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HAROLD T. BANKS, JR. v. COMMISSIONER
OF CORRECTION
(AC 43187)
Cradle, Alexander and Suarez, Js.
Syllabus
The petitioner, who had been convicted of various crimes in 2012, filed a
petition for a writ of habeas corpus in December, 2017, collaterally
attacking his conviction. The respondent Commissioner of Correction
filed a request for an order to show cause why the petition should be
permitted to proceed. Following an evidentiary hearing, the habeas court
dismissed the petition pursuant to the applicable statute (§ 52-470 (c)
and (e)), concluding that it was untimely and that the petitioner, having
declined to present any evidence of the reason for the delay in filing
the petition, failed to rebut the presumption that the delay was without
good cause. Thereafter, the habeas court denied the petitioner’s petition
for certification to appeal, and the petitioner appealed to this court.
Held that this court declined to review the petitioner’s unpreserved
claims that the habeas court abused its discretion in denying his petition
for certification to appeal because his habeas counsel provided ineffec-
tive assistance and he was denied his constitutional right to counsel
because the habeas court failed to intervene when counsel did not
present any evidence in support of his claim that good cause existed
to rebut the presumption of unreasonable delay in the filing of his
petition; contrary to the petitioner’s contention, the petitioner was not
entitled to appellate review of his claims under State v. Golding (213
Conn. 233) or for plain error, the petitioner having failed to raise them
as grounds for appeal in his petition for certification to appeal.
Argued March 15—officially released June 22, 2021
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., rendered judgment dismissing
the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
Deren Manasevit, assigned counsel, for the appellant
(petitioner).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky III, state’s
attorney, and Leah Hawley, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
CRADLE, J. The petitioner, Harold T. Banks, Jr.,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
dismissing his petition for a writ of habeas corpus as
untimely pursuant to General Statutes § 52-470 (c) and
(e).1 The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal because (1) it should have been obvious to the
court that his habeas counsel provided constitutionally
ineffective assistance and (2) he was denied his consti-
tutional right to counsel because the court failed to
intervene when his counsel did not present any evi-
dence in support of his claim that good cause existed
to rebut the presumption of unreasonable delay in the
filing of his petition. We dismiss the appeal.
The following facts and procedural history, as set
forth by the habeas court, are relevant to the petitioner’s
claims on appeal. ‘‘The petitioner was the defendant
in a matter pending in the Danbury Superior Court.
Pursuant to guilty pleas on multiple files, he was sen-
tenced to a total effective sentence of [twelve] years
[of incarceration] on May 30, 2012. On December 13,
2017, the petitioner filed the present habeas action, his
first, collaterally attacking his conviction. On December
20, 2018, the respondent [the Commissioner of Correc-
tion] filed a request for an order to show cause [why
the petition should be permitted to proceed], and the
petitioner filed a timely objection. The parties were
before the court for an evidentiary hearing on March
8, 2019. At [the] hearing, however, the petitioner
declined the opportunity to present evidence or exhibits
in opposition to the motion.’’
In a memorandum of decision dated May 21, 2019,
the court, Newson, J., dismissed the habeas petition
under § 52-470 (c) and (e), concluding that the deadline
to file the petition was October 1, 2017. The court fur-
ther concluded that the petition was filed on December
13, 2017, and that ‘‘[o]nce the rebuttable presumption
[that no good cause existed for the delay] arose, the
petitioner was obligated to provide some evidence of
the reason for the delay, which he declined to do.’’
(Emphasis in original.) The court thereafter denied the
petition for certification to appeal, and this appeal fol-
lowed.
Section 52-470 (g) provides in relevant part: ‘‘No
appeal from the judgment rendered in a habeas corpus
proceeding brought by or on behalf of a person who
has been convicted of a crime in order to obtain such
person’s release may be taken unless the appellant,
within ten days after the case is decided, petitions the
judge before whom the case was tried . . . to certify
that a question is involved in the decision which ought
to be reviewed by the court having jurisdiction and the
judge so certifies.’’
‘‘As our Supreme Court has explained, one of the
goals our legislature intended by enacting this statute
was to limit the number of appeals filed in criminal
cases and [to] hasten the final conclusion of the criminal
justice process . . . . [T]he legislature intended to dis-
courage frivolous habeas appeals.’’ (Internal quotation
marks omitted.) Stephenson v. Commissioner of Cor-
rection, 203 Conn. App. 314, 322, 248 A.3d 34, cert.
denied, 336 Conn. 944, A.3d (2021).
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for [a writ of]
habeas corpus only by satisfying the two-pronged test
enunciated by our Supreme Court in Simms v. Warden,
229 Conn. 178, 640 A.2d 601 (1994), and adopted in
Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126
(1994). First, [the petitioner] must demonstrate that
the denial of his petition for certification [to appeal]
constituted an abuse of discretion. . . . Second, if the
petitioner can show an abuse of discretion, he must
then prove that the decision of the habeas court should
be reversed on the merits. . . . To prove that the denial
of his petition for certification to appeal constituted an
abuse of discretion, the petitioner must demonstrate
that the [resolution of the underlying claim involves
issues that] are debatable among jurists of reason; that
a court could resolve the issues [in a different manner];
or that the questions are adequate to deserve encourage-
ment to proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous.’’ (Internal quotation
marks omitted.) Haywood v. Commissioner of Correc-
tion, 194 Conn. App. 757, 763–64, 222 A.3d 545 (2019),
cert. denied, 335 Conn. 914, 229 A.3d 729 (2020). ‘‘In
other words, we review the petitioner’s substantive
claims for the purpose of ascertaining whether those
claims satisfy one or more of the three criteria . . .
adopted by [our Supreme Court] for determining the
propriety of the habeas court’s denial of the petition
for certification [to appeal].’’ (Internal quotation marks
omitted.) Villafane v. Commissioner of Correction, 190
Conn. App. 566, 573, 211 A.3d 72, cert. denied, 333 Conn.
902, 215 A.3d 160 (2019).
On appeal, the petitioner does not challenge the
habeas court’s decision on the merits—he does not
claim that the court erred in dismissing his habeas peti-
tion as untimely. Rather, he claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal because (1) his habeas counsel obviously
provided constitutionally ineffective assistance and (2)
he was denied his constitutional right to counsel
because the habeas court failed to intervene when his
counsel did not present any evidence in support of his
claim that good cause existed to rebut the presumption
of unreasonable delay in the filing of his petition. The
respondent argues, inter alia, that, because the peti-
tioner failed to raise these issues as grounds for appeal
in his petition for certification to appeal, he is unable
to claim on appeal that the court abused its discretion
in denying his petition for certification to appeal on
these grounds. We agree with the respondent.
It is well established that a petitioner cannot demon-
strate that a habeas court abused its discretion in deny-
ing a petition for certification to appeal on the basis of
claims that were not raised distinctly before the habeas
court at the time that it considered the petition for
certification to appeal. See Tutson v. Commissioner of
Correction, 144 Conn. App. 203, 216–17, 72 A.3d 1162,
cert. denied, 310 Conn. 928, 78 A.3d 145 (2013), and
cases cited therein.
In the present case, the petitioner’s petition for certifi-
cation to appeal stated only the following ground for
appeal: ‘‘Whether the habeas court erred in finding that
there was not good cause to allow the petitioner’s peti-
tion for [a writ of] habeas corpus to proceed on the
grounds that he filed outside the applicable time limits.’’
The petition for certification to appeal did not include
grounds related to any claims regarding ineffective
assistance of habeas counsel or the habeas court’s
alleged duty to intervene in the face of the alleged
ineffective assistance. In fact, the petitioner concedes
that he failed to preserve those claims by stating them
in his petition for certification to appeal.
Notwithstanding these failings, the petitioner argues
that his failure to list the aforementioned grounds in
his petition for certification to appeal, as required by
§ 52-470 (g), does not preclude this court from
reviewing his claims under State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), or
for plain error. This court previously has addressed and
rejected requests for extraordinary review of claims not
raised in petitions for certification to appeal.
With respect to the petitioner’s argument that he is
entitled to Golding review of his claims, this court has
stated: ‘‘Section 52-470 (g) conscribes our appellate
review to the issues presented in the petition for certifi-
cation to appeal . . . . Permitting a habeas petitioner,
in an appeal from a habeas judgment following the
denial of a petition for certification to appeal, to seek
Golding review of a claim that was not raised in, or
incorporated into, the petition for certification to appeal
would circumvent the requirements of § 52-470 (g) and
undermine the goals that the legislature sought to
achieve in enacting § 52-470 (g).’’ (Internal quotation
marks omitted.) Solek v. Commissioner of Correction,
203 Conn. App. 289, 299, 248 A.3d 69, cert. denied, 336
Conn. 935, 248 A.3d 709 (2021); see also Whistnant
v. Commissioner of Correction, 199 Conn. App. 406,
418–19, 236 A.3d 276 (noting that review pursuant to
Golding was not available for claim raised for first time
on appeal and not raised in or incorporated into petition
for certification to appeal), cert. denied, 335 Conn. 969,
240 A.3d 286 (2020). Accordingly, the petitioner is not
entitled to Golding review of his claims.
This court likewise has rejected the argument that
claims not set forth in a petition for certification to
appeal may be reviewed for plain error.2 See Villafane
v. Commissioner of Correction, supra, 190 Conn. App.
577–78; Sanders v. Commissioner of Correction, 169
Conn. App. 813, 818 n.2, 153 A.3d 8 (2016), cert. denied,
325 Conn. 904, 156 A. 3d 536 (2017). In declining to
afford plain error review to a claim not set forth in a
petition for certification to appeal, this court has rea-
soned that ‘‘[t]he [habeas] court could not abuse its
discretion in denying the petition for certification about
matters that the petitioner never raised.’’ Mercado v.
Commissioner of Correction, 85 Conn. App. 869, 872,
860 A.2d 270 (2004), cert. denied, 273 Conn. 908, 870
A.2d 1079 (2005).
In support of his argument that he is entitled to plain
error review, the petitioner relies on this court’s opinion
in Foote v. Commissioner of Correction, 151 Conn. App.
559, 96 A.3d 587, cert. denied, 314 Conn. 929, 102 A.3d
709 (2014), and cert. dismissed, 314 Conn. 929, 206 A.3d
764 (2014), in which this court afforded the petitioner
plain error review of a claim not listed in his petition
for certification to appeal without articulating its reason
for doing so. The majority in Foote cited, without analy-
sis, to our Supreme Court’s decision in Ajadi v. Com-
missioner of Correction, 280 Conn. 514, 526, 911 A.2d
712 (2006).3 Foote v. Commissioner of Correction,
supra, 566–67. Ajadi involved a claim of plain error that
called into question the fairness and impartiality of the
entire habeas trial.4 Ajadi v. Commissioner of Correc-
tion, supra, 525. In Ajadi, the petitioner did not become
aware of the issue underlying the claim of plain error
until after the habeas proceedings had concluded. Id.,
522. In other words, because this issue did not come
to the attention of the parties, counsel, or the habeas
court until sometime after the petitioner brought the
appeal in that case, he could not have included it in his
petition for certification to appeal. The petitioner in
Ajadi, therefore, sought, and was afforded, plain error
review of his claim.5 Id., 525–30.
In this case, the claim of plain error is based on events
that occurred during the petitioner’s habeas trial and,
therefore, could have been raised in his petition for
certification to appeal. The scope of appellate review
is restricted to an examination of the court’s denial of
the petition for certification to appeal. A plain error
analysis of claims never raised in connection with a
petition for certification to appeal expands the scope
of review and undermines the goals that the legislature
sought to achieve by enacting § 52-470 (g). If this court
were to engage in plain error review, it would invite
petitioners, who have been denied certification to
appeal, to circumvent the bounds of limited review sim-
ply by couching wholly unpreserved claims as plain
error.
On the basis of the foregoing, we conclude that, if
the petitioner desired appellate review of his claims of
ineffective assistance of habeas counsel and/or whether
the habeas court had a duty to address counsel’s defi-
cient performance to prevent prejudice to the peti-
tioner, he was required to include those issues as
grounds for appeal in his petition for certification to
appeal. See Villafane v. Commissioner of Correction,
supra, 190 Conn. App. 577–78. Because he failed to do
so, we decline to review the petitioner’s claims.
The appeal is dismissed.
In this opinion the other judges concurred.
1
General Statutes § 52-470 provides in relevant part: ‘‘(a) The court or
judge hearing any habeas corpus shall proceed in a summary way to deter-
mine the facts and issues of the case, by hearing the testimony and arguments
in the case, and shall inquire fully into the cause of imprisonment and
thereupon dispose of the case as law and justice require. . . .
‘‘(c) Except as provided in subsection (d) of this section, there shall be
a rebuttable presumption that the filing of a petition challenging a judgment
of conviction has been delayed without good cause if such petition is filed
after the later of the following: (1) Five years after the date on which the
judgment of conviction is deemed to be a final judgment due to the conclu-
sion of appellate review or the expiration of the time for seeking such
review; (2) October 1, 2017; or (3) two years after the date on which the
constitutional or statutory right asserted in the petition was initially recog-
nized and made retroactive pursuant to a decision of the Supreme Court
or Appellate Court of this state or the Supreme Court of the United States
or by the enactment of any public or special act. The time periods set forth
in this subsection shall not be tolled during the pendency of any other
petition challenging the same conviction. . . .
‘‘(e) In a case in which the rebuttable presumption of delay . . . applies,
the court, upon the request of the respondent, shall issue an order to show
cause why the petition should be permitted to proceed. The petitioner or,
if applicable, the petitioner’s counsel, shall have a meaningful opportunity
to investigate the basis for the delay and respond to the order. If, after such
opportunity, the court finds that the petitioner has not demonstrated good
cause for the delay, the court shall dismiss the petition. For the purposes
of this subsection, good cause includes, but is not limited to, the discovery
of new evidence which materially affects the merits of the case and which
could not have been discovered by the exercise of due diligence in time to
meet the requirements of subsection (c) . . . of this section. . . .’’
2
The plain error doctrine, codified in Practice Book § 60-5, ‘‘is not . . .
a rule of reviewability . . . [but] a rule of reversibility. That is, it is a doctrine
that [appellate courts invoke] in order to rectify a trial court ruling that,
although either not properly preserved or never raised at all in the trial
court, nonetheless requires reversal of the trial court’s judgment, for reasons
of policy.’’ State v. Cobb, 251 Conn. 285, 343 n.34, 743 A.2d 1 (1999), cert.
denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).
3
The court also cited, without analysis, to Melendez v. Commissioner of
Correction, 141 Conn. App. 836, 62 A.3d 629, cert. denied, 310 Conn. 921,
77 A.3d 143 (2013). Foote v. Commissioner of Correction, supra, 151 Conn.
App. 567. In Melendez, the court afforded plain error review of the petitioner’s
unpreserved claim with no discussion as to why it was doing so. Melendez
v. Commissioner of Correction, supra, 841.
4
In Ajadi, the petitioner argued that the habeas judge who presided over
his habeas trial and denied his petition for certification to appeal should
have disqualified himself based on the judge’s prior representation of the
petitioner. Ajadi v. Commissioner of Correction, supra, 280 Conn. 525–29.
5
The holding in Ajadi, in our view, is best limited to the unique facts of
that case. Because the majority in Foote did not provide a reason for
departing from the settled jurisprudence, we likewise limit the holding in
Foote to its facts.