Rice v. Comm'r of Corr.

204 Conn.App. 513

251 A.3d 1009

Jerome RICE

v.COMMISSIONER OF CORRECTION

AC 42970

Appellate Court of Connecticut.

Argued November 19, 2020

Officially released May 11, 2021

Naomi T. Fetterman, 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).

Bright, C. J., and Elgo and Cradle, Js.

Opinion

CRADLE, J.

The petitioner, Jerome Rice, appeals from the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus as untimely under General Statutes § 52-470 (d) and (e).¹ On appeal, the petitioner claims that the habeas court improperly determined that, pursuant to § 52-470 (e), the petitioner had not established good cause to overcome the presumption of unreasonable delay for the filing of his untimely habeas petition. We disagree and accordingly dismiss the appeal.²

The following facts and procedural history, as set forth by the habeas court, are relevant to the petitioner's claim on appeal. "The petitioner was [found guilty] by a jury of murder in violation of General Statutes § 53a-54a .... On February 15, 2006, the [trial] court imposed a sentence of fifty-three years [of] incarceration. He appealed, and [this court] affirmed his conviction and our Supreme Court denied certification to appeal on February 14, 2008. State v. Rice , 105 Conn. App. 103, 936 A.2d 694 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1101 (2008).

"[The petitioner] initiated his first petition for writ of habeas corpus ... on July 6, 2007. This [petition] was withdrawn on July 20, 2010. A second habeas petition ... was filed on August 6, 2010. The matter was tried to the [habeas] court, and the petition was denied on June 26, 2013. The petitioner appealed, and [this court] dismissed the appeal ... [and] [o]ur Supreme Court denied certification to appeal on January 14, 2015. Rice v. Commissioner of Correction , 154 Conn. App. 901, 103 A.3d 1006 (2014), cert. denied, 315 Conn. 915, 106 A.3d 307 (2015). He then filed the instant petition on March 15, 2018."

On February 8, 2019, the habeas court, at the request of the respondent, the Commissioner of Correction, issued an order to show cause why the petition should not be dismissed as untimely pursuant to § 52-470 (d) (1) on the ground that it was not filed within two years of the conclusion of appellate review of the judgment on the prior petition, which became final on January 14, 2015. On March 27, 2019, the court held an evidentiary hearing at which the petitioner testified. The petitioner argued that "good cause exists because he was never informed by his prior attorneys of the existence of statutory time constraints that would prohibit him from getting review of his claims and, had he known of the expiration of the time period, he would have timely filed the petition. He testified that he was preparing to file a federal habeas corpus petition when he became aware that he might need to raise some claims in state court in order to exhaust his remedies before seeking relief in federal court."

In a memorandum of decision dated April 3, 2019, the habeas court, Bhatt , J., dismissed the habeas petition as untimely under § 52-470 (d), concluding that the petitioner failed to establish good cause for the delay. The court determined that there was no evidence corroborating the petitioner's testimony that prior habeas and appellate counsel did not advise him of the time constraints or that he had taken substantial steps to pursue a federal habeas petition. Because the court was "not persuaded by the testimony of the petitioner that he was unaware of the time constraints within which to refile his petition, was not informed of the same by prior habeas counsel and has acted with reasonable diligence in pursuing his legal rights," the court dismissed the petition.. The court thereafter denied the petition for certification to appeal, and this appeal followed.

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion. ... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. ... To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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 determining whether the habeas court abused its discretion in denying the petitioner's request for certification, 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." (Internal quotation marks omitted.) Haywood v. Commissioner of Correction , 194 Conn. App. 757, 763–64, 222 A.3d 545 (2019), cert. denied, 335 Conn. 914, 229 A.3d 729 (2020).

"The conclusions reached by the [habeas] court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. ... [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction , 285 Conn. 556, 566, 941 A.2d 248 (2008). "To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous ...." (Internal quotation marks omitted.) Grant v. Commissioner of Correction , 121 Conn. App. 295, 298, 995 A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).

The petitioner asserts that the habeas court erred by rejecting his claim that his ignorance of the time constraints set forth in § 52-470 (d) constituted good cause for the delay in the filing of his habeas petition. In particular, he argues that his testimony that he was unaware of the statutory deadlines overcomes the rebuttable presumption of unreasonable delay.³

Even if an assertion of ignorance of the statutory deadlines was sufficient to satisfy the burden of showing good cause, the habeas court found that the petitioner's testimony that he was unaware of the deadlines was not credible . "[T]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony ...." (Internal quotation marks omitted.) Breton v. Commissioner of Correction , 325 Conn. 640, 694, 159 A.3d 1112 (2017). It is not within the purview of this court to second-guess the habeas court's credibility determinations. Accordingly, there is no basis for us to conclude that the habeas court abused its discretion when it denied the petition for certification to appeal.⁴

The appeal is dismissed.

In this opinion the other judges concurred.

1 General Statutes § 52-470 provides in relevant part: "(a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments in the case, and shall inquire fully into the cause of imprisonment and thereupon dispose of the case as law and justice require. ...

"(d) 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 the later of the following: (1) Two years after the date on which the judgment in the prior petition is deemed to be a final judgment due to the conclusion of appellate review or the expiration of the time for seeking such review; (2) October 1, 2014; or (3) two years after the date on which the constitutional or statutory right asserted in the petition was initially recognized and made retroactive pursuant to a decision of the Supreme Court or Appellate Court of this state or the Supreme Court of the United States or by the enactment of any public or special act. For the purposes of this section, the withdrawal of a prior petition challenging the same conviction shall not constitute a judgment. The time periods set forth in this subsection...