Coleman v. Comm'r of Corr.

• Decision Date: 09 February 2021
• Docket Number: AC 43122
• Citation: 202 Conn.App. 563,246 A.3d 54
• Court: Connecticut Court of Appeals
• Parties: Charles William COLEMAN v. COMMISSIONER OF CORRECTION

202 Conn.App. 563

246 A.3d 54

Charles William COLEMAN

v.COMMISSIONER OF CORRECTION

AC 43122

Appellate Court of Connecticut.

Argued October 14, 2020

Officially released February 9, 2021

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 attorney, for the appellee (respondent).

Elgo, Alexander and DiPentima, Js.

ALEXANDER, J.

The petitioner, Charles William Coleman, appeals from the denial of his petition for certification 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 Corrections , United States District Court, Docket No. 2:91-CV0005 (PCD), 1991 WL 345478 (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. at 423–24, 876 A.2d 533. "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., at 424, 876 A.2d 533. 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 present habeas action on May 7, 2018, alleging ineffective assistance by his criminal trial counsel, Thomas E. Farver. On October 31, 2018, the respondent, the Commissioner 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 conviction 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 memorandum 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 Statutes § 52-470 (d) (1). Since it was not, the petition is subject 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 credibility. ¹

The court also was not persuaded by the petitioner'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 kidnapping 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, subsequently, 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 transcripts of his prior proceedings, despite his due diligence, 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 provide him with transcripts of the various proceedings in a timely fashion and to advise him of the possibility of raising a claim involving the retroactive application of State v. Salamon , supra, 287 Conn. 509, 949 A.2d 1092. 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 satisfying 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. at 612, 646 A.2d 126 ]. 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 questions are adequate to deserve encouragement to proceed further." (Citation omitted; internal quotation marks omitted.) Humble v. Commissioner of Correction , 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 certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining 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 petition 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 dismissing [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 Johnson 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...