the legislature

intended to discourage frivolous habeas appeals. . . . A habeas appeal . . .

is not . . . frivolous and warrants appellate review if the appellant can

show: that the issues 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. . . . [I]f an appeal

is not frivolous, the habeas court’s failure to grant certification to appeal

is an abuse of discretion. . . .

‘‘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

[that we have] identified . . . for determining the propriety of the habeas

court’s denial of the petition for certification.’’ (Citations omitted; internal

quotation marks omitted.) Taylor v. Commissioner of Correction, 284 Conn.

433, 448–49, 936 A.2d 611 (2007).

9 Department of Correction Administrative Directive 9.4 (12) provides

that, before an inmate can be placed on administrative segregation status, he

mustreceive ‘‘notice and a hearing’’ that comply with the specific procedures

outlined in subparagraphs (A) and (B) of 9.4 (12) of the directive. Pursuant

to 9.4 (12) (C), the hearing officer is also required to issue a written recommendation that includes the information he or she relied on and the reasoning

behind the recommendation.

This directive satisfies the first prong of Sandin because it requires, ‘‘in

language of an unmistakably mandatory character, that a prisoner not suffer

a particular deprivation’’—in this case, placement in administrative segregation at Northern—‘‘absent specified predicates.’’ (Internal quotation marks

omitted.) Vega v. Lantz, 596 F.3d 77, 83 (2d Cir. 2010).

10 We granted the application of the American Civil Liberties Union of

Connecticut and the Allard K. Lowenstein International Human Rights Clinic

(Human Rights Clinic) to file a brief as amici curiae in support of the

petitioner’s claim of a due process violation, and we also granted permission

to the Human Rights Clinic to present oral argument in this court not to

exceed ten minutes.

11 To the extent that the petitioner contends that his double jeopardy

rights were violated by his placement in administrative segregation on the

basis of conduct that previously had resulted in prison discipline, that claim

also is without merit because the double jeopardy clause is not implicated

by such a placement. See, e.g., Crawford v. Lappin, supra, 446 Fed. Appx.

415 (‘‘Nor is there any basis for [the petitioner’s] claim that placement [in

administrative segregation] based on previously disciplined conduct constitutes a double jeopardy violation. See United States v. Newby, 11 F.3d 1143,

1144 (3d Cir. 1993) ([A] prison disciplinary hearing is not a prosecution for

[d]ouble [j]eopardy [c]lause purposes.).’’ [Internal quotation marks

omitted.]).