Date: 06-07-2016

Case Style: JEROMIE THORPE v. COMMISSIONER OF CORRECTION

Case Number: AC 35518

Judge: PER CURIAM

Court: Connecticut Appellate Court

Plaintiff's Attorney: Marjorie Allen Dauster, senior assistant state’s attorney, with whom, Gail P. Hardy, state’s attorney, and Jo Anne Sulik, supervisory assistant state’s attorney

Defendant's Attorney: Deren Manasevit, Paul R. Kraus, Michael Zariphes

Description: In this appeal from the habeas court’s denial of his petition for writ of habeas corpus, the petitioner,JeromieThorpe,claimsthatthehabeascourt erredinfindingthathewasprocedurallydefaultedfrom raisinghisclaimthathis priorhabeascounselrendered ineffective assistance in failing to timely file a fourth amended petition where the respondent, the Commissioner of Correction, failed to allege procedural default asaspecialdefense.Followingthedenialofhispetition forwritofhabeascorpus,thepetitionerrequestedcertification to appeal, which the court denied. ‘‘Faced with a habeas court’s denial of a petition for certificationtoappeal[under§ 52-470(g)],1 apetitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the twopronged 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 discretion, he must then prove thatthedecisionofthehabeascourtshouldbereversed 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 different manner];or thatthe questionsare adequateto deserve encouragement to proceed further.’’ (Citation omitted; emphasis in original; internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 68 Conn. App. 1, 4, 790 A.2d 463, cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002). Here, the petitioner did not allege that the habeas court’s denial of his petition for certification to appeal constitutedanabuseofdiscretionuntilhefiledhisreply brief. We do not consider claims raised for the first time in a reply brief. See Rathbun v. Health Net of the Northeast, Inc., 315 Conn. 674, 703–704, 110 A.3d 304 (2015). ‘‘The petitioner [thus] cannot obtain appellate review under § 52-470 [g] because certification to appeal has been denied and he has failed to meet the first prong of Simms by demonstrating that the habeas court abused its discretion in denying certification to appeal to challenge the issues raised in the habeas corpus petition.’’

Outcome: The appeal is dismissed.

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