Coleman v. Commissioner of Correction

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CHARLES WILLIAM COLEMAN v. COMMISSIONER
OF CORRECTION
(AC 43122)
Elgo, Alexander and DiPentima, Js.
Syllabus
The petitioner, who had been convicted of various crimes, appealed to this
court from the judgment of the habeas court, which dismissed his peti-
tion for a writ of habeas corpus pursuant to statute (§ 52-470). Following
the filing of the petition, the habeas court, at the request of the respon-
dent, the Commissioner of Correction, issued an order to the petitioner
to show cause, pursuant to § 52-470, why the petition should be permitted
to proceed in light of the fact that the judgment on his prior habeas
petition became final in 2014, but the petitioner had failed to file this
petition until almost four years later, beyond the presumptive deadlines
for doing so set forth in § 52-470 (d). After an evidentiary hearing, the
court found that the petitioner’s claim that he had difficulty obtaining
the transcripts from his prior proceedings in order to find new issues
to raise lacked credibility and that the petitioner’s argument that he had
not been informed by his prior attorneys of the retroactive application
of State v. Salamon (287 Conn. 509) in collateral proceedings was
unavailing. The court thus concluded that the petitioner failed to show
good cause for the delay in filing the petition and dismissed it pursuant
to § 52-470 (d) and (e). The court thereafter denied the petition for
certification to appeal, and the petitioner appealed to this court, claiming
that § 52-470 was unconstitutional, his inability to obtain the transcripts
from his prior proceedings and the ineffective assistance of his prior
counsel constituted good cause, and the court abused its discretion in
denying the petition for certification to appeal. Held that the habeas
court did not abuse its discretion in denying the petition for certification
to appeal, as the petitioner did not distinctly raise his constitutional
challenge to § 52-470 in the petition for certification and, thus, this court
declined to review this claim; moreover, the petitioner could not prevail
on his claim that good cause existed for his delay in commencing his
petition for a writ of habeas corpus, as the petitioner’s inability to obtain
transcripts from prior proceedings did not prevent him from filing a
petition within the statutorily prescribed time period and this court was
bound by the habeas court’s determination that the petitioner’s claimed
difficulty in obtaining the transcripts was not credible; furthermore, the
petitioner’s ignorance of the possible retroactive application of Salamon
did not constitute good cause to proceed with his otherwise untimely
habeas petition, and the petitioner’s failure to raise his claim of the
ineffective assistance of prior counsel before the habeas court was fatal
to his claim that this allegedly ineffective assistance constituted good
cause, and, accordingly, the appeal was dismissed.
Argued October 14, 2020—officially released February 9, 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.
Deborah G. Stevenson, assigned counsel, for the
appellant (petitioner).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Adrienne Russo, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
ALEXANDER, J. The petitioner, Charles William Cole-
man, appeals from the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
dismissing his petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court (1)
improperly determined that he had failed to establish
good cause for the filing of his untimely habeas petition
and (2) abused its discretion in denying his petition for
certification to appeal. We disagree, and, accordingly,
dismiss the petitioner’s appeal.
As this court previously observed, ‘‘[t]he factual and
procedural history of the petitioner’s criminal case and
prior habeas cases is lengthy and well documented. See
Coleman v. Commissioner of Department of Correc-
tions, United States District Court, Docket No. 2:91-
CV0005 (PCD) (D. Conn. December 30, 1991), aff’d, 969
F.2d 1041 (2d Cir. 1992); Coleman v. Commissioner of
Correction, 274 Conn. 422, 876 A.2d 533 (2005); State
v. Coleman, 251 Conn. 249, 741 A.2d 1 (1999), cert.
denied, 529 U.S. 1061, 120 S. Ct. 1570, 146 L. Ed. 2d 473(2000); State v. Coleman, 242 Conn. 523, 700 A.2d 14(1997); State v. Coleman, 241 Conn. 784, 699 A.2d 91(1997); Coleman v. Commissioner of Correction, 108
Conn. App. 836, 949 A.2d 536, cert. denied, 289 Conn.
913, 957 A.2d 876 (2008); Coleman v. Commissioner of
Correction, 99 Conn. App. 310, 913 A.2d 477, cert.
denied, 281 Conn. 924, 918 A.2d 275 (2007); State v.
Coleman, 38 Conn. App. 531, 662 A.2d 150, cert. denied,
235 Conn. 906, 665 A.2d 903 (1995); State v. Coleman,
17 Conn. App. 307, 552 A.2d 442 (1989).’’ Coleman v.
Commissioner of Correction, 149 Conn. App. 719, 721–
22, 87 A.3d 1208, cert. denied, 312 Conn. 905, 93 A.3d
156 (2014).
The petitioner was convicted of burglary in the first
degree, burglary in the second degree, sexual assault
in the first degree and unlawful restraint in the first
degree. Coleman v. Commissioner of Correction,
supra, 274 Conn. 423–24. ‘‘The convictions arose out
of an incident that occurred on July 7, 1986, in which
an assailant broke into a New Haven residence and
sexually assaulted a woman.’’ Id., 424. This court
vacated the petitioner’s conviction of burglary in the
second degree and affirmed his other convictions. Id.
The self-represented petitioner commenced the pres-
ent habeas action on May 7, 2018, alleging ineffective
assistance by his criminal trial counsel, Thomas E.
Farver. On October 31, 2018, the respondent, the Com-
missioner of Correction, requested that the habeas
court order the petitioner to show cause as to why this
petition should not be dismissed as untimely pursuant
to General Statutes § 52-470 (d) and (e). The respondent
claimed that the present habeas petition had been filed
more than two years after the conclusion of appellate
review of the prior petition challenging the same convic-
tion and, therefore, was presumptively untimely.
On February 22, 2019, the court, Newson, J., held a
hearing on the respondent’s request. Only the petitioner,
who was now represented by counsel, testified at this
proceeding. On May 10, 2019, the court issued a memo-
randum of decision dismissing the habeas petition. In
its memorandum, the court noted: ‘‘The only contested
issue in the present case is whether the petitioner can
establish ‘good cause’ for the delay in filing the petition.
Since the decision on his last petition is deemed to have
become final on May 29, 2014, when the Supreme Court
issued the notice denying the petition for certification,
the petitioner had until May 29, 2016, to file a subsequent
petition challenging the same conviction. General Stat-
utes § 52-470 (d) (1). Since it was not, the petition is sub-
ject to dismissal, unless he can establish ‘good cause’
for the delay in filing.’’ (Footnote omitted.)
The habeas court then turned to the issue of whether
the petitioner had established good cause for the delay.
The petitioner argued that his difficulty in obtaining
the transcripts from his prior proceedings to ‘‘find new
issues to raise’’ constituted good cause. The court
rejected this argument, concluding that it lacked cred-
ibility.1 The court also was not persuaded by the peti-
tioner’s argument that his prior habeas and appellate
attorneys had failed to inform him of the retroactive
application of State v. Salamon, 287 Conn. 509, 542, 949
A.2d 1092 (2008), in collateral proceedings pursuant to
Luurtsema v. Commissioner of Correction, 299 Conn.
740, 751, 12 A.3d 817 (2011).2 The court concluded that
the petitioner’s ignorance of the change to our kidnap-
ping jurisprudence did not constitute good cause for the
purpose of § 52-470. Accordingly, the court dismissed
the petition for a writ of habeas corpus, and, subse-
quently, denied the petition for certification to appeal
from the dismissal of the habeas petition. This appeal
followed.
On appeal, the petitioner claims, for the first time,
that § 52-470, both on its face and as applied, violates
both the federal and state constitutions by effectively
suspending the privileges of the writ of habeas corpus.
He also contends that his inability to obtain the tran-
scripts of his prior proceedings, despite his due dili-
gence, constituted good cause. Additionally, he argues
that good cause exists as a result of public defender
error and the ineffective assistance of prior counsel.
He contends that his prior counsel had failed to advise
him of the time limits to file his habeas petition, to pro-
vide him with transcripts of the various proceedings in
a timely fashion and to advise him of the possibil-
ity of raising a claim involving the retroactive applica-
tion of State v. Salamon, supra, 287 Conn. 509. Finally,
the petitioner claims that the habeas court abused its
discretion in denying his petition for certification to
appeal. We are not persuaded.
We begin with the relevant legal principles. ‘‘Pursuant
to . . . § 52-470 (g), a petitioner may appeal from the
decision of the habeas court if the judge before whom
the case was tried . . . [certifies] that a question is
involved in the decision which ought to be reviewed
by the court having jurisdiction . . . . Section 52-470
(g) was enacted to discourage frivolous habeas corpus
appeals by conditioning the petitioner’s right to appeal
upon obtaining certification from the habeas court. See
Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126(1994). A petitioner who was denied certification to
appeal but nonetheless appeals must first demonstrate
that the denial of certification constituted an abuse of
the habeas court’s discretion.’’ (Internal quotation marks
omitted.) Turner v. Commissioner of Correction, 201
Conn. App. 196, 206–207, 242 A.3d 512 (2020).
This court repeatedly has explained that ‘‘[f]aced with
a habeas court’s denial of a petition for certification to
appeal, a petitioner can obtain appellate review of the
dismissal of his petition for habeas corpus only by satis-
fying the two-pronged test enunciated by our Supreme
Court in Simms v. Warden, 229 Conn. 178, 640 A.2d
601 (1994), and adopted in Simms v. Warden, [supra,
230 Conn. 612]. First, he must demonstrate that the
denial of his petition constituted an abuse of discretion.
. . . Second, if the petitioner can show an abuse of
discretion, he must then prove that the decision of the
habeas court should be reversed on its merits. . . .
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 manner] . . . or . . . the ques-
tions are adequate to deserve encouragement to pro-
ceed further.’’ (Citation omitted; internal quotation
marks omitted.) Humble v. Commissioner of Correc-
tion, 180 Conn. App. 697, 703, 184 A.3d 804, cert. denied,
330 Conn. 939, 195 A.3d 692 (2018).
‘‘In determining whether the habeas court abused its
discretion in denying the petitioner’s request for certifi-
cation, we necessarily must consider the merits of the
petitioner’s underlying claims to determine whether the
habeas court reasonably determined that the petition-
er’s appeal was frivolous. In other words, we review the
petitioner’s substantive claims for the purpose of ascer-
taining whether those claims satisfy one or more of the
three criteria . . . adopted by [our Supreme Court] for
determining the propriety of the habeas court’s denial of
the petition for certification.’’ (Internal quotation marks
omitted.) Sanders v. Commissioner of Correction, 169
Conn. App. 813, 821–22, 153 A.3d 8 (2016), cert. denied,
325 Conn. 904, 156 A.3d 536 (2017).
In the present case, the petitioner filed his petition for
certification to appeal the dismissal of his habeas peti-
tion on May 15, 2019. He set forth the following as the
grounds for his request for certification to appeal to
this court: ‘‘Whether the habeas court erred in dismiss-
ing [the] [p]etitioner’s case for lack of good cause; any
other grounds revealed in [the] transcripts or record.’’
The petition for certification to appeal did not include
a challenge to the constitutionality of § 52-470.
We review only the merits of claims specifically set
forth in the petition for certification to appeal. See John-
son v. Commissioner of Correction, 181 Conn. App.
572, 578, 187 A.3d 543, cert. denied, 329 Conn. 909, 186
A.3d 13 (2018). ‘‘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
certification on issues that were not raised in the peti-
tion for certification to appeal.’’ (Citation omitted; inter-
nal quotation marks omitted.) Id., 578–79; see also Per-
eira v. Commissioner 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 confined 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 Cor-
rection, 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).
The petitioner did not distinctly raise his constitu-
tional challenge to § 52-470 in his petition for certifi-
cation to appeal. Pursuant to our well established juris-
prudence, we therefore decline to review this claim.3
See Johnson v. Commissioner of Correction, supra,
181 Conn. App. 580 (no basis to conclude habeas court
abused discretion when petition for certification to
appeal raised issues relating to petitioner’s competency
to stand trial and appellate arguments raised ineffective
assistance of counsel claim); Sanders v. Commissioner
of Correction, supra, 169 Conn. App. 817–18 n.2 (noting
that habeas petitioner could not establish that habeas
court had abused its discretion with respect to due
process claim where petition for certification to appeal
addressed ineffective assistance of counsel claim and
‘‘such other claims of error found after a complete
review of record’’ (internal quotation marks omitted));
Melendez v. Commissioner of Correction, 141 Conn.
App. 836, 841, 62 A.3d 629 (habeas court could not
abuse its discretion in denying claims about matters
not raised in petition for certification to appeal), cert.
denied, 310 Conn. 921, 77 A.3d 143 (2013); see also
Whistnant v. Commissioner of Correction, 199 Conn.
App. 406, 418–19, 236 A.3d 276 (noting that review pur-
suant to State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015), was not available
for claim raised for first time on appeal and not raised in
or incorporated into petition for certification to appeal),
cert. denied, 335 Conn. 969, 240 A.3d 286 (2020).
We next turn to § 52-470 and good cause.4 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), this court set forth a definition
of ‘‘good cause’’ in the context of § 52-470. ‘‘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. . . . The parties
also agree that good cause has been defined as a sub-
stantial reason amounting in law to a legal excuse for
failing to perform an act required by law . . . [a]
[l]egally sufficient ground or reason.’’ (Citation omitted;
internal quotation marks omitted.) Id.
More recently, in Kelsey v. Commissioner of Correc-
tion, 202 Conn. App. 21, 23, A.3d (2020), cert.
granted, 336 Conn. 912, A.3d (2021), we deline-
ated ‘‘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 warrants dismissal of the
petition . . . and [clarified] the appellate standard of
review applicable to a habeas court’s determination
of whether a petitioner has satisfied the good cause
standard.’’ (Citation omitted; footnote omitted.) After
a review of § 52-470; see id., 28–31; we then synthesized
‘‘a more fulsome definition of good cause as that term
is used in § 52-470 (d) and (e) . . . .’’ Id., 33. ‘‘We con-
clude that to rebut successfully the presumption of
unreasonable delay in § 52-470, a petitioner generally
will be required to demonstrate that something outside
of the control of the petitioner or habeas counsel 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 prop-
erly may elect to consider a number of factors in deter-
mining whether a petitioner has met his evidentiary bur-
den of establishing good cause for filing an untimely
petition. Based on the authorities we have discussed and
the principles emanating from them, factors 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 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 disposi-
tive, and the court should evaluate all relevant factors
in light of the totality of the facts and circumstances
presented.’’ Id., 34–35.
Next, we considered the proper appellate standard
of review. We concluded that ‘‘a habeas court’s determi-
nation 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. As such, the determination
invokes the discretion of the habeas court and is revers-
ible only for an abuse of that discretion.’’ Id., 35–36.
We also noted, however, that ‘‘in applying the abuse of
discretion standard, [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.)
Id., 36 n.12. It is axiomatic that ‘‘[a] finding of fact is
clearly erroneous when there is no evidence in the rec-
ord to support it . . . or when although there is evi-
dence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed. . . . A reviewing
court ordinarily will afford deference to those credibil-
ity determinations made by the habeas court on the
basis of [the] firsthand observation of [a witness’] con-
duct, demeanor and attitude.’’ (Internal quotation marks
omitted.) Rose v. Commissioner of Correction, 202
Conn. App. 436, 442, A.3d (2021). Guided by
these principles, we consider the petitioner’s remain-
ing arguments.
The petitioner first argues that he demonstrated good
cause for the delay in commencing this habeas action
through his diligent efforts to obtain the transcripts
from his prior proceedings in order to present possible
‘‘new’’ issues that had not previously been raised. The
habeas court, in rejecting this contention, stated: ‘‘Con-
sidering all of the testimony and evidence, the claim is
simply not a credible one, especially given the extensive
litigation the petitioner has engaged [in] to challenge
these convictions. Further, while the lack of transcripts
may have made it difficult to ‘fine tune’ issues, it defi-
nitely did not prevent the petitioner from actually filing
a petition within the two year period. In fact, an active
petition would have given the petitioner the ability to
seek the appointment of assigned counsel, who could
have assisted with locating [the] transcripts, and to file
[a waiver] of costs and fees.’’
To the extent that the habeas court found the petition-
er’s claimed difficulty in obtaining transcripts not credi-
ble, we defer to and are bound by that determination.
See Watts v. Commissioner of Correction, 194 Conn.
App. 558, 567, 221 A.3d 829 (2019), cert. denied, 334
Conn. 919, 222 A.3d 514 (2020); Noze v. Commissioner
of Correction, 177 Conn. App. 874, 885–86, 173 A.3d 525(2017); see also Bagalloo v. Commissioner of Correc-
tion, 195 Conn. App. 528, 536, 225 A.3d 1226 (habeas
judge sole arbiter of credibility of witnesses and Appel-
late Court does not retry case or evaluate credibility of
witnesses), cert. denied, 335 Conn. 905, 226 A.3d 707(2020). Additionally, as noted by the habeas court, noth-
ing prevented the petitioner from first filing the petition
and then making efforts to obtain the transcripts, with
the assistance of appointed counsel. See Kelsey v. Com-
missioner of Correction, supra, 202 Conn. App. 34 (peti-
tioner generally required to demonstrate that something
outside of his control caused or contributed to delay).
We agree with the habeas court and conclude that this
argument is without merit.
Second, the petitioner argues that prior counsel had
failed to advise him of the possibility of raising a claim
involving the retroactive application of State v. Sala-
mon, supra, 287 Conn. 509. The petitioner claimed that
he only recently had become aware of Salamon and
that his failure to raise the claim earlier constituted
good cause. In rejecting this argument, the habeas court
stated: ‘‘It is important to note that [the] petitioner does
not claim that counsel misadvised him on the applicabil-
ity of these cases, but that they simply failed to discuss
them. Even if we assume for purposes of argument that
Salamon and Luurtsema are applicable, since there is
nothing in the record before this court to indicate that
he was convicted of a kidnapping charge, this reason
is also insufficient to establish good cause for the delay.
Salamon was decided in 2008, three years before the
petitioner’s last habeas petition was even tried, and
eight years before this petition was filed. [E]veryone is
presumed to know the law, and that ignorance of the
law excuses no one . . . . Thus, the [petitioner] is
charged with knowledge of the law.’’ (Emphasis omit-
ted; internal quotation marks omitted.)
In Kelsey v. Commissioner of Correction, supra, 202
Conn. App. 40–41, we concluded that ignorance of the
law did not constitute good cause to proceed with an
otherwise untimely habeas petition. Nothing in the peti-
tioner’s appellate brief persuades us that a different
result is warranted in the present case.5 We conclude,
therefore, that this argument must fail.
Finally, the petitioner contends that good cause
exists as a result of public defender error and the inef-
fective assistance of prior counsel. Specifically, he
argues that his prior counsel had failed to advise him
as to the time limits to file his habeas petition and to
provide him with transcripts of the various proceedings
in a timely fashion. The fatal flaw with this contention
is that the petition failed to present these matters before
the habeas court. As noted in the appellate brief of
the respondent: ‘‘[T]he petitioner did not claim in his
petition, in his response to the request for order to
show cause, or during the good cause hearing that prior
counsel’s inability to find his transcripts in the years
following his prior habeas action and/or failure to advise
him about the timeliness provisions of § 52-470 (d) vio-
lated his sixth amendment right to [the] effective assis-
tance of counsel.’’ Furthermore, the habeas court did
not address such matters in its memorandum of deci-
sion on the respondent’s request for order to show cause.
‘‘We do not entertain claims not raised before the habeas
court but raised for the first time on appeal.’’ (Internal
quotation marks omitted.) Lopez v. Commissioner of
Correction, 142 Conn. App. 53, 57 n.2, 64 A.3d 334(2013); see also Eubanks v. Commissioner of Correc-
tion, 329 Conn. 584, 598, 188 A.3d 702 (2018) (appellate
review of claims not raised before habeas court would
amount to ambuscade of habeas judge); Walker v. Com-
missioner of Correction, 176 Conn. App. 843, 846 n.2,
171 A.3d 525 (2017) (Appellate Court is not compelled
to consider issues neither alleged in habeas petition
nor considered at habeas proceeding); Sewell v. Com-
missioner of Correction, 168 Conn. App. 735, 736–37
n.2, 147 A.3d 196 (2016) (Appellate Court did not con-
sider issues not alleged in habeas petition or considered
at trial during habeas proceeding), cert. denied, 324
Conn. 907, 152 A.3d 1245 (2017).
The appeal is dismissed.
In this opinion the other judges concurred.
1
Specifically, the court stated: ‘‘Considering all of the testimony and evi-
dence, the claim is simply not a credible one, especially given the extensive
litigation the petitioner has engaged [in] to challenge these convictions.’’
2
‘‘Stated succinctly, [p]ursuant to the holdings of these decisions, a defen-
dant who has been convicted of kidnapping may collaterally attack his
kidnapping conviction on the ground that the trial court’s jury instructions
failed to require that the jury find that the defendant’s confinement or
movement of the victim was not merely incidental to the defendant’s commis-
sion of some other crime or crimes.’’ (Internal quotation marks omitted.)
Nogueira v. Commissioner of Correction, 168 Conn. App. 803, 807, 149 A.3d
983, cert. denied, 323 Conn. 949, 169 A.3d 792 (2016); see also Pereira v.
Commissioner of Correction, 176 Conn. App. 762, 768–70, 171 A.3d 105,
cert. denied, 327 Conn. 984, 175 A.3d 43 (2017); White v. Commissioner of
Correction, 170 Conn. App. 415, 421 n.4, 423–24, 154 A.3d 1054 (2017).
3
We have recognized that an appeal following the denial of a petition for
certification to appeal from the judgment of the habeas court denying or
dismissing a petition for a writ of habeas corpus is not the appellate equiva-
lent of a direct appeal following a criminal conviction. See Tutson v. Com-
missioner of Correction, 144 Conn. App. 203, 216, 72 A.3d 1162, cert. denied,
310 Conn. 928, 78 A.3d 145 (2013). ‘‘Our limited task as a reviewing court
is to determine whether the habeas court abused its discretion in concluding
that the petitioner’s appeal is frivolous.’’ Id.4
General Statutes § 52-470 provides in relevant part: ‘‘(d) In the case of
a petition filed subsequent to a judgment on a prior petition challenging the
same conviction, there shall be a rebuttable presumption that the filing of
the subsequent petition has been delayed without good cause if such petition
is filed after the later of the following: (1) Two years after the date on which
the judgment in the prior petition is deemed to be a final judgment due to
the conclusion of appellate review or the expiration of the time for seeking
such review; (2) October 1, 2014; or (3) two years after the date on which
the constitutional or statutory right asserted in the petition was initially
recognized and made retroactive pursuant to a decision of the Supreme
Court or Appellate Court of this state or the Supreme Court of the United
States or by the enactment of any public or special act. For the purposes
of this section, the withdrawal of a prior petition challenging the same
conviction shall not constitute a judgment. The time periods set forth in
this subsection shall not be tolled during the pendency of any other petition
challenging the same conviction. Nothing in this subsection shall create
or enlarge the right of the petitioner to file a subsequent petition under
applicable law.
‘‘(e) In a case in which the rebuttable presumption of delay under subsec-
tion (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 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 (c) or (d) of this section. . . .’’
See also Dull v. Commissioner of Correction, 175 Conn. App. 250, 252,
167 A.3d 466, cert. denied, 327 Conn. 930, 171 A.3d 453 (2017); see generally
Kelsey v. Commissioner of Correction, 329 Conn. 711, 715–26, 189 A.3d 578(2018); Kaddah v. Commissioner of Correction, 324 Conn. 548, 566–68, 153
A.3d 1233 (2017).
5
In his appellate brief, the petitioner’s argument regarding Salamon con-
sists of the statements that the habeas court is presumed to know the law
and that it should have known that ‘‘a statute or court made law cannot
conflict with the plain language of the constitution, cannot eliminate or
suspend the writ of habeas corpus, and cannot be used to effectively deny
counsel or the right of a petitioner to redress his grievances.’’