Goguen v. Commissioner of Correction

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ROBERT GOGUEN v. COMMISSIONER
OF CORRECTION
(SC 20482)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.*
Syllabus
In accordance with this court’s decision in Simms v. Warden (230 Conn. 608),
when a habeas court denies certification to appeal from its judgment
or ruling, a petitioner may obtain appellate review only if he or she
demonstrates, first, that the habeas court’s denial of the petition for
certification to appeal constituted an abuse of discretion and, second,
that the habeas court’s judgment or ruling should be reversed on its mer-
its.
The self-represented petitioner, who had been convicted in 1996, pursuant
to a guilty plea, of sexual assault in the second degree, sought a writ
of habeas corpus, claiming that he should be allowed to withdraw that
plea. The petitioner’s prison sentence and period of probation imposed
in connection with his 1996 conviction had concluded before he filed
his habeas petition. At the time he filed his habeas petition, however,
he was incarcerated in Maine because of a violation of the conditions
of supervised release that were imposed as a result of a 2012 conviction
under federal law for failing to register as a sex offender, a requirement
that was imposed on the basis of his 1996 conviction. The habeas court
declined to issue the writ for lack of jurisdiction and rendered judgment
thereon, concluding that the petitioner was not in the custody of the
respondent, the Commissioner of Correction, as a result of the 1996
conviction when he filed his habeas petition. The petitioner filed a
petition for certification to appeal from the habeas court’s judgment
pursuant to statute (§ 52-470 (g)), which the habeas court denied, and
the petitioner appealed to the Appellate Court. In his Appellate Court
brief, the petitioner claimed that the habeas court had incorrectly deter-
mined that he was not in the custody of the respondent and that he
should be allowed to withdraw his 1996 guilty plea because it was made
unintelligently and involuntarily. The petitioner did not allege that the
habeas court had abused its discretion in denying his petition for certifi-
cation to appeal and did not ask the Appellate Court to construe his
argument on the merits as a demonstration of the habeas court’s abuse
of discretion in denying the petition for certification. The Appellate
Court dismissed the petitioner’s appeal, concluding that the petitioner
failed to brief the threshold issue of whether the habeas court had
abused its discretion in denying his petition for certification to appeal. On
the granting of certification, the petitioner appealed to this court. Held:
1. The Appellate Court properly dismissed the petitioner’s appeal from the
habeas court’s judgment on the ground that the petitioner failed to allege
or demonstrate in his brief submitted to the Appellate Court that the
habeas court had abused its discretion in denying his petition for certifi-
cation to appeal; to obtain appellate review when a habeas court denies
a petition for certification to appeal, the petitioner must at least allege
that the habeas court had abused its discretion in denying his or her
petition for certification to appeal, either by expressly arguing specific
reasons why the habeas court abused its discretion in denying certifica-
tion or by expressly alleging that his or her argument on the merits
demonstrates an abuse of discretion, and there is no exception to such
requirement for self-represented petitioners, as to hold otherwise would
render both § 52-470 (g) and the two part showing required by Simms
meaningless.
2. To ensure that the courthouse doors are not shut on potentially meritorious
claims as a result of a technicality or an understandable ignorance of
procedures, this court exercised its supervisory authority to direct that
the Judicial Branch’s Notice of Appeal Procedures (Habeas Corpus)
form be revised to include language that explicitly describes the require-
ment that a petitioner expressly claim in his or her appellate brief that
the habeas court abused its discretion when it denied his or her petition
for certification to appeal and explain how that discretion was abused.
3. Even if the Appellate Court had considered the petitioner’s arguments
regarding the merits of his claim that the habeas court incorrectly deter-
mined that he was not in the respondent’s custody when he filed his
habeas petition, those arguments did not support the petitioner’s claim,
made for the first time in his appeal to this court, that the habeas court
had abused its discretion in denying his petition for certification to
appeal: contrary to the petitioner’s claim, the United States Supreme
Court’s decision in Lackawanna County District Attorney v. Coss (532
U.S. 394) does not permit a habeas petitioner to file a habeas petition
that solely and directly challenges a conviction for which the petitioner
is no longer serving the sentence imposed in connection with that convic-
tion; moreover, the petitioner was not in custody for his 1996 conviction
on the ground that he was required to register as a sex offender as a
result of that conviction, as the sex offender registration requirement
is remedial rather than punitive and, therefore, was not a part of his
sentence but was a collateral consequence of his conviction, which
generally is insufficient to satisfy the requirement that a habeas peti-
tioner be in custody for purposes of filing a habeas petition.
Argued March 24—officially released December 23, 2021**
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Oliver, J., rendered judgment declining to
issue a writ of habeas corpus; thereafter, the court
denied the petition for certification to appeal, and the
petitioner appealed to the Appellate Court, DiPentima,
C. J., and Alvord and Moll, Js., which dismissed the
appeal, and the petitioner, on the granting of certifica-
tion, appealed to this court. Affirmed.
Robert Goguen, self-represented, the appellant (peti-
tioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, was David S. Shepak, former
state’s attorney, for the appellee (respondent).
Opinion
MULLINS, J. The issue before us in this certified
appeal is whether the Appellate Court properly dis-
missed the appeal of the petitioner, Robert Goguen,
from the judgment of the habeas court on the ground
that he failed in his brief to the Appellate Court to brief
the claim that the habeas court had abused its discretion
in denying his petition for certification to appeal pursu-
ant to General Statutes § 52-470 (g).1 The petitioner,
proceeding as a self-represented party, filed a petition
for a writ of habeas corpus challenging his 1996 convic-
tion, pursuant to a guilty plea, of sexual assault in the
second degree. The habeas court declined to issue the
writ for lack of jurisdiction on the ground that the
petitioner was not in the custody of the respondent,
the Commissioner of Correction. The petitioner then
filed a petition for certification to appeal to the Appel-
late Court pursuant to § 52-470 (g), which the habeas
court denied.
Notwithstanding that ruling, the petitioner appealed
to the Appellate Court, challenging the merits of the
habeas court’s ruling declining to issue the writ of
habeas corpus. Goguen v. Commissioner of Correction,
195 Conn. App. 502, 503, 225 A.3d 977 (2020). The Appel-
late Court dismissed the appeal on the ground that the
petitioner failed to brief any claim that the habeas court
had abused its discretion in denying his petition for
certification to appeal. See id., 505. This court then
granted the petitioner’s petition for certification to
appeal from the judgment of the Appellate Court on
the following issue: ‘‘Did the Appellate Court properly
dismiss the self-represented petitioner’s appeal because
he failed to brief whether the habeas court had abused
its discretion in denying his petition for certification to
appeal?’’ Goguen v. Commissioner of Correction, 335
Conn. 925, 234 A.3d 980 (2020).
Our task in this appeal is to harmonize the legislative
mandate of § 52-470 (g) that no appeal may be taken
from a habeas court’s judgment unless certification is
granted with this court’s interpretation of that statute
in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126(1994) (Simms II), which provides guidance on the
procedure to be followed when a habeas court denies
certification to appeal. In light of the statutory require-
ment, we explained in Simms II that, if a habeas court
denies certification to appeal, a petitioner may obtain
review only if he makes a ‘‘two part showing’’ on appeal:
first, as a threshold matter, he must ‘‘demonstrate that
the habeas court’s ruling constituted an abuse of discre-
tion,’’ and, second, ‘‘[i]f the petitioner succeeds in sur-
mounting that hurdle, the petitioner must then demon-
strate that the judgment of the habeas court should be
reversed on its merits.’’ Id. What Simms II leaves
unclear is what exactly is required of an appellant to
satisfy the threshold showing of an abuse of discretion
before plenary review of the merits by a reviewing court
is warranted.
As we discuss more fully in this opinion, the Appellate
Court has concluded in several cases that the petitioner
can satisfy the threshold requirement by expressly alleg-
ing in his brief that the arguments on the merits of the
appeal demonstrate that the habeas court abused its
discretion in denying the petition for certification to
appeal. Conversely, the Appellate Court has held that,
when a petitioner fails to expressly allege or brief that
the denial of certification was an abuse of discretion
and simply briefs the merits of his underlying claim
without any reference to the requirement of Simms II,
the petitioner’s appeal must be dismissed. See part I of
this opinion.
We conclude that, in order to make sense of the
statutory requirement and Simms II, a petitioner must
at least expressly allege and explain in his brief how
the habeas court abused its discretion in denying certifi-
cation. We recognize, just as the Appellate Court has,
that this may be done by expressly referring the
reviewing court to the portion of the brief addressing
the merits of the appeal and pointing out that, if the
appeal is successful on the merits, then an abuse of
discretion necessarily has been demonstrated. The peti-
tioner must at least do that, however, in order to comply
with the statute and Simms II.
The petitioner may not simply disregard the require-
ment 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.
Simms v. Warden, supra, 230 Conn. 612. In this appeal,
the petitioner never expressly alleged that the habeas
court abused its discretion in denying certification to
appeal. He argued only that the habeas court erred in
declining to issue the writ. Accordingly, the Appellate
Court’s dismissal of his appeal appropriately adheres
to the dictates of § 52-470 (g) and Simms II and its
progeny, and must be affirmed.
The record reveals the following undisputed facts
and procedural history. In 1996, the petitioner was con-
victed, after entering a guilty plea, of sexual assault in
the second degree in violation of General Statutes (Rev.
to 1995) § 53a-71 (a) (3). The petitioner was sentenced
on October 25, 1996, to ten years in prison, execution
suspended after four years, and five years of probation.
Thereafter, in 1998, the legislature passed legislation,
now codified at General Statutes § 54-250 et seq., requir-
ing persons who have been convicted of certain sexual
offenses, including the petitioner’s offense, to register
as sex offenders. See Public Acts 1998, No. 98-111. The
legislation applied to the petitioner because he was
released from prison after its effective date.
On April 11, 2017, the petitioner, proceeding as a self-
represented party, filed a petition for a writ of habeas
corpus, claiming, among other things, that he should
be allowed to withdraw his 1996 guilty plea because,
due to ineffective assistance of his counsel, his plea
had not been made voluntarily. Specifically, he alleged
that, while he was residing in Maine in 2012, he was
convicted under federal law of failing to register as a
sex offender—a requirement imposed as the result of
his 1996 Connecticut conviction.2 He further alleged
that, as of the date he filed his habeas petition, he was
incarcerated as a result of violating the conditions of
supervised release that were imposed on him under
federal law as a result of the federal 2012 conviction.
Pursuant to Practice Book § 23-24 (a),3 the habeas
court declined to issue a writ for lack of jurisdiction
because, at the time that the petitioner filed the petition,
he was no longer in the custody of the respondent as
a result of the 1996 conviction.4 Although the habeas
court did not elaborate on its basis for this determina-
tion,5 it is undisputed that neither the petitioner’s term
of incarceration nor his term of probation for the 1996
conviction was in effect on the date that he filed his
petition for a writ of habeas corpus. The petitioner filed
a petition for certification to appeal from the habeas
court’s judgment pursuant to § 52-470 (g), which the
habeas court denied.
Despite the denial of his petition for certification, the
petitioner appealed to the Appellate Court from the
habeas court’s judgment declining to issue a writ of
habeas corpus.6 In his brief to that court, the petitioner
did not allege that the habeas court had abused its
discretion in denying his petition for certification to
appeal. He also did not ask the Appellate Court to con-
strue his argument on the merits as a demonstration
of the habeas court’s abuse of discretion.
Instead, the petitioner claimed only that the habeas
court had incorrectly determined that he was not in the
custody of the respondent and that he should be allowed
to withdraw his 1996 guilty plea because it was unintelli-
gently and involuntarily made.7 The respondent con-
tended in his brief that the habeas court had not abused
its discretion in denying the petitioner’s petition for
certification to appeal and that it had properly declined
to issue the writ.
The Appellate Court noted in a per curiam opinion
that, under Simms v. Warden, 229 Conn. 178, 640 A.2d
601 (1994) (Simms I), the petitioner was required, as
a threshold matter on appeal, to ‘‘demonstrate that the
denial of his petition for certification constituted an
abuse of discretion.’’ (Internal quotation marks omit-
ted.) Goguen v. Commissioner of Correction, supra,
195 Conn. App. 504. The Appellate Court further noted
that, to establish such an abuse of discretion, the peti-
tioner was required to demonstrate that the habeas
court’s resolution of the underlying claim involved
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.’’ (Internal quotation marks
omitted.) Id.; see, e.g., Simms v. Warden, supra, 230
Conn. 616 (same). Finally, the Appellate Court noted
that it had held previously that, ‘‘[i]f this burden is not
satisfied, then the claim that the judgment of the habeas
court should be reversed does not qualify for consider-
ation by [the Appellate] [C]ourt.’’ (Internal quotation
marks omitted.) Goguen v. Commissioner of Correc-
tion, supra, 504. Because the petitioner had failed to
brief this threshold issue, the Appellate Court declined
to review the merits of the petitioner’s claims and dis-
missed the appeal.8 Id., 505.
The petitioner then filed a motion for reconsideration
in which he claimed that the habeas court had abused
its discretion when it denied his petition for certification
to appeal. In support of this claim, the petitioner argued
the merits of his underlying claim that the habeas court
had incorrectly determined that he was not in the
respondent’s custody. The Appellate Court denied the
motion.
This certified appeal followed. On appeal to this
court, the petitioner contends that his argument in his
brief to the Appellate Court concerning the merits of
his underlying claim that the habeas court incorrectly
determined that it lacked jurisdiction to entertain his
habeas petition because he was not in the respondent’s
custody ‘‘inherently demonstrate[s] that the habeas
court [had] abused its discretion in . . . denying the
petition for [certification to appeal].’’ He further con-
tends that, because he was proceeding as a self-repre-
sented party, the Appellate Court should have liberally
construed his brief on the merits as demonstrating that
the habeas court had abused its discretion in denying
his petition for certification for appeal, even though he
had not expressly made that allegation. Accordingly,
he argues, the Appellate Court incorrectly determined
that he was not entitled to review of his claims on
appeal.
The respondent contends that, to the contrary, the
Appellate Court correctly determined that it had no
authority to entertain the merits of the petitioner’s
appeal under § 52-470 (g), as that statute was construed
by this court in Simms I and Simms II. Specifically, the
respondent argues that, under Simms II, the petitioner
must ‘‘make a two part showing’’ when the habeas court
has denied his petition for certification to appeal.
(Emphasis added; internal quotation marks omitted.)
Simms v. Warden, supra, 230 Conn. 612. To allow a
petitioner to ignore the threshold requirement of dem-
onstrating that the habeas court abused its discretion
when it denied the petition for certification, the respon-
dent argues, would entirely eviscerate the mandate of
§ 52-470 (g) that ‘‘[n]o appeal from the judgment ren-
dered in a habeas corpus proceeding . . . may be
taken unless the appellant’’ petitions the habeas court
for certification to appeal and the habeas court grants
the petition. We conclude that the Appellate Court prop-
erly declined to review the petitioner’s claims and dis-
missed the appeal.
I
Whether the Appellate Court had the authority to
review the petitioner’s claims on appeal from the judg-
ment of the habeas court when he failed even to allege
that the habeas court had abused its discretion in deny-
ing his petition for certification to appeal pursuant to
§ 52-470 (g) is a question of statutory interpretation over
which we exercise plenary review. See, e.g., General
Statutes § 1-2z (plain meaning rule); Canty v. Otto, 304
Conn. 546, 557–58, 41 A.3d 280 (2012) (general rules of
construction are aimed at ascertaining legislative intent).
In Simms I, this court first considered the question
of whether a habeas petitioner may seek appellate
review of an adverse judgment of the habeas court
under § 52-470 (g) when the habeas court has denied
the petition for certification to appeal. See Simms v.
Warden, supra, 229 Conn. 179. In that case, the habeas
court dismissed the petition of the petitioner, Floyd
Simms, and denied his petition for certification to
appeal. Id., 179–80. The majority further determined in
dictum, however, that General Statutes (Rev. to 1993)
§ 52-470 (b), now § 52-470 (g), did not provide that the
habeas court’s ‘‘denial of the requisite certification is
final and dispositive.’’ Id., 188. Rather, the majority con-
strued the statute ‘‘to permit a disappointed habeas
corpus litigant to invoke appellate jurisdiction9 for ple-
nary review of the decision of the habeas court upon
carrying the burden of persuasion that denial of certifi-
cation to appeal was an abuse of discretion or that
an injustice appears to have been done.’’10 (Footnote
added.) Id., 189.
In Simms II, this court elaborated on the abuse of
discretion standard that it had adopted in Simms I.
Relying on the decision of 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), a majority of this court
concluded that a petitioner can satisfy the abuse of
discretion standard 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; inter-
nal quotation marks omitted.) Simms v. Warden, supra,
230 Conn. 616.
Thus, we explained in Simms II that a habeas peti-
tioner whose petition for certification to appeal pursu-
ant to § 52-470 (g) has been denied must ‘‘make a two
part showing’’ to prevail on appeal. Id., 612. First, the
petitioner must ‘‘demonstrate that the habeas court’s
ruling constituted an abuse of discretion.’’ Id. Second,
‘‘[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.; see, e.g., McClain v. Commissioner of Correction,
188 Conn. App. 70, 74, 204 A.3d 82 (‘‘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 [the court] in [Simms I],
and adopted in [Simms II]’’ (internal quotation marks
omitted)), cert. denied, 331 Conn. 914, 204 A.3d 702(2019).
The Appellate Court has recognized on several occa-
sions that, ‘‘[i]n determining whether the habeas court
abused its discretion in denying the petitioner’s request
for certification, [the court] necessarily must consider
the merits of the petitioner’s underlying claims to deter-
mine whether the habeas court reasonably determined
that the petitioner’s appeal was frivolous.’’ (Internal
quotation marks omitted.) McClain v. Commissioner
of Correction, supra, 188 Conn. App. 75; see, e.g., Mer-
cado v. Commissioner of Correction, 183 Conn. App.
556, 562, 193 A.3d 671 (‘‘[w]e examine the petitioner’s
underlying claim[s] of ineffective assistance of counsel
in order to determine whether the habeas court abused
its discretion in denying the petition for certification
to appeal’’ (internal quotation marks omitted)), cert.
denied, 330 Conn. 918, 193 A.3d 1211 (2018); Brown v.
Commissioner of Correction, 179 Conn. App. 358, 364,
179 A.3d 794 (same), cert. denied, 328 Conn. 919, 181
A.3d 91 (2018); Parrott v. Commissioner of Correction,
107 Conn. App. 234, 236, 944 A.2d 437 (same), cert.
denied, 288 Conn. 912, 954 A.2d 184 (2008); Santiago
v. Commissioner of Correction, 90 Conn. App. 420, 424,
876 A.2d 1277 (same), cert. denied, 275 Conn. 930, 883
A.2d 1246 (2005), cert. denied sub nom. Santiago v.
Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254(2006).11
Nevertheless, the Appellate Court has also dismissed
appeals repeatedly from decisions of the habeas court
on the ground that the petitioner has failed to brief, i.e.,
allege and demonstrate, that the habeas court abused
its discretion in denying the petition for certification
to appeal. See, e.g., Cordero v. Commissioner of Correc-
tion, 193 Conn. App. 902, 902–903, 215 A.3d 1282 (dis-
missing appeal on ground that ‘‘petitioner neither
alleged nor briefed [claim] that habeas court abused its
discretion when it denied petition for certification to
appeal’’), cert. denied, 333 Conn. 944, 219 A.3d 374(2019); Thorpe v. Commissioner of Correction, 165
Conn. App. 731, 733, 140 A.3d 319 (dismissing appeal
on ground that ‘‘petitioner did not allege that the habeas
court’s denial of his petition for certification to appeal
constituted an abuse of discretion until he filed his reply
brief’’), cert. denied, 323 Conn. 903, 150 A.3d 681 (2016);
Mitchell v. Commissioner of Correction, 68 Conn. App.
1, 8, 790 A.2d 463 (dismissing appeal because petitioner
failed to allege that habeas court’s failure to grant certi-
fication to review denial of his petition constituted
abuse of discretion), cert. denied, 260 Conn. 903, 793
A.2d 1089 (2002); Reddick v. Commissioner of Correc-
tion, 51 Conn. App. 474, 477–78, 722 A.2d 286 (1999)
(dismissing appeal because petitioner claimed only inef-
fective assistance of counsel and did not brief question
of whether habeas court had abused its discretion in
denying petition for certification to appeal).
We conclude that the fact that the Appellate Court
may consider the merits of the petitioner’s appeal in
determining whether the habeas court abused its discre-
tion when it denied the petition for certification does
not mean that the petitioner can fail entirely to address
that threshold issue and still obtain appellate review.
This court made clear in Simms I that only by ‘‘carrying
the burden of persuasion that denial of certification to
appeal was an abuse of discretion or that an injustice
appears to have been done’’ can a petitioner overcome
the mandate of § 52-470 (g) that ‘‘[n]o appeal from the
judgment rendered in a habeas corpus proceeding . . .
may be taken’’ unless the habeas court grants the peti-
tioner’s petition for certification to appeal. Simms v.
Warden, supra, 229 Conn. 189. In Simms II, we held
that a petitioner can satisfy this burden only ‘‘by demon-
strating . . . [1] that the issues are debatable among
jurists of reason; [2] that a court could resolve the issues
[in a different manner]; or [3] that the questions are
adequate to deserve encouragement to proceed fur-
ther.’’ (Emphasis in original; internal quotation marks
omitted.) Simms v. Warden, supra, 230 Conn. 616.
A conclusion that a habeas petitioner whose petition
for certification to appeal has been denied need not
even allege that the habeas court abused its discretion
when it denied the petition for certification to appeal,
but may obtain appellate review if he briefs only the
merits of his underlying claims, would, as Justice Bor-
den predicted in his concurring opinion in Simms I,
‘‘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 perfect a direct appeal under the same
statute.’’ Simms v. Warden, supra, 229 Conn. 192 (Bor-
den, J., concurring).
Accordingly, we conclude that, 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. The petitioner may satisfy this requirement in
at least 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 discre-
tion in denying certification. Second, the petitioner may
expressly allege that his argument on the merits demon-
strates an abuse of discretion. In this second way, the
petitioner at least points the court to its merits discus-
sion and argues that its merits discussion satisfies the
first prong of Simms II. What the petitioner cannot do
is completely ignore the requirements of Simms II by
briefing only the merits of the underlying claim. Permit-
ting appellants to bypass the Simms II requirements
would be inconsistent with the legislative intent of
reducing the burden on the appellate system. See id.,
182 (noting that ‘‘the manifest intention of the legisla-
ture, when it enacted § 52-470 [g], [was] to limit the
opportunity for plenary appellate review of decisions
in cases seeking postconviction review of criminal con-
victions’’).12
We further conclude that there is no exception to the
requirement that a habeas petitioner must expressly
allege that the habeas court abused its discretion in
denying the petition for certification to appeal when
the petitioner is self-represented. ‘‘We are mindful that
we should be solicitous to [self-represented] petitioners
and construe their pleadings liberally in light of the
limited legal knowledge they possess. . . . We are also
mindful, however, that the right of self-representation
provides no attendant license not to comply with the
relevant rules of procedural and substantive law.’’ (Cita-
tion omitted; internal quotation marks omitted.) Kad-
dah v. Commissioner of Correction, 299 Conn. 129,
140, 7 A.3d 911 (2010). It is beyond cavil that a self-
represented habeas petitioner cannot simply ignore the
statutory mandate of § 52-470 (g) that he file a petition
for certification to appeal before the Appellate Court
can review the habeas court’s rulings. If the petition is
denied, the petitioner is on notice that, at least as the
default rule, he is not entitled to appellate review of
his claims unless he demonstrates that the habeas court
abused its discretion in denying certification.
We do not think that it imposes an undue burden on
self-represented habeas petitioners to require them at
least to allege that they are entitled to appellate review
because the habeas court abused its discretion in deny-
ing the petition for certification to appeal. Indeed, self-
represented petitioners have shown themselves capable
of satisfying this requirement. See, e.g., Joyce v. Com-
missioner of Correction, 129 Conn. App. 37, 38, 19 A.3d
204 (2011) (self-represented habeas petitioner claimed
that habeas court abused its discretion when it denied
petition for certification to appeal); Jolley v. Commis-
sioner of Correction, 98 Conn. App. 597, 597, 910 A.2d
982 (2006) (same), cert. denied, 282 Conn. 904, 920 A.2d
308 (2007); see also, e.g., Coleman v. Commissioner of
Correction, 111 Conn. App. 138, 139, 958 A.2d 790 (2008)
(self-represented habeas petitioner claimed that habeas
court ‘‘abused its discretion by refusing to rule on his
petition for certification to appeal’’), cert. denied, 290
Conn. 905, 962 A.2d 793 (2009).
We conclude, therefore, that the Appellate Court
properly dismissed the petitioner’s appeal in the present
case on the ground that he failed to demonstrate that
the habeas court abused its discretion. Specifically, he
failed to expressly allege that the court had erred in
denying his petition for certification to appeal. In reach-
ing this conclusion, we are mindful that this requirement
may—not entirely without justification—be viewed
as a mere technicality because, as the Appellate Court
has recognized repeatedly, in many cases, there is con-
siderable, if not complete, overlap between the first
and second prongs of the ‘‘two part showing’’ required
by Simms II. Simms v. Warden, supra, 230 Conn. 612.
If the statutory mandate of § 52-470 (g) is to retain any
force at all, however, a petitioner whose petition for
certification to appeal has been denied must at least
expressly allege that the denial was an abuse of discre-
tion to obtain appellate review.
Allowing a petitioner to bypass completely any allega-
tion that the habeas court abused its discretion would
render a duly enacted statute meaningless, which we
are not at liberty to do. It would also render the Simms
two part test meaningless, given that a denial of certifi-
cation would be treated no differently from a grant of
certification; i.e., in either scenario, all that is required
would be to brief solely the merits of the underlying
claim.
II
Having reached this conclusion, however, we recog-
nize that the requirement that a habeas petitioner
expressly claim in his appellate brief that the habeas
court abused its discretion when it denied his petition
for certification, although clearly imposed under our
precedent, may be viewed as a technical trap for the
unwary. Because the failure to make such a claim
results in the dismissal of the appeal, we feel that clearer
guidance is in order.
Accordingly, to ensure that the courthouse doors are
not shut on potentially meritorious claims as the result
of a technicality or an understandable ignorance of
procedures,13 we exercise our supervisory powers to
direct that Part I of Judicial Branch Form JD-CR-84,
Rev. 1-21, entitled Notice of Appeal Procedures (Habeas
Corpus), be revised to include the following language:
‘‘If the habeas court denies your petition for certifica-
tion to appeal, you can appeal from that ruling. You
must expressly claim in your appellate brief that the
habeas court abused its discretion when it denied the
petition for certification to appeal and explain how that
discretion was abused. To establish that the habeas
court abused its discretion, you must demonstrate that
(1) the issues that you seek to raise on appeal are
debatable among jurists of reason, (2) a court could
resolve the issues in a different manner, or (3) the
questions deserve encouragement to proceed further.
See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d
126 (1994). If you do not expressly claim in your brief
that the habeas court abused its discretion when it
denied your petition for certification, your appeal will
be dismissed.’’
In addition, we direct that Part II of the form be
revised to include the following language after ‘‘[t]he
[p]etition for [c]ertification is denied’’: ‘‘You have the
right to challenge this ruling by filing an appeal with
the Appellate Court. Any such appeal must comply with
the procedures set forth in Part I of this form for appeal-
ing from the denial of a petition for certification or it
will be dismissed.’’
III
We further conclude that, even if the Appellate Court
had considered the arguments the petitioner made in
his Appellate Court brief on the merits of his claim that
the habeas court incorrectly determined that he is not
in the custody of the respondent, those arguments do
not support his claim, made for the first time in his
appeal to this court, that the habeas court had abused
its discretion when it denied his petition for certification
to appeal. The petitioner made two arguments in sup-
port of his claim that he is in custody for purposes of
his habeas petition.
First, he contended that his claims come within an
exception to the custody requirement set forth in Lacka-
wanna County District Attorney v. Coss, 532 U.S. 394,
399, 121 S. Ct. 1567, 149 L. Ed. 2d 608 (2001), that,
according to the petitioner, ‘‘allows a petitioner to col-
laterally attack an expired conviction, so long [as] the
expired conviction affected guilt or the . . . sentence’’
that the petitioner is currently serving. Second, he con-
tended that he was in custody pursuant to his 1996
conviction because he is required to register as a sex
offender on the basis of that conviction. Neither claim
has any merit.14
General Statutes § 52-466 (a) (1) provides in relevant
part that ‘‘[a]n application for a writ of habeas corpus
. . . shall be made to the superior court, or to a judge
thereof, for the judicial district in which the person
whose custody is in question is claimed to be illegally
confined or deprived of such person’s liberty.’’ It is
well established that, for a court to have jurisdiction
to entertain a habeas petition seeking to challenge the
legality of a criminal conviction, the petitioner must be
in the custody of the respondent as the result of that
conviction at the time that the petition is filed. See,
e.g., Richardson v. Commissioner of Correction, 298
Conn. 690, 698, 6 A.3d 52 (2010) (‘‘in order to satisfy
the custody requirement of § 52-466, the petitioner
[must] be in custody on the conviction under attack
at the time the habeas petition is filed’’ (emphasis in
original; internal quotation marks omitted)); Ajadi v.
Commissioner of Correction, 280 Conn. 514, 548, 911
A.2d 712 (2006) (habeas court lacked subject matter
jurisdiction over petitioner’s habeas petition because he
was not in custody on expired convictions that petition
sought to attack); Lebron v. Commissioner of Correc-
tion, 274 Conn. 507, 530–31, 876 A.2d 1178 (2005) (peti-
tioner whose sentence for conviction that was under
attack had expired was not in custody for purposes of
§ 52-466), overruled in part on other grounds by State
v. Elson, 311 Conn. 726, 91 A.3d 862 (2014); see also,
e.g., Maleng v. Cook, 490 U.S. 488, 490–91, 109 S. Ct.
1923, 104 L. Ed. 2d 540 (1989) (under federal statutes
governing writs of habeas corpus, petitioner must ‘‘be
in custody under the conviction or sentence under
attack at the time his petition is filed’’ (internal quota-
tion marks omitted)).
In Lackawanna County District Attorney v. Coss,
supra, 532 U.S. 394, the United States Supreme Court
held that, if a conviction that is no longer subject to
direct or collateral attack ‘‘is later used to enhance
a criminal sentence, the defendant generally may not
challenge the enhanced sentence through a [habeas]
petition . . . on the ground that the prior conviction
was unconstitutionally obtained.’’ Id., 403–404. The
court recognized three exceptions to this general rule
for cases in which ‘‘the prior conviction [that was] used
to enhance the sentence was obtained [when] there
was a failure to appoint counsel in violation of the
[s]ixth [a]mendment’’; id., 404; the petitioner ‘‘[cannot]
be faulted for failing to obtain timely review of a consti-
tutional claim’’; id., 405; and the petitioner obtains ‘‘com-
pelling evidence that he is actually innocent of the crime
for which he was convicted, and which he could not
have uncovered in a timely manner.’’ Id. The court
observed that, ‘‘[i]n such situations, a habeas petition
directed at the enhanced sentence may effectively be
the first and only forum available for review of the prior
conviction.’’ (Emphasis added.) Id., 406.
Thus, the court in Lackawanna County District
Attorney ‘‘merely went beyond the jurisdictional ques-
tion presented in Maleng to consider the extent to which
the [prior expired] conviction itself may be subject to
challenge in the attack [on] the [current] senten[ce]
which it was used to enhance.’’ (Emphasis in original;
internal quotation marks omitted.) Lebron v. Commis-
sioner of Correction, supra, 274 Conn. 527. The court
in Lackawanna County District Attorney did not per-
mit the filing against a government official who no
longer has custody of the petitioner of a habeas petition
that directly and solely challenges the conviction for
which the petitioner is no longer serving the sentence.
See Lackawanna County District Attorney v. Coss,
supra, 532 U.S. 401; see also, e.g., Alaska v. Wright,
U.S. , 141 S. Ct. 1467, 1468, 209 L. Ed. 2d 431 (2021)
(petitioner who was no longer serving sentence for state
conviction and who was in federal custody as result of
federal conviction predicated on state conviction was
not in custody for purposes of federal habeas statute
requiring that petitioner be ‘‘in custody pursuant to the
judgment of a [s]tate court’’ (internal quotation marks
omitted)); Ajadi v. Commissioner of Correction, supra,
280 Conn. 547–48 (because habeas petitioner did not
challenge conviction for which he was currently in cus-
tody but directly challenged convictions for which he
was no longer in custody, Lackawanna County District
Attorney did not support claim that habeas court had
jurisdiction). We therefore reject the petitioner’s claim
in the present case that Lackawanna County District
Attorney supports his claim that the habeas court incor-
rectly determined that he was not in the respondent’s
custody and, in turn, that the court abused its discretion
when it denied the petitioner’s petition for certification
to appeal from its ruling to that effect.
We also are not persuaded by the petitioner’s claim
that, contrary to the habeas court’s determination, he
is in the respondent’s custody pursuant to the 1996
conviction because he is required to register as a sex
offender as a result of that conviction.15 This court has
held that the statutory sex offender registration require-
ments are remedial and not punitive in nature. See, e.g.,
State v. Waterman, 264 Conn. 484, 497, 825 A.2d 63(2003) (because sex offender registration statute is reg-
ulatory and not punitive in nature, application of statute
to defendant ‘‘did not necessitate any modification,
opening or correction of [his] sentence’’); State v. Kelly,
256 Conn. 23, 90–95, 770 A.2d 908 (2001) (because sex
offender registration statute ‘‘is regulatory and not puni-
tive in nature,’’ retroactive application of statute to
defendant did not violate ex post facto clause of federal
constitution). Thus, the requirement that the petitioner
register as a sex offender is a collateral consequence of
his 1996 conviction, not part of the sentence. Collateral
consequences of a conviction generally are not suffi-
cient to satisfy the condition that a habeas petitioner
must be in custody. See, e.g., Maleng v. Cook, supra,490 U.S. 492 (‘‘once the sentence imposed for a convic-
tion has completely expired, the collateral conse-
quences of that conviction are not themselves sufficient
to render an individual ‘in custody’ for the purposes of
a habeas attack [on] it’’ under federal habeas law);
Lebron v. Commissioner of Correction, supra, 274
Conn. 530 (‘‘[l]ike the federal courts . . . our courts
have never held that the collateral consequences of a
conviction that expired before the habeas petition was
filed are sufficient to render a petitioner in custody on
the expired conviction within the meaning of § 52-466’’
(emphasis in original; internal quotation marks omit-
ted)).
Consistent with this principle, the great majority of
the federal courts that have considered the issue have
concluded that the fact that a petitioner is subject to
a state sex offender registration statute is not sufficient
to satisfy the requirement under federal habeas law that
he must be in custody when he files the petition. See,
e.g., Clark v. Oklahoma, 789 Fed. Appx. 680, 682, 684
(10th Cir. 2019) (habeas court properly denied petition
for certificate to appeal from decision dismissing
habeas petition because requirement under Oklahoma
law that petitioner register as sex offender as result of
Oklahoma conviction did not satisfy condition of fed-
eral statute that petitioner, who was incarcerated in
Texas as result of Texas conviction, must be in custody
for conviction being challenged when habeas petition
is filed); Hautzenroeder v. DeWine, 887 F.3d 737, 743–44
(6th Cir. 2018) (because restrictions imposed by Ohio
sex offender registration statute were collateral conse-
quences of conviction, notwithstanding fact that Ohio
Supreme Court had found statute to be punitive in
nature, petitioner, who was no longer serving sentence
for conviction, was not in custody for purposes of fed-
eral habeas statute); Wilson v. Flaherty, 689 F.3d 332,
338 (4th Cir. 2012) (requirements under Virginia law and
Texas law that petitioner whose sentence had expired
register as sex offender as result of Virginia conviction
were collateral consequences of conviction and, there-
fore, did not satisfy custody requirement of federal
habeas statute), cert. denied, 570 U.S. 917, 133 S. Ct.
2853, 186 L. Ed. 2d 909 (2013); Virsnieks v. Smith,
521 F.3d 707, 720–21 (7th Cir.) (when petitioner’s only
potentially viable claim in habeas proceeding involved
application of Wisconsin sex offender registration stat-
ute, petitioner was not in custody for purposes of fed-
eral habeas statute, even though he was currently incar-
cerated as result of underlying conviction, because
registration requirements were collateral consequences
of conviction), cert. denied, 555 U.S. 868, 129 S. Ct. 161,
172 L. Ed. 2d 117 (2008); Williamson v. Gregoire, 151
F.3d 1180, 1184 (9th Cir. 1998) (because restrictions
imposed by Washington sex offender registration stat-
ute were collateral consequences of conviction, peti-
tioner, who was no longer serving sentence, was not
in custody for purposes of federal habeas statute), cert.
denied, 525 U.S. 1081, 119 S. Ct. 824, 142 L. Ed. 2d 682(1999); cf. Mitchell v. United States, 977 A.2d 959, 967
(D.C. 2009) (‘‘the [sex offender] registration require-
ment amounts to a collateral consequence of conviction
that is not itself sufficient to render an individual in
custody’’ under District of Columbia law governing
motions for attacking sentences).16
At least one court has held to the contrary. In Piasecki
v. Court of Common Pleas, 917 F.3d 161 (3rd Cir.), cert.
denied, U.S. , 140 S. Ct. 482, 205 L. Ed. 2d 267(2019), the United States Court of Appeals for the Third
Circuit concluded that the requirements of Pennsylva-
nia’s sex offender registration statute were sufficiently
onerous to constitute custody for purposes of the fed-
eral habeas statute. Id., 172–73. In reaching this conclu-
sion, the court observed that the Pennsylvania statute
required the petitioner to report to state police barracks
at least four times per year for the rest of his life; to
report to state police barracks within three business
days of changing his address, including a temporary
stay at a different residence; to refrain from using the
Internet; and ‘‘to personally report to the [s]tate [p]olice
if he operated a car, began storing his car in a different
location, changed his phone number, or created a new
[e-mail] address.’’ Id., 170–71. The court also observed
that Pennsylvania courts had concluded that the
requirements of the Pennsylvania statute were not
remedial but were punitive in nature, and that the courts
had ‘‘historically treated sex offender registration
requirements as part of the judgment of sentence.’’ Id.,
175. The court concluded that the statute’s ‘‘physical
compulsion of . . . registration requirements and their
direct relation to the judgment of sentence set them
apart from consequences that are truly collateral and
noncustodial.’’ Id., 176–77.
Even if we were to assume that the Third Circuit
Court of Appeals correctly determined in Piasecki that
individuals who are subject to the Pennsylvania sex
offender registration statute are in custody for purposes
of the federal habeas statute, we conclude that the
Connecticut sex offender registration scheme is clearly
distinguishable. Unlike the Pennsylvania statute, the
Connecticut statute does not subject individuals to any
form of physical compulsion, its requirements are not
imposed as part of the sentence, and this court has
determined that the statute is regulatory in nature, not
punitive. See, e.g., State v. Waterman, supra, 264 Conn.
489; see also, e.g., White v. LaClair, Docket No. 19-CV-
1283 (MKB), 2021 WL 200857, *6 (E.D.N.Y. January 19,
2021) (distinguishing requirements of Pennsylvania sex
offender registration statute at issue in Piasecki from
requirements of New York statute on grounds that Penn-
sylvania’s requirements were ‘‘significantly more restric-
tive,’’ they had been determined to be punitive in nature
and they were imposed as part of sentence). Thus, we
conclude that Piasecki has no persuasive force here.
We conclude in the present case, therefore, that, even
if the Appellate Court had considered the petitioner’s
arguments on the merits of his claim that he was in the
respondent’s custody for purposes of his petition for
habeas corpus, those arguments do not demonstrate
that the issue is ‘‘debatable among jurists of reason; that
a court could resolve the [issue in a different manner];
or that the [question is] adequate to deserve encourage-
ment to proceed further.’’ (Emphasis in original; inter-
nal quotation marks omitted.) Simms v. Warden, supra,
230 Conn. 616. Thus, the arguments do not demonstrate
that the habeas court abused its discretion when it
denied the petitioner’s petition for certification to
appeal.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* This case originally was argued before a panel of this court consisting
of Chief Justice Robinson and Justices McDonald, D’Auria, Kahn, Ecker and
Keller. Thereafter, Justice Mullins was added to the panel and has read the
briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision.
** December 23, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
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 certi-
fies.’’
2
Neither party has briefed the various state and federal laws that required
the petitioner to register as a sex offender while he was residing in Maine
in 2012; and we do not address that issue, as it is not relevant to the issues
before us on appeal.
3
Practice Book § 23-24 (a) provides in relevant part: ‘‘The judicial authority
shall promptly review any petition for a writ of habeas corpus to determine
whether the writ should issue. The judicial authority shall issue the writ
unless it appears that:
‘‘(1) the court lacks jurisdiction . . . .’’
4
Thereafter, the petitioner filed a ‘‘brief and memorandum of law to
support consideration for authority to act and amended request to vacate.’’
The habeas court apparently treated this motion as a motion for reconsidera-
tion of its ruling declining to issue a writ, and it granted the motion but
denied the requested relief. The petitioner then filed an ‘‘amended request
to vacate.’’ The habeas court took no action on that motion but referred
the parties to its ruling denying the relief requested by the petitioner in his
initial motion.
5
The habeas court issued a summary two sentence order indicating that
it was declining to issue a writ of habeas corpus because the petitioner was
not in custody.
6
The petitioner was initially represented by counsel on appeal. Before
the petitioner filed his brief with the Appellate Court, his counsel filed a
motion for leave to withdraw as appellate counsel pursuant to Practice
Book §§ 43-34 and 62-9 (d), and Anders v. California, 386 U.S. 738, 87 S.
Ct. 1396, 18 L. Ed. 2d 493 (1967), which the habeas court granted. In a
handwritten ruling granting that motion, the habeas court indicated that
‘‘[s]entences that are completely served cannot be attacked through habeas
corpus simply because a later sentence was enhanced because of the previ-
ous conviction. Maleng v. Cook, 490 U.S. 488, 491–93 [109 S. Ct. 1923, 104
L. Ed. 2d 540] (1989); Lebron v. Commissioner of Correction, 274 Conn.
507, 510–12 [876 A.2d 1178] (2005) [overruled in part on other grounds by
State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014)]. Nor is the state’s sex
offender registration requirement part of the criminal sentence or judgment
of conviction. State v. Waterman, 264 Conn. 484, 488–90 [825 A.2d 63]
(2003). Therefore, the petitioner’s claims lack any legal merit and are entirely
frivolous.’’
7
After the petitioner filed his initial appellant’s brief, he filed an amended
brief in which he raised substantially similar arguments.
8
Although the Appellate Court stated that the petitioner had failed to
‘‘brief’’ the claim that the habeas court abused its discretion when it denied
his petition for certification to appeal; Goguen v. Commissioner of Correc-
tion, supra, 195 Conn. App. 505; there is no dispute that the petitioner failed
even to make an allegation to that effect.
9
This court in Simms I assumed that General Statutes (Rev. to 1993)
§ 52-470 (b), now § 52-470 (g), implicated the appellate jurisdiction of the
reviewing court. See Simms v. Warden, supra, 229 Conn. 186–87 (when
petitioner appeals from judgment of habeas court after petition for certifica-
tion has been denied, ‘‘the first issue for the appellate tribunal will necessarily
be whether it has jurisdiction to hear the appeal’’). The court later clarified
in Simms II that, in enacting the statute, ‘‘the legislature 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.
10
Justice Borden authored a concurring opinion in Simms I, in which he
opined that the majority’s conclusion that a disappointed habeas litigant
could still receive plenary review after certification is denied by the habeas
court ‘‘could well eviscerate the limitations contained in [General Statutes
(Rev. to 1993)] § 52-470 (b)’’ and render the denial of the petition for certifica-
tion ‘‘an empty gesture . . . .’’ Simms v. Warden, supra, 229 Conn. 191–92
(Borden, J., concurring). Justice Borden also opined that it was unlikely
‘‘that the ‘threshold’ issue [of whether the habeas court abused its discretion
in denying the petition for certification] will be a jurisdictional issue that
we will be able to dispose of prior to hearing the appeal on its merits. Unlike
a question of whether an appeal was timely, a question of whether the
habeas court abused its discretion requires an examination of the merits.’’
Id., 192 (Borden, J., concurring).
11
The Appellate Court expressly noted in McClain v. Commissioner of
Correction, supra, 188 Conn. App. 72, Mercado v. Commissioner of Correc-
tion, supra, 183 Conn. App. 558, Brown v. Commissioner of Correction,
supra, 179 Conn. App. 363, and Parrott v. Commissioner of Correction,
supra, 107 Conn. App. 237, that the petitioners raised the threshold claim
that the habeas court had abused its discretion when it denied their petitions
for certification to appeal. There is no indication in Santiago v. Commis-
sioner of Correction, supra, 90 Conn. App. 420, that the petitioner did not
raise that claim.
12
The petitioner in the present case makes no claim that, even if he did
not allege that the habeas court abused its discretion when it denied his
petition for certification to appeal, the Appellate Court should have reviewed
the merits of his claim on appeal because, otherwise, an injustice would
occur. See Simms v. Warden, supra, 229 Conn. 189 (habeas petitioner can
obtain appellate review of claims despite habeas court’s denial of petition
for certification to appeal if petitioner carries ‘‘burden of persuasion that
denial of certification to appeal was an abuse of discretion or that an injustice
appears to have been done’’). We further note that this court in Simms II
gave no indication that the court in Simms I had recognized two distinct
paths to appellate review if a petition for certification has been denied,
namely, (1) demonstrating an abuse of discretion, or (2) demonstrating that
an injustice appears to have been done. See id. Rather, the court appears
to have assumed that the ‘‘injustice appears to have been done’’ prong was
essentially a reframing of the abuse of discretion prong. Because the issue
has not been raised in the present case, we express no opinion on the matter.
13
We conclude in part III of this opinion that the petitioner’s claims in
the present case lack merit.
14
We further note that the petitioner did not raise either claim in his
habeas petition. A liberal reading of his postjudgment pleadings in the habeas
court, however, reveals that he did attempt to raise these claims at that
time. See, e.g., Kaddah v. Commissioner of Correction, supra, 299 Conn.
140 (‘‘we should be solicitous to [self-represented] petitioners and construe
their pleadings liberally in light of the limited legal knowledge they possess’’).
Moreover, we may review unpreserved claims when the party raising the
claim is unable to prevail. See, e.g., Blumberg Associates Worldwide, Inc.
v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 157–58, 84 A.3d 840(2014) (unpreserved claim is reviewable when record is adequate for review,
review cannot result in unfair prejudice to any party, and party raising claim
cannot prevail).
15
The petitioner included in his pleadings to the habeas court a form
prepared by the Connecticut Department of Public Safety indicating that
he would be required to register as a sex offender ‘‘for the period of ten
years following the date of his or her release . . . or until otherwise released
from such obligation in accordance with [Public Acts 1999, No. 99-183, § 6]
. . . .’’ The petitioner alleged in his pleadings that he had been informed
during the 2012 federal court proceedings on charges that he had failed to
register that he was required under Connecticut law to register for the
remainder of his lifetime. As we indicated, neither party has briefed the
state and federal law governing the petitioner’s current obligation to register
as a sex offender. We assume, for purposes of this portion of the opinion,
however, that the petitioner was subject to the registration requirement at
the time he filed his habeas petition. We note that the respondent does not
claim otherwise.
16
In Alaska v. Wright, supra, 141 S. Ct. 1467, a case with remarkable
similarities to the present case, the petitioner was convicted of sexual abuse
of a minor under Alaska law. Id. After the petitioner finished serving his
sentence, he moved to Tennessee, where he failed to register as a sex
offender as required by federal law and pleaded guilty to that offense. Id.,1467–68. During the course of the federal proceeding, he filed a petition for
a writ of habeas corpus in federal court, challenging his Alaska conviction.
Id., 1468. The United States District Court for the District of Alaska rendered
judgment denying the petition, concluding that the petitioner was not in
custody pursuant to a judgment of a state court, as required by the governing
federal habeas statute. Id. The United States Court of Appeals for the Ninth
Circuit reversed the judgment of the District Court on the ground that the
state conviction was the predicate for the federal conviction. Id. The United
States Supreme Court concluded that the Court of Appeals ‘‘clearly erred’’
under Maleng v. Cook, supra, 490 U.S. 492–93, when it concluded that the
petitioner was in custody pursuant to the judgment of the state court because
his sentence on the state conviction had expired. Alaska v. Wright, supra,
1468. Unlike the petitioner in the present case, the petitioner in Wright
apparently made no claim that the fact that he was subject to Alaska’s sex
offender registration law rendered him in state custody, and the court did
not directly address that issue. Nevertheless, the case provides indirect
support for the proposition that the fact that an individual is subject to a
state sex offender registration law as a result of a state conviction does not
mean that the individual is in custody pursuant to that conviction when the
sentence has fully expired.