Solek v. Commissioner of Correction ( 2021 )

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TIMOTHY SOLEK v. COMMISSIONER
OF CORRECTION
(AC 43288)
Bright, C. J., and Moll and DiPentima, Js.
Syllabus
The petitioner, who had been convicted of the crimes of murder and sexual
assault in the second degree, sought a second writ of habeas corpus,
claiming that his trial counsel had rendered ineffective assistance, and
the habeas court rendered judgment dismissing the petition. Thereafter,
the habeas court denied the petition for certification to appeal, and the
petitioner appealed to this court. Held:
1. This court declined to review the petitioner’s claim that the habeas court
improperly determined that he had not established good cause for the
untimely filing of his second petition sufficient to rebut the statutory
(§ 52-470) presumption of unwarranted delay: the petitioner raised for
the first time in his reply brief the threshold issue of whether the habeas
court abused its discretion in denying his petition for certification to
appeal, rendering that claim unreviewable; moreover, even if the peti-
tioner properly had raised that threshold issue, the petitioner failed to
establish that the court abused its discretion in denying certification
to appeal, the petitioner having failed to demonstrate that the court’s
conclusion that he had not demonstrated good cause for delay was
debatable among jurists of reason, a court could resolve the issue differ-
ently or the questions raised deserved encouragement to proceed fur-
ther; furthermore, the petitioner’s argument that his severe mental health
issues provided good cause for the delay was unreviewable because the
record was inadequate to review such a claim, as the habeas court did
not address the issue in its memorandum of decision and the petitioner
did not filed a motion for articulation.
2. The petitioner’s claims that the habeas court failed to provide him with
a meaningful opportunity to investigate and to present evidence as to
good cause for the delay in filing his petition was not reviewable on
appeal: the petitioner’s claim that the court failed to provide him with
a meaningful opportunity to present evidence as to a plea offer was
unreviewable because the petitioner failed to raise that evidentiary issue
in his petition for certification to appeal; moreover, the petitioner’s claim
that the court failed to provide him with a meaningful opportunity to
conduct an investigation regarding newly discovered evidence regarding
the plea offer to support good cause for delay was outside the scope
of appellate review, as the petitioner did not raise the issue at any time
before the court, request additional time from the court in which to
conduct an investigation, or include this ground in his petition for certifi-
cation to appeal, which also precluded review under State v. Golding
(213 Conn. 233).
Argued January 4—officially released March 16, 2021
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 denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (petitioner).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Emily Trudeau, assistant state’s attorney,
for the appellee (respondent).
Opinion
DiPENTIMA, J. The petitioner, Timothy Solek,
appeals from the judgment of the habeas court dismiss-
ing as untimely, pursuant to General Statutes § 52-470
(d) and (e), his petition for a writ of habeas corpus.
On appeal, the petitioner claims that the court (1)
improperly determined that he had not established good
cause for the untimely filing sufficient to rebut the statu-
tory presumption of unwarranted delay and (2) failed
to provide him with a meaningful opportunity to investi-
gate and to present evidence as to good cause for the
delay in filing his petition. We dismiss the appeal.
The following facts and procedural history are rele-
vant. In 1999, the petitioner was convicted, following
a jury trial, of murder and sexual assault in the second
degree. The petitioner was sentenced to a total effective
term of fifty-five years of incarceration. His conviction
was affirmed on direct appeal. See State v. Solek, 66
Conn. App. 72, 91, 783 A.2d 1123, cert. denied, 258 Conn.
941, 786 A.2d 428 (2001). Thereafter, the petitioner filed
his first habeas petition, alleging, inter alia, ineffective
assistance of trial and appellate counsel. The habeas
court, Hon. William L. Hadden, Jr., judge trial referee,
dismissed the petition, and this court affirmed that judg-
ment on appeal. See Solek v. Commissioner of Correc-
tion, 107 Conn. App. 473, 488, 946 A.2d 239, cert. denied,
289 Conn. 902, 957 A.2d 873 (2008).
On June 21, 2018, the self-represented petitioner filed
a second petition for a writ of habeas corpus, which is
the subject of this appeal. In this petition, he alleged
new claims of ineffective assistance of trial counsel.
The respondent, the Commissioner of Correction, filed
a motion for an order to show cause regarding whether
the second petition should be dismissed as untimely
pursuant to § 52-470 (d) and (e). Section 52-470 (d)
provides in relevant part: ‘‘In the case of a petition filed
subsequent to a judgment on a prior petition challenging
the same conviction, there shall be a rebuttable 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 . . . (2) October
1, 2014 . . . .’’
At the hearing held on the respondent’s motion to
show cause, the petitioner, then represented by coun-
sel, was the sole witness. He testified to his reasons
for the delay, which included reliance on inaccurate
advice of his habeas appellate counsel and the effect
his mental health had on his ability to promptly file a
second petition. In a memorandum of decision, the
court found that the second habeas action was com-
menced after October 1, 2014, thereby triggering the
statutory presumption of delay without good cause. It
then concluded that the petitioner failed to demonstrate
good cause to rebut the presumption of delay and dis-
missed the action. The petitioner filed a petition for
certification to appeal, and the court denied the petition.
This appeal followed.
I
The petitioner claims that the court erred in dismiss-
ing his petition for a writ of habeas corpus. Specifically,
he argues that the court improperly concluded that no
good cause existed to rebut the presumption of delay
in the filing of his petition for a writ of habeas corpus.
We decline to review this claim because the petitioner
has not properly raised a threshold claim.
The following legal principles are relevant to our
analysis. In order to obtain appellate review of the dis-
missal of his petition for a writ of habeas corpus when
his petition for certification to appeal that dismissal
was denied, the petitioner was required to satisfy the
two part standard set forth by our Supreme Court in
Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601(1994), and adopted in Simms v. Warden, 230 Conn.
608, 612, 646 A.2d 126 (1994). ‘‘Faced with the habeas
court’s denial of certification to appeal, a petitioner’s
first burden is to demonstrate that the habeas court’s
ruling constituted an abuse of discretion. . . . If the
petitioner succeeds in surmounting that hurdle, the peti-
tioner must then demonstrate that the judgment of the
habeas court should be reversed on its merits.’’ (Cita-
tions omitted.) Simms v. Warden, supra, 230 Conn. 612.
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further.’’ (Internal
quotation marks omitted.) Owens v. Commissioner of
Correction, 63 Conn. App. 829, 831, 779 A.2d 165, cert.
denied, 258 Conn. 905, 782 A.2d 138 (2001).
The respondent argues that the petitioner’s claim is
unreviewable because the petitioner failed to address
in his main appellate brief the issue of whether the
habeas court abused its discretion in denying certifica-
tion to appeal. We agree.
In Goguen v. Commissioner of Correction, 195 Conn.
App. 502, 504–505, 225 A.3d 977, cert. granted, 335 Conn.
925, 234 A.3d 980 (2020), this court declined to review
the petitioner’s claims seeking to reverse the judgment
of the habeas court on the merits because the petitioner
failed to satisfy the first prong of Simms v. Warden,
supra, 229 Conn. 187, as a result of having ‘‘failed to
brief the threshold question of whether the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal.’’ In the present case, the petitioner did
not raise the issue of the denial of the certification to
appeal until his reply brief. A claim that the habeas
court abused its discretion in denying certification to
appeal when raised for the first time in a reply brief is
unreviewable. ‘‘The appellate courts of this state have
often held that an appellant may not raise an issue for
the first time in a reply brief. . . . An appellant’s claim
must be framed in the original brief so that it can be
responded to by the appellee in its brief, and so that
we can have the full benefit of that written argument.
. . . We decline to consider the argument concerning
this matter in the petitioner’s reply brief.’’ (Citations
omitted; internal quotation marks omitted.) Niblack v.
Commissioner of Correction, 80 Conn. App. 292, 298,
834 A.2d 779 (2003), cert. denied, 267 Conn. 916, 841
A.2d 219 (2004); id. (declining to consider claim that
habeas court abused its discretion in denying certifica-
tion to appeal when raised for first time in reply brief);
see also Thorpe v. Commissioner of Correction, 165
Conn. App. 731, 733, 140 A.3d 319 (petitioner cannot
obtain appellate review of claim raised for first time in
reply brief that habeas court abused its discretion in
denying certification to appeal), cert. denied, 323 Conn.
903, 150 A.3d 681 (2016).
Furthermore, even if the petitioner properly had
raised the threshold issue, we nonetheless would con-
clude that the petitioner failed to establish that the
court abused its discretion in denying certification to
appeal. The petitioner’s underlying claim concerns the
good cause standard enumerated in § 52-470. See Blake
v. Commissioner of Correction, 150 Conn. App. 692,
695, 91 A.3d 535 (examination of underlying merits nec-
essary when determining if habeas court abused discre-
tion in denying certification to appeal), cert. denied,
312 Conn. 923, 94 A.3d 1202 (2014). ‘‘[T]o rebut success-
fully the presumption of unreasonable delay in § 52-
470, a petitioner generally will be required to demon-
strate that something outside of the control of the peti-
tioner or habeas counsel caused or contributed to the
delay.’’ Kelsey v. Commissioner of Correction, 202
Conn. App. 21, 34, A.3d (2020), cert. granted,
336 Conn. 912, A.3d (2021). A decision of a
habeas court regarding good cause under § 52-470 is
reviewed for abuse of discretion. Id., 38.
The court determined that the petitioner had not dem-
onstrated good cause for the delay because, even if it
found credible the petitioner’s testimony that counsel
gave incorrect advice,1 it was not credible that, within
the six years between the giving of the advice sometime
in 2008, and the deadline for filing his second petition
on October 1, 2014, the petitioner would not have dis-
covered that the advice was incorrect. The court further
noted that the petitioner’s filing of a federal civil rights
action demonstrates that he had the ability to find infor-
mation regarding legal remedies available to him. We
defer to and are bound by the court’s assessment of
the petitioner’s credibility. See Orcutt v. Commissioner
of Correction, 284 Conn. 724, 741, 937 A.2d 656 (2007);
see also Coleman v. Commissioner of Correction, 202
Conn. App. 563, 575, A.3d (2021). The petitioner
has not demonstrated that the court’s conclusion that he
has not demonstrated good cause for delay is debatable
among jurists of reason, that a court could resolve the
issue differently or that the questions raised deserve
encouragement to proceed further. See Owens v. Com-
missioner of Correction, supra, 63 Conn. App. 831.
Moreover, the petitioner’s additional argument that
his ‘‘severe mental health issues’’ provided good cause
for the delay in filing his second habeas petition is
unreviewable because the record is inadequate to
review such a claim.2 The court did not address this
issue in its memorandum of decision, and the petitioner
did not file a motion for articulation. Practice Book
§ 61-10 (b) provides in relevant part: ‘‘The failure of any
party on appeal to seek articulation pursuant to Section
66-5 shall not be the sole ground upon which the court
declines to review any issue or claim on appeal. . . .’’
The commentary to § 61-10 states that ‘‘[t]he adoption
of subsection (b) is not intended to preclude the court
from declining to review an issue where the record is
inadequate for reasons other than solely the failure to
seek an articulation, such as, for example, the failure
to procure the trial court’s decision pursuant to Section
64-1 (b) or the failure to provide a transcript, exhibits
or other documents necessary for appellate review.’’
Practice Book § 61-10, commentary. Any meaningful
review of this issue is further frustrated by the fact that
the transcript of the good cause hearing and the court’s
memorandum of decision are devoid of any findings
regarding the impact of the petitioner’s mental health
status on his ability to timely file his second habeas
petition. See, e.g., Bowden v. Commissioner of Correc-
tion, 93 Conn. App. 333, 342, 888 A.2d 1131 (record
was inadequate to review petitioner’s argument where
court’s decision was devoid of any findings or analysis
on issue and petitioner did not seek articulation), cert.
denied, 277 Conn. 924, 895 A.2d 796 (2006).
II
The petitioner also claims that the court improperly
dismissed his petition for a writ of habeas corpus fol-
lowing the show cause hearing without providing him
with a meaningful opportunity to (a) present evidence
as to a plea offer and (b) conduct an investigation
regarding that newly discovered evidence to support
good cause for delay. We decline to review these claims.
Section 52-470 (e) provides: ‘‘In a case in which the
rebuttable presumption of delay under subsection (c)
or (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 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.’’
A
At the show cause hearing, the petitioner testified
that his first habeas counsel had informed him that his
codefendant in the underlying criminal trial, who had
prevailed on direct appeal, was offered by the state a
term of forty-five years of incarceration in exchange
for a guilty plea on remand. The petitioner further testi-
fied that he had asked his first habeas counsel to inquire
whether the state would offer him the same plea deal
if he were to withdraw his then pending habeas petition.
When the petitioner’s counsel then asked at the show
cause hearing whether his first habeas counsel ever
reported that the state had made an offer, counsel for
the respondent objected on the ground of relevancy.
The petitioner’s counsel argued that after he had been
appointed to the case, he discovered new evidence of
an e-mail from the petitioner’s first habeas counsel indi-
cating that there had been such an offer made. The
court sustained the objection and did not permit the
petitioner to testify regarding any plea offers made to
him by the state prior to his first habeas trial. The court
ruled that the hearing was limited to whether good
cause existed for the delay in bringing the second
habeas action, which was premised on ineffective assis-
tance of trial counsel, and that the issue of whether the
petitioner had colorable claims that were not alleged
in the operative petition was not a proper line of inquiry
at the show cause hearing.
We decline to review this claim because the petitioner
failed to raise the evidentiary issue in his petition for
certification to appeal.3 In his petition, the petitioner
set forth the following grounds for requesting certifica-
tion to appeal to this court: ‘‘The trial court erred in its
dismissal of the petitioner’s petition for writ of habeas
corpus; any and all other grounds as determined after
a review of the file and transcripts.’’
‘‘We review only the merits of claims specifically set
forth in the petition for certification to appeal. . . .
This court has declined to review issues in a petitioner’s
habeas appeal in situations where the habeas court
denied certification to appeal and the issues on appeal
had not been raised in the petition for certification.
. . . A habeas petitioner cannot establish that the
habeas court abused its discretion in denying certifica-
tion on issues that were not raised in the petition for
certification to appeal. . . . [S]ee also Pereira v. Com-
missioner of Correction, 176 Conn. App. 762, 775, 171
A.3d 105 (because it is impossible to review exercise
of discretion that did not occur, Appellate Court con-
fined to reviewing only those issues which had been
brought to attention of habeas court in petition for
certification to appeal), cert. denied, 327 Conn. 984, 175
A.3d 43 (2017); Ouellette v. Commissioner of Correc-
tion, 159 Conn. App. 854, 858 n.2, 123 A.3d 1256 (use
of broad language in petition for certification to appeal
does not serve as basis for this court to consider claims
not raised specifically in petition), cert. denied, 320
Conn. 907, 128 A.3d 952 (2015); Campbell v. Commis-
sioner of Correction, 132 Conn. App. 263, 267, 31 A.3d
1182 (2011) (consideration of issues not distinctly
raised in petition for certification would amount to
ambuscade of habeas judge).’’ (Citations omitted; inter-
nal quotation marks omitted.) Coleman v. Commis-
sioner of Correction, supra, 202 Conn. App. 569–70. It
is axiomatic that we cannot determine whether the
court abused its discretion in denying certification on
an issue that was never raised in the petition for certifi-
cation. Therefore, we decline to review the petitioner’s
evidentiary claim because it was not specifically raised
in his petition for certification.
B
The petitioner also argues that the court deprived
him of a meaningful opportunity to investigate newly
discovered evidence regarding the alleged plea offer
made by the state. This claim is outside the scope of
appellate review.
The petitioner did not raise this issue at any time
before the habeas court. He did not request additional
time from the court in which to conduct an investiga-
tion, either by way of motion prior to the show cause
hearing or verbally during the show cause hearing.
Moreover, the petitioner did not include this ground in
his petition for certification to appeal. The petitioner
seeks review of this unpreserved claim pursuant to
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989). ‘‘Section 52-470 (g) conscribes our appellate
review to the issues presented in the petition for certifi-
cation to appeal . . . . Permitting a habeas petitioner,
in an appeal from a habeas judgment following the
denial of a petition for certification to appeal, to seek
Golding review of a claim that was not raised in, or
incorporated into, the petition for certification to appeal
would circumvent the requirements of § 52-470 (g) and
undermine the goals that the legislature sought to
achieve in enacting § 52-470 (g).’’ (Internal quotation
marks omitted.) Whistnant v. Commissioner of Correc-
tion, 199 Conn. App. 406, 418–19, 236 A.3d 276, 286–87,
cert. denied, 335 Conn. 969, 240 A.3d 286 (2020). There-
fore, we conclude that Golding review is unavailable
to the petitioner with respect to this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner testified at the show cause hearing that when he inquired
as to his options if he did not prevail on appeal, his habeas appellate counsel
responded that ‘‘because it’s a habeas. Once you lost that, we do the appeals.
If you lose that, that’s your last chance.’’ We do not agree that such advice,
standing alone, is incorrect. Presumably, counsel giving such advice had
reviewed the petitioner’s case and pursued all issues he or she believed
worthy. Consequently, it is not surprising that a diligent attorney would tell
a petitioner that once his appeals were exhausted there would be nothing
left to pursue in state court. Certainly, we would not expect counsel, who
believed he or she had diligently represented the petitioner, to tell a disap-
pointed petitioner that he could always sue the attorney himself or herself
for ineffective assistance of counsel.
2
The petitioner testified at the show cause hearing that he had been
diagnosed with having bipolar disorder at an early age and that a death in
his family, which had occurred during the pendency of his prior habeas
action, exacerbated his mental health condition to the point of his being at
risk for suicide. He stated that he sought mental health treatment and
was prescribed various psychiatric medications. He attached to his second
habeas petition a document from the Department of Correction health center
dated July 3, 2014, which indicated that he also had been diagnosed with
additional mental health concerns.
3
We additionally note that the claim regarding the plea offer is based on
the actions of his first habeas counsel, which are not the subject of the
operative habeas petition, which alleges ineffective assistance of trial
counsel.