Solek v. Comm'r of Corr.

203 Conn.App. 289

248 A.3d 69

Timothy SOLEK

v.COMMISSIONER OF CORRECTION

AC 43288

Appellate Court of Connecticut.

Argued January 4, 2021

Officially released March 16, 2021

Robert L. O'Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, for the appellant (petitioner).

Jonathan M. Sousa, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Emily Trudeau, assistant state's attorney, for the appellee (respondent).

Bright, C. J., and Moll and DiPentima, Js.

In this opinion the other judges concurred.

DiPENTIMA, J.

The petitioner, Timothy Solek, appeals from the judgment of the habeas court dismissing as untimely, pursuant to General Statutes § 52-470 (d) and (e), his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) improperly determined that he had not established good cause for the untimely filing sufficient to rebut the statutory presumption of unwarranted delay and (2) failed to provide him with a meaningful opportunity to investigate and to present evidence as to good cause for the delay in filing his petition. We dismiss the appeal.

The following facts and procedural history are relevant. In 1999, the petitioner was convicted, following a jury trial, of murder and sexual assault in the second degree. The petitioner was sentenced to a total effective term of fifty-five years of incarceration. His conviction was affirmed on direct appeal. See State v. Solek , 66 Conn. App. 72, 91, 783 A.2d 1123, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001). Thereafter, the petitioner filed his first habeas petition, alleging, inter alia, ineffective assistance of trial and appellate counsel. The habeas court, Hon. William L. Hadden, Jr. , judge trial referee, dismissed the petition, and this court affirmed that judgment on appeal. See Solek v. Commissioner of Correction , 107 Conn. App. 473, 488, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).

On June 21, 2018, the self-represented petitioner filed a second petition for a writ of habeas corpus, which is the subject of this appeal. In this petition, he alleged new claims of ineffective assistance of trial counsel. The respondent, the Commissioner of Correction, filed a motion for an order to show cause regarding whether the second petition should be dismissed as untimely pursuant to § 52-470 (d) and (e). Section 52-470 (d) provides in relevant part: "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 ... (2) October 1, 2014 ...."

At the hearing held on the respondent's motion to show cause, the petitioner, then represented by counsel, was the sole witness. He testified to his reasons for the delay, which included reliance on inaccurate advice of his habeas appellate counsel and the effect his mental health had on his ability to promptly file a second petition. In a memorandum of decision, the court found that the second habeas action was commenced after October 1, 2014, thereby triggering the statutory presumption of delay without good cause. It then concluded that the petitioner failed to demonstrate good cause to rebut the presumption of delay and dismissed the action. The petitioner filed a petition for certification to appeal, and the court denied the petition. This appeal followed.

I

The petitioner claims that the court erred in dismissing his petition for a writ of habeas corpus. Specifically, he argues that the court improperly concluded that no good cause existed to rebut the presumption of delay in the filing of his petition for a writ of habeas corpus. We decline to review this claim because the petitioner has not properly raised a threshold claim.

The following legal principles are relevant to our analysis. In order to obtain appellate review of the dismissal of his petition for a writ of habeas corpus when his petition for certification to appeal that dismissal was denied, the petitioner was required to satisfy the two part standard set forth by our Supreme Court in Simms v. Warden , 229 Conn. 178, 187, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). "Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion.... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits." (Citations omitted.) Simms v. Warden , supra, 230 Conn. at 612, 646 A.2d 126. "To prove 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." (Internal quotation marks omitted.)

Owens v. Commissioner of Correction , 63 Conn. App. 829, 831, 779 A.2d 165, cert. denied, 258 Conn. 905, 782 A.2d 138 (2001).

The respondent argues that the petitioner's claim is unreviewable because the petitioner failed to address in his main appellate brief the issue of whether the habeas court abused its discretion in denying certification to appeal. We agree.

In Goguen v. Commissioner of Correction , 195 Conn. App. 502, 504–505, 225 A.3d 977, cert. granted, 335 Conn. 925, 234 A.3d 980 (2020), this court declined to review the petitioner's claims seeking to reverse the judgment of the habeas court on the merits because the petitioner failed to satisfy the first prong of Simms v. Warden , supra, 229 Conn. at 187, 640 A.2d 601, as a result of having "failed to brief the threshold question of whether the habeas court abused its discretion in denying his petition for certification to appeal." In the present case, the petitioner did not raise the issue of the denial of the certification to appeal until his reply brief. A claim that the habeas court abused its discretion in denying certification to appeal when raised for the first time in a reply brief is unreviewable. "The appellate courts of this state have often held that an appellant may not raise an issue for the first time in a reply brief.... An appellant's claim must be framed in the original brief so that it can be responded to by the appellee in its brief, and so that we can have the full benefit of that written argument.... We decline to consider the argument concerning this matter in the petitioner's reply brief." (Citations omitted; internal quotation marks omitted.) Niblack v. Commissioner of Correction , 80 Conn. App. 292, 298, 834 A.2d 779 (2003), cert. denied, 267 Conn. 916, 841 A.2d 219 (2004) ; id. (declining to consider claim that habeas court abused its discretion in denying certification to appeal when raised for first time in reply brief); see also Thorpe v. Commissioner of Correction , 165 Conn. App. 731, 733, 140 A.3d 319 (petitioner cannot obtain appellate review of claim raised for first time in reply brief that habeas court abused its discretion in denying certification to appeal), cert. denied, 323 Conn. 903, 150 A.3d 681 (2016).

Furthermore, even if the petitioner properly had raised the threshold issue, we nonetheless would conclude that the petitioner failed to establish that the court abused its discretion in denying certification to appeal. The petitioner's underlying claim concerns the good cause standard enumerated in § 52-470. See Blake v. Commissioner of Correction , 150 Conn. App. 692, 695, 91 A.3d 535 (examination of underlying merits necessary when determining if habeas court abused discretion in denying certification to appeal), cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014). "[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." Kelsey v. Commissioner of Correction , 202 Conn. App. 21, 34, 244 A.3d 171 (2020), cert. granted, 336 Conn. 912, 244 A.3d 562 (2021). A decision of a habeas court regarding good cause under § 52-470 is reviewed for abuse of discretion. Id., at 38, 244 A.3d 171.

The court determined that the petitioner had not demonstrated good cause for the delay because, even if it found credible the petitioner's testimony that counsel gave incorrect advice,¹ it was not credible that, within the six years between the giving of the advice sometime in 2008, and the deadline for filing his second petition on October 1, 2014, the petitioner would not have discovered that the advice was incorrect. The court further noted that the petitioner's filing of a federal civil rights action demonstrates that he had the ability to find information regarding legal remedies available to him. We defer to and are bound by the court's assessment of the petitioner's credibility. See Orcutt v. Commissioner of Correction , 284 Conn. 724, 741, 937 A.2d 656 (2007) ; see also Coleman v. Commissioner of Correction, 202 Conn. App. 563, 575, 246 A.3d 54 (2021). The petitioner has not demonstrated that the court's conclusion that he has not demonstrated good cause for delay is debatable among jurists of reason, that a court could resolve the issue differently or that the questions raised deserve encouragement to proceed further. See Owens v. Commissioner of Correction , supra, 63 Conn. App. at 831, 779 A.2d 165.

Moreover, the petitioner's additional argument that his "severe mental health issues" provided good cause for the delay in filing his second habeas petition is unreviewable because the record is inadequate to review such a claim.² The court did not address this issue in...