Bosque v. Commissioner of Correction
205 Conn. App. 480
| Conn. App. Ct. | 2021Background
- Petitioner Benjamin Bosque was convicted of multiple violent felonies and unsuccessfully appealed his conviction.
- He filed multiple habeas petitions: a first petition (denied), a second petition (withdrawn in Jan. 2018), and a third petition filed Feb. 26, 2018.
- Respondent filed an order to show cause (Dec. 6, 2018) asserting the third petition was untimely under § 52-470(d) because the deadline to file was March 12, 2015.
- At the March 8, 2019 evidentiary hearing the petitioner declined to present testimony or evidence to rebut the statutory presumption of unreasonable delay.
- The habeas court dismissed the petition (May 21, 2019) for failure to demonstrate good cause and denied certification to appeal; petitioner appealed only the denial of certification, arguing ineffective assistance of habeas counsel and that the court should have intervened.
- The Appellate Court dismissed the appeal, holding the petitioner failed to preserve those grounds in his petition for certification to appeal and denying extraordinary review (Golding/plain error).
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Whether the habeas court abused its discretion in denying certification because habeas counsel was constitutionally ineffective | Counsel offered no evidence at the hearing, so counsel’s performance was obviously ineffective and the court should have certified appeal | Petitioner failed to list ineffective-assistance grounds in the petition for certification to appeal; therefore review of that claim is barred | Denied — claims not preserved in the certification petition cannot form basis for finding abuse of discretion in denial of certification |
| Whether petitioner was denied the right to counsel because the court failed to intervene when counsel did not present evidence | Court should have stepped in to protect petitioner’s Sixth Amendment right where counsel presented no evidence on good-cause issue | Same preservation objection: issue was not raised in the petition for certification to appeal | Denied — unpreserved claim; court refused to consider it on appeal from denial of certification |
| Whether appellate review may be had under State v. Golding for claims not raised in the certification petition | Golding review should be available despite § 52-470(g) because of the constitutional dimension of the claim | § 52-470(g) limits appellate review to issues presented in the certification petition; permitting Golding review would circumvent statute | Denied — § 52-470(g) precludes Golding review of claims not raised in the certification petition |
| Whether plain error review applies to claims not raised in the certification petition | Plain error should be available to correct obvious trial-level wrongs even if not listed in certification petition | Allowing plain error review of unpreserved certification issues would undermine § 52-470(g) and encourage circumvention | Denied — court will not entertain plain error on matters not raised in the certification petition, except in narrow, exceptional facts (Ajadi-type cases) |
Key Cases Cited
- State v. Golding, 213 Conn. 233 (Conn. 1989) (framework for appellate review of unpreserved constitutional claims)
- Simms v. Warden, 229 Conn. 178 (Conn. 1994) (two‑pronged test for review after denial of certification to appeal)
- Ajadi v. Commissioner of Correction, 280 Conn. 514 (Conn. 2006) (plain‑error review appropriate where issue arises after trial and could not have been raised earlier)
- Solek v. Commissioner of Correction, 203 Conn. App. 289 (Conn. App. 2020) (§ 52‑470(g) limits Golding review to issues presented in the certification petition)
- Villafane v. Commissioner of Correction, 190 Conn. App. 566 (Conn. App. 2019) (review limited to issues raised in certification petition)
- Foote v. Commissioner of Correction, 151 Conn. App. 559 (Conn. App. 2014) (anomalous instance of plain‑error review of an unpreserved claim)
- Tutson v. Commissioner of Correction, 144 Conn. App. 203 (Conn. App. 2013) (a habeas court’s denial of certification cannot be attacked on grounds not raised before it)