Banks v. Commissioner of Correction ( 2023 )

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BANKS v. COMMISSIONER OF CORRECTION—DISSENT
ROBINSON, C. J., with whom MULLINS, J., joins,
dissenting. I respectfully disagree with the majority’s
conclusion that General Statutes § 52-470 (g)1 permits
appellate review of unpreserved claims challenging a
habeas court’s handling of a proceeding under either
the plain error doctrine2 or State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),3
despite a petitioner’s failure to provide the habeas court
with notice of the claims, so long as those claims are
nonfrivolous under Simms v. Warden, 230 Conn. 608,
612, 616, 646 A.2d 126 (1994) (Simms II). Instead, I
agree with the Appellate Court’s well reasoned opinion,
in which it declined to review the unpreserved claims
raised on appeal by the petitioner, Harold T. Banks, Jr.,
because they were not distinctly raised in the habeas
proceeding or included in the petition for certification
to appeal. Banks v. Commissioner of Correction, 205
Conn. App. 337, 345, 256 A.3d 726 (2021). Because I
would affirm the judgment of the Appellate Court dis-
missing the petitioner’s appeal, I respectfully dissent.
I note my agreement with the majority’s recitation
of the facts, procedural history, and governing legal
principles, as set forth by, among other authorities,
General Statutes § 1-2z and Simms v. Warden, supra,
230 Conn. 612–16. However, I believe that the majority’s
conclusion in this case is inconsistent with the purpose
of § 52-470 (g), namely, ‘‘to reduce the number of appeals
in criminal matters and [to] hasten ultimate justice with-
out repetitive recourse to appeals’’; Iovieno v. Commis-
sioner of Correction, 242 Conn. 689, 696, 699 A.2d 1003(1997) (Iovieno II); as well as an abundance of prece-
dent governing when appellate review in habeas cases
is available under that statute. Because a petitioner
must allege that, and explain how, a habeas court had
abused its discretion in denying a petition for certifica-
tion to appeal under § 52-470 (g); Goguen v. Commis-
sioner of Correction, 341 Conn. 508, 512–13, 267 A.3d
831 (2021); appellate review is unavailable for claims
not presented to the habeas court in the petition for
certification or otherwise, insofar as a habeas court
cannot abuse its discretion in denying a petition for
certification regarding matters of which it never had
notice.
A brief review of the history of appeals in habeas
cases is instructive. Although the writ of habeas corpus
existed at common law, the denial of the writ was not
reviewable either on appeal or by writ of error. Carpen-
ter v. Meachum, 229 Conn. 193, 198–99, 640 A.2d 591(1994). ‘‘[T]he unavailability of the writ of error in habeas
cases may have stemmed from an understanding that
habeas was a summary proceeding, even interlocutory
in nature. Accordingly, appeal was denied in order to
avoid unnecessary delays in reaching final judgment in
the [case-in-chief]—usually the criminal prosecution of
the petitioner.’’ (Internal quotation marks omitted.) Id.,
199; see id., 200 (noting that ‘‘[e]arly state court deci-
sions’’ viewed ‘‘appellate review in habeas cases as
wholly a creature of statute’’ (internal quotation marks
omitted)). In 1882, the legislature provided a statutory
right to appeal from the judgment of any trial court; see
C. Schuman, ‘‘Habeas Reform: The Long and Winding
Road,’’ 86 Conn. B.J. 295, 309 (2012); and the Connnecti-
cut Supreme Court of Errors first recognized the right
to appeal from a habeas court judgment in 1891. See
Carpenter v. Meachum, supra, 200 (discussing Yudkin
v. Gates, 60 Conn. 426, 427, 22 A. 776 (1891), seminal
case on habeas appeals, which held that ‘‘appellate juris-
diction to hear such an appeal depended [on] compli-
ance with the [statutory] requirements’’).
In 1957, the legislature qualified the right to appeal
from a habeas court’s judgment by enacting what is now
§ 52-470 (g), which requires a petition for certification
to appeal as a prerequisite to appellate review in habeas
cases.4 C. Schuman, supra, 86 Conn. B.J. 309. The legisla-
ture enacted § 52-470 (g) ‘‘to reduce the number of
appeals in criminal matters and [to] hasten ultimate
justice without repetitive recourse to appeals.’’ Iovieno
v. Commissioner of Correction, supra, 242 Conn. 696;
see 7 S. Proc., Pt. 5, 1957 Sess., p. 2936, remarks of
Senator John H. Filer. A letter authored by former Chief
Justice William M. Maltbie, which was read aloud on
the Senate floor during debate on the bill, further illus-
trates the legislature’s objective in enacting § 52-470
(g). That letter emphasized that ‘‘nothing should be done
[that] would in any way jeopardize the right of the
innocent to the full protection of the law’’; 7 S. Proc.,
supra, p. 2937; but Chief Justice Maltbie acknowledged
that there is no ‘‘constitutional [guarantee]’’ to an appeal
from a judgment on a writ of habeas corpus and that
the writ of habeas corpus had been used to delay the
execution of death sentences. Id., p. 2939.
In Simms v. Warden, 229 Conn. 178, 640 A.2d 601(1994) (Simms I), this court assumed that § 52-470 (g)
implicated the jurisdiction of an appellate tribunal and
held that a petitioner whose timely request for certifica-
tion to appeal from the dismissal of his habeas petition
was denied must demonstrate that the denial was an
abuse of discretion to obtain appellate review of the
claims raised in the petition. See id., 187–89; see also
C. Schuman, supra, 86 Conn. B.J. 310–11 (observing
that it had become common to appeal from denial of
petition for certification to appeal given federal habeas
exhaustion requirements and desire of attorneys repre-
senting state habeas petitioners to avoid claims of inef-
fective assistance of counsel). Subsequently, in Simms
II, this court revisited the jurisdictional issue in Simms
I and instead concluded that, because the legislature
limited a then unconditional right to appeal in enacting
§ 52-470 (g), it ‘‘intended the certification requirement
only to define the scope of our review and not to limit
the jurisdiction of the appellate tribunal.’’ Simms v.
Warden, supra, 230 Conn. 615. This court also consid-
ered the standards by which a possible abuse of discre-
tion should be measured and held that a petitioner can
establish a habeas court’s abuse of discretion by demon-
strating that ‘‘the issues are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further.’’5 (Empha-
sis in original; internal quotation marks omitted.) Id.,
616.
The test articulated in Simms II left unclear certain
obligations of petitioners with respect to the making
of the threshold showing of a habeas court’s abuse of
discretion. See Goguen v. Commissioner of Correction,
supra, 341 Conn. 512. We emphasized the importance
of that showing in our recent decision in Goguen, which
held that the Appellate Court had properly dismissed
a habeas appeal when the petitioner’s brief addressed
only the merits of the claim and did not include any
analysis with respect to whether the habeas court had
abused its discretion by denying certification to appeal.
Id., 513. We held that, for the statutory mandate of § 52-
470 (g) to retain any force at all, a petitioner, even one
who is self-represented, ‘‘must at least expressly allege
and explain in his brief how the habeas court abused
its discretion in denying certification. . . . The peti-
tioner 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 denying certification.’’ Id., 512–13; see
id., 522 (although merits of petitioner’s appeal are rele-
vant in determining whether habeas court abused its
discretion, petitioners cannot ‘‘fail entirely to address
that threshold issue and still obtain appellate review’’).
We emphasized that permitting a habeas petitioner to
‘‘obtain appellate review if he briefs only the merits of
his underlying claims . . . would . . . eviscerate the
limitations contained in § 52-470 [g]. In effect, the denial
of the petition for certification could become an empty
gesture, because one does not need to be prescient to
foresee that every disappointed habeas petitioner could,
once his petition for certification is denied, file or per-
fect a direct appeal under the same statute.’’ (Emphasis
added; internal quotation marks omitted.) Id., 522–23;
see Simms v. Warden, supra, 229 Conn. 191–92 (Borden,
J., concurring) (noting that § 52-470 (g) ‘‘was enacted
to limit appellate rights that previously existed’’ and
that ‘‘the majority’s implied invitation to appeal . . .
could well eviscerate the limitations contained in’’ § 52-
470 (g)).
The reasoning of Goguen and the purpose of § 52-
470 (g) are consistent with the line of well established
Appellate Court case law holding that ‘‘a petitioner can-
not demonstrate that the habeas court abused its discre-
tion in denying a petition for certification to appeal if
the issue raised on appeal was never raised before the
court at the time that it considered the petition for
certification to appeal as a ground on which certifica-
tion should be granted.’’ (Emphasis added.) 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); see, e.g., Tutson v. Commissioner of
Correction, 144 Conn. App. 203, 216–17, 72 A.3d 1162(petitioner did not raise claim when asking court to rule
on petition for certification to appeal), cert. denied, 310
Conn. 928, 78 A.3d 145 (2013). Reviewing claims not
raised in the petition for certification to appeal ‘‘would
amount to an ambuscade of the [habeas] judge.’’ (Inter-
nal quotation marks omitted.) Mitchell v. Commis-
sioner of Correction, 68 Conn. App. 1, 7, 790 A.2d 463,
cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002); see
id., 5–7 (declining to review unpreserved claim when
petitioner failed to raise it in petition for certification
to appeal or application for waiver of fees, costs and
expenses and appointment of appellate counsel); see
also Foote v. Commissioner of Correction, 151 Conn.
App. 559, 571, 96 A.3d 587 (Keller, J., concurring)
(‘‘[t]his principle is grounded in sound considerations
related not only to the orderly progress of the trial, but
in avoiding an appellate ambush of the habeas court
which, at the time that it considers a petition under
§ 52-470 (g), reasonably may be expected to rely solely
on those questions that have been brought to its atten-
tion by a petitioner seeking remedy by way of an
appeal’’), cert. denied, 314 Conn. 929, 102 A.3d 709(2014), and cert. dismissed, 314 Conn. 929, 206 A.3d
764 (2014).
In support of its conclusion that the failure to raise
a claim in the petition for certification is not necessarily
fatal to a habeas appeal, the majority cites to ‘‘[n]umer-
ous additional cases [that] demonstrate our willingness
to review unpreserved claims challenging the actions or
omissions of the habeas court when the alleged errors
violate the petitioner’s constitutional 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.’’ I, however, am not persuaded that those
decisions require this court to overrule nearly thirty
years of Appellate Court case law holding that claims
not raised before the habeas court either prior to or
during the certification process, such as in the petition
for certification, are unreviewable on appeal. See Cope-
land v. Warden, 26 Conn. App. 10, 13–14, 596 A.2d 477(1991) (bypass under test set forth in State v. Evans,
165 Conn. 61, 70, 327 A.2d 576 (1973), as reformulated
in Golding, was inappropriate in habeas proceeding
when habeas court did not rule on or decide claims),
aff’d, 225 Conn. 46, 621 A.2d 1311 (1993). The cases
cited by the majority are distinguishable because, in
contrast to the present case, they did not involve claims
of which the petitioner was aware, or should have been
aware, before or during the certification process. See
Banks v. Commissioner of Correction, supra, 205 Conn.
App. 345 (noting that petitioner’s claim of plain error in
this certified appeal was based on events that occurred
during his habeas trial).
To begin, I agree with the Appellate Court that this
court’s decision in Ajadi v. Commissioner of Correc-
tion, 280 Conn. 514, 911 A.2d 712 (2006), ‘‘is best limited
to the unique facts of that case.’’ Banks v. Commis-
sioner of Correction, supra, 205 Conn. App. 345 n.5. In
Ajadi, the petitioner, Rafiu Abimbola Ajadi, claimed
that it was plain error for the habeas judge to preside
over his petition for a writ of habeas corpus and his
petition for certification to appeal because the judge’s
prior representation of Ajadi as an attorney should have
disqualified him from adjudicating the case. See Ajadi v.
Commissioner of Correction, supra, 522–25. The respon-
dent argued in response that Ajadi had implicitly con-
sented to the judge’s improper participation by failing
to timely object to the disqualification. Id., 524, 530. We
disagreed, noting that Ajadi ‘‘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. Moreover, [Ajadi’s] habeas
counsel did not know . . . [or] have any reason to
know . . . of [the judge’s] prior representation of
[Ajadi] until after the habeas proceedings had con-
cluded completely.’’ (Emphasis in original.) Id., 531.
Based on the foregoing, we concluded that Ajadi did
not implicitly consent to the judge’s participation in his
case. Id.
The Appellate Court, in Foote v. Commissioner of
Correction, supra, 151 Conn. App. 566–69, and Melendez
v. Commissioner of Correction, 141 Conn. App. 836,
841–44, 62 A.3d 629, cert. denied, 310 Conn. 921, 77
A.3d 143 (2013), afforded plain error review to claims
that were not raised before the habeas court or listed
in the petitioners’ petitions for certification to appeal
but, instead, were raised for the first time on appeal to
the Appellate Court. In its decision in the present case,
the Appellate Court limited the holdings of Foote and
Melendez to their facts because ‘‘the majority in Foote
did not provide a reason for departing from the settled
jurisprudence’’; Banks v. Commissioner of Correction,
supra, 205 Conn. App. 345 n.5; and, in Melendez, ‘‘the
court afforded plain error review of the petitioner’s
unpreserved claim with no discussion as to why it was
doing so.’’ Id., 344 n.3. Once again, I agree. Before address-
ing the plain error claim in Melendez, the Appellate
Court notably recognized that ‘‘[t]he petitioner did not
raise his claim . . . before the habeas court and did
not raise his claim of plain error in his petition for
certification to appeal . . . . The court could not abuse
its discretion in denying the petition for certification
about matters that the petitioner never raised.’’ (Empha-
sis added.) Melendez v. Commissioner of Correction,
supra, 841.
The majority aptly observes that, in Moye v. Commis-
sioner of Correction, 316 Conn. 779, 780, 114 A.3d 925(2015), this court ‘‘elaborated on ‘the extent to which
unpreserved constitutional claims may be reviewed on
appeal in habeas actions.’ ’’ However, I note that this
court denied Golding review of the unpreserved ineffec-
tive assistance of counsel claim of the petitioner, Mar-
cus Moye, because it arose during Moye’s criminal trial
and not out of the actions or omissions of the habeas
court itself; see id., 787; and, therefore, the claim ‘‘could
have [been] raised in his habeas petition.’’ (Emphasis
in original.) Id., 789. We additionally rejected Moye’s
contention that Golding review was available for ‘‘any
constitutional claim on appeal that he could have prop-
erly raised in the habeas court’’; (emphasis in original)
id., 788; and noted that, ‘‘[i]f we were to allow Golding
review under such circumstances, a habeas petitioner
would be free to raise virtually any constitutional claim
on appeal, regardless of what claims he raised in his
habeas petition or what occurred at his habeas trial,’’
which would ‘‘undermine the principle that a habeas
petitioner is limited to the allegations in his petition,
which are intended to put the [respondent] on notice
of the claims made, to limit the issues to be decided,
and to prevent surprise.’’ (Internal quotation marks
omitted.) Id., 789.
The majority cites other decisions that I find similarly
unpersuasive to justify its departure from existing prac-
tice. They are distinguishable because they involve
cases in which the petition for certification had been
granted by the habeas court. See, e.g., James L. v. Com-
missioner of Correction, 245 Conn. 132, 135–36, 712
A.2d 947 (1998) (appellate review was not limited to
issues raised in respondent’s petition for certification
to appeal, which had been granted by habeas court);
Howard v. Commissioner of Correction, 217 Conn.
App. 119, 126 n.6, 287 A.3d 602 (2022) (‘‘[u]nder these
circumstances . . . we conclude that the petition rea-
sonably may be interpreted so as to encompass the
court’s decision to dismiss the petition sua sponte’’
(citation omitted; emphasis added)); Moye v. Commis-
sioner of Correction, 147 Conn. App. 325, 328, 81 A.3d
1222 (2013) (because court granted petition for certifi-
cation, appellate review was not limited to issues pre-
sented in petition), aff’d, 316 Conn. 779, 114 A.3d 925(2015).6 Thus, I am not convinced that these cases com-
pel this court to depart from the Appellate Court’s long-
standing holding that, by definition, a habeas court can-
not abuse its discretion under the first prong of Simms
II on an issue not put before that court. See Covenant
Medical Center, Inc. v. State Farm Mutual Automobile
Ins. Co., 500 Mich. 191, 200–201, 895 N.W.2d 490 (2017)
(‘‘[a]lthough this [c]ourt is not in any way bound by
the opinions of the [Michigan] Court of Appeals, [it]
nevertheless tread[s] cautiously in considering whether
to reject a long line of [case law] developed by our
intermediate appellate court’’); see also In re Jorden
R., 293 Conn. 539, 553, 979 A.2d 469 (2009) (‘‘[e]arlier
and recent Appellate Court case law is in accord with
this interpretation’’).
Furthermore, the majority acknowledges 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 unpre-
served issue in the first place,’’ but it nevertheless
frames the relevant inquiry on appeal as ‘‘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 certification.’’
(Emphasis in original.) Footnote 13 of the majority opin-
ion. I disagree. This speculative endeavor endorsed by
the majority stands in stark contrast to the ‘‘limited task’’
of this court and the Appellate Court, ‘‘as . . . reviewing
court[s],’’ when considering whether a habeas court
abused its discretion in denying an appeal, including
whether a petitioner raised his claims in the petition
for certification or otherwise alerted the habeas court
to the existence of the claim. Henderson v. Commis-
sioner of Correction, 181 Conn. App. 778, 792, 189 A.3d
135, cert. denied, 329 Conn. 911, 186 A.3d 707 (2018);
see Peeler v. Commissioner of Correction, 161 Conn.
App. 434, 460, 127 A.3d 1096 (2015) (‘‘[i]n determining
whether the court improperly denied the petition for
certification with regard to the actual innocence claim
. . . it is appropriate that we limit our consideration
to that narrow issue, as it is the only aspect of the claim
[on] which the habeas court was asked to exercise
its discretion’’).
The majority’s reliance on federal case law interpre-
ting the certificate of appealability in federal habeas
cases under 28 U.S.C. § 2253,7 from which we derived
the Simms II criteria, is similarly misplaced. See Simms
v. Warden, supra, 230 Conn. 615–16; see also Lozada
v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L.
Ed. 2d 956 (1991). Permitting review of claims a peti-
tioner did not raise before the habeas court is inconsis-
tent with our recent decision in Goguen, which
recognized that ‘‘[p]ermitting appellants to bypass the
Simms II requirements would be inconsistent with the
legislative intent of reducing the burden on the appellate
system,’’ and that the default rule is that a petitioner
‘‘is not entitled to appellate review of his claims unless
he demonstrates that the habeas court abused its discre-
tion in denying certification.’’ Goguen v. Commissioner
of Correction, supra, 341 Conn. 523–24. The abundance
of Appellate Court case law is clear that ‘‘a petitioner
cannot demonstrate that the habeas court abused its
discretion in denying a petition for certification to
appeal if the issue raised on appeal was never raised
before the court . . . .’’ (Internal quotation marks omit-
ted.) Lewis v. Commissioner of Correction, 211 Conn.
App. 77, 93, 271 A.3d 1058, cert. denied, 343 Conn. 924,
275 A.3d 1213, cert. denied sub nom. Lewis v. Quiros,
U.S. , 143 S. Ct. 335, 214 L. Ed. 2d 150 (2022);
see Foote v. Commissioner of Correction, supra, 151
Conn. App. 571 (Keller, J., concurring).
Moreover, in the habeas context, a state’s particular
interest is ‘‘in preserving an orderly and efficient judicial
process, in comity, in finality and in justice’’; K. Manis-
calco, ‘‘Current Habeas Corpus Issues,’’ 15 New Eng. J.
on Crim. & Civ. Confinement 1, 1 (1989); and, consistent
with this rationale, the certification requirement in § 52-
470 (g) serves ‘‘to reduce successive frivolous appeals
in criminal matters and [to] hasten ultimate justice
. . . .’’ 7 S. Proc., supra, p. 2936, remarks of Senator
Filer. Likewise, this court has recognized that, in
enacting § 52-470 (g), the legislature desired ‘‘to limit
the number of appeals filed in criminal cases and [to]
hasten the final conclusion of the criminal justice pro-
cess . . . .’’ Iovieno v. Commissioner of Correction,
supra, 242 Conn. 699; see id., 696. It still holds true
today that § 52-470 (g) acts as a limitation on the scope
of review on appeals from a habeas court’s denial of
petition for certification to appeal. See, e.g., Whistnant
v. Commissioner of Correction, 199 Conn. App. 406,
414, 236 A.3d 276, cert. denied, 335 Conn. 969, 240 A.3d
286 (2020). Because ‘‘[o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature’’; (internal quotation marks omitted) Cerame
v. Lamont, 346 Conn. 422, 426, 291 A.3d 601 (2023);
the majority’s conclusion that petitioners can raise on
appeal unpreserved plain error or Golding claims that
were not raised in their petition for certification or
before the habeas court ‘‘expands the scope of review
and thwarts the goals that the legislature sought to
achieve by enacting § 52-470 (g).’’ Foote v. Commis-
sioner of Correction, supra, 151 Conn. App. 573–74
(Keller, J., concurring); see Whistnant v. Commis-
sioner of Correction, supra, 418–19 (‘‘[p]ermitting a
habeas petitioner, in an appeal from a habeas judgment
following the denial of a petition for certification to
appeal, to seek Golding review of a claim that was not
raised in, or incorporated into, the petition for certifica-
tion to appeal would circumvent the requirements of
§ 52-470 (g) and undermine the goals that the legislature
sought to achieve in enacting § 52-470 (g)’’).
Our limited task as a reviewing court in these situa-
tions is to determine only whether the habeas court
abused its discretion in concluding that the petitioner’s
appeal is frivolous, and, if so, whether the judgment of
the habeas court should be reversed on its merits. See
Simms v. Warden, supra, 230 Conn. 612. Indeed, ‘‘[a]buse
of discretion is the proper standard because that is the
standard to which we have held other litigants whose
rights to appeal the legislature has conditioned [on]
the obtaining of the trial court’s permission’’; id.; and
‘‘[i]nherent . . . in the concept of judicial discretion is
the idea of choice and a determination between compet-
ing considerations.’’ (Internal quotation marks omitted.)
DiLieto v. County Obstetrics & Gynecology Group, P.C.,
310 Conn. 38, 55, 74 A.3d 1212 (2013). ‘‘Because it is
impossible to review an exercise of discretion that did
not occur, [appellate courts] are confined to reviewing
only those issues [that] were brought to the habeas
court’s attention in the petition for certification to
appeal.’’ (Emphasis in original; internal quotation marks
omitted.) Henderson v. Commissioner of Correction,
supra, 181 Conn. App. 792. By definition, then, a habeas
court cannot abuse its discretionary, decision-making
authority when no notice is provided to the court and
when the issue was never raised for decision making
in the first instance. By permitting unpreserved plain
error or Golding review, petitioners, who have been
denied certification to appeal, are invited ‘‘to circum-
vent the bounds of limited review simply by couching
wholly unpreserved claims [in terms of] plain error.’’
Foote v. Commissioner of Correction, supra, 151 Conn.
App. 574 (Keller, J., concurring). ‘‘There seems to be little
point’’ to the certification requirement if petitioners can
nevertheless raise on appeal any unpreserved claims
challenging the habeas court’s handling of a proceeding
under the plain error doctrine or Golding. C. Schuman,
supra, 86 Conn. B.J. 311.
Although the majority states that, ‘‘[f]rom a proce-
dural standpoint, raising on appeal an unpreserved con-
stitutional claim that arose during a habeas trial is no
different from raising on direct appeal an unpreserved
constitutional claim that arose during a criminal trial’’;
(internal quotation marks omitted); a habeas appeal
following the denial of a petition for certification ‘‘is
not the appellate equivalent of a direct appeal from a
criminal conviction.’’ (Internal quotation marks omit-
ted.) Damato v. Commissioner of Correction, 156
Conn. App. 165, 168, 113 A.3d 449, cert. denied, 317
Conn. 902, 114 A.3d 167 (2015); see Goguen v. Commis-
sioner of Correction, supra, 341 Conn. 525 (allowing
petitioner to bypass allegation that habeas court had
abused its discretion would ‘‘render the Simms [II] two
part test meaningless, given that a denial of certification
would be treated no differently from a grant of certifica-
tion; i.e., in either scenario, all that is required would
be to brief solely the merits of the underlying claim’’).
Although a petition for certification to appeal is often
filed without the assistance of counsel, and, therefore,
‘‘courts should review habeas petitions with a lenient
eye’’; (internal quotation marks omitted) Gilchrist v.
Commissioner of Correction, 334 Conn. 548, 560, 223
A.3d 368 (2020); ‘‘the right of self-representation pro-
vides no attendant license not to comply with relevant
rules of procedural and substantive law. . . . A habeas
court does not have the discretion to look beyond the
pleadings and trial evidence to decide claims not raised.’’
(Internal quotation marks omitted.) Henderson v. Com-
missioner of Correction, supra, 181 Conn. App. 793;
see Villafane v. Commissioner of Correction, supra,
190 Conn. App. 573–74; see also id., 578 n.2 (‘‘a petition-
er’s decision not to include an issue in his petition for
certification to appeal that was preserved during the
habeas trial itself is more akin to abandoning the claim’’).8
Contrary to the majority, because I am unpersuaded
that our decisions subsequent to Simms II require us to
overrule existing Appellate Court case law, and because
the legislative history of § 52-470 (g) demonstrates that
the statutory certification requirement bars appellate
review of unpreserved claims in uncertified appeals
under the plain error doctrine and Golding when a
petitioner fails to raise them before a habeas court prior
to or during the certification process, I conclude that
the Appellate Court properly dismissed the petition-
er’s appeal.
Because I would affirm the judgment of the Appellate
Court, I respectfully dissent.
1
General Statutes § 52-470 (g) provides: ‘‘No appeal from the judgment
rendered in a habeas corpus proceeding brought by or on behalf of a person
who has been convicted of a crime in order to obtain such person’s release
may be taken unless the appellant, within ten days after the case is decided,
petitions the judge before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated by the Chief Court
Administrator, to certify that a question is involved in the decision which
ought to be reviewed by the court having jurisdiction and the judge so cer-
tifies.’’
2
‘‘[The plain error] doctrine, codified at Practice Book § 60-5, is an extraor-
dinary remedy used by appellate courts to rectify errors committed at trial
that, although unpreserved, are of such monumental proportion that they
threaten to erode our system of justice and work a serious and manifest
injustice on the aggrieved party.’’ (Internal quotation marks omitted.) State
v. Blaine, 334 Conn. 298, 305, 221 A.3d 798 (2019).
3
‘‘[A] defendant can prevail on a claim of constitutional error not preserved
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).
4
‘‘Pursuant to No. 12-115, § 1, of the 2012 Public Acts, subsection (b) of
§ 52-470 was redesignated as subsection (g).’’ Villafane v. Commissioner
of Correction, 190 Conn. App. 566, 572 n.1, 211 A.3d 72, cert. denied, 333
Conn. 902, 215 A.3d 160 (2019).
5
Just a few short years after this court’s decision in Simms II, this court
decided Iovieno II and overruled its previous decision in Iovieno v. Commis-
sioner of Correction, 222 Conn. 254, 608 A.2d 1174 (1992), which had held
that ‘‘the habeas court was correct in concluding that it had no discretion
to consider an untimely petition for certification to appeal.’’ Id., 258. In
Iovieno II, this court concluded that the ten day time limitation in § 52-470 (g)
did not implicate the habeas court’s subject matter jurisdiction to consider
whether to allow an untimely appeal and that the habeas court retained the
discretion to determine whether to entertain an untimely appeal. Iovieno
v. Commissioner of Correction, supra, 242 Conn. 700. Former Chief Justice
Simms cases and Iovieno II and arguing that Simms II should instead be
overruled. See id., 716–17 (Callahan, C. J., dissenting). In doing so, he noted
that, ’’to limit the scope of our review in accordance with the perceived
legislative intent, the majority in Simms II created an initial hurdle for
habeas petitioners who have not obtained certification to appeal by requiring
those petitioners to prove that the [habeas] court from which certification
was sought abused its discretion by not granting certification.’’ (Internal
quotation marks omitted.) Id., 716 (Callahan, C. J., dissenting).
6
‘‘We are mindful . . . that [the legislature did not intend that], following
the granting of a petition for certification to appeal, at least in the absence
of demonstrable prejudice . . . the terms of the habeas court’s grant of
certification [would] be a limitation on the specific issues subject to appellate
review.’’ (Emphasis added; internal quotation marks omitted.) Logan v.
Commissioner of Correction, 125 Conn. App. 744, 752–53 n.7, 9 A.3d 776(2010), cert. denied, 300 Conn. 918, 14 A.3d 333 (2011); see Whistnant v.
Commissioner of Correction, 199 Conn. App. 406, 419 n.11, 236 A.3d 276,
cert. denied, 335 Conn. 969, 240 A.3d 286 (2020).
7
Section 2253 (c) of title 28 of the 2018 edition of the United States
Code provides: ‘‘(1) Unless 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 com-
plained of arises out of process issued by a State court; or (B) the final
order in a proceeding under section 2255.
‘‘(2) A certificate of appealability may issue under paragraph (1) only if
the applicant has made a substantial showing of the denial of a constitu-
tional right.
‘‘(3) The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by paragraph (2).’’
8
I am cognizant of the fact that, in some situations, habeas counsel may
omit a claim from a petition for certification through no fault of the petitioner.
Consistent with the principal purpose of the writ of habeas corpus, namely,
‘‘to serve as a bulwark against convictions that violate fundamental fairness’’;
(internal quotation marks omitted) Luurtsema v. Commissioner of Correc-
tion, 299 Conn. 740, 758, 12 A.3d 817 (2011); ‘‘habeas on habeas’’ challenges
remain available to petitioners when habeas counsel fails to include a claim
for review in the petition for certification. Kaddah v. Commissioner of
Correction, 324 Conn. 548, 554, 153 A.3d 1233 (2017); see, e.g., Lozada v.
Warden, 223 Conn. 834, 845, 613 A.2d 818 (1992) (‘‘a person convicted of a
crime is entitled to seek a writ of habeas corpus on the ground that his
attorney in his prior habeas proceeding rendered ineffective assistance’’).