Connecticut Criminal Lawyer Blog

A habeas petitioner improperly raised an ex post facto claim arising out of the recalculation of his presentence confinement credits following the Connecticut Supreme Court's 2004 decision in Harris v. Commissioner of Correction. Vance Johnson was charged with murder and criminal possession of a firearm and held in pretrial custody. He plead guily to criminal possession of a firearm and was sentenced to five years incarceration. The commissioner of correction applied 819 days of presentence confinement credit to his five year sentence.

Thereafter, following a jury trial, Johnson was convicted of murder and sentenced to 60 years incarceration concurrent to the five year sentence. The conviction was affirmed on appeal. The commissioner moved the confinement credit from the five year sentence to the 60 year sentence. After Harris, which determined, inter alia, that once presentence confinement is applied to one sentence, it cannot be applied to a subsequent sentence, the commissioner reapplied the credit to the weapons charge.

As a result, Johnson's maximum release date was changed from July 5, 2052 to Dec. 12, 2054. Johnson's initial petition for a writ of habeas corpus alleging ineffective assistance of counsel was denied. His second petition for a writ of habeas corpus claimed that his trial and first habeas counsel were both ineffective and that the recalculation of his confinement credit violated his due process and equal protection rights. The habeas court found the claim with regard to trial counsel barred by the doctrine of res judicata, the claim concerning habeas counsel unproven and rejected the jail credit argument. The Supreme Court affirmed. The second habeas court properly concluded that the initial habeas counsel did not render ineffective assistance by failing to raise the issue of trial counsel's failure to present the testimony of a ballistics expert when such testimony would not have been helpful in establishing the petitioner's claim of self defense. The petitioner's claim on appeal that the respondent's retroactive application of Harris violated the ex post facto clause of the federal constitution was not raised in the lower court and the majority of the Court declined to review it. In a footnote the Court points out that the ex post facto clause is limited to actions of the legislative branch and that while a judicial construction of a criminal statute that operates like an ex post facto law may violate due process, the Court recently rejected a similiar claim in

Washington v. Commissioner of Correction.
Johnson v. Commissioner of Correction
(17997)
Connecticut Supreme Court
Connecticut Law Tribune