Bosque v. Commissioner of Correction ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
BENJAMIN BOSQUE v. COMMISSIONER
OF CORRECTION
(AC 43188)
Cradle, Alexander and Suarez, Js.
Syllabus
The petitioner, who had been convicted of the crimes of conspiracy to
commit robbery in the first degree, burglary in the first degree, sexual
assault in the first degree and robbery in the first degree, sought a third
petition for a writ of habeas corpus. The respondent Commissioner of
Correction filed a request for an order to show cause why the petition
should be permitted to proceed. Following an evidentiary hearing, at
which the petitioner declined the opportunity to present evidence, the
habeas court dismissed the petition as untimely pursuant to the applica-
ble statute (§ 52-470 (d) and (e)), concluding that the petitioner failed
to establish good cause for the delay in filing the petition nearly three
years after the deadline for filing a subsequent petition challenging his
conviction. Thereafter, the habeas court denied the petitioner’s petition
for certification to appeal, and the petitioner appealed to this court.
Held that this court declined to review the petitioner’s unpreserved
claims that the habeas court abused its discretion in denying his petition
for certification to appeal because his habeas counsel provided ineffec-
tive assistance and he was denied his constitutional right to counsel
because the habeas court failed to intervene when counsel did not
present any evidence in support of his claim that good cause existed
to rebut the presumption of unreasonable delay in the filing of his
petition; contrary to the petitioner’s contention, the petitioner was not
entitled to appellate review of his claims under State v. Golding (213
Conn. 233) or for plain error, the petitioner having failed to raise them
as grounds for appeal in his petition for certification to appeal as required
by § 52-470 (g).
Argued March 15—officially released June 29, 2021
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 this court. Appeal dismissed.
Deren Manasevit, assigned counsel, for the appellant
(petitioner).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were Joseph T. Corradino, state’s
attorney, and Emily Trudeau, assistant state’s attorney,
for the appellee (respondent).
Opinion
CRADLE, J. The petitioner, Benjamin Bosque,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
dismissing his petition for a writ of habeas corpus as
untimely pursuant to General Statutes § 52-470 (d) and
(e).1 The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal because (1) it should have been obvious to the
court that his habeas counsel had provided constitution-
ally ineffective assistance and (2) he was denied his
constitutional right to counsel because the court had
failed to intervene when his counsel did not present
any evidence in support of his claim that good cause
existed to rebut the presumption of unreasonable delay
in the filing of his petition. We dismiss the appeal.
The following facts and procedural history, as set
forth by the habeas court, are relevant to the petitioner’s
claims on appeal. ‘‘The petitioner was convicted of con-
spiracy to commit robbery in the first degree in violation
of General Statutes §§ 53a-48 and 53a-134 (a) (4), bur-
glary in the first degree in violation of General Statutes
§ 53a-101 (a) (1), sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (1) and four
counts of robbery in the first degree in violation of . . .
§ 53a-134 (a) (4). After unsuccessfully appealing his
conviction . . . the petitioner filed his first habeas
. . . petition, which was denied following a trial. . . .
The petitioner did take an appeal from [the] habeas
court’s decision, but . . . the appeal was dismissed on
February 20, 2013.’’ (Citations omitted.)
On November 3, 2014, the petitioner filed a second
habeas petition, which was subsequently withdrawn on
January 29, 2018. On February 26, 2018, the petitioner
initiated the underlying action by filing a third habeas
petition. ‘‘The respondent, [the Commissioner of Cor-
rection] filed [a] request for an order to show cause
[why the petition should be permitted to proceed] on
December 6, 2018, asserting that the petitioner had
failed to file the present petition within two years of
when the [judgment] on his prior habeas [petition]
became final. An evidentiary hearing was held on March
8, 2019. Although present, the petitioner declined the
opportunity to present testimony or evidence.’’ (Foot-
note omitted).
In a memorandum of decision dated May 21, 2019,
the court, Newson, J., dismissed the habeas petition as
untimely under § 52-470 (d) and (e), concluding that
the petitioner failed to establish good cause for the
delay in filing the petition beyond the statutory dead-
line. The court found that the petitioner had until March
12, 2015, to file a subsequent habeas petition challenging
his conviction and that the petitioner did not present
any evidence explaining why his petition was not filed
until nearly three years after the deadline. The court
denied the petition, noting that ‘‘[o]nce the rebuttable
presumption [that no good cause existed for the delay]
arose, the petitioner was obligated to provide some
evidence of the reason for the delay in filing this peti-
tion, which he declined to do.’’ (Emphasis in original.)
The court thereafter denied the petition for certification
to appeal, and this appeal followed.
Section 52-470 (g) provides in relevant part: ‘‘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 . . . to certify
that a question is involved in the decision which ought
to be reviewed by the court having jurisdiction and the
judge so certifies.’’
‘‘As our Supreme Court has explained, one of the
goals our legislature intended by enacting this statute
was to limit the number of appeals filed in criminal
cases and [to] hasten the final conclusion of the criminal
justice process . . . . [T]he legislature intended to dis-
courage frivolous habeas appeals.’’ (Internal quotation
marks omitted.) Stephenson v. Commissioner of Cor-
rection, 203 Conn. App. 314, 322, 248 A.3d 34, cert.
denied, 336 Conn. 944, A.3d (2021).
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for [a writ of]
habeas corpus only by satisfying the two-pronged test
enunciated by our Supreme Court in Simms v. Warden,
229 Conn. 178, 640 A.2d 601 (1994), and adopted in
Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126(1994). First, [the petitioner] must demonstrate that
the denial of his petition for certification [to appeal]
constituted an abuse of discretion. . . . Second, if the
petitioner can show an abuse of discretion, he must
then prove that the decision of the habeas court should
be reversed on the merits. . . . To prove that the denial
of his petition for certification to appeal constituted an
abuse of discretion, the petitioner must demonstrate
that the [resolution of the underlying claim involves
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 encourage-
ment to proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous.’’ (Internal quotation
marks omitted.) Haywood v. Commissioner of Correc-
tion, 194 Conn. App. 757, 763–64, 222 A.3d 545 (2019),
cert. denied, 335 Conn. 914, 229 A.3d 729 (2020). ‘‘In
other words, we review the petitioner’s substantive
claims for the purpose of ascertaining whether those
claims satisfy one or more of the three criteria . . .
adopted by [our Supreme Court] for determining the
propriety of the habeas court’s denial of the petition
for certification [to appeal].’’ (Internal quotation marks
omitted.) Villafane v. Commissioner of Correction, 190
Conn. App. 566, 573, 211 A.3d 72, cert. denied, 333 Conn.
902, 215 A.3d 160 (2019).
On appeal, the petitioner does not challenge the
habeas court’s decision on the merits—he does not
claim that the court erred in dismissing his habeas peti-
tion as untimely. Rather, he claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal because (1) his habeas counsel obviously
provided constitutionally ineffective assistance and (2)
he was denied his constitutional right to counsel
because the court failed to intervene when his counsel
did not present any evidence in support of his claim
that good cause existed to rebut the presumption of
unreasonable delay in the filing of his petition. The
respondent argues, inter alia, that, because the peti-
tioner failed to raise these issues as grounds for appeal
in his petition for certification to appeal, he is unable
to claim on appeal that the court abused its discretion
in denying his petition for certification to appeal on
these grounds. We agree with the respondent.
It is well established that a petitioner cannot demon-
strate that a habeas court abused its discretion in deny-
ing a petition for certification to appeal on the basis of
claims that were not raised distinctly before the habeas
court at the time that it considered the petition for
certification to appeal. See Tutson v. Commissioner of
Correction, 144 Conn. App. 203, 216–17, 72 A.3d 1162,
cert. denied, 310 Conn. 928, 78 A.3d 145 (2013), and
cases cited therein.
In the present case, the petitioner’s petition for certifi-
cation to appeal stated only the following ground for
appeal: ‘‘Whether the habeas court erred in finding that
there was not good cause to allow the petitioner’s peti-
tion for [a writ of] habeas corpus to proceed on the
grounds that he filed [it] outside the applicable time
limits.’’ The petition for certification to appeal did not
include grounds related to any claims regarding ineffec-
tive assistance of habeas counsel or the habeas court’s
alleged duty to intervene in the face of the alleged
ineffective assistance. In fact, the petitioner concedes
that he failed to preserve those claims by stating them
in his petition for certification to appeal.
Notwithstanding these failings, the petitioner argues
that his failure to list the aforementioned grounds in
his petition for certification to appeal, as required by
§ 52-470 (g), does not preclude this court from
reviewing his claims under 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), or
for plain error. This court previously has addressed and
rejected similar requests for extraordinary review, such
as Golding and plain error review, of claims not raised
in petitions for certification to appeal.
With respect to the petitioner’s argument that he is
entitled to Golding review of his claims, this court has
stated: ‘‘Section 52-470 (g) conscribes our appellate
review to the issues presented in the petition for certifi-
cation to appeal . . . . Permitting 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 certification 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).’’ (Internal quotation
marks omitted.) Solek v. Commissioner of Correction,
203 Conn. App. 289, 299, 248 A.3d 69, cert. denied, 336
Conn. 935, 248 A.3d 709 (2021); see also Whistnant
v. Commissioner of Correction, 199 Conn. App. 406,
418–19, 236 A.3d 276 (noting that review pursuant to
Golding was not available for claim raised for first time
on appeal and not raised in or incorporated into petition
for certification to appeal), cert. denied, 335 Conn. 969,
240 A.3d 286 (2020). Accordingly, the petitioner is not
entitled to Golding review of his claims.
This court likewise has rejected the argument that
claims not set forth in a petition for certification to
appeal may be reviewed for plain error.2 See Villafane
v. Commissioner of Correction, supra, 190 Conn. App.
577–78; Sanders v. Commissioner of Correction, 169
Conn. App. 813, 818 n.2, 153 A.3d 8 (2016), cert. denied,
325 Conn. 904, 156 A.3d 536 (2017). In declining to
afford plain error review to a claim not set forth in a
petition for certification to appeal, this court has rea-
soned that ‘‘[t]he [habeas] court could not abuse its
discretion in denying the petition for certification about
matters that the petitioner never raised.’’ Mercado v.
Commissioner of Correction, 85 Conn. App. 869, 872,
860 A.2d 270 (2004), cert. denied, 273 Conn. 908, 870
A.2d 1079 (2005).
In support of his argument that he is entitled to plain
error review, the petitioner relies on this court’s opinion
in Foote v. Commissioner of Correction, 151 Conn. App.
559, 96 A.3d 587, cert. denied, 314 Conn. 929, 102 A.3d
709 (2014), and cert. dismissed, 314 Conn. 929, 206 A.3d
764 (2014), in which this court afforded the petitioner
plain error review of a claim not listed in his petition
for certification to appeal without articulating its reason
for doing so. The majority in Foote cited, without analy-
sis, to our Supreme Court’s decision in Ajadi v. Com-
missioner of Correction, 280 Conn. 514, 526, 911 A.2d
712 (2006).3 Foote v. Commissioner of Correction,
supra, 566–67. Ajadi involved a claim of plain error that
called into question the fairness and impartiality of the
entire habeas trial.4 Ajadi v. Commissioner of Correc-
tion, supra, 525. In Ajadi, the petitioner did not become
aware of the issue underlying the claim of plain error
until after the habeas proceedings had concluded. Id.,
522. In other words, because this issue did not come
to the attention of the parties, counsel for the parties,
or the habeas court until sometime after the petitioner
brought the appeal in that case, he could not have
included it in his petition for certification to appeal. The
petitioner in Ajadi, therefore, sought, and was afforded,
plain error review of his claim.5 Id., 525–30.
In the present case, the claim of plain error is based
on events that occurred during the petitioner’s habeas
trial and, therefore, could have been raised in his peti-
tion for certification to appeal. The scope of appellate
review is restricted to an examination of the court’s
denial of the petition for certification to appeal. A plain
error analysis of claims never raised in connection with
a petition for certification to appeal expands the scope
of review and undermines the goals that the legislature
sought to achieve by enacting § 52-470 (g). If this court
were to engage in plain error review, it would invite
petitioners, who have been denied certification to
appeal, to circumvent the bounds of limited review sim-
ply by couching wholly unpreserved claims in terms of
plain error.
On the basis of the foregoing, we conclude that, if
the petitioner desired appellate review of his claims of
ineffective assistance of habeas counsel and/or whether
the habeas court had a duty to address counsel’s defi-
cient performance to prevent prejudice to the peti-
tioner, he was required to include those issues as
grounds for appeal in his petition for certification to
appeal. See Villafane v. Commissioner of Correction,
supra, 190 Conn. App. 577–78. Because he failed to do
so, we decline to review the petitioner’s claims.
The appeal is dismissed.
In this opinion the other judges concurred.
1
General Statutes § 52-470 provides in relevant part: ‘‘(a) The court or
judge hearing any habeas corpus shall proceed in a summary way to deter-
mine the facts and issues of the case, by hearing the testimony and arguments
in the case, and shall inquire fully into the cause of imprisonment and
thereupon dispose of the case as law and justice require. . . .
‘‘(d) In the case of a petition filed subsequent to a judgment on a prior
petition challenging the same conviction, there shall be a rebuttable pre-
sumption that the filing of the subsequent petition has been delayed without
good cause if such petition is filed after the later of the following: (1) Two
years after the date on which the judgment in the prior petition is deemed
to be a final judgment due to the conclusion of appellate review or the
expiration of the time for seeking such review; (2) October 1, 2014; or (3)
two years after the date on which the constitutional or statutory right
asserted in the petition was initially recognized and made retroactive pursu-
ant to a decision of the Supreme Court or Appellate Court of this state or
the Supreme Court of the United States or by the enactment of any public
or special act. For the purposes of this section, the withdrawal of a prior
petition challenging the same conviction shall not constitute a judgment.
The time periods set forth in this subsection shall not be tolled during the
pendency of any other petition challenging the same conviction. Nothing in
this subsection shall create or enlarge the right of the petitioner to file a
subsequent petition under applicable law.
‘‘(e) In a case in which the rebuttable presumption of delay . . . applies,
the court, upon the request of the respondent, shall issue an order to show
cause why the petition should be permitted to proceed. The petitioner or,
if applicable, the petitioner’s counsel, shall have a meaningful opportunity
to investigate the basis for the delay and respond to the order. If, after such
opportunity, the court finds that the petitioner has not demonstrated good
cause for the delay, the court shall dismiss the petition. For the purposes
of this subsection, good cause includes, but is not limited to, the discovery
of new evidence which materially affects the merits of the case and which
could not have been discovered by the exercise of due diligence in time to
meet the requirements of subsection . . . (d) of this section. . . .’’
2
The plain error doctrine, codified in Practice Book § 60-5, ‘‘is not . . .
a rule of reviewability . . . [but] a rule of reversibility. That is, it is a doctrine
that [appellate courts invoke] in order to rectify a trial court ruling that,
although either not properly preserved or never raised at all in the trial
court, nonetheless requires reversal of the trial court’s judgment, for reasons
of policy.’’ State v. Cobb, 251 Conn. 285, 343 n.34, 743 A.2d 1 (1999), cert.
denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).
3
The majority in Foote also cited, without analysis, to Melendez v. Com-
missioner of Correction, 141 Conn. App. 836, 62 A.3d 629, cert. denied, 310
Conn. 921, 77 A.3d 143 (2013). Foote v. Commissioner of Correction, supra,
151 Conn. App. 567. In Melendez, the court afforded plain error review of
the petitioner’s unpreserved claim with no discussion as to why it was doing
so. Melendez v. Commissioner of Correction, supra, 841.
4
In Ajadi, the petitioner argued that the habeas judge who presided over
his habeas trial and denied his petition for certification to appeal should
have disqualified himself based on the judge’s prior representation of the
petitioner. Ajadi v. Commissioner of Correction, 280 Conn. 525–29.
5
The holding in Ajadi, in our view, is best limited to the unique facts of
that case. Because the majority in Foote did not provide a reason for
departing from the settled jurisprudence, we likewise limit the holding in
Foote to its facts.