Goguen v. Comm'r of Corr.

• Decision Date: 23 December 2021
• Docket Number: SC 20482
• Citation: 267 A.3d 831,341 Conn. 508
• Parties: Robert GOGUEN v. COMMISSIONER OF CORRECTION
• Court: Connecticut Supreme Court

341 Conn. 508

267 A.3d 831

Robert GOGUEN

v.COMMISSIONER OF CORRECTION

SC 20482

Supreme Court of Connecticut.

Argued March 24, 2021

Officially released December 23, 2021^**

Robert Goguen, self-represented, the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, was David S. Shepak, former state's attorney, for the appellee (respondent).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.^*

MULLINS, J.

The issue before us in this certified appeal is whether the Appellate Court properly dismissed the appeal of the petitioner, Robert Goguen, from the judgment of the habeas court on the ground that he failed in his brief to the Appellate Court to brief the claim that the habeas court had abused its discretion in denying his petition for certification to appeal pursuant to General Statutes § 52-470 (g).¹ The petitioner, proceeding as a self-represented party, filed a petition for a writ of habeas corpus challenging his 1996 conviction, pursuant to a guilty plea, of sexual assault in the second degree. The habeas court declined to issue the writ for lack of jurisdiction on the ground that the petitioner was not in the custody of the respondent, the Commissioner of Correction. The petitioner then filed a petition for certification to appeal to the Appellate Court pursuant to § 52-470 (g), which the habeas court denied.

Notwithstanding that ruling, the petitioner appealed to the Appellate Court, challenging the merits of the habeas court's ruling declining to issue the writ of habeas corpus. Goguen v. Commissioner of Correction , 195 Conn. App. 502, 503, 225 A.3d 977 (2020). The Appellate Court dismissed the appeal on the ground that the petitioner failed to brief any claim that the habeas court had abused its discretion in denying his petition for certification to appeal. See id., at 505, 225 A.3d 977. This court then granted the petitioner's petition for certification to appeal from the judgment of the Appellate Court on the following issue: "Did the Appellate Court properly dismiss the self-represented petitioner's appeal because he failed to brief whether the habeas court had abused its discretion in denying his petition for certification to appeal?" Goguen v. Commissioner of Correction , 335 Conn. 925, 234 A.3d 980 (2020).

Our task in this appeal is to harmonize the legislative mandate of § 52-470 (g) that no appeal may be taken from a habeas court's judgment unless certification is granted with this court's interpretation of that statute in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994) ( Simms II ), which provides guidance on the procedure to be followed when a habeas court denies certification to appeal. In light of the statutory requirement, we explained in Simms II that, if a habeas court denies certification to appeal, a petitioner may obtain review only if he makes a "two part showing" on appeal: first, as a threshold matter, he must "demonstrate that the habeas court's ruling constituted an abuse of discretion," and, second, "[i]f the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits." Id. What Simms II leaves unclear is what exactly is required of an appellant to satisfy the threshold showing of an abuse of discretion before plenary review of the merits by a reviewing court is warranted.

As we discuss more fully in this opinion, the Appellate Court has concluded in several cases that the petitioner can satisfy the threshold requirement by expressly alleging in his brief that the arguments on the merits of the appeal demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal. Conversely, the Appellate Court has held that, when a petitioner fails to expressly allege or brief that the denial of certification was an abuse of discretion and simply briefs the merits of his underlying claim without any reference to the requirement of Simms II , the petitioner's appeal must be dismissed. See part I of this opinion.

We conclude that, in order to make sense of the statutory requirement and Simms II , a petitioner must at least expressly allege and explain in his brief how the habeas court abused its discretion in denying certification. We recognize, just as the Appellate Court has, that this may be done by expressly referring the reviewing court to the portion of the brief addressing the merits of the appeal and pointing out that, if the appeal is successful on the merits, then an abuse of discretion necessarily has been demonstrated. The petitioner must at least do that, however, in order to comply with the statute and Simms II .

The petitioner may not simply disregard the requirement of Simms II and brief only the merits of the underlying claim without any effort to comply with the "two part showing" required by Simms II , which includes the discrete question of whether the habeas court abused its discretion in denying certification. Simms v. Warden , supra, 230 Conn. at 612, 646 A.2d 126. In this appeal, the petitioner never expressly alleged that the habeas court abused its discretion in denying certification to appeal. He argued only that the habeas court erred in declining to issue the writ. Accordingly, the Appellate Court's dismissal of his appeal appropriately adheres to the dictates of § 52-470 (g) and Simms II and its progeny, and must be affirmed.

The record reveals the following undisputed facts and procedural history. In 1996, the petitioner was convicted, after entering a guilty plea, of sexual assault in the second degree in violation of General Statutes (Rev. to 1995) § 53a-71 (a) (3). The petitioner was sentenced on October 25, 1996, to ten years in prison, execution suspended after four years, and five years of probation. Thereafter, in 1998, the legislature passed legislation, now codified at General Statutes § 54-250 et seq., requiring persons who have been convicted of certain sexual offenses, including the petitioner's offense, to register as sex offenders. See Public Acts 1998, No. 98-111. The legislation applied to the petitioner because he was released from prison after its effective date.

On April 11, 2017, the petitioner, proceeding as a self-represented party, filed a petition for a writ of habeas corpus, claiming, among other things, that he should be allowed to withdraw his 1996 guilty plea because, due to ineffective assistance of his counsel, his plea had not been made voluntarily. Specifically, he alleged that, while he was residing in Maine in 2012, he was convicted under federal law of failing to register as a sex offender—a requirement imposed as the result of his 1996 Connecticut conviction.² He further alleged that, as of the date he filed his habeas petition, he was incarcerated as a result of violating the conditions of supervised release that were imposed on him under federal law as a result of the federal 2012 conviction.

Pursuant to Practice Book § 23-24 (a),³ the habeas court declined to issue a writ for lack of jurisdiction because, at the time that the petitioner filed the petition, he was no longer in the custody of the respondent as a result of the 1996 conviction.⁴

Although the habeas court did not elaborate on its basis for this determination,⁵ it is undisputed that neither the petitioner's term of incarceration nor his term of probation for the 1996 conviction was in effect on the date that he filed his petition for a writ of habeas corpus. The petitioner filed a petition for certification to appeal from the habeas court's judgment pursuant to § 52-470 (g), which the habeas court denied.

Despite the denial of his petition for certification, the petitioner appealed to the Appellate Court from the habeas court's judgment declining to issue a writ of habeas corpus.⁶ In his brief to that court, the petitioner did not allege that the habeas court had abused its discretion in denying his petition for certification to appeal. He also did not ask the Appellate Court to construe his argument on the merits as a demonstration of the habeas court's abuse of discretion.

Instead, the petitioner claimed only that the habeas court had incorrectly determined that he was not in the custody of the respondent and that he should be allowed to withdraw his 1996 guilty plea because it was unintelligently and involuntarily made.⁷ The respondent contended in his brief that the habeas court had not abused its discretion in denying the petitioner's petition for certification to appeal and that it had properly declined to issue the writ.

The Appellate Court noted in a per curiam opinion that, under Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994) ( Simms I ), the petitioner was required, as a threshold matter on appeal, to "demonstrate that the denial of his petition for certification constituted an abuse of discretion." (Internal quotation marks omitted.) Goguen v. Commissioner of Correction , supra, 195 Conn. App. at 504, 225 A.3d 977. The Appellate Court further noted that, to establish such an abuse of discretion, the petitioner was required to demonstrate that the habeas court's resolution of the underlying claim involved issues that "are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (Internal quotation marks omitted.) Id. ; see, e.g., Simms v. Warden , supra, 230 Conn. at 616, 646 A.2d 126 (same). Finally, the Appellate Court noted that it had held previously that, "[i]f this burden is not satisfied, then the claim that the judgment of the habeas court should be reversed does not qualify for consideration by [the Appellate] [C]ourt." (Internal quotation marks omitted.) Goguen v. Commissioner of Correction , supra, at 504, 225 A.3d 977. Because the petitioner had failed to brief this threshold issue, the Appellate...