Banks v. Commissioner of Correction ( 2023 )

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HAROLD T. BANKS, JR. v. COMMISSIONER
OF CORRECTION
(SC 20621)
Robinson, C. J., and McDonald, D’Auria, Mullins and Ecker, Js.
Syllabus
The petitioner, who had been convicted of robbery in the first degree, filed
a petition for a writ of habeas corpus more than five years after the
date on which his judgment of conviction was deemed to be final.
Pursuant to statute (§ 52-470 (c) and (e)), the respondent, the Commis-
sioner of Correction, moved for an order to show cause why the petition
should not be dismissed as untimely. At a hearing on the motion, the
petitioner’s habeas counsel argued that the petitioner’s history of mental
health issues and his filing of his petition immediately after he received
certain medical records supported a finding of good cause, but counsel
did not present any evidence in support of that argument. The habeas
court dismissed the habeas petition, concluding that it was untimely
and that the petitioner, in failing to present some evidence supporting
the reason for the delay, did not rebut the presumption under § 52-470
(c) that no good cause existed to excuse his late filing. Thereafter, the
petitioner filed a petition for certification to appeal from the dismissal
of the habeas petition pursuant to § 52-470 (g), claiming that the habeas
court had erred in finding that there was not good cause to allow his
untimely petition to proceed. The habeas court denied the petition for
certification to appeal, and 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 his habeas counsel had
rendered ineffective assistance and because the habeas court had failed
to fulfill an alleged duty to intervene to protect the petitioner’s constitu-
tional and statutory rights. Because those claims were not raised before
the habeas court or included in his petition for certification to appeal, the
petitioner sought review under the plain error doctrine or, alternatively,
under State v. Golding (213 Conn. 233). The Appellate Court dismissed
the appeal, however, concluding that the certification requirement in
§ 52-470 (g) bars appellate review of unpreserved claims in uncertified
appeals under both the plain error doctrine and Golding. The Appellate
Court reasoned that the habeas court could not have abused its discre-
tion in denying the petition for certification to appeal when the petitioner
did not distinctly raise his claims during the habeas proceeding or in
his petition for certification to appeal. On the granting of certification,
the petitioner appealed to this court.
Held that the Appellate Court incorrectly determined that § 52-470 (g) bars
plain error and Golding review of claims that, although are not preserved
in the habeas court or included in the petition for certification to appeal,
challenge errors in the habeas court’s handling of the habeas proceed-
ing itself:
After reviewing its precedent on the certification requirement in § 52-
470 (g), this court concluded that that provision does not restrict a
reviewing court’s authority to review unpreserved claims under the plain
error doctrine or Golding after a habeas court denies a petition for
certification to appeal, so long as the unpreserved claims challenge the
habeas court’s handling of the habeas proceeding itself and the appellant
fulfills his or her burden of establishing that the unpreserved claims
involve issues that are not frivolous, insofar as they are either debatable
among jurists of reason, a court could resolve them in a different manner,
or are adequate to deserve encouragement to proceed further.
Moreover, there was not a single case from this court in which it declined
to review an unpreserved issue in an uncertified habeas appeal under
the plain error doctrine or Golding on the ground that the issue had
not been preserved in the habeas court or included in the petition for
certification to appeal.
Although there was Appellate Court case law to the contrary, that case
law was not long-standing, uniform, or consistent, and, to the extent that
this court’s conclusion was inconsistent with Appellate Court precedent
holding that plain error and Golding review is unavailable for unpre-
served claims challenging the actions or omissions of the habeas court
following the denial of a petition for certification to appeal, this court
disavowed the reasoning of those cases.
Furthermore, this court’s conclusion that plain error and Golding review
is available for unpreserved claims challenging the actions or omissions
of the habeas court was supported by the legislative history of § 52-470
(g), which demonstrated that the animating purpose of the certification
requirement was to discourage frivolous habeas appeals while preserving
the right to appellate review for meritorious claims.
This court’s conclusion also was supported by the federal, statutory
(28 U.S.C. § 2253) counterpart to § 52-470 (g), which does not preclude
appellate review of unpreserved claims that are not included in a federal
certificate of appealability, so long as the issues presented are not frivo-
lous, affect substantial rights, and seriously impact the fairness, integrity,
or public reputation of judicial proceedings, and was consistent with
the important judicial policies animating the plain error doctrine and
Golding review.
In addition, the realities of habeas litigation also supported this court’s
conclusion that § 52-470 (g) does not categorically bar plain error or
Golding review of unpreserved claims challenging the habeas court’s
handling of the habeas proceeding itself, as § 52-470 (g) requires that
the petition for certification to appeal be filed within ten days after the
case is decided, the petition for certification often is filed without the
assistance of counsel, and, given the short timespan within which to
research, formulate, and present proposed appellate issues to the habeas
court, it is reasonable to expect that colorable claims of plain or constitu-
tional error will sometimes be omitted from petitions for certification
to appeal.
In the present case, although the petitioner briefed and argued in the
Appellate Court the issue of whether the habeas court abused its discre-
tion in denying his petition for certification to appeal because his claim
that the habeas court had failed to fulfill its alleged duty to intervene
to preserve the petitioner’s constitutional and statutory rights was debat-
able among jurists of reason, could be decided differently, and deserved
encouragement to proceed, the Appellate Court did not address that
issue before dismissing the petitioner’s appeal, and, accordingly, this
court reversed the Appellate Court’s judgment and remanded the case
to that court with direction to consider whether the petitioner had ful-
filled his burden of establishing that his unpreserved claims challenging
the habeas court’s handling of the habeas proceeding itself were not
frivolous.
(Two justices dissenting in one opinion)
Argued December 22, 2022—officially released July 25, 2023
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., rendered judgment dismissing
the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to the Appellate Court, Cradle, Alexander and Suarez,
Js., which dismissed the appeal, and the petitioner, on
the granting of certification, appealed to this court.
Reversed; further proceedings.
Deren Manasevit, assigned counsel, for the appel-
lant (petitioner).
Sarah Hanna, former senior assistant state’s attor-
ney, with whom, on the brief, were Stephen J. Sedensky
III, former state’s attorney, and Leah Hawley, former
senior assistant state’s attorney, for the appellee (respon-
dent).
Opinion
ECKER, J. This certified appeal requires us to deter-
mine whether a habeas court’s denial of a petition for
certification to appeal pursuant to General Statutes
§ 52-470 (g) precludes appellate review of unpreserved
claims under the plain error doctrine or State v. Gold-
ing, 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), when those claims were not included
in the petition for certification to appeal. We conclude
that plain error and Golding review is available to chal-
lenge the habeas court’s handling of the habeas pro-
ceeding itself, despite its denial of a petition for
certification to appeal, if the appellant can demonstrate
that the unpreserved claims involve issues that ‘‘are
debatable among jurists of reason; that a court could
resolve [them in a different manner]; or that [they] are
adequate to deserve encouragement to proceed fur-
ther.’’ (Emphasis in original; internal quotation marks
omitted.) Simms v. Warden, 230 Conn. 608, 616, 646
A.2d 126 (1994) (Simms II). We therefore reverse the
judgment of the Appellate Court dismissing the appeal
filed by the petitioner, Harold T. Banks, Jr., and remand
the case to that court for consideration of the petition-
er’s claims under the Simms II criteria.
On May 30, 2012, the petitioner was convicted of
robbery in the first degree and sentenced to twelve
years of incarceration. He did not file an appeal. More
than five years later, on December 13, 2017, the self-
represented petitioner filed a petition for a writ of
habeas corpus challenging his conviction. The respon-
dent, the Commissioner of Correction, filed a motion
for an order to show cause why the petition should
not be dismissed as untimely under § 52-470 (c), which
provides in relevant part that ‘‘there shall be a rebuttable
presumption that the filing of a petition challenging a
judgment of conviction has been delayed without good
cause if such petition is filed after the later of the follow-
ing: (1) Five years after the date on which the judgment
of conviction is deemed to be a final judgment due to
the conclusion of appellate review or the expiration of
the time for seeking such review; [or] (2) October 1,
2017 . . . .’’ See also General Statutes § 52-470 (e).
The habeas court conducted an evidentiary hearing
on the respondent’s motion, at which the petitioner
was represented by Attorney Jonathan M. Shaw. At the
evidentiary hearing, Attorney Shaw argued that good
cause existed to excuse the petitioner’s belated filing
because the petitioner had ‘‘a long history of mental health
issues . . . .’’1 The respondent’s attorney objected,
stating that ‘‘[w]e don’t have any evidence of that.’’
The habeas court responded: ‘‘Understood. I think he’s
presenting argument. I mean, I’ll allow him to do that.’’
Attorney Shaw did not present any evidence but pro-
ceeded to argue that the petitioner ‘‘filed immediately
after obtaining [certain medical] records in December
of 2017, just a couple months after the deadline, and I
believe there is good cause to allow his case to go for-
ward.’’ The respondent’s attorney countered that the
petitioner had failed to fulfill his burden of demonstra-
ting good cause for the delay because ‘‘[e]very claim
that [Attorney Shaw made was] unsubstantiated by any
evidence, and the timeframe [spoke] for itself.’’
The habeas court thereafter issued a written memo-
randum of decision, dismissing the petitioner’s petition
for a writ of habeas corpus. The habeas court explained
that the ‘‘petitioner had until October 1, 2017, to file
the present petition; however, it was not filed until
December 13, 2017.’’ Given the statutory rebuttable pre-
sumption that no good cause existed to excuse the
petitioner’s late filing, and the petitioner’s failure ‘‘to
provide some evidence of the reason for the delay,’’ the
habeas court concluded that the petition for a writ of
habeas corpus was not timely filed under § 52-470 (c).
(Emphasis in original.)
Following the dismissal of his habeas petition, the
petitioner filed a petition for certification to appeal,
claiming that ‘‘the habeas court erred in finding that
there was not good cause to allow [the] petition for [a
writ of] habeas corpus to proceed on the grounds that he
filed outside of the applicable time limits.’’ The habeas
court denied the petition for certification to appeal.
The petitioner appealed from the denial of his petition
for certification to appeal to the Appellate Court. The
petitioner claimed that the habeas court had abused its
discretion in denying his petition for certification to
appeal because (1) Attorney Shaw rendered ineffective
assistance of counsel, thereby depriving the petitioner
of his statutory right to counsel and his constitutional
right to due process of law, and (2) the habeas court
failed to fulfill an alleged duty to intervene to protect
the petitioner’s constitutional and statutory rights. The
petitioner acknowledged that these claims were not
preserved in the habeas court or included in the petition
for certification to appeal but argued that appellate
review was available under the plain error doctrine
and Golding.
The Appellate Court dismissed the petitioner’s appeal
on the ground that the habeas court could not have
abused its discretion in denying the petition for certifi-
cation to appeal because the petitioner’s claims were
not distinctly raised in the habeas proceeding or included
in the petition for certification. Banks v. Commissioner
of Correction, 205 Conn. App. 337, 342, 345, 256 A.3d
726 (2021). The Appellate Court further concluded that
the certification requirement in § 52-470 (g) bars appel-
late review of unpreserved claims in uncertified appeals
under the plain error doctrine and Golding. Id., 343, 345.
To conclude otherwise, the Appellate Court reasoned,
would ‘‘[undermine] the goals that the legislature sought
to achieve by enacting § 52-470 (g)’’ and ‘‘would invite
petitioners, who have been denied certification to
appeal, to circumvent the bounds of limited review sim-
ply by couching wholly unpreserved claims as plain [or
constitutional] error.’’ Id., 345. We granted certification
to determine whether plain error or Golding review of
unpreserved claims challenging errors in the habeas
court’s handling of the habeas proceeding itself is avail-
able for issues not included in the petition for certifica-
tion to appeal.2
Whether § 52-470 (g) precludes plain error or Golding
review of unpreserved claims in uncertified appeals is
a question of law, over which our review is plenary.
See, e.g., Goguen v. Commissioner of Correction, 341
Conn. 508, 518, 267 A.3d 831 (2021). We begin our analy-
sis with the language of § 52-470 (g), which provides that
‘‘[n]o 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 ques-
tion is involved in the decision which ought to be
reviewed by the court having jurisdiction and the judge
so certifies.’’
In ascertaining the meaning of § 52-470 (g), ‘‘we do
not write on a clean slate, but are bound by our previous
judicial interpretations of the language and the purpose
of the statute.’’ (Internal quotation marks omitted.)
Stratford v. Jacobelli, 317 Conn. 863, 871, 120 A.3d 500(2015); see Hummel v. Marten Transport, Ltd., 282 Conn.
477, 501, 923 A.2d 657 (2007) (General Statutes § 1-2z
did not overrule cases ‘‘in which our courts, prior to
the passage of § 1-2z, had interpreted a statute in a
manner inconsistent with the plain meaning rule, as
that rule is articulated in § 1-2z’’). We first addressed
§ 52-470’s certification requirement in Simms v. War-
den, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I). In
that case, the petitioner, Floyd Simms, did not appeal
from the habeas court’s denial of his petition for certifi-
cation to appeal but, instead, filed a writ of error that
‘‘mirror[ed] the substantive and the procedural argu-
ments that he presented to the habeas court.’’ Id., 180.
We dismissed Simms’ writ of error for lack of jurisdic-
tion because he had a right to appeal from the judgment
of the habeas court, even if that right was qualified
by the certification requirement. See id., 180–82. We
determined that our lack of jurisdiction to review habeas
appeals by way of a writ of error was ‘‘entirely consis-
tent with the manifest intention of the legislature, when
it enacted [General Statutes (Rev. to 1993)] § 52-470 (b)
[now codified as amended at § 52-470 (g)], to limit the
opportunity for plenary appellate review of decisions
in cases seeking postconviction review of criminal con-
victions.’’ Id., 182. In arriving at this conclusion, we
noted that ‘‘[t]he unavailability of appellate review of
habeas corpus proceedings by means of a writ of error
does not leave a disappointed litigant remediless to
obtain review of the merits of the habeas corpus judg-
ment’’ because, even if certification to appeal is denied,
a disappointed litigant ‘‘can nonetheless file an appeal
in the proper appellate forum.’’ Id., 186. We construed
the certification requirement in § 52-470 to permit such
an appeal if, as a predicate matter, the appellant could
demonstrate that the ‘‘denial of certification to appeal
was an abuse of discretion or that an injustice appears
to have been done.’’ Id., 189.
In Simms II, we addressed whether the language in
§ 52-470 providing that ‘‘ ‘[n]o appeal . . . may be
taken’ was intended by the legislature as a limitation
on the jurisdiction of the appellate tribunal or as a
limitation on the scope of the review by the appellate
tribunal.’’ Simms v. Warden, supra, 230 Conn. 613. We
noted that, although there was no right to appeal from
the denial of a petition for a writ of habeas corpus
at common law, an unconditional right of appeal had
existed by state statute since 1882. See id., 614. Given
the historical statutory right to appeal from the judg-
ment of a habeas court, and, among other things, ‘‘the
significant role of the writ of habeas corpus in our
jurisprudence . . . we conclude[d] that the legislature
intended the certification requirement only to define
the scope of our review and not to limit the jurisdiction
of the appellate tribunal.’’ (Citations omitted.) Id., 614–
15. Thus, appellate courts have jurisdiction to review
an appeal from the denial of a petition for certification
to appeal, provided that the petitioner ‘‘make[s] a two
part showing’’: (1) that the denial of the petition for
certification to appeal was an abuse of discretion, and
(2) ‘‘[i]f the petitioner succeeds in surmounting that
hurdle, the petitioner must then demonstrate that the
judgment of the habeas court should be reversed on its
merits.’’ Id., 612.
In Simms II, we also addressed the standard a peti-
tioner must meet to sustain his burden of demonstrating
that the habeas court abused its discretion in denying
a petition for certification to appeal. See id., 615. In light
of the legislative purpose of the certification requirement
‘‘to discourage frivolous habeas appeals’’; id., 616; we
incorporated into § 52-470, ‘‘by analogy, the criteria
adopted by the United States Supreme Court in Lozada
v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L.
Ed. 2d 956 (1991), in its analysis of the certificate of
probable cause to appeal that is part of the federal
statute governing habeas corpus,’’3 holding that ‘‘[a]
petitioner satisfies that burden by demonstrating: ‘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 encourage-
ment to proceed further.’ ’’ (Emphasis in original.) Simms
v. Warden, supra, 230 Conn. 615–16, quoting Lozada v.
Deeds, supra, 432. Accordingly, in an appeal under § 52-
470 (g), a petitioner can establish an ‘‘abuse of discre-
tion in the denial of a timely request for certification
to appeal if he can demonstrate’’ that his appeal ‘‘is not
frivolous’’ under ‘‘one of the Lozada criteria . . . .’’
Simms v. Warden, supra, 230 Conn. 616.
The statutory restriction on the scope of our appellate
review is limited to appeals in which certification to
appeal has been denied. In James L. v. Commissioner
of Correction, 245 Conn. 132, 136, 712 A.2d 947 (1998),
the habeas court granted certification to appeal, but
one of the issues raised on appeal was not included in
the petition for certification. We held that a disap-
pointed litigant may raise issues he did not include in
his petition for certification to appeal in light of the
purpose of the writ of habeas corpus ‘‘to serve as a
bulwark against convictions that violate fundamental
fairness’’ and our precedent narrowly construing the
certification requirement ‘‘so as to preserve the commit-
ment to justice that the writ of habeas corpus embod-
ies.’’ (Internal quotation marks omitted.) Id., 137. Once
certification to appeal has been granted, ‘‘[c]lose lin-
guistic parsing’’ of the language in the petition for certifi-
cation to appeal would serve ‘‘no good purpose,’’ and
‘‘appellate scrutiny of habeas proceedings might bring
to light new issues [the] reviewability [of which] should
not turn on the terms of the grant of certification.’’ Id.,
138. Accordingly, ‘‘in the absence of demonstrable prej-
udice, the legislature did not intend the terms of the
habeas court’s grant of certification to be a limitation
on the specific issues subject to appellate review.’’ Id.In James L., the uncertified issue had been preserved
in the habeas court, even though it had not been
included in the petition for certification to appeal. Id.,
136. In Mozell v. Commissioner of Correction, 291
Conn. 62, 67 and n.2, 967 A.2d 41 (2009), we considered
whether, following the granting of certification, we
could review under Golding and the plain error doctrine
claims that had not been distinctly raised in the habeas
proceeding. We rejected the notion that ‘‘Golding
review is inapplicable in all circumstances that arise
from an appeal from the judgment of a habeas court,’’
holding that, if a ‘‘petitioner challenges the actions of
the habeas court itself . . . Golding review is applica-
ble.’’ Id., 67 n.2.
Later, in Moye v. Commissioner of Correction, 316
Conn. 779, 114 A.3d 925 (2015), we elaborated on ‘‘the
extent to which unpreserved constitutional claims may
be reviewed on appeal in habeas actions.’’4 Id., 780. We
clarified that Golding review is not available to address
claims that ‘‘arose during [a petitioner’s] criminal trial
and should have been presented to the habeas court
as an additional basis for granting the writ of habeas
corpus.’’ Id., 787. Instead, ‘‘Golding review is available
in a habeas appeal only for claims that challenge the
actions of the habeas court.’’ Id. Limiting Golding
review in habeas appeals to claims that challenge the
actions or omissions of the habeas court ‘‘makes sense
. . . because that is the first instance in which the peti-
tioner could seek review of such a claim. From a proce-
dural standpoint, raising on appeal an unpreserved
constitutional claim that arose during a habeas trial is
no different from raising on direct appeal an unpre-
served constitutional claim that arose during a criminal
trial. In both circumstances, the appellant is raising
the unpreserved claim in the first possible instance.’’
Id., 788–89.
Consistent with the history and purpose of the writ
of habeas corpus and the certification requirement, we
have not hesitated to review unpreserved issues chal-
lenging the habeas court’s handling of the habeas pro-
ceeding itself, despite the petitioner’s failure to identify
those issues in the petition for certification to appeal,
when the ‘‘denial of certification to appeal was an abuse
of discretion or . . . an injustice appears to have been
done.’’ Simms v. Warden, supra, 229 Conn. 189. Recently,
for example, in Brown v. Commissioner of Correction,
345 Conn. 1, 282 A.3d 959 (2022), we reviewed the
petitioner’s claim that he was entitled to notice and an
opportunity to be heard prior to the habeas court’s
summary dismissal of his petition for a writ of habeas
corpus under Practice Book § 23-29, even though that
claim had not been raised in the habeas proceeding or
included in the petition for certification to appeal
denied by the habeas court.5 See id., 5, 8. We held that
our rules of practice provide certain procedural safe-
guards prior to a dismissal under § 23-29, which include
‘‘prior notice to the petitioner or the petitioner’s counsel
and an opportunity to file a written response.’’ Id., 14.
Given the habeas court’s failure to comply with the
rules of practice prior to dismissing the petition, we
reversed and remanded the case to the habeas court
for further proceedings. Id., 18.
Our decision in Brown was neither novel nor anoma-
lous regarding appellate review of unpreserved claims
in uncertified appeals. Numerous additional cases also
demonstrate our willingness to review unpreserved claims
challenging the actions or omissions of the habeas court
when the alleged errors violate the petitioner’s constitu-
tional rights or rise to the level of plain error, despite
the petitioner’s failure to include those claims in the
petition for certification to appeal. See, e.g., Cookish
v. Commissioner of Correction, 337 Conn. 348, 358,
360–61, 253 A.3d 467 (2020) (habeas court abused its
discretion in dismissing habeas petition under Practice
Book § 23-29, even though claim was not preserved in
habeas proceeding or included in petition for certifica-
tion); Ajadi v. Commissioner of Correction, 280 Conn.
514, 525–31, 911 A.2d 712 (2006) (habeas judge’s failure
to disqualify himself in violation of Code of Judicial
Conduct constituted plain error that was reviewable in
uncertified appeal); see also Howard v. Commissioner
of Correction, 217 Conn. App. 119, 126, 287 A.3d 602(2022) (concluding, in light of Brown, that unpreserved
claim in uncertified appeal ‘‘involve[d] issues that
[were] debatable among jurists of reason, that a court
could resolve the issues in a different manner, and that
the questions [were] adequate to deserve encourage-
ment to proceed further’’); Foote v. Commissioner of
Correction, 151 Conn. App. 559, 566–69, 96 A.3d 587(reviewing unpreserved claim in uncertified appeal
under plain error doctrine), cert. denied, 314 Conn. 929,
102 A.3d 709 (2014), and cert. dismissed, 314 Conn.
929, 206 A.3d 764 (2014); Melendez v. Commissioner
of Correction, 141 Conn. App. 836, 841–44, 62 A.3d 629(same), cert. denied, 310 Conn. 921, 77 A.3d 143 (2013).6
On the basis of the foregoing precedent, we distill
the following governing, legal principles that combine
to resolve the issue at hand: (1) the certification require-
ment in § 52-470 (g) is construed narrowly to preserve
the commitment to justice embodied in the writ of
habeas corpus; (2) the certification requirement is not
intended to preclude appellate review altogether, but
only to discourage frivolous habeas appeals; (3) a habeas
appeal is not frivolous if the issues are debatable among
jurists of reason, a court could resolve the issues in a
different manner, or the questions are adequate to deserve
encouragement to proceed further; and (4) if an appeal
is not frivolous, we have the authority to review claims
raised for the first time on appeal under Golding and
the plain error doctrine, even if those claims were not
included in the petition for certification to appeal, so
long as the claims challenge the actions or omissions
of the habeas court.
Application of these principles leads us to conclude
that § 52-470 (g) does not restrict our authority to
review unpreserved claims under the plain error doc-
trine or Golding following a habeas court’s denial of
a petition for certification to appeal, so long as the
appellants’ claims challenge the habeas court’s handling
of the habeas proceeding itself and the appellant fulfills
his or her burden of establishing that the unpreserved
claims involve 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.’’ (Emphasis
in original; internal quotation marks omitted.) Simms
v. Warden, supra, 230 Conn. 616. In other words, the
appellant must demonstrate that the unpreserved and
uncertified claims are nonfrivolous, which we define
as raising a colorable claim of plain error or the violation
of a constitutional right due to the actions or omissions
of the habeas court. Only if the appellant ‘‘succeeds in
surmounting that hurdle’’ will the appellate court review
the appellant’s unpreserved claims on the merits. Id.,
612. As always, the appellant bears the ultimate burden
of ‘‘demonstrat[ing] that the judgment of the habeas
court should be reversed on its merits.’’ Id.To support its conclusion to the contrary, the dis-
senting opinion relies on ‘‘nearly thirty years of Appel-
late Court case law holding that claims not raised before
the habeas court either prior to or during the certifica-
tion process, such as in the petition for certification [to
appeal], are unreviewable on appeal.’’ We disagree with
this assessment of the case law. As a preliminary matter,
we note that there is not a single case from this court
in which we have declined to review an unpreserved
issue in an uncertified habeas appeal under the plain
error doctrine or Golding on the ground that the issue
had not been preserved below or included in the petition
for certification to appeal. Indeed, we consistently have
reviewed nonfrivolous, unpreserved claims in uncerti-
fied appeals. As for the Appellate Court case law, our
review reveals that it is far from consistent or long-
standing. As the dissenting opinion recognizes, ‘‘[t]he
Appellate Court, in Foote v. Commissioner of Correc-
tion, supra, 151 Conn. App. 566–69, and Melendez v.
Commissioner of Correction, [supra, 141 Conn. App.
841–44], afforded plain error review to claims that were
not raised before the habeas court or listed in the peti-
tioners’ petitions for certification to appeal but, instead,
were raised for the first time on appeal to the Appellate
Court.’’ More recently, in Howard v. Commissioner of
Correction, supra, 217 Conn. App. 119, the Appellate
Court reviewed the petitioner’s unpreserved claim
under the plain error doctrine, even though it was not
articulated in the petition for certification to appeal
denied by the habeas court,7 because it ‘‘involve[d]
issues that are debatable among jurists of reason, that
a court could resolve . . . in a different manner, and
that . . . deserve[d] encouragement to proceed fur-
ther.’’ Id., 126. Although there is Appellate Court case
law to the contrary; see footnote 14 of this opinion; the
lack of uniformity in the Appellate Court authority leads
us to conclude that deference to the Appellate Court
decisions cited in the dissenting opinion is unwar-
ranted.8
In addition to our case law, the legislative history of
§ 52-470 (g) provides further support for our conclusion.
As we pointed out in Simms II, the animating purpose
of the certification requirement is to ‘‘discourage frivo-
lous habeas appeals’’; (emphasis added) Simms v. War-
den, supra, 230 Conn. 616; while at the same time
preserving the right of appellate review for meritorious
claims. See 7 S. Proc., Pt. 5, 1957 Sess., p. 2936, remarks
of Senator John H. Filer (certification requirement was
intended to ‘‘reduce successive frivolous appeals in
criminal matters and [to] hasten ultimate justice with-
out repetitive trips to the [Connecticut] Supreme Court’’
(emphasis added)). During the legislative debate, a let-
ter authored by former Chief Justice William M. Maltbie
was read aloud to the Senate. See id., pp. 2936–40. In
his letter, Chief Justice Maltbie expressed his concern
that habeas appeals were being improperly utilized ‘‘to
delay the execution of the death sentence . . . .’’ Id.,
p. 2938. Chief Justice Maltbie acknowledged that ‘‘any
effort to reduce such delays must be [weighed against]
the necessity that nothing should be done [that] would
in any way jeopardize the right of the innocent to the
full protection of the law.’’ Id., p. 2937. To balance these
competing interests, Chief Justice Maltbie urged the
adoption of the certification requirement. Id., p. 2939–40.
The role of the certification requirement in weeding
out frivolous habeas appeals from meritorious ones is
not unique to our state law. The federal courts also
have a certification requirement, referred to as the cer-
tificate of appealability, 28 U.S.C. § 2253, from which
we derived the Simms II criteria.9 To obtain a certificate
of appealability, a petitioner must make ‘‘a substantial
showing of the denial of a constitutional right.’’ 28 U.S.C.
§ 2253 (c) (2) (2018); see footnote 3 of this opinion.
Typically, a petitioner first seeks a certificate of appeal-
ability from a district court. See Fed. R. App. P. 22
(b) (1); see also C. Cutler, ‘‘Friendly Habeas Reform—
Reconsidering a District Court’s Threshold Role in the
Appellate Habeas Process,’’ 43 Willamette L. Rev. 281,
305 (2007) (noting that, under rule 22 of Federal Rules
of Appellate Procedure, district courts serve ‘‘as the
gateway through which a petitioner would first pass in
habeas appeals’’). If the certificate of appealability is
denied, the petitioner then may seek a certificate of
appealability from a federal court of appeals. See 28
U.S.C. § 2253 (a) (2018). The federal court of appeals
will grant a certificate of appealability if the petitioner
can demonstrate under the Lozada criteria that the
issues are debatable among jurists of reason, can be
resolved in a different manner, or deserve encourage-
ment to proceed further. See Lozada v. Deeds, supra,498 U.S. 432. In applying this standard, the federal
courts of appeals will review issues raised for the first
time on appeal if ‘‘there is (1) error (2) that is plain,
which (3) affects substantial rights, and which (4) seri-
ously affects the fairness, integrity, or public reputation
of judicial proceedings.’’ (Internal quotation marks
omitted.) Veal v. Jones, 376 Fed. Appx. 809, 810 (10th
Cir. 2010); see Wallace v. Mississippi, 43 F.4th 482,
496 (5th Cir. 2022) (Unpreserved habeas claims are
reviewable under the plain error doctrine, which requires
a petitioner to demonstrate ‘‘(1) a forfeited error; (2)
that was plain (clear or obvious error, rather than one
subject to reasonable dispute); and (3) that affected his
substantial rights. . . . And (4), if he makes that show-
ing, [the court has] the discretion to correct the revers-
ible plain error, but generally should do so only if it
seriously affect[s] the fairness, integrity or public repu-
tation of judicial proceedings.’’ (Citations omitted; inter-
nal quotation marks omitted.)); Rodriguez v. Scillia,
193 F.3d 913, 921 (7th Cir. 1999) (reviewing court can
address claims not included in certificate of appealabil-
ity if there is ‘‘a substantial showing of the denial of a
constitutional right’’). Thus, 28 U.S.C. § 2253, like § 52-
470 (g), does not preclude appellate review of unpre-
served claims that were not included in the request for
review submitted to the court that denied habeas relief,
so long as those issues are nonfrivolous, affect substan-
tial rights, and impact the fairness, integrity, or public
reputation of judicial proceedings.10
Our conclusion that the certification requirement in
§ 52-470 (g) does not preclude plain error or Golding
review of nonfrivolous, unpreserved claims in uncerti-
fied appeals also is consistent with the important judi-
cial policies animating those doctrines. ‘‘[T]he plain
error doctrine is reserved for truly extraordinary situa-
tions [in which] the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . A party
cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in mani-
fest injustice.’’ (Citation omitted; internal quotation
marks omitted.) State v. McClain, 324 Conn. 802, 812,
155 A.3d 209 (2017). Likewise, Golding ‘‘is a judicially
created rule of reviewability designed to balance the
twin policy goals of vindicating constitutional rights
while ensuring fairness to the parties and the courts
alike by safeguarding against the tactical use of unpre-
served claims on appeal.’’ State v. Elson, 311 Conn. 726,
748–49, 91 A.3d 862 (2014). We have explained that,
‘‘because constitutional claims implicate fundamental
rights, it . . . would be unfair automatically and cate-
gorically to bar a defendant from raising a meritorious
constitutional claim that warrants a new trial solely
because the defendant failed to identify the violation
at trial. Golding strikes an appropriate balance between
these competing interests: the defendant may raise such
a constitutional claim on appeal, and the appellate tribu-
nal will review it, but only if the trial court record
is adequate for appellate review.’’11 (Internal quotation
marks omitted.) Id., 749.
Lastly, our conclusion that the certification require-
ment in § 52-470 (g) does not categorically bar plain
error or Golding review of unpreserved claims challeng-
ing the habeas court’s handling of the habeas proceed-
ing itself in uncertified appeals is consistent with the
realities of habeas litigation.12 We do not have access
to any hard data on the issue, but it appears that the
petition for certification to appeal, which must be sub-
mitted ‘‘within ten days after the case is decided’’; Gen-
eral Statutes § 52-470 (g); often is filed without the
assistance of counsel. See, e.g., Cookish v. Commis-
sioner of Correction, supra, 337 Conn. 351–52 (petition
for certification to appeal was filed by self-represented
petitioner); Gilchrist v. Commissioner of Correction,
334 Conn. 548, 551–52, 223 A.3d 368 (2020) (same);
Howard v. Commissioner of Correction, supra, 217
Conn. App. 123–24 (same); Antonio A. v. Commissioner
of Correction, 205 Conn. App. 46, 59–60, 256 A.3d 684(same), cert. denied, 339 Conn. 909, 261 A.3d 744 (2021);
Henderson v. Commissioner of Correction, 181 Conn.
App. 778, 793, 189 A.3d 135 (same), cert. denied, 329
Conn. 911, 186 A.3d 707 (2018); Kowalyshyn v. Com-
missioner of Correction, 155 Conn. App. 384, 387–88,
109 A.3d 963 (same), cert. denied, 316 Conn. 909, 111
A.3d 883 (2015); Logan v. Commissioner of Correction,
125 Conn. App. 744, 749, 9 A.3d 776 (2010) (same), cert.
denied, 300 Conn. 918, 14 A.3d 333 (2011); Lebron v.
Commissioner of Correction, 108 Conn. App. 245, 247,
947 A.2d 349 (same), cert. denied, 289 Conn. 921, 958
A.2d 151 (2008); see also footnote 5 of this opinion.
Given the short span of time in which to research,
formulate, and present proposed appellate issues to the
habeas court, and the possible change in legal represen-
tation between the conclusion of the habeas court pro-
ceeding and the initiation of the appeal, it is reasonable
to expect that colorable claims of plain or constitutional
error will sometimes fall through the cracks. Addition-
ally, appellate oversight by ‘‘someone other than the
judge hearing the habeas case is a significant protection
of the rights that habeas corpus proceedings are
intended to protect,’’ particularly when the petitioner’s
claim is that the actions or omissions of the habeas
court itself violated the petitioner’s constitutional rights
or rose to the level of plain error. Simms v. Warden,
supra, 229 Conn. 186.
We emphasize that a petitioner raising an unpre-
served claim that was not included in the petition for
certification to appeal under the plain error doctrine
or Golding must fulfill the burden of establishing that
the habeas court’s denial of the petition for certification
to appeal was an abuse of discretion under the Simms II
criteria.13 See Goguen v. Commissioner of Correction,
supra, 341 Conn. 513 (‘‘[t]he petitioner may not simply
disregard the requirement of Simms II and brief only
the merits of the underlying claim without any effort
to comply with the ‘two part showing’ required by
Simms II, which includes the discrete question of
whether the habeas court abused its discretion in deny-
ing certification’’). As we recently explained in Goguen,
a petitioner’s burden under Simms II ‘‘at least to allege
that [he or she is] entitled to appellate review because
the habeas court abused its discretion in denying the
petition for certification to appeal’’ is not an onerous
one. Id., 524; see id., 523 (‘‘although the burden of obtaining
appellate review of the threshold question under Simms
and its progeny is minimal, the petitioner must at least
allege that the habeas court abused its discretion in
denying the petition for certification to appeal’’ (empha-
sis in original)). The burden may be fulfilled in one of
two ways. ‘‘First, the petitioner may strictly comply
with the two part showing required by Simms II and
expressly argue specific reasons why the habeas court
abused its discretion in denying certification. Second,
the petitioner may expressly allege that his [or her]
argument on the merits demonstrates an abuse of dis-
cretion.’’ Id., 523. Although the burden is not onerous,
requiring compliance with the Simms II criteria pro-
vides petitioners with the requisite incentive to include
their unpreserved claims in the petition for certification
to appeal whenever possible.
For the foregoing reasons, we conclude that unpre-
served claims challenging the habeas court’s handling
of the habeas proceeding are reviewable under the plain
error doctrine and Golding, despite the petitioner’s fail-
ure to include such claims in the petition for certifica-
tion to appeal denied by the habeas court, if the
petitioner can demonstrate, consistent with Simms II,
that the unpreserved claims involve issues that are
debatable among jurists of reason, could be resolved
in a different manner, or deserve encouragement to
proceed further.14 In the present case, the petitioner
briefed and argued in the Appellate Court that the
habeas court had abused its discretion in denying his
petition for certification to appeal because his claim
that the habeas court failed to fulfill its alleged duty to
intervene to preserve the petitioner’s constitutional and
statutory rights was ‘‘debatable among jurists of reason,
could be decided differently and deserve[s] encourage-
ment to proceed.’’ Banks v. Commissioner of Correc-
tion, Conn. Appellate Court Briefs & Appendices, March
Term, 2021, Petitioner’s Brief p. 5. The Appellate Court,
however, did not address this issue before dismissing
the petitioner’s appeal. See Banks v. Commissioner of
Correction, supra, 205 Conn. App. 342–43. Accordingly,
we reverse the judgment of the Appellate Court and
remand the case to that court for consideration of
whether the petitioner fulfilled his burden of establish-
ing that his Golding and plain error claims challenging
the habeas court’s handling of the habeas proceeding
itself were nonfrivolous under the Simms II criteria.
The judgment of the Appellate Court is reversed and
the case is remanded to that court for further proceed-
ings in accordance with this opinion.
In this opinion McDONALD and D’AURIA, Js., con-
curred.
1
At the hearing, Attorney Shaw stated that he ‘‘would just leave it to . . .
what was stated in [the petitioner’s] response to the motion [for an order
to show cause].’’ In that response, Attorney Shaw argued that good cause
existed to excuse the petitioner’s belated filing because the petitioner pre-
viously had filed a timely petition for a writ of habeas corpus, which allegedly
was withdrawn on the advice of counsel. According to Attorney Shaw, ‘‘[t]he
petitioner wished to refile the present action as soon as possible but needed
to obtain medical records from various mental health treatment facilities
in the state of New York. . . . The petitioner received his requested records
on or about December of 2017. . . . Upon receipt of the . . . records, the
petitioner immediately refiled his petition for a writ of habeas corpus.’’ No
evidence was submitted at the hearing in support of these assertions.
2
Specifically, we granted the petitioner’s petition for certification to
appeal, limited to the following two issues: (1) ‘‘Did the Appellate Court
correctly interpret Ajadi v. Commissioner of Correction, 280 Conn. 514,
911 A.2d 712 (2006), Cookish v. Commissioner of Correction, 337 Conn.
348, 253 A.3d 467 (2020), and other decisions of this court in concluding
that plain error review of challenges to the habeas court’s handling of the
habeas proceedings is unavailable for any issue that is not included in the
petition for certification to appeal?’’ And (2) ‘‘[d]id the Appellate Court
correctly interpret Mozell v. Commissioner of Correction, 291 Conn. 62,
967 A.2d 41 (2009), Moye v. Commissioner of Correction, 316 Conn. 779,
114 A.3d 925 (2015), and other decisions of this court in concluding that
review under State v. Golding, [supra, 213 Conn. 233], of challenges to the
habeas court’s handling of the habeas proceedings is unavailable for any
issue that is not included in the petition for certification to appeal?’’ Banks
v. Commissioner of Correction, 338 Conn. 907, 908, 258 A.3d 1281 (2021).
The petitioner’s ineffective assistance of counsel claims, which do not chal-
lenge the habeas court’s handling of the habeas proceedings, are outside
the scope of the certified issues.
3
‘‘What had been known previously as a certificate of probable cause is
now called a certificate of appealability.’’ 17B C. Wright et al., Federal
Practice and Procedure (3d Ed. 2007) § 4268.5, p. 509; see 28 U.S.C. § 2253(c) (1) (2018) (‘‘[u]nless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from . . .
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or (B) the final
order in a proceeding under section 2255’’).
4
Although it is not clear from our decision in Moye, the habeas court
granted the petition for certification to appeal in that case. See 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).
5
In Brown, the self-represented petitioner’s petition for certification to
appeal identified only the following issue: ‘‘The petitioner was never constitu-
tionally properly ‘CANVASSED’ before the start of trial . . . .’’ Brown v.
Commissioner of Correction, Conn. Supreme Court Briefs & Appendices,
September Term, 2021, Petitioner’s Appendix p. A13.
6
The dissenting opinion contends that these cases are distinguishable
because ‘‘they did not involve claims of which the petitioner was aware, or
should have been aware, before or during the certification process.’’ This
assertion is unfounded. In Brown v. Commissioner of Correction, supra,
345 Conn. 1, the petitioner knew or should have known when he filed his
petition for certification to appeal that the habeas court had dismissed his
habeas petition without providing him notice and an opportunity to be heard,
but, nonetheless, he did not include this issue in his petition for certification.
See footnote 5 of this opinion. Despite this omission and the habeas court’s
denial of the petition for certification to appeal, we addressed the issue on
its merits. See Brown v. Commissioner of Correction, supra, 8–9. Similarly,
in Cookish v. Commissioner of Correction, supra, 337 Conn. 348, the peti-
tioner knew or should have known when he filed his petition for certification
to appeal that the habeas court had dismissed his habeas ‘‘petition under
[Practice Book] § 23-29 without first appointing him counsel and providing
him with notice and an opportunity to be heard . . . .’’ Id., 350. Although
the petitioner failed to include the issue in his petition for certification to
appeal, we reviewed the propriety of the habeas court’s dismissal of the
petition under § 23-29 because ‘‘the court could have resolve[d] the [issue
in a different manner] . . . .’’ (Internal quotation marks omitted.) Id., 361;
see Cookish v. Commissioner of Correction, Conn. Supreme Court Briefs &
Appendices, April Term, 2020, Petitioner’s Appendix pp. A12, A15.
In Ajadi v. Commissioner of Correction, supra, 280 Conn. 514, it is clear
that our discussion of the petitioner’s lack of knowledge of the habeas
judge’s improper participation in the habeas proceeding was not a predicate
to our review of the petitioner’s claim of plain error but, instead, a response
to the respondent’s claim that ‘‘the petitioner implicitly had consented to
[the habeas judge’s] improper adjudication of the [habeas] case pursuant
to [General Statutes] § 51-39 (c).’’ Id., 530. We held that the petitioner had
not waived the habeas judge’s conflict of interest because ‘‘the petitioner
was not present at the hearing . . . and did not become aware of the
identity of the habeas judge until after the habeas proceedings had concluded
completely.’’ (Emphasis in original.) Id., 531. Under these circumstances,
‘‘the plain error doctrine [was] applicable . . . because a habeas judge’s
alleged[ly] improper failure to disqualify himself in violation of the Code of
Judicial Conduct and our rules of practice strikes at the very core of judicial
integrity and tends to undermine public confidence in the established judi-
ciary.’’ (Internal quotation marks omitted.) Id., 526.
In sum, our existing practice is to address nonfrivolous claims that the
habeas court’s handling of the habeas proceeding itself violated the petition-
er’s constitutional rights or constituted plain error that resulted in manifest
injustice. To reverse course, as the dissenting opinion proposes, would
require us to hold that the foregoing cases were wrongly decided. We reject
that proposition.
7
In Howard, the sole issue in the self-represented petitioner’s petition
for certification to appeal was that the petitioner was ‘‘ ‘[d]issatisfied with
[the habeas court’s] decision.’ ’’ Howard v. Commissioner of Correction,
supra, 217 Conn. App. 123–24. ‘‘[M]indful of [its] obligation to construe
the pleadings filed by self-represented litigants liberally’’; id., 126 n.6; the
Appellate Court addressed whether the habeas court properly dismissed
the petitioner’s habeas petition pursuant to Practice Book § 23-29 without
first providing the habeas petitioner with notice and an opportunity to be
heard, even though this precise claim was not included in the petition for
certification. See id., 120–21.
8
It is unclear to us whether the lack of consistency in the Appellate Court
authority is attributable to doctrinal disagreement regarding the reviewabil-
ity of unpreserved issues in uncertified appeals or, alternatively, a sub
silentio assessment of the merits of the issues raised on appeal. To the
extent that it is the latter, we note that our conclusion today permits the
Appellate Court expeditiously to dispose of frivolous claims in uncertified
appeals if the issues raised are not debatable among jurists of reason, could
not be resolved in a different manner, and do not deserve encouragement
to proceed further.
9
The dissenting opinion implies that our state certification requirement
should be construed more broadly than its federal counterpart because of
the state interest ‘‘in preserving an orderly and efficient judicial process, in
comity, in finality and in justice . . . .’’ (Citation omitted; internal quotation
marks omitted.) We agree that we are not required to construe § 52-470 (g)
in a manner consistent with 28 U.S.C. § 2253, but the mere fact that we
have the ability to adopt a different rule is not a reason to do so. Our
research reveals that the purpose of our petition for certification and the
federal certificate of appealability is the same—to reduce the filing of frivo-
lous habeas appeals. See, e.g., Barefoot v. Estelle, 463 U.S. 880, 892–93, 103
S. Ct. 3383, 77 L. Ed. 2d 1090 (1983) (‘‘[t]he primary means of separating
meritorious from frivolous appeals should be the decision to grant or with-
hold a certificate of probable cause’’); Sengenberger v. Townsend, 473 F.3d
914, 915 (9th Cir. 2006) (describing certificate of appealability as ‘‘a mecha-
nism . . . to monitor and preclude the taking of frivolous appeals’’). Given
the common purpose shared by these two provisions, and our history of
construing § 52-470 (g) ‘‘narrowly so as to preserve the commitment to
justice that the writ of habeas corpus embodies’’; James L. v. Commissioner
of Correction, supra, 245 Conn. 137; we see no reason to depart from federal
law in this respect.
10
The federal analogue is not perfect. The federal courts of appeals can
grant a certificate of appealability under 28 U.S.C. § 2253, whereas a petition
for certification to appeal in Connecticut can be granted only by ‘‘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 . . . .’’
General Statutes § 52-470 (g). The respondent argues that ‘‘[c]onsideration
of an unpreserved claim in determining whether to issue a [certificate of
appealability] is a wholly different question than that presented in this
case, namely, the consideration of an unpreserved claim after a petition for
certification has been denied . . . .’’ We do not agree with the respondent’s
characterization because the standards for granting a certificate of appeal-
ability and for reviewing the denial of a petition for certification to appeal
are the same under the Lozada and Simms II criteria. We therefore conclude
that the federal comparison is apt and meaningful in this particular context.
11
‘‘[A] defendant can prevail on a claim of constitutional error not pre-
served at trial 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 defendant 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.’’ (Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40; see In re Yasiel R., supra, 317 Conn. 781(modifying third prong of Golding). ‘‘The first two [prongs of Golding]
involve a determination of whether the claim is reviewable; the second two
. . . involve a determination of whether the defendant may prevail.’’ (Inter-
nal quotation marks omitted.) State v. Armadore, 338 Conn. 407, 437, 258
A.3d 601 (2021).
12
The dissenting opinion’s conclusion to the contrary not only would leave
a habeas petitioner who has a nonfrivolous claim under Golding or the plain
error doctrine without any recourse by way of appeal, but also would place
such a petitioner in a worse position than one who has raised successive
frivolous claims. This irrational and unjustifiable consequence would arise
because the denial of a petition for certification to appeal may be appealed
under § 52-470 (g), even if the claims raised in the petition are successive,
frivolous, or specious, whereas meritorious claims involving the violation
of constitutional rights or plain error that were not preserved or included
in the petition for certification must, according to the view of the dissenting
opinion, be dismissed. We will not construe the certification requirement
in § 52-470 (g) to produce such an illogical outcome.
13
As a purely rhetorical matter, it is true that a habeas court cannot be
said to have abused its discretion in denying a petition for certification to
appeal if it was not asked to exercise its discretion to certify the unpreserved
issue in the first place. See Banks v. Commissioner of Correction, supra,
205 Conn. App. 344 (‘‘[t]he [habeas] court could not abuse its discretion in
denying the petition for certification about matters that the petitioner never
raised’’ (internal quotation marks omitted)). But this is a matter of semantics,
not substance. The more accurate inquiry in this context is whether it would
have been an abuse of discretion to deny the petition for certification to
appeal if the unpreserved issue had been included in the petition for certifica-
tion. See, e.g., Cookish v. Commissioner of Correction, supra, 337 Conn.
361 (concluding, with respect to unpreserved issue not included in petition
for certification to appeal, that ‘‘the [habeas] court could have resolve[d]
the [issue in a different manner] and, therefore, abused its discretion in
denying the petitioner’s petition for certification to appeal’’ (internal quota-
tion marks omitted)); Howard v. Commissioner of Correction, supra, 217
Conn. App. 126 (concluding that unpreserved claim of procedural error in
uncertified appeal ‘‘involve[d] 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’’).
The inquiry, as reframed, defers to the habeas court’s denial of the petition
for certification to appeal and discourages frivolous appeals, while simulta-
neously permitting appellate review of colorable claims of plain and constitu-
tional error in the habeas court’s handling of the habeas proceeding itself,
to avoid manifest injustice and to maintain public confidence in the fairness
and integrity of habeas proceedings. Contrary to the view of the dissenting
opinion, the reframed inquiry is no more speculative than the traditional
inquiry—in both instances a reviewing court is asking the same exact ques-
tion, namely, whether the denial of certification was an abuse of discretion
because ‘‘the issues are debatable among jurists of reason . . . a court
could resolve the issues [in a different manner] . . . or . . . the questions
are adequate to deserve encouragement to proceed further.’’ (Emphasis in
original; internal quotation marks omitted.) Simms v. Warden, supra, 230
Conn. 616.
14
To the extent that our conclusion is inconsistent with Appellate Court
precedent holding that plain error or Golding review is unavailable for
unpreserved claims challenging the actions or omissions of the habeas court
following the denial of a petition for certification to appeal, we hereby
disavow the reasoning of those cases. See, e.g., Solek v. Commissioner of
Correction, 203 Conn. App. 289, 299, 248 A.3d 69, cert. denied, 336 Conn.
935, 248 A.3d 709 (2021); Coleman v. Commissioner of Correction, 202
Conn. App. 563, 569–71, 246 A.3d 54, cert. denied, 336 Conn. 922, 246 A.3d
2 (2021); Whistnant v. Commissioner of Correction, 199 Conn. App. 406,
418–19, 236 A.3d 276, cert. denied, 335 Conn. 969, 240 A.3d 286 (2020);
Villafane v. Commissioner of Correction, 190 Conn. App. 566, 573–74, 211
A.3d 72, cert. denied, 333 Conn. 902, 215 A.3d 160 (2019); Mercado v. Commis-
sioner of Correction, 85 Conn. App. 869, 872, 860 A.2d 270 (2004), cert.
denied, 273 Conn. 908, 870 A.2d 1079 (2005).