RICHARD LEWIS v. COMMISSIONER OF CORRECTION, SC 18664

Judicial District of Tolland at G.A. 19

 

†††† †Habeas; Plain Error; Whether Appellate Court Properly Declined to Review† Petitioner's Due Process and Equal Protection Challenges to the Dismissal of the Habeas Corpus Petition.† The petitioner, who was imprisoned as a result of a robbery conviction, brought this habeas action, claiming that he was denied the effective assistance of counsel when entering his guilty plea to the robbery charge.† On the first day of the habeas trial, the petitioner, who had completed the incarceration portion of his sentence, did not appear personally.† Counsel for the petitioner represented to the court that the petitioner was aware of the trial date and also indicated that he could not proceed with all parts of the petition at that time.† After counsel was unable to contact the petitioner, the respondent moved to dismiss the case with prejudice.† Counsel requested that the dismissal be without prejudice and that his client have the opportunity to move to open the judgment.† The court ordered that the dismissal be with prejudice but allowed the petitioner to move to open the judgment for good cause shown for his absence at trial.† The petitionerís subsequent motion to open, which claimed that he had been unable to obtain transportation to trial because he was indigent, was denied.† On appeal to the Appellate Court (121 Conn. App. 693), the petitioner claimed that the judgment of dismissal violated his constitutional rights to due process and equal protection.† He contended that the dismissal was improper because no rule of practice provides for a dismissal and there was no court order requiring him to appear at the habeas trial.† Admitting that he did not raise those claims before the habeas court, the petitioner sought plain error review pursuant to Practice Book ß 60-5.† The Appellate Court determined that even if the petitioner was correct in asserting the general rule that, in civil cases, litigants may appear through counsel, the dismissal under circumstances in which counsel did not request a continuance and indicated that he could not proceed on all parts of the petition did not constitute plain error.† Moreover, the court declined to exercise its supervisory authority to decide the issues in the petitionerís favor based on his argument that it is a regular practice of the habeas court to dismiss petitions when the petitioner fails to appear for trial.† The Supreme Court will now decide whether the Appellate Court properly declined to review the petitionerís federal due process and equal protection challenges to the dismissal of his habeas corpus petition and whether it properly declined to reverse the judgment of dismissal.