Coney v. Comm'r of Corr.

215 Conn.App. 99

281 A.3d 461

Paul CONEY

v.COMMISSIONER OF CORRECTION

AC 41747

Appellate Court of Connecticut.

Argued February 3, 2021

Officially released September 13, 2022

Judie Marshall, assigned counsel, with whom, on the brief, was Stephanie L. Evans, assigned counsel, for the appellant (petitioner).

Sarah Hanna, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).

Alvord, Elgo and Albis, Js.

ELGO, J.

The petitioner, Paul Coney,¹ appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus as untimely pursuant to General Statutes § 52-470 (d) and (e).² On appeal, the petitioner claims that the habeas court erred in determining that he failed to demonstrate good cause to overcome the statutory presumption of unreasonable delay. We disagree and, accordingly, affirm the judgment of dismissal.

The following facts and procedural history are relevant to this appeal. After a jury trial, the petitioner was convicted of one count of murder in violation of General Statutes § 53a-54a (a) and one count of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a). State v. Coney , 266 Conn. 787, 790, 835 A.2d 977 (2003). The trial court sentenced the petitioner to a total effective term of sixty years of imprisonment, and our Supreme Court affirmed the judgment of conviction on direct appeal. Id., at 790–91, 835 A.2d 977.

On February 20, 2004, the petitioner filed his first petition for a writ of habeas corpus (first petition), challenging the validity of his criminal conviction. The habeas court denied this petition. This court affirmed that judgment, and our Supreme Court thereafter denied certification to appeal. Coney v. Commissioner of Correction , 117 Conn. App. 860, 982 A.2d 220 (2009), cert. denied, 294 Conn. 924, 985 A.2d 1061 (2010). On March 18, 2010, the petitioner filed a second petition for a writ of habeas corpus (second petition), which also challenged his criminal conviction. He subsequently withdrew that petition prior to trial.

On June 1, 2012, the petitioner filed a third petition for a writ of habeas corpus (third petition), again challenging his criminal conviction, and a trial was scheduled for January 12, 2015. Shortly before the start of that trial, the petitioner's counsel advised the petitioner to withdraw the third petition because counsel had lost contact with a witness whose testimony counsel believed was essential to establish one of the claims set forth in the petition. Relying on that advice, the petitioner withdrew the third petition on January 6, 2015.³

On January 20, 2015, the petitioner filed a fourth petition for a writ of habeas corpus (fourth petition), which also challenged his criminal conviction and is the subject of this appeal. At the request of the respondent, the Commissioner of Correction, the court, Sferrazza , J. , issued an order, pursuant to § 52-470 (e), requiring the petitioner to show cause as to why the petition should not be dismissed as untimely, given that it was filed outside of the time periods prescribed in § 52-470 (d), and scheduled a hearing for May 1, 2018 (show cause hearing).

Prior to the show cause hearing, the petitioner submitted a "motion to find good cause and allow the case to proceed to trial." Therein, the petitioner asserted that his counsel for the third habeas action had advised him that "an important witness may not attend the trial," that "without his testimony the petitioner was unlikely to prevail," and that "he could withdraw his habeas petition and then refile, providing him with additional time to locate the witness." The petitioner further noted that his counsel had not sought a continuance or any other means of addressing the issue of the witness’ unavailability prior to suggesting withdrawal. Finally, the petitioner asserted that his counsel never explained § 52-470 (d) or its impact on his ability to file future habeas petitions.

The petitioner testified at the show cause hearing, and no other evidence was presented. When asked, the petitioner agreed that his prior habeas counsel advised him to withdraw his third petition because a particular witness, who the petitioner's counsel described as "a key witness to one of [the habeas] claims," might not have been able to attend the trial on the third petition. The petitioner testified that his counsel informed him that he had lost contact with the witness and felt that withdrawing the petition and refiling would be in the petitioner's best interest.⁴ The petitioner further testified that this discussion occurred during a meeting that lasted approximately five to ten minutes and that his counsel never discussed § 52-470 (d) or its effect on the petitioner's ability to file another petition attacking his conviction. The petitioner also testified that his counsel took no other action to address the witness’ unavailability. Finally, he testified that, if he had known that withdrawing the third petition and refiling would result in an untimely petition, he would not have withdrawn his third petition.

Thereafter, each side presented arguments on the issue of good cause for the delay. The petitioner's counsel argued that the delay resulted from prior habeas counsel's "ineffectiveness"⁵ and that such ineffective assistance satisfied § 52-470 (e), specifically citing the witness’ alleged unavailability as the basis for the suggestion that the petitioner withdraw the third petition. Counsel for the respondent argued that the claim regarding the "missing" witness was meritless and that attorney error could not be the basis of good cause.

The day after the show cause hearing, the court issued a memorandum of decision dismissing the petitioner's fourth petition. The court first determined that the fourth petition was presumptively untimely pursuant to § 52-470 (d).⁶ The court then set forth the relevant facts as follows: "The 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 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 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."

The court then determined that the petitioner had failed to establish good cause for the delay in filing, "reject[ing] poor legal advice as a basis for rebutting the presumption of undue delay."⁷ In so doing, the court specifically cited the principle that "[g]ood cause must be external to the defense ...." See Jackson v. Commissioner of Correction , 227 Conn. 124, 137, 629 A.2d 413 (1993). Thereafter, the petitioner filed a petition for certification to appeal, which the court granted, and this appeal followed.⁸

Following oral argument, this court ordered, sua sponte, that this appeal be stayed pending the release of our Supreme Court's decision in Kelsey v. Commissioner of Correction , 343 Conn. 424, 274 A.3d 85 (2022).⁹ Following the release of our Supreme Court's decision in Kelsey , the parties were ordered to file supplemental briefs addressing Kelsey ’s impact on this appeal.

We begin our analysis by setting forth the applicable standard of review. "[A] habeas court's determination regarding good cause under § 52-470 (e) is reviewed on appeal only for abuse of discretion. Thus, [w]e will make every reasonable presumption in favor of upholding the trial court's ruling[s] .... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court ... reasonably [could have] conclude[d] as it did."¹⁰ (Internal quotation marks omitted.) Id., at 440, 274 A.3d 85.

Section 52-470 (d) provides in relevant part: "In the case of a petition filed subsequent to a judgment on a prior petition challenging the same conviction, there shall be a rebuttable presumption that the filing of the subsequent petition has been delayed without good cause if such petition is filed after ... October 1, 2014 ...." Section 52-470 (e) provides in relevant part that, "[i]f ... the court finds that the petitioner has not demonstrated good cause for the delay, the court shall dismiss the petition. ..."

"[T]o rebut successfully the presumption of unreasonable delay in § 52-470, a petitioner generally will be required to demonstrate that something outside of the control of the petitioner or habeas counsel caused or contributed to the delay."¹¹ (Internal quotation marks omitted.) Kelsey v. Commissioner of Correction , supra, 343 Conn. at 441–42, 274 A.3d 85. The following nonexhaustive list of factors aid in determining whether a petitioner has satisfied the definition of good cause: "(1) whether external forces outside the control of the petitioner had any bearing on the delay; (2) whether and to what extent the petitioner or his counsel bears any personal responsibility for any excuse proffered for the untimely filing; (3) whether the reasons proffered by the petitioner in support of a finding of good cause are credible and...