Rose v. Comm'r of Corr.

348 Conn. 333

304 A.3d 431

Steven W. ROSE v. COMMISSIONER OF CORRECTION

SC 20558

Supreme Court of Connecticut.

Argued September 7, 2023

Officially Released December 12, 2023

Vishal K. Garg, assigned counsel, for the appellant (petitioner).

Melissa L. Streeto, 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).

Robinson, C. J., and McDonald, D'Auria, Ecker and Bright, Js.

ECKER, J.

Our recent decision in Kelsey v. Commissioner of Correction , 343 Conn. 424, 431–40, 274 A.3d 85 (2022), articulated the legal framework governing a habeas court's determination of whether there is good cause to excuse the untimely filing of a petition for a writ of habeas corpus under General Statutes § 52-470. This certified appeal requires us to examine the proper application of that framework to the claim of the petitioner, Steven W. Rose, that good cause excused the delayed filing of his habeas petition because his former attorney, Anthony A. Wallace, had advised him to withdraw a prior timely filed habeas petition but had failed to advise him of the need to refile a new petition within the time constraints imposed by § 52-470 (c). The habeas court rejected the petitioner's claim and dismissed his petition as untimely on the ground that Attorney Wallace had advised the petitioner to " ‘withdraw but [ to ] do it now ,’ " and the petitioner had failed to offer a "reason, impediment, or excuse" for the delayed filing of a subsequent petition. (Emphasis in original.) The Appellate Court affirmed the judgment of the habeas court. Rose v. Commissioner of Correction , 202 Conn. App. 436, 438, 445, 245 A.3d 917 (2021).

On appeal to this court, the petitioner claims that the habeas court's dismissal was improper because (1) Attorney Wallace rendered ineffective assistance of counsel, and (2) the habeas court's good cause determination was premised on its clearly erroneous factual finding that Attorney Wallace had advised the petitioner to refile his habeas petition " ‘ now ,’ " even though the uncontradicted evidence presented at the good cause hearing established that Attorney Wallace never advised the petitioner of the need to refile his petition with any immediacy. (Emphasis in original.) We agree with the petitioner's second claim and, therefore, reverse the judgment of the Appellate Court and direct that court to remand the case to the habeas court for further proceedings.

The following facts and procedural history are relevant to this appeal. In connection with a 2007 murder and robbery, the petitioner was convicted of felony murder and robbery in the first degree and sentenced to forty years of incarceration. ¹ See State v. Rose , 132 Conn. App. 563, 565–67, 33 A.3d 765 (2011), cert. denied, 303 Conn. 934, 36 A.3d 692 (2012). The Appellate Court affirmed the petitioner's conviction; id., at 566, 582, 33 A.3d 765 ; and this court denied the petitioner's petition for certification to appeal on February 3, 2012. See State v. Rose , 303 Conn. 934, 36 A.3d 692 (2012). The petitioner's conviction became final ninety days later, after the expiration of the time for filing a petition for a writ of certiorari to the United States Supreme Court. See General Statutes § 52-470 (c) (judgment is final after "the conclusion of appellate review or the expiration of the time for seeking such review" ); see also Casiano v. Commissioner of Correction , 317 Conn. 52, 56 n.2, 115 A.3d 1031 (2015) (criminal convictions become final "when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied" (internal quotation marks omitted)), cert. denied sub nom. Semple v. Casiano , 577 U.S. 1202, 136 S. Ct. 1364, 194 L. Ed. 2d 376 (2016).

The petitioner timely filed his first petition for a writ of habeas corpus in 2012, shortly after his conviction became final. Attorney Wallace was appointed to represent him in that proceeding. Dissatisfied with Attorney Wallace's legal representation, the petitioner filed a motion seeking Attorney Wallace's removal and the appointment of new counsel. The habeas court denied that motion. The petitioner continued to express dissatisfaction with Attorney Wallace's performance, although he filed no similar motions thereafter. One month prior to the scheduled habeas trial, in November, 2016, Attorney Wallace filed a motion to continue the trial to investigate new information, but the court denied that motion, as well.

On December 5, 2016, the date on which the trial on his first habeas petition was scheduled to commence, the petitioner informed the habeas court that he did not want to proceed to trial with Attorney Wallace as his appointed counsel. The petitioner stated that Attorney Wallace had "only spent, like, maybe a[n] hour and a half [with him] over four years" and was "not advocating for [him]." The habeas court told the petitioner that the proper procedure was to file "motion[s] to dismiss and [to] replace counsel" or to proceed as a self-represented petitioner. The habeas court further stated that it would not dismiss the case without prejudice to refiling on the eve of trial because "the Office of the Chief Public Defender [would] assign the same attorney" again. Attorney Wallace then advised the habeas court that the Office of the Chief Public Defender would not reappoint him to represent the petitioner in a future proceeding but, instead, would appoint a different attorney. Attorney Wallace also informed the court that he previously had sent the petitioner a letter advising him that "he could withdraw but do it now, and they'll assign you another lawyer." At this point in the proceedings, the petitioner was handed a withdrawal form, which he promptly signed and completed in open court with the assistance of Attorney Wallace. The habeas court concluded the proceedings by dismissing the petitioner's habeas petition without prejudice to refiling.

Approximately fourteen months later, on February 13, 2018, the petitioner filed the present petition for a writ of habeas corpus, challenging his criminal conviction. The petition raises at least one of the same claims that the petitioner raised in the 2012 petition, which he had withdrawn without prejudice to refiling on December 5, 2016, on the advice of counsel. ² The respondent, the Commissioner of Correction, filed a request for an order to show cause why the petitioner's habeas petition should not be dismissed as untimely under § 52-470 (c) and (e) because it was filed after October 1, 2017, and more than five years after the petitioner's conviction became final. The habeas court conducted an evidentiary hearing on the respondent's motion for an order to show cause. See General Statutes § 52-470 (e). At the hearing, it was undisputed that the petitioner's habeas petition was not timely filed and that the withdrawal of the petitioner's prior habeas action did not toll the limitation period. See General Statutes § 52-470 (d). The sole disputed issue was whether there was good cause to excuse the untimely filing under § 52-470 (c) and (e).

The petitioner's counsel argued that good cause existed because the petitioner was under the misapprehension that his prior habeas action was still pending and that new counsel would be appointed. Counsel also argued that Attorney Wallace failed to inform the petitioner of the October 1, 2017 deadline to refile his habeas petition under § 52-470 (c). To support these arguments, the petitioner's counsel adduced the testimony of Attorney Wallace, who explained the advice he gave to the petitioner regarding the withdrawal and refiling of his habeas petition. Attorney Wallace testified that, "before the [habeas] trial—whenever that was ... I had either brought the withdrawal form with me or I sent it up to [the petitioner] ahead of time and said that you can just refile. I didn't give him any time parameters .... I didn't say you have to do it by, you know, one year, two years, nine years, whatever . I said just refile it, and they'll give you another lawyer, and they can take another look at it." (Emphasis added.)

Importantly for present purposes, the habeas court admitted into evidence as a full exhibit the transcript of the December 5, 2016 proceedings, at which the petitioner withdrew his previous petition without prejudice to refiling. It was from this transcript that the habeas court learned that, in November, 2016, Wallace had sent the petitioner a "letter saying when he could withdraw [his prior habeas petition] but do it now and they'll assign you another lawyer." ³ The petitioner testified, consistent with Attorney Wallace's testimony, that he was not informed of the date by which his habeas petition had to be refiled. Additionally, the petitioner informed the habeas court that he did not realize that he had to file a new habeas petition; he believed that his prior habeas petition was still pending and that a new attorney would be appointed to represent him.

The habeas court issued a written memorandum of decision, dismissing the petitioner's habeas petition as untimely. ⁴ The court concluded that Attorney Wallace's failure to advise the petitioner of the filing deadline in § 52-470 (c) prior to the withdrawal of his first habeas petition did not constitute good cause to excuse the late filing of the present action because "Attorney Wallace indicated [that] the letter or advice he had given to the petitioner was, ‘he could withdraw but do it now and they'll assign you another lawyer.’ ... The petitioner, however, did not refile until February 13, 2018, and has offered no reason, impediment, or excuse—no ‘good cause’—as to why, rather [than] contemporaneously refiling his petition, he waited for [more than] one year after the withdrawal." (...