Fenner v. Commissioner of Correction ( 2021 )

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ROGER FENNER v. COMMISSIONER
OF CORRECTION
(AC 43267)
Elgo, Alexander and Devlin, Js.
Syllabus
The petitioner, who had been convicted in 2009 of the crimes of murder
and risk of injury to a child, filed a petition for a writ of habeas corpus
on October 6, 2017. Thereafter, pursuant to the applicable statute (§ 52-
470 (c) and (e)), the respondent Commissioner of Correction filed a
request for an order to show cause why the untimely petition should
be permitted to proceed. The habeas court held an evidentiary hearing,
during which the petitioner testified that he was not aware of any
deadlines for filing habeas petitions and that, in late 2016, he became
concerned about the adequacy of the legal assistance furnished by his
defense counsel due to his son’s representation that counsel had not
contacted him prior to the petitioner’s 2009 guilty plea. The habeas court
dismissed the habeas petition as untimely, concluding that the petitioner
failed to rebut the presumption that the delay in filing the petition was
without good cause. Thereafter, the habeas court denied the petition
for certification to appeal, and the petitioner appealed to this court.
Held that the petitioner could not prevail on his claim that the habeas
court abused its discretion in denying his petition for certification to
appeal because he established good cause for the untimely filing of his
habeas petition, as neither of the petitioner’s reasons was sufficient to
satisfy his burden of demonstrating good cause for the delay: despite
his testimony that he was unaware of the statutory deadlines for filing
habeas petitions, the petitioner was presumed to know the law, and the
habeas court did not find his claimed ignorance to be credible but,
instead, found that he was aware that his habeas petition could have
been filed in the eight years following his conviction; moreover, although
the petitioner testified that, in late 2016, his son provided information
as to the purported lack of communication between his son and defense
counsel, he presented no explanation or evidence regarding his failure
to act on that information by filing his habeas petition before the October
1, 2017 deadline; furthermore, because the petitioner failed to raise any
claim of good cause based on mental health issues or medications at
the show cause hearing or in his petition for certification to appeal,
this court could not conclude that the habeas court abused its ample
discretion on that ground.
Argued May 10—officially released August 3, 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.
Deren Manasevit, with whom, on the brief, was
David J. Reich, for the appellant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Anne Mahoney, state’s attor-
ney, and Leah Hawley, former senior assistant state’s
attorney, for the appellee (respondent).
Opinion
ELGO, J. The petitioner, Roger Fenner, appeals fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court dismiss-
ing his petition for a writ of habeas corpus. On appeal,
the petitioner claims that the court abused its discretion
in denying his petition for certification because he had
good cause for the untimely filing of his petition for a
writ of habeas corpus. We disagree and, accordingly,
dismiss the appeal.
The relevant facts are not in dispute. In December,
2009, the petitioner pleaded guilty to one count each
of murder in violation of General Statutes § 53a-54a and
risk of injury to a child in violation of General Statutes
(Rev. to 2007) § 53-21. The trial court rendered judg-
ment in accordance with that plea and sentenced the
petitioner to a total effective term of fifty years of incar-
ceration. The petitioner did not file a direct appeal.
On October 6, 2017, the petitioner filed a petition for
a writ of habeas corpus.1 The record indicates that no
further action transpired until December 28, 2018, when
the respondent, the Commissioner of Correction, filed
a request with the habeas court pursuant to General
Statutes § 52-470 (c) and (e) for an order directing the
petitioner to show cause why his untimely petition
should be permitted to proceed. The court held an evi-
dentiary hearing on that request on March 15, 2019.
The only evidence presented at that hearing was the
testimony of the petitioner,2 who testified that, prior to
his arrest, he had been living with his son.3 The peti-
tioner further testified that his arrest and subsequent
conviction angered his son, with whom he thereafter
was estranged for several years. In late 2016, the peti-
tioner reconnected with his son. When his son informed
the petitioner that he never had been contacted by the
petitioner’s criminal trial attorney, the petitioner grew
concerned that he had not been ‘‘told the truth about
what went on’’ in his criminal prosecution. Although
he conceded that he previously lacked an adequate
ground to file a petition for a writ of habeas corpus,
the petitioner testified that he now believed that he had
‘‘grounds to file’’ such a petition in light of his son’s
representation that he had not been contacted by
defense counsel. The petitioner further testified that he
was not aware of any deadlines to file a habeas corpus
action and stated that, had he been so aware, he ‘‘defi-
nitely would have’’ filed one.
After the petitioner concluded his testimony, the
court heard argument from both parties. At that time,
the petitioner’s habeas counsel reiterated that it was
the petitioner’s ‘‘contact in late 2016’’ with his son that
‘‘really induced’’ him to file the habeas petition, stating
that the ‘‘piece of information that he received [from
his son] was very pivotal in his mind . . . .’’ The respon-
dent’s counsel argued: ‘‘The petition was late. It was
received by the court after the [statutory] deadline.
[The petitioner] has not shown any newly discovered
evidence. He is presumed to know the law whether he
was aware of the statutory deadline or not. . . . [The
petitioner] has failed to rebut [the] presumption of
delay. He has not shown good cause.’’
In its subsequent memorandum of decision, the court
stated in relevant part: ‘‘The only issue disputed by the
parties is whether the petitioner can establish good
cause for not having filed his petition [in a timely man-
ner]. . . . The vague reasons provided by the peti-
tioner—that his son was angry with him following his
conviction, and that they did not have contact until
2016, and that he has since learned information from
his son that he had not been interviewed by defense
counsel and that counsel may otherwise not have told
him the truth about what happened during his criminal
case—are insufficient to establish good cause for his
having failed to file a habeas petition prior to the Octo-
ber 1, 2017 deadline. Also, the petitioner admitted dur-
ing his testimony that he had considered filing a habeas
[petition] previously, but [he] did not do so. This estab-
lishes that he was aware that a petition could have been
filed in the eight years subsequent to his conviction,
but did not do so.’’ (Footnote omitted; internal quotation
marks omitted.) The court thus concluded that the peti-
tioner had failed to rebut the presumption of delay
codified in § 52-470 (c) and dismissed the petition for
a writ of habeas corpus. The petitioner then filed a
petition for certification to appeal, which the court
denied, and this appeal followed.
On appeal, the petitioner claims that the court
improperly denied his petition for certification to appeal
because he had established good cause for the untimely
filing of his petition for a writ of habeas corpus. We
disagree.
The standard of review that governs such claims is
well established. ‘‘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 consti-
tuted an abuse of discretion. . . . A petitioner may
establish an abuse of discretion by demonstrating that
the issues are debatable among jurists of reason . . .
[the] court could resolve the issues [in a different man-
ner] . . . 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 sur-
mounting that hurdle, the petitioner must then demon-
strate that the judgment of the habeas court should be
reversed on its merits.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Crespo v.
Commissioner of Correction, 292 Conn. 804, 811, 975
A.2d 42 (2009).
Convicted criminals in this state are not afforded
unlimited opportunity to challenge the propriety of their
convictions or confinement. Our General Assembly
enacted § 52-470 for the purpose of ‘‘ensuring expedient
resolution of habeas cases.’’ Kelsey v. Commissioner
of Correction, 329 Conn. 711, 717, 189 A.3d 578 (2018);
cf. Kaddah v. Commissioner of Correction, 324 Conn.
548, 566–67, 153 A.3d 1233 (2017) (noting that 2012
amendments to § 52-470 were ‘‘intended to supplement
that statute’s efficacy in averting frivolous habeas peti-
tions and appeals’’). Subsections (c), (d) and (e) of that
statute ‘‘provide mechanisms for dismissing untimely
petitions.’’ Kelsey v. Commissioner of Correction,
supra, 717. Relevant to this appeal is § 52-470 (c), which
provides in relevant part: ‘‘[T]here shall be a rebuttable
presumption that the filing of a petition challenging a
judgment of conviction has been delayed without good
cause if such petition is filed after the later of the follow-
ing: (1) Five years after the date on which the judgment
of conviction is deemed to be a final judgment due to
the conclusion of appellate review or the expiration of
the time for seeking such review; [or] (2) October 1,
2017 . . . .’’ It is undisputed that the petitioner’s judg-
ment of conviction was rendered on December 11, 2009,
that he did not seek appellate review, and that he did
not file his petition for a writ of habeas corpus until after
October 1, 2017. That petition therefore was untimely,
implicating the rebuttable presumption of delay man-
dated by § 52-470 (c).
Section § 52-470 (e) provides in relevant part: ‘‘In a
case in which the rebuttable presumption of delay under
subsection (c) . . . 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 investi-
gate the basis for the delay and respond to the order.
If, after such opportunity, the court finds that the peti-
tioner 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 lim-
ited 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) . . .
of this section.’’ As this court has observed, ‘‘good cause
has been defined as a substantial reason amounting in
law to a legal excuse for failing to perform an act
required by law . . . .’’ (Internal quotation marks omit-
ted.) Langston v. Commissioner of Correction, 185
Conn. App. 528, 532, 197 A.3d 1034, appeal dismissed,
335 Conn. 1, 225 A.3d 282 (2020).
At the March 15, 2019 show cause hearing, the peti-
tioner bore the burden of demonstrating good cause
for his failure to file his petition for a writ of habeas
corpus in a timely manner. The only evidence that he
submitted at that hearing was his testimony that (1) he
was unaware of any deadlines for filing such petitions
and (2) in late 2016, he became concerned about the
adequacy of the legal assistance furnished by his
defense counsel due to his son’s representation that
counsel had not contacted his son prior to the petition-
er’s 2009 guilty plea. Neither suffices to establish
good cause.
With respect to the former, it is well established that
‘‘[e]veryone is presumed to know the law . . . . Thus,
the [petitioner] is charged with knowledge of the law.’’
(Internal quotation marks omitted.) Coleman v. Com-
missioner of Correction, 202 Conn. App. 563, 576, 246
A.3d 54, cert. denied, 336 Conn. 922, 246 A.3d 2 (2021).
As our Supreme Court has long recognized, ‘‘[t]he famil-
iar 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 idea [underlying] them is that one’s acts must be
considered as having been done with knowledge of the
law, for otherwise its evasion would be facilitated and
the courts burdened with collateral inquiries into the
content of [people’s] minds. . . . This rule of public
policy has been repeatedly applied by [our Supreme
Court].’’ (Citation omitted.) Atlas Realty Corp. v. House,
123 Conn. 94, 101, 192 A. 564 (1937). Furthermore, the
habeas court did not find the petitioner’s claimed igno-
rance of the statutory deadline to be credible, as was
its exclusive prerogative; see Bowens v. Commissioner
of Correction, 333 Conn. 502, 523, 217 A.3d 609 (2019);
and instead found that the petitioner ‘‘was aware that
a petition could have been filed in the eight years subse-
quent to his conviction . . . .’’ The petitioner has not
challenged the propriety of that factual finding in this
appeal.
With respect to his claim regarding the purported
lack of communication between his son and his defense
counsel, the petitioner offered no explanation or evi-
dence regarding his failure to act on that information
in a timely manner. Although the petitioner testified
at the show cause hearing that his son provided that
information to him ‘‘towards the latter’’ part of 2016,
it is undisputed that he had until October 1, 2017, to
commence this habeas action and failed to do so.
Because the petitioner presented no evidence whatso-
ever regarding his failure to file his habeas petition in
those intervening months, the court properly concluded
that he had failed to establish good cause.
The petitioner nonetheless argues that an alternative
basis for a finding of good cause exists—namely, the
existence of ‘‘mental health issues’’ and the allegation
that he ‘‘had recently been put on medications around
the time he filed his habeas petition.’’ No such claim
ever was asserted by the petitioner at the show cause
hearing, nor was any supporting evidence presented.
Moreover, the petitioner failed to raise that claim in
his petition for certification to appeal. This case thus
resembles Tutson v. Commissioner of Correction, 144
Conn. App. 203, 72 A.3d 1162, cert. denied, 310 Conn.
928, 78 A.3d 145 (2013), in which this court stated: ‘‘The
record does not reflect that before the habeas court
the petitioner raised the present claim . . . prior to
rendering its decision. More importantly, the petitioner
did not raise the present claim in his petition for certifi-
cation to appeal. . . . Because the petitioner did not
raise the claim when asking the court to rule on his
petition for certification to appeal, we cannot conclude
that the court abused its discretion on that ground. . . .
[A] petitioner cannot demonstrate that the habeas court
abused its discretion in denying a petition for certifica-
tion to appeal if the issue that the petitioner later raises
on appeal was never presented to, or decided by, the
habeas court. . . . Under such circumstances, a
review of the petitioner’s claims would amount to an
ambuscade of the [habeas] judge. . . . Because the
petitioner failed to raise this claim in his petition for
certification to appeal or in his application for waiver
of fees, costs and expenses and appointment of counsel
on appeal, we decline to afford it review.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Id., 216–17; see also Banks v. Commissioner
of Correction, 205 Conn. App. 337, 342, A.3d
(2021) (‘‘[i]t is well established that a petitioner cannot
demonstrate that a habeas court abused its discretion
in denying a petition for certification to appeal on the
basis of claims that were not raised distinctly before
the habeas court at the time that it considered the
petition for certification to appeal’’).
That precedent compels a similar conclusion here.
Because the petitioner failed to raise any claim of good
cause based on mental health issues or medications at
the show cause hearing or in his petition for certifica-
tion to appeal, we cannot conclude that the court
abused its ample discretion on that ground. The court,
therefore, properly denied the petition for certification
to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner filed his petition for a writ of habeas corpus in a self-
represented capacity. On January 9, 2018, Kirschbaum Law Group, LLC,
filed an appearance on behalf of the petitioner.
2
The respondent chose not to cross-examine the petitioner or to present
any other evidence at the show cause hearing.
3
In his petition for a writ of habeas corpus, the petitioner averred that
his arrest occurred on January 12, 2007.