165 Conn. App. 731
Conn. App. Ct.2016Background
- Petitioner Jeromie Thorpe filed a habeas petition; the habeas court denied relief and denied certification to appeal.
- Thorpe claimed his prior habeas counsel was ineffective for failing to timely file a fourth amended petition; he argued the habeas court erred in finding procedural default despite the respondent not pleading procedural default as a special defense.
- After the habeas court denied relief and denied certification to appeal under General Statutes § 52-470(g), Thorpe sought appellate review and invoked the Simms two-pronged test for interlocutory habeas appeals.
- Thorpe did not argue that the denial of certification was an abuse of discretion until his reply brief on appeal.
- The appellate panel declined to consider arguments raised for the first time in a reply brief and concluded Thorpe failed to satisfy the first Simms prong (showing abuse of discretion in denial of certification).
- As a result, the appeal was dismissed for failure to obtain appellate review under § 52-470(g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether habeas court erred in finding procedural default when respondent did not plead it as a special defense | Thorpe: procedural default was not properly found because respondent did not raise it as a special defense | Commissioner: court treated claim as procedurally defaulted on the merits | Not reached on appeal — appeal dismissed for procedural reasons (certification/Simms prong failure) |
| Whether denial of certification to appeal constituted an abuse of discretion under Simms | Thorpe: denial was abuse of discretion, warranting appellate review | State: denial was proper; petitioner failed to show abuse of discretion | Petitioner failed to preserve this argument for appeal (raised first in reply brief); court did not find abuse of discretion |
| Whether Thorpe satisfied Simms two-pronged test to obtain appellate review after denial of certification | Thorpe: met Simms prongs and merits justify review | State: Simms prongs not satisfied | Court held Thorpe did not satisfy the first Simms prong (abuse of discretion) and therefore cannot obtain review |
| Whether appellate court will consider claims raised first in a reply brief | Thorpe: advanced the certification-abuse argument in reply brief | State: objection implied by preservation rules | Court refused to consider issues raised initially in reply brief (citing Rathbun) |
Key Cases Cited
- Simms v. Warden, 229 Conn. 178 (Sup. Ct.) (establishing two-pronged test for appellate review after denial of certification in habeas matters)
- Simms v. Warden, 230 Conn. 608 (Sup. Ct.) (adopting and applying the Simms standard)
- Mitchell v. Commissioner of Correction, 68 Conn. App. 1 (Conn. App. 2002) (discussing Simms prongs and certification abuse-of-discretion standard)
- Rathbun v. Health Net of the Northeast, Inc., 315 Conn. 674 (Sup. Ct. 2015) (issues raised first in a reply brief will not be considered)