Iovieno v. Commissioner of Correction

699 A.2d 1003, 242 Conn. 689, 1997 Conn. LEXIS 298

• Court: Supreme Court of Connecticut
• Decided: August 26, 1997
• Docket: SC 15411
• Status: Published

Opinions

Opinion

BERDON, J.

The dispositive issues in this certified appeal are: (1) whether the ten day limitation period applicable to petitions for certification to appeal from judgments in habeas corpus proceedings, set forth in General Statutes § 52-470 (b),² implicates a habeas court’s subject matter jurisdiction so as to deprive it of authority to grant an untimely filed petition; and (2) whether the failure to file a timely appeal under § 52-470 (b), as a result of ineffective assistance of counsel, constitutes per se prejudice to the petitioner and therefore satisfies the prejudice requirement for an ineffective assistance of counsel claim under the analysis outlined in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

The petitioner’s claim arises out of his second petition for a writ of habeas corpus. Following the dismissal of his first habeas petition on its merits, the petitioner filed for certification to appeal from the judgment. The petition for certification to appeal was filed after the expiration of the ten day statutory limitation period provided for by § 52-470 (b), and the first habeas court dismissed it as untimely, holding that the court lacked subject matter jurisdiction to consider a petition not timely filed. The petitioner then sought a second writ of habeas corpus based upon the ineffective assistance of appellate counsel in pursuing the appeal of the first habeas court’s judgment, and requested a reinstatement of the limitation period to enable him to petition again for certification to appeal the fust habeas court’s judgment. Although the second habeas court concluded that the limitation period within which certifications must be requested was not jurisdictional, it dismissed the petition, finding that the petitioner failed to establish, under the second prong of the analysis outlined in Strickland, that he was prejudiced by counsel’s ineffectiveness. The Appellate Court affirmed the dismissal by the second habeas court without reaching the merits, holding that once the ten day period in which to file a petition under § 52-470 (b) expired, the court lacked subject matter jurisdiction. . We granted the petitioner’s request for certification to appeal from the decision of the Appellate Court.³ We reverse the decision of the Appellate Court.

The Appellate Court opinion sets forth the relevant facts and procedural history. “The petitioner, Michael Iovieno, was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70, unlawful restraint in the first degree in violation of General Statutes § 53a-95, and three counts of burglary in the second degree in violation of General Statutes § 53a-102. On appeal, [the Appellate Court] vacated one of the burglary convictions and remanded the case with direction to render a judgment of acquittal as to that count. [The Appellate Court] affirmed the remaining convictions. State v. Iovieno, 14 Conn. App. 710, 543 A.2d 766, cert. denied, 209 Conn. 805, 548 A.2d 440 (1988) [Iovieno I].

“Thereafter, the petitioner filed a petition for a writ of habeas corpus claiming that his trial counsel was ineffective by failing to move to suppress evidence wrongfully seized. The habeas court dismissed the habeas petition, finding that trial counsel’s incompetence did not prejudice the petitioner in the manner defined by Strickland v. Washington, [supra, 466 U.S. 668]. The habeas court’s memorandum of decision dismissing the petition was dated February 15, 1991, and was filed on February 22, 1991.

“On March 8, 1991, the petitioner’s habeas counsel filed a petition for certification to appeal. This petition was filed four days beyond the time limitation set forth in General Statutes § 52-470 (b). The habeas court concluded that it did not have the discretion to consider a petition that was not timely filed [and denied the petition for certification to appeal]. [On appeal, this court], ruling on a writ of error brought by the petitioner, affirmed the habeas court’s decision. Iovieno v. Commissioner of Correction, 222 Conn. 254, 608 A.2d 1174 (1992) [Iovieno II].

“The petitioner filed a second habeas petition claiming that he was denied his right to effective assistance of counsel in his appeal of the dismissal of his first habeas petition. In the second petition, he requested (1) that a writ of habeas corpus be issued to bring him before [the Appellate Court] in order that justice may be done, (2) that the conviction and sentence be vacated and the matter returned to the trial court docket for further proceedings, (3) that his right to appeal from the original habeas court decision be restored provided that a petition for certification be filed within ten days from the date of this decision, and (4) such other relief as deemed equitable and just.

“The [second] habeas court, in addressing the merits of the petition, first found that a statutory right to effective assistance of counsel exists in appeals from adverse habeas corpus decisions. The court then found that the conduct of the petitioner’s counsel in failing to file the petition for certification in a timely manner fell below an objective standard of reasonable representation. The court concluded, however, that the petitioner had not proven that such deficient representation had prejudiced him and, therefore, dismissed the petition.

“The petitioner claim[ed] that his [appellate] counsel’s conduct constituted per se prejudice, and, therefore, he was not required to prove prejudice. In rejecting this claim, the [second] habeas court stated that the petitioner failed to prove that ‘there exists a reasonable probability that, but for the lack of timely filing, his petition for certification would have been granted.’ The [second] habeas court granted a timely filed petition for certification to appeal its decision.

“[On appeal, the petitioner asserted] that the [second] habeas court had the authority to remedy his counsel’s failure to file a petition for certification to appeal in a timely manner by ‘starting the time limit anew for the filing of the petition for certification from the first habeas decision.’ [The Appellate Court concluded] that because the time limitation contained in § 52-470 (b) implicates subject matter jurisdiction, a habeas court does not have the authority to set a new ten day period for filing a petition for certification to appeal. . . .

“The [second] habeas court, in addressing the petitioner’s second habeas petition, conducted a thorough analysis regarding the petitioner’s ineffective assistance of counsel claim. The court applied the two-prong test enunciated in Strickland v. Washington, supra, 466 U.S. 668. The court found that the petitioner had satisfied the first prong of Strickland by proving that his habeas counsel’s performance fell below an objective standard of reasonableness. In examining the second prong of Strickland, often termed the prejudice prong, the court applied the criteria established in Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), to determine whether the petitioner had proven, by a preponderance of the evidence, that there existed a reasonable probability that the petition for certification for appeal would have been granted. The court concluded that the petitioner did not satisfy this second prong and, thus, dismissed the habeas petition.” Iovieno v. Commissioner of Correction, 40 Conn. App. 553, 554-57, 672 A.2d 530 (1996) [Iovieno III].

I

The petitioner’s first claim is that § 52-470 (b), in specifying a ten day limitation period in which a petition for certification to appeal from a judgment of a habeas court must be filed, does not limit the subject matter jurisdiction of a habeas court, but merely defines the scope of review on appeal. The Appellate Court concluded that “because the time limitation contained in § 52-470 (b) implicates subject matter jurisdiction, a habeas court does not have the authority to set a new ten day period for filing a petition for certification to appeal.” Id., 556. We disagree with the Appellate Court.

In order to determine whether § 52-470 (b), in specifying a ten day limitation period for appealing a judgment of a habeas court, creates a jurisdictional bar preventing the court from entertaining an untimely petition for certification to appeal, we must discern what result the legislature intended when it enacted § 52-470 (b). “There is no more elementary rule of statutory construction than that the intention which the legislature has expressed must govern.” State ex rel. Rourke v. Barbieri, 139 Conn. 203, 207, 91 A.2d 773 (1952). The question of whether a statutory time limitation is subject matter jurisdictional is a question of statutory interpretation. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). In interpreting statutory provisions, we have held that legislative intent is to be determined by reference to the language of the statute, its legislative history and surrounding circumstances, the policy the limitation was intended to implement, and the statute’s “relationship to existing legislation and common law principles governing the same general subject matter.” Id. We have also held that “ ‘eveiy presumption is to be indulged in favor of jurisdiction.’ ” Id., 765.

The respondent relies on our interpretation of § 52-470 (b) in Iovieno II in arguing that the limitation period implicates the subject matter jurisdiction of the habeas court. Although we did not specifically state that the untimely petition for certification to appeal under § 52-470 (b) deprived the habeas court of subject matter jurisdiction in Iovieno II, we held that “the habeas court was correct in concluding that it had no discretion to consider an untimely petition for certification to appeal.” Iovieno II, supra, 222 Conn. 258. The Appellate Court, in Iovieno III, supra, 40 Conn. App. 558-59, relied on this language in deciding that the petitioner’s late filing of his petition for certification to appeal his first habeas court judgment under § 52-470 (b) resulted in a jurisdictional bar to that court’s ability to entertain the petition for certification to appeal.

In Iovieno II, this court held that neither the plain language of § 52-470, nor its legislative history, support the conclusion that the legislature intended to make the time limitation under § 52-470 (b) discretionary, rather than mandatory. Iovieno II, supra, 222 Conn. 261. The court noted that, although under § 52-470 (a) a habeas court has considerable discretion to “dispose of the case as law and justice require,” the legislature specifically declined to include similar language in § 52-470 (b), evidencing an intent not to provide habeas courts with discretion in considering petitions filed under that section. Id., 258. The court in Iovieno II also noted that statements made on the floor of the legislature, during the process of amending § 52-470 in 1957 to include a provision regarding certification to appeal a habeas decision, indicated a desire by the legislature to reduce the number of appeals in criminal matters and hasten ultimate justice without repetitive recourse to appeals. Id., 259. The court therefore interpreted the ten day limitation period of § 52-470 (b) to be nondiscretionary.

Since Iovieno II, we have had occasion to examine § 52-470 (b) in further detail. In Simms v. Warden, 230 Conn. 608, 646 A.2d 126 (1994), we were asked to interpret § 52-470 (b) in order to decide whether a denial of certification to appeal under that section implicated the subject matter jurisdiction of the appellate tribunal. The question raised in Simms was whether the language in § 52-470 (b) providing that “[n]o appeal from the judgment rendered in a habeas corpus proceeding . . . may be taken,” unless the appeal is certified, was “intended by the legislature as a limitation on the jurisdiction of the appellate tribunal or as a limitation on the scope of the review by the appellate tribunal.” Id., 613. We decided that the language was intended by the legislature “only to define the scope of our review and not to limit the jurisdiction of the appellate tribunal.” Id., 615. One of the factors that led to our conclusion in Simms was the fact that, “when the legislature enacted § 52-470 (b), it limited a statutory right to appeal that had existed, unconditionally, since 1882.” Id., 614. We also considered “the significant role of the writ of habeas coipus in our jurisprudence, and the strong presumption in favor of appellate jurisdiction” existing under our current law. Id. Together, these factors led us to conclude that the legislature did not intend the certification requirement of § 52-470 (b) to limit the subject matter jurisdiction of the habeas court.

The limiting language of § 52-470 (b), which we reviewed in Simms, is the same language we are asked to review in this case with respect to the ten day limitation period prescribed by that section, namely, “[n]o appeal from the judgment rendered in a habeas coipus proceeding . . . may be taken unless the appellant, within ten days after the case is decided, petitions the judge . . . and the judge so certifies.”⁴ If the prohibition on the right to appeal with certification contained in § 52-470 (b) does not implicate an appellate court’s jurisdiction, it logically follows that the time by which to request that certification, set forth in the same sentence, is not jurisdictional.

Further support for our conclusion that the limitation period prescribed by § 52-470 (b) is not jurisdictional may be found by applying our analysis set forth in Banks v. Thomas, 241 Conn. 569, 698 A.2d 268 (1997). In Banks, we considered whether the two week limitation period provided for taking an appeal by writ of error, pursuant to General Statutes § 52-273,⁵ implicated our subject matter jurisdiction. We held that the failure to file a writ of error under § 52-273 in a timely manner did not require a dismissal of the writ due to lack of subject matter jurisdiction. Id., 581-82.

Anumber of factors compelled our decision in Ban/cs. First, we noted that “§ 52-273 contains no language expressly invalidating a writ of error not filed within two weeks from the rendition of the judgment or decree.” Id., 583. Second, we observed that “the legislative history of § 52-273 contains no indication that the legislature intended to deprive [appellate courts] of the authority to entertain an untimely writ of error”; id.; such that “noncompliance with [the] filing period would serve as a complete and automatic bar to appellate review of the writ.” Id., 584. Third, we recognized that such a result “would constitute a dramatic departure” from the jurisdictional authority for the writ of error historically vested under the common law. Id., 585. Finally, we considered the harsh result that would ensue if the statute were- interpreted as embodying a jurisdictional requirement. To interpret the statute as creating a jurisdictional bar to an untimely filed writ of error would have left the plaintiff in Banks without any recourse to appellate review to challenge the trial court’s summary criminal contempt finding against him and its imposition of a sentence of nine months imprisonment. Id. For all of these reasons, we concluded in Banks that neither the statutory language nor the statute’s legislative history provided persuasive support for the contention that the two week limitation period created a prerequisite to subject matter jurisdiction. Id.

An examination of § 52-470 (b) for the purpose of determining legislative intent in light of the Simms interpretation and the Banks analysis leads us to the conclusion that noncompliance with the limitation period of § 52-470 (b) was not intended to deprive a habeas court of subject matter jurisdiction to consider an untimely appeal. First, § 52-470 (b) contains no language expressly invalidating a court’s jurisdiction to entertain a petition filed after the expiration of the limitation period. “A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision.” Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995). Second, the legislative history, while indicative of a desire to limit the number of appeals filed in criminal cases and hasten the final conclusion of the criminal justice process, is not explicit about intending to achieve its goal by limiting the subject matter jurisdiction of habeas courts in considering an untimely petition for certification to appeal.

Third, although no right to appeal in habeas cases existed originally at common law, such a right has existed in our jurisprudence since 1882. Simms v. Warden, supra, 230 Conn. 614. Thus, as we noted in Simms, there is good reason for this court to be hesitant to attribute to the legislature an intent to substantially limit that right, without an explicit expression of such an intent. When changes have been introduced by amendment to a statute, “the presumed change does not go any further than that which is expressly declared or necessarily implied.” King v. Board of Education, 203 Conn. 324, 335-36, 524 A.2d 1131 (1987). “We cannot impute to the legislature ... in the absence of an intent clearly expressed in the act, [an intent] to enact [a statute] which involves a departure from existing statutory law.” State ex rel. Rourke v. Barbieri, supra, 139 Conn. 209.

Fourth, the harsh result that would follow if § 52-470 (b) was interpreted to create an absolute bar to appellate review for petitioners who file outside the limitation period provides additional support for our conclusion that § 52-470 (b) does not embody a jurisdictional requirement. Depriving a habeas petitioner of the opportunity to seek certification to appeal amounts to a deprivation of a remedy that could result in the petitioner’s release from wrongful incarceration. We recognize that the vicissitudes of the practice of law, as well as the practical incapacity of certain pro se petitioners who are incarcerated, may lead to occasional untimely filings in exceptional circumstances. Thus, habeas courts, in the interests of justice, should have the discretion to grant an untimely filed petition.

For all of these reasons, and particularly in light of our decision in Simms, we conclude that the time limitation in § 52-470 (b) does not implicate subject matter jurisdiction. To the extent that the result in Iovieno II conflicts with this decision, that case is expressly overruled. Thus, noncompliance with the ten day limitation period of § 52-470 (b) does not deprive a habeas court of subject matter jurisdiction over such an appeal, and whether to entertain an untimely filed appeal is a decision to be left to the sound discretion of the habeas court. In exercising that discretion, a habeas court should take into account the reasons for the delay.⁶

II

The petitioner next asserts that he was deprived of his right to the effective assistance of counsel in pursuing an appeal from the first habeas court’s judgment. The Appellate Court, in Iovieno III, found it unnecessary to address the issue, because it concluded that the courts lack subject matter jurisdiction under § 52-470 (b) to consider an untimely filed petition. Because we disagree with the Appellate Court on the issue of subject matter jurisdiction, we address the petitioner’s claim.

A

As a preliminary matter, the respondent argues that, because there is no right to counsel for the purpose of pursuing an appeal from a habeas corpus judgment, there is consequently no right to the effective assistance of counsel in pursuing such an appeal. The petitioner, on the other hand, contends that there is no basis for the state’s argument, because Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), and Franko v. Bronson, 19 Conn. App. 686, 563 A.2d 1036 (1989), establish that, under Connecticut law, there is a right to the effective assistance of counsel in habeas appeals. We agree with the petitioner.

In Lozada v. Warden, supra, 223 Conn. 839 n.8, this court recognized that, although there is no federal constitutional right to counsel in habeas corpus proceedings; see Pennsylvania v. Finley, 481 U.S. 551, 559, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); under Connecticut law there is a statutory right to counsel in habeas proceedings arising out of a criminal matter under General Statutes § 51-296.⁷ Lozada v. Warden, supra, 838. The statutory right to counsel in habeas proceedings has also been held to extend to habeas appeals. Franko v. Bronson, supra, 19 Conn. App. 692. Furthermore, we have recognized that “[i]t would be absurd to have the right to appointed counsel who is not required to be competent.” Lozada v. Warden, supra, 839-40. Therefore, we held that the writ of habeas corpus is an appropriate remedy for an ineffective assistance of habeas counsel claim. Id., 843. This remedy, then, also extends to ineffective assistance of counsel claims involving appellate counsel in habeas appeals.

B

We turn next to the merits of the petitioner’s ineffective assistance of counsel claim. The substance of the petitioner’s claim is that, when the failure of counsel to petition for certification to appeal from a habeas judgment within the statutorily defined limitation period results in a complete denial of the petitioner’s opportunity to appeal the habeas ruling, no further showing of prejudice is required under the Strickland analysis. We agree.

Ordinarily, in order for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel in the trial context, Strickland requires that the defendant establish both that his counsel’s performance was deficient, and that as a result of that performance he suffered actual prejudice. Strickland v. Washington, supra, 466 U.S. 687. In the context of a claim of ineffective assistance of appellate counsel, this court has adopted the two part Strickland analysis. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992); see also Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995).

The first prong of the Strickland analysis requires a petitioner to establish that his attorney’s performance was deficient, in “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, supra, 466 U.S. 687. The proper standard for attorney performance under Strickland is one of “reasonably effective assistance.” Id. A petitioner must demonstrate “that counsel’s representation fell below an objective standard of reasonableness . . . [as measured by] prevailing professional norms.” (Citation omitted; internal quotation marks omitted.) Johnsons. Commissioner of Correction, 218 Conn. 403, 425, 589 A.2d 1214 (1991).

The second habeas court, which considered the merits of the petitioner’s second habeas petition, concluded that he had successfully established that his appellate counsel failed to act “reasonably competently,” and, therefore, concluded that the petitioner satisfied the first prong of Strickland. The second habeas court considered the respondent’s contention that, because counsel had contacted the court clerk’s office to obtain information as to when the ten day limitation period would commence, and the discussion that followed resulted in counsel’s mistaken belief as to when the period would begin, that counsel’s representation was reasonably effective. Nevertheless, the second habeas court held that because it found § 52-470 (b) to be clear and unambiguous as to when the limitation period would commence, counsel’s behavior was not reasonably competent. Specifically, it found that “[n]o attorney, acting reasonably competently, can substitute an informal discussion with clerical personnel at a court, some of whom are untrained in habeas corpus law, for a careful reading of a clear and unambiguous statute. . . . Failure to [file within ten days of the adverse decision], in the absence of extraordinary circumstances, falls below an objective standard of reasonable representation.” We agree with the second habeas court’s conclusion that, under these circumstances, the first prong of Strickland has been satisfied.

The second habeas court next considered the issue of prejudice under the second prong of Strickland. The second habeas court concluded that, although Strickland normally requires a petitioner raising an ineffective assistance of counsel claim to establish prejudice by demonstrating that counsel's deficiencies undermined confidence in the reliability of the verdict, when the deficiency deprives a defendant of his entire right to appeal, a different standard should apply. In that situation, it held that a petitioner need prove only that, if his petition had been timely filed, there exists a reasonable probability that the petition for certification to appeal would have been granted.

In Bunkley v. Commissioner of Correction, supra, 222 Conn. 458-59, this court decided that the same burden of establishing prejudice under the second prong of the Strickland analysis should apply in the appellate context as applies in the context of trial counsel. The court held that “in order for the petitioner to establish prejudice resulting from his appellate counsel’s deficient performance, he must establish that, as a result of that performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Put another way, he must establish that, because of the failure of his appellate counsel to [render effective assistance], there is a reasonable probability that he remains burdened by an unreliable determination of his guilt.” Id., 454.

We noted in Bunkley, however, that an exceptional situation exists with regard to establishing prejudice “where the prejudice claimed by a habeas corpus petitioner is that he was deprived of his entire [first] appeal because his appellate counsel failed to file papers timely . . . .” Id., 459 n.16. In that situation, we stated that the same standard of prejudice would not apply. Id. Under such circumstances, we recognized that “it would be impossible to determine whether the verdict was unreliable until the appeal had been heard. In such a case . . . prejudice would be established by the absence of [the] appeal.” Id.

Similarly, a number of decisions from other jurisdictions hold that when the ineffective assistance of counsel entirely deprives a defendant of his direct appeal of right, a showing of prejudice or likely success on appeal is not required. See Penson v. Ohio, 488 U.S. 75, 88-89, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988) (where direct appeal of right is involved, showing of prejudice not required when counsel’s errors deprive client of appeal altogether); Rodriguez v. United States, 395 U.S. 327, 330, 89 S. Ct. 1715, 23 L. Ed. 2d 340 (1969) (“[t]hose whose right to appeal has been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings”); Baker v. Kaiser, 929 F.2d 1495, 1500 (10th Cir. 1991) (where petitioner denied right to counsel, “refusal of the [state] court to grant [petitioner] an out of time appeal deprived him of due process of law”); Perez v. Wainwright, 640 F.2d 596, 599 (5th Cir. 1981) (“failure to file a timely appeal as promised, without more, constitutes a violation of the Sixth Amendment and [the petitioner] must be accorded an out-of-time appeal”); Robinson v. Wyrick, 635 F.2d 757, 758 (8th Cir. 1981) (“[i]n situations where ineffective assistance of counsel deprives a defendant of his right to appeal, courts have not required a showing of prejudice or of likely success on appeal”).

In the present case, as in the case where a direct appeal has been foreclosed, there are exceptional circumstances that require us to dispense with the prejudice analysis ordinarily required under Strickland. Here, the result of counsel’s failure to file the petition for certification to appeal within the statutorily prescribed limitation period was to deprive the petitioner of the opportunity to seek appellate review of the dismissal of his first habeas petition. Although the petitioner was not deprived of his first habeas appeal as of right because the right depended upon the granting of certification, he was deprived of a significant, statutorily created right that otherwise would have afforded him an opportunity to seek plenary review of the first habeas court’s judgment. Review of this issue by the second habeas court, during the process of evaluating the petitioner’s ineffective assistance of appellate counsel claim by performing the Strickland analysis to determine whether the procedural default prejudiced the petitioner, is simply not an adequate substitute for the opportunity to petition for certification from the first habeas court. The first habeas court occupies a superior position from which to consider the petition for certification to appeal, because it is that court which heard the evidence on the merits of the petitioner’s first habeas petition.

Furthermore, in cases such as this one involving a procedural default at the appellate level, the prejudice requirement serves a substantially less significant purpose than in other ineffective assistance of counsel cases. In the ordinary case of ineffective assistance of counsel, Strickland requires a showing of prejudice because the consequences of the attorney’s substandard performance lead to a new trial. In this case, as a result of the ineffective assistance of counsel, we merely return the petitioner to the same position that he occupied at the time of counsel’s deficient performance; that is, back before the first habeas court for the opportunity to convince that court that it should grant certification to appeal.

In summary, it serves no useful purpose to require the petitioner, who has been deprived of the opportunity to seek review of a habeas judgment due solely to the ineffective assistance of appellate counsel, to prove actual prejudice. The prejudice that results by virtue of being barred from the right to seek certification to appeal is obvious.⁸ We therefore hold that the petitioner was not required to establish actual prejudice or the likely success of his petition for certification to appeal.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the second habeas court and to remand the case to the first habeas court for consideration of the merits of the petitioner’s petition for certification to appeal from the judgment on his first habeas coipus petition.

In this opinion BORDEN, NORCOTT, KATZ and PALMER, Js., concurred.

2 General Statutes § 52-470 provides: “Summary disposal of the case. Appeal by person convicted of crime, (a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and . inquire fully into .the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.

“(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

3 We granted the polition for certification, limited to the following questions: '‘(1) Did the Appellate Court properly conclude that the second habeas court lacked subject matter jurisdiction to grant a new ten day period to appeal from the judgment of the first habeas court?

“(2) If the answer to the first question is no, did the Appellate Court nonetheless reach the proper result because of the petitioner’s failure to establish prejudice under Strickland v. Washington, [supra, 466 U.S. 668]?” Iovieno v. Commissioner of Correction, 237 Conn. 910, 675 A.2d 456 (1996).

4 See footnote 2 of this opinion.

5 General Statutes § 52-273 provides: “Writ of error; limitations. No writ of error may be brought in any civil or criminal proceeding, unless allowed and signed within two weeks after the rendition of the judgment or decree complained of. No writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal.”

6 Once a court has decided to exercise its discretion and consider an untimely petition, it should proceed in the usual manner to consider the merits of the petition. In that regard, we find it relevant that in Simms we adopted the criteria set forth in Lozada v. Deeds, supra, 498 U.S. 431-32, as guidance for determining whether a habeas appeal is meritorious or frivolous. Simms v. Warden, supra, 230 Conn. 616. In Lozada, the United States Supreme Court held that, in order to obtain a certificate of probable cause to appeal, a habeas petitioner is required to demonstrate “that the issues [to be raised on appeal] are debatable among jurists of reason; that a court could resolve 1he issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis in original; internal quotation marks omitted.) Lozada v. Deeds, supra, 432.

7 General Statutes § 51-296 provides in relevantpárt: “Designation of public defender for indigent defendant, codefendant, (a) In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant, unless, in a misdemeanor case, at the time of the application for appointment of counsel, the court decides to dispose of the pending charge without subjecting the defendant to a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation or the court believes that the disposition of the pending case at a later date will not result in a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation and malees a statement to that effect on the record. If it appears to the court at a later date that, if convicted, the sentence of an indigent defendant for whom counsel has not been appointed will involve immediate incarceration or a suspended sentence of incarceration with a period of probation, counsel shall be appointed prior to trial or the entry of a plea of guilty or nolo contendere. . . .

“(c) Prior to a defendant’s appearance in court in any matter specified in subsection (a) of this section, a public defender, assistant public defender or deputy assistant public defender, upon a determination that the defendant is indigent pursuant to subsection (a) of section 51-297, shall be authorized to represent the defendant until the court appoints counsel for such defendant. ” (Emphasis added.)

8 Moreover, in this case the record indicates the likely success of his petition for certification to appeal. Judge Scheinblum, the trial judge at the first habeas proceeding, in dismissing the untimely filed petition for certification to appeal, stated: “I would grant you this, that at least as to maybe one of the issues you raised for appeal ... it might be something that an appellate court, would want to deal with. But I’ve got the first hurdle, and that’s the statute [limiting the time in which certification to appeal may be sought].” He also stated: “Now, whether this is going to be a judicially economical decision on this court’s part or not, I don’t know for sure. I do feel, however, bound by the language of the statute. And even though I may feel that there is merit, at least in part, to some of the issues being raised, I simply find that the language in the statute is compelling, and for that reason, I find that I must deny the petition for certification . . . .”

In footnote 12 of Ms dissent, Chief Justice Callahan indicates that Judge Scheinblum’s “statements regarding a potential appealable issue are wholly irrelevant here” because Judge Scheinblum was referring to the search and seizure issue raised in the petitioner’s habeas petition. Contrary to the dissent’s assertion, it is not clear that Judge Scheinblum was referring to the search and seizure issue because he did not explain what he was referring to when he indicated “that there is merit, at least in part, to some of the issues being raised” or that “it might be something that an appellate court would want to deal with.” Judge Scheinblum did not, when making these comments, refer in any way to Ms memorandum of decision on the merits of the habeas petition.