Antonio A. v. Comm'r of Corr.
| Decision Date | 01 June 2021 |
| Docket Number | AC 42466,AC 42618 |
| Court | Connecticut Court of Appeals |
| Parties | ANTONIO A. v. COMMISSIONER OF CORRECTION |
Moll, Suarez and DiPentima, Js.
The petitioner, who previously had been convicted of the crimes of sexual assault in the first degree and risk of injury to a child and was found to be in violation of his probation, sought, as a self-represented party, a second writ of habeas corpus using a state supplied form. Thereafter, the habeas court granted the petitioner's request the appointment of counsel, and counsel entered an appearance on the petitioner's behalf. The respondent Commissioner of Correction, pursuant to statute (§ 52-470 (d) and (e)), filed a request for an order to show cause why the second petition should be permitted to proceed when the petitioner had filed it more than two years after the judgment on his prior petition was final. The petitioner filed an objection in which he argued that an order to show cause was premature because he needed additional time to determine whether he met the requirements of § 52-470 (d) (3) or if good cause existed for the delay and that the court should wait until an amended petition is filed before deciding whether to issue an order. In addition, the petitioner's counsel represented that she needed additional time to fully investigate and to respond to the respondent's request. The respondent filed a reply arguing that the petitioner's counsel had eight months to determine the cause for the petitioner's delay in filing the petition and requesting that the court issue the order to show cause. Thereafter, the court held an evidentiary hearing during which the petitioner's counsel did not attempt to demonstrate that good cause for the delay in filing the petition existed or to argue that she needed additional time to inquire into the cause of the delay but, rather, argued that the court should deny the respondent's request because she needed additional time to inquire into a potential actual innocence claim and to file an amended petition on the petitioner's behalf. The court dismissed the petition, and the petitioner filed a motion for reconsideration in which he argued that the court's dismissal of the petition was in error because he intended to present evidence of a longtime medical condition as cause for his delay in filing the petition. The court, treating the motion as a motion to open the judgment, denied it, and, on the granting of certification, the petitioner appealed to this court. Prior to filing an appeal from the judgment on his second petition, the petitioner, as a self-represented party, filed a third habeas petition, which appeared to be a photocopy of the second petition, except for the addition of the statement "I am innocent" in the space on the form provided for reasons why his conviction was illegal and in the space provided for reasons why his incarceration/sentence was illegal. The habeas court, on the basis of its determination that the third petition was an exact copy of the second petition, rendered judgment dismissing the third petition pursuant to a rule of practice (§ 23-29) on the grounds that that the court lacked jurisdiction to consider the third petition, the third petition failed to state a claim on which relief could be granted and res judicata precluded the court from affording the petitioner relief. Thereafter, the habeas court denied the petition for certification to appeal, and the petitioner appealed to this court.
With respect to the petitioner's appeal in Docket No. AC 42466, held:
1. The petitioner could not prevail on his claim that the habeas court erred in failing to afford his counsel a reasonable opportunity to investigate the cause of the delay in filing the second habeas petition: there was no authority to support the petitioner's argument that the court was obligated to delay its consideration of the respondent's request for an order to show cause because the petitioner's counsel represented to the court that it was possible that, in the future, the petitioner could pursue an actual innocence claim in an amended petition, as the proper inquiry into the issue of good cause focuses only on the claims in the operative petition; moreover, the court did not abuse its discretion in refusing to afford the petitioner any additional time prior to acting on the respondent's request, as the petitioner failed to demonstrate that his counsel lacked sufficient time in which to ascertain, investigate and present to the court a reason for the delay, and this court was not persuaded that the petitioner's counsel was not on notice of the purpose of the hearing on the respondent's request.
2. The habeas court did not abuse its discretion in treating the petitioner's motion for reconsideration as a motion to open or in denying that motion: a review of the motion revealed that it was an attempt by the petitioner to establish good cause for the delay in filing his second petition by means of facts related to his alleged medical condition that were not presented at the hearing on the respondent's request for an order to show cause, and the petitioner did not attempt to demonstrate that those facts were newly discovered or that, in the exercise of due diligence, they could not have been submitted at the hearing; moreover, the petitioner's contention that the habeas court was statutorily compelled by § 52-470 (e) to consider any information presented to it establishing good cause in ruling on an order to show cause was without merit, as the court afforded the petitioner an opportunity to present evidence of good cause at the hearing and thereafter properly applied the rules of practice to prevent him from waiting until after a judgment was rendered to establish good cause for the delay in filing the petition.
With respect to the petitioner's appeal in Docket No. AC 42618, held:
1. The habeas court abused its discretion in denying the petition for certification to appeal; the petitioner demonstrated that his claim of error relating to that court's dismissal of his third habeas petition pursuant to Practice Book § 23-29 on the ground that it failed to state a claim on which relief could be granted was debatable among jurists of reason and that the question raised was adequate to deserve encouragement to proceed further.
2. The appeal as to the petitioner's claim that the habeas court erred in denying his motion for permission to file a late amended petition for certification to appeal and for reconsideration of the denial of the petition for certification to appeal was dismissed; the petitioner failed to appeal from that court's ruling in accordance with § 52-470 (g) and our rules of practice by seeking certification to appeal from that ruling and then filing an appeal or amending his existing appeal, which deficiency was substantive in nature warranting dismissal of that portion of the appeal.
3. The habeas court's dismissal of the third habeas petition under Practice Book § 23-29 during its preliminary consideration of the petition and prior to issuing the writ of habeas corpus was procedurally improper: once that court concluded that any of the reasons set forth in the applicable rule of practice (§ 23-24) applied, it should have declined to issue the writ rather than dismissing the petition; moreover, this court was not persuaded that the proper remedy was to remand the case to the habeas court with direction to render judgment declining to issue the writ, as the habeas court's grounds for dismissing the third petition were based on its erroneous determination that the third petition was an exact copy of the second petition, and, because the allegations of innocence by the self-represented petitioner in the third petition were ambiguous and may constitute his attempt to set forth a claim of actual innocence, this court concluded, in accordance with Gilchrist v. Commissioner of Correction (334 Conn. 548), that the proper remedy was for the habeas court to issue the writ and, following the appointment of counsel, the petitioner be given the opportunity to rectify any pleading deficiencies.
Procedural History
Petition, in the first case, 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 petitioner's motion for reconsideration, and the petitioner, on the granting of certification, appealed to this court; and petition, in the second case, for a writ of habeas corpus, brought to the Superior Court in thejudicial 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; subsequently, the court, Newson, J., denied the petitioner's motion for permission to file a late amended petition for certification to appeal and for reconsideration of the denial of the petition for certification to appeal. Affirmed in Docket No. AC 42466; appeal dismissed in part; reversed; judgment directed in Docket No. AC 42618.
Michael W. Brown, for the appellant in both cases (petitioner).
Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, former state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee in Docket No. AC 42466 (respondent).
Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, was Gail P. Hardy, former state's attorney, for the appellee in Docket No. AC 42618 (respondent).
In the present appeals, the petitioner, Antonio A., challenges the judgments rendered by the habeas court dismissing his second and third petitions for a writ of habeas corpus. In the judgment under review in Docket No. AC 42466, the habeas court dismissed the petitioner's second petition for a writ of habeas corpus pursuant to General...
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