Rosario v. Commissioner of Correction

Jerry ROSARIO (Inmate #276796) v. COMMISSIONER OF CORRECTION

No. CV184009686S

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

October 10, 2019

UNPUBLISHED OPINION

OPINION

Hon Courtney M. Chaplin, Judge

The petitioner, Jerry Rosario, filed this petition for a writ of habeas corpus on August 31, 2018, seeking relief for alleged ineffective assistance of trial counsel and prosecutorial misconduct. The respondent filed its request for an order to show cause on July 12, 2019. Pursuant to Kelsey v Commissioner of Correction, 329 Conn. 711, 189 A.3d 578 (2018), the court held an evidentiary hearing for this matter on September 20, 2019. The petitioner presented his testimony. Thereafter, the court heard argument on this matter.

The petitioner does not dispute that he was convicted and sentenced on October 19, 2004, and that his appeal concluded on March 6, 2007. State v. Rosario, 99 Conn.App. 92 912 A.2d 1064, cert. denied, 281 Conn. 925, 918 A.2d 276 (2007). In his brief, the petitioner indicated that he filed a petition (CV07-1001885S) on July 17, 2007, and later withdrew this petition on October 20, 2010; that he filed a second petition (CV11-4003957S) on January 24, 2011, and later withdrew the second petition on June 14, 2013; and that he filed a third petition (CV14-4006385S) on July 21, 2014 and later withdrew this third petition on March 20, 2017.^[1] The petitioner argues that he did not discuss with prior habeas counsel the time limitations set forth in General Statutes § 52-470, nor did he receive any documentation from prior habeas counsel related to § 52-470. The petitioner testified that his prior habeas attorney’s failure to discuss § 52-470 with him constitutes good cause to permit his current petition to proceed.

General Statutes § 52-470(c) provides as follows: "Except as provided in subsection (d) of this section, there shall be a rebuttable presumption that the filing of a petition challenging a judgment of conviction has been delayed without good cause if such petition is filed after the later of the following: (1) Five years after the date on which the judgment of conviction 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, 2017; 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. The time periods set forth in this subsection shall not be tolled during the pendency of any other petition challenging the same conviction."

General Statutes § 52-470(e) provides: "In a case in which the rebuttable presumption of delay under subsection (c) or (d) of this section applies, the court, upon the request of the respondent, shall issue an order to show cause why the petition should be permitted to proceed. The petitioner or, if applicable, the petitioner’s counsel, shall have a meaningful opportunity to investigate the basis for the delay and respond to the order. If, after such opportunity, the court finds that the petitioner has not demonstrated good cause for the delay, the court shall dismiss the petition. For the purposes of this subsection, good cause includes, but is not limited to, the discovery of new evidence which materially affects the merits of the case and which could not have been discovered by the exercise of due diligence in time to meet the requirements of subsection (c) or (d) of this section." Our Appellate Court has held that "good cause has been defined as a substantial reason amounting in law to a legal excuse for failing to perform an act required by law." (Citation omitted; internal quotation marks omitted.) Langston v. Commissioner of Correction, 185 Conn.App. 528, 532, 197 A.3d 1034, cert. granted, 330 Conn. 946, 196 A.3d 326 (2018).

Based on all of the information before the court, the court finds that the current petition was filed more than eleven years after the petitioner’s underlying conviction was deemed to be a...