Rice v. Commissioner of Correction

R
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             JEROME RICE v. COMMISSIONER
                   OF CORRECTION
                      (AC 42970)
                   Bright, C. J., and Elgo and Cradle, Js.

                                  Syllabus

The petitioner, who had been convicted of the crime of murder, filed a third
   petition for a writ of habeas corpus. The habeas court, upon the request
   of the respondent Commissioner of Correction, issued an order, pursuant
   to statute (§ 52-470 (e)), to show cause why the petition should not be
   dismissed as untimely pursuant to § 52-470 (d) (1) on the ground that
   it was not filed within two years of the conclusion of appellate review
   of the judgment on the prior habeas petition. Following an evidentiary
   hearing, during which the petitioner testified, the habeas court dismissed
   the petition as untimely, concluding that the petitioner failed to establish
   good cause for the delay in filing his petition. In reaching its decision,
   the court determined that there was no evidence corroborating the
   petitioner’s testimony that his prior habeas and appellate counsel did
   not advise him of the statutory time constraints or that he had taken
   substantial steps to pursue a federal habeas petition. The court also
   stated that it was not persuaded by that testimony nor the petitioner’s
   testimony that he was unaware of the statutory time constraints. There-
   after, the habeas court denied the petition for certification to appeal,
   and the petitioner appealed to this court. Held that the petitioner could
   not prevail on his claim that the habeas court erred in rejecting his claim
   that his ignorance of the time constraints in § 52-470 (d) constituted
   good cause for the delay in the filing of his habeas petition, which was
   based on his argument that his testimony that he was unaware of the
   statutory deadlines overcomes the rebuttable presumption of unreason-
   able delay: even if an assertion of ignorance of the statutory deadlines
   was sufficient to satisfy the burden of showing good cause, the habeas
   court found that the petitioner’s testimony that he was unaware of the
   deadlines was not credible, and it was not within the purview of this
   court to second-guess the habeas court’s credibility determinations;
   accordingly, there was no basis for this court to conclude that the habeas
   court abused its discretion in denying the petition for certification to
   appeal.
       Argued November 19, 2020—officially released May 11, 2021

                             Procedural History

  Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Bhatt, J., rendered judgment dismissing the
petition; thereafter, the court denied the petition for
certification to appeal, and the petitioner appealed to
this court. Appeal dismissed.
   Naomi T. Fetterman, for the appellant (petitioner).
  Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
                          Opinion

   CRADLE, J. The petitioner, Jerome Rice, appeals
from the denial of his petition for certification to appeal
from the judgment of the habeas court dismissing his
petition for a writ of habeas corpus as untimely under
General Statutes § 52-470 (d) and (e).1 On appeal, the
petitioner claims that the habeas court improperly
determined that, pursuant to § 52-470 (e), the petitioner
had not established good cause to overcome the pre-
sumption of unreasonable delay for the filing of his
untimely habeas petition. We disagree and accordingly
dismiss the appeal.2
   The following facts and procedural history, as set
forth by the habeas court, are relevant to the petitioner’s
claim on appeal. ‘‘The petitioner was [found guilty] by
a jury of murder in violation of General Statutes § 53a-
54a . . . . On February 15, 2006, the [trial] court
imposed a sentence of fifty-three years [of] incarcera-
tion. He appealed, and [this court] affirmed his convic-
tion and our Supreme Court denied certification to
appeal on February 14, 2008. State v. Rice, 105 Conn.
App. 103, 

936 A.2d 694

(2007), cert. denied, 

285 Conn.
921

, 

943 A.2d 1101

(2008).
   ‘‘[The petitioner] initiated his first petition for writ
of habeas corpus . . . on July 6, 2007. This [petition]
was withdrawn on July 20, 2010. A second habeas peti-
tion . . . was filed on August 6, 2010. The matter was
tried to the [habeas] court, and the petition was denied
on June 26, 2013. The petitioner appealed, and [this
court] dismissed the appeal . . . [and] [o]ur Supreme
Court denied certification to appeal on January 14, 2015.
Rice v. Commissioner of Correction, 

154 Conn. App.
901

, 

103 A.3d 1006

(2014), cert. denied, 

315 Conn. 915

,

106 A.3d 307

(2015). He then filed the instant petition
on March 15, 2018.’’
   On February 8, 2019, the habeas court, at the request
of the respondent, the Commissioner of Correction,
issued an order to show cause why the petition should
not be dismissed as untimely pursuant to § 52-470 (d)
(1) on the ground that it was not filed within two years
of the conclusion of appellate review of the judgment
on the prior petition, which became final on January 14,
2015. On March 27, 2019, the court held an evidentiary
hearing at which the petitioner testified. The petitioner
argued that ‘‘good cause exists because he was never
informed by his prior attorneys of the existence of statu-
tory time constraints that would prohibit him from get-
ting review of his claims and, had he known of the
expiration of the time period, he would have timely
filed the petition. He testified that he was preparing to
file a federal habeas corpus petition when he became
aware that he might need to raise some claims in state
court in order to exhaust his remedies before seeking
relief in federal court.’’
   In a memorandum of decision dated April 3, 2019, the
habeas court, Bhatt, J., dismissed the habeas petition
as untimely under § 52-470 (d), concluding that the peti-
tioner failed to establish good cause for the delay. The
court determined that there was no evidence corrobo-
rating the petitioner’s testimony that prior habeas and
appellate counsel did not advise him of the time con-
straints or that he had taken substantial steps to pursue
a federal habeas petition. Because the court was ‘‘not
persuaded by the testimony of the petitioner that he
was unaware of the time constraints within which to
refile his petition, was not informed of the same by
prior habeas counsel and has acted with reasonable
diligence in pursuing his legal rights,’’ the court dis-
missed the petition.. The court thereafter denied the
petition for certification to appeal, and this appeal fol-
lowed.
   ‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 

229 Conn.
178

, 

640 A.2d 601

(1994), and adopted in Simms v.
Warden, 

230 Conn. 608

, 612, 

646 A.2d 126

(1994). First,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion 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. . . .
   ‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous.’’ (Internal quotation
marks omitted.) Haywood v. Commissioner of Correc-
tion, 

194 Conn. App. 757

, 763–64, 

222 A.3d 545

(2019),
cert. denied, 

335 Conn. 914

, 

229 A.3d 729

(2020).
   ‘‘The conclusions reached by the [habeas] court in
its decision to dismiss [a] habeas petition are matters
of law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support in
the facts that appear in the record.’’ (Internal quotation
marks omitted.) Johnson v. Commissioner of Correc-
tion, 

285 Conn. 556

, 566, 

941 A.2d 248

(2008). ‘‘To the
extent that factual findings are challenged, this court
cannot disturb the underlying facts found by the habeas
court unless they are clearly erroneous . . . .’’ (Inter-
nal quotation marks omitted.) Grant v. Commissioner
of Correction, 

121 Conn. App. 295

, 298, 

995 A.2d 641

,
cert. denied, 

297 Conn. 920

, 

996 A.2d 1192

(2010).
  The petitioner asserts that the habeas court erred
by rejecting his claim that his ignorance of the time
constraints set forth in § 52-470 (d) constituted good
cause for the delay in the filing of his habeas petition.
In particular, he argues that his testimony that he was
unaware of the statutory deadlines overcomes the
rebuttable presumption of unreasonable delay.3
   Even if an assertion of ignorance of the statutory
deadlines was sufficient to satisfy the burden of show-
ing good cause, the habeas court found that the petition-
er’s testimony that he was unaware of the deadlines
was not credible. ‘‘[T]he habeas judge, as the trier of
facts, is the sole arbiter of the credibility of witnesses
and the weight to be given to their testimony . . . .’’
(Internal quotation marks omitted.) Brenton v. Com-
missioner of Correction, 

325 Conn. 640

, 694, 

159 A.3d
1112

(2017). It is not within the purview of this court
to second-guess the habeas court’s credibility determi-
nations. Accordingly, there is no basis for us to conclude
that the habeas court abused its discretion when it
denied the petition for certification to appeal.4
      The appeal is dismissed.
      In this opinion the other judges concurred.
  1
     General Statutes § 52-470 provides in relevant part: ‘‘(a) The court or
judge hearing any habeas corpus shall proceed in a summary way to deter-
mine the facts and issues of the case, by hearing the testimony and arguments
in the case, and shall inquire fully into the cause of imprisonment and
thereupon dispose of the case as law and justice require. . . .
   ‘‘(d) In the case of a petition filed subsequent to a judgment on a prior
petition challenging the same conviction, there shall be a rebuttable pre-
sumption that the filing of the subsequent petition has been delayed without
good cause if such petition is filed after the later of the following: (1) Two
years after the date on which the judgment in the prior petition 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, 2014; or (3)
two years after the date on which the constitutional or statutory right
asserted in the petition was initially recognized and made retroactive pursu-
ant 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. For the purposes of this section, the withdrawal of a prior
petition challenging the same conviction shall not constitute a judgment.
The time periods set forth in this subsection shall not be tolled during the
pendency of any other petition challenging the same conviction. Nothing in
this subsection shall create or enlarge the right of the petitioner to file a
subsequent petition under applicable law.
   ‘‘(e) In a case in which the rebuttable presumption of delay . . . 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 . . . (d) of this section. . . .’’
   2
     This court recently issued an order asking the parties for their positions
regarding whether consideration of this appeal should be stayed pending
the final disposition in Kelsey v. Commissioner of Correction, Docket No. SC
20553 (appeal filed February 3, 2021), by our Supreme Court. The petitioner
argued that the appeal should be stayed for clarification regarding the appro-
priate standard of review and whether a petitioner’s ignorance of the filing
deadline imposed by § 52-470 (d) (1) is good cause for delay. The respondent,
the Commissioner of Correction, objected to a stay arguing that our Supreme
Court’s decision in Kelsey will not control the outcome of this appeal because
the habeas court’s decision in the present case is based on its finding
that the petitioner’s testimony was not credible, and, therefore, we are not
required to address either the standard of review question or the legal
meaning of good cause resolved by this court in Kelsey. Because we agree
with the respondent that the resolution of the issues that the Supreme Court
granted certification in Kelsey will have no bearing on the outcome of this
appeal, we decline to stay this case.
   3
     This court recently addressed, and rejected, an identical claim in Felder
v. Commissioner of Correction, 

202 Conn. App. 503

, 

246 A.3d 63

, cert.
granted, 

336 Conn. 924

,       A.3d     (2021). In Felder, the petitioner alleged
that he was unaware of the deadlines contained in § 52-470 and that his
previous habeas counsel never informed him of the deadlines.

Id., 516–17.

The petitioner contended that this was sufficient evidence to demonstrate
good cause for the delay in the filing of his petition.

Id., 516.

This court
held: ‘‘[W]e are not persuaded that the petitioner’s alleged lack of knowledge
of the deadlines contained in § 52-470 is sufficient to compel a conclusion
that he met his burden of demonstrating good cause for the delay. The only
evidence the petitioner presented to support his contention that he was
unaware of the filing deadline in § 52-470 was his own testimony that he
lacked personal knowledge of the deadline and that he was never informed
of it by his previous habeas counsel. Although it is unclear whether the
habeas court credited the petitioner’s assertion, the habeas court properly
concluded that a mere assertion of ignorance of the law, without more, is
insufficient to establish good cause. We conclude that the habeas court did
not abuse its discretion in determining that the petitioner failed to establish
good cause for the delay in filing his successive habeas petition.’’

Id., 519.

We are aware that our Supreme Court has granted certification in Felder
on three issues, which include whether this court correctly determined that
the habeas court did not abuse its discretion in rejecting the petitioner’s claim
that his ignorance of the statutory deadlines was good cause to overcome
the rebuttable presumption of unreasonable delay. See Felder v. Commis-
sioner of Correction, 

336 Conn. 924

,        A.3d     (2021). The issues before
the Supreme Court in Felder have no bearing on the outcome of the present
appeal because, unlike in Felder, the habeas court in the present case made
clear that it did not credit the testimony of the petitioner.
   4
     See Langston v. Commissioner of Correction, 

185 Conn. App. 528

, 533,

197 A.3d 1034

(2018) (‘‘the petitioner’s prior counsel did not testify and the
habeas court concluded that there was insufficient evidence to ascertain
whether counsel had failed to apprise the petitioner of the time constraints
governing his subsequent petition’’), appeal dismissed, 

335 Conn. 1

, 

225 A.3d
282

(2020). The petitioner seemingly relies on our Supreme Court’s grant
of certification in Langston to argue that the resolution of the underlying
claim in this case involves issues that are debatable among jurists of reason,
resulting in an abuse of discretion in the habeas court’s denial of his petition
for certification to appeal. Because our Supreme Court subsequently dis-
missed the appeal after determining that certification was improvidently
granted, this argument is unavailing.

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