Coney v. Comm'r of Corr.

315 A.3d 1161

225 Conn.App. 450

Paul CONEY

v.COMMISSIONER OF CORRECTION

(AC 41747)

Appellate Court of Connecticut.

Argued April 8, 2024

Officially Released May 14, 2024

Judie Marshall, assigned counsel, for the appellant (petitioner).

Linda F. Rubertone, senior assistant state’s attorney, for the appellee (respondent).

Alvord, Cradle and Suarez, Js.

SUAREZ, J.

₄₅₁This appeal returns to this court on remand from our Supreme Court with direction to further consider the claim raised by the petitioner, Paul Coney, that the habeas court erred in dismissing his petition for a writ of habeas corpus as untimely pursuant to General Statutes § 52-470 (d) and (e) because he failed to demon- strate good cause to overcome the statutory presumption of an unreasonable delay. See Coney v. Commissioner of Correction, 348 Conn. 946, 308 A.3d 35 (2024). We reverse the judgment of the habeas court and remand the matter for a new hearing and good cause determination.

Following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a) and criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1999) § 53a-217c (a). The trial court sentenced the petitioner to a total term of incarceration of sixty years. Our Supreme Court affirmed the judgment of conviction. See State v. Coney, 266 Conn. 787, 822, 835 A.2d 977 (2003).

₄₅₂On February 20, 2004, the petitioner filed his first petition for a writ of habeas corpus in which he challenged the validity of his conviction. After the habeas court denied the petition, this court dismissed the petitioner’s appeal. See Coney v. Commissioner of Correction, 117 Conn. App. 860, 867, 982 A.2d 220 (2009), cert. denied, 294 Conn. 924, 985 A.2d 1061 (2010). On March 18, 2010, the petitioner filed his second petition for a writ of habeas corpus in which he challenged the validity of his conviction. The petitioner withdrew that petition prior to trial. On June 1, 2012, the petitioner filed his third petition for a writ of habeas corpus in which he challenged the validity of his conviction. The petitioner withdrew that petition prior to trial.

On January 20, 2015, the petitioner filed his fourth petition for a writ of habeas corpus in which he challenged the validity of his criminal conviction. The disposition of the petitioner’s fourth petition is the subject of this appeal. At the request of the respondent, the Commissioner of Correction, the court, Sferrazza, J., pursuant to § 52-470 (e), ordered the petitioner to show cause as to why the petition should not be dismissed as untimely in that it was filed beyond the time limit for successive petitions in § 52-470 (d). At the show cause hearing, the petitioner testified that he withdrew his third petition prior to trial on the advice of his prior habeas counsel. The petitioner further testified that prior counsel did not discuss § 52-470 (d) and that, if he had known that withdrawing the third petition and refiling would result in an untimely petition, he would not have withdrawn the third petition. Following the petitioner’s testimony, the petitioner’s counsel argued that prior habeas counsel’s representation was ineffective and that it amounted to good cause to permit the petition to proceed under § 52-470 (e).

The court determined that the fourth petition was presumptively untimely under § 52-470 (d). Consistent ₄₅₃with the petitioner’s testimony at the good cause hearing, the court found that "[t]he trial [on the third petition] was scheduled to begin on January 12, 2015. Unfortunately, a highly desirable witness, in the view of the petitioner and his habeas counsel … went missing shortly before trial.

"[The petitioner’s prior habeas counsel] discussed this development with the petitioner and advised him that the best course would be to withdraw the [third petition] before trial and refile the claims in a new habeas [petition] to gain more time to locate the witness for use at a future trial. The petitioner accepted this advice and withdrew the third [petition] on January 6, 2015, around one week before the first day of trial. The sole purpose of that withdrawal was to avoid trial in the hope that, if a new habeas case was initiated, the witness could be found and his testimony presented at some later date.

…

"Neither [the petitioner’s prior habeas counsel] nor the petitioner considered the effect the passage of § 52-470 (d) … had on the filing of a new habeas [petition] … that is, the petitioner could not file a new habeas [petition], directed at his criminal conviction, without invoking the presumption of undue delay, which, if unrebutted, mandated dismissal." Ultimately, the court determined that the petitioner had failed to establish good cause for the delay in filing the fourth petition. The court rejected the petitioner’s theory that prior habeas counsel’s "poor legal advice" was "a basis for rebutting the presumption of undue delay …. "

The habeas court granted the petitioner’s petition for certification to appeal to this court. Following oral argument, this court ordered, sua sponte, that the appeal be stayed pending the release of Kelsey v. Commissioner of Correction, 343 Conn. 424, 274 A.3d 85 (2022). Following Kelsey’s release, the parties were ₄₅₄ordered to file supplemental briefs...