Goguen v. Commissioner of Correction ( 2020 )

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ROBERT GOGUEN v. COMMISSIONER OF
CORRECTION
(AC 41339)
DiPentima, C. J., and Alvord and Moll, Js.
Syllabus
The petitioner, who had been convicted on a plea of guilty of the crime of
sexual assault in the second degree, sought a writ of habeas corpus,
claiming that he did not voluntarily enter his guilty plea and that he
received ineffective assistance of counsel in connection with his guilty
plea. Pursuant to the applicable rule of practice (§ 23-24 [a]), the habeas
court declined to issue the writ because, at the time of filing, the peti-
tioner was not in the custody of the respondent, the Commissioner of
Correction. Thereafter, the court denied the petition for certification to
appeal, and the petitioner appealed to this court. Held that because the
petitioner failed to address the threshold question of whether the habeas
court abused its discretion in denying his petition for certification to
appeal, he was not entitled to appellate review and this court declined
to review his claims on appeal.
Argued December 10, 2019—officially released January 28, 2020
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Oliver, J., rendered judgment declining to
issue a writ of habeas corpus; thereafter, the court
granted the petitioner’s motion for reconsideration but
denied the relief requested; subsequently, the court
denied the petition for certification to appeal, and the
petitioner appealed to this court. Appeal dismissed.
Robert Goguen, self-represented, the appellant (peti-
tioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, was Davis S. Shepak, state’s
attorney, for the appellee (respondent).
Opinion
PER CURIAM. The self-represented petitioner,
Robert Goguen, appeals, following the denial of his
petition for certification to appeal, from the judgment
of the habeas court declining to issue a writ of habeas
corpus. Although the petitioner raises a variety of sub-
stantive claims with respect to his underlying convic-
tion on appeal, he has failed to brief the threshold issue
of whether the habeas court abused its discretion in
denying his petition for certification to appeal. Accord-
ingly, we dismiss the petitioner’s appeal.
The following facts and procedural history are rele-
vant to our conclusion. On September 6, 1996, the peti-
tioner pleaded guilty to one count of sexual assault in
the second degree in violation of General Statutes (Rev.
to 1995) § 53a-71 (a) (3). In accordance with his guilty
plea, the petitioner was sentenced to ten years of incar-
ceration, execution suspended after four years, fol-
lowed by five years of probation. On April 11, 2017, the
self-represented petitioner filed a petition for a writ of
habeas corpus wherein he alleged that (1) he did not
voluntarily enter his guilty plea, and (2) he received
ineffective assistance of counsel in connection with his
guilty plea.
On April 18, 2017, pursuant to Practice Book § 23-24
(a) (1),1 the habeas court declined to issue the writ
because ‘‘[a]t the time of filing . . . the petitioner was
not in the custody of the [Commissioner of Correc-
tion].’’ On December 20, 2017, the petitioner filed a
motion for reconsideration. The court subsequently
granted his motion and, after reconsideration, followed
its original ruling declining to issue the writ. On January
11, 2018, the petitioner filed a petition for certification
to appeal. The court denied his petition, and this
appeal followed.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, he must then prove that the decision of the habeas
court should be reversed on its merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . If this
burden is not satisfied, then the claim that the judgment
of the habeas court should be reversed does not qualify
for consideration by this court.’’ (Citation omitted; inter-
nal quotation marks omitted.) Logan v. Commissioner
of Correction, 125 Conn. App. 744, 750–51, 9 A.3d 776
(2010), cert. denied, 300 Conn. 918, 14 A.3d 333 (2011).
Our review of the petitioner’s briefing to this court
indicates that he has failed to brief the threshold ques-
tion of whether the habeas court abused its discretion
in denying his petition for certification to appeal. Under
these circumstances, we have repeatedly determined
that a petitioner who has failed to brief this issue is
not entitled to appellate review. See, e.g., Cordero v.
Commissioner of Correction, 193 Conn. App. 902, 215
A.3d 1282, cert. denied, 333 Conn. 944, 219 A.3d 374
(2019); Thorpe v. Commissioner of Correction, 165
Conn. App. 731, 733, 140 A.3d 319, cert. denied, 323
Conn. 903, 150 A.3d 681 (2016); Mitchell v. Commis-
sioner of Correction, 68 Conn. App. 1, 8, 790 A.2d 463,
cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002);
Reddick v. Commissioner of Correction, 51 Conn. App.
474, 477, 722 A.2d 286 (1999). Because the petitioner
has failed to meet the first prong of Simms by demon-
strating that the denial of his petition for certification
to appeal constituted an abuse of discretion, we decline
to review his claims on appeal.
The appeal is dismissed.
1
Practice Book § 23-24 provides in relevant part: ‘‘(a) The judicial authority
shall promptly review any petition for a writ of habeas corpus to determine
whether the writ should issue. The judicial authority shall issue the writ
unless it appears that: (1) the court lacks jurisdiction . . . .’’