Ortiz v. Comm'r of Corr.

211 Conn.App. 378

272 A.3d 692

Eduardo ORTIZ, Jr.

v.COMMISSIONER OF CORRECTION

AC 44047

Appellate Court of Connecticut.

Argued October 5, 2021

Officially released March 22, 2022

Naomi T. Fetterman, assigned counsel, with whom, on the brief, was David J. Reich, for the appellant (petitioner).

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

Elgo, Suarez and Vertefeuille, Js.

SUAREZ, J.

Following the denial of his petition for certification to appeal, the petitioner, Eduardo Ortiz, Jr., appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying his petition for certification to appeal and erred in its determination that he failed to demonstrate good cause for the untimely filing of his petition for a writ of habeas corpus under General Statutes § 52-470 (e). Our examination of the record and briefs and consideration of the oral arguments of the parties persuades us that the habeas court acted properly and, therefore, the appeal should be dismissed.

The following procedural history is relevant to our analysis. On May 31, 2012, before the trial court, Damiani, J ., the petitioner pleaded guilty to murder in violation of General Statutes § 53a-54a. On July 27, 2012, the trial court, Prescott, J ., sentenced the petitioner to serve thirty-eight years of incarceration. The petitioner did not bring a direct appeal. On September 4, 2018, the petitioner, for the first time, filed a petition for a writ of habeas corpus related to the conviction in which he alleged that the public defender who represented him during the criminal proceedings, Tashaun Lewis, had not rendered effective assistance in that she failed to adequately investigate matters concerning the case. The petitioner filed the petition in a self-represented capacity.

On October 9, 2019, the respondent, the Commissioner of Correction, filed a request for order to show cause for the petitioner's delay in filing the habeas petition. Specifically, the respondent argued that, pursuant to § 52-470 (c),¹ a rebuttable presumption arose that the habeas petition challenging the conviction had been delayed without good cause because it was filed more than six years after the judgment of conviction became final and after October 1, 2017. The respondent, therefore, sought an order, pursuant to § 52-470 (e),² to show cause why the untimely petition should be permitted to proceed.

On November 8, 2019, the habeas court, Chaplin, J ., held a hearing on the respondent's request. At the hearing, the petitioner, then represented by counsel, attempted to demonstrate good cause for the untimely filing. Specifically, the petitioner sought to prove that he filed the habeas petition late because of his "mental health issues and his cognitive disabilities ...." The petitioner relied exclusively on health and educational records that were dated between 2005 and 2011, and which were admitted as a sealed exhibit.³ Relying on these records, the petitioner's attorney argued that it would be unfair to hold the petitioner to the statutory filing deadlines in this action.

Counsel for the respondent replied that the petitioner's health and educational records, which she had reviewed, were generated many years prior to the hearing and, more importantly, they did not specifically address the issue of whether any mental health issue affected the petitioner's ability "to comply with the rules [related to filing a habeas petition in a timely manner]." Counsel for the respondent argued that, in the absence of additional evidence, the petitioner had not demonstrated that a mental health issue led to an inability to file his petition in a timely manner.

The petitioner's counsel, acknowledging that he had not provided the court with recent assessments of the petitioner's mental condition, nonetheless argued that the records revealed deficiencies that began early in the petitioner's life, stated that he had provided the court with "the full mental health history" of the petitioner, and reasoned that "it's not like he's gotten better, if anything he's deteriorated."

On January 28, 2020, the court dismissed the habeas petition. In its memorandum of decision, the court discussed the relevant procedural history and legal principles that applied to the issue before it. The court then stated: "Based on the information before the court, the court finds that the petition was filed more than six years after the petitioner's guilty plea was deemed to be a final judgment due to the expiration of the time period allowed for appeal. Upon review of the medical and educational records ... the court finds that the mental health and education records address the petitioner's mental health condition at various points between 2005 and 2011. The court finds the petitioner's mental health and educational records unpersuasive as to the petitioner's contention that his mental health deficiencies constitute good cause for filing an untimely [habeas] petition. The records ... do not support the proposition that the petitioner labored under such significant mental health deficiencies that prevented him from filing the petition within the five years allowed by statute, or prior to October 1, 2017.... Therefore, the court finds that the petitioner has failed to show good cause for filing the current petition more than six years after the guilty plea became a final judgment, or after October 1, 2017." (Citation omitted; footnote omitted.)

On appeal, the petitioner essentially argues that the court abused its discretion in denying the petition for certification to appeal because he successfully demonstrated at the hearing that good cause existed for the late filing of the habeas petition. The petitioner argues that the evidence he presented to the court demonstrated that he suffers from lifelong mental health issues that impaired his ability to file a habeas petition in a timely manner. The petitioner argues that he "has an extremely low IQ and would be unable to organize himself in order to prepare and present a habeas petition to the court. [The petitioner] has never advanced past the second grade regarding his reading and writing [skills]. Due to the fact that he cannot read or write well, he would have difficulty getting along without help from people who can help him prepare and present a habeas petition in a timely manner." The petitioner extrapolates from the evidence that "[t]his is not a case where [he] is not keeping his eye on the time to file the petition. [The petitioner] was not able to file the habeas petition on time." The petitioner appears to argue that the court did not appropriately gauge the severity of his mental health issues and their detrimental effect on his ability to file a habeas petition in a timely manner.

The respondent argues that "[t]he petitioner cannot demonstrate an abuse of discretion [in denying the petition for certification to appeal] because the [habeas] court's finding that [the petitioner] failed to demonstrate ‘good cause’ under the statute was based entirely on a rejection of the petitioner's evidence, which served as the sole factual basis for his claim of good cause. Thus, the petitioner lacks any credible facts to support a claim of ‘good cause’ and, necessarily, he did not carry his burden of satisfying that standard." On the basis of its findings, the court dismissed the petition and subsequently denied the petition for certification to appeal.

Although they are in agreement with respect to the standard of review that applies to the court's denial of the petition for certification to appeal, the parties have presented this court with diverging legal arguments concerning the standard of review that applies to the subordinate issue of whether the court properly determined that good cause was not shown for the late petition. The respondent urges us to apply the abuse of discretion standard, and the petitioner urges us to apply the plenary standard of review.

"Our Supreme Court has made clear that an appellate court need not reach the merits of a habeas appeal following a denial of certification unless the petitioner can demonstrate that the habeas court abused its discretion in doing so. Simms v. Warden , 229 Conn. 178, 187, 640 A.2d 601 (1994). In determining whether a habeas court abused its discretion in denying certification to appeal, the petitioner must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ...

"In ascertaining whether the habeas court abused its discretion in a denial of certification case, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... for determining the propriety of the habeas court's denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed." (Citation omitted; internal quotation marks omitted.) Ricardo R. v. Commissioner of Correction , 185 Conn. App. 787, 794, 198 A.3d 630 (2018), cert. denied, 330 Conn. 959, 199 A.3d 560 (2019).

"[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 ." (Emphasis added.) Kelsey v. Commissioner of Correction , 202 Conn. App. 21, 34, 244 A.3d 171 (2020), cert. granted, 336...