Jaynes v. Comm'r of Corr.

216 Conn.App. 412

285 A.3d 412

Douglas JAYNES

v.COMMISSIONER OF CORRECTION

AC 44620

Appellate Court of Connecticut.

Argued May 9, 2022

Officially released November 8, 2022

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

Brett R. Aiello, deputy assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Craig Nowak, senior assistant state's attorney, for the appellee (respondent).

Elgo, Suarez and DiPentima, Js.

SUAREZ, J.

The petitioner, Douglas Jaynes, appeals, following the granting of his petition for certification, from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner claims that the habeas court erred in dismissing the petition pursuant to General Statutes § 52-470 (e) because (1) it includes an allegation of actual innocence which, pursuant to § 52-470 (f), cannot be dismissed for failure to meet the statutory time limit codified in § 52-470 (d), and (2) he demonstrated good cause for the untimely filing of his petition under § 52-470 (d).¹ We affirm the judgment of the habeas court.

The following facts and procedural history, as found by the habeas court or otherwise undisputed in the record, are relevant to the present appeal. On July 6, 1992, the petitioner was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a (a)² and sentenced to fifty-five years of incarceration. This court affirmed the petitioner's conviction on his direct appeal. State v. Jaynes , 36 Conn. App. 417, 432, 650 A.2d 1261 (1994), cert. denied, 233 Conn. 908, 658 A.2d 980 (1995).

Thereafter, the petitioner filed his first habeas petition, which was denied. Subsequently, the petitioner's uncertified appeal to this court was dismissed, and our Supreme Court denied the petitioner's petition for certification to appeal from this court's dismissal. Jaynes v. Commissioner of Correction , 61 Conn. App. 404, 406, 764 A.2d 215, cert. denied, 255 Conn. 945, 769 A.2d 58 (2001). The parties agree that the petitioner filed numerous additional habeas petitions that were either withdrawn or dismissed. On August 7, 2019, as a self-represented party, the petitioner filed the habeas petition at issue in this appeal.

On September 28, 2020, the respondent, the Commissioner of Correction, filed a motion pursuant to § 52-470 (d) for an order to show cause as to why the petitioner's habeas petition should not be dismissed as a result of undue delay. Specifically, the respondent asserts that, pursuant to § 52-470 (d), the petitioner had until October 1, 2014, to file a habeas petition subsequent to a judgment rendered on a prior petition challenging the same conviction, and, therefore, the habeas petition had to be dismissed unless the petitioner could demonstrate good cause for the delay. On October 22, 2020, the habeas court, Oliver, J ., granted the motion for a show cause hearing. On February 4, 2021, the habeas court held a hearing on the respondent's motion. At the hearing, the petitioner did not dispute that his habeas petition was untimely. Instead, he sought to show that there was good cause for the delay in filing the petition because he suffered from a mental illness that impaired his ability to file a habeas petition in a timely manner. At the hearing, the petitioner testified that he had been diagnosed as "paranoid schizophrenic" and had been prescribed antidepressants. He claimed that his mental illness left him "very confused and mixed up about a lot of things ...." On cross-examination, however, the petitioner admitted that his mental illness did not prevent him from filing habeas petitions. Rather, he claimed that his mental illness was "[s]ometimes" the reason for withdrawing his prior petitions, but other times it was due to his frustration with the legal system.

Following the hearing, in a memorandum of decision, the habeas court dismissed the habeas petition for the petitioner's failure to demonstrate good cause to overcome the statutory presumption of unreasonable delay as established in § 52-470 (d) and (e). The habeas court specifically stated that it took judicial notice of the previous habeas filings and their dispositions, considered the evidence adduced at trial, and applied the factors set forth in Kelsey v. Commissioner of Correction , 202 Conn. App. 21, 34–35, 244 A.3d 171 (2020), aff'd, 343 Conn. 424, 274 A.3d 85 (2022). The habeas court found that the testimony of the petitioner was not credible. Additionally, the habeas court found that the petitioner's testimony regarding his mental illness "consisted of bare assertions." Ultimately, the habeas court found that the petitioner's "assertions, without more, rendered the petitioner's evidence too loose and equivocal to overcome the aforementioned statutory presumption." Thereafter, the petitioner sought certification to appeal, which the habeas court granted. This appeal followed. Additional facts will be set forth as necessary.

I

The petitioner asserts, for the first time on appeal, that the habeas court erred in dismissing his habeas petition because it includes a claim of actual innocence, which, pursuant to § 52-470 (f), cannot be dismissed for failure to meet the statutory deadline of § 52-470 (d). In response, the respondent avers that "the petitioner never asserted a claim of actual innocence in his petition nor did he do so at the ‘show cause’ hearing." Therefore, according to the respondent, "the habeas court could not have abused its discretion with respect to a claim that the petitioner never raised below." We agree with the respondent.

Our review of the habeas petition reveals, and the petitioner does not appear to dispute, that in the petition filed by the petitioner as a self-represented party, he did not use the phrase "actual innocence." In the space provided for question five on the state supplied form for bringing the habeas petition, which was utilized by the petitioner in this case, the petitioner was asked to set forth the reason why his conviction was illegal. The petitioner wrote that "the arrest was unsupervised by [the police]," he had an impaired mental state at the time of trial, and he "was never given the chance at [his] probable cause hearing to do questioning."³

The petitioner argues that it was unnecessary for him to have used the phrase "actual innocence" in his habeas petition, and that the habeas court should have recognized a claim of actual innocence based on statements in the habeas petition such as "I did not murder the male" and "life is priceless." The petitioner further alleged that he did not own the clothes a witness claimed the assailant was wearing, and that he was "in a[n] after-hours place drinking around the time of the incident." The petitioner asserts that it is well established that courts should not interpret habeas petitions in a hypertechnical manner but should, instead, construe pleadings broadly, and that "Connecticut courts [are] to be solicitous of [self-represented] litigants ... when it does not interfere with the rights of other parties." (Internal quotation marks omitted.)

The respondent argues that the present claim is unreviewable because it was raised for the first time on appeal and, therefore, the habeas court could not have abused its discretion. In the alternative, the respondent argues that, even if the petitioner relied on the existence of an actual innocence claim at the show cause hearing, the habeas petition does not contain such a claim. The petitioner does not address the respondent's arguments with any authority, nor are we aware of any, that abrogates his obligation to preserve this claim for appellate review by distinctly raising it before the habeas court.

We carefully have reviewed the transcripts of the show cause hearing. At the hearing, the petitioner, then represented by counsel, did not argue that the habeas petition should not be dismissed because it included a claim of actual innocence. Because the petitioner did not assert an actual innocence claim at the show cause hearing, the court did not address it. Instead, in its order, the court addressed the reason for the delay on which the petitioner expressly relied, namely, his mental illness.

"Our law is well settled that a party may not try its case on one theory and appeal on another. ... Arguments asserted in support of a claim for the first time on appeal are not preserved. ... Our Supreme Court has stated that shift[s] in arguments [on appeal are] troubling because, as [the court] previously ha[s] noted, to review ... claim[s] ... articulated for the first time on appeal and not [raised] before the trial court, would [be nothing more than] a trial by ambuscade of the trial judge." (Citations omitted; internal quotation marks omitted.) Bharrat v. Commissioner of Correction , 167 Conn. App. 158, 181–82, 143 A.3d 1106, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016) ; see also Bligh v. Travelers Home & Marine Ins. Co. , 154 Conn. App. 564, 577, 109 A.3d 481 (2015) ("[o]rdinarily appellate review is not available to a party who follows one strategic path at trial and another on appeal, when the original strategy does not produce the desired result" (internal quotation marks omitted)).

We are persuaded that the petitioner's claim, which relies on an allegation of actual innocence, plainly reflects a strategic shift by the petitioner to raise a new argument on appeal. It would amount to nothing more than an ambuscade of the habeas court for us to consider this newly raised argument that was neither raised by the petitioner nor considered by the court at the time that the petitioner attempted to demonstrate that the petition should not be dismissed as untimely. Accordingly, we decline to reach the merits of this claim.

II

The petitioner next claims that the habeas court erred in dismissing the habeas petition because he demonstrated good cause for the untimely filing of his petition under § 52-470 (e)....