Antonio A. v. Comm'r of Corr.

• Citation: 205 Conn.App. 46,256 A.3d 684
• Decision Date: 01 June 2021
• Docket Number: AC 42466, (AC 42618)
• Parties: ANTONIO A. v. COMMISSIONER OF CORRECTION
• Court: Appellate Court of Connecticut

205 Conn.App. 46

256 A.3d 684

ANTONIO A.

v.COMMISSIONER OF CORRECTION^*

AC 42466, (AC 42618)

Appellate Court of Connecticut.

Argued November 12, 2020

Officially released June 1, 2021

Michael W. Brown, West Hartford, 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).

Moll, Suarez and DiPentima, Js.

SUAREZ, J.

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 Statutes § 52-470 on the ground that the petitioner had failed to show good cause for his delay in bringing the petition more than two years following a final judgment denying his first petition for a writ of habeas corpus. In AC 42466, the petitioner claims that the court erred in (1) failing to afford his counsel a reasonable opportunity to investigate the cause of the delay, and (2) denying his motion for reconsideration of its ruling. In AC 42466, we affirm the judgment of the habeas court. In the judgment under review in Docket No. AC 42618, the habeas court dismissed the petitioner's third petition for a writ of habeas corpus pursuant to Practice Book § 23-29 on multiple grounds. In AC 42618, the petitioner claims that the court erred in (1) denying his petition for certification to appeal, (2) denying his motion for permission to file a late amended petition for certification to appeal and for reconsideration of the denial of his petition for certification to appeal, and (3) dismissing the habeas petition. In AC 42618, we dismiss the portion of the appeal in which the petitioner claims that the court erred in denying the motion and reverse the judgment dismissing the habeas petition.

The following facts and procedural history are relevant to the present appeals. In 2003, following a jury trial, the petitioner was convicted of two counts of risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21 (a) (2) and two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 2001) § 53a-70 (a) (2).¹ In addition, the trial court found the petitioner to be in violation of his probation related to a prior narcotics conviction. As a result of this finding, the petitioner's probation was revoked, and he was resentenced to four years of incarceration. This sentence was consecutive to the sentence imposed for his conviction of sexual assault and risk of injury to a child. The petitioner was sentenced to a total effective term of incarceration of forty-four years, execution suspended after twenty-four years, followed by ten years of probation and lifetime registration as a sex offender. On direct appeal, this court affirmed the judgment of conviction, and both our Supreme Court and the Supreme Court of the United States denied subsequent petitions for certification to appeal from this court's judgment affirming his conviction. State v. Antonio A ., 90 Conn. App. 286, 878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005), cert. denied, 546 U.S. 1189, 126 S. Ct. 1373, 164 L. Ed. 2d 81 (2006).

In October, 2009, the petitioner filed an amended petition for a writ of habeas corpus (first petition) in which he claimed that his criminal trial attorney had rendered ineffective assistance in a variety of ways. Following a trial, the habeas court denied the petition. Following a grant of certification to appeal, on March 18, 2014, this court affirmed the judgment of the habeas court. Antonio A . v. Commissioner of Correction , 148 Conn. App. 825, 87 A.3d 600, cert. denied, 312 Conn. 901, 91 A.3d 907 (2014). On May 21, 2014, our Supreme Court denied the petitioner's petition for certification to appeal from this court's judgment. Antonio A . v. Commissioner of Correction , 312 Conn. 901, 91 A.3d 907 (2014).

On October 6, 2017, the petitioner, in a self-represented capacity, filed a second petition for a writ of habeas corpus (second petition). The petitioner utilized a state supplied form. In responding to question five on the form, in which the petitioner was invited to specify why his "conviction is illegal," the petitioner wrote that his sentencing was illegal because the "court found [him] guilty on falsified information and improper/fictitious evidence" and that his criminal trial counsel did not render proper representation in that "prior counsel ignored mitigating evidence, did not investigate the state's case, did not protect [the petitioner] from the prejudice, malicious, intentional conduct." As additional grounds for challenging the conviction, the petitioner alleged: "[W]as not given appropriate interpreter (Spanish); jury was forced to find me guilty; there is no physical evidence supporting unstable statements; contradictory statements."

In response to question six on the form, in which the petitioner was permitted to specify why his "incarceration/sentence is illegal," the petitioner wrote: "Because of misconduct of all counsel involved in my case: Intentional, malicious, prejudicial, discriminatory (but is not limited to)." In box seven on the form, the petitioner alleged that the claims raised in the second petition had not been previously raised at trial, in a direct appeal, or in a previous habeas petition. He explained: "New evidence: Prior counsel did not present everything he was shown and or told or support [the petitioner] when the judge himself forced the jury to get a conviction; ineffective assistance of defense counsel; conflict of interest across the board (state attorney, defense attorney, judicial authority)."

The habeas court granted the petitioner's request for the appointment of counsel. On December 21, 2017, the Law Office of Christopher Duby, LLC, entered an appearance on the petitioner's behalf.

On August 9, 2018, the respondent, the Commissioner of Correction, pursuant to § 52-470 (d) and (e), filed a request for an order to show cause why the petitioner should be permitted to proceed with the second petition after having filed it more than two years after the judgment denying the first petition became final on May 21, 2014, when our Supreme Court denied the petitioner's petition for certification to appeal.² According to the respondent, the petitioner brought the second petition three years, four months, and fifteen days after the judgment denying the first petition became final and he did not rely on "the retroactive application of a new constitutional right ...." Thus, the respondent argued, the rebuttable presumption in § 52-470 (d), that the petition had been delayed without good cause, was implicated in the present case.

On August 13, 2018, the petitioner, through his counsel, filed an objection to the respondent's request. The petitioner acknowledged that he filed the second petition "more than three years after [the] prior petition became final" but argued that an order to show cause under § 52-470 would be "premature." The petitioner stated that he needed additional time to determine whether he met the requirements of § 52-470 (d) (3) or if good cause existed. In this regard, the petitioner argued that his counsel was not "tied" to the claims set forth in his second petition and that the court "should wait until [an] amended petition is filed to determine whether there is such a violation requiring an order to show cause." In the petitioner's objection, his counsel represented that, because she had not yet received case files from all of the petitioner's prior attorneys, she was "not able to properly investigate the petitioner's claims to determine whether a constitutional claim under § 52-470 (d) (3) or good cause exists. Therefore, the court should grant [counsel] additional time to fully investigate and respond to the respondent's request to show cause."

The respondent filed a reply in which he argued that, although § 52-470 (e) affords a petitioner "a meaningful opportunity to investigate the basis for the delay" in bringing a subsequent petition, that provision was "not a license to spend years exploring the merits of untimely claims." The respondent argued that the petitioner's counsel had eight months to determine why the petitioner waited so long to bring the second petition and requested that "the court issue the order to show cause and grant the petitioner no more than three months to respond to that order. At that time, if the court finds that the petitioner is likely to establish good cause for his delay, it can order that he be given additional time."

On the basis of the respondent's request and the petitioner's objection thereto, the court, Newson , J ., scheduled an evidentiary hearing on the request for September 12, 2018. At the hearing, the petitioner's counsel altered the focus of the objection to the respondent's request. At that time, she did not attempt to demonstrate that good cause for the delay in filing the second petition existed or to argue that she needed additional time to inquire into the cause of the delay. Instead, she argued that the court should deny the respondent's request because, under the existing circumstances, it would be appropriate for the respondent to assert the issue of impermissible delay under § 52-470 as a basis for dismissal, if at all, in its return as a special defense to the petition, and only after she had an opportunity to file an amended petition on the petitioner's behalf. The petitioner's counsel agreed with the court that, like other ...