Bosque v. Commissioner of Correction

Syllabus

The petitioner appealed to this court following the habeas court's denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus as untimely pursuant to statute (§ 52-470). The petitioner's habeas counsel declined the opportunity to present evidence demonstrating good cause for the untimely filing of the petition at the show cause hearing before the habeas court. On appeal, the petitioner argued, inter alia, that the habeas court failed to intervene when his counsel did not present any evidence to support his claim that good cause existed to rebut the presumption of unreasonable delay in filing his petition. This 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 our Supreme Court, which held that this court improperly dismissed the petitioner's uncertified appeal without first considering whether his unpreserved claims challenging the habeas court's handling of the habeas proceeding itself were reviewable under the plain error doctrine or under Golding if the petitioner could demonstrate that the claims were not frivolous under the criteria of Simms v. Warden (230 Conn. 608), namely, whether they involved issues that are debatable among jurists of reason, that a court could resolve in a different manner or that are adequate to deserve encouragement to proceed further. The Supreme Court reversed this court's judgment and remanded the case to this court. . Held that this court concluded that the petitioner's unpre- served claims were frivolous under the Simms criteria and, accordingly, dismissed the appeal: the petitioner failed to raise a colorable claim of plain error or a violation of a constitutional right because the record was inad