Antonio A. v. Commissioner of Correction ( 2021 )

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ANTONIO A. v. COMMISSIONER OF CORRECTION*
(AC 42466)
(AC 42618)
Moll, Suarez and DiPentima, Js.
Syllabus
The petitioner, who previously had been convicted of the crimes of sexual
assault in the first degree and risk of injury to a child and was found
to be in violation of his probation, sought, as a self-represented party,
a second writ of habeas corpus using a state supplied form. Thereafter,
the habeas court granted the petitioner’s request the appointment of
counsel, and counsel entered an appearance on the petitioner’s behalf.
The respondent Commissioner of Correction, pursuant to statute (§ 52-
470 (d) and (e)), filed a request for an order to show cause why the
second petition should be permitted to proceed when the petitioner had
filed it more than two years after the judgment on his prior petition
was final. The petitioner filed an objection in which he argued that an
order to show cause was premature because he needed additional time
to determine whether he met the requirements of § 52-470 (d) (3) or if
good cause existed for the delay and that the court should wait until
an amended petition is filed before deciding whether to issue an order. In
addition, the petitioner’s counsel represented that she needed additional
time to fully investigate and to respond to the respondent’s request. The
respondent filed a reply arguing that the petitioner’s counsel had eight
months to determine the cause for the petitioner’s delay in filing the
petition and requesting that the court issue the order to show cause.
Thereafter, the court held an evidentiary hearing during which the peti-
tioner’s counsel did not attempt to demonstrate that good cause for the
delay in filing the petition existed or to argue that she needed additional
time to inquire into the cause of the delay but, rather, argued that
the court should deny the respondent’s request because she needed
additional time to inquire into a potential actual innocence claim and
to file an amended petition on the petitioner’s behalf. The court dis-
missed the petition, and the petitioner filed a motion for reconsideration
in which he argued that the court’s dismissal of the petition was in error
because he intended to present evidence of a longtime medical condition
as cause for his delay in filing the petition. The court, treating the motion
as a motion to open the judgment, denied it, and, on the granting of
certification, the petitioner appealed to this court. Prior to filing an
appeal from the judgment on his second petition, the petitioner, as a
self-represented party, filed a third habeas petition, which appeared to
be a photocopy of the second petition, except for the addition of the
statement ‘‘I am innocent’’ in the space on the form provided for reasons
why his conviction was illegal and in the space provided for reasons
why his incarceration/sentence was illegal. The habeas court, on the
basis of its determination that the third petition was an exact copy of
the second petition, rendered judgment dismissing the third petition
pursuant to a rule of practice (§ 23-29) on the grounds that that the
court lacked jurisdiction to consider the third petition, the third petition
failed to state a claim on which relief could be granted and res judicata
precluded the court from affording the petitioner relief. Thereafter, the
habeas court denied the petition for certification to appeal, and the
petitioner appealed to this court.
With respect to the petitioner’s appeal in Docket No. AC 42466, held:
1. The petitioner could not prevail on his claim that the habeas court erred
in failing to afford his counsel a reasonable opportunity to investigate
the cause of the delay in filing the second habeas petition: there was
no authority to support the petitioner’s argument that the court was
obligated to delay its consideration of the respondent’s request for an
order to show cause because the petitioner’s counsel represented to
the court that it was possible that, in the future, the petitioner could
pursue an actual innocence claim in an amended petition, as the proper
inquiry into the issue of good cause focuses only on the claims in the
operative petition; moreover, the court did not abuse its discretion in
refusing to afford the petitioner any additional time prior to acting on
the respondent’s request, as the petitioner failed to demonstrate that
his counsel lacked sufficient time in which to ascertain, investigate and
present to the court a reason for the delay, and this court was not
persuaded that the petitioner’s counsel was not on notice of the purpose
of the hearing on the respondent’s request.
2. The habeas court did not abuse its discretion in treating the petitioner’s
motion for reconsideration as a motion to open or in denying that
motion: a review of the motion revealed that it was an attempt by the
petitioner to establish good cause for the delay in filing his second
petition by means of facts related to his alleged medical condition that
were not presented at the hearing on the respondent’s request for an
order to show cause, and the petitioner did not attempt to demonstrate
that those facts were newly discovered or that, in the exercise of due
diligence, they could not have been submitted at the hearing; moreover,
the petitioner’s contention that the habeas court was statutorily com-
pelled by § 52-470 (e) to consider any information presented to it estab-
lishing good cause in ruling on an order to show cause was without
merit, as the court afforded the petitioner an opportunity to present
evidence of good cause at the hearing and thereafter properly applied
the rules of practice to prevent him from waiting until after a judgment
was rendered to establish good cause for the delay in filing the petition.
With respect to the petitioner’s appeal in Docket No. AC 42618, held:
1. The habeas court abused its discretion in denying the petition for certifica-
tion to appeal; the petitioner demonstrated that his claim of error relating
to that court’s dismissal of his third habeas petition pursuant to Practice
Book § 23-29 on the ground that it failed to state a claim on which relief
could be granted was debatable among jurists of reason and that the
question raised was adequate to deserve encouragement to proceed fur-
ther.
2. The appeal as to the petitioner’s claim that the habeas court erred in
denying his motion for permission to file a late amended petition for
certification to appeal and for reconsideration of the denial of the peti-
tion for certification to appeal was dismissed; the petitioner failed to
appeal from that court’s ruling in accordance with § 52-470 (g) and our
rules of practice by seeking certification to appeal from that ruling and
then filing an appeal or amending his existing appeal, which deficiency
was substantive in nature warranting dismissal of that portion of the
appeal.
3. The habeas court’s dismissal of the third habeas petition under Practice
Book § 23-29 during its preliminary consideration of the petition and
prior to issuing the writ of habeas corpus was procedurally improper:
once that court concluded that any of the reasons set forth in the
applicable rule of practice (§ 23-24) applied, it should have declined to
issue the writ rather than dismissing the petition; moreover, this court
was not persuaded that the proper remedy was to remand the case to
the habeas court with direction to render judgment declining to issue
the writ, as the habeas court’s grounds for dismissing the third petition
were based on its erroneous determination that the third petition was
an exact copy of the second petition, and, because the allegations of
innocence by the self-represented petitioner in the third petition were
ambiguous and may constitute his attempt to set forth a claim of actual
innocence, this court concluded, in accordance with Gilchrist v. Com-
missioner of Correction (334 Conn. 548), that the proper remedy was
for the habeas court to issue the writ and, following the appointment
of counsel, the petitioner be given the opportunity to rectify any pleading
deficiencies.
Argued November 12, 2020—officially released June 1, 2021
Procedural History
Petition, in the first case, for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Newson, J., rendered judg-
ment dismissing the petition; thereafter, the court
denied the petitioner’s motion for reconsideration, and
the petitioner, on the granting of certification, appealed
to this court; and petition, in the second case, for a writ
of habeas corpus, brought to the Superior Court in the
judicial district of Tolland, where the court, Newson,
J., rendered judgment dismissing the petition; there-
after, the court denied the petition for certification to
appeal, and the petitioner appealed to this court; subse-
quently, the court, Newson, J., denied the petitioner’s
motion for permission to file a late amended petition
for certification to appeal and for reconsideration of
the denial of the petition for certification to appeal.
Affirmed in Docket No. AC 42466; appeal dismissed
in part; reversed; judgment directed in Docket No.
AC 42618.
Michael W. Brown, for the appellant in both cases
(petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, former state’s
attorney, and Jo Anne Sulik, supervisory assistant
state’s attorney, for the appellee in Docket No. AC 42466
(respondent).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, was Gail P. Hardy, former state’s
attorney, for the appellee in Docket No. AC 42618
(respondent).
Opinion
SUAREZ, J. In the present appeals, the petitioner,
Antonio A., challenges the judgments rendered by the
habeas court dismissing his second and third petitions
for a writ of habeas corpus. In the judgment under
review in Docket No. AC 42466, the habeas court dis-
missed the petitioner’s second petition for a writ of
habeas corpus pursuant to General Statutes § 52-470
on the ground that the petitioner had failed to show
good cause for his delay in bringing the petition more
than two years following a final judgment denying his
first petition for a writ of habeas corpus. In AC 42466,
the petitioner claims that the court erred in (1) failing
to afford his counsel a reasonable opportunity to inves-
tigate the cause of the delay, and (2) denying his motion
for reconsideration of its ruling. In AC 42466, we affirm
the judgment of the habeas court. In the judgment under
review in Docket No. AC 42618, the habeas court dis-
missed the petitioner’s third petition for a writ of habeas
corpus pursuant to Practice Book § 23-29 on multiple
grounds. In AC 42618, the petitioner claims that the
court erred in (1) denying his petition for certification
to appeal, (2) denying his motion for permission to file
a late amended petition for certification to appeal and
for reconsideration of the denial of his petition for certi-
fication to appeal, and (3) dismissing the habeas peti-
tion. In AC 42618, we dismiss the portion of the appeal
in which the petitioner claims that the court erred in
denying the motion and reverse the judgment dismiss-
ing the habeas petition.
The following facts and procedural history are rele-
vant to the present appeals. In 2003, following a jury
trial, the petitioner was convicted of two counts of risk
of injury to a child in violation of General Statutes (Rev.
to 2001) § 53-21 (a) (2) and two counts of sexual assault
in the first degree in violation of General Statutes (Rev.
to 2001) § 53a-70 (a) (2).1 In addition, the trial court
found the petitioner to be in violation of his probation
related to a prior narcotics conviction. As a result of
this finding, the petitioner’s probation was revoked, and
he was resentenced to four years of incarceration. This
sentence was consecutive to the sentence imposed for
his conviction of sexual assault and risk of injury to a
child. The petitioner was sentenced to a total effective
term of incarceration of forty-four years, execution sus-
pended after twenty-four years, followed by ten years
of probation and lifetime registration as a sex offender.
On direct appeal, this court affirmed the judgment of
conviction, and both our Supreme Court and the
Supreme Court of the United States denied subsequent
petitions for certification to appeal from this court’s
judgment affirming his conviction. State v. Antonio A.,
90 Conn. App. 286, 878 A.2d 358, cert. denied, 275 Conn.
926, 833 A.2d 1246 (2005), cert. denied, 546 U.S. 1189,
126 S. Ct. 1373, 164 L. Ed. 2d 81 (2006).
In October, 2009, the petitioner filed an amended
petition for a writ of habeas corpus (first petition) in
which he claimed that his criminal trial attorney had
rendered ineffective assistance in a variety of ways.
Following a trial, the habeas court denied the petition.
Following a grant of certification to appeal, on March
18, 2014, this court affirmed the judgment of the habeas
court. Antonio A. v. Commissioner of Correction, 148
Conn. App. 825, 87 A.3d 600, cert. denied, 312 Conn.
901, 91 A.3d 907 (2014). On May 21, 2014, our Supreme
Court denied the petitioner’s petition for certification
to appeal from this court’s judgment. Antonio A. v.
Commissioner of Correction, 312 Conn. 901, 91 A.3d
907 (2014).
On October 6, 2017, the petitioner, in a self-repre-
sented capacity, filed a second petition for a writ of
habeas corpus (second petition). The petitioner utilized
a state supplied form. In responding to question five
on the form, in which the petitioner was invited to
specify why his ‘‘conviction is illegal,’’ the petitioner
wrote that his sentencing was illegal because the ‘‘court
found [him] guilty on falsified information and
improper/fictitious evidence’’ and that his criminal trial
counsel did not render proper representation in that
‘‘prior counsel ignored mitigating evidence, did not
investigate the state’s case, did not protect [the peti-
tioner] from the prejudice, malicious, intentional con-
duct.’’ As additional grounds for challenging the convic-
tion, the petitioner alleged: ‘‘[W]as not given appropriate
interpreter (Spanish); jury was forced to find me guilty;
there is no physical evidence supporting unstable state-
ments; contradictory statements.’’
In response to question six on the form, in which the
petitioner was permitted to specify why his ‘‘incarcera-
tion/sentence is illegal,’’ the petitioner wrote: ‘‘Because
of misconduct of all counsel involved in my case: Inten-
tional, malicious, prejudicial, discriminatory (but is not
limited to).’’ In box seven on the form, the petitioner
alleged that the claims raised in the second petition
had not been previously raised at trial, in a direct appeal,
or in a previous habeas petition. He explained: ‘‘New
evidence: Prior counsel did not present everything he
was shown and or told or support [the petitioner] when
the judge himself forced the jury to get a conviction;
ineffective assistance of defense counsel; conflict of
interest across the board (state attorney, defense attor-
ney, judicial authority).’’
The habeas court granted the petitioner’s request for
the appointment of counsel. On December 21, 2017,
the Law Office of Christopher Duby, LLC, entered an
appearance on the petitioner’s behalf.
On August 9, 2018, the respondent, the Commissioner
of Correction, pursuant to § 52-470 (d) and (e), filed a
request for an order to show cause why the petitioner
should be permitted to proceed with the second petition
after having filed it more than two years after the judg-
ment denying the first petition became final on May 21,
2014, when our Supreme Court denied the petitioner’s
petition for certification to appeal.2 According to the
respondent, the petitioner brought the second petition
three years, four months, and fifteen days after the
judgment denying the first petition became final and
he did not rely on ‘‘the retroactive application of a new
constitutional right . . . .’’ Thus, the respondent
argued, the rebuttable presumption in § 52-470 (d), that
the petition had been delayed without good cause, was
implicated in the present case.
On August 13, 2018, the petitioner, through his coun-
sel, filed an objection to the respondent’s request. The
petitioner acknowledged that he filed the second peti-
tion ‘‘more than three years after [the] prior petition
became final’’ but argued that an order to show cause
under § 52-470 would be ‘‘premature.’’ The petitioner
stated that he needed additional time to determine
whether he met the requirements of § 52-470 (d) (3) or if
good cause existed. In this regard, the petitioner argued
that his counsel was not ‘‘tied’’ to the claims set forth
in his second petition and that the court ‘‘should wait
until [an] amended petition is filed to determine
whether there is such a violation requiring an order to
show cause.’’ In the petitioner’s objection, his counsel
represented that, because she had not yet received case
files from all of the petitioner’s prior attorneys, she was
‘‘not able to properly investigate the petitioner’s claims
to determine whether a constitutional claim under § 52-
470 (d) (3) or good cause exists. Therefore, the court
should grant [counsel] additional time to fully investi-
gate and respond to the respondent’s request to
show cause.’’
The respondent filed a reply in which he argued that,
although § 52-470 (e) affords a petitioner ‘‘a meaningful
opportunity to investigate the basis for the delay’’ in
bringing a subsequent petition, that provision was ‘‘not
a license to spend years exploring the merits of untimely
claims.’’ The respondent argued that the petitioner’s
counsel had eight months to determine why the peti-
tioner waited so long to bring the second petition and
requested that ‘‘the court issue the order to show cause
and grant the petitioner no more than three months to
respond to that order. At that time, if the court finds
that the petitioner is likely to establish good cause for
his delay, it can order that he be given additional time.’’
On the basis of the respondent’s request and the
petitioner’s objection thereto, the court, Newson, J.,
scheduled an evidentiary hearing on the request for
September 12, 2018. At the hearing, the petitioner’s
counsel altered the focus of the objection to the respon-
dent’s request. At that time, she did not attempt to
demonstrate that good cause for the delay in filing the
second petition existed or to argue that she needed
additional time to inquire into the cause of the delay.
Instead, she argued that the court should deny the
respondent’s request because, under the existing cir-
cumstances, it would be appropriate for the respondent
to assert the issue of impermissible delay under § 52-
470 as a basis for dismissal, if at all, in its return as a
special defense to the petition, and only after she had
an opportunity to file an amended petition on the peti-
tioner’s behalf. The petitioner’s counsel agreed with the
court that, like other motions to dismiss, the respon-
dent’s request was supposed to be evaluated on the
basis of the operative petition before the court at the
time the motion to dismiss is filed. Nonetheless, the
petitioner’s counsel argued that, because the petitioner
had not admitted his guilt in prior proceedings, a claim
of actual innocence, which could be raised at any time,3
was ‘‘a potential claim’’ that counsel could raise on his
behalf in a future amended petition, despite the fact that
the petitioner, while a self-represented litigant, failed
to include such a claim in his petition. The petitioner’s
counsel argued: ‘‘This is a circumstance where . . . I
just received the files from some of his original counsel,
and I still do not know if an actual innocence claim is
actually available. However, from talking to [the peti-
tioner], it appears that actual innocence is on the table
as a potential claim, but, as of right now, I do not have
the information and the evidence to indicate that it’s
true.’’ The petitioner’s counsel stated that it was
important for her to have all of trial counsel’s files ‘‘to
determine whether there is new evidence’’ on which
she could rely in advancing an actual innocence claim.
At the hearing, the respondent disagreed that the
request for an order to show cause should be denied
because an amended petition had not yet been filed
on the petitioner’s behalf by his assigned counsel. The
respondent’s counsel, focusing on the fact that the peti-
tioner’s counsel had merely viewed a claim of actual
innocence as a potential claim, argued: ‘‘If counsel is
able to represent as an officer of the court that she has
a good faith basis to pursue an actual innocence claim,
the court may exercise its discretion and give her time
to investigate that. But just to say, well, he said he’s
not guilty, and, therefore, [the court] can’t dismiss [the
petition under § 52-470] because we may in the future
raise an actual innocence claim is vastly different from
making a good faith representation. So we will ask the
court to proceed.’’
In its memorandum of decision of November 7, 2018,
the court rejected the petitioner’s argument that the
respondent’s request was premature. The court relied
on Kelsey v. Commissioner of Correction, 329 Conn.
711, 721, 189 A.3d 578 (2018), for the proposition that
‘‘a hearing under § 52-470 [e] may be held at any time,
at the discretion of the court, and that there is no
requirement that pleadings be closed before a hearing
is held.’’ The court observed that a request brought
under § 52-470 (e) did not require the court to assess
‘‘the substance or legal viability of the claims in the
petition, but only whether there was good cause for
commencing the habeas action beyond the statutory
deadline.’’ (Internal quotation marks omitted.) Thus, the
court reasoned, the petitioner’s arguments concerning a
potential actual innocence claim or the fact that counsel
had not yet amended his self-represented petition were
immaterial to the court’s analysis.
The court also rejected the petitioner’s argument that
his counsel did not have a meaningful opportunity to
respond to the respondent’s request. The court, relying
on relevant case law, stated that it had to ‘‘determine
whether the petitioner has had an opportunity that
would comport with due process to investigate whether
there was a substantial reason for [the petitioner’s]
having failed to file this petition within two years from
May 21, 2014.’’ The court carefully considered the length
of time that the petitioner’s counsel had been involved
in the case. Particularly, the court observed that the
petitioner’s counsel had filed an appearance on Decem-
ber 21, 2017, nine months prior to the hearing on the
respondent’s request and that the court held a hearing
on the respondent’s request five weeks after it was filed.
The court stated that, in light of the narrow issue to be
addressed at the hearing, the petitioner’s counsel ‘‘was
unable to offer a single reason for the delay in filing
the present habeas petition.’’ The court relied on the
representations of the petitioner’s counsel that she had
received case files from only some of the petitioner’s
prior counsel. In particular, the court deemed it signifi-
cant that, in February, 2018, the petitioner’s counsel
had received the case file related to the first petition. As
the court stated, ‘‘[s]urely, having received cooperation
from the lawyer who immediately preceded her in repre-
senting the petitioner some seven months prior to the
request to show cause hearing provided [the] petition-
er’s counsel with a fair opportunity to complete, or at
least an obvious location to start, an investigation into
the reasons for the delay of more than two years in
filing the present petition.’’
The court concluded its analysis: ‘‘In summary, the
court finds that the petitioner had a ‘meaningful oppor-
tunity’ to investigate whether any ‘good cause’ for filing
the present petition more than two years after the judg-
ment in his prior habeas case became final. . . .
Despite that, the petitioner has offered no ‘good cause,’
no ‘substantial reason,’ in fact, no reason at all, for filing
the present petition more than three years after the
decision in his prior habeas [case] became final on May
21, 2014. . . . As such, the petitioner has failed to rebut
the presumption that the delay of more than two years
was without good cause.’’ (Citations omitted.) The court
dismissed the second petition.
On November 14, 2018, the petitioner, through coun-
sel, filed a motion, titled ‘‘motion for reconsideration,’’
in which he argued that the court’s dismissal of his
second petition was in error because he intended to
present evidence of a longtime medical condition as
cause for his delayed petition. In an order dated Novem-
ber 20, 2018, the court treated the motion for reconsider-
ation as a motion to open the judgment and denied it
on the ground that the petitioner had been afforded
an opportunity to advance reasons in support of his
objection to the request for an order to show cause,
and, in the present motion to open, he was relying on
reasons that were within his personal knowledge but
were not disclosed by him at the September 12, 2018
hearing related to the respondent’s request and his
objection thereto.
Thereafter, on December 4, 2018, the court granted
the petitioner’s petition for certification to appeal. See
General Statutes § 52-470 (g). On January 9, 2019, the
petitioner, through counsel, filed the appeal in AC
42466.
Meanwhile, on December 18, 2018, the petitioner, in
a self-represented capacity, filed a third petition for a
writ of habeas corpus (third petition), the dismissal of
which is the subject of AC 42618. With two exceptions,
the third petition appears to be a photocopy of the
second petition.4 In the space provided for question five
on the state supplied form, in which the petitioner was
invited to specify reasons why his ‘‘conviction is illegal,’’
the petitioner added ‘‘I am innocent’’ to the information
previously set forth therein. In the space provided for
question six on the form, in which the petitioner was
asked to set forth reasons that his ‘‘incarceration/sen-
tence is illegal,’’ the petitioner added ‘‘I am innocent’’
to the information previously set forth therein.
On December 24, 2018, the court, Newson, J., dis-
missed the third petition pursuant to Practice Book
§ 23-29.5 The court’s notice of dismissal stated in rele-
vant part: ‘‘The petition for a writ of habeas corpus is
dismissed pursuant to Practice Book § 23-29 (a) (1) in
that this court lacks jurisdiction to consider this petition
and the allegations therein on the grounds that this
court’s November 7, 2018 decision dismissing an exact
copy (literally) of the present petition . . . is currently
being appealed (see Practice Book § 61-11 (a) (rules on
automatic stay)), and (2) the petition fails to state a
claim upon which this court could grant relief, given
[the] pendency of an appeal from the prior identical
petition and automatic stay required while the appeal
is pending (Practice Book § 61-11 (a)), and (3) res judi-
cata, in that the present petition presents the identical
grounds as a prior petition and fails to state new facts
or offer new information not reasonably available at
the time of the prior petition.’’
On January 11, 2019, the petitioner, as a self-repre-
sented litigant, filed a petition for certification to appeal
from the court’s judgment dismissing the third petition.
The petitioner set forth the grounds for the appeal on
his ‘‘application for waiver of fees, costs, and expenses
and appointment of counsel on appeal’’ form: ‘‘Whether
the court abused its discretion when it states [that] the
petition fails to state a claim upon which this court
could grant relief; such other errors as are revealed
upon review of the transcript.’’ The court denied the
petition on that same day.6 The petitioner, through coun-
sel, thereafter filed an appeal, AC 42618, from the
court’s denial of his petition for certification to appeal
and the judgment dismissing the third petition.
On July 11, 2019, the petitioner, through counsel, filed
a motion for permission to file a late amended petition
for certification to appeal and for reconsideration of
the denial of his petition for certification to appeal, in
which he argued that the court should grant the
amended petition in the interest of justice. The amended
petition, which was attached to the motion, set forth
five grounds.7 The motion also stated: ‘‘The claims that
undersigned counsel has identified appear to be implicit
in the petition for certification to appeal that was filed
by the petitioner in his initial petition for certification to
appeal, but the petitioner, acting as a [self-represented]
litigant without the assistance of counsel, may have
under articulated the nature of the claims to be raised
on appeal.’’ On July 15, 2019, the court, Newson, J.,
denied the petitioner’s motion. Thereafter, the peti-
tioner did not attempt to appeal from the ruling. Addi-
tional facts will be set forth as necessary in the context
of the claims raised on appeal.
I
AC 42466
A
The first claim raised by the petitioner in AC 42466
is that the court erred in failing to afford his counsel
a reasonable opportunity to investigate the cause of the
delay in filing the second petition.8 We disagree.
As we will explain in greater detail in this part of the
opinion, the court’s determination of when it should
act on a request brought by the respondent for an order
to show cause why an untimely petition should be per-
mitted to proceed is reviewed under the abuse of discre-
tion standard of review. See Kelsey v. Commissioner
of Correction, supra, 329 Conn. 724. ‘‘Discretion means
a legal discretion, to be exercised in conformity with
the spirit of the law and in a manner to subserve and
not to impede or defeat the ends of substantial justice.
. . . The salient inquiry is whether the court could have
reasonably concluded as it did. . . . It goes without
saying that the term abuse of discretion does not imply
the ruling appears to have been made on untenable
grounds. . . . In determining whether there has been
an abuse of discretion, much depends upon the circum-
stances of each case.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Arbour, 29 Conn. App.
744, 748, 618 A.2d 60 (1992).
First, the petitioner argues that the court’s ruling
reflected an abuse of its discretion because the respon-
dent, in his reply to the petitioner’s objection to the
request for an order to show cause, urged the court to
‘‘issue the order to show cause and grant the petitioner
no more than three months to respond to that order.’’
As stated previously, the petitioner, in his objection to
the respondent’s request for an order to show cause,
stated that he needed ‘‘additional time’’ to determine if
he satisfied § 52-470 (d) (3) or if good cause existed.
Our review of the respondent’s reply indicates that the
respondent’s suggestion was an attempt to balance
between the petitioner’s right to have an opportunity
to investigate the basis of the delay and the fact that
the petitioner seemingly sought an open-ended period
of time in which to determine the answer to a discrete
issue, namely, why there was a delay. The respondent,
noting the length of time that had already passed, did
not concede that an order to show cause was prema-
ture. Even assuming that the respondent made such
a concession at trial, however, the petitioner has not
presented this court with any authority to support his
argument that it would have been binding on the habeas
court. As we will discuss in greater detail, the petition-
er’s principal objection to the timing of the hearing was
his flawed belief that the habeas court was obligated
to wait for the petitioner’s counsel to file an amended
petition. Moreover, the petitioner failed to demonstrate
that his counsel lacked sufficient time in which to ascer-
tain, investigate and present a reason for his delay in
filing the second petition. For these reasons, we are
not persuaded that the court’s failure to agree with the
respondent’s proposal reflected an abuse of discretion.
Second, the petitioner argues that any potential claim
of actual innocence ‘‘should have been sufficient to
delay or overcome the good cause stage.’’ According
to the petitioner, because of the representation of his
counsel that it was possible that she would pursue an
actual innocence claim in an amended petition in the
future, the court was obligated to delay the timing of
the hearing and to afford counsel ‘‘sufficient time to
determine whether they have a good faith basis to pres-
ent such a weapon to survive possible dismissal.’’9
This argument presents an issue of statutory interpre-
tation over which we exercise plenary review in accor-
dance with the plain meaning rule codified in General
Statutes § 1-2z.10 See, e.g., State v. Peters, 287 Conn. 82,
87–88, 946 A.2d 1231 (2008). By its terms, § 52-470 (d)
applies ‘‘[i]n the case of a petition filed subsequent to
a judgment on a prior petition challenging the same
conviction,’’ and it gives rise to ‘‘a rebuttable presump-
tion that the filing of the subsequent petition has been
delayed without good cause if such petition is filed’’
after the occurrences specified therein. (Emphasis
added.) Pursuant to § 52-470 (e), ‘‘[i]n a case in which
the rebuttable presumption of delay under subsection
. . . (d) of this section applies, the court, upon the
request of the respondent, shall issue an order to show
cause why the petition should be permitted to proceed.’’
(Emphasis added.) Moreover, the statute provides that,
‘‘[i]f . . . the court finds that the petitioner has not
demonstrated good cause for the delay, the court shall
dismiss the petition.’’ (Emphasis added.) General Stat-
utes § 52-470 (e).
As the emphasized language reflects, once the
respondent relies on the rebuttable presumption in § 52-
470, the court’s good cause inquiry is properly focused
not on a hypothetical petition that the petitioner may
file in the future but on the petition that has been filed
by the petitioner. In the present case, it is not in dispute
that the second petition neither invoked a retroactive
constitutional or statutory right under § 52-470 (d) (3)
nor asserted a claim of actual innocence.
Our Supreme Court’s interpretation of the relevant
statutory provisions provides additional guidance. In
Kelsey v. Commissioner of Correction, supra, 329
Conn. 712, our Supreme Court considered whether
‘‘§ 52-470 divests the habeas court of discretion to deter-
mine when it should act on a motion by the respondent
. . . for an order to show cause why an untimely peti-
tion should be permitted to proceed.’’ The court,
rejecting the habeas court’s determination that the stat-
ute deprived it of discretion to act on the respondent’s
motion until the close of all pleadings, explained: ‘‘In
§ 52-470 (e), the legislature outlined the procedure by
which the respondent may rely on the rebuttable pre-
sumption established by § 52-470 (c) and (d) that no
good cause exists for a delay in filing the petition. . . .
We begin with two observations about § 52-470 (e).
First, in contrast to the court’s inquiry as to whether
good cause exists for trial, which the court may under-
take either on its own motion or by the motion of any
party; General Statutes § 52-470 (b) (1); the court’s duty
to inquire whether there is good cause for a delay is
triggered only upon the request of the respondent. If
the respondent makes such a request, the court shall
issue an order to show cause. Second, and more
important, nothing in the language of § 52-470 (e)
expressly clarifies or limits the timing of that order.
As opposed to the language of § 52-470 (b), which spe-
cifically and expressly requires that the court wait until
after the close of all pleadings to address whether there
is good cause for trial, § 52-470 (e) contains no such
time limit. If the legislature had intended to incorporate
a time constraint into § 52-470 (e), it could have done
so. . . .
‘‘Notably, as compared to the procedures available
under § 52-470 (b) to demonstrate that good cause
exists for trial, § 52-470 (e) provides significantly less
detail regarding the procedures by which a petitioner
may rebut the presumption that there was no good
cause for a delay in filing the petition. Specifically,
§ 52-470 (e) merely provides in relevant part that [t]he
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 sub-
section, 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 dis-
covered by the exercise of due diligence in time to meet
the requirements of subsection (c) or (d) of this section.
‘‘Nothing in subsection (e) expressly addresses
whether the petitioner may present argument or evi-
dence, or file exhibits, or whether and under what cir-
cumstances the court is required to hold a hearing, if
the court should determine that doing so would assist
it in making its determination. The only express proce-
dural requirement is stated broadly. The court must
provide the petitioner with a meaningful opportunity
both to investigate the basis for the delay and to respond
to the order to show cause. General Statutes § 52-470
(e). The phrase meaningful opportunity is not defined
in the statute. That phrase typically refers, however, to
the provision of an opportunity that comports with the
requirements of due process. . . . The lack of specific
statutory contours as to the required meaningful oppor-
tunity suggests that the legislature intended for the
court to exercise its discretion in determining, consider-
ing the particular circumstances of the case, what pro-
cedures should be provided to the petitioner in order to
provide him with a meaningful opportunity, consistent
with the requirements of due process, to rebut the statu-
tory presumption.
‘‘We envision that, in the majority of cases, the ques-
tion of whether a petitioner has demonstrated good
cause for delay will not require that the habeas court
engage in an inquiry that is similar in scope to the
one required for the screening of meritless petitions
pursuant to § 52-470 (b). The absence of detailed proce-
dural requirements in § 52-470 (e), as compared with
those identified in § 52-470 (b), is consistent with that
general expectation. In many cases, the habeas court
will likely be able to resolve the question of whether
there was good cause for delay soon after the respon-
dent files a motion requesting an order to show cause.
In some instances, however, the basis for a delay may be
inextricably intertwined with the merits of the petition.
Under such circumstances, the court will be required
to engage in a more substantive inquiry, which will
more closely resemble the type of inquiry contemplated
under § 52-470 (b). Section 52-470 (e) expressly recog-
nizes that possibility by stating good cause for delay
may include the discovery of new evidence which mate-
rially 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 (c) or
(d) of this section. . . .
‘‘In the absence of any language in [§ 52-470 (e)] cab-
ining the discretion of the habeas court with respect
to the timing of the issuance of an order to show cause
for delay, we conclude that the legislature intended that
the court exercise its discretion to do so when the court
deems it appropriate given the circumstances of the
case. This conclusion strikes the appropriate balance
between the principles of expediency and due process.
. . . Our conclusion that the habeas court is not
required to wait until the close of all pleadings to issue
an order to show cause why the petition should be
permitted to proceed when there is a rebuttable pre-
sumption of delay is consistent with the purpose under-
lying [Public Acts 2012, No. 12-115, § 1]—to screen out
meritless and untimely petitions in an expeditious man-
ner. . . . Our conclusion also protects the petitioner’s
right to due process by giving proper effect to the
requirement in § 52-470 (e) that the habeas court pro-
vide the petitioner with a meaningful opportunity to
rebut the presumption that he lacked good cause for
the delay. As we have explained, in some instances, the
provision of such meaningful opportunity will require
the habeas court to determine whether, under the par-
ticular circumstances of the case, the basis for delay
is intertwined with the merits of the petition.
‘‘Our statutory construction is also consistent with
the bedrock principle that [t]he trial court possesses
inherent discretionary powers to control pleadings,
exclude evidence, and prevent occurrences that might
unnecessarily prejudice the right of any party to a fair
trial. . . . Finally, we observe that the rules of practice
expressly recognize the habeas court’s discretion over
scheduling. . . .
‘‘The habeas court’s exercise of its discretion to man-
age the case remains the best tool to guarantee that the
case is disposed of as law and justice require; General
Statutes § 52-470 (a); as the habeas judge is in the best
position to balance the principles of judicial economy
and due process.’’ (Citations omitted; emphasis in origi-
nal; footnotes omitted; internal quotation marks omit-
ted.) Kelsey v. Commissioner of Correction, supra, 329
Conn. 720–26.
Thus, as we observed previously, in Kelsey, our
Supreme Court concluded that the habeas court had
discretion to determine when it should act on a request
brought by the respondent for an order to show cause
why an untimely petition should be permitted to pro-
ceed. Id, 724. It rejected the view that, under § 52-470,
the court lacked the discretion to act on the request
until the pleadings in the case were closed. Id. In light
of the interpretation of the statute set forth previously,
informed by Kelsey, we reject the petitioner’s argument
that the habeas court in the present case lacked the
discretion to act on the respondent’s request because
the petitioner’s counsel stated that it was possible that
the petitioner could bring an amended petition, includ-
ing a claim of actual innocence, in the future. There is
no authority in support of the petitioner’s view that the
court was obligated to delay its consideration of the
respondent’s request.11
Third, the petitioner argues that the court’s determi-
nation, that his counsel had sufficient time in which to
respond to the state’s request, was flawed and that the
court acted arbitrarily in denying his counsel’s request
for ‘‘a continuance’’ in this matter. The petitioner argues
that it was overly simplistic for the court to suggest
that counsel needed to determine only whether the
second petition was untimely but that counsel also
needed to determine whether there was good cause for
the delay and whether ‘‘the petitioner was pursuing a
claim that was exempt from the timeliness questions.’’
The petitioner also argues that the court failed to give
proper weight to the fact that the files of previous coun-
sel that had not yet been made available to the petitioner
could have contained evidence to support a claim of
actual innocence.
In the petitioner’s objection to the respondent’s
request for an order to show cause, he primarily argued
that the request was premature because the issue could
not be resolved until an amended petition was filed. The
petitioner thereby linked the inquiry into good cause
for the delay with the filing of an amended petition. In
addition, the petitioner’s counsel argued that additional
time was needed to investigate the issue of whether
the petitioner, in bringing the second petition, had acted
with good cause. Our careful review of the arguments
advanced by the petitioner’s counsel at the September
12, 2018 hearing reveals that counsel did not argue that
a continuance was necessary to investigate whether
good cause existed for the delay in bringing the second
petition. Rather, counsel argued that additional time
was needed in which to investigate whether a claim
could be brought that fell outside of the two year time
limit in § 52-470. Presently, the petitioner’s argument is
not that the court failed to afford counsel sufficient
time to investigate the basis for the delay in bringing
the petition that was before the court but that the court
failed to afford counsel additional time in which to
investigate claims that were not part of the operative
petition before the court.
For the reasons discussed previously in this opinion,
the petitioner’s argument is legally flawed because the
proper good cause inquiry focuses on the operative
petition before the court, not on claims that are not part
of the operative petition. Here, as we have observed,
the operative petition did not set forth a claim of actual
innocence. Moreover, as our previous discussion of
Kelsey reflects, in most cases, an inquiry into good
cause will not require an evaluation of the merits of a
petition, but ‘‘the habeas court will likely be able to
resolve the question of whether there was good cause
for the delay soon after the respondent files a motion
requesting an order to show good cause.’’ Kelsey v.
Commissioner of Correction, supra, 329 Conn. 723.
The operative second petition was untimely, and,
therefore, the proper inquiry into the issue of good
cause is based only on the reasons for the petitioner’s
delay in bringing the second petition. The court properly
focused on the time that had passed between the time
at which counsel was appointed to represent the peti-
tioner and the hearing on the respondent’s request. The
court also focused on the time that had passed between
the date the respondent had filed his request for an
order to show cause and the date of the hearing on the
request. At no time has the petitioner demonstrated that
his counsel lacked sufficient time in which to ascertain,
investigate, and present a reason for the delay to the
court. Accordingly, we are not persuaded that the court
abused its discretion in refusing to afford any additional
time to the petitioner prior to acting on the respondent’s
request.
Fourth, the petitioner argues that the court erred by
issuing a ruling on the substantive issue raised by the
respondent, namely, whether good cause existed. The
petitioner argues that his counsel objected to the timing
of the hearing but that she did not present ‘‘a substantive
response to the order to show cause before the habeas
court issued its memorandum of decision because [his
counsel] had not had a meaningful opportunity to com-
plete [an] investigation into whether there was good
cause for the petitioner’s apparent delay in filing the
[second] petition.’’ The petitioner argues that, at the
hearing, the court did not indicate that it was affording
the petitioner his ‘‘only opportunity to offer substantive
evidence or information in support of an attempt to
overcome the presumption of delay.’’
This argument is belied by the notice of the hearing
that was sent to the parties in response to the respon-
dent’s request for an order to show cause. In its order,
the court stated that it was scheduling an ‘‘evidentiary
hearing’’ on the respondent’s request. Moreover, as we
have stated previously, at the hearing, the petitioner’s
counsel did not argue that she needed additional time
in which to investigate the reasons for the delay in
bringing the second petition but argued that the court
was precluded from acting on the respondent’s request
for an order to show cause unless and until an amended
petition was filed on the petitioner’s behalf. The court
neither suggested that counsel should limit her presen-
tation to the reasons why the court should not act on
the request nor precluded counsel from presenting any
argument or evidence with respect to the issue of good
cause for the delay. Accordingly, we are not persuaded
that counsel was not on notice of the purpose of the
hearing.
B
Next, the petitioner claims that the court erred in
denying his motion for reconsideration of its ruling. We
disagree.
As we stated in our discussion of the procedural
history, the court dismissed the second petition on
November 7, 2018. On November 14, 2018, the peti-
tioner, through counsel, filed a motion for reconsidera-
tion in which he stated that ‘‘[the] dismissal was in
error, as the petitioner’s counsel intended to, in the
absence of the court’s decision regarding the petition-
er’s objection to [the] respondent’s motion for cause
and request for additional time, present evidence of the
petitioner’s longtime medical condition as cause for his
delayed petition.’’ The motion stated in relevant part
that, ‘‘during the approximately three years between
his prior habeas [action] and filing [the second] petition,
[the] petitioner was focused solely on his survival. Once
he became healthy enough to file his petition, he did
so in October, 2017.’’ Attached as exhibits to the motion
were a document titled ‘‘Petitioner’s Offer of Proof’’12
and a signed affidavit of the petitioner, submitted ‘‘as
evidence that his delayed petition was as a result of his
ongoing medical conditions and their related treat-
ments.’’
As we have explained, the court treated the motion
for reconsideration as a motion to open brought under
General Statutes § 52-212a13 and Practice Book § 17-4.14
In denying the motion, the court stated: ‘‘Counsel for
the petitioner first filed an appearance in the file on
December 21, 2017. The petitioner was provided with
advance notice by way of the request for an order to
show cause filed by the respondent on August 7, 2018,
as well as the order and notice of hearing provided
by the court. A hearing was held before the court on
September 12, 2018, where the petitioner was provided
with an opportunity to advance reasons in support of
[his] objection to the respondent’s motion. The court
did not issue a written decision on the matter until
November 7, 2018. The petitioner now offers reasons
that were wholly within the petitioner’s personal knowl-
edge as a basis to [open] the judgment. Under these
facts, the court finds no good and compelling reason
to modify or vacate the judgment.’’ (Internal quotation
marks omitted.)
According to the petitioner, ‘‘[t]he habeas court made
a legal error when it interpreted the petitioner’s motion
for reconsideration as a motion to [open]. Because the
petitioner filed the motion for reconsideration within
the [twenty] day period for reargument provided by
Practice Book § 11-12, the habeas court was compelled
to treat it as a motion to reargue, and was without
basis to consider the motion as a motion to [open] the
judgment.’’ The petitioner also argues that the court
improperly penalized him for his counsel’s failure to
present the reasons set forth in the motion at the hearing
on the respondent’s request for an order to show good
cause. The petitioner argues: ‘‘Seemingly, the habeas
court’s analysis that it was not compelled by the peti-
tioner’s medical issues sufficiently to find them to be
a good and compelling reason to modify or vacate the
judgment was based entirely on a critique of counsel’s
handling of the petitioner’s matter, and not on a substan-
tive review of the information and materials presented.’’
(Internal quotation marks omitted.) The petitioner
asserts that ‘‘[t]he language of § 52-470 (e) makes clear
that, if the habeas court is presented with information
establishing good cause for delay, it must consider it
in ruling on an order to show cause.’’
The petitioner’s claim rests on the legally unfounded
assertion that, because he could have timely filed a
motion for reconsideration at the time at which he filed
the motion at issue and he titled the motion a ‘‘motion
for reconsideration,’’ the court was obligated as a mat-
ter of law to treat the motion as a motion for reconsider-
ation. Our decisional law provides that ‘‘[t]he nature of
a motion, however, is not determined by its title alone.
A court has broad discretion to treat a motion for clarifi-
cation of a judgment or a motion to reargue a judgment
as a motion to open and modify the judgment . . . .’’
(Internal quotation marks omitted.) Silver v. Silver, 200
Conn. App. 505, 520, 238 A.3d 823, cert. denied, 335
Conn. 973, 240 A.3d 1055 (2020); see also Drahan v.
Board of Education, 42 Conn. App. 480, 489, 680 A.2d
316 (‘‘[w]hen a case requires this court to determine
the nature of a pleading filed by a party, we are not
required to accept the label affixed to that pleading
by the party’’), cert. denied, 239 Conn. 921, 682 A.2d
1000 (1996).
Motions for reargument and motions for reconsidera-
tion are nearly identical in purpose.15 ‘‘[T]he purpose
of a reargument is . . . to demonstrate to the court
that there is some decision or some principle of law
which would have a controlling effect, and which has
been overlooked, or that there has been a misapprehen-
sion of facts. . . . A reconsideration implies reexami-
nation and possibly a different decision by the [court]
which initially decided it. . . . While a modification
hearing entails the presentation of evidence of a sub-
stantial change in circumstances, a reconsideration
hearing involves consideration of the trial evidence in
light of outside factors such as new law, a miscalcula-
tion or a misapplication of the law.’’ (Citations omitted;
internal quotation marks omitted.) Jaser v. Jaser, 37
Conn. App. 194, 202–203, 655 A.2d 790 (1995). ‘‘[T]he
purpose of reargument is . . . to demonstrate to the
court that there is some decision or some principle of
law which would have a controlling effect, and which
has been overlooked, or that there has been a misappre-
hension of facts. . . . It also may be used to address
alleged inconsistencies in the trial court’s memorandum
of decision as well as claims of law that the [movant]
claimed were not addressed by the court. . . . [A]
motion to reargue [however] is not to be used as an
opportunity to have a second bite of the apple or to
present additional cases or briefs which could have
been presented at the time of the original argument.’’
(Internal quotation marks omitted.) U.S. Bank,
National Assn. v. Mamudi, 197 Conn. App. 31, 47 n.13,
231 A.3d 297, cert. denied, 335 Conn. 921, 231 A.3d 1169(2020); see also Opoku v. Grant, 63 Conn. App. 686,
692–93, 778 A.2d 981 (2001).
In contrast, a motion to open affords a litigant a
narrow window through which to present evidence that
could not have been known and with reasonable dili-
gence offered at the time of trial. Practice Book § 17-
4 (a) provides in relevant part: ‘‘Unless otherwise pro-
vided by law and except in such cases in which the
court has continuing jurisdiction, any civil judgment or
decree rendered in the Superior Court may not be
opened or set aside unless a motion to open or set aside
is filed within four months succeeding the date on which
notice was sent. . . .’’ ‘‘The principles that govern
motions to open or set aside a civil judgment are well
established. Within four months of the date of the origi-
nal judgment, Practice Book [§ 17-4] vests discretion in
the trial court to determine whether there is a good
and compelling reason for its modification or vacation.’’
(Internal quotation marks omitted.) Chapman Lumber,
Inc. v. Tager, 288 Conn. 69, 94, 952 A.2d 1 (2008). ‘‘One
of the essential requirements for the granting of [a
motion to open] is that the evidence which the party
seeks to offer could not have been known and with
reasonable diligence produced at trial.’’ Corbin v. Cor-
bin, 179 Conn. 622, 626, 427 A.2d 432 (1980), citing
Stocking v. Ives, 156 Conn. 70, 72, 238 A.2d 421 (1968);
see also Fortin v. Hartford Underwriters Ins. Co., 139
Conn. App. 826, 843–44, 59 A.3d 247 (materials submit-
ted to court in connection with motion to reargue must
be shown to be ‘‘newly discovered or that, in the exer-
cise of due diligence, they could not have been submit-
ted earlier’’), cert. granted, 308 Conn. 905, 61 A.3d 1098(2013) (appeal withdrawn November 26, 2014).
We conclude that the court did not abuse its broad
discretion in treating the petitioner’s motion for recon-
sideration as a motion to open.16 A review of the motion
reveals that it was an attempt by the petitioner to sup-
plement the record of what was presented at the Sep-
tember 12, 2018 hearing on the respondent’s request for
an order to show cause. In other words, the petitioner’s
motion was an attempt to establish good cause by
means of facts that were not presented to the court at
the hearing. In the motion, the petitioner did not attempt
to demonstrate that the facts on which the motion was
based were newly discovered or that, in the exercise
of due diligence, they could not have been submitted
at the hearing. To the contrary, the facts on which the
motion was based, relating to alleged ailments of the
petitioner, certainly were known to the petitioner prior
to the hearing.
‘‘Habeas corpus is a civil proceeding. . . . The prin-
ciples that govern motions to open or set aside a civil
judgment are well established. A motion to open and
vacate a judgment . . . is addressed to the [habeas]
court’s discretion, and the action of the [habeas] court
will not be disturbed on appeal unless it acted unreason-
ably and in clear abuse of its discretion.’’ (Internal quo-
tation marks omitted.) Turner v. Commissioner of Cor-
rection, 163 Conn. App. 556, 563, 134 A.3d 1253, cert.
denied, 323 Conn. 909, 149 A.3d 980 (2016); see also
Gillis v. Gillis, 214 Conn. 336, 340, 572 A.2d 323 (1990)
(abuse of discretion standard of review applies to rul-
ings on motions to open). For the reasons previously
discussed, we readily conclude that the petitioner is
unable to demonstrate that the court’s ruling on the
motion to open reflects an abuse of discretion.
The petitioner argues that the court was ‘‘statutorily
compelled’’ by § 52-470 (e) to consider any information
presented to it establishing good cause. He argues that
the court ‘‘must consider it in ruling on an order to
show cause.’’ (Emphasis added.) The problem with the
petitioner’s argument is that the ruling at issue is not
a ruling following an order to show cause but, rather,
a motion for reconsideration that we have concluded
was properly viewed by the court as a motion to open
the judgment dismissing the second petition. Neither
§ 52-470 (e) nor our case law interpreting the statute
permits a petitioner to circumvent the rules of practice.
The court afforded the petitioner an opportunity to
present evidence of good cause at the hearing that took
place on September 12, 2018, and the court thereafter
properly applied the rules of practice to prevent the
petitioner from waiting until after a judgment was ren-
dered to prove the reasons for his delay in bringing his
untimely second petition.
Accordingly, in AC 42466, we affirm the judgment of
the court.
II
AC 42618
A
The first claim raised by the petitioner in AC 42618
is that the court erred in denying his petition for certifi-
cation to appeal. We agree with this claim.
Section 52-470 (g) provides: ‘‘No appeal from the judg-
ment rendered in a habeas corpus proceeding brought
by or on behalf of a person who has been convicted of
a crime in order to obtain such person’s release may
be taken unless the appellant, within ten days after the
case is decided, petitions the judge before whom the
case was tried or, if such judge is unavailable, a judge
of the Superior Court designated by the Chief Court
Administrator, to certify that a question is involved in
the decision which ought to be reviewed by the court
having jurisdiction and the judge so certifies.’’
‘‘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. . . . A petitioner may establish an abuse of
discretion by demonstrating that the issues are debat-
able among jurists of reason . . . [the] court could
resolve the issues [in a different manner] . . . or . . .
the questions are adequate to deserve encouragement
to proceed further. . . . The required determination
may be made on the basis of the record before the
habeas court and applicable legal principles. . . . 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; emphasis omitted; internal quota-
tion marks omitted.) Crespo v. Commissioner of Cor-
rection, 292 Conn. 804, 811, 975 A.2d 42 (2009); see also
Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d
126 (1994) (adopting factors identified by United States
Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32,
111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as appropriate
standard for determining whether habeas court abused
its discretion in denying certification to appeal).
‘‘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. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Internal
quotation marks omitted.) Villafane v. Commissioner
of Correction, 190 Conn. App. 566, 573, 211 A.3d 72,
cert. denied, 333 Conn. 902, 215 A.3d 160 (2019).
For the reasons set forth in part II C of this opinion,
we conclude that the petitioner has demonstrated that
the claim of error relating to the court’s dismissal of
his third petition pursuant to Practice Book § 23-29 on
the ground that it fails to state a claim on which relief
could be granted is debatable among jurists of reason
and that the question raised is adequate to deserve
encouragement to proceed further. Accordingly, we
conclude that the court abused its discretion in denying
the petition for certification to appeal.
B
We next address the petitioner’s claim that the court
erred in denying his motion for permission to file a late
amended petition for certification to appeal and for
reconsideration of the court’s denial of his petition for
certification to appeal. We dismiss this portion of the
appeal.
As we stated in our discussion of the procedural
history, six months after the court denied the petition
for certification to appeal from the dismissal of the third
petition, the petitioner filed a motion for permission to
file a late amended petition for certification to appeal
and for reconsideration of the denial of his petition for
certification to appeal.17 Therein, he raised five grounds
on which he sought to appeal. On July 15, 2019, the court
denied the motion. The petitioner did not, however, file
a petition for certification to appeal from the court’s
July 15, 2019 denial of his motion or attempt to appeal
from that ruling in accordance with § 52-470 (g).
The petitioner set forth the present claim in the por-
tion of his brief in which he analyzed the claim that we
addressed in part II A of this opinion. As a preliminary
matter, we observe that the petitioner has merely
claimed error with respect to the court’s denial of his
motion. He has analyzed the propriety of the court’s
denial of his petition for certification to appeal but has
not provided this court with a distinct analysis of the
separate and distinct ruling at issue. Our Supreme Court
repeatedly has stated that ‘‘[w]e are not required to
review issues that have been improperly presented to
this court through an inadequate brief. . . . Analysis,
rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the
issue properly. . . . [When] a claim is asserted in the
statement of issues but thereafter receives only cursory
attention in the brief without substantive discussion or
citation of authorities, it is deemed to be abandoned.’’
(Internal quotation marks omitted.) Connecticut
Light & Power Co. v. Dept. of Public Utility Control,
266 Conn. 108, 120, 830 A.2d 1121 (2003).
More importantly, we recognize that the claim is not
properly before this court as it is not part of the appeal
taken from the denial of the petition for certification
to appeal and the judgment dismissing the third petition.
It is well settled that ‘‘an appeal following the denial of
a petition for certification to appeal from the judgment
denying a petition for a writ of habeas corpus is not the
appellate equivalent of a direct appeal from a criminal
conviction. Our limited task as a reviewing court is to
determine whether the habeas court abused its discre-
tion in concluding that the petitioner’s appeal is frivo-
lous.’’ Tutson v. Commissioner of Correction, 144
Conn. App. 203, 216, 72 A.3d 1162, cert. denied, 301
Conn. 928, 78 A.3d 145 (2013). The ruling that is the
subject of the appeal was framed by the court’s denial
of the petition for certification to appeal, and, in light
of the denial of such petition, the petitioner may not
enlarge the scope of the appeal to encompass new
issues that arose at a later date. ‘‘The right to an appeal
is not a constitutional one. It is but a statutory privilege
available to one who strictly complies with the statutes
and rules on which the privilege is granted.’’ (Internal
quotation marks omitted.) Brown v. Brown, 190 Conn.
345, 350, 460 A.2d 1287 (1983).
Setting aside the issue of whether the habeas court
had jurisdiction to grant the petitioner the relief that
he sought in his motion in light of the fact that the
present appeal was pending at the time that he filed
the motion, we observe that the petitioner failed to
appeal from the ruling at issue in accordance with § 52-
470 (g) and our rules of practice by taking appropriate
steps to seek certification to appeal from that ruling
and then bringing an appeal or amending his existing
appeal. ‘‘In accordance with our policy not to exalt
form over substance, we have been reluctant to dismiss
appeals for technical deficiencies in an appellant’s
appeal form.’’ Rocque v. DeMilo & Co., 85 Conn. App.
512, 527, 857 A.2d 976 (2004). The deficiency at issue
in the present case involves a failure to appeal from
the ruling sought to be appealed; it can hardly be said
that the petitioner’s existing appeal of February 20,
2019, apprised this court or the respondent that the
petitioner intended to appeal from the court’s subse-
quent July 15, 2019 ruling. Thus, the deficiency at issue
is of a substantive nature warranting dismissal of this
portion of the appeal.
C
Finally, the petitioner claims that the court erred in
dismissing his third petition. We agree.
As we stated previously in this opinion, the court
dismissed the third petition on three grounds. The court
stated: ‘‘The petition . . . is dismissed pursuant to
Practice Book § 23-2918 (1) in that this court lacks juris-
diction to consider this petition and the allegations
therein on the grounds that this court’s November 7,
2018 decision dismissing an exact copy (literally) of the
present petition . . . is currently being appealed (see
Practice Book § 61-11 (a) (rules on automatic stay)),
and (2) the petition fails to state a claim upon which
this court could grant relief, given [the] pendency of
an appeal from the prior identical petition and auto-
matic stay required while the appeal is pending (Prac-
tice Book § 61-11 (a)), and (3) res judicata, in that the
present petition presents the identical grounds as a
prior petition and fails to state new facts or offer new
information not reasonably available at the time of the
prior petition.’’ (Footnote added.)
The petitioner argues that ‘‘[e]ach of the habeas
court’s reasons for dismissing [his self-represented
third] petition was in error. The habeas court erred by
concluding [that] the [third] petition was identical to a
prior [self-represented] petition, and the habeas court
erred in concluding that the [self-represented third]
petition failed to state a claim upon which relief could
be granted. The habeas court wrongly concluded that
the dismissal of the prior [self-represented] petition,
and the pending appeal challenging that dismissal,
barred the filing of a new, modified [self-represented
third] petition . . . . The habeas court incorrectly
applied the doctrine of res judicata to the new, materi-
ally different, [self-represented third] petition. Finally,
the automatic stay provisions of Practice Book § 61-11
are irrelevant to the petitioner’s ability to proceed on
a new [self-represented third] petition . . . and the
habeas court erred by relying on those provisions as a
basis for dismissal. This matter should be returned to
the habeas docket where the petitioner can be
appointed counsel and present evidence in support of
his claim of innocence.’’
Most of the petitioner’s arguments rest on the propo-
sition that, unlike the second petition, which had been
dismissed and was the subject of a pending appeal, the
third petition twice set forth a claim of actual innocence
because the petitioner twice added the statement ‘‘I am
innocent’’ to the allegations of the second petition. The
petitioner states that the second and third petitions ‘‘are
mostly the same, except that the [third] petition . . .
includes two statements of innocence.’’ Although the
petitioner acknowledges that this additional language
in the third petition was ‘‘not a model of clarity,’’ he
urges us to conclude that ‘‘it sufficiently states a claim
of innocence.’’
The petitioner does not appear to claim that, in dis-
missing the third petition, the court erroneously dis-
missed the identical claims raised in the second peti-
tion. Indeed, the petitioner states that ‘‘[t]he main error
that [he] complains of is that the habeas court sua
sponte dismissed his newly raised claim of innocence.’’
We therefore must first resolve the issue of whether an
actual innocence claim was raised in the third petition.
Basing his appellate arguments on the existence of
a claim of actual innocence, the petitioner argues that
the court erred in its determination that the third peti-
tion was identical to the second petition. The petitioner
argues that the claim of actual innocence shielded the
third petition from dismissal under § 52-470 (d), even
if it was filed more than two years after a final decision
was rendered with respect to his first petition. He also
argues that, as a matter of law, a claim of actual inno-
cence is a claim on which relief may be granted and
argues that the court was ‘‘compelled to accept that
representation [of actual innocence] as true when con-
sidering whether dismissal was appropriate.’’ The peti-
tioner further argues that the court’s summary dismissal
of his third petition was procedurally improper because,
upon his assertion of a claim of actual innocence in
his self-represented third petition, he was entitled at a
minimum to ‘‘counsel and . . . an opportunity to
amend the petition before any hearing on dismissal
can take place.’’ The petitioner asserts that the court’s
dismissal of the third petition under Practice Book § 23-
29, prior to issuing the writ, was procedurally improper.
According to the petitioner, ‘‘[p]reliminary sua sponte
dismissal is never appropriate under Practice Book
§ 23-29, especially where a petitioner makes a claim of
innocence.’’ (Emphasis omitted.)
Moreover, arguing, in part, that the claim of actual
innocence in the third petition distinguished it from the
second petition, the petitioner argues that the court
improperly relied on the doctrine of res judicata.
Finally, the petitioner argues that, even if the third peti-
tion was identical to the second petition, the court erro-
neously relied on the appellate stay provision, codified
in Practice Book § 61-11, in dismissing the petition.
‘‘Whether a habeas court properly dismissed a peti-
tion for a writ of habeas corpus presents a question of
law over which our review is plenary.’’ Gilchrist v.
Commissioner of Correction, 334 Conn. 548, 553, 223
A.3d 368 (2020). We will focus our analysis on the peti-
tioner’s argument that the court’s dismissal of his third
petition under Practice Book § 23-29 was procedurally
improper.
It is necessary to begin our analysis by focusing on
the basis of the habeas court’s dismissal, which was
the result of its interpretation of the third petition. The
court stated that the second and third petitions were
‘‘identical’’ and that the third petition was an ‘‘exact
copy’’ of the second petition. This interpretation of the
third petition was incorrect. It appears that the court
failed to note, as we discussed previously, that the state-
ment ‘‘I am innocent’’ was added to the third petition.
The court also stated that the third petition failed to
state a claim on which relief could be granted because
the petitioner’s appeal from the ‘‘identical’’ second peti-
tion was pending. Because the petitions were not identi-
cal, the court’s characterization of the third petition,
and thus its reliance on Practice Book § 61-11, was
incorrect.
The petitioner argues that he adequately pleaded a
claim of actual innocence and that the claim constituted
a claim on which relief could be granted. The petitioner
and the respondent disagree with respect to whether
the addition of the statement ‘‘I am innocent’’ to the
third petition was sufficient to plead a claim of actual
innocence, a claim on which relief could be granted.19
‘‘In ruling upon whether a complaint survives a motion
to dismiss, a court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader. . . .
‘‘It is well settled that [t]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil
action. . . . The principle that a plaintiff may rely only
upon what he has alleged is basic. . . . It is fundamen-
tal in our law that the right of a plaintiff to recover is
limited to the allegations of his complaint. . . . While
the habeas court has considerable discretion to frame
a remedy that is commensurate with the scope of the
established constitutional violations . . . it does not
have the discretion to look beyond the pleadings and
trial evidence to decide claims not raised.’’ (Internal
quotation marks omitted.) Abdullah v. Commissioner
of Correction, 123 Conn. App. 197, 202, 1 A.3d 1102,
cert. denied, 298 Conn. 930, 5 A.3d 488 (2010).
This court has explained that, ‘‘[t]o obtain relief
through a habeas petition, the petitioner must plead
facts that, if proven, establish that the petitioner is
entitled to relief. . . . Practice Book § 10-1 . . .
makes this pleading requirement clear: Each pleading
shall contain a plain and concise statement of the mate-
rial facts on which the pleader relies, but not of the
evidence by which they are to be proved, such statement
to be divided into paragraphs numbered consecutively,
each containing as nearly as may be a separate allega-
tion. . . . Further, if the [petitioner] allege[s] separate
and distinct [claims], [he] should . . . [assert] them in
separate counts pursuant to Practice Book § 10-26. The
burden is on [the petitioner] to plead his case clearly
and not to expect the court or his opposing counsel to
have to wade through a poorly drafted [petition] to
glean from it the [petitioner’s] theories of relief. . . .
‘‘Our case law has recognized only one situation in
which a court is not legally required to hear a habeas
petition [before dismissing the petition]. . . . Specifi-
cally, [i]f a previous [petition] brought on the same
grounds was denied, the pending [petition] may be dis-
missed without hearing, unless it states new facts or
proffers new evidence not reasonably available at the
previous hearing. . . . Although [b]oth statute and
case law evince a strong presumption that a petitioner
for a writ of habeas corpus is entitled to present evi-
dence in support of his claims . . . practical considera-
tions suggest that a habeas court is not legally required
to hear a habeas petition that itself is legally infirm.’’
(Citations omitted; emphasis altered; internal quotation
marks omitted.) Coleman v. Commissioner of Correc-
tion, 137 Conn. App. 51, 57, 46 A.3d 1050 (2012).
Thus, a petitioner’s pleading burden is to plead mate-
rial facts that entitle him to relief. See, e.g., Dinham
v. Commissioner of Correction, 191 Conn. App. 84,
93–94, 213 A.3d 507 (habeas court properly dismissed
claim pursuant to Practice Book § 23-29 for failure to
state claim on which relief could be granted because
‘‘[t]he petitioner failed to plead in his . . . petition any
factual basis upon which his claim relies’’), cert. denied,
333 Conn. 927, 217 A.3d 995 (2019). In the context of
a claim of actual innocence, the material facts must
give rise to a belief that the petitioner will present at
trial affirmative proof that he did not commit the crime.
As our Supreme Court has explained, ‘‘[h]abeas corpus
relief in the form of a new trial on the basis of a claim
of actual innocence requires that the petitioner satisfy
the two criteria set forth in Miller v. Commissioner of
Correction, [242 Conn. 745, 747, 700 A.2d 1108 (1997)].
Under Miller, the petitioner [first] must establish by
clear and convincing evidence that, taking into account
all of the evidence—both the evidence adduced at the
original criminal trial and the evidence adduced at the
habeas corpus trial—he is actually innocent of the crime
of which he stands convicted. Second, the petitioner
must also establish that, after considering all of that
evidence and the inferences drawn therefrom . . . no
reasonable fact finder would find the petitioner guilty
of the crime. Id.‘‘As to the first prong, we emphasized in Miller that
the clear and convincing standard . . . is a very
demanding standard and should be understood as such,
particularly when applied to a habeas claim of actual
innocence, where the stakes are so important for both
the petitioner and the state. . . . [That standard]
should operate as a weighty caution upon the minds of
all judges, and it forbids relief whenever the evidence is
loose, equivocal or contradictory. . . . [The standard
requires] extraordinarily high and truly persuasive dem-
onstration[s] of actual innocence. . . .
‘‘Moreover, actual innocence [must be] demonstrated
by affirmative proof that the petitioner did not commit
the crime. . . . Affirmative proof of actual innocence
is that which might tend to establish that the petitioner
could not have committed the crime . . . that a third
party committed the crime, or that no crime actually
occurred. . . . Clear and convincing proof of actual
innocence does not, however, require the petitioner to
establish that his or her guilt is a factual impossibility.
. . . In part for these reasons, we emphasized in Miller
that truly persuasive demonstrations of actual inno-
cence after conviction in a fair trial have been, and are
likely to remain, extremely rare.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Bowens v. Commissioner of Correction, 333 Conn. 502,
518–19, 217 A.3d 609 (2019).
Also, we observe that ‘‘[t]his court has stated that
[a] claim of actual innocence must be based on newly
discovered evidence. . . . This evidentiary burden is
satisfied if a petitioner can demonstrate, by a prepon-
derance of the evidence, that the proffered evidence
could not have been discovered prior to the petitioner’s
criminal trial by the exercise of due diligence.’’ (Internal
quotation marks omitted.) Outing v. Commissioner of
Correction, 190 Conn. App. 510, 540, 211 A.3d 1053,
cert. denied, 333 Conn. 903, 214 A.3d 382 (2019), cert.
denied, U.S. , 140 S. Ct. 1166, 206 L. Ed. 2d
212 (2020).
Mindful of these principles, we look more closely at
the third petition. The first point at which the petitioner
inserted the statement ‘‘I am innocent’’ was in box five
of the petition, in which he also alleged as reasons his
conviction was illegal: ‘‘[W]as not given appropriate
interpreter (Spanish); jury was forced to find me guilty;
there is no physical evidence supporting unstable state-
ments; contradictory statements.’’ The second point at
which the petitioner inserted the statement ‘‘I am inno-
cent’’ was in box six of the petition, in which he also
alleged as a reason his ‘‘incarceration/sentence’’ was
illegal: ‘‘Because of misconduct of all counsel involved
in my case: Intentional, malicious, prejudicial, discrimi-
natory (but is not limited to).’’ The statement ‘‘I am
innocent,’’ when viewed in isolation, is ambiguous. It
may be viewed as a bare conclusory statement of the
petitioner’s belief in his innocence and not necessarily
as an allegation of material fact that, if proven, would
entitle the petitioner to relief on the ground of actual
innocence. Without more, the statement does not sug-
gest that affirmative proof exists that the petitioner did
not commit the crime. Moreover, the allegations that
precede the statement ‘‘I am innocent’’ similarly lack
any reference to material facts in support of a claim of
actual innocence. To the contrary, the other allegations
reflect the petitioner’s belief that, for several reasons,
he should not have been convicted, but none of these
reasons rises to affirmative proof that he could not have
committed the crime, that a third party committed the
crime, or that no crime actually occurred.20 It bears
repeating that ‘‘[a]ctual innocence is not demonstrated
merely by showing that there was insufficient evidence
to prove guilt beyond a reasonable doubt.’’ (Internal
quotation marks omitted.) Carmon v. Commissioner
of Correction, 178 Conn. App. 356, 371, 175 A.3d 60(2017), cert. denied, 328 Conn. 913, 180 A.3d 961 (2018).
Our interpretation of the newly inserted language in
the third petition is based on the lack of material facts
contained therein in support of a claim of actual inno-
cence; it is not the result of the petitioner’s failure to
use the specific phrase ‘‘actual innocence.’’ It is well
settled that courts do not interpret pleadings so to
require the use of talismanic words and phrases. See,
e.g., Delgado v. Commissioner of Correction, 114 Conn.
App. 609, 616, 970 A.2d 792, cert. denied, 292 Conn. 920,
974 A.2d 721 (2009). ‘‘In Connecticut, we long have
eschewed the notion that pleadings should be read in
a hypertechnical manner. Rather, [t]he modern trend,
which is followed in Connecticut, is to construe plead-
ings broadly and realistically, rather than narrowly and
technically. . . . [T]he complaint must be read in its
entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded, and do substantial justice between the parties.
. . . Our reading of pleadings in a manner that
advances substantial justice means that a pleading must
be construed reasonably, to contain all that it fairly
means, but carries with it the related proposition that
it must not be contorted in such a way so as to strain the
bounds of rational comprehension.’’ (Internal quotation
marks omitted.) Deming v. Nationwide Mutual Ins.
Co., 279 Conn. 745, 778, 905 A.2d 623 (2006). For the
reasons we have discussed, the third petition, when
construed broadly and realistically, does not clearly
raise a claim of actual innocence.
Having interpreted the allegation in the third petition
at issue in this claim, we turn to the procedural argu-
ment advanced by the petitioner, namely, that the court
erred in relying on Practice Book § 23-29 in its prelimi-
nary review of the third petition prior to issuing the
writ. The petitioner repeatedly refers to the fact that
he filed the third petition in a self-represented capacity.
He also asserts that the state supplied form that he
utilized in drafting the third petition ‘‘does not include
any questions about the nature of any evidence to sup-
port a claim of actual innocence, or question when such
evidence was discovered. [Self-represented] litigants
such as the petitioner must simply do the best they can
to communicate their claims of innocence and await
the appointment of counsel for assistance in presenting
their claims in a legally sufficient manner.’’21 The peti-
tioner urges us to afford him additional leeway in plead-
ing his claim because he did so in a self-represented
capacity.22
With respect to the petitioner’s procedural argument,
our Supreme Court’s recent decision in Gilchrist v.
Commissioner of Correction, supra, 334 Conn. 548, is
instructive. In Gilchrist, our Supreme Court clarified
the proper role of the habeas court in screening habeas
petitions as well as the proper application of Practice
Book §§ 23-2423 and 23-29, both of which authorize the
habeas court to dismiss a habeas petition on the basis of
pleading deficiencies. Id., 553–63. The court explained
that, ‘‘[b]efore [a habeas] petition is served on the
respondent, the petitioner is required to file the petition
in court for review by a judge. The current review proce-
dure is set forth in Practice Book § 23-24 (a), which
requires the judicial authority to ‘promptly review any
petition for a writ of habeas corpus to determine
whether the writ shall issue.’ . . . The rule goes on
to instruct that ‘[t]he judicial authority shall issue the
writ unless it appears that: (1) the court lacks jurisdic-
tion; (2) the petition is wholly frivolous on its face; or
(3) the relief sought is not available.’ Practice Book § 23-
24 (a). If any of these three enumerated circumstances
exist, then the writ never issues in the first place, and
the judicial authority is required ‘to notify the petitioner
[that] it declines to issue the writ.’ Practice Book § 23-
24 (b). Section 23-24 thus reverses the usual sequence
followed in the ordinary civil case; the habeas petition
is first filed with the court, and the writ issues and
service of process occurs only if the court determines,
after a preliminary review of the petition, that the peti-
tion pleads a nonfrivolous claim within the court’s juris-
diction upon which relief can be granted.’’ (Emphasis
in original; footnote omitted.) Id., 556–57.
After discussing the proper application of Practice
Book § 23-24 in a habeas court’s preliminary review of
a habeas petition prior to the issuance of the writ of
habeas corpus and prior to the commencement of the
action, the court explained that Practice Book § 23-29,
the provision on which the habeas court in the present
case relied in dismissing the third petition, ‘‘contem-
plates the dismissal of a habeas petition after the writ
has issued on any of the enumerated grounds. It serves,
roughly speaking, as the analog to Practice Book §§ 10-
30 and 10-39, which, respectively, govern motions to
dismiss and motions to strike in civil actions. It is true
that § 23-29 states that the judicial authority may take
action under its authority ‘at any time,’ but the ‘time’
it references necessarily is defined by the time at which
the rule itself becomes operative which is after the
habeas court issues the writ and the action has com-
menced.’’ (Emphasis added.) Id., 561.
As we have explained, in the present case, the court
dismissed the third petition under Practice Book § 23-
29 during its preliminary consideration of the petition
and prior to issuing the writ.24 Thus, Gilchrist leads us
to conclude that the court’s reliance on § 23-29 was
procedurally improper. Instead, if the court concluded
that any of the reasons set forth in Practice Book § 23-
24 applied, it should have declined to issue the writ
rather than dismissing the petition. We are not, how-
ever, persuaded that the proper remedy is to remand
the case to the habeas court with direction to render
judgment declining to issue the writ.25 On the basis of
its erroneous determination that the third petition was
an exact copy of the second petition, the court con-
cluded that it lacked jurisdiction to consider the third
petition, the third petition failed to state a claim on
which relief could be granted, and res judicata pre-
cluded it from affording the petitioner relief. Although,
for the reasons set forth previously, we are not per-
suaded that the new allegations in the third petition
sufficiently state a claim of actual innocence, as the
petitioner argues, we nonetheless conclude that the
allegations concerning innocence, set forth by a self-
represented petitioner, are ambiguous and may consti-
tute the petitioner’s attempt to present a claim of actual
innocence. Although the petitioner has not yet alleged
material facts that would give rise to a claim of actual
innocence, Gilchrist guides us to the conclusion that
the writ should issue, and, following the appointment
of counsel, the petitioner, prior to presenting evidence
in support of his claim, will have the opportunity to
rectify pleading deficiencies that are raised by the
respondent or the court.
This remedy is consistent with Gilchrist, in which
our Supreme Court provided additional insight into the
proper screening function that the habeas court should
apply in determining whether to issue the writ: ‘‘To be
clear, the screening function of Practice Book § 23-24
plays an important role in habeas corpus proceedings,
but it is intended only to weed out obviously and
unequivocally defective petitions, and we emphasize
that [b]oth statute and case law evince a strong pre-
sumption that a petitioner for a writ of habeas corpus
is entitled to present evidence in support of his claims.
. . . Screening petitions prior to the issuance of the
writ is intended to conserve judicial resources by elimi-
nating obviously defective petitions; it is not meant to
close the doors of the habeas court to justiciable claims.
Special considerations ordinarily obtain when a peti-
tioner has proceeded [as a self-represented party]. . . .
[I]n such a case, courts should review habeas petitions
with a lenient eye, allowing borderline cases to proceed.
. . . The justification for this policy is apparent. If the
writ of habeas corpus is to continue to have meaningful
purpose, it must be accessible not only to those with
a strong legal background or the financial means to
retain counsel, but also to the mass of uneducated,
unrepresented prisoners. . . . Thus, when borderline
cases are detected in the preliminary review under § 23-
24, the habeas court should issue the writ and appoint
counsel so that any potential deficiencies can be
addressed in the regular course after the proceeding
has commenced.’’ (Citations omitted; internal quotation
marks omitted.) Id., 560–61.
The judgment in Docket No. AC 42466 is affirmed;
the appeal in Docket No. AC 42618 is dismissed in part
with respect to the denial of the motion for permission
to file a late amended petition for certification to appeal
and for reconsideration, the judgment dismissing the
petitioner’s petition for a writ of habeas corpus is
reversed and the case is remanded with direction to
issue the writ of habeas corpus.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to use the petitioner’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
This court has previously set forth the factual basis for the conviction
as follows: ‘‘On the evening of August 12, 2001, the [petitioner] returned
home from work. His daughter, the victim, who had become eight years old
on the previous day, was sleeping in the living room. The [petitioner] inserted
his finger into the victim’s vagina two times. The victim later told her mother,
who did not live with the [petitioner], what had happened and said that her
vaginal area had become painful. Her mother took her to a physician, who
discovered that the victim had a vaginal injury consistent with digital penetra-
tion.’’ State v. Antonio A., 90 Conn. App. 286, 289, 878 A.2d 358, cert. denied,
275 Conn. 926, 833 A.2d 1246 (2005), cert. denied, 546 U.S. 1189, 126 S. Ct.
1373, 164 L. Ed. 2d 81 (2006).
2
General Statutes § 52-470 provides in relevant part: ‘‘(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 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: (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 pursuant 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 under subsec-
tion . . . (d) of this section 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 coun-
sel, 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 subsec-
tion . . . (d) of this section. . . .’’
3
General Statutes § 52-470 (f) provides in relevant part: ‘‘Subsections (b)
to (e), inclusive, of this section shall not apply to (1) a claim asserting actual
innocence . . . .’’
4
In question seven on the state supplied form, the petitioner was asked to
specify whether any of the claims raised in this petition had ‘‘been previously
raised at trial, direct appeal or in any previous habeas petition . . . .’’
Despite having filed the second petition, the petitioner checked the box
marked, ‘‘No.’’
5
Practice Book § 23-29 provides: ‘‘The judicial authority may, at any time,
upon its own motion or upon motion of the respondent, dismiss the petition,
or any count thereof, if it determines that: (1) the court lacks jurisdiction;
(2) the petition, or a count thereof, fails to state a claim upon which habeas
corpus relief can be granted; (3) the petition presents the same ground as
a prior petition previously denied and fails to state new facts or to proffer
new evidence not reasonably available at the time of the prior petition; (4)
the claims asserted in the petition are moot or premature; (5) any other
legally sufficient ground for dismissal of the petition exists.’’
6
The court, however, granted the petitioner’s request for counsel.
7
The proposed amended petition set forth the following legal claims: ‘‘(1)
The habeas court erred by dismissing the petitioner’s [self-represented third]
petition as [being] ‘identical’ to the [second] petition that was dismissed as
untimely . . . because the [self-represented third] petition included claims
of innocence that were not included in the [self-represented second] peti-
tion . . . .
‘‘(2) The habeas court erred by dismissing without a hearing, counsel, or
the opportunity to amend, a [self-represented] petition that includes a plain
assertion of actual innocence . . . .
‘‘(3) The habeas court erred by dismissing the [self-represented third]
petition on the grounds that the petition fails to state a claim upon which
this court could grant relief . . . .
‘‘(4) The habeas court erred by concluding that the petitioner’s claims
and/or finding of untimeliness in [connection with the second petition] were
subject to res judicata; and,
‘‘(5) The habeas court erred by relying upon the automatic stay provisions
of Practice Book § 61-11 in dismissing the petitioner’s amended petition.’’
8
As a preface to his analysis of this claim, the petitioner states that the
court violated his right to due process under the federal and state constitu-
tions by virtue of the procedures it followed and its ultimate dismissal of
his second petition. The petitioner’s appellate brief, however, does not con-
tain an analysis of the claim under the constitutional provisions he has cited
in his brief. Accordingly, this aspect of the claim is deemed abandoned. A
bald assertion of error without more is insufficient to warrant appellate
review. See, e.g., State v. Franklin, 20 Conn. App. 96, 99, 563 A.2d 1383 (1989).
9
According to the petitioner, it is imperative that such a representation
by counsel ‘‘pause the show cause proceedings’’ because (1) ‘‘the state
provided [self-represented] petition for a writ of habeas corpus form does
not provide a place for petitioners to indicate that they wish to raise a claim
of actual innocence’’ and (2) ‘‘without the ability of habeas counsel to make
a representation as an officer of the court that an actual innocence claim
may be forthcoming, serious ethical difficulties arise.’’ With respect to the
second consideration, the petitioner argues that it was ‘‘problematic’’ for
counsel to state to the court that the petitioner has expressed his belief in
his innocence and that she had not fully investigated the claim. The petitioner
argues that, ‘‘[f]or obvious reasons, this is problematic in that it not only
requires privileged communications to be offered to avoid dismissal, [but]
it also exposes strategic matters that should be protected until the petitioner
files an amended petition and proceeds to a trial on the merits of his claims.’’
These considerations are unpersuasive. For the reasons set forth in our
analysis, our proper focus is on the claims raised in the petition before the
habeas court, whether the petitioner has demonstrated good cause for the
delay in bringing the petition, and whether additional time was necessary
to investigate the cause of the delay in filing the claims in the petition, not
on whether counsel needed additional time to investigate whether other
claims not alleged in the petition might exist.
10
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.’’
11
The petitioner also argues that the court’s subsequent dismissal of his
third petition, which we address in part II of this opinion, ‘‘displays the
error of the habeas court in denying the petitioner a further opportunity to
investigate and respond to the show cause order because . . . between the
two proceedings in this matter . . . the habeas court has essentially closed
the courthouse doors to the petitioner’s claim of innocence, which is
expressly prohibited by . . . § 52-470 (f).’’ The petitioner has failed to dem-
onstrate how the court’s dismissal of the third petition is relevant to our
analysis of its judgment dismissing the second petition.
12
The ‘‘[o]ffer of [p]roof’’ consisted of sixteen proposed findings in support
of a determination by the habeas court that good cause existed for the
petitioner’s delay in bringing the second petition. The proposed findings
are generally related to the procedural history of his second petition, the
petitioner’s health issues, and the effects of those health issues.
13
General Statutes § 52-212a provides in relevant part: ‘‘Unless otherwise
provided by law and except in such cases in which the court has continuing
jurisdiction, a civil judgment or decree rendered in the Superior Court may
not be opened or set aside unless a motion to open or set aside is filed within
four months following the date on which it was rendered or passed. . . .’’
14
Practice Book § 17-4 (a) provides: ‘‘Unless otherwise provided by law
and except in such cases in which the court has continuing jurisdiction,
any civil judgment or decree rendered in the Superior Court may not be
opened or set aside unless a motion to open or set aside is filed within four
months succeeding the date on which notice was sent. The parties may waive
the provisions of this subsection or otherwise submit to the jurisdiction of
the court.’’
15
We observe that, in his appellate brief, the petitioner cites case law
governing motions for reargument and argues that this court should ‘‘remand
this matter with instructions to grant the motion to reargue . . . .’’ (Empha-
sis added.)
16
We note that, even if the court improperly treated the motion for recon-
sideration as a motion to open, the petitioner has failed to demonstrate that
he was thereby prejudiced. Relying on the authorities previously set forth
in our analysis of this claim, we observe that a motion for reargument or
reconsideration does not afford an opportunity to present new evidence.
The purpose of the petitioner’s motion, regardless of how it was titled, was
not based on a misapprehension of law or fact but was to establish good
cause by means of facts that were known to the petitioner at the time of
the hearing, but not presented to the court at the hearing. Accordingly, the
petitioner was not entitled to relief even if the court should have treated
the motion in accordance with the manner in which he titled it, as a motion
for reconsideration..
17
As stated previously in this opinion, on February 20, 2019, the petitioner
filed the present appeal from the denial of his petition for certification to
appeal and the judgment dismissing the third petition.
18
See footnote 5 of this opinion.
19
As stated previously in this opinion, in seeking certification to appeal,
the petitioner set forth as a ground for the appeal whether the court properly
determined that the third petition failed to state a claim on which relief
could be granted.
20
In box seven of the form, which pertained to whether the claims raised in
the petition had been raised previously, the petitioner wrote: ‘‘New evidence:
Prior counsel did not present everything he was shown and or told or
support [the petitioner] when the judge himself forced the jury to get a
conviction; ineffective assistance of defense counsel; conflict of interest
across the board (state attorney, defense attorney, judicial authority).’’
Although this response mentioned ‘‘[n]ew evidence,’’ it cannot reasonably be
construed to refer to newly discovered evidence or material facts concerning
affirmative proof that the petitioner did not commit the crime.
21
Any alleged deficiency with respect to the state supplied form that the
petitioner utilized to file his third petition does not alter our analysis of
what the petitioner actually stated in the petition. Nonetheless, we observe
that the state supplied form afforded the petitioner an opportunity to state
‘‘other’’ reasons in addition to those suggested on the form. The form also
stated in relevant part: ‘‘You must state facts supporting each claim. Use
additional pages if necessary.’’ (Emphasis added.)
22
Indeed, in his reply brief, the petitioner states that his self-represented
status ‘‘is more than enough reason to not hold [him] to a requirement that
he properly plead all of the elements and evidence of his innocence claim
on a state provided form that does not include any specific place for
such answers.’’
23
Practice Book § 23-24 provides: ‘‘(a) The judicial authority shall promptly
review any petition for a writ of habeas corpus to determine whether the
writ should issue. The judicial authority shall issue the writ unless it appears
that: (1) the court lacks jurisdiction; (2) the petition is wholly frivolous on
its face; or (3) the relief sought is not available.
‘‘(b) The judicial authority shall notify the petitioner if it declines to issue
the writ pursuant to this rule.’’
24
The manner of dismissal in this case is virtually identical to that in
Gilchrist, in which our Supreme Court concluded that the habeas court
dismissed the petition before issuing the writ. See Gilchrist v. Commissioner
of Correction, supra, 334 Conn. 563. In both cases, the petition was docketed
in the habeas court, the court granted the petitioner’s application for a
waiver of fees and costs, and then dismissed the petition within a week of
when it was filed, without any indication that the petition was served on
the respondent. See id., 551–52.
25
We recognize, and the respondent argues, that a petitioner does not
invoke the jurisdiction of the habeas court unless and until he states a claim
on which relief may be granted. As this court has stated, ‘‘a petition that
fails to state a claim would be subject to dismissal under [Practice Book
§ 23-24 (a) (1)] for lack of jurisdiction.’’ Coleman v. Commissioner of Correc-
tion, 111 Conn. App. 138, 140 n.1, 958 A.2d 790 (2008), cert. denied, 290
Conn. 905, 962 A.2d 793 (2009). Nonetheless, in light of our conclusion that
the third petition is ambiguous in terms of the allegation of innocence, we
conclude that the proper remedy is for the writ to issue and for any pleading
deficiencies to be addressed following the issuance of the writ.