Foote v. Commissioner of Correction ( 2014 )

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FOOTE v. COMMISSIONER OF CORRECTION—CONCURRENCE
KELLER, J., concurring. I agree with the majority’s
dismissal of the petitioner’s appeal. The majority prop-
erly concludes that the petitioner, Eugene Foote, Jr.,
has failed to demonstrate that the habeas court abused
its discretion when it denied his petition for certification
to appeal. This is because the petitioner’s claim in this
regard is based on a question, related to the propriety
of the habeas court’s response to his request for new
counsel, which was not brought to the attention of the
habeas court at the time that it ruled on his petition
for certification to appeal. I respectfully disagree with
the majority, however, insofar as it, in accordance with
the petitioner’s appellate brief, has analyzed this claim
under the plain error doctrine.1
General Statutes § 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 jurisdic-
tion and the judge so certifies.’’ One of the goals of
this legislative enactment was ‘‘to limit the number of
appeals filed in criminal cases and hasten the final con-
clusion of the criminal justice process . . . .’’ Iovieno
v. Commissioner of Correction, 242 Conn. 689, 699, 699
A.2d 1003 (1997).
Our courts have held that the inherent limitation on
the statutory right to appeal that arises by operation of
§ 52-470 (g) ‘‘acts as a limitation on the scope of review,
and not the jurisdiction, of the appellate tribunal.’’
(Emphasis added.) Logan v. Commissioner of Correc-
tion, 125 Conn. App. 744, 750, 9 A.3d 776 (2010), cert.
denied, 300 Conn. 918, 14 A.3d 333 (2011); see also
Iovieno v. Commissioner of Correction, supra, 242
Conn. 696–97.
Appellate review in cases such as the present is
carefully circumscribed by our decisional law. ‘‘Faced
with the habeas court’s denial of certification to appeal,
a petitioner’s first burden is to demonstrate that the
habeas court’s ruling constituted an abuse of discretion.
Abuse 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
upon the obtaining of the trial court’s permission. . . .
If 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.’’
(Citations omitted.) Simms v. Warden, 230 Conn. 608,
612, 646 A.2d 126 (1994). ‘‘A petitioner may establish
an abuse of discretion by demonstrating that the issues
are debatable among jurists of reason . . . [the] court
could resolve the issues [in a different manner] . . .
or . . . the questions are adequate to deserve encour-
agement to proceed further. . . . The required deter-
mination may be made on the basis of the record before
the habeas court and applicable legal principles.’’ (Cita-
tion omitted; emphasis in original; internal quotation
marks omitted.) Crespo v. Commissioner of Correc-
tion, 292 Conn. 804, 811, 975 A.2d 42 (2009).2
Equally well settled in our decisional law is that a
petitioner is unable to demonstrate that a habeas court
abused its discretion in denying a petition for certifica-
tion to appeal on the basis of questions 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. This
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.
In adherence to the foregoing authority, I do not
believe that this court should entertain the petitioner’s
claim of plain error. The claim of plain error is based
on events that occurred during the petitioner’s habeas
trial and, thus, could have been raised in his petition
for certification to appeal. Because our scope of review
is limited to a review of the habeas court’s exercise of
discretion in denying the petition for certification to
appeal, I do not believe that our review permissibly
extends to claims of plain error that are extrinsic to that
issue. See Melendez v. Commissioner of Correction, 141
Conn. App. 836, 841, 62 A.3d 629 (reasoning that ‘‘[t]he
court could not abuse its discretion in denying the peti-
tion for certification about matters that the petitioner
never raised’’ and that petitioner ‘‘did not raise his claim
of plain error in his petition for certification to appeal’’),
cert. denied, 310 Conn. 921, 77 A.3d 143 (2013).
In support of its analysis, the majority cites to Ajadi
v. Commissioner of Correction, 280 Conn. 514, 526, 911
A.2d 712 (2006), a decision that warrants discussion.
The petitioner in Ajadi appealed to our Supreme Court
following the denial of his petition for certification to
appeal from the judgment of the habeas court dismiss-
ing his petition for a writ of habeas corpus. Id., 516.
On appeal, the petitioner raised a claim of plain error,
specifically, that the judge that presided over his habeas
trial, dismissed his petition for a writ of habeas corpus,
and denied his petition for certification to appeal,
should have disqualified himself on the ground that
he previously had served as a lawyer in the matter in
controversy. Id., 525–29. The petitioner did not raise
this claim of plain error in connection with his petition
for certification to appeal and, in fact, did not raise the
claim before the habeas court. Id., 526. Our Supreme
Court, however, observed that ‘‘the petitioner was not
present at the hearing on the commissioner’s motion
to dismiss 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.
Furthermore, the court concluded that plain error had
occurred because the habeas judge ‘‘presided over a
habeas petition that initially had alleged, in relevant
part, that his own prior representation of the petitioner
was so deficient that it deprived the petitioner of coun-
sel in violation of the sixth amendment to the federal
constitution’’ and, thus, that ‘‘a reasonable person
would question [the habeas judge’s] impartiality under
the present circumstances . . . .’’ Id., 529.
Although the court in Ajadi afforded plain error
review to an unpreserved claim of judicial misconduct,
one that was not raised in connection with the petition-
er’s petition for certification to appeal, I hesitate to
interpret Ajadi as sanctioning unpreserved plain error
review in all appeals in which a habeas court has denied
certification to appeal. Ajadi involved a claim of plain
error that called into question the fairness and impartial-
ity of the entire habeas trial—including the denial of
the petitioner’s petition for certification to appeal—
because of the prior history of the habeas judge who
presided over the trial. Furthermore, the petitioner in
Ajadi did not become aware of the issue underlying
the claim of plain error until after the habeas proceed-
ings had concluded. In the present case, the ruling
underlying the claim of plain error occurred during the
habeas trial and the ruling at issue did not implicate
the fairness and impartiality of the entire proceeding.
The facts of the present case are thus distinguishable
from the extraordinary circumstances present in Ajadi,
and I am not convinced that they compel this court to
depart from its prescribed level of review.
Section § 52-470 (g) was enacted to restrict appellate
review in cases in which the habeas judge has denied
certification to appeal. Absent the type of extraordinary
circumstances present in Ajadi, I interpret our deci-
sional law as restricting the scope of appellate review
to an examination of the court’s denial of the petition
for certification to appeal. Engaging in a plain error
analysis of claims never raised in connection with a
petition for certification to appeal expands the scope
of review and thwarts the goals that the legislature
sought to achieve by enacting § 52-470 (g). Further-
more, engaging in such review invites petitioners, who
have been denied certification to appeal, to circumvent
the bounds of limited review simply by couching wholly
unpreserved claims as plain error. Accordingly, I
respectfully disagree with the majority’s analysis, but
concur in the dismissal of the petitioner’s appeal.
1
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).
2
‘‘We are mindful of our habeas jurisprudence that, following the granting
of a petition for certification to appeal, at least in the absence of demonstra-
ble prejudice, 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.’’ (Internal quotation marks omitted.) Logan v. Commis-
sioner of Correction, supra, 125 Conn. App. 752–53 n.7.