Connelly v. Semple

Filing 29

ORDER granting 17 Motion to Dismiss; denying 26 Motion for Summary Judgment. Please see attached Ruling and Order. Signed by Judge Robert N. Chatigny on 3/31/16. (Samuels, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WILLIAM CONNELLY,

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Petitioner,
v.
SCOTT SEMPLE,
Respondent.

Case No. 3:15-cv-632 (RNC)

RULING AND ORDER
Petitioner, a Connecticut inmate proceeding pro se, brings
this habeas corpus action pursuant to 28 U.S.C. § 2254
challenging his ineligibility for transitional supervision.

He

contends that, under the Ex Post Facto Clause, he has a right to
be considered for community release sooner than permitted by
current Department of Correction (“DOC”) policy.

Respondent has

moved to dismiss the petition on several grounds, including that
the Second Circuit has already decided that the Ex Post Facto
Clause does not apply here.
judgment.

Petitioner has moved for summary

Because I conclude that petitioner’s claim fails as a

matter of law, respondent’s motion to dismiss is granted and
petitioner’s motion for summary judgment is denied.
In a previous case, petitioner brought an Ex Post Facto
challenge to a Connecticut parole statute that was passed after
he committed the crime resulting in his current incarceration.
The Court in that case granted summary judgment in favor of the
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DOC Commissioner, ruling that the legislative change did not
constitute an Ex Post Facto violation.

Connelly v. Lantz, No.

CIV.A. 300-CV-720JCH, 2007 WL 3308013, at *5-6 (D. Conn. Nov. 5,
2007).

In that ruling, the Court noted that petitioner had not

asserted any claims with respect to changes in DOC policy on
eligibility for early release.

Id. at *6 n.14.

On appeal, the judgment of the District Court was affirmed
by summary order.
2010).

Connelly v. Lantz, 366 F. App’x 194 (2d Cir.

The Court of Appeals rejected petitioner’s argument that

the District Court should have considered whether changes in DOC
guidelines violated his constitutional rights, explaining that
petitioner had not raised this claim below, and, “in any event,
the ex post facto clause does not apply to the Department’s
guidelines or administrative directives.”

Id. at 195.

The petition now before the Court asserts that DOC is
applying revised community release guidelines in a way that
violates the Ex Post Facto Clause.

At the time of petitioner’s

crime, an inmate was eligible for release within 30 months of his
or her estimated release date.

Under current DOC guidelines, an

inmate must be within 18 months of the estimated release date in
order to be eligible.

Petitioner argues that the Ex Post Facto

Clause requires DOC to apply the 30-month cutoff, rather than the
18-month cutoff, because those were the guidelines that were in
effect when his crime was committed.

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The Second Circuit’s order in the previous case undercuts
petitioner’s claim.

As described above, the Court explicitly

stated that the Ex Post Facto Clause does not apply to DOC
guidelines or administrative directives.
at 195.

Connelly, 366 F. App’x

Petitioner points out that the Court’s summary order

does not have precedential effect, but the binding authority on
which the order relies makes clear that the Ex Post Facto Clause
is not applicable in this situation.

See Barna v. Travis, 239

F.3d 169, 171 (2d Cir. 2001) (“The Ex Post Facto Clause does not
apply to guidelines that do not create mandatory rules for
release but are promulgated simply to guide the parole board in
the exercise of its discretion.”); DiNapoli v. N.E. Reg’l Parole
Comm’n, 764 F.2d 143, 147 (2d Cir. 1985) (“federal parole
guidelines . . . are not ‘laws’ within the meaning of the ex post
facto clause”).
Petitioner argues that a recent Supreme Court decision,
Peugh v. United States, 133 S. Ct. 2072 (2013), undermines the
Second Circuit’s conclusion that the Ex Post Facto Clause does
not apply to DOC’s early release guidelines.
Circuit has not interpreted Peugh in this way.

However, the Second
In fact, the

Court of Appeals has explicitly stated that Barna, the case cited
in the summary order in petitioner’s previous case, has not been
superseded by Peugh.

Bottom v. Pataki, 610 F. App’x 38, 41 (2d

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Cir. 2015).1

Petitioner’s argument regarding the effect of Peugh

is therefore unavailing.
Accordingly, respondent’s motion to dismiss [ECF No. 17] is
hereby granted, and petitioner’s motion for summary judgment [ECF
No. 26] is denied.

Because petitioner has not shown that he has

been denied a constitutional right, a certificate of
appealability will not issue.

The Clerk may enter judgment and

close the case.
So ordered this 31st day of March 2016.

/s/ RNC
Robert N. Chatigny
United States District Judge

1

Although the underlying facts in Bottom involved the New
York parole scheme, Connecticut’s community release guidelines at
issue here are also discretionary in nature. See Deam v. I.N.S.,
No. 3:04CV1958(MRK), 2005 WL 2098857, at *2 (D. Conn. Aug. 30,
2005) (“[U]nder Connecticut law, placement in institutional
programs and administration of the parole program is entirely
discretionary.”).
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