205 Conn.App. 337
Conn. App. Ct.2021Background
- Petitioner Harold T. Banks, Jr. was sentenced in 2012 (effective 12-year term) after guilty pleas.
- He filed his first habeas petition on December 13, 2017, challenging that conviction.
- The Commissioner moved for an order to show cause under General Statutes § 52-470; an evidentiary hearing occurred on March 8, 2019.
- At the hearing the petitioner declined to present evidence or exhibits to rebut the statutory presumption that his petition was unreasonably delayed.
- The habeas court dismissed the petition as untimely under § 52-470(c) and (e) and denied certification to appeal.
- On appeal the petitioner argued the court abused its discretion in denying certification because his habeas counsel provided ineffective assistance and the court should have intervened when counsel presented no evidence; he also sought Golding/plain-error review of unpreserved claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of certification was an abuse of discretion because habeas counsel was ineffective (counsel presented no evidence to rebut delay presumption) | Banks: counsel rendered constitutionally ineffective assistance and the court should have intervened; denial of certification was therefore an abuse of discretion | Commissioner: Banks failed to raise these claims in his petition for certification to appeal, so they are unpreserved and cannot support a challenge to the certification denial | Court dismissed the appeal: claims were not raised in the certification petition and thus cannot be considered; denial of certification was not shown to be an abuse of discretion on these grounds |
| Whether appellate review may proceed under State v. Golding or plain-error for claims not raised in the certification petition | Banks: asks for Golding or plain-error review to reach unpreserved constitutional and counsel-misconduct claims | Commissioner: § 52-470(g) restricts review to issues presented in the certification petition; Golding/plain-error cannot be used to circumvent that statutory limit (except narrow, fact-specific exceptions) | Court refused Golding/plain-error review for these unpreserved claims, distinguishing the narrow Ajadi exception and limiting Foote to its facts |
Key Cases Cited
- State v. Golding, 213 Conn. 233 (establishes appellate standard for unpreserved constitutional claims)
- Simms v. Warden, 229 Conn. 178 (two‑prong test for obtaining appellate review after denial of certification to appeal)
- Ajadi v. Commissioner of Correction, 280 Conn. 514 (narrow plain‑error exception where issue arose after habeas proceedings and could not have been included in certification petition)
- Solek v. Commissioner of Correction, 203 Conn. App. 289 (holds Golding review unavailable for claims not raised in certification petition)
- Foote v. Commissioner of Correction, 151 Conn. App. 559 (example where appellate court granted plain‑error review but decision limited to its facts)
- Villafane v. Commissioner of Correction, 190 Conn. App. 566 (reviews substantive claims to assess whether denial of certification was an abuse of discretion)