Connecticut Supreme Court Says Plain Error Standard Applies to Unpreserved Claims on Habeas Appeal

In the realm of habeas appeals, a critical issue arises when a petitioner files a petition for a writ of habeas corpus challenging a conviction after an extended period. This post examines a recent case involving a self-represented petitioner who sought habeas relief more than five years after his conviction and the subsequent denial of his appeal.


Harold Banks was convicted of robbery in the first degree on May 30, 2012, and subsequently sentenced to twelve years of incarceration. Surprisingly, the petitioner did not file an appeal to contest his conviction. However, more than five years later, on December 13, 2017, he filed a petition for a writ of habeas corpus in state court, challenging the validity of his conviction.

The petitioner’s delay in filing the habeas corpus petition became a crucial point of contention. The respondent, represented by the Connecticut Commissioner of Correction, filed a motion to dismiss the petition as untimely under § 52-470(c). This statute introduced a rebuttable presumption that a delayed filing of a habeas petition challenging a conviction lacks good cause if submitted after five years from the conviction’s final judgment or after October 1, 2017.

The Habeas Court’s Decision

In response to the motion, the habeas court conducted an evidentiary hearing, where the petitioner, now represented by Attorney Jonathan M. Shaw, argued that good cause existed for the belated filing due to his long-standing history of mental health issues. However, no concrete evidence was presented to substantiate this claim. Despite the lack of evidence, the habeas court permitted Attorney Shaw to make his argument.

In the end, the habeas court dismissed the petitioner’s petition for a writ of habeas corpus, asserting that the petitioner had until October 1, 2017, to file the petition, and he had failed to provide evidence justifying the delay. The statutory presumption of no good cause was applied against the petitioner due to the lack of supporting evidence.

The Appeal to the Appellate Court

Disappointed by the denial of his petition for certification to appeal, the petitioner appealed to the Appellate Court. In his appeal, he raised two primary claims: first, he alleged that Attorney Shaw rendered ineffective assistance of counsel, thereby violating his statutory right to counsel and his constitutional right to due process of law. Second, he argued that the habeas court failed to fulfill its duty to intervene and protect his constitutional and statutory rights.

However, it was noted that these claims were not preserved in the habeas court or included in the petition for certification to appeal. Despite this fact, the petitioner argued that the Appellate Court could review these claims under the plain error doctrine and Golding.

Appellate Court’s Dismissal

The Appellate Court dismissed the petitioner’s appeal, contending that the habeas court did not abuse its discretion in denying the petition for certification. The court further asserted that § 52-470(g) barred the review of unpreserved claims under the plain error doctrine and Golding to prevent circumvention of the limited review established by the legislature.

Certification to Appeal Reviewability

The primary issue before the Supreme Court was whether unpreserved claims could be reviewed under the plain error doctrine or Golding following the denial of certification to appeal.

Court’s Ruling

In its ruling, the Supreme Court held that § 52-470(g) does not preclude the review of unpreserved claims under the plain error doctrine or Golding after a denial of certification. The court emphasized that if the unpreserved claims challenge the habeas court’s handling of the proceeding and meet the criteria for nonfrivolous claims, they can be considered for appellate review.

The court stressed the importance of preserving justice while also balancing the need to prevent frivolous appeals. It acknowledged that the short span of time between the conclusion of the habeas court proceeding and the initiation of the appeal, coupled with possible changes in legal representation, could lead to colorable claims being overlooked. Furthermore, appellate oversight by a different judge serves as a significant protection of the rights that habeas corpus proceedings aim to safeguard.

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