Rose v. Comm'r of Corr.

202 Conn.App. 436

245 A.3d 917

Steven W. ROSE

v.COMMISSIONER OF CORRECTION

AC 42705

Appellate Court of Connecticut.

Argued November 9, 2020

officially released January 26, 2021

Vishal K. Garg, West Hartford, 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 B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).

Cradle, Alexander and Harper, Js.

Opinion

ALEXANDER, J.

The petitioner, Steven W. Rose, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus as untimely under General Statutes § 52-470 (e). On appeal, the petitioner claims that the habeas court improperly determined that he had not established good cause for the filing of his otherwise untimely petition and, therefore, erred in rendering judgment of dismissal. We disagree and, accordingly, affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our discussion. In State v. Rose , 132 Conn. App. 563, 565–66, 33 A.3d 765 (2011), cert. denied, 303 Conn. 934, 36 A.3d 692 (2012), this court affirmed the petitioner's conviction of felony murder, attempt to commit robbery in the first degree and robbery in the first degree. The trial court imposed a total effective sentence of forty years of incarceration. Id. at 567, 33 A.3d 765. Our Supreme Court denied the petitioner's petition for certification to appeal on February 3, 2012. State v. Rose , 303 Conn. 934, 36 A.3d 692 (2012).

On February 13, 2018, the petitioner commenced the present habeas action. Approximately six months later, the respondent, the Commissioner of Correction, requested that the habeas court order the petitioner to show cause as to why his petition should not be dismissed as untimely pursuant to § 52-470 (c) and (e).¹

Specifically, the respondent claimed that the petitioner's habeas petition was untimely because it was not filed by October 1, 2017. The court held a hearing on the respondent's request on November 16, 2018.

On January 25, 2019, the habeas court, Newson, J ., issued a memorandum of decision dismissing the habeas petition. The court concluded that the petition had been filed beyond the presumptive statutory deadlines and that the petitioner had failed to show good cause for the delay in refiling. The habeas court subsequently granted the petitioner's petition for certification to appeal, and this appeal followed.

On appeal, the petitioner does not dispute that his petition for a writ of habeas corpus was presumptively untimely.² Instead, he contends that the court improperly determined that he failed to show good cause for the delay in filing the petition. As noted in the habeas court's memorandum of decision, the petitioner filed a petition for a writ of habeas corpus in 2012 and was represented by Attorney Anthony Wallace. The petitioner withdrew that action on December 5, 2016. The withdrawal, which occurred on the date that the trial of the 2012 habeas petition was to commence, stemmed from the petitioner's desire to obtain different counsel.³

On appeal, the petitioner argues that Wallace advised him only that the 2016 withdrawal lead to the appointment of new counsel but failed to inform him of the need to refile the habeas petition. The petitioner contends in his appellate brief that he "has shown good cause in two different ways. First, the circumstances surrounding the withdrawal caused the petitioner to reasonably believe that his 2012 habeas corpus case was still ongoing and that new counsel would be appointed. Second, [Wallace] failed to inform him of the time constraints that could preclude him from pursuing a habeas corpus proceeding at the time the petitioner withdrew his petition." The petitioner also claims that Wallace provided ineffective assistance because he failed to inform the petitioner of the time constraints of § 52-470. As a result, the petitioner maintains, he established good cause, and, therefore, the court erred in dismissing the present habeas petition. We are not persuaded.

We begin with our standard of review. The petitioner contends that the plenary standard of review should be utilized in this case. The respondent disagrees and counters that the abuse of discretion standard should be used. Guided by a recent decision from this court, we conclude that the abuse of discretion standard applies in this appeal.

In Kelsey v. Commissioner of Correction , 202 Conn. App. 21, 35, 244 A.3d 171 (2020), the parties disputed the appropriate appellate standard of review that applies when a challenge is made to a trial court's dismissal of a habeas petition for lack of good cause pursuant to § 52-470. This court engaged in an extensive analysis of § 52-470 and consideration of the appropriate appellate standard of review. See id. at 28–31, 244 A.3d 171. Ultimately, it concluded that "a habeas court's determination of whether a petitioner has satisfied the good cause standard in a particular case requires a weighing of the various facts and circumstances offered to justify the delay, including an evaluation of the credibility of any witness testimony. As such, the determination invokes the discretion of the habeas court and is reversible only for an abuse of that discretion." Id. at 35–36, 244 A.3d 171. The court also observed that any factual findings made by the habeas court are subject to the clearly erroneous standard of review. Id. at 36 n.12, 244 A.3d 171. Accordingly, we employ the abuse of discretion standard when considering the habeas court's determination regarding good cause pursuant to § 52-470, and apply the clearly erroneous standard to any subordinate factual findings on which the court relied when exercising its discretion.

In the present case, the habeas court determined that, after the December 5, 2016 withdrawal, the petitioner could have refiled his petition within the time frame permitted under § 52-470. The court also found that Wallace had advised the petitioner in 2016 that he "could withdraw [the 2012 habeas petition] but [to] do it now and they'll assign you another lawyer." (Emphasis omitted; internal quotation marks omitted.) The court explained further that the petitioner waited for more than one year from the date of the withdrawal to refile his habeas petition.

On appeal, the petitioner claims that Wallace failed to inform him of the need to refile his habeas petition following the December 5, 2016 withdrawal. He contends that this failure, coupled with the court's statements at the December 5, 2016 proceeding,⁴ resulted in his mistaken belief that his 2012 habeas action remained active. The petitioner argues that these facts constitute "good cause" for the purpose of § 52-470. The petitioner further claims that Wallace provided ineffective assistance by failing to advise him "about the time constraints governing habeas corpus petitions." Underlying each of these arguments, however, is the petitioner's claim that the court's findings were clearly erroneous as they relate to the advice Wallace provided to the petitioner at the time of the December 5, 2016 withdrawal, namely, the need to refile the habeas petition and the relevant time limits as they related to refiling the habeas petition.

As we noted in Kelsey v. Commissioner of Correction , supra, 202 Conn. App. 21, 244 A.3d 171, "[t]o 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.) Id. at 36 n.12, 244 A.3d 171 ; see also Ervin v. Commissioner of Correction , 195 Conn. App. 663, 672–73, 226 A.3d 708, cert. denied, 335 Conn. 905, 225 A.3d 1225 (2020). "[A] finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... A reviewing court ordinarily will afford deference to those credibility determinations made by the habeas court on the basis of [the] firsthand observation of [a witness’] conduct, demeanor and attitude." (Internal quotation marks omitted.)

Budziszewski v. Connecticut Judicial Branch , 199 Conn. App. 518, 523, 237 A.3d 792, cert. denied, 335 Conn. 965, 240 A.3d 283 (2020) ; see also Davis v. Commissioner of Correction , 198 Conn. App. 345, 352, 233 A.3d 1106 (habeas judge, as trier of fact, is sole arbiter of credibility of witnesses and weight to be given to their testimony), cert. denied, 335 Conn. 948, 238 A.3d 18 (2020).

At the November 16, 2018 good cause hearing, Wallace testified, and a copy of the transcript from the December 5, 2016 proceeding was admitted into evidence. During Wallace's testimony, he stated that, prior to December 5, 2016, he advised the petitioner to refile his habeas petition. Although he did not provide the petitioner with a specific time frame, Wallace informed the petitioner to "just refile it, and they'll give you another lawyer and they can take another look at it." On redirect examination, Wallace stated that he affirmatively advised the petitioner, near the time of the December 5, 2016 withdrawal, of the need to refile a new habeas petition to be appointed new counsel. Additionally, as reflected in the transcript admitted into evidence, Wallace represented to the court during the December 5, 2016 hearing that, in either November or December, 2016, he advised the petitioner to execute the withdrawal of the habeas action "now ...." On the basis of this evidence and our deferential standard of review, we cannot conclude that the habeas court's findings regarding the advice given to the petitioner regarding the need to refile his habeas petition at the time he withdrew the prior habeas action were clearly erroneous.

The remaining question,...