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Alston v. Commissioner of Correction
IRA ALSTON v. COMMISSIONER OF CORRECTION
(AC 47604)
Clark, Seeley and Eveleigh, Js.
Syllabus
The petitioner, who had previously pleaded guilty to possession of a weapon
or dangerous instrument in a correctional institution, appealed, following
the denial of his petition for certification to appeal from the judgment of
the habeas court dismissing his second amended petition for a writ of habeas
corpus. The petitioner claimed, inter alia, that the court improperly dismissed
his habeas petition, which claimed that a prior habeas court had improperly
denied his application for the appointment of counsel on appeal. Held:
The habeas court did not abuse its discretion in denying the petition for
certification to appeal, as the resolution of the petitioner’s claim did not
involve issues that are debatable among jurists of reason, that a court could
resolve in a different manner, or that were adequate to deserve encourage-
ment to proceed further.
The habeas court properly dismissed the habeas petition pursuant to the
rule of practice (§ 23-29 (2)) for failure to state a claim on which habeas
corpus relief could be granted, as the petitioner’s claim asking the second
habeas court to review and address the validity and legal soundness of a
prior habeas court’s decision to deny the petitioner’s request to appoint
counsel on appeal was beyond the power and authority of the second habeas
court, and the proper procedural vehicle to have challenged the first habeas
court’s determination should have been by a motion for review pursuant to
the rule of practice (§ 63-7).
Argued September 15—officially released December 9, 2025
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Newson, J., dismissed the
petition and rendered judgment thereon; thereafter, the
court, Newson, J., denied the petition for certification
to appeal, and the petitioner appealed to this court.
Appeal dismissed.
Whitney C. Kubik, assigned counsel, for the appellant
(petitioner).

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Alston v. Commissioner of Correction
Emily Trudeau, senior assistant state’s attorney,
with whom, on the brief, were Matthew Gedansky,
state’s attorney, and Donna Fusco, assistant state’s
attorney, for the appellee (respondent).
Opinion
SEELEY, J. Following the denial of his petition for
certification 	to 	appeal, 	the 	petitioner, 	Ira 	Alston,
appeals from the judgment of the habeas court dismiss-
ing, pursuant to Practice Book § 23-29, 1 his second
amended petition for a writ of habeas corpus (operative
habeas petition), in which he alleged, in count five, that
the habeas court in a prior habeas matter improperly
denied his application for the appointment of appellate
counsel. On appeal, the petitioner claims that the sec-
ond habeas court (1) abused its discretion in denying his
petition for certification to appeal and (2) improperly
dismissed count five of the operative habeas petition
pursuant to § 23-29 (2) for failure to state a claim on
which habeas relief could be granted. We conclude that
the court did not abuse its discretion in denying the
petition for certification to appeal and, accordingly,
dismiss the appeal.
The record reveals the following relevant facts and
procedural history. The petitioner had been charged,
pursuant to a substitute information dated November
20, 2008, with possessing a weapon or dangerous instru-
ment in a correctional institution. See State v. Alston,
1 Practice Book § 23-29 provides: ‘‘The judicial authority may, at any time,
upon its own motion or upon motion of the respondent, dismiss the petition,
or any count thereof, if it determines that:
‘‘(1) the court lacks jurisdiction;
‘‘(2) the petition, or a count thereof, fails to state a claim upon which
habeas corpus relief can be granted;
‘‘(3) the petition presents the same ground as a prior petition previously
denied and fails to state new facts or to proffer new evidence not reasonably
available at the time of the prior petition;
‘‘(4) the claims asserted in the petition are moot or premature;
‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’

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141 Conn. App. 719, 721, 62 A.3d 586, cert. denied, 308
Conn. 943, 66 A.3d 884 (2013). On October 1, 2010, the
petitioner entered a guilty plea to the charge; id., 723–24;
and, following a canvass, the court found that the plea
was entered ‘‘knowingly, voluntarily and intelligently,
with the effective assistance of counsel. The court
found that there was a factual basis for the plea. The
court accepted the plea and found the defendant guilty
of possessing a weapon or a dangerous instrument in a
correctional institution.’’ Id., 727. ‘‘Thereafter, the court
imposed the agreed upon sentence of one year [of]
incarceration, consecutive to the [petitioner’s] existing
term of incarceration.’’ Id., 721. The petitioner appealed
to this court, which affirmed the judgment; id., 733; and
filed a petition for certification to appeal with our Supreme
Court, which denied certification. State v. Alston, 308
Conn. 943, 66 A.3d 884 (2013).
On June 26, 2012, while the petitioner’s direct appeal
was pending, the petitioner, in a self-represented capac-
ity, filed his first petition for a writ of habeas corpus
(first habeas action), alleging that his criminal trial
counsel, Attorney Douglas Ovian, had rendered ineffec-
tive assistance. Thereafter, the Office of the Chief Public
Defender assigned Attorney John J. Duguay to repre-
sent the petitioner in the first habeas action. On July
28, 2014, Duguay filed a motion for leave to withdraw his
appearance as appointed counsel pursuant to Anders
v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967).2 After the first habeas court granted Duguay’s
2 ‘‘ ‘In Anders [v. California, supra, 386 U.S. 744], the United States
Supreme Court outlined a procedure that is constitutionally required when,
on direct appeal, appointed counsel concludes that an indigent defendant’s
case is wholly frivolous and wishes to withdraw from representation. . . .
Under Anders, before appointed counsel may withdraw, he or she must
provide the court and the defendant with a brief outlining anything in the
record that may support the appeal, and the defendant must be given time
to raise any additional relevant points. . . . Thereafter, the court, having
conducted its own independent review of the entire record of the case, may
allow counsel to withdraw, if it agrees with counsel’s conclusion that the
appeal is entirely without merit.’ . . . State v. Francis, 322 Conn. 247, 250

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Alston v. Commissioner of Correction
motion to withdraw, the petitioner continued, in a self-
represented capacity, to litigate the first habeas action,
which was tried to the first habeas court over the course
of two days. On August 14, 2017, the first habeas court
rendered judgment denying the petitioner’s habeas peti-
tion. On August 25, 2017, the petitioner filed an applica-
tion for a waiver of fees, costs and expenses and for
the appointment of counsel on appeal. On August 31,
2017, the first habeas court granted the application for
a waiver of fees, costs and expenses but denied 3 the
petitioner’s request for the appointment of counsel on
appeal and, thereafter, denied a petition for certification
to appeal filed by the petitioner. There is no record of
n.3, 140 A.3d 927 (2016). As our Supreme Court has recognized, ‘[t]here can
be no question that equal justice requires that the right of appellate review
cannot depend on the amount of money which the defendant has. . . . On
the other hand, so long as an indigent defendant can prosecute an appeal
at public expense and without any possible detriment to himself there is
nothing to protect the public purse or save the appellate courts from a
flood of baseless appeals by indigent defendants except a proper judicial
determination as to whether a proposed appeal at public expense may have
some merit or is in fact frivolous.’ . . . State v. Pascucci, 161 Conn. 382,
387, 288 A.2d 408 (1971).’’ State v. Mendez, 185 Conn. App. 476, 478 n.1, 197
A.3d 477 (2018). This applies in habeas proceedings as well. See Oliphant
v. Commissioner of Correction, 146 Conn. App. 499, 522, 79 A.3d 77, cert.
denied, 310 Conn. 963, 83 A.3d 346 (2013).
3 There is a discrepancy in the record in the first habeas action as to
whether the petitioner’s request for the appointment of counsel on appeal
was granted or denied. The electronic file indicates the following for docket
entry #143: ‘‘Application for appointment of counsel and waiver of fees on
appeal. Result: Granted 8/31/2017 Hon. Vernon Oliver.’’ The paper copy of
the order concerning the petitioner’s application for a waiver of fees, costs
and expenses and for the appointment of counsel on appeal indicates that
the fee waiver was granted; however, it also shows a check mark over the
box indicating that counsel ‘‘is not appointed,’’ and the paper copy is signed
by Judge Oliver and dated August 31, 2017. For purposes of this appeal, we
will assume, without deciding, that the petitioner’s request for the appoint-
ment of counsel was denied, as count five of the operative habeas petition
and all of the petitioner’s claims on appeal are premised on the assertion
that the request for counsel was denied, the petitioner acted in a self-
represented capacity in the habeas proceeding for which we afford some
leeway, the second habeas court addressed both scenarios in dismissing
count five, and doing so will not impact our ultimate resolution of this appeal.

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an appeal being filed from the judgment in the first
habeas action.
The petitioner subsequently commenced a second
habeas action, which is the subject of this appeal. Ini-
tially, the petitioner was represented by appointed
counsel, Attorney Robert J. McKay, but the court
granted McKay’s motion, filed pursuant to Anders, to
withdraw as counsel, and the petitioner proceeded with
the matter in a self-represented capacity. In the opera-
tive habeas petition, filed March 20, 2023, the petitioner
alleged claims in nine counts. Only count five is at issue
in this appeal.4 In count five, the petitioner alleged that
the habeas court in the first habeas action improperly
denied the petitioner’s application for the appointment
of counsel on appeal ‘‘without a prior determination
that the petitioner’s appeal would be wholly frivolous
. . . .’’ He further alleged in count five that, as a result
of the denial of his application for counsel on appeal,
he could not take an appeal from the decision of the
habeas court in the first habeas action, and that, if he
had been given a meaningful opportunity to appeal, he
would have raised at least one nonfrivolous claim. The
petitioner asserts in count five that he was denied his
rights under the federal and state constitutions as a
result of the habeas court’s denial of his application
4 Because the petitioner, on appeal, challenges the habeas court’s dismissal
of the operative habeas petition only with respect to count five, we deem
abandoned any claim relating to the habeas court’s dismissal of the remaining
counts of the operative habeas petition. See Reynolds v. Commissioner of
Correction, 229 Conn. App. 228, 230–31, 325 A.3d 1214 (2024) (‘‘because
the petitioner has not raised or adequately briefed any claim that directly
challenges the judgment of conviction from which he took this appeal,
we deem any possible claims abandoned’’); Smith v. Commissioner of
Correction, 225 Conn. App. 822, 837 n.8, 317 A.3d 237 (given that petitioner
made ‘‘no claim on appeal that the court’s findings were clearly erroneous
because it did not sufficiently consider [certain] testimony . . . we deem
any such claim abandoned’’), cert. denied, 350 Conn. 902, 322 A.3d 1058
(2024).

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Alston v. Commissioner of Correction
for the appointment of counsel on appeal in the first
habeas action.
After the petitioner filed the operative habeas peti-
tion, the respondent, the Commissioner of Correction,
filed a return, leaving the petitioner to his proof and
pleading a number of affirmative defenses. Specifically,
with respect to count five, the respondent asserted that
the claim was in procedural default and that it failed
to state a claim on which habeas relief could be granted
because the petitioner was seeking to have the second
habeas court review the ruling of the first habeas court
concerning the petitioner’s application for the appoint-
ment of counsel on appeal.
On April 18, 2023, the habeas court issued a notice of
possible dismissal of the petitioner’s operative habeas
petition pursuant to Practice Book § 23-29. The notice
provided in relevant part: ‘‘Upon review of the com-
plaint in the above-titled matter, the court hereby gives
notice pursuant to . . . § 23-29 that the court will con-
sider whether the [operative habeas] petition, or certain
counts thereof, should be dismissed for the following
reasons: (1) the court lacks jurisdiction; (2) the petition,
or a count thereof, fails to state a claim upon which
habeas corpus relief can be granted; [3] the claims
asserted in the petition are moot or premature; [and]
[4] any other legally sufficient ground for dismissal of
the petition exists.’’ The notice further provided that
the matter was set for a hearing on May 26, 2023, and
the court also afforded the parties an opportunity to
submit a written response to the proposed dismissal.
In his brief in support of dismissal, the respondent
did not argue procedural default but, rather, contended
that count five should be dismissed because, inter alia,
it failed to state a claim on which habeas relief could
be granted. The respondent asserted that ‘‘[t]he role
of the habeas court is to review the lawfulness of a
petitioner’s custody; it is not authorized to review the

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Alston v. Commissioner of Correction
judgment of a court of equal and coordinate justice.
The appropriate venue for such a claim was the appel-
late court. The petitioner elected to not proceed for-
ward with his appeal of the habeas court’s decision in
his prior habeas. The court cannot grant the petitioner’s
sought relief, nor does it have the jurisdiction to even
hear this claim.’’
In his memorandum of law opposing dismissal,5 the
self-represented 	petitioner 	expressly 	stated, 	with
respect to count five, that it was ‘‘more appropriate for
appellate review and that the habeas court ha[d] no
authority to review a prior habeas judge’s ruling and/
or order.’’ The petitioner made no other argument or
statement concerning count five in particular. At the
May 26, 2023 hearing, the parties rested on their briefs. 6
5 In his memorandum opposing dismissal, the petitioner also made a num-
ber of factual allegations that were not made in his operative habeas petition.
Specifically, he asserted that, after the conclusion of the first habeas trial,
he had been ‘‘involuntarily transferred out of state to the state of Virginia’’
and that, as a result, he did not receive the court’s orders concerning his
application for a waiver of fees and costs and for the appointment of counsel
on appeal. He further contended that, during transport to Virginia, he had
asked someone to check the status of his application and was told that the
court denied his petition for certification to appeal but granted his request
for a waiver of fees and costs and the appointment of counsel on appeal.
The petitioner asserted that the ‘‘same information was told to [him] by the
habeas clerks when the petitioner would call the court clerk’s office to
ascertain the status of his petition and application.’’ According to the peti-
tioner, it was not until four years later, in December, 2021, that ‘‘he found
out that [his] application for appointment of counsel on appeal in the first
habeas action was, in fact, denied. Due to the habeas court’s denial of [his]
application to appoint counsel on appeal and [the] court clerk’s office’s
active misrepresentation of that denial, no appeal was filed in the first
habeas action.’’
The record contains no findings by the habeas court regarding these
factual assertions, and, specifically, there is no evidence in the record or
finding by the habeas court demonstrating that the petitioner did not receive
notice of the first habeas court’s decision concerning his application for the
appointment of counsel on appeal, which the petitioner’s appellate counsel
acknowledged during oral argument before this court.
6 We note that, in an order dated July 12, 2023, the court provided the
parties with an opportunity to submit additional legal memoranda on certain

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Alston v. Commissioner of Correction
In a memorandum of decision dated September 18,
2023, the second habeas court dismissed all counts of
the operative habeas petition. With respect to count
five, the court stated: ‘‘In count five, the petitioner asks
this court . . . to examine a decision of the prior
habeas court. Specifically, the petitioner alleges that
the prior habeas court erred when it denied his request
for [the] appointment of counsel to appeal the habeas
decision following the trial. . . . [T]he petitioner has
failed to state a claim upon which habeas relief can be
granted. First, despite the petitioner’s claim, the elec-
tronic file record indicates that his application for [the]
appointment of counsel and waiver of costs and fees
on appeal was granted by Judge Oliver on August 31,
2017. Second, even if this case record is inaccurate, the
decision to appoint counsel is a matter of discretion,
so, resolving the petitioner’s claim would require this
habeas court to engage in an ‘abuse of discretion’ review
of the prior habeas court’s decision not to appoint coun-
sel. As already discussed, 7 this is beyond the power of
issues it had raised with respect to counts one and two of the operative
habeas petition, which are not at issue in this appeal.
7 In the portion of its decision addressing count four of the habeas petition,
the court had stated: ‘‘[A]lthough the petitioner attempts to frame his claim
as one of ineffectiveness [of prior habeas counsel], analyzing his claim would
actually require this court to reexamine the factual and legal findings made
by the previous habeas court based on that court’s review of the pleadings
and evidence Attorney Duguay filed in support of the Anders [brief], includ-
ing requiring this court to analyze whether that habeas court gave proper
[consideration] to the certain claims the petitioner alleges Attorney Duguay
either failed to raise or inadequately raised in the Anders [brief]. The habeas
court does not sit as an appellate court, nor does it have the power to
directly review the factual and legal conclusions of another Superior Court
judge. ‘[I]n a habeas corpus proceeding the [habeas trial court] examines
only the power and authority of the lower court to act and not the correctness
of its conclusions. The order restraining one of his liberty cannot be collater-
ally attacked in habeas corpus proceedings for errors and irregularities not
affecting the jurisdiction.’ United States ex rel. Paleais v. Moore, 294 F. 852,
855 (2d Cir. 1923) [cert. denied, 264 U.S. 581, 44 S. Ct. 331, 68 L. Ed. 860
(1924)]. Therefore, for instance, while it might be a viable claim if the
petitioner were alleging denial of the outright opportunity to respond to the
Anders [brief] before [the first habeas court] issued [its] ruling, the habeas

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Alston v. Commissioner of Correction
the habeas court.8 . . . ‘Practice Book § 63-7 provides
in relevant part that ‘‘the sole remedy of any defendant
desiring the court to review an order concerning . . .
the appointment of counsel shall be by motion for
review under [Practice Book] § 66-6.’’ ’ . . . State v.
Jimenez, 127 Conn. App. 706, 710, 14 A.3d 1083 (2011).
Practice Book § 66-6 requires motions challenging
orders related to requests for the appointment of coun-
sel and waiver of costs and fees on appeal to be filed
‘within ten days of issuance of notice of the order
. . . .’ The petitioner may [not] fail to adhere to require-
ments of the rule and then attempt to use habeas as a
‘catch-all’ to obtain relief.’’ (Citation omitted; emphasis
in original; footnotes added; footnotes omitted.)
After the second habeas court rendered judgment
dismissing all counts of the operative habeas petition,
it denied the petition for certification to appeal, and
this appeal followed.
I
On appeal, the petitioner first claims that the habeas
court abused its discretion by denying his petition for
certification to appeal. He argues that ‘‘[t]he issues
raised by this appeal are debatable among jurists of
reason and deserve . . . encouragement to proceed
further. Furthermore, the habeas court could have
resolved the petitioner’s claim differently. As set forth
court does not have the power or authority to consider whether [the first
habeas court] properly decided the evidence supporting Attorney Duguay’s
Anders [brief]. Therefore, count four is dismissed because it fails to state
a claim upon which habeas relief can be granted.’’ (Emphasis in original;
footnote omitted.)
8 In reaching this decision, the habeas court again cited to United States
v. Moore ex rel. Paleais, 294 F. 852, 855 (2d Cir. 1923) (‘‘[I]n a habeas corpus
proceeding the [habeas court] examines only the power and authority of
the lower court to act and not the correctness of its conclusions. The order
restraining one of his liberty cannot be collaterally attacked in habeas corpus
proceedings for errors and irregularities not affecting the jurisdiction.’’),
cert. denied, 264 U.S. 581, 44 S. Ct. 331, 68 L. Ed. 860 (1924).

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Alston v. Commissioner of Correction
in the remainder of this brief, the habeas court should
have resolved the claims in the petitioner’s favor.’’ We
do not agree.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the [disposition] 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 [or she] must demonstrate that the
denial of his [or her] petition for certification consti-
tuted an abuse of discretion. . . . Second, if the peti-
tioner can show an abuse of discretion, he [or she] 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. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Internal
quotation marks omitted.) Vazquez v. Commissioner
of Correction, 232 Conn. App. 244, 259–60, 335 A.3d
487, cert. denied, 352 Conn. 958, 336 A.3d 1249 (2025);

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Alston v. Commissioner of Correction
see also Stephenson v. Commissioner of Correction,
203 Conn. App. 314, 322–23, 248 A.3d 34, cert. denied,
336 Conn. 944, 249 A.3d 737 (2021).
For the reason set forth in part II of this opinion, we
conclude that the petitioner has failed to demonstrate
that the habeas court abused its discretion in denying
his petition for certification to appeal.
II
The petitioner’s substantive claim on appeal is that
the habeas court improperly dismissed count five of
the operative habeas petition on the ground that it failed
to state a claim on which habeas relief could be granted.
In support of this claim, he asserts9 that ‘‘the court
relied on clearly erroneous facts not supported by the
9 In his principal appellate brief, the petitioner also claims that he ‘‘should
have been provided the opportunity of an evidentiary hearing to resolve the
factual dispute [concerning whether his request for counsel was denied]
and prove the allegations in his petition.’’ We decline to review this claim.
There is nothing in the record establishing that the petitioner requested a
full evidentiary hearing before the habeas court. Indeed, the transcript from
the May 26, 2023 hearing shows that the petitioner expressly rested on his
brief and made no such request. See State v. Nguyen, 52 Conn. App. 85, 90,
726 A.2d 119 (1999) (because ‘‘the defendant failed to request an evidentiary
hearing at trial . . . [h]e [could not] demand a full evidentiary hearing for
the first time on appeal’’), aff’d, 253 Conn. 639, 756 A.2d 833 (2000). Moreover,
the petitioner makes only a passing reference in his appellate brief that he
should have been provided with an evidentiary hearing, without citation to
authority. See Balbuena v. Commissioner of Correction, 231 Conn. App.
289, 305, 332 A.3d 1008 (declining to review claim that was inadequately
briefed), cert. denied, 352 Conn. 905, 335 A.3d 845 (2025). We also note,
nonetheless, that the habeas court provided the petitioner with ‘‘notice of
its intention to dismiss the habeas petition and an opportunity to file a brief
or a written response to the proposed basis for dismissal,’’ and that ‘‘[o]ur
Supreme Court [has] concluded that a habeas court is not obligated to hold
a full hearing prior to dismissing, on its own motion, a habeas petition
pursuant to [Practice Book] § 23-29, but it may exercise its discretion to
hold a full hearing when it deems it appropriate.’’ (Internal quotation marks
omitted.) Hodge v. Commissioner of Correction, 216 Conn. App. 616, 620,
285 A.3d 1194 (2022); see also Boria v. Commissioner of Correction, 345
Conn. 39, 42–43, 282 A.3d 433 (2022); Brown v. Commissioner of Correction,
345 Conn. 1, 17, 282 A.3d 959 (2022).

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underlying record’’10 and that ‘‘the facts alleged establish
inadequate notice of the prior habeas court’s denial of
[the] appointment of counsel that resulted in a due
process violation preventing the petitioner from filing
an appeal . . . .’’ The petitioner contends that the fac-
tual allegations of his operative habeas petition,11 if
proven true, demonstrate ‘‘that he received inadequate
notice of the first habeas court’s decision to deny his
request for [the] appointment of appellate counsel,’’ and
‘‘clearly state a claim on which the habeas court could
offer relief, because the habeas court is in the best
position to restore the appellate rights lost due to the
inadequate notice and violation of procedural due pro-
cess.’’ He also asserts that, because he was a self-repre-
sented litigant in the second habeas trial,12 he should
be afforded leeway.
The respondent counters first by arguing that the
petitioner waived any claim on appeal concerning count
five of the operative habeas petition by expressly con-
ceding in his memorandum opposing dismissal that the
claim raised in count five was ‘‘more appropriate for
appellate review and that the habeas court ha[d] no
authority to review a prior habeas judge’s ruling and/
or order.’’ The respondent further contends that the
habeas court correctly determined that it had no author-
ity to review or overturn a ruling by another habeas
court. Finally, the respondent asserts that, because the
claim in count five concerns the court’s alleged denial
of an application seeking the appointment of counsel
on appeal, the habeas court properly determined that
the petitioner’s sole remedy was to file a motion for
review of the first habeas court’s order concerning the
10 Specifically, the petitioner asserts that the habeas court’s findings that
the first habeas court granted the petitioner’s request for the appointment
of counsel on appeal and that the decision to appoint counsel is a matter
of discretion are clearly erroneous.
11 See footnote 5 of this opinion.
12 We note that the petitioner is represented by counsel in this appeal.

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appointment of counsel, and, by not availing himself of
that option at the time of the alleged wrong, the peti-
tioner ‘‘lost his opportunity to challenge the first habeas
court’s alleged denial of counsel . . . .’’ See Practice
Book § 66-6. In his appellate reply brief, the petitioner
disputes the respondent’s assertion that he waived his
claim in count five, arguing that a waiver of the ‘‘right
to counsel is of the magnitude that requires the record
[to] be sufficient to establish that [his] waiver was vol-
untary and knowing,’’ and that the habeas court did not
canvass the self-represented petitioner as to whether
his waiver was knowing and voluntary. Thus, according
to the petitioner, the record is not sufficient to establish
that any alleged waiver was knowing and voluntary.
We first set forth relevant legal principles and our
standard of review. Practice Book § 23-29 provides in
relevant part: ‘‘The judicial authority may, at any time,
upon its own motion or upon motion of the respondent,
dismiss the petition, or any count thereof, if it deter-
mines that . . . (2) the petition, or a count thereof,
fails to state a claim upon which habeas corpus relief
can be granted . . . .’’ ‘‘To obtain relief through a
habeas petition, the petitioner must plead facts that, if
proven, establish that the petitioner is entitled to relief.’’
Kaddah v. Commissioner of Correction, 299 Conn. 129,
136–37, 7 A.3d 911 (2010). ‘‘When a petition fails to state
a valid habeas claim, it is proper for the habeas court
to dismiss the petition. See, e.g., Macri v. Hayes, [189
Conn. 566, 568, 456 A.2d 1186 (1983)] (upholding dis-
missal of petition that failed to set forth specific grounds
for issuance of writ); see also . . . Lewis v. Commis-
sioner of Correction, 116 Conn. App. 400, 409–12, 975
A.2d 740 (upholding dismissal of claim in petition that
did not state valid claim for habeas relief), cert. denied,
294 Conn. 908, 982 A.2d 1082 (2009); Grant v. Commis-
sioner of Correction, 121 Conn. App. 295, 299–302, 995
A.2d 641 (2010) (same), cert. denied, 297 Conn. 920,

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996 A.2d 1192 (2010).’’ (Citations omitted.) Kaddah v.
Commissioner of Correction, supra, 140.
‘‘[T]he principal purpose of the writ of habeas corpus
is to serve as a bulwark against convictions that violate
fundamental fairness.’’ (Internal quotation marks omit-
ted.) Kaddah v. Commissioner of Correction, 324 Conn.
548, 561, 153 A.3d 1233 (2017). ‘‘It is well settled that
a petition for a writ of habeas corpus is essentially a
pleading and, as such, it should conform generally to
a complaint in a civil action . . . . The purpose of the
[petition] is to put the [respondent] on notice of the
claims made, to limit the issues to be decided, and to
prevent surprise. . . . Thus, as it would do in evaluat-
ing the allegations in a civil complaint, in evaluating
the legal sufficiency of allegations in a habeas petition,
a court must view the allegations in the light most
favorable to the petitioner, which includes all facts nec-
essarily implied from the allegations.’’ (Citation omit-
ted; internal quotation marks omitted.) Finney v. Com-
missioner of Correction, 207 Conn. App. 133, 142, 261
A.3d 778, cert. denied, 339 Conn. 915, 262 A.3d 134
(2021). ‘‘Although [i]t is the established policy of the
Connecticut courts to be solicitous of [self-represented]
litigants and when it does not interfere with the rights
of other parties to construe the rules of practice liberally
in favor of the [self-represented] party . . . [t]he prin-
ciple that a plaintiff may rely only upon what he has
alleged is basic. . . . It is fundamental in our law that
the right of a plaintiff to recover is limited to the allega-
tions of his complaint. . . . While the habeas court
has considerable discretion to frame a remedy that is
commensurate with the scope of the established consti-
tutional violations . . . it does not have the discretion
to look beyond the pleadings . . . to decide claims not
raised.’’ (Internal quotation marks omitted.) Khan v.
Commissioner of Correction, 234 Conn. App. 851, 858–
59, 344 A.3d 1234 (2025).

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‘‘[W]hether a habeas court properly dismissed a peti-
tion pursuant to Practice Book § 23-29 (2), on the
ground that it fails to state a claim upon which habeas
corpus relief can be granted, presents a question of law
over which our review is plenary.’’ (Internal quotation
marks omitted.) Vazquez v. Commissioner of Correc-
tion, supra, 232 Conn. App. 261. Therefore, we ‘‘must
decide whether the court’s conclusions are legally and
logically correct and supported by the facts in the
record.’’ (Internal quotation marks omitted.) Khan v.
Commissioner of Correction, supra, 234 Conn. App.
859; see also Petaway v. Commissioner of Correction,
160 Conn. App. 727, 731, 125 A.3d 1053 (2015), cert.
dismissed, 324 Conn. 912, 153 A.3d 1288 (2017).
Next, we briefly address the right to counsel in habeas
corpus proceedings to provide context for the petition-
er’s claim in count five. ‘‘[A]lthough there is no constitu-
tional right to counsel in habeas proceedings, General
Statutes § 51-296 [a] . . . creates a statutory right to
counsel . . . for an indigent [petitioner] . . . in any
habeas corpus proceeding arising from a criminal mat-
ter 	. 	. 	. 	.’’ (Emphasis omitted; internal quotation
marks omitted.) Coleman v. Commissioner of Correc-
tion, 137 Conn. App. 51, 59, 46 A.3d 1050 (2012). ‘‘This
statutory right includes the right to effective and compe-
tent habeas counsel. Lozada v. Warden, 223 Conn. 834,
838–39, 613 A.2d 818 (1992). Connecticut takes that
statutory right so seriously that habeas petitioners in
this state are afforded the opportunity to challenge their
convictions through successive petitions based on inad-
equate performance by habeas counsel. See, e.g., Kad-
dah v. Commissioner of Correction, [supra, 324 Conn.
559] (a third habeas petition is available as a matter of
fundamental fairness to vindicate the statutory right
under § 51-296 (a) to competent counsel in litigating
a second habeas petition).’’ (Internal quotation marks
omitted.) Cooke v. Williams, 349 Conn. 451, 475–76,

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Alston v. Commissioner of Correction
316 A.3d 278 (2024). The statutory right to counsel for
indigent petitioners in habeas proceedings extends to
habeas appeals. See Sinchak v. Commissioner of Cor-
rection, 126 Conn. App. 684, 688, 14 A.3d 343 (2011).
With these principles in mind, we turn to the petition-
er’s claim in count five of the operative habeas petition.
Count five alleges that ‘‘the habeas trial court in the
first habeas [action] erred when it denied the petition-
er’s request for [the] appointment of counsel on appeal.
The denial of the petitioner’s request for [the] appoint-
ment of counsel on appeal without a prior determina-
tion that the petitioner’s appeal would be wholly frivo-
lous violated his rights under the laws of the state of
Connecticut.’’ (Emphasis added.) The relief requested
by the petitioner includes, inter alia, granting him ‘‘the
right to file a late habeas appeal with the appointment
of counsel’’ as well as ‘‘the right to file a new direct
appeal with the appointment of counsel . . . .’’
The respondent contends, inter alia, that the peti-
tioner waived the claim in count five by acknowledging
in his memorandum opposing dismissal that the claim
in count five was ‘‘more appropriate for appellate
review and that the habeas court ha[d] no authority to
review a prior habeas judge’s ruling and/or order.’’ We
conclude that we need not decide whether the peti-
tioner waived this claim because, even if we assume
that he did not, we nevertheless agree with the respon-
dent that the habeas court properly dismissed count
five for failure to state a claim on which habeas relief
could be granted.
Count five challenges the determination of the first
habeas court denying the petitioner’s request to appoint
counsel on appeal. In that regard, the petitioner is ask-
ing the second habeas court to review and address
the validity and legal soundness of the decision not to
appoint counsel made by the first habeas court, which

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is beyond the power and authority of the second habeas
court. ‘‘[A] party may not bring an action in the Superior
Court effectively asking that court to review a ruling of
another trial court in another case.’’ U.S. Bank National
Assn. v. Crawford, 333 Conn. 731, 741 n.7, 219 A.3d
744 (2019). ‘‘Because of the limitations to which it is
subjected, habeas corpus cannot be utilized as a substi-
tute for an appeal of the original action, or for a writ
of error, or for a petition for a new trial. . . . It may
not be employed to review irregularities or errors of
procedure or questions as to the sufficiency of evi-
dence.’’ Wojculewicz v. Cummings, 143 Conn. 624, 628,
124 A.2d 886 (1956); see Perell v. Warden, 113 Conn.
339, 342, 155 A. 221 (1931) (‘‘[t]he limitations upon the
power of the court or a judge, on habeas corpus to
review irregularities or errors of procedure or questions
as to the sufficiency of evidence in the original case
where a judgment is valid upon its face, are well settled
in this [s]tate’’); see also United States ex rel. Paleais
v. Moore, 294 F. 852, 855 (2d Cir. 1923) (‘‘[I]n a habeas
corpus proceeding the [habeas court] examines only
the power and authority of the lower court to act and not
the correctness of its conclusions. The order restraining
one of his liberty cannot be collaterally attacked in
habeas corpus proceedings for errors and irregularities
not affecting the jurisdiction.’’), cert. denied, 264 U.S.
581, 44 S. Ct. 331, 68 L. Ed. 860 (1924).
Although our case law allows a petitioner to bring
what is called a ‘‘ ‘habeas on a habeas,’ the term com-
monly used to refer to a petition for a writ of habeas
corpus that raises a claim of ineffective assistance of
prior habeas counsel’’; Roger B. v. Commissioner of
Correction, 234 Conn. App. 630, 645, 344 A.3d 578
(2025); we have explained that ‘‘[t]he second habeas
petition is inextricably interwoven with the merits of
the original judgment by challenging the very fabric of
the conviction that led to the confinement.’’ (Emphasis

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added; internal quotation marks omitted.) Daniel W. E.
v. Commissioner of Correction, 235 Conn. App. 124,
139, 344 A.3d 601 (2025). In other words, even in the
context of a habeas on a habeas, the purpose of the
second habeas action is, ultimately, to challenge the
foundation for the petitioner’s conviction, not the basis
of the first habeas court’s decision. A writ of habeas
corpus, which ‘‘has been described as a unique and
extraordinary legal remedy’’; (internal quotation marks
omitted) Coleman v. Commissioner of Correction,
supra, 137 Conn. App. 59; is designed to protect against
convictions that violate fundamental fairness. See
Khan v. Commissioner of Correction, supra, 234 Conn.
App. 858. We are aware of no case law permitting a
subsequent habeas petition to be used as a means to
challenge the substantive decision of a prior habeas
court, and the petitioner has not directed us to any such
authority.
Furthermore, Practice Book § 63-7 provides in rele-
vant part that ‘‘[t]he sole remedy of any defendant desir-
ing the court to review an order concerning . . . the
appointment of counsel shall be by motion for review
under [Practice Book §] 66-6.’’ This court has concluded
that § 63-7 likewise requires a habeas petitioner seeking
to challenge the denial of a request to appoint appellate
counsel to do so by way of a motion for review pursuant
to § 66-6. See Fernandez v. Commissioner of Correc-
tion, 125 Conn. App. 220, 222 n.3, 7 A.3d 432 (2010),
cert. denied, 300 Conn. 924, 15 A.3d 630 (2011). The
petitioner did not avail himself of that sole remedy by
filing a motion for review of the first habeas court’s
denial of his application for the appointment of appel-
late counsel. Instead, he seeks review of the ruling for
the first time in this habeas corpus proceeding, which
is not the proper procedural vehicle by which to seek
review of an order concerning the appointment of appel-
late counsel. This court consistently has dismissed

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direct appeals from orders concerning the appointment
of appellate counsel on the ground that the sole remedy
set forth in § 63-7 for review of such an order is to file
a motion for review. See State v. Small, 207 Conn. App.
349, 351 n.1, 262 A.3d 188 (2021) (dismissing portion
of appeal concerning trial court’s denial of application
for appointment of appellate counsel when defendant
did not file motion for review and sought review for
first time on appeal); State v. Jimenez, supra, 127 Conn.
App. 710 (2011) (same); see also Fernandez v. Commis-
sioner of Correction, supra, 125 Conn. App. 222–23
(determining, in appeal from decision of habeas court
denying request for appointment of appellate counsel,
that petitioner could not properly raise claim by way
of direct appeal or amended appeal); State v. Casiano,
122 Conn. App. 61, 71, 998 A.2d 792 (‘‘[b]ecause Practice
Book § 63-7 provides that the defendant’s sole remedy
for review of the court’s order concerning the appoint-
ment of counsel is by motion for review, the defendant
cannot properly raise [claim concerning denial of appli-
cation for appointment of appellate counsel] by way of
a direct appeal or amended appeal’’), cert. denied, 298
Conn. 931, 5 A.3d 491 (2010). 13 Thus, our case law is
clear that a petitioner cannot properly raise a claim
challenging an order concerning the appointment of
appellate counsel in a direct or amended appeal.14
13 In fact, in Casiano, ‘‘[t]he defendant has already sought and received
appellate review of his claim [that the trial court erred in declining to appoint
appellate counsel] through the proper procedures.’’ State v. Casiano, supra,
122 Conn. App. 70. Therefore, this court concluded on appeal that his ‘‘further
pursuit of review and remedy through appeal [was] inappropriate.’’ Id., 71.
14 The petitioner acknowledges that ‘‘Practice Book 63-7 provides [that]
the sole remedy for denial of appointed counsel is a motion for review,’’
but argues, nevertheless, that this court has reviewed the denial of counsel
in habeas litigation on appeal. This claim is unavailing. The case law on
which the petitioner relies in support of this claim is inapposite to the
present case, as it involves the right of an indigent petitioner to counsel in
a trial court proceeding, not on appeal, and this court previously clarified
in State v. Scott, 139 Conn. App. 333, 340 n.6, 55 A.3d 608 (2012), that § 63-
7 pertains to the appointment of appellate counsel, not counsel in a trial
court proceeding.

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We are cognizant of the petitioner’s claims that he
was prevented from filing a timely motion for review of
the order denying the appointment of appellate counsel
due to inadequate notice15 of the decision and that the
denial of his application for the appointment of appel-
The petitioner also contends that the habeas court should have analyzed
his failure to adhere to the requirements of Practice Book § 63-7 under the
cause and prejudice standard or given the petitioner the opportunity to
demonstrate cause and prejudice. Even if we assume that the cause and
prejudice standard is applicable under the circumstances of this case, we
decline to review this claim. Pursuant to the ‘‘procedural default doctrine
. . . a petitioner is barred from raising a claim for the first time in a habeas
proceeding unless there is cause and prejudice to excuse the procedural
default . . . .’’ Rose v. Commissioner of Correction, 348 Conn. 333, 347
n.8, 304 A.3d 431 (2023). ‘‘Under this standard, the petitioner must demon-
strate good cause for his failure to raise a claim at trial or on direct appeal
and actual prejudice resulting from the impropriety claimed in the habeas
petition.’’ (Internal quotation marks omitted.) Inglis v. Commissioner of
Correction, 213 Conn. App. 496, 535, 278 A.3d 518, cert. denied, 345 Conn.
917, 284 A.3d 300 (2022). It is fundamental that ‘‘ ‘[t]his court is not bound
to consider claimed errors unless it appears on the record that the question
was distinctly raised . . . and was ruled upon and decided by the court
adversely to the appellant’s claim.’ ’’ Kelley v. Commissioner of Correction,
90 Conn. App. 329, 335, 876 A.2d 600, cert. denied, 276 Conn. 909, 886 A.2d
423 (2005). ‘‘Moreover, [i]t is axiomatic that a party cannot submit a case
to the trial court on one theory and then seek a reversal in the reviewing
court on another. A party is not entitled to raise issues on appeal that have
not been raised in the trial court.’’ (Internal quotation marks omitted.) Wright
v. Commissioner of Correction, 235 Conn. App. 816, 856–57, 	A.3d
(2025). In the present case, the petitioner did not raise his cause and preju-
dice claim concerning count five in his memorandum opposing dismissal
before the habeas court; rather, as to count five, he conceded in his memoran-
dum to the habeas court that count five was ‘‘more appropriate for appellate
review and that the habeas court ha[d] no authority to review a prior habeas
judge’s ruling and/or order.’’ The petitioner made no other argument or
statement concerning count five and rested on his brief at the May 26,
2023 hearing. As a result, the habeas court made no findings regarding the
substance or applicability of this claim. See Canady v. Commissioner of
Correction, 231 Conn. App. 603, 632, 333 A.3d 797 (declining to review claim
regarding cause and prejudice when habeas court ‘‘was not provided with
an opportunity to make any factual or legal findings with respect to the
petitioner’s claim [as to] cause to excuse his procedural default’’), cert.
denied, 352 Conn. 901, 334 A.3d 1006 (2025).
15 As we already have indicated, there are no findings in the record support-
ing this assertion. See footnote 5 of this opinion.

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late counsel precluded him from pursuing an appeal in
the first habeas action, as well as his assertion that we
should afford him leniency because he acted in a self-
represented capacity before the habeas court. The fact
remains, however, that count five fails to state a claim
for which habeas relief can be granted because it asks
the second habeas court to review the decision of the
first habeas court, and it challenges the substantive
decision of a prior habeas court denying appellate coun-
sel, which is not the proper procedural vehicle by which
to do so. We are bound by the clear language of Practice
Book § 63-7 and our precedent construing it. 16 We also
do not agree with the petitioner’s contention that ‘‘the
habeas court is in the best position’’ to address the
denial of his request for counsel on appeal, as the peti-
tioner can file with this court a late motion for review
of the denial of his request for appellate counsel, pro-
vided that the motion includes a separate section dem-
onstrating good cause for the untimely filing; see Prac-
tice Book § 66-3;17 as well as a motion for permission
to file a late appeal in the first habeas action. See Prac-
tice Book § 60-2 (5). The petitioner cannot, however,
seek redress by way of a habeas petition regarding an
order concerning the appointment of appellate counsel
in lieu of a motion for review.
16 See State ex rel. Dunn v. Burton, 229 Conn. App. 267, 285 n.11, 327
A.3d 982 (2024) (‘‘We are mindful that [i]t is the established policy of the
Connecticut courts to be solicitous of [self-represented] litigants and when
it does not interfere with the rights of other parties to construe the rules of
practice liberally in favor of the [self-represented] party. . . . Nonetheless,
[a]lthough we allow [self-represented] litigants some latitude, the right of
self-representation provides no attendant license not to comply with relevant
rules of procedural and substantive law.’’ (Internal quotation marks omit-
ted.)).
17 We note that, in September, 2016, Practice Book § 66-3 was amended
to eliminate a prior requirement of filing a motion for permission to file a
late motion for review in this court. See Practice Book § 66-3, commentary
(‘‘These amendments eliminate the requirement of filing a motion for permis-
sion to file a late paper in the Supreme or Appellate Court. For example,
a party may file a late motion for review, provided that the motion includes
a separate section demonstrating good cause for its untimeliness.’’).

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Accordingly, the second habeas court properly deter-
mined that count five fails to state a claim for which
it could grant habeas relief to the petitioner, especially
when the relief sought includes, inter alia, the right to
file a late direct appeal or habeas appeal ‘‘with the
appointment of [appellate] counsel.’’ The petitioner,
therefore, has not demonstrated that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal, as a resolution of his claim does not
involve issues that are debatable among jurists of rea-
son, a court could not resolve the claim concerning
count five in a different manner, and the question raised
is not adequate to deserve encouragement to proceed
further.
The appeal is dismissed.
In this opinion the other judges concurred.