Clue v. Comm'r of Corr.

309 A.3d 1239

223 Conn.App. 803

Lascelles A. CLUE

v.COMMISSIONER OF CORRECTION

(AC 45984)

Appellate Court of Connecticut.

Argued October 10, 2023

Officially Released February 20, 2024

James E. Mortimer, assigned counsel, for the appellant (petitioner).

Laurie N. Feldman, assistant state’s attorney, with whom, on the brief, were David Applegate, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).

Bright, C. J., and Alvord and Pellegrino, Js.

BRIGHT, C. J.

₈₀₅In this certified appeal, the petitioner, Lascelles A. Clue, appeals from the judgment of the habeas court denying his untimely motion to open and set aside the 2021 dismissal of his habeas petition. On appeal, the petitioner claims that the court improperly concluded that its equitable authority to open the judgment outside of the four month period set forth in General Statutes § 52-212a was limited to cases in which the judgment was obtained by fraud, duress, or mutual mistake. We agree and conclude that, in the context of a habeas corpus case, the court has the authority to consider an otherwise untimely motion to open that is based on the ineffective assistance of habeas counsel.¹ Accordingly, we reverse the judgment of the habeas court and remand the case for a new hearing on the petitioner’s motion to open.

The following facts, as set forth by the court in its memorandum of decision or as undisputed in the record, ₈₀₆and procedural history are relevant to our resolution of this appeal. The petitioner filed the underlying habeas petition on February 20, 2018, challenging, on the basis of the alleged ineffective assistance of his trial attorneys, a conviction that resulted from a 2011 guilty plea. The petitioner requested that counsel be appointed to represent him in the habeas action, and the Law Office of Christopher Duby, LLC (Duby law firm), was appointed as his counsel. Subsequently, Attorney Patick White, an associate in the firm, filed an appearance with the court as the petitioner’s counsel. White represented the petitioner at all relevant times. The court entered a scheduling order on April 5, 2019, which established trial dates for March 30 and 31, 2022. In June, 2020, the petitioner was deported to Jamaica. Prior to being deported, the petitioner successfully obtained relief in another habeas case² challenging a different conviction.³ The petitioner was represented by Attorney Daniel Lage in that habeas case.

On January 14, 2021, White filed a case-flow request for a video status conference. In that request, White represented that the petitioner had been deported and that White’s attempts to contact the petitioner, his mother, and his wife had been unsuccessful. The court, Oliver, J., granted White’s request and held a status conference on January 25, 2021, during which the court requested that White file a notice with the court detailing his efforts to communicate with the petitioner and ₈₀₇his family. Accordingly, "[o]n January 27, 2021, White filed a notice that there had been a breakdown in communications be- tween him and [the petitioner]. The notice detailed the history of White’s interactions with [the petitioner] until his deportation and the efforts thereafter to contact [the petitioner] and his family. White represented that all his efforts to contact [the petitioner], as well as his mother and wife, had been unsuccessful. The notice concluded with the assertion that the case could not proceed without [the petitioner].⁴

"The court issued an order on January 27, 2021, that the matter would be scheduled for a hearing on the court’s own motion to dismiss based on [the petitioner’s] failure to contact and cooperate with White in prosecuting the instant petition with due diligence. The court also provided notice that the matter may also be dismissed for failure to appear if [the petitioner] absented himself from the upcoming hearing.⁵ After a hearing on February 11, 2021, and upon consideration of the previously filed notice as supplemented by White’s representations at the hearing, the court dismissed the petition based on [the petitioner’s] failure to appear and prosecute the petition with due diligence." (Footnotes added.)

On May 19, 2022, the petitioner filed a motion to open the judgment of dismissal and a supporting memorandum of law. The petitioner claimed: "[H]e did not receive the notices of White’s caseflow request and the ensuing hearing; he did not waive his right to be present ₈₀₈at the dismissal hearing; White failed to make reasonable efforts to apprise him of the status of the matter; and White failed to communicate effectively with him, his family contacts, or attorneys who represent him in other cases. … [The petitioner ascribed] various failures to White and [asserted] that [White] made material misrepresentations about his exercise of due diligence in locating the petitioner. Those material misrepresentations, which the [petitioner described] as conduct designed to result in the dismissal of the petition absent [the petitioner’s] knowledge or consent, resulted in the court dismissing the case.

"The respondent, [the Commissioner, of Correction, objected] to the motion to open because it [was] untimely, [the petitioner] failed to keep White apprised of his whereabouts and contact information, and [the petitioner] did not act with diligence in seeking to open the judgment. The respondent … also submitted an affidavit from White which detail[ed] his efforts to communicate with [the petitioner] and his family members after his deportation.

"The parties appeared at a hearing on June 17 and July 8, 2022, where [the court] heard testimony from [the petitioner], White, Lage, Fay Ellis (the petitioner’s mother), and Kelly Clue (the petitioner’s wife). Additionally, [the petitioner] entered several exhibits into evidence," including three letters from the Duby law firm to the petitioner dated June 26, 2018, February 8, 2020, and February 26, 2020; a contact information sheet that the Duby law firm gave to the petitioner, on which the petitioner provided the firm with his wife’s and mother’s phone numbers; and the transcript of the dismissal hearing.

On the basis of the testimony at the hearing, the habeas court set forth the following additional facts in its September 12, 2022 memorandum of decision, "[The ₈₀₉petitioner] was at a federal detention center for approximately three months prior to his deportation. [The petitioner] and White corresponded with each other and spoke once while [the petitioner] was at the federal detention center. White knew that [the petitioner] would be deported." Accordingly, "White told [the petitioner] that if he were deported, then he would need to provide contact information and instructed [the petitioner] to contact him."

Following the petitioner’s deportation, "[b]ecause [White] did not have, any con tact information for [the petitioner] in Jamaica, [he] tried calling Kelly Clue and Ellis, who were listed on the contact sheet provided by [the petitioner], but he did not write to them. White did not have any specific independent recollection of leaving messages for Kelly Clue and Ellis, but it is his practice to leave such messages. White did not receive any calls back." Ellis testified, however, "that she has never been contacted by White, whether pre or postdeportation." Similarly, Kelly Clue testified that she has never had any contact with White or his law firm.

The petitioner testified that "he had White’s phone number in an address book [and] tried calling White two or three times after he was deported, once in August of 2020 and twice in October of 2020 [and that he] left voicemail messages, which included his cell phone number, on White’s extension but did not receive any calls back. [The petitioner] did not try to contact White again after October of 2020, because he has paranoia, [post-traumatic stress disorder], and gave up because he thought White gave up. … In early 2021, [the petitioner’s] cell phone was disconnected, and he obtained the number that he presently has. [The petitioner] did not provide his new number to the Duby law firm." By contrast, Ellis testified that she has "had daily contact [with the petitioner] via phone calls" since his deportation, and "she has had contact with him via … video ₈₁₀calls, emails, and text messages." Kelly Clue also "had contact with [the petitioner] via phone calls and emails beginning a few days after his deportation." Moreover, the petitioner spoke with Lage, the attorney representing him in his other habeas proceeding, "numerous times between the summer of 2020 and spring of 2022."

The court stated that the petitioner "had no notice of the January 27, 2021 scheduling order that there would be a hearing on the court’s own motion to dismiss based on [the petitioner’s] failure to prosecute this case with due diligence, as well as that the matter might be dismissed if [he] failed to appear. In either January or February of 2022, [the petitioner] found out about the dismissal from Kelly Clue, who was checking on the case status before the originally scheduled trial date. … Although [the petitioner] was unable to access the Judicial Branch’s website from Jamaica, he was able to look up information for the Office of the Chief Public Defender (OCPD) and seek assistance in opening this case. [The petitioner] contacted OCPD about one month after he found out that this case had been dismissed. [The petitioner] searched for White [on the Internet], never asked Lage to contact White, did not write a letter to White, and did not complain to OCPD about White even though he had given up on White."

At the hearing, the petitioner argued that the facts of this case warranted "a quasi-fraud equitable exception to the 120 day rule … predicated … on ineffective assistance of counsel or attorney negligence." In particular, the petitioner claimed that White "failed to communicate with the petitioner" about the...