Kelsey v. Commissioner of Correction

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ERIC THOMAS KELSEY v. COMMISSIONER
OF CORRECTION
(SC 20553)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Pursuant to statute (§ 52-470 (d) (1) and (e)), when a habeas petitioner files
a subsequent petition for a writ of habeas corpus more than two years
after the date on which judgment on a prior habeas petition challenging
the same conviction is deemed final, there is a rebuttable presumption
that the filing of the subsequent petition has been delayed without good
cause, and the habeas court, upon the request of the Commissioner of
Correction, shall issue an order to show cause why the subsequent
petition should be permitted to proceed.
The petitioner, who had been convicted of felony murder and conspiracy
to commit robbery in the first degree, filed a second petition for a writ
of habeas corpus. The petitioner filed his second petition nearly five
years after this court denied his petition for certification to appeal from
the Appellate Court’s judgment dismissing his appeal from the trial
court’s denial of his first habeas petition. Because the second petition
was filed outside of the two year time limit for successive petitions set
forth in § 52-470 (d) (1), the habeas court issued an order to show cause
and held an evidentiary hearing on the issue of whether the petition
should be permitted to proceed. At the hearing, the petitioner testified
that he had not been aware of the time limitation set forth in § 52-470
(d) (1) because he had been in and out of prison and did not always
have access to law books or law libraries at certain correctional facilities
and while being held in administrative segregation. The habeas court
dismissed the second habeas petition, concluding that the petitioner’s
proffered explanations as to why he had not been aware of the applicable
time limitation did not constitute sufficient good cause to excuse his
filing delay of nearly three years beyond the applicable time limitation.
On the granting of certification, the petitioner appealed to the Appellate
Court, which concluded that the habeas court’s determination of
whether a petitioner has satisfied the good cause standard is reviewed
for an abuse of discretion and that the habeas court did not abuse its
discretion in dismissing the petitioner’s untimely second habeas petition.
On the granting of certification, the petitioner appealed to this court.
Held:
1. The Appellate Court correctly concluded that a habeas court’s determina-
tion of whether a petitioner has established good cause to overcome
the rebuttable presumption of unreasonable delay under § 52-470 (d)
and (e) is reviewed on appeal for an abuse of discretion: because § 52-
470 is silent and, therefore, ambiguous as to the proper standard of
appellate review, this court considered the legislative history of the
statute, including recent amendments thereto, which demonstrated that
the legislature intended for habeas courts to exercise significant discre-
tion in making determinations regarding good cause in order to further
the goals of comprehensive habeas reform, including averting frivolous
habeas petitions and appeals; moreover, the good cause analysis contem-
plated by § 52-470 (e) requires a habeas court to balance numerous
factors, including whether external forces outside the petitioner’s con-
trol had any bearing on the delay, whether and to what extent the
petitioner or counsel bears personal responsibility for any excuse prof-
fered for the untimely filing, whether the reasons proffered by the peti-
tioner in support of a finding of good cause are credible and are sup-
ported by the evidence, and how long after the expiration of the filing
deadline did the petitioner file the petition, and this court previously
had held that, when a lower court’s finding requires such a balancing
of factors, many of which are factual in nature, such a finding is reserved
on appeal only when there has been an abuse of discretion.
2. The Appellate Court correctly determined that the habeas court did not
abuse its discretion in finding that the petitioner had failed to establish
good cause for his untimely filing of his second habeas petition: although
the legislative history of recent amendments to § 52-470 demonstrated
that the legislature had contemplated a petitioner’s lack of knowledge
of the law or of a change in the law as being relevant to establishing
good cause, the legislature did not intend for such a lack of knowledge,
standing alone, to establish that a petitioner has met his or her burden
of establishing good cause; in the present case, the petitioner failed to
demonstrate that his conditions of confinement had any bearing on the
delay insofar as they caused his lack of awareness of the statutory
deadline, as the petitioner testified that, in the ten months leading up
to the two year deadline for filing his second petition, he was housed
in general population at a correctional facility at which he had access
to a resource center that contained various legal resources and law
books, including the General Statutes, it was reasonable for the court
to consider the fact that more than two years had elapsed since the
filing deadline, and those considerations were not outweighed by any
of the other factors that the habeas court could have considered in
assessing good cause; accordingly, the Appellate Court properly affirmed
the judgment dismissing the petitioner’s habeas petition.
Argued November 17, 2021—officially released May 24, 2022
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, from which the petitioner, on the granting
of certification, appealed to the Appellate Court, Pres-
cott, Suarez and DiPentima, Js., which affirmed the
habeas court’s judgment, and the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Naomi T. Fetterman, assigned counsel, for the appel-
lant (petitioner).
Laurie N. Feldman, deputy assistant state’s attorney,
with whom, on the brief, were Brian W. Preleski, state’s
attorney, and Jo Anne Sulik, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
ROBINSON, C. J. The principal issue in this certified
appeal requires us to consider the appropriate appellate
standard by which to review a habeas court’s determina-
tion pursuant to General Statutes § 52-470 (d) and (e)1
that a petitioner failed to rebut the statutory presump-
tion that a successive petition for a writ of habeas corpus
filed beyond statutorily prescribed time limits is the result
of unreasonable delay, which requires the court to dis-
miss the petition. The petitioner, Eric Thomas Kelsey,
appeals, upon our grant of his petition for certification,2
from the judgment of the Appellate Court affirming
the judgment of the habeas court, which dismissed his
second petition for a writ of habeas corpus following its
determination that the petitioner had failed to establish
good cause for the delayed filing of that second petition.
See Kelsey v. Commissioner of Correction, 202 Conn.
App. 21, 43–44, 244 A.3d 171 (2020). On appeal, the
petitioner claims that the Appellate Court improperly
(1) reviewed the habeas court’s dismissal of his second
petition pursuant to § 52-470 (e) under the abuse of
discretion standard, and (2) concluded that the habeas
court correctly determined that the petitioner had failed
to establish good cause for the untimely filing of his
second petition. We disagree with both claims and, accord-
ingly, affirm the judgment of the Appellate Court.
The record reveals the following relevant facts and
procedural history, aptly set forth by the Appellate
Court in its decision. ‘‘In December, 2003, a jury [found]
the petitioner [guilty] 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-54c. See State v.
Kelsey, 93 Conn. App. 408, 889 A.2d 855, cert. denied,
277 Conn. 928, 895 A.2d 800 (2006). The [trial] court
sentenced the petitioner to a total effective term of
forty years of incarceration. [The Appellate 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 mis-
trial based on the state’s failure to preserve and produce
exculpatory evidence. Id., 410, 416. [This court] denied
certification to appeal [from the Appellate Court’s] deci-
sion.
‘‘After exhausting his direct appeal, in August, 2007,
the petitioner filed his first petition for a writ of habeas
corpus challenging his conviction. Following a trial on
the merits, the habeas court denied the petition. [The
Appellate Court] dismissed the petitioner’s appeal from
the judgment of the habeas court by memorandum deci-
sion; Kelsey v. Commissioner of Correction, 136 Conn.
App. 904, 44 A.3d 224 (2012); and [this court] thereafter
denied [his petition for] certification to appeal from the
judgment of [the Appellate Court on July 11, 2012].
Kelsey v. Commissioner of Correction, 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 [certi-
fied] appeal. The petitioner raised seven claims not
raised in his earlier petition. On May 9, 2017, the respon-
dent, 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). . . . 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 respondent’s request because
the pleadings in the case were not yet closed. See Kelsey
v. Commissioner of Correction, 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. [This court] rejected the habeas
court’s reliance on § 52-470 (b) (1) 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 predi-
cated 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.’ Id., 726. [This court] reversed the habeas
court’s decision and remanded the case to the habeas
court for further proceedings consistent with its opin-
ion. Id.
‘‘In accordance with [this court’s] remand order, the
habeas court, Newson, J., issued an order to show cause
and conducted an evidentiary hearing. The only evi-
dence presented at the hearing was the testimony of
the petitioner. The respondent chose not to cross-exam-
ine 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 . . .
dismiss[ed] the petitioner’s second habeas petition. In
its decision, the habeas court first set forth the relevant
provisions of § 52-470 and quoted [the Appellate
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 rea-
son amounting in law to a legal excuse for failing to
perform an act required by law.’ The habeas court deter-
mined 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 peti-
tioner’s delay of nearly three years beyond the appro-
priate 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 paren-
thetically 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 [habeas] court dismissed the petition.’’
(Citation omitted; footnotes omitted.) Kelsey v. Com-
missioner of Correction, supra, 202 Conn. App. 24–27.
The petitioner, on the granting of certification,
appealed from the judgment of dismissal to the Appel-
late Court, which determined that (1) a habeas court’s
determination of whether a petitioner has satisfied the
good cause standard is reversible only for an abuse
of discretion; id., 36; and (2) the petitioner failed to
demonstrate that the habeas court abused its discretion
by dismissing the petitioner’s untimely successive peti-
tion. Id., 43. Accordingly, the Appellate Court affirmed
the judgment of the habeas court. Id., 44. This certified
appeal followed. See footnote 2 of this opinion.
On appeal to this court, the petitioner claims that the
Appellate Court incorrectly concluded that (1) appellate
review of whether a habeas court properly dismissed
a petition for a writ of habeas corpus under § 52-470
(d) and (e) is for abuse of discretion, and (2) the peti-
tioner had not established the good cause necessary to
overcome the rebuttable presumption of unreasonable
delay. We address each claim in turn.
I
We first address the petitioner’s claim that, in review-
ing the habeas court’s determination regarding good
cause for abuse of discretion, the Appellate Court improp-
erly disregarded the long-standing jurisprudence articu-
lated in Gilchrist v. Commissioner of Correction, 334
Conn. 548, 223 A.3d 368 (2020), and Johnson v. Com-
missioner of Correction, 285 Conn. 556, 941 A.2d 248(2008), namely, that conclusions reached by a habeas
court in a decision to dismiss a habeas petition are
matters of law subject to plenary review. The petitioner
argues that, despite the Appellate Court’s attempt to
differentiate dismissals pursuant to § 52-470 from the
preliminary dismissals at issue in Gilchrist, plenary
review applies irrespective of the basis for the habeas
court’s dismissal. In response, the respondent argues
that Gilchrist and Johnson are inapposite because the
grounds for dismissal in those cases presented pure
questions of law and that reviewing a good cause deter-
mination only for abuse of the court’s discretion is
consistent with the legislature’s intent in enacting § 52-
470 and the broader purposes of the habeas process. We
agree with the respondent and conclude that a habeas
court’s determination of whether a petitioner has satis-
fied the good cause standard under § 52-470 (d) and
(e) is reviewed on appeal for abuse of discretion.
Whether the Appellate Court applied the proper stan-
dard of review to the habeas court’s dismissal of the
petition following its determination that the petitioner
failed to establish good cause, as required by § 52-470
(e), presents an issue of statutory construction, which
is a question of law over which we exercise plenary
review. See, e.g., People for the Ethical Treatment of
Animals, Inc. v. Freedom of Information Commission,
321 Conn. 805, 815–16, 139 A.3d 585 (2016) (determining
standard of review applicable to General Statutes § 1-
210 (b) (19) presented question of statutory interpreta-
tion, over which our review is plenary). This court fol-
lows ‘‘the plain meaning rule pursuant to General Stat-
utes § 1-2z in construing statutes to ascertain and give
effect to the apparent intent of the legislature.’’ (Internal
quotation marks omitted.) Ledyard v. WMS Gaming,
Inc., 338 Conn. 687, 696, 258 A.3d 1268 (2021).
As required by § 1-2z, we begin with the text of § 52-
470.3 Section 52-470 (d) provides in relevant part that,
‘‘[i]n the case of a petition filed subsequent to a judg-
ment on a prior petition challenging the same convic-
tion, there shall be a rebuttable presumption that the
filing of the subsequent petition has been delayed with-
out good cause if such petition is filed after . . . Octo-
ber 1, 2014 . . . .’’ Section 52-470 (e) provides in rele-
vant part that, ‘‘[i]f . . . the court finds that the
petitioner has not demonstrated good cause for the
delay, the court shall dismiss the petition. . . .’’ See
footnote 1 of this opinion (complete relevant text of
§ 52-470 (d) and (e)).
The statute is silent as to the standard of appellate
review applicable to the good cause determination by
a habeas court. Silence renders a statute ambiguous
when the missing subject reasonably is necessary to
effectuate the provision as written, and the missing
subject renders the statute susceptible to more than
one plausible interpretation. See, e.g., State v. Ramos,
306 Conn. 125, 136–37, 49 A.3d 197 (2012); see also
Stuart v. Stuart, 297 Conn. 26, 37, 996 A.2d 259 (2010)
(silence as to standard of proof rendered statute ambig-
uous because there was ‘‘more than one plausible inter-
pretation of its meaning’’). When silence renders a statu-
tory provision ambiguous as to the issue at hand, ‘‘our
analysis is not limited by . . . § 1-2z . . . . In addition
to the words of the statute itself, we look to . . . the
legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter.’’ (Citation omitted; internal quota-
tion marks omitted.) Curry v. Allan S. Goodman, Inc.,
286 Conn. 390, 407, 944 A.2d 925 (2008).
Beginning with the legislative history, we observe
that, in 2012, the legislature amended § 52-470 with the
goal of enacting comprehensive habeas reform. Kaddah
v. Commissioner of Correction, 324 Conn. 548, 566–67,
153 A.3d 1233 (2017). The amendments were ‘‘intended
to supplement that statute’s efficacy in averting frivo-
lous habeas petitions and appeals. . . . [Moreover] the
reforms were the product of collaboration and compro-
mise by representatives from the various stakeholders
in the habeas process, including the Division of Criminal
Justice, the Office of the Chief Public Defender, the
criminal defense bar, and the Judicial Branch.’’ (Cita-
tions omitted.) Id., 567. The legislative history, including
the testimony before the Judiciary Committee,4 demon-
strates that § 52-470 was intended to grant habeas
courts ‘‘a lot of discretion’’ in weeding out nonmeritori-
ous habeas claims. Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 15, 2012 Sess., p. 4785, remarks
of Chief State’s Attorney Kevin T. Kane.
Further, as the Appellate Court correctly observed,
our prior resolution of the interlocutory appeal in the
present case also heavily emphasized ‘‘the discretion
that the legislature granted habeas courts to achieve
the goals of habeas corpus reform . . . .’’ Kelsey v.
Commissioner of Correction, supra, 202 Conn. App.
31. In discussing the habeas court’s obligation under
§ 52-470 (e) to give the petitioner a ‘‘meaningful oppor-
tunity’’ to investigate the delay in filing a successive
petition, we stated that 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, considering the
particular circumstances of the case, what procedures
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 statutory pre-
sumption.’’ Kelsey v. Commissioner of Correction,
supra, 329 Conn. 723. Thus, we agree with the Appellate
Court’s subsequent conclusion that ‘‘the absence of a
detailed statutory definition of the good cause standard
[indicates] that the legislature intended the habeas
court to exercise significant discretion in making deter-
minations regarding ‘good cause.’ ’’ Kelsey v. Commis-
sioner of Correction, supra, 202 Conn. App. 31.
We also agree with the respondent that the authorities
the petitioner relies on in support of his claim are inap-
posite. Although the petitioner correctly observes that
Gilchrist broadly stated that ‘‘[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’’; Gilchrist v. Commissioner of Correction, supra,
334 Conn. 553; the present case is distinguishable with
regard to the level of discretion exercised by the habeas
court in deciding whether good cause exists. As the
Appellate Court stated, ‘‘a habeas court’s determination
of whether a petitioner has satisfied the good cause
standard 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.’’ Kelsey v. Commissioner of Correc-
tion, supra, 202 Conn. App. 35–36. In contrast, Gilchrist
presented a pure question of law, namely, whether the
dismissal of a habeas petition under Practice Book § 23-
295 can precede the habeas court’s determination to
issue the writ under Practice Book § 23-24.6 See Gilch-
rist v. Commissioner of Correction, supra, 553. Resolv-
ing this question required the court to interpret the
language of the rules of practice, a task that is a well
established subject of plenary review. See, e.g., Wise-
man v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027(2010). Further, as the respondent argues, the underly-
ing grounds for dismissal enumerated in Practice Book
§§ 23-24 and 23-29—e.g., lack of jurisdiction, res judi-
cata, mootness, and ripeness—present pure questions
of law. See, e.g., U.S. Bank National Assn. v. Rothermel,
339 Conn. 366, 373, 260 A.3d 1187 (2021) (mootness
implicates court’s subject matter jurisdiction and, thus,
is question of law); Great Plains Lending, LLC v. Dept.
of Banking, 339 Conn. 112, 120, 259 A.3d 1128 (2021)
(determination regarding trial court’s subject matter
jurisdiction is question of law); Francis v. Board of
Pardons & Paroles, 338 Conn. 347, 359, 258 A.3d 71(2021) (issues regarding justiciability, namely, ripeness,
raise question of law); Weiss v. Weiss, 297 Conn. 446,
458, 998 A.2d 766 (2010) (applicability of res judicata
and collateral estoppel presents question of law); see
also footnotes 5 and 6 of this opinion.
Finally, the petitioner argues that good cause deter-
minations made by a habeas court are comparable to
a habeas court’s determination that a claim has been
procedurally defaulted, which is subject to plenary
review, and, thus, that good cause determinations should
also receive plenary review on appeal. Specifically, the
petitioner argues that, similar to establishing good
cause under § 52-470, the standard for establishing the
cause required to overcome procedural default is equally
vague and also requires that the petitioner be heard
as to the reason for noncompliance. In response, the
respondent contends that the existence of good cause
for purposes of excusing late filings under § 52-470 (e)
is a broader and more fact dependent concept than is
the ‘‘cause’’ considered in the context of procedural
default. The respondent argues that what constitutes
cause for a procedural default is only a narrow subset
of what can constitute good cause under § 52-470 (e).
We agree with the respondent.
By way of background, ‘‘a petitioner who raises a
constitutional claim for the first time in a habeas pro-
ceeding must show: (1) cause for the procedural default,
i.e., for the failure to raise the claim previously; and
(2) prejudice resulting from the alleged constitutional
violation. In the absence of such a showing, a court will
not reach the merits of the claim.’’ (Internal quotation
marks omitted.) Newland v. Commissioner of Correc-
tion, 331 Conn. 546, 553, 206 A.3d 176 (2019). ‘‘A respon-
dent seeking to raise an affirmative defense of proce-
dural default must file a return to the habeas petition
responding to the allegations of the petitioner and alleg-
[ing] any facts in support of any claim of procedural
default . . . . Only after the respondent raises the
defense of procedural default in accordance with [Prac-
tice Book] § 23-30 (b) does the burden shift to the peti-
tioner to allege and prove that the default is excused.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Crawford v. Commissioner of Correc-
tion, 294 Conn. 165, 175–76, 982 A.2d 620 (2009). ‘‘[T]he
existence of cause for a procedural default must ordi-
narily turn on whether the [petitioner] can show that
some objective factor external to the defense impeded
counsel’s efforts to comply with the [s]tate’s procedural
rule.’’ (Internal quotation marks omitted.) Id., 191. For
example, a showing that the factual or legal basis for
a claim was not reasonably available to counsel would
constitute an objective external factor. See, e.g., Saun-
ders v. Commissioner of Correction, 343 Conn. 1, 20,
272 A.3d 169 (2022).
In contrast to ‘‘cause’’ for procedural default, the
Appellate Court correctly observed in the present case
that ‘‘factors directly related to the good cause determi-
nation [under § 52-470 (e)] 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 responsibility 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 petitioner 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 circumstances presented.’’
Kelsey v. Commissioner of Correction, supra, 202
Conn. App. 34–35. This good cause analysis requires
habeas courts to balance numerous factors, whereas
the cause determination for overcoming a procedural
default typically turns only on whether the petitioner
has demonstrated that an objective factor external to
the defense impeded compliance with the procedural
rule.7 See Crawford v. Commissioner of Correction,
supra, 294 Conn. 191.
In discussing § 52-470, we have described ‘‘[t]he
habeas court’s exercise of its discretion to manage
[cases as] the best tool to . . . balance the principles of
judicial economy and due process.’’ (Citation omitted.)
Kelsey v. Commissioner of Correction, supra, 329
Conn. 726. Generally, when a finding requires the bal-
ancing of several factors, many of which require factual
determinations, as the Appellate Court properly identi-
fied in the present case, this court has held that such
conclusions are reversed only for an abuse of discre-
tion. See, e.g., Kerrigan v. Commissioner of Public
Health, 279 Conn. 447, 461, 904 A.2d 137 (2006) (‘‘A
trial court exercising its discretion in determining
whether to grant a motion for permissive intervention
balances ‘several factors [including] . . . the timeli-
ness of the intervention, the proposed intervenor’s
interest in the controversy, the adequacy of representa-
tion of such interests by other parties, the delay in the
proceedings or other prejudice to the existing parties
the intervention may cause, and the necessity for or
value of the intervention in resolving the controversy
[before the court]. . . . [A] ruling on a motion for per-
missive intervention would be erroneous only in the
rare case [in which] such factors weigh so heavily
against the ruling that it would amount to an abuse of
the trial court’s discretion.’ ’’); Label Systems Corp. v.
Aghamohammadi, 270 Conn. 291, 307, 852 A.2d 703(2004) (‘‘In determining whether to admit evidence of
a conviction, the court shall consider: (1) the extent of
the prejudice likely to arise; (2) the significance of the
particular crime in indicating untruthfulness; and (3)
the remoteness in time of the conviction. . . . ‘More-
over, [i]n evaluating the separate ingredients to be
weighed in the balancing process, there is no way to
quantify them in mathematical terms.’ . . . Therefore,
‘[t]he trial court has wide discretion in this balancing
determination and every reasonable presumption
should be given in favor of the correctness of the court’s
ruling . . . . Reversal is required only [when] an abuse
of discretion is manifest or [when] injustice appears to
have been done.’ ’’ (Citations omitted.)). Accordingly,
we conclude that a habeas court’s determination regard-
ing good cause under § 52-470 (e) is reviewed on appeal
only for abuse of discretion. ‘‘Thus, [w]e will make every
reasonable presumption in favor of upholding the trial
court’s ruling[s] . . . . In determining whether there
has been an abuse of discretion, the ultimate issue is
whether the court . . . reasonably [could have] con-
clude[d] as it did.’’ (Citation omitted; internal quotations
marks omitted.) State v. Davis, 298 Conn. 1, 11, 1 A.3d
76 (2010).
II
Having articulated the proper standard of review, we
now turn to the petitioner’s claim that the Appellate
Court incorrectly concluded that the habeas court prop-
erly exercised its discretion in finding that he had failed
to establish the good cause necessary to overcome the
rebuttable presumption of unreasonable delay, as set
forth in § 52-470 (d) and (e). The petitioner argues that,
in addition to his prior habeas counsel’s failure to
inform him of any statutory filing deadlines, his status
as a self-represented party when he filed this petition
caused the delay in filing insofar as his conditions of
confinement had caused him to be unaware of the dead-
line set by the 2012 amendments to § 52-470. In
response, the respondent argues that the unambiguous
meaning of good cause instructs that ignorance of the
law excuses no one and that the petitioner’s conditions
of confinement were insufficient to establish good
cause for the delayed filing. We conclude that the
habeas court did not abuse its discretion in determining
that the petitioner had failed to establish good cause
for the untimely filing of the second petition.
To determine whether the trial court abused its dis-
cretion in concluding that the petitioner had failed to
establish good cause, we first must discuss the meaning
of the term ‘‘good cause.’’ Neither party challenges the
definition of good cause applied by the Appellate Court
in this case,8 which properly stated ‘‘that to rebut suc-
cessfully 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, supra,
202 Conn. App. 34. Thus, we will assess whether the
habeas court abused its discretion in determining that
the petitioner failed to demonstrate that something out-
side of his control, or the control of habeas counsel,
had caused or contributed to the delay in the filing of
his second petition.
As we previously stated, the Appellate Court set forth
several factors to aid in determining whether a peti-
tioner has satisfied this definition of good cause,
namely, ‘‘(1) whether external forces outside the con-
trol of the petitioner had any bearing on the delay; (2)
whether and to what extent the petitioner or his counsel
bears any personal responsibility for any excuse prof-
fered 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 petitioner file the petition.’’
Id., 34–35. Although neither party argued for an alterna-
tive definition of good cause, the petitioner did argue
that the legislative history demonstrates that a petition-
er’s lack of knowledge of the applicable statutory dead-
line should be an additional factor considered in the
good cause inquiry. In response, the respondent argues
that consulting the legislative history is inappropriate
under § 1-2z due to the lack of ambiguity in the statutory
definition of good cause. As the general definition of
good cause is undisputed, this inquiry is more accu-
rately framed as determining which factors habeas
courts may consider in concluding whether a petitioner
has satisfied the definition of good cause. Because § 52-
470 is silent on that matter, and because that silence
leaves the statute susceptible to numerous plausible
interpretations as to its application, our principles of
statutory interpretation instruct that consulting the leg-
islative history on this point is appropriate. See, e.g.,
State v. Ramos, supra, 306 Conn. 136–37; Stuart v. Stu-
art, supra, 297 Conn. 37; Curry v. Allan S. Goodman,
Inc., supra, 286 Conn. 407.
In enumerating the four nonexhaustive factors related
to the good cause analysis, the Appellate Court consulted
both textual and extratextual sources for guidance. See
Kelsey v. Commissioner of Correction, supra, 202
Conn. App. 33–35. It did not, however, consult the legis-
lative history. Accordingly, we turn to the legislative
history to assess the petitioner’s argument as to addi-
tional factors relevant to the good cause determination.
During debate on the 2012 amendments to § 52-470,
Representative Arthur J. O’Neill asked, ‘‘[w]hat would
[a petitioner] have to prove to rebut the presumption
of untimeliness?’’ 55 H.R. Proc., Pt. 5, 2012 Sess., p.
1598. In response, Representative Gerald M. Fox III
stated: ‘‘[T]he way I would envision a petitioner meeting
the rebuttable presumption requirement would be, if
for some reason that petitioner had no knowledge that
the Second Circuit . . . had determined that one of
our laws was unconstitutional, and as a result, the time
were to lapse, I think that that may be an example of
when a petitioner would be able to rebut the presump-
tion.’’ Id., pp. 1598–99. Later in that discussion, Repre-
sentative David K. Labriola asked whether one of the
main purposes of the bill was to address issues regard-
ing the delay of habeas petitions and petitioners’ abuse
of the petition to delay the process. Id., p. 1602. Repre-
sentative Fox responded in the affirmative, stating that
‘‘every[one] involved . . . felt that resources could be
better spent and better used [toward] those claims
where the outcome . . . could potentially be in ques-
tion.’’ Id. Further, although § 52-470 distinguishes non-
meritorious petitions, which are addressed in subsec-
tions (a) and (b) of the statute, from untimely petitions,
which are addressed in subsections (c) through (f) of
the statute, the legislative history demonstrates that
preserving a petitioner’s ability to pursue meritorious
claims remained a prevailing goal of the 2012 amend-
ments. See, e.g., Conn. Joint Standing Committee Hear-
ings, supra, p. 4798, remarks of Chief State’s Attorney
Kane (‘‘I think everybody recognizes that . . . it’s a
problem that needs to be dealt with and needs to be
dealt with fairly without preventing people from . . .
being able to raise legitimate claims. And . . . it is a
financial concern, but it’s an important thing for jus-
tice . . . .’’).
With this context in mind, although we agree with the
petitioner that the legislature certainly contemplated a
petitioner’s lack of knowledge of a change in the law
as potentially sufficient to establish good cause for an
untimely filing, the legislature did not intend for a peti-
tioner’s lack of knowledge of the law, standing alone,
to establish that a petitioner has met his evidentiary
burden of establishing good cause.9 As with any excuse
for a delay in filing, the ultimate determination is subject
to the same factors previously discussed, relevant to
the petitioner’s lack of knowledge: whether external
forces outside the control of the petitioner had any
bearing on his lack of knowledge, and whether and to
what extent the petitioner or his counsel bears any
personal responsibility for that lack of knowledge. In
this case, the petitioner’s lack of knowledge of the statu-
tory amendments apparently attributable to his condi-
tions of confinement could have certainly been consid-
ered in the habeas court’s good cause determination.
Accordingly, we now turn to the habeas court’s deter-
mination in the present case. Based on its memorandum
of decision, the habeas court premised its good cause
determination on the length of the delay and the evi-
dence in support of the petitioner’s argument that his
conditions of confinement caused his lack of awareness
of the statutory deadline. Although the legislative his-
tory demonstrates that a lack of knowledge of changes
in the law may well amount to good cause in a particular
case, the facts testified to by the petitioner nevertheless
do not support his claim in that respect. The petitioner
testified that, at the relevant times, he did have access to
the assistance of attorneys, albeit not for this particular
matter. Prior to December, 2013, the petitioner was
incarcerated in facilities that either did not have law
libraries or that did not allow him access to them. Signif-
icantly, however, the petitioner testified that he had
access to legal resources while housed in general popu-
lation at MacDougall-Walker Correctional Institution
(MacDougall) from December, 2013, through October
1, 2014, which is the date when the statutory deadline
for a timely filing of a successive habeas petition
expired. See footnote 3 of this opinion. He testified that
the resource center at MacDougall had ‘‘law books, a lot
of federal law books. They have [the] General Statutes.
They have some books.’’ (Emphasis added.) Finally,
when asked to summarize his explanation for the delay
in filing the second petition, the petitioner stated that
he was housed in and out of administrative segregation
due to a disciplinary problem.
The habeas court’s memorandum of decision sug-
gests that, in exercising its discretion, the court consid-
ered whether external forces outside the control of the
petitioner had any bearing on the delay and how long
after the expiration of the filing deadline the petitioner
filed the second petition to be controlling in the present
case. Considering the testimony in the record, we con-
clude that the habeas court did not abuse its discretion
because the record indicates that, for the periods that
the petitioner was out of administrative segregation in
the ten months leading up to the filing deadline in this
case, the petitioner had access to a resource center that
included the General Statutes.10 Moreover, it also was
reasonable for the habeas court to consider in its good
cause analysis that the petitioner had filed his second
petition not shortly after the filing deadline but more
than two years after that deadline lapsed. Even in light
of the remaining factors a habeas court can consider
in its good cause determination, none outweighs the
factors considered by the habeas court to the point that
it was unreasonable in determining that the petitioner
failed to establish that something outside of his control
had caused or contributed to the delay. We conclude,
therefore, that the habeas court did not abuse its discre-
tion in determining that the petitioner had failed to
demonstrate good cause for the delay in filing the sec-
ond habeas petition, and the court properly dismissed
the petition in accordance with that determination pur-
suant to § 52-470 (d) and (e). Accordingly, the Appellate
Court properly affirmed the judgment dismissing the
habeas petition.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
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; [or] (2) October 1, 2014 . . . .
‘‘(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. . . .’’
2
We originally granted the petitioner’s petition for certification to appeal,
limited to the following issues: (1) ‘‘Did the Appellate Court correctly deter-
mine that ‘abuse of discretion’ is the appropriate standard of review for
dismissals of habeas petitions pursuant to . . . § 52-470?’’ And (2) ‘‘Did the
Appellate Court correctly determine that the petitioner had failed to establish
good cause necessary to overcome the rebuttable presumption of unreason-
able delay as set forth in § 52-470?’’ Kelsey v. Commissioner of Correction,
336 Conn. 912, 244 A.3d 562 (2021).
Subsequently, the respondent, the Commissioner of Correction, moved
for modification of the certified questions. We granted that motion and
modified the certified questions as follows: (1) ‘‘Did the Appellate Court
correctly determine that ‘abuse of discretion’ is the appropriate standard
of review of a habeas court’s dismissal of a successive habeas petition
following its determination that the petitioner had not demonstrated good
cause for the untimely filing pursuant to . . . § 52-470?’’ And (2) ‘‘Did the
Appellate Court correctly determine that the habeas court did not err in
finding that the petitioner had failed to establish good cause necessary to
overcome the rebuttable presumption of unreasonable delay as set forth in
§ 52-470?’’ Kelsey v. Commissioner of Correction, 336 Conn. 941, 250 A.3d
41 (2021).
We acknowledge the argument made by the respondent in his brief that,
although this court granted the respondent’s motion to modify the certified
questions, our modification to the first certified question did not render it
a proper statement of the issues. The respondent argues that the certified
question should reflect the Appellate Court’s review of the habeas court’s
good cause determination, rather than its review of the habeas court’s
dismissal of the petition. The respondent proposes the following, alternative
certified question: ‘‘Did the Appellate Court correctly determine that ‘abuse
of discretion’ is the appropriate standard of review of a habeas court’s
determination as to whether a petitioner has satisfied the good cause stan-
dard of . . . § 52-470?’’ However, we decline to further modify the first
certified question, as it accurately reflects the conclusion of the Appellate
Court, and any additional modification would have no bearing on our deci-
sion in this appeal.
3
Although the habeas court, in its memorandum of decision, cited the
filing deadline imposed by § 52-470 (d) (1), the respondent correctly observes
that the filing deadline applicable in the present case is governed by § 52-
470 (d) (2). Specifically, the statute indicates that the applicable deadline
is the later of the three enumerated deadlines. Subdivision (1) of § 52-470
(d) imposes a deadline of ‘‘[t]wo 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,’’
which would result in a successive petition filing deadline in July, 2014. In
contrast, § 52-470 (d) (2) imposes a filing deadline of October 1, 2014. As
the later date is October 1, 2014, § 52-470 (d) (2) applies in the present case.
This error is not, however, determinative of the good cause or standard of
review issues before us in this certified appeal.
4
‘‘[I]t is well established that testimony before legislative committees
may be considered in determining the particular problem or issue that
the legislature sought to address by legislation.’’ (Internal quotation marks
omitted.) Boardwalk Realty Associates, LLC v. M & S Gateway Associates,
LLC, 340 Conn. 115, 131–32, 263 A.3d 87 (2021).
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
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.’’
7
Habeas courts do not entirely lack discretion when assessing the exis-
tence of cause in the procedural default context. See, e.g., Newland v.
Commissioner of Correction, supra, 331 Conn. 559 (referencing ‘‘the habeas
court’s equitable discretion with respect to procedurally defaulted claims’’
(internal quotation marks omitted)). Nevertheless, the factors considered
in the cause determination to overcome a procedural default do not require
the same degree of discretion necessary to make a good cause determination
under § 52-470 (e), as emphasized by the statute’s legislative history and
this court’s prior discussion of the statute.
8
Indeed, we read the respondent’s argument as supportive of the Appellate
Court’s definition of good cause. The respondent argues that the statutory
silence as to the definition of good cause can be resolved according to the
well settled principles of ejusdem generis. See, e.g., Soto v. Bushmaster
Firearms International, LLC, 331 Conn. 53, 140, 202 A.3d 262, cert. denied
sub nom. Remington Arms Co., LLC v. Soto, U.S. , 140 S. Ct. 513,
205 L. Ed. 2d 317 (2019) (canon of ejusdem generis ‘‘applies when a statute
sets forth a general category of persons or things and then enumerates
specific examples thereof,’’ and ‘‘the general category [is construed to
encompass] only things similar in nature to the specific examples that
follow’’). This is consistent with the Appellate Court’s conclusion that, ‘‘[b]y
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.’’ Kelsey v. Commissioner of Correction, supra,
202 Conn. App. 33–34.
9
Contrary to the respondent’s arguments on this point, we also conclude
that, in addition to the factors discussed by the Appellate Court, the habeas
court may also include in its good cause analysis whether a petition is
wholly frivolous on its face. It is consistent with the legislative intent of
§ 52-470 that the good cause determination can be, in part, guided by the
merits of the petition. Based on the extensive legislative discussion in sup-
port of relieving the dockets of the habeas courts to allow for consideration
of meritorious petitions, and this court’s statement, unspecific to a particular
subdivision of the statute, that ‘‘the new provisions of § 52-470 ‘are intended
to supplement that statute’s efficacy in averting frivolous habeas petitions
and appeals’ ’’; Kelsey v. Commissioner of Correction, supra, 329 Conn. 715;
we cannot agree with the respondent that subsections (c) through (f) of
§ 52-470 are entirely separate in purpose and operation from subsections
(a) and (b) of the statute. Further, throughout the hearings on the 2012
amendments, the filing deadlines were distinguished from strict statutes of
limitations. See, e.g., Conn. Joint Standing Committee Hearings, supra, p.
4852, remarks of Chief Public Defender Susan O. Storey (describing ‘‘the
presumption of delay instead of a strict statute of limitations’’). The respon-
dent’s position that the merits can have no bearing on the good cause
determination is antithetical to the purpose of the statute to ensure that
the habeas courts preserve resources to promote the effective administration
of justice.
10
Although there was no testimony for the habeas court to consider as
to how long the petitioner remained in general population after his initial
placement in December, 2013, or whether the version of the General Statutes
in the McDougall resource center was current, § 52-470 (e) places the burden
on the petitioner to produce the evidence necessary to demonstrate good
cause for the delay. We note that there is no evidence to indicate that the
petitioner spent a significant amount of time in administrative segregation
without access to the resource center. There is also no testimony indicating
that the revision to which the petitioner had access was out of date, and,
thus, it was reasonable for the habeas court to conclude that the petitioner
did not demonstrate that his conditions of confinement established good
cause sufficient to excuse his filing delay.