Cookish v. Commissioner of Correction

***********************************************
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.
***********************************************
DENNIS COOKISH v. COMMISSIONER
OF CORRECTION
(SC 20433)
Robinson, C. J., and Palmer, D’Auria, Mullins,
Kahn and Ecker, Js.*
Syllabus
The petitioner, who had been convicted, on a guilty plea, of the crime of
unlawful sexual contact in the first degree, filed a petition for a writ of
habeas corpus, seeking to have his guilty plea withdrawn or vacated.
A clerk of the court granted the self-represented petitioner’s application
for a waiver of fees but took no action on his request for the appointment
of counsel. Subsequently, the habeas court, in connection with its prelim-
inary consideration of the writ under the rules of practice (§ 23-24),
dismissed, sua sponte, the petition for lack of subject matter jurisdiction
and ordered the petition returned to the petitioner. The court determined
that, pursuant to the rules of practice (§ 23-29), it lacked jurisdiction
because it was apparent, on the face of the petition, that the petitioner
was not in custody for the conviction being challenged. The court denied
the petitioner’s petition for certification to appeal, and the petitioner
appealed, claiming, inter alia, that the habeas court improperly dismissed
the petition under § 23-29 without first appointing him counsel and
providing him with notice and an opportunity to be heard. Held:
1. The habeas court correctly determined that it lacked subject matter
jurisdiction because the petitioner was not in custody for the challenged
conviction, but it should have declined to issue the writ pursuant to
§ 23-24 rather than dismissing the petition pursuant to § 23-29, consistent
with this court’s prior decision in Gilchrist v. Commissioner of Correc-
tion (334 Conn. 548); moreover, the mere administrative granting of the
waiver of fees, without more, did not transform the petitioner’s patently
defective petition into one in which the procedures of § 23-29 applied,
and, because the habeas court should have declined to issue the writ,
the petitioner was not entitled to appointment of counsel, notice or an
opportunity to be heard; furthermore, the petitioner’s claim that this
court should apply the doctrine of plain error and reverse the judgment
of the habeas court was unavailing because the petitioner failed to satisfy
his burden of demonstrating that the habeas court’s error was obvious.
2. There was no merit to the petitioner’s claim that the habeas court improp-
erly failed to construe his petition as a petition for a writ of error coram
nobis, the habeas court having lacked jurisdiction to entertain such a
petition; even if this court assumed that the habeas court had a duty
to construe the habeas petition as a petition for a writ of error coram
nobis, the petitioner still could not prevail on his claim, as his habeas
petition was filed well beyond the three year limitation period allowed
for petitions for a writ of error coram nobis.
Argued April 29—officially released October 20, 2020**
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.
Reversed; judgment directed.
Cheryl A. Juniewic, assigned counsel, for the appel-
lant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, was Kevin T. Kane, former
chief state’s attorney, for the appellee (respondent).
Opinion
MULLINS, J. The petitioner, Dennis Cookish, appeals
from the judgment of the habeas court dismissing his
petition for a writ of habeas corpus and from the denial
of his petition for certification to appeal.1 The habeas
court, acting sua sponte and without providing the peti-
tioner with notice or a hearing, dismissed the habeas
petition pursuant to Practice Book § 23-292 for lack of
jurisdiction. The habeas court determined that dis-
missal pursuant to § 23-29 (1) was warranted and that
the petition should be returned because it was apparent,
on the face of the petition, that the petitioner was not
in custody for the conviction being challenged. On
appeal, the petitioner asserts that the habeas court
improperly (1) dismissed the petition under § 23-29
without first appointing him counsel and providing him
with notice and an opportunity to be heard, and (2)
failed to construe the habeas petition as a petition for
a writ of error coram nobis.
Consistent with this court’s recent decision in Gilch-
rist v. Commissioner of Correction, 334 Conn. 548, 223
A.3d 368 (2020), we conclude that, although the habeas
court correctly determined that it lacked subject matter
jurisdiction in the present case because the petitioner
was not in custody for the challenged conviction, it
should have declined to issue the writ pursuant to Prac-
tice Book § 23-243 rather than dismissing the case pursu-
ant to Practice Book § 23-29. See id., 563. Accordingly,
we conclude that the habeas court abused its discretion
in denying the petitioner’s petition for certification to
appeal. As a result, we reverse the judgment of the
habeas court and remand the case to that court with
direction to decline to issue the writ.
The following undisputed facts and procedural his-
tory are relevant to this appeal. In approximately 1974,
the petitioner, with the assistance of counsel, pleaded
guilty to unlawful sexual contact in the first degree and
was sentenced to one and one-half to six years incarcer
ation. The petitioner’s sentence therefore expired, at the
latest, in approximately 1980. Then, on November 23,
2018, nearly forty years after his sentence expired, the
self-represented petitioner filed a petition for a writ of
habeas corpus seeking to have his guilty plea withdrawn
or vacated.
The petitioner included with the petition a request for
the appointment of counsel and an application for a
waiver of fees. On December 3, 2018, a clerk of the court
granted the waiver of fees but took no action on the
petitioner’s request for appointment of counsel.4 On
December 5, 2018, the habeas court, in connection with
its preliminary consideration of the writ, dismissed the
petition and ordered the petition returned to the peti-
tioner. The court reasoned that, pursuant to Practice
Book § 23-29 (1), it lacked jurisdiction because the peti-
tion and the documents attached thereto demonstrated
that the petitioner was not in custody for the conviction
being challenged. On December 21, 2018, the petitioner
filed a petition for certification to appeal from the judg-
ment of the habeas court, which the court denied. This
appeal followed.5
On appeal, the petitioner claims, inter alia, that the
habeas court abused its discretion in denying the peti-
tion for certification to appeal because it is debatable
among jurists of reason whether the habeas court prop-
erly dismissed the petition without providing the peti-
tioner with assistance of counsel, notice and an
opportunity to be heard. The respondent, the Commis-
sioner of Correction, counters that the habeas court
properly denied the petitioner’s petition for certification
to appeal because it is not debatable that the habeas
court lacked jurisdiction to issue the writ.
‘‘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. . . . A petitioner may establish an abuse of
discretion by demonstrating that the issues are debat-
able among jurists of reason . . . [the] court could
resolve the issues [in a different manner] . . . or . . .
the questions are adequate to deserve encouragement
to proceed further. . . . The required determination
may be made on the basis of the record before the
habeas court and the applicable legal principles. . . .
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.
. . . 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.’’ (Citation omitted; inter-
nal quotation marks omitted.) Meletrich v.
Commissioner of Correction, 332 Conn. 615, 626, 212
A.3d 678 (2019).
Accordingly, in order to determine whether the habeas
court abused its discretion in denying the petitioner’s
petition for certification to appeal, we must first address
the merits of his claim. To that end, we address the peti
tioner’s claim that the habeas court improperly dis-
missed the self-represented petitioner’s petition for a
writ of habeas corpus without appointing him counsel
and without providing him with notice and an opportu-
nity to be heard.
We begin with the standard of review. ‘‘Whether a
habeas court properly dismissed a petition for a writ
of habeas corpus presents a question of law over which
our review is plenary. See Kaddah v. Commissioner
of Correction, 324 Conn. 548, 559, 153 A.3d 1233 (2017)
(plenary review of dismissal under Practice Book § 23-
29 [2]); Johnson v. Commissioner of Correction, 285
Conn. 556, 566, 941 A.2d 248 (2008) (conclusions
reached by habeas court in dismissing habeas petition
are matters of law subject to plenary review). Plenary
review also is appropriate because this appeal requires
us to interpret the rules of practice. See, e.g., Wiseman
v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027 (2010).’’
Gilchrist v. Commissioner of Correction, supra, 334
Conn. 553.
The petitioner asserts that, because the habeas court
dismissed the petition under Practice Book § 23-29, it
was obligated to appoint counsel for the petitioner and
provide him with notice and an opportunity to be heard.
We disagree.
We recently addressed a strikingly similar scenario
in Gilchrist v. Commissioner of Correction, supra, 334
Conn. 548, and we find that the present case is con-
trolled in all material respects by that recent decision.
In Gilchrist, this court resolved the issue of whether a
habeas court can dismiss a petition pursuant to Practice
Book § 23-29 before issuing the writ. See id., 553. The
petitioner in that case had pleaded guilty to robbery in
the third degree in 2013 and received a sentence of
unconditional discharge. See id., 551. Thereafter, in
2016, he filed a petition for a writ of habeas corpus,
seeking to withdraw his guilty plea and to have his
conviction vacated or dismissed. See id., 550. The
habeas court granted the petitioner’s application for a
waiver of fees but took no action as to his request for
the appointment of counsel. Id., 551. Shortly thereafter,
however, the court, sua sponte and without providing
the petitioner with notice or an opportunity to be heard,
dismissed the petition pursuant to § 23-29 on the ground
that the habeas court lacked jurisdiction because, at
the time he filed the petition, the petitioner was not in
custody for the conviction that he was challenging. See
id., 552.
We noted that there was ‘‘understandable confusion’’
in our courts regarding the proper procedure to be fol-
lowed in the preliminary stages of review when a peti-
tioner files a habeas petition in the habeas court. Id.,
553. We then clarified the appropriate procedure to be
followed by explaining: ‘‘First, upon receipt of a habeas
petition that is submitted under oath and is compliant
with the requirements of Practice Book § 23-22 . . .
the judicial authority must review the petition to deter-
mine if it is patently defective because the court lacks
jurisdiction, the petition is wholly frivolous on its face,
or the relief sought is unavailable. Practice Book § 23-
24 (a). If it is clear that any of those defects are present,
then the judicial authority should issue an order declin-
ing to issue the writ, and the office of the clerk should
return the petition to the petitioner explaining that the
judicial authority has declined to issue the writ pursuant
to § 23-24.6 Practice Book § 23-24 (a) and (b). If the
judicial authority does not decline to issue the writ,
then it must issue the writ, the effect of which will be
to require the respondent to enter an appearance in the
case and to proceed in accordance with applicable law.
At the time the writ is issued, the court should also
take action on any request for the appointment of coun-
sel and any application for the waiver of filing fees and
costs of service. See Practice Book §§ 23-25 and 23-26.
After the writ has issued, all further proceedings should
continue in accordance with the procedures set forth
in our rules of practice, including Practice Book § 23-
29.’’ (Citations omitted; footnote added.) Gilchrist v.
Commissioner of Correction, supra, 334 Conn. 562–63.
Ultimately, we reasoned that ‘‘the habeas court dis-
missed the petition for lack of jurisdiction under Prac-
tice Book § 23-29 (1), even though the court did so in its
preliminary consideration of the petition under Practice
Book § 23-24, prior to the issuance of the writ. For this
reason, the habeas court should have declined to issue
the writ pursuant to § 23-24 (a) (1) rather than dismiss-
ing the case pursuant to § 23-29 (1).’’ Id., 563. Accord-
ingly, we reversed the judgment of the Appellate Court,
which affirmed the habeas court’s judgment of dis-
missal, and remanded the case to the Appellate Court
with direction to remand the case to the habeas court
with direction to decline to issue the writ. See id., 550–
51, 563.
In the present case, like in Gilchrist, the habeas court
dismissed the petition for lack of jurisdiction under
Practice Book § 23-29 (1), even though the court did
so in its preliminary consideration of the petition under
Practice Book § 23-24, prior to the issuance of the writ.
It did so because the petition was patently defective
due to the fact that the petitioner was not in custody
for the conviction that he challenged, and, thus, the
court lacked jurisdiction. Consequently, as was the case
in Gilchrist, the habeas court here should have declined
to issue the writ pursuant to § 23-24 (a) (1), rather than
dismissing the case pursuant to § 23-29 (1).
Nonetheless, the petitioner asserts that the habeas
court had granted the waiver of fees and request for
appointment of counsel prior to dismissing the petition
and was, therefore, required to appoint counsel and
give the petitioner the opportunity for a hearing prior
to dismissing the petition. We disagree.
A review of the record reveals that, although the
waiver of fees was granted administratively, the habeas
court had not acted on the request for appointment of
counsel prior to dismissing the petition. See footnote
4 of this opinion. Indeed, the same circumstances
existed in Gilchrist. The habeas record in that case
indicates that a clerk of the court granted the waiver
of fees but did not address the appointment of counsel.
We nevertheless concluded that, notwithstanding the
fact that the habeas court utilized the wrong section of
our rules of practice to dismiss the case, namely, Prac-
tice Book § 23-29 (1), the writ should have been declined
under Practice Book § 23-24 because the petitioner was
not in custody for the conviction being challenged. See
Gilchrist v. Commissioner of Correction, supra, 334
Conn. 563. Thus, Gilchrist makes clear that the mere
administrative granting of the waiver of fees, without
more, does not transform a patently defective petition
into one in which the procedures of § 23-29 apply.7
Because the habeas court should have declined to issue
the writ, no hearing or appointment of counsel was
required.
To the extent that the petitioner claims that the
habeas court violated his constitutional rights by failing
to appoint counsel prior to dismissing the petition for
lack of jurisdiction, we reject that claim. Again, as we
explained in Gilchrist, ‘‘[i]f the court declines to issue
the writ, no further action is necessary beyond notifying
the petitioner because there is no service of process,
no civil action and, accordingly, no need for the appoint-
ment of counsel.’’ Id., 561. We explained further that
‘‘it is undisputed that the petitioner is not entitled to the
appointment of counsel or notice and an opportunity
to be heard in connection with the court’s decision to
decline to issue the writ . . . .’’ Id., 563. Thus, as we
did in Gilchrist, because we conclude that the habeas
court should have declined to issue the writ, we con-
clude that the petitioner was not entitled to appoint-
ment of counsel, notice or an opportunity to be heard.
In the alternative, the petitioner asserts that we
should apply the doctrine of plain error and reverse the
judgment of the habeas court. That claim is unavailing.
‘‘[An appellant] cannot prevail under [the plain error
doctrine] . . . unless he demonstrates that the claimed
error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injus-
tice.’’ (Emphasis in original; internal quotation marks
omitted.) State v. McClain, 324 Conn. 802, 812, 155 A.3d
209 (2017). ‘‘It is axiomatic that . . . [t]he plain error
doctrine . . . is not . . . a rule of reviewability. It is
a rule of reversibility. That is, it is a doctrine that this
court invokes 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.
. . . Put another way, plain error review is reserved
for only the most egregious errors. When an error of
such a magnitude exists, it necessitates reversal.’’ (Cita-
tion omitted; internal quotation marks omitted.) Id.,
813–14. ‘‘An appellate court addressing a claim of plain
error first must determine if the error is indeed plain
in the sense that it is patent [or] readily [discernible]
on the face of a factually adequate record, [and] also
. . . obvious in the sense of not debatable. . . . This
determination clearly requires a review of the plain
error claim presented in light of the record.’’ (Internal
quotation marks omitted.) State v. Jamison, 320 Conn.
589, 596, 134 A.3d 560 (2016).
In light of this court’s decision in Gilchrist, we cannot
conclude that the petitioner has met his burden of dem-
onstrating that the error that he alleges the habeas court
committed is ‘‘obvious in the sense of not debatable.’’
(Internal quotation marks omitted.) Id. To the contrary,
as we explained in Gilchrist, at the time the habeas
court dismissed the petition under Practice Book § 23-
29, ‘‘[t]here [was] understandable confusion in our
courts regarding the proper procedure to be followed
in the preliminary stages of review once a petition for
a writ of habeas corpus is filed in the habeas court.’’
Gilchrist v. Commissioner of Correction, supra, 334
Conn. 553. Gilchrist, which had not been decided at
the time the habeas court issued its decision in the
present case, provides the procedural clarification.
Therefore, we conclude that the habeas court’s error
was not obvious. Having determined that the petition-
er’s claim fails under the first prong of the plain error
doctrine, we need not reach the second prong, which
examines whether failure to correct the alleged error
would result in manifest injustice. See State v. Blaine,
334 Conn. 298, 313 n.5, 221 A.3d 798 (2019) (declining
to reach second prong of plain error doctrine because
defendant’s claim failed under first prong).
The petitioner also claims that the habeas court
improperly failed to construe his petition as a petition
for a writ of error coram nobis. In support of his claim,
the petitioner asserts that his petition for a writ of
habeas corpus should have been construed as a writ
of error coram nobis because it (1) requested that his
plea be vacated, (2) presented new facts not previously
before the trial court that would demonstrate that his
conviction was void or voidable, and (3) alleged that
these facts were not known to him at the time of his
underlying criminal trial. The respondent disagrees,
claiming that the habeas court is without jurisdiction
to entertain such a petition because it was not filed
within three years of the petitioner’s underlying convic-
tion. We agree with the respondent.
‘‘A writ of error coram nobis is an ancient common-
law remedy which authorized the trial judge, within
three years, to vacate the judgment of the same court
if the party aggrieved by the judgment could present
facts, not appearing in the record, which, if true, would
show that such judgment was void or voidable. . . .
The facts must be unknown at the time of the trial
without fault of the party seeking relief.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Das,
291 Conn. 356, 370, 968 A.2d 367 (2009).
In the present case, it is undisputed that the petitioner
filed his petition for a writ of habeas corpus well beyond
the three year limitation period allowed for a writ of
error coram nobis. The underlying judgment of convic-
tion was rendered by the trial court in approximately
1974. The petitioner, however, did not file the petition
until 2018, more than four decades after the judgment
of conviction. Therefore, even if we assume that the
court had a duty to construe the habeas petition as a
petition for a writ of error coram nobis, the petitioner’s
claim still fails, as the petition was filed well beyond
the three year limitation period.
In sum, although the court correctly determined that
it lacked jurisdiction, the dismissal of the petition pursu-
ant to Practice Book § 23-29 was error. The habeas
court instead should have declined to issue the writ
pursuant to Practice Book § 23-24. Because the court
could have and should have declined to issue the writ
pursuant to § 23-24 rather than dismissing the petition
under § 23-29, we conclude that the petitioner has dem-
onstrated that the court could have ‘‘resolve[d] the
[issue in a different manner]’’ and, therefore, abused
its discretion in denying the petitioner’s petition for
certification to appeal. (Internal quotation marks omit-
ted.) Meletrich v. Commissioner of Correction, supra,332 Conn. 626.
The judgment is reversed and the case is remanded
with direction to decline to issue the writ of habeas
corpus.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** October 20, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The petitioner appealed from the judgment of the habeas court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
2
Practice Book § 23-29 provides: ‘‘The judicial authority may, at any time,
upon its own motion or upon motion of the respondent, dismiss the petition,
or any count thereof, if it determines that:
‘‘(1) the court lacks jurisdiction;
‘‘(2) the petition, or a count thereof, fails to state a claim upon which
habeas corpus relief can be granted;
‘‘(3) the petition presents the same ground as a prior petition previously
denied and fails to state new facts or to proffer new evidence not reasonably
available at the time of the prior petition;
‘‘(4) the claims asserted in the petition are moot or premature;
‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’
3
Practice Book § 23-24 provides: ‘‘(a) 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;
‘‘(2) the petition is wholly frivolous on its face; or
‘‘(3) the relief sought is not available.
‘‘(b) The judicial authority shall notify the petitioner if it declines to issue
the writ pursuant to this rule.’’
4
A review of the record demonstrates that both the request for the appoint-
ment of counsel and the application for waiver of fees are on the same
form. At the top of the form is the request for the appointment of counsel.
The application for waiver of fees is just beneath the request for counsel.
Toward the bottom of that document, immediately beneath the application
for waiver of fees, the clerk of the habeas court, not a judge, circled ‘‘granted,’’
without further notation. The petitioner asserts that, by virtue of the clerk’s
signing of that document, the court granted the petitioner’s request for the
appointment of counsel and the application for waiver of fees on December
3, 2018. We disagree.
Admittedly, the form, which contains both requests and only one place
for a court or clerk to sign, is not a model of clarity. Indeed, there is no
place for a court or clerk to sign specifically directed to whether counsel
will be appointed. The circumstances of this case, however, do not lead us
to conclude that the request for appointment of counsel was granted simply
because the clerk signed this form. First, the habeas court determined that
the petition should be returned. Thus, no habeas action was initiated, and,
consequently, no counsel was required to be appointed. Second, as we
explain subsequently in this opinion, in Gilchrist, the clerk’s granting of
the fee waiver did not lead us to conclude that the court had also granted
the request for appointment of counsel. The same conclusion obtains here.
And, finally, a review of the online docketing sheet demonstrates that a
clerk of the court granted the application for waiver of fees on December
3, 2018, but does not indicate that the request for appointment of counsel
was granted.
5
See footnote 1 of this opinion.
6
We made clear in Gilchrist that, ‘‘[i]f the [habeas] court declines to issue
the writ [pursuant to Practice Book § 23-24], no further action is necessary
beyond notifying the petitioner because there is no service of process, no
civil action and, accordingly, no need for the appointment of counsel.’’
Gilchrist v. Commissioner of Correction, supra, 334 Conn. 561.
7
To the extent that the petitioner asserts that, by granting the waiver of
fees, the habeas court thereby issued the writ, we disagree. As in Gilchrist,
the fact that the habeas court granted the waiver of fees does not mean
that the trial court could not have declined to issue the writ under Practice
Book § 23-24. Additionally, we note that the habeas court’s ruling refutes
any notion that the writ was issued. Indeed, the habeas court stated, specifi-
cally, that ‘‘[t]he petition for habeas corpus is dismissed and is being
returned because the court lacks jurisdiction pursuant to [Practice Book
§] 23-29 (1).’’ (Emphasis added.) Although the court cited the wrong section
of our rules of practice, it is clear to us that, by ordering the return of the
petition, the court did not issue the writ. Ordering the petition returned is
consistent with the court’s not accepting the writ.