Fenner v. Commissioner of Correction

• Decision Date: 03 August 2021
• Docket Number: AC 43267
• Parties: Roger FENNER v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

206 Conn.App. 488

260 A.3d 1234

Roger FENNER

v.COMMISSIONER OF CORRECTION

AC 43267

Appellate Court of Connecticut.

Argued May 10, 2021

Officially released August 3, 2021

Deren Manasevit, with whom, on the brief, was David J. Reich, for the appellant (petitioner).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Anne Mahoney, state's attorney, and Leah Hawley, former senior assistant state's attorney, for the appellee (respondent).

Elgo, Alexander and Devlin, Js.

ELGO, J.

The petitioner, Roger Fenner, appeals following 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 court abused its discretion in denying his petition for certification because he had good cause for the untimely filing of his petition for a writ of habeas corpus. We disagree and, accordingly, dismiss the appeal.

The relevant facts are not in dispute. In December, 2009, the petitioner pleaded guilty to one count each of murder in violation of General Statutes § 53a-54a and risk of injury to a child in violation of General Statutes (Rev. to 2007) § 53-21. The trial court rendered judgment in accordance with that plea and sentenced the petitioner to a total effective term of fifty years of incarceration. The petitioner did not file a direct appeal.

On October 6, 2017, the petitioner filed a petition for a writ of habeas corpus.¹ The record indicates that no further action transpired until December 28, 2018, when the respondent, the Commissioner of Correction, filed a request with the habeas court pursuant to General Statutes § 52-470 (c) and (e) for an order directing the petitioner to show cause why his untimely petition should be permitted to proceed. The court held an evidentiary hearing on that request on March 15, 2019.

The only evidence presented at that hearing was the testimony of the petitioner,² who testified that, prior to his arrest, he had been living with his son.³ The petitioner further testified that his arrest and subsequent conviction angered his son, with whom he thereafter was estranged for several years. In late 2016, the petitioner reconnected with his son. When his son informed the petitioner that he never had been contacted by the petitioner's criminal trial attorney, the petitioner grew concerned that he had not been "told the truth about what went on" in his criminal prosecution. Although he conceded that he previously lacked an adequate ground to file a petition for a writ of habeas corpus, the petitioner testified that he now believed that he had "grounds to file" such a petition in light of his son's representation that he had not been contacted by defense counsel. The petitioner further testified that he was not aware of any deadlines to file a habeas corpus action and stated that, had he been so aware, he "definitely would have" filed one.

After the petitioner concluded his testimony, the court heard argument from both parties. At that time, the petitioner's habeas counsel reiterated that it was the petitioner's "contact in late 2016" with his son that "really induced" him to file the habeas petition, stating that the "piece of information that he received [from his son] was very pivotal in his mind ...." The respondent's counsel argued: "The petition was late. It was received by the court after the [statutory] deadline. [The petitioner] has not shown any newly discovered evidence.

He is presumed to know the law whether he was aware of the statutory deadline or not.... [The petitioner] has failed to rebut [the] presumption of delay. He has not shown good cause."

In its subsequent memorandum of decision, the court stated in relevant part: "The only issue disputed by the parties is whether the petitioner can establish good cause for not having filed his petition [in a timely manner].... The vague reasons provided by the petitioner—that his son was angry with him following his conviction, and that they did not have contact until 2016, and that he has since learned information from his son that he had not been interviewed by defense counsel and that counsel may otherwise not have told him the truth about what happened during his criminal case—are insufficient to establish good cause for his having failed to file a habeas petition prior to the October 1, 2017 deadline. Also, the petitioner admitted during his testimony that he had considered filing a habeas [petition] previously, but [he] did not do so. This establishes that he was aware that a petition could have been filed in the eight years subsequent to his conviction, but did not do so." (Footnote omitted; internal quotation marks omitted.) The court thus concluded that the petitioner had failed to rebut the presumption of delay codified in § 52-470 (c) and dismissed the petition for a writ of habeas corpus. The petitioner then filed a petition for certification to appeal, which the court denied, and this appeal followed.

On appeal, the petitioner claims that the court improperly denied his petition for certification to appeal because he had established good cause for the untimely filing of his petition for a writ of habeas corpus. We disagree.

The standard of review that governs such claims is well established. "Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion.... 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.... The required determination may be made on the basis of the record before the habeas court and applicable legal principles.... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Crespo v. Commissioner of Correction , 292 Conn. 804, 811, 975 A.2d 42 (2009).

Convicted criminals in this state are not afforded unlimited opportunity to challenge the propriety of their convictions or confinement. Our General Assembly enacted § 52-470 for the purpose of "ensuring expedient resolution of habeas cases." Kelsey v. Commissioner of Correction , 329 Conn. 711, 717, 189 A.3d 578 (2018) ; cf. Kaddah v. Commissioner of Correction , 324 Conn. 548, 566–67, 153 A.3d 1233 (2017) (noting that 2012 amendments to § 52-470 were "intended to supplement that statute's efficacy in averting frivolous habeas petitions and appeals"). Subsections (c), (d) and (e) of that statute "provide mechanisms for dismissing untimely petitions." Kelsey v. Commissioner of Correction , supra, at 717, 189 A.3d 578. Relevant to this appeal is § 52-470 (c), which provides in relevant part: "[T]here shall be a rebuttable presumption that the filing of a petition challenging a judgment of conviction has been delayed without good cause if such petition is filed after the later of the following: (1) Five years after the date on which the judgment of conviction 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, 2017 ...." It is undisputed that the petitioner's judgment of conviction was rendered on December 11, 2009, that he did not seek appellate review, and that he did not file his petition for a writ of habeas corpus until after October 1, 2017. That petition therefore was untimely, implicating the rebuttable presumption of delay mandated by § 52-470 (c).

Section § 52-470 (e) provides in relevant part: "In a case in which the rebuttable presumption of delay under subsection (c) ... 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 counsel, 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 subsection (c) ... of this section." As this court has observed, "good cause has been defined as a substantial reason amounting in law to a legal excuse for failing to perform an act required by law ...." (Internal quotation marks omitted.) 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).

At the March 15, 2019 show cause hearing, the petitioner bore the burden of demonstrating good cause...