Velez v. Comm'r of Corr.

203 Conn.App. 141

247 A.3d 579

Anthony VELEZ

v.COMMISSIONER OF CORRECTION

AC 42446

Appellate Court of Connecticut.

Argued September 8, 2020

Officially released March 9, 2021

Michael W. Brown, West Hartford, for the appellant (petitioner).

Sarah Hanna, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

Lavine, Alvord and Cradle, Js.^*

ALVORD, J.

The petitioner, Anthony Velez, appeals from the judgment of the habeas court dismissing his successive petition for a writ of habeas corpus pursuant to General Statutes § 52-470 (d) and (e).¹ On appeal, the petitioner claims that the habeas court improperly determined that evidence of his mental deficiencies set forth in a 2005 neurological report was insufficient to demonstrate good cause within the meaning of § 52-470 (e) to overcome the statutory presumption of unreasonable delay in filing his successive habeas petition. We disagree with the petitioner and, accordingly, affirm the judgment of the habeas court.

The procedural background underlying this appeal is as follows. On July 24, 2006, after a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a, burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), and criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (1). On September 15, 2006, the trial court, D'Addabbo , J ., sentenced the petitioner to a total effective term of sixty years of incarceration. On March 24, 2009, this court affirmed the judgment of conviction on direct appeal. State v. Velez , 113 Conn. App. 347, 349, 966 A.2d 743, cert. denied, 291 Conn. 917, 970 A.2d 729 (2009). On May 6, 2009, our Supreme Court denied the petitioner certification to appeal from this court's judgment.

State v. Velez , 291 Conn. 917, 970 A.2d 729 (2009).

On June 5, 2007, the petitioner, as a self-represented party, filed a petition for a writ of habeas corpus challenging his conviction (first habeas petition).² On January 24, 2011, following a trial on the merits, the habeas court, Fuger , J ., issued a memorandum of decision denying the petition. Velez v. Warden , Superior Court, judicial district of Tolland, Docket No. CV-07-4001763-S, 2011 WL 522931 (January 24, 2011).³ The petitioner appealed to this court but withdrew the appeal on August 8, 2011.

On August 31, 2015, the petitioner, as a self-represented party, filed the present petition for a writ of habeas corpus (second habeas petition).⁴ The habeas court subsequently granted the petitioner's request that counsel be appointed for him. On March 20, 2017, the respondent, the Commissioner of Correction, filed a request pursuant to § 52-470 (e), for an order directing the petitioner to appear and to show cause why the second habeas petition should be permitted to proceed in light of the fact that he filed it beyond the deadline for successive habeas petitions set forth in § 52-470 (d). In his request, the respondent argued that the petitioner's second habeas petition was untimely because the petitioner did not file it until August 31, 2015, beyond the October 1, 2014 statutory deadline, and, therefore, the rebuttable presumption that the filing of the petition has been delayed without good cause applied.⁵

The habeas court, Bhatt , J ., issued an order to show cause and, on September 26, 2018, conducted an evidentiary hearing. At the show cause hearing, the petitioner presented one exhibit—a 2005 report of a neuropsychological evaluation of the petitioner that was conducted by Cristina L. Ciocca, a clinical neuropsychologist, at the request of the petitioner's criminal trial counsel (2005 report). The respondent presented three exhibits—Judge Fuger's memorandum of decision denying the petitioner's first habeas petition, the petitioner's form appealing from that decision, and the petitioner's form withdrawing that appeal. Neither the petitioner nor the respondent presented testimony at the show cause hearing. The court heard legal arguments from both parties.⁶

The 2005 report that was presented by the petitioner describes in depth the petitioner's deficiencies that were observed by Ciocca at the time of the evaluation. The 2005 report concluded, inter alia, that the petitioner, suffers from "working memory deficits, poor deployment of attention, and executive dysfunction. His difficulties breaking down complex information into more manageable units precipitated ease of becoming overwhelmed, frustration, and a tendency to withdraw in order to preserve internal integrity." The 2005 report additionally determined that "[t]hese difficulties further impacted his capacity to learn novel information, benefit from external feedback, and process directions. Concomitantly, these findings suggested evidence of neurological impairment possibly associated with Fetal Alcohol Syndrome ...."

The petitioner's counsel argued that the "mental impairments and deficiencies" suffered by the petitioner, as described in the 2005 report, established good cause for the delay in filing the second habeas petition. The petitioner's counsel maintained that the petitioner suffered "debilitating mental illnesses and learning disabilities" that prevented him from seeking "the appropriate guidance and counsel while he was incarcerated to properly file the [second] habeas [petition] in a timely manner." The petitioner's counsel added that, although his psychological evaluation was prepared in 2005, "these are the same things that [the petitioner] is currently suffering from."

The respondent argued that the petitioner's filing of his first and second habeas actions as a self-represented party demonstrates that he was aware of how to file a petition for a writ of habeas corpus but failed to do so here in a timely manner.⁷ The petitioner responded that he was able to file the first and second habeas petitions as a self-represented party only because he received help in drafting them. The petitioner offered no evidence as to why he was unable to obtain that same assistance in drafting and filing the second habeas petition prior to the October 1, 2014 statutory deadline.

Following the show cause hearing, on October 16, 2018, the court ordered the parties to file posthearing memoranda addressing the following question: "Do the petitioner's deficits, as outlined in [the 2005 report], rebut the presumption that there is no good cause for the delay in the filing of the [second] habeas petition?"

On October 31, 2018, both parties submitted posthearing memoranda addressing the court's order. Consistent with his argument at the show cause hearing, the petitioner argued that his "serious psychological and learning disabilities" prevented him from obtaining "the necessary legal assistance while incarcerated" to file the second habeas petition in a timely manner. He argued that the 2005 report evidenced these deficiencies and that they "still afflict him today." The respondent argued that the petitioner failed to demonstrate any connection between the "alleged deficits noted by [the] retained psychologist" in the 2005 report and his "failure to pursue habeas corpus relief during the four year period between August, 2011 and August, 2015." In addition, the respondent challenged the weight of the 2005 report because it was not current, it contained conflicting information regarding the petitioner's intelligence, and it was never subject to challenge regarding its findings and conclusions. The respondent further noted that the petitioner's history, which included speaking two languages, obtaining a general equivalency diploma, completing college classes, filing the first habeas petition as a self-represented party, and filing the second habeas petition as a self-represented party, supported the conclusion that the petitioner failed to demonstrate good cause to justify his late filing.

On November 6, 2018, the habeas court issued a memorandum of decision, in which it concluded that, although the petitioner's deficiencies were "significant,"⁸ he failed to prove that those deficiencies contributed to his delay in filing the second habeas petition. Specifically, the court determined: "[T]he court finds ... that the petitioner has failed to prove how his deficits affected his ability to timely file this second petition. The petitioner points to nothing in the 2005 report that shows his deficits are of such a nature that he was unable to file a second petition between August, 2011 and August, 2015.⁹ Acknowledging that the petitioner likely suffers from several deficits that affect his mental capacity is not sufficient to overcome the presumption that there is no good cause for the delay. The petitioner must prove that these deficits are the reason for the delay and it is these deficits that prevented him from timely filing the petition.¹⁰

That he has not done. A review of the [2005 report] does not lead this court to conclude that any of the petitioner's deficits prohibited him from filling out the limited application for a writ of habeas corpus. Indeed, the petitioner has twice filed petitions for writ of habeas corpus.

"Thus, the court is constrained to conclude that the petitioner's deficits, while significant, have not been proven to be the reason the petition was untimely filed and thus, do not rebut the statutory presumption [of unreasonable delay]. The petition must be dismissed." (Citations omitted; footnotes added; footnote omitted; internal quotation marks omitted.).

On November 15, 2018, the habeas court granted certification to appeal. This appeal followed.

On appeal, the petitioner claims that the habeas court improperly determined that he failed to present sufficient evidence to demonstrate good cause within the meaning of § 52-470 (e) to overcome the statutory presumption of unreasonable delay.¹¹ Specifically, he argues that the...