Bosque v. Commissioner of Correction

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*********************************************** The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning 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 Publications, Judicial Branch, State of Connecticut. *********************************************** BENJAMIN BOSQUE v. COMMISSIONER OF CORRECTION (SC 20622) Robinson, C. J., and McDonald, D’Auria, Mullins and Ecker, Js. Syllabus The petitioner appealed to the Appellate Court from the habeas court’s denial of his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus. The Appellate Court dismissed the petitioner’s appeal, concluding that his unpreserved claims, which he had not included in his petition for certification to appeal, were not reviewable under either the plain error doctrine or State v. Golding (213 Conn. 233). On the granting of certification, the petitioner appealed to this court. Held that the Appellate Court improperly dismissed the petitioner’s uncertified appeal without first considering whether his unpreserved claims were not frivolous, and, accordingly, this court reversed the Appellate Court’s judgment and remanded the case for further proceedings: The issue of whether a reviewing court may review unpreserved claims challenging a habeas court’s handling of the habeas proceeding itself under the plain error doctrine or Golding, despite the petitioner’s failure to raise those claims before the habeas court or in his petition for certification to appeal, was resolved in the companion case of Banks v. Commissioner of Correction (347 Conn. ), in which the court concluded that such claims are reviewable if the appellant can demonstrate that they are not frivolous, insofar as they involve issues that are debatable among jurists of reason, that a court could resolve them in a different manner, or are adequate to deserve encouragement to proceed further. (Two justices dissenting in one opinion) Argued December 22, 2022—officially released July 25, 2023 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 the Appellate Court, Cradle, Alexander and Suarez, Js., which dismissed the appeal, and the petitioner, on the granting of certification, appealed to this court. Reversed; further proceedings. Deren Manasevit, assigned counsel, for the appellant (petitioner). Sarah Hanna, former senior assistant state’s attorney, with whom, on the brief, were Joseph T. Corradino, state’s attorney, and Emily Trudeau, assistant state’s attorney, for the appellee (respondent). Opinion ECKER, J. This is a certified appeal taken by the petitioner, Benjamin Bosque, challenging the Appellate Court’s dismissal of his appeal from the habeas court’s denial of his petition for certification to appeal. The petitioner claims that the Appellate Court incorrectly concluded that unpreserved claims not included in the petition for certification are unreviewable under the plain error doctrine or State v. Golding, 213 Conn. 233, 239–40, 567 A.3d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).1 See Bosque v. Commissioner of Correction, 205 Conn. App. 480, 486–89, 257 A.3d 972 (2021).2 In Banks v. Commissioner of Correction, 347 Conn. 335, 350–77, A.3d (2023), also released today, we held that unpreserved claims challenging the habeas court’s handling of the habeas proceeding itself are reviewable under the plain error doctrine and Golding, despite the failure to include those claims in the petition for certification to appeal, if the appellant can demonstrate that the claims are nonfrivolous because they involve issues that ‘‘are debatable among jurists of reason; that a court could resolve [them in a different manner]; or that [they] are adequate to deserve encouragement to proceed further.’’ (Emphasis in original; internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). Because the Appellate Court dismissed the petitioner’s uncertified appeal without first considering whether his unpreserved claims are nonfrivolous under the Simms criteria, we reverse the judgment of the Appellate Court and remand for consideration of that issue consistent with the principles set forth in Banks. The judgment of the Appellate Court is reversed and the case is remanded for further proceedings in accordance with this opinion. In this opinion McDONALD and D’AURIA, Js., concurred. 1 We granted the petitioner’s petition for certification to appeal, limited to the following two issues: (1) ‘‘Did the Appellate Court correctly interpret Ajadi v. Commissioner of Correction, 280 Conn. 514, 911 A.2d 712 (2006), Cookish v. Commissioner of Correction, 337 Conn. 348, 253 A.3d 467 (2020), and other decisions of this court in concluding that plain error review of challenges to the habeas court’s handling of the habeas proceedings is unavailable for any issue that is not included in the petition for certification to appeal?’’ And (2) ‘‘[d]id the Appellate Court correctly interpret Mozell v. Commissioner of Correction, 291 Conn. 62, 967 A.2d 41 (2009), Moye v. Commissioner of Correction, 316 Conn. 779, 114 A.3d 925 (2015), and other decisions of this court in concluding that review under State v. Golding, [supra, 213 Conn. 233], of challenges to the habeas court’s handling of the habeas proceedings is unavailable for any issue that is not included in the petition for certification to appeal?’’ Bosque v. Commissioner of Correction, 338 Conn. 908, 908–909, 258 A.3d 1281 (2021). 2 The Appellate Court’s opinion sets forth a complete recitation of the factual and procedural history of this case. See Bosque v. Commissioner of Correction, supra, 205 Conn. App. 482–83.

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