Kelsey v. Commissioner of Correction ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ERIC T. KELSEY v. COMMISSIONER
OF CORRECTION
(AC 42932)
Prescott, Suarez and DiPentima, Js.
Syllabus
The petitioner, who had been convicted of various crimes, sought a second
writ of habeas corpus, claiming, inter alia, ineffective assistance of
criminal trial counsel and former habeas counsel. The habeas court,
upon the request of the respondent, the Commissioner of Correction,
issued an order to show cause why the petition should be permitted to
proceed in light of the fact that the petitioner had filed it outside of the
two year time limit for successive petitions set forth in the applicable
statute (§ 52-470 (d) (1)). The court conducted an evidentiary hearing
and, thereafter, dismissed the petition pursuant to § 52-470 for lack of
good cause for the delay in filing the successive petition. On the granting
of certification, the petitioner appealed to this court. Held that the habeas
court did not abuse its discretion in dismissing the habeas petition and
properly determined that the petitioner failed to establish good cause
for the delay in filing his untimely habeas petition; the petitioner failed
to rebut successfully the presumption of unreasonable delay set forth
in § 52-470, as he failed to demonstrate that something outside of his
control or the control of habeas counsel caused or contributed to the
delay, as the only evidence having been presented was the petitioner’s
testimony that he was allegedly unaware of the statutory deadline
imposed by § 52-470 and was never made aware of it by his former
habeas counsel, and that he did not always have access to a law library
or similar legal resource while he was incarcerated and was in lockdown,
evidence that was insufficient to persuade the court that he had rebutted
the presumption of unreasonable delay, and the court properly took
into consideration the lengthy delay, indicating that the second petition
was filed nearly three years beyond the filing deadline, and properly
concluded that, even if it accepted the petitioner’s proffered excuses
at face value, a mere assertion of ignorance of the law, without more,
was insufficient, the court having properly noted that ignorance of the
law, in and of itself, was not a legally justified excuse, and the record
sufficiently demonstrated that the court properly weighed relevant fac-
tors in reaching its decision to dismiss the petition, and the petitioner
failed to demonstrate that, under the circumstances, the court’s determi-
nation was an abuse of discretion.
Argued September 22—officially released December 22, 2020
Procedural History
Petition 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; thereafter, the court granted the petition
for certification to appeal, and the petitioner appealed
to this court. Affirmed.
Naomi T. Fetterman, for the appellant (petitioner).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Brian W. Pre-
leski, state’s attorney, and Jo Anne Sulik, supervisory
assistant state’s attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The present appeal provides us with
an opportunity to delineate the ‘‘good cause’’ standard
that a petitioner must satisfy to overcome the rebuttable
presumption that a successive petition for a writ of
habeas corpus filed outside of statutorily prescribed
time limits is the result of unreasonable delay that war-
rants dismissal of the petition; see General Statutes
§ 52-470;1 and to clarify the appellate standard of review
applicable to a habeas court’s determination of whether
a petitioner has satisfied the good cause standard.
The petitioner, Eric T. Kelsey, appeals from the judg-
ment of the habeas court dismissing his successive peti-
tion for a writ of habeas corpus pursuant to § 52-470
(d) and (e). The petitioner claims on appeal that the
habeas court improperly determined that his purported
ignorance of the filing deadline set forth in § 52-470 (d)
(1) and his lack of meaningful access to a law library
during some portions of his term of incarceration were
insufficient to demonstrate good cause to overcome
the statutory presumption of unreasonable delay. We
disagree and, accordingly, affirm the judgment of the
habeas court.
The procedural background underlying this appeal is
as follows. In December, 2003, a jury convicted the
petitioner of conspiracy to commit robbery in the first
degree in violation of General Statutes §§ 53a-48 (a)
and 53a-134 (a) (3) and felony murder in violation of
General Statutes § 53a-53c.2 See State v. Kelsey, 93
Conn. App. 408, 889 A.2d 855, cert. denied, 277 Conn.
928, 895 A.2d 800 (2006). The court sentenced the peti-
tioner to a total effective term of forty years of incarcer-
ation. This court affirmed the judgment of conviction
on direct appeal, rejecting the petitioner’s claims that
the trial court improperly had admitted into evidence
certain out-of-court statements and had denied his
motion for a mistrial based on the state’s failure to
preserve and produce exculpatory evidence. Id., 410,
416. The Supreme Court denied certification to appeal
this court’s decision.
After exhausting his direct appeal, in August, 2007,
the petitioner filed his first petition for a writ of habeas
corpus challenging his conviction.3 Following a trial on
the merits, the habeas court denied the petition. This
court dismissed the petitioner’s appeal from the judg-
ment of the habeas court by memorandum decision;
Kelsey v. Commissioner of Correction, 136 Conn. App.
904, 44 A.3d 224 (2012); and our Supreme Court there-
after denied him certification to appeal from the judg-
ment of this court. Kelsey v. Commissioner of Correc-
tion, 305 Conn. 923, 47 A.3d 883 (2012).
Nearly five years later, on March 22, 2017, the peti-
tioner filed the underlying second petition for a writ of
habeas corpus that is the subject of the present appeal.
The petitioner raised seven claims not raised in his
earlier petition.4 On May 9, 2017, the respondent, the
Commissioner of Correction, filed a request with the
habeas court pursuant to § 52-470 (e) for an order
directing the petitioner to appear and show cause why
his second petition should be permitted to proceed in
light of the fact that the petitioner had filed it well
outside the two year time limit for successive petitions
set forth in § 52-470 (d) (1). See footnote 1 of this opin-
ion. The habeas court, Oliver, J., initially declined to
rule on the respondent’s request for an order to show
cause, concluding that the request was premature and
that the court lacked discretion to act on the respon-
dent’s request because the pleadings in the case were
not yet closed.5 See Kelsey v. Commissioner of Correc-
tion, 329 Conn. 711, 714, 189 A.3d 578 (2018).
After the habeas court denied the respondent’s
motion for reconsideration, the Chief Justice granted
the respondent’s request to file an interlocutory appeal
from the order of the habeas court pursuant to General
Statutes § 52-265a. The Supreme Court rejected the
habeas court’s reliance on § 52-470 (b) (1)6 as its basis
for not acting on the respondent’s request for an order
to show cause and concluded that ‘‘the habeas court’s
decision to take no action on the respondent’s motion
was predicated on its mistaken belief that it lacked
discretion to act’’ and that ‘‘[i]t is well established that
when a court has discretion, it is improper for the court
to fail to exercise it.’’7 Id., 726. The Supreme Court
reversed the habeas court’s decision and remanded the
case to the habeas court for further proceedings consis-
tent with its opinion. Id.
In accordance with the Supreme Court’s remand
order, the habeas court, Newson, J., issued an order to
show cause and conducted an evidentiary hearing. The
only evidence presented at the hearing was the testi-
mony of the petitioner. The respondent chose not to
cross-examine the petitioner or to present any other
evidence at the show cause hearing. The court also
heard legal arguments from both sides.
Thereafter, on March 20, 2019, the habeas court
issued a decision dismissing the petitioner’s second
habeas petition. In its decision, the habeas court first
set forth the relevant provisions of § 52-470 and quoted
this court’s statement in Langston v. Commissioner of
Correction, 185 Conn. App. 528, 532, 197 A.3d 1034(2018), appeal dismissed, 335 Conn. 1, 225 A.3d 282(2020), that good cause is ‘‘defined as a substantial
reason amounting in law to a legal excuse for failing
to perform an act required by law.’’ The habeas court
determined that the petitioner’s proffered excuse failed
to establish good cause under the statute, stating: ‘‘[T]he
petitioner had until July 12, 2014, to file his next habeas
petition challenging this conviction, but he did not file
it until nearly three years beyond that date. The petition-
er’s claim for delay was that he was sometimes in and
out of prison and did not always have access to law
books and the law libraries at times when he was held
in higher security facilities. He also attempts to offer
the excuse that he was not aware of § 52-470. Neither of
these is sufficient ‘good cause’ to excuse the petitioner’s
delay of nearly three years beyond the appropriate filing
deadline for this matter.’’ In support of its analysis, the
habeas court, citing State v. Surette, 90 Conn. App. 177,
182, 876 A.2d 582 (2005), noted parenthetically that
‘‘ignorance of the law excuses no one.’’ On the basis
of its determination that the petitioner lacked good
cause for the delay in filing the successive petition, the
court dismissed the petition. The court subsequently
granted certification to appeal, and this appeal
followed.
The petitioner claims on appeal that the habeas court
improperly determined that he failed to establish good
cause for the delayed filing of his second petition for
a writ of habeas corpus. For the reasons that follow,
we disagree.
I
A brief discussion of the governing statute, § 52-470,
will aid in our discussion of the petitioner’s claim. In
Kaddah v. Commissioner of Correction, 324 Conn. 548,
153 A.3d 1233 (2017), our Supreme Court had its first
opportunity to note the 2012 legislative amendments to
§ 52-470 that were made as part of ‘‘comprehensive
habeas reform’’ and included, inter alia, the addition of
subsections (d) and (e) that are at issue in the present
appeal. Id., 566. Although the court did not discuss the
specific subject of untimely petitions, the court recog-
nized that the 2012 reforms to § 52-470 were ‘‘the prod-
uct of collaboration and compromise by representatives
from the various stakeholders in the habeas process’’
and were ‘‘intended to supplement that statute’s effi-
cacy in averting frivolous habeas petitions and appeals.’’
Id., 567; see Public Acts 2012, No. 12-115, § 1.
Later, in Kelsey v. Commissioner of Correction,
supra, 329 Conn. 715–24, our Supreme Court engaged
in a more extensive discussion of § 52-470. The court
first noted that subsection (a) was not altered substan-
tively by the 2012 amendments and that ‘‘the legislature
retained language that makes clear that the expeditious
resolution of habeas petitions must be accomplished
in a manner that does not curtail a petitioner’s right
to due process. In other words, the two principles of
expediency and due process must be balanced in
effectuating the legislative intent of the 2012 habeas
reform.’’ Id., 716–17. The court explained: ‘‘The 2012
amendments are significant . . . because they provide
tools to effectuate the original purpose [of § 52-470] of
ensuring expedient resolution of habeas cases. The 2012
habeas reform added two procedural mechanisms to
assist the habeas court in resolving the case in a sum-
mary way . . . . The amendments to § 52-470 set forth
procedures by which the habeas court may dismiss
meritless petitions and untimely ones. Specifically, § 52-
470 (b) addresses the dismissal of meritless petitions,
whereas § 52-470 (c), (d) and (e) provide mechanisms
for dismissing untimely petitions.’’ (Citations omitted;
internal quotation marks omitted.) Id., 717. ‘‘[Section]
52-470 (b) provides the habeas court with a means—
short of holding a trial on the merits—to screen out
meritless petitions in a manner that allows the peti-
tioner every opportunity to meet the required good
cause showing . . . [whereas] § 52-470 (c), (d) and (e)
together address whether the petitioner can establish
good cause for a delay in filing a petition.’’ Id., 718–19.
In other words, these reforms represent the legislature’s
recognition that in order to resolve meritorious habeas
petitions in an expeditious fashion, courts needed addi-
tional procedural tools to facilitate summary disposi-
tions of habeas petitions that either failed to raise meri-
torious claims deserving a full trial or had been pursued
in a dilatory manner.
Our Supreme Court recognized that ‘‘[a]s compared
to the procedures available under § 52-470 (b) to dem-
onstrate that good cause exists for trial, § 52-470 (e)
provides significantly less detail regarding the proce-
dures by which a petitioner may rebut the presumption
that there was no good cause for a delay in filing the
petition.’’ Id., 721. ‘‘Nothing in subsection (e) expressly
addresses whether the petitioner may present argument
or evidence, or file exhibits, or whether and under what
circumstances 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. . . . The phrase ‘meaning-
ful opportunity’ is not defined in the statute. That phrase
typically refers, however, to the provision of an opportu-
nity that comports with the requirements of due pro-
cess.’’ (Citations omitted.) Id., 722. ‘‘The lack of specific
statutory contours as to the required ‘meaningful
opportunity’ suggests that the legislature intended for
the court to exercise its discretion in determining, con-
sidering the particular circumstances of the case, what
procedures should be provided to the petitioner in order
to provide him with a meaningful opportunity, consis-
tent with the requirements of due process, to rebut the
statutory presumption.’’ (Emphasis added.) Id., 723.
The Supreme Court had no reason in Kelsey v. Com-
missioner of Correction, supra, 329 Conn. 711, to dis-
cuss in detail the parameters of the ‘‘good cause’’ stan-
dard because that issue was not before it. It noted only
that § 52-470 (e) expressly recognizes that good cause
for delay may include the ‘‘discovery of new evidence
which materially affects the merits of the case and
which could not have been discovered by the exercise
of due diligence in time to meet the requirements of
subsection (c) or (d) of this section.’’8 (Emphasis omit-
ted; internal quotation marks omitted.) Id., 723–24. The
Supreme Court concluded that, ‘‘[i]n the absence of any
language in [subsection (e)] cabining the discretion of
the habeas court with respect to the timing of the issu-
ance 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.’’ Id., 724.
We read our Supreme Court’s discussion of § 52-470
as placing significant emphasis on the discretion that
the legislature granted habeas courts to achieve the
goals of habeas corpus reform, which included placing
express, definitive time limitations on the filing of an
initial petition that challenges the judgment of convic-
tion; see General Statutes § 52-470 (c); and on any sub-
sequent, successive petitions. See General Statutes § 52-
470 (d). Rather than creating a rigid, unyielding time
frame for the filing of petitions akin to that found in
ordinary statutes of limitations, the legislature chose,
instead, to create only a rebuttable presumption of
undue delay, and to afford a petitioner an opportunity
to avoid dismissal of an untimely petition by showing
‘‘good cause’’ for the delay. Consistent with our
Supreme Court’s analysis of the statute’s ‘‘meaningful
opportunity’’ provision and bearing in mind the goal of
the statute to balance expediency and due process, we
construe the absence of a detailed statutory definition
of the good cause standard as an indication that the
legislature intended the habeas court to exercise signifi-
cant discretion in making determinations regarding
‘‘good cause.’’
II
Before we turn to a discussion of the appropriate
standard of review applicable to a habeas court’s good
cause determination, some additional explication of the
good cause standard itself is required.9 No appellate
court has attempted to define with any degree of speci-
ficity the meaning of ‘‘good cause’’ in this context. Nev-
ertheless, we do not start with an entirely blank canvas.
In Langston v. Commissioner of Correction, supra,185 Conn. App. 528, as in the present case, this court
considered a petitioner’s appeal from a judgment of the
habeas court dismissing, pursuant to § 52-470 (d), an
untimely successive petition for lack of good cause.10
The court in Langston, after taking note of the sole
express example of good cause provided by the legisla-
ture in § 52-470 (e), stated that ‘‘[t]he parties also agree
that good cause has been defined as a ‘substantial rea-
son amounting in law to a legal excuse for failing to
perform an act required by law . . . [a] [l]egally suffi-
cient ground or reason.’ ’’ Id., 532. The court appears
to have accepted the parties’ definition of ‘‘good cause’’
in resolving the appeal before it, but it never stated that
it agreed with that definition, nor did it further elaborate
on the definition.11 In short, the Langston definition,
while technically accurate, provides little guidance as
to its application in the habeas context.
In attempting to synthesize a more fulsome definition
of good cause as that term is used in § 52-470 (d) and
(e), we are mindful that the statute itself provides some
interpretive guidance. As we have indicated, the statute
does not attempt to exhaustively define good cause. It
does, however, provide one example, stating: ‘‘For the
purposes of . . . [§ 52-470 (e)], good cause includes,
but is not limited to, the discovery of new evidence
which materially affects the merits of the case and
which could not have been discovered by the exercise
of due diligence in time to meet the requirements of
subsection (c) or (d) of this section.’’ (Emphasis added.)
General Statutes § 52-470 (e). This example of good
cause provides insight into the type of circumstances
that the legislature intended would satisfy the good
cause standard. By indicating that good cause for filing
an untimely petition could be met by proffering new
legally significant evidence that could not have been
discovered with due diligence, the legislature signaled
its intent that a good cause determination pursuant to
§ 52-470 (e) must emanate from a situation that lies
outside of the control of the petitioner or of habeas
counsel, acting with reasonable diligence.
It is also helpful to seek interpretive guidance from
similar instances in which our courts have applied a
‘‘good cause’’ standard in considering whether a party
should be permitted to proceed on a late filing. The
court in Schoolhouse Corp. v. Wood, 43 Conn. App. 586,
684 A.2d 1191 (1996), cert. denied, 240 Conn. 913, 691
A.2d 1079 (1997), which was cited by this court in Lang-
ston, noted that excuses that involved ‘‘[n]eglect, indif-
ference, disregard of plainly applicable statutory
authority and self-created hardship’’ would not comport
with its definition of good cause. Id., 591–92. Our
Supreme Court, in discussing whether to exercise its
supervisory authority to consider an untimely filed
appeal for ‘‘good cause shown’’ under our rules of prac-
tice; see Practice Book § 60-2 (5); similarly has indicated
that good cause must involve exceptional circum-
stances beyond the control of the party seeking to be
excused from the filing deadline. See Connecticut
Light & Power Co. v. Lighthouse Landings, Inc., 279
Conn. 90, 104, 900 A.2d 1242 (2006).
We conclude that to rebut successfully the presump-
tion of unreasonable delay in § 52-470, a petitioner gen-
erally will be required to demonstrate that something
outside of the control of the petitioner or habeas coun-
sel caused or contributed to the delay. Although it is
impossible to provide a comprehensive list of situations
that could satisfy this good cause standard, a habeas
court properly may elect to consider a number of factors
in determining whether a petitioner has met his eviden-
tiary burden of establishing good cause for filing an
untimely petition. Based on the authorities we have
discussed and the principles emanating from them, fac-
tors directly related to the good cause determination
include, but are not limited to: (1) whether external
forces outside the control of the petitioner had any
bearing on the delay; (2) whether and to what extent
the petitioner or his counsel bears any personal respon-
sibility for any excuse proffered for the untimely filing;
(3) whether the reasons proffered by the petitioner in
support of a finding of good cause are credible and are
supported by evidence in the record; and (4) how long
after the expiration of the filing deadline did the peti-
tioner file the petition. No single factor necessarily will
be dispositive, and the court should evaluate all relevant
factors in light of the totality of the facts and circum-
stances presented.
III
We turn next to the standard of review applicable to
the present appeal, which is a matter disputed by the
parties. The petitioner argues that the habeas court’s
dismissal of his petition for lack of good cause is a legal
conclusion that should be subject to plenary review.
The petitioner further argues that whether he estab-
lished good cause under § 52-470 presents an issue of
statutory construction over which our review is like-
wise plenary. The respondent, on the other hand, notes
that this court has provided ‘‘conflicting suggestions
in prior cases’’ regarding the appropriate standard of
review and asks that we ‘‘take this opportunity to clarify
that the proper standard of review of the habeas court’s
finding of lack of good cause is abuse of discretion.’’
We agree with the petitioner that, to the extent we must
construe the meaning of ‘‘good cause,’’ as that term is
used in § 52-470, the issue involves principles of statu-
tory interpretation over which our review is always
plenary. See Kelsey v. Commissioner of Correction,
supra, 329 Conn. 715–24. We also agree with the respon-
dent, however, that a habeas court’s determination of
whether a petitioner has satisfied the good cause stan-
dard in a particular case requires a weighing of the
various facts and circumstances offered to justify the
delay, including an evaluation of the credibility of any
witness testimony. As such, the determination invokes
the discretion of the habeas court and is reversible only
for an abuse of that discretion.12
That an abuse of discretion standard of review should
apply is consistent with other instances in which
reviewing courts have applied that standard in
reviewing a lower court’s determination involving
whether a party has established sufficient ‘‘good cause’’
to proceed on an untimely pleading. For example, in
State v. Ayala, 324 Conn. 571, 585, 153 A.3d 588 (2017),
our Supreme Court indicated that a trial court’s decision
whether to allow the state to amend a criminal informa-
tion after a trial had commenced ‘‘for good cause
shown’’ is reviewed for an abuse of discretion. Our
Supreme Court has also applied an abuse of discretion
standard of review when called on to consider this
court’s determination, pursuant to Practice Book § 60-
2 (6), regarding whether a party has established good
cause for its failure to file a timely appeal. See Alliance
Partners, Inc. v. Voltarc Technologies, Inc., 263 Conn.
204, 211, 820 A.2d 224 (2003) (‘‘[w]e cannot conclude
on the facts of this case that the Appellate Court abused
its discretion in determining that the plaintiff’s explana-
tion for its late appeal did not constitute good cause’’);
see also Georges v. OB-GYN Services, P.C., 335 Conn.
669, 689, 240 A.3d 249 (2020) (applying abuse of discre-
tion standard in assessing ‘‘whether the defendants
established the requisite ‘good cause’ under Practice
Book §§ 60-2 (5) and 60-3’’). Similar to the considerable
discretion that this court exercises over whether to
permit an untimely appeal to proceed, the legislature
imparted the habeas court with procedural tools needed
to manage its dockets, which included discretion to
determine, on a case-by-case basis, whether a petitioner
has established ‘‘good cause’’ sufficient to permit an
untimely petition to proceed.
We acknowledge that both this court and our
Supreme Court have stated that ‘‘[t]he conclusions
reached by the [habeas] court in its decision to dismiss
[a] habeas petition are matters of law, subject to plenary
review.’’ Foote v. Commissioner of Correction, 170
Conn. App. 747, 753, 155 A.3d 823, cert. denied, 325
Conn. 902, 155 A.3d 1271 (2017); see also Gilchrist v.
Commissioner of Correction, 334 Conn. 548, 553, 223
A.3d 368 (2020) (‘‘[w]hether a habeas court properly
dismissed a petition for a writ of habeas corpus presents
a question of law over which our review is plenary’’).
Those cases, however, did not involve a review of a
habeas court’s dismissal of a petition following a show
cause hearing under § 52-470 (e). Rather, that standard
has been applied in appeals that challenged a habeas
court’s declining to issue a writ pursuant to Practice
Book § 23-24, or dismissing a petition for lack of subject
matter jurisdiction or other legal ground raised in a
motion to dismiss pursuant to Practice Book § 23-29.
These types of preliminary dismissals typically are
made solely on the basis of the allegations contained
in the pleadings, do not ordinarily involve the taking
or weighing of evidence, and do not require the exercise
of discretion by the habeas court in deciding whether
good cause exists.13
In contrast, in evaluating whether a petitioner has
established good cause to overcome the rebuttable pre-
sumption of unreasonable delay in filing a late petition
under § 52-470, the habeas court does not make a
strictly legal determination. Nor is the court simply
finding facts. Rather, it is deciding, after weighing a
variety of subordinate facts and legal arguments,
whether a party has met a statutorily prescribed eviden-
tiary threshold necessary to allow an untimely filed
petition to proceed. This process is a classic exercise of
discretionary authority, and, as such, we will overturn
a habeas court’s determination regarding good cause
under § 52-470 only if it has abused the considerable
discretion afforded to it under the statute.
‘‘In reviewing a claim of abuse of discretion, we have
stated that [d]iscretion 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. . . . In general, abuse
of discretion exists when a court could have chosen
different alternatives but has decided the matter so
arbitrarily as to vitiate logic, or has decided it based
on improper or irrelevant factors. . . . [Reversal is
required only] [i]n those cases in which an abuse of
discretion is manifest or where injustice appears to
have been done . . . .’’ D’Ascanio v. Toyota Industries
Corp., 133 Conn. App. 420, 428, 35 A.3d 388 (2012),
aff’d, 309 Conn. 663, 72 A.3d 1019 (2013).
IV
Having provided additional guidance on the meaning
of good cause under the statute and clarifying our stan-
dard of review, we turn to our consideration of whether,
under the circumstances of the present case, the court
abused its discretion by determining that the petitioner
failed to demonstrate good cause for his delay in filing
the second habeas petition. The petitioner does not
dispute that his second petition for a writ of habeas
corpus challenged the same underlying conviction that
he challenged in his first petition or that the second
petition was not filed within two years after he had
exhausted his appellate rights regarding the dismissal
of his first petition. Further, he does not dispute that,
pursuant to § 52-470 (d) (1), the untimely filing of the
second petition created a rebuttable presumption that
the untimely filing was the result of unreasonable delay
or that he had the evidentiary burden to overcome that
presumption. Rather, the petitioner’s argument on
appeal is that the habeas court improperly determined
that he failed to satisfy this burden. The respondent
counters that there is nothing in the record before us
from which we could conclude that the habeas court
abused its discretion in determining that the petitioner
failed to meet his burden of establishing good cause for
the delay, and, accordingly, the habeas court properly
dismissed the untimely second petition. The respondent
also argues that, due to the lack of any particular find-
ings by the court assessing the credibility of the petition-
er’s testimony at the show cause hearing, we necessarily
are limited in our review as to whether the habeas court
was required to find good cause on this record as a
matter of law. We conclude that the habeas court prop-
erly exercised its discretion in dismissing the petition.
The following additional facts and procedural history
are relevant to our discussion of the petitioner’s claim.
The petitioner was the only witness who testified at
the show cause hearing, and no other evidence was
offered by the parties. According to his testimony,
shortly after the Supreme Court in 2012 finally disposed
of his appeal from the denial of his first petition, he
received a letter from his appellate habeas counsel.
That letter notified him of the Supreme Court’s decision
regarding the first petition but did not inform him of
any time limitation for filing a subsequent petition. Addi-
tionally, the petitioner testified about his access to legal
resources, such as a law library, during his incarcera-
tion. According to the petitioner, beginning sometime
in 2012, through the end of February, 2013, he was held
in administrative segregation and had no access to a
law library. He also testified that he had no access to
a law library from February, 2013, through December,
2013, when he was in twenty-two hour a day lockdown.
From December, 2013, onward, however, he testified
that he was housed in the general prison population on
a twenty hour a day lockdown and testified that, during
that time, he had access to a law library or the equiva-
lent. The petitioner asserted that, because of his lack
of access to legal resources during segregation and
lockdown and his former habeas counsel’s failure to
inform him of the time limitations of § 52-470, he was
unaware of the deadline for filing his second habeas
petition, and this lack of knowledge necessarily estab-
lished ‘‘good cause’’ for any delay.
We are not persuaded that the petitioner’s alleged
lack of knowledge of the deadlines contained in § 52-
470, even if deemed credible by the court, is sufficient
to compel a conclusion that he had met his burden of
demonstrating good cause for the delay. The habeas
court properly concluded that a mere assertion of igno-
rance of the law, without more, is insufficient. The
only evidence presented by the petitioner supporting
his contention that he was unaware of § 52-470’s filing
deadline was his own testimony that he lacked personal
knowledge of the deadline and that he was never
informed of it by his former habeas counsel.
It is unclear whether the habeas court credited the
petitioner’s assertion. The court stated merely that the
petitioner ‘‘attempts to offer the excuse that he was not
aware of § 52-470.’’ (Emphasis added.) Certainly, the
habeas court could have chosen not to credit the peti-
tioner’s assertion that he was unaware of the filing
deadline in light of the fact that the petitioner had initi-
ated both the former and present habeas actions him-
self, thereby suggesting some familiarity with habeas
procedures. Additionally, the latest petition contained
a handwritten attachment with legal citations that sug-
gests that the petitioner was able to do some legal
research and, with diligence, could have familiarized
himself with the requirements of § 52-470. The petition-
er’s own testimony was that, for some portion of the
time prior to the expiration of the two year limitation
period, he was housed in the general prison population
and had access to legal resources.
Regardless of whether the court credited the petition-
er’s claim of ignorance of § 52-470, it nevertheless went
on to conclude that the petitioner’s own ignorance of
the law did not satisfy his burden to establish good
cause for the untimely filing. This reasoning is legally
sound. ‘‘The familiar legal maxims, that [everyone] is
presumed to know the law, and that ignorance of the
law excuses no one, are founded upon public policy
and in necessity, and the [principle underlying] them
is that one’s acts must be considered as having been
done with knowledge of the law, for otherwise its eva-
sion would be facilitated and the courts burdened with
collateral inquiries into the content of men’s minds.’’
Atlas Realty Corp. v. House, 123 Conn. 94, 101, 192 A.
564 (1937); see also State v. Surette, supra, 90 Conn.
App. 182. We are also not persuaded that the petitioner
overcame the presumption simply because he was not
represented by counsel at the time he filed the petition.
‘‘Although we allow pro se litigants some latitude, the
right of self-representation provides no attendant
license not to comply with relevant rules of procedural
and substantive law.’’ (Emphasis added.) Ajadi v. Com-
missioner of Correction, 280 Conn. 514, 549, 911 A.2d
712 (2006).
Furthermore, the petitioner has failed to persuade us
that there is any legal significance to the fact that former
habeas counsel who represented him with respect to
his first petition did not inform him about the statutory
deadline for filing a successive petition. The petitioner
fails to cite legal authority that imposes any such duty
of disclosure on former habeas counsel, nor are we
aware of any. Former habeas counsel was engaged to
represent the petitioner with respect to the first petition
and presumably, consistent with his or her professional
obligation, would have endeavored to raise any and
all nonfrivolous claims available to the petitioner in
that petition.
Because our own habeas corpus standards have
developed in tandem with federal habeas corpus juris-
prudence; see, e.g., Crawford v. Commissioner of Cor-
rection, 294 Conn. 165, 181–82, 982 A.2d 620 (2009);
Connecticut courts often have looked to federal habeas
decisional law for guidance. Federal courts, in consider-
ing whether circumstances exist to warrant equitable
tolling of the one year federal habeas corpus statute of
limitations for persons incarcerated on state charges;
see 28 U.S.C. § 2244 (d) (1) (2018); have held that a
petitioner’s ignorance of the limitation period or lack
of legal experience generally is insufficient cause to
excuse an untimely filed petition. See, e.g., Waldron-
Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir. 2009)
(self-represented petitioner’s deprivation of legal mate-
rials, confusion or ignorance of law are not circum-
stances warranting equitable tolling); Delaney v. Mates-
anz, 264 F.3d 7, 15 (1st Cir. 2001) (rejecting argument
that District Court abused its discretion by not applying
equitable tolling principles to save untimely petition
filed by self-represented prisoner asserting ignorance
of law, quoting Fisher v. Johnson, 174 F.3d 710, 714
(5th Cir. 1999), cert. denied, 531 U.S. 1164, 121 S. Ct.
1124, 148 L. Ed. 2d 991 (2001), for proposition that
‘‘[i]gnorance of the law, even for an incarcerated pro
se petitioner, generally does not excuse prompt filing’’).
Although the federal courts apply principles of equitable
tolling, we can think of no valid reason why a different
standard should apply to a petitioner’s knowledge, or
lack thereof, of the statutory filing requirements con-
tained in § 52-470. To hold otherwise threatens to create
an easily asserted excuse, difficult to disprove, and,
if readily accepted, would threaten to undermine the
reform that the legislature intended by enacting the
statutory time limits.
In light of the deferential standard of review and the
record before us, the petitioner has failed to demon-
strate on appeal that the habeas court abused its discre-
tion by dismissing his untimely successive petition. The
habeas court provided the petitioner with an evidentiary
hearing at which he could have presented evidence to
satisfy his burden of establishing good cause for the
untimely petition. Ultimately, the habeas court con-
cluded that the petitioner failed to provide sufficient
evidence to persuade it that he had rebutted the pre-
sumption of unreasonable delay. In so concluding, the
court properly took into consideration the lengthy
delay, indicating that the second petition was filed
nearly three years beyond the filing deadline. The court
acknowledged the excuses offered by the petitioner for
the delay, including that he allegedly was unaware of
§ 52-470 and that he did not always have access to a
law library or similar legal resource while incarcerated.
The court made no express findings as to whether it
found the petitioner credible, but appeared to conclude
that, even if it accepted the petitioner’s proffered
excuses at face value, they were insufficient in the
court’s assessment to overcome the statutory presump-
tion of unreasonable delay imposed by the legislature.
The court properly noted that ignorance of the law is
not, in and of itself, a legally justified excuse. We are
satisfied from our review of the record that the habeas
court properly weighed relevant factors in reaching its
decision to dismiss the petition, and the petitioner sim-
ply has failed to demonstrate that, under the circum-
stances, the habeas court’s determination amounted to
an abuse of discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-470 provides in relevant part: ‘‘(a) The court or
judge hearing any habeas corpus shall proceed in a summary way to deter-
mine the facts and issues of the case, by hearing the testimony and arguments
in the case, and shall inquire fully into the cause of imprisonment and
thereupon dispose of the case as law and justice require.
***
‘‘(d) In the case of a petition filed subsequent to a judgment on a prior
petition challenging the same conviction, there shall be a rebuttable pre-
sumption that the filing of the subsequent petition has been delayed without
good cause if such petition is filed after the later of the following: (1) Two
years after the date on which the judgment in the prior petition is deemed
to be a final judgment due to the conclusion of appellate review or the
expiration of the time for seeking such review; (2) October 1, 2014; or (3)
two years after the date on which the constitutional or statutory right
asserted in the petition was initially recognized and made retroactive pursu-
ant to a decision of the Supreme Court or Appellate Court of this state or
the Supreme Court of the United States or by the enactment of any public
or special act. For the purposes of this section, the withdrawal of a prior
petition challenging the same conviction shall not constitute a judgment.
The time periods set forth in this subsection shall not be tolled during the
pendency of any other petition challenging the same conviction. Nothing in
this subsection shall create or enlarge the right of the petitioner to file a
subsequent petition under applicable law.
‘‘(e) In a case in which the rebuttable presumption of delay . . . applies,
the court, upon the request of the respondent, shall issue an order to show
cause why the petition should be permitted to proceed. The petitioner or,
if applicable, the petitioner’s counsel, shall have a meaningful opportunity
to investigate the basis for the delay and respond to the order. If, after such
opportunity, the court finds that the petitioner has not demonstrated good
cause for the delay, the court shall dismiss the petition. For the purposes
of this subsection, good cause includes, but is not limited to, the discovery
of new evidence which materially affects the merits of the case and which
could not have been discovered by the exercise of due diligence in time to
meet the requirements of subsection . . . (d) of this section . . . .’’
2
The jury acquitted the petitioner of murder in violation of General Stat-
utes § 53a-54a (a). See State v. Kelsey, 93 Conn. App. 408, 410 n.1, 889 A.2d
855, cert. denied, 277 Conn. 928, 895 A.2d 800 (2006). According to this
court’s recitation of the facts underlying the petitioner’s conviction, the
petitioner, during a robbery planned with several coconspirators, stabbed
the victim with a knife. Id., 411. The victim later died during surgery. Id., 412.
3
The petitioner, through court-appointed counsel, filed a one count
amended petition in which he argued that his rights to due process and a
fair trial had been violated because two coconspirators who testified against
him at the criminal trial were offered consideration by the state in exchange
for their testimony; that the state failed to disclose that it offered these
witnesses consideration; that the witnesses lied when asked at trial if they
were offered consideration by the state for their testimony, denying that
they had received any consideration; and that the state failed to correct this
false testimony.
4
The petitioner filed the operative petition as a self-represented party.
Although he later was appointed habeas counsel, counsel did not file an
amended petition. In this second petition, the petitioner raised claims of
ineffective assistance of criminal trial counsel and former habeas trial coun-
sel, as well as claims directed at his coconspirator’s testimony and other
inculpatory evidence admitted at the criminal trial.
5
The court’s order stated in relevant part: ‘‘No action will be taken pursu-
ant to [§] 52-470 (b) (1) as the pleadings are not yet closed, thereby making
the request premature. The respondent may reclaim the motion at the appro-
priate time. . . . Upon receipt of the certificate of closed pleadings, the
court shall schedule a date to hear argument.’’
6
General Statutes § 52-470 (b) (1) provides: ‘‘After the close of all pleadings
in a habeas corpus proceeding, the court, upon the motion of any party or,
on its own motion upon notice to the parties, shall determine whether there
is good cause for trial for all or part of the petition.’’ (Emphasis added.)
7
The court reasoned that the motion for order to show cause filed by the
respondent did not challenge whether there was good cause to proceed to
trial on the merits with respect to all or part of the petition pursuant to
§ 52-470 (b), but, rather, only sought to have the court address the timeliness
of the petition, irrespective of its merits, pursuant to subsection (e) of § 52-
470, which, unlike subsection (b), did not contain any requirement that
pleadings be closed before the court could consider the respondent’s request.
See Kelsey v. Commissioner of Correction, supra, 329 Conn. 720–23.
8
The legislature chose not to define ‘‘good cause’’ beyond providing this
sole example. Although ‘‘[w]e are not permitted to supply statutory language
that the legislature may have chosen to omit’’; (internal quotation marks
omitted) Kelsey v. Commissioner of Correction, supra, 329 Conn. 721; we
nevertheless are permitted, consistent with principles of statutory interpreta-
tion, to construe the meaning of the legislature’s use of the term ‘‘good
cause’’ in this context. See part III of this opinion.
9
We note that our Superior Courts have sometimes struggled to apply
the good cause standard consistently, resulting in disparate results that are
not easily reconciled. Compare, e.g., Shuff v. Commissioner of Correction,
Superior Court, judicial district of Tolland, Docket No. CV-XX-XXXXXXX-S
(April 3, 2019) (holding habeas counsel’s failure to advise petitioner of
statutory time constraints sufficient to establish good cause for late filing),
with Greenfield v. Commissioner of Correction, Superior Court, judicial
district of Tolland, Docket No. CV-XX-XXXXXXX-S (October 17, 2019) (holding
that petitioner’s claim of lack of knowledge of statutory time limits as result
of habeas counsel’s failure to advise him was insufficient to make showing
of good cause needed to file untimely petition).
10
The petitioner in Langston argued before the habeas court and on appeal
that there was good cause for the delay in the filing of the successive petition
because an attorney who had represented him in conjunction with an earlier
habeas petition allegedly had advised him to withdraw that timely filed
petition and to file the successive petition in its place, purportedly without
explaining to the petitioner the potential legal ramifications of such action.
Langston v. Commissioner of Correction, supra, 185 Conn. App. 532.
Because the petitioner did not call his former habeas counsel to testify
at the show cause hearing, the habeas court concluded that there was
‘‘insufficient evidence to ascertain whether counsel had failed to apprise
the petitioner of the time constraints governing his subsequent petition.’’
Id., 533. This court stated that it could not conclude that the habeas court
improperly dismissed the petition on that basis. Id.This court also rejected the petitioner’s legal argument that subsections
(d) and (e) of § 52-470 were inapplicable because the sole purpose of those
provisions was to curtail stale claims brought years after a final judgment
was rendered in a prior habeas action. Id., 532–33. The petitioner argued
that, although his latest petition technically was untimely, he nonetheless
had been challenging his conviction continuously for nearly two decades
and, thus, his latest petition was ‘‘not representative of the vexatious or
frivolous claims that the 2012 reforms to § 52-470 were implemented to
address.’’ Id., 533. This court rejected the petitioner’s proposed statutory
construction, noting that the petitioner voluntarily had withdrawn his prior
petition days before a hearing on a motion to dismiss it and on ‘‘the relative
eve of trial.’’ Id. This court explained that ‘‘[t]he fact that the petitioner has
litigated previous habeas claims does not excuse or justify this tactic, nor
does it explain his failure to refile this case before the [statutory] deadline.’’
Id. At the conclusion of its analysis, this court stated: ‘‘We cannot conclude
that this argument demonstrates good cause for this untimely petition.’’ Id.
To the extent that our conclusion could be misconstrued as having rendered
de novo review as to whether the petitioner met his burden of establishing
good cause, a standard of review that we reject in part III of this opinion, we
clarify that we were rejecting, as a matter of law, the statutory construction
argument advanced by the petitioner.
11
The definition was taken from Schoolhouse Corp. v. Wood, 43 Conn.
App. 586, 591, 684 A.2d 1191 (1996), cert. denied, 240 Conn. 913, 691 A.2d
1079 (1997), which was quoting a generalized definition of ‘‘good cause’’
found in Black’s Law Dictionary (6th Ed. 1990), in the context of a discussion
of a court’s common-law, discretionary authority to grant an untimely motion
to substitute a decedent’s executor as a party defendant.
12
It is, of course, axiomatic that in applying the abuse of discretion stan-
dard, ‘‘[t]o the extent that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court unless they are clearly
erroneous . . . .’’ (Internal quotation marks omitted.) Carter v. Commis-
sioner of Correction, 133 Conn. App. 387, 392, 35 A.3d 1088, cert. denied,
307 Conn. 901, 53 A.3d 217 (2012).
13
The petitioner cites Johnson v. Commissioner of Correction, 285 Conn.
556, 566, 941 A.2d 248 (2008), for the proposition that our review should
be plenary. Johnson also did not involve a challenge to a good cause determi-
nation made pursuant to § 52-470 but, instead, was an appeal following a
trial on the merits of a habeas petition in which the habeas court had
dismissed a portion of the petition on the basis of procedural default. As
authority for the standard of review it imposed in Johnson, the court cited
language from In re Jonathan M., 255 Conn. 208, 217, 764 A.2d 739 (2001).
In In re Jonathan M., our Supreme Court reviewed the dismissal of a habeas
petition that sought to collaterally attack a judgment terminating parental
rights on the ground that the respondent received ineffective assistance of
counsel. Because the question of whether a respondent in a termination of
parental rights case properly could assert a claim of ineffective assistance
of counsel raised a pure question of law, the court’s application of plenary
review in that case is distinguishable from the decision under review in the
present matter.