Finney v. Commissioner of Correction

• Decision Date: 31 August 2021
• Docket Number: AC 43105
• Citation: 207 Conn.App. 133,261 A.3d 778
• Parties: Kimberly N. FINNEY v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

207 Conn.App. 133

261 A.3d 778

Kimberly N. FINNEY

v.COMMISSIONER OF CORRECTION

AC 43105

Appellate Court of Connecticut.

Argued January 14, 2021

Officially released August 31, 2021

Naomi T. Fetterman, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and Emily Trudeau, assistant state's attorney, for the appellee (respondent).

Bright, C.J., and Prescott and Alexander, Js.

PRESCOTT, J.

The petitioner, Kimberly N. Finney, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner claims that the court improperly dismissed his habeas petition pursuant to Practice Book § 23-29 (2) on the ground that the petition failed to state a claim on which habeas relief could be granted.¹ The respondent, the Commissioner of Correction, both refutes the petitioner's claim and raises as an alternative ground for affirmance that, even if the petition raises a cognizable claim for habeas relief, the court should have dismissed the petition as untimely filed in accordance with General Statutes § 52-470.² We agree with the petitioner that the habeas court improperly dismissed the petition pursuant to Practice Book § 23-29 (2). We also agree that, in resolving the court's order to show cause why the petition should be permitted to proceed in accordance with § 52-470, the habeas court improperly determined that the petition was filed within the prescribed statutory time limit. Accordingly, we reverse the judgment of the habeas court and remand the case with direction (1) to deny the court's own motion to dismiss and (2) to conduct a new hearing to determine, in accordance with § 52-470 (e), whether the petitioner can demonstrate good cause for the delay in filing the petition and, if not, to dismiss the petition on that basis.³

The record reveals the following undisputed facts and procedural history. The petitioner pleaded guilty on May 21, 2008, to one count of kidnapping in the second degree in violation of General Statutes § 53a-94. He was sentenced on September 5, 2008, to a term of twenty years of incarceration, execution suspended after five years, followed by five years of probation. The petitioner violated the terms of his probation on at least two occasions. On December 22, 2016, following the petitioner's admission to a third violation of probation, the petitioner was sentenced to a term of twelve years of incarceration, execution suspended after six years, followed by two years of probation.

On April 2, 2018, the petitioner, acting as a self-represented party, filed a petition for a writ of habeas corpus directed at his 2008 conviction.⁴ In the petition, he alleged that he improperly was convicted in 2008 because his trial counsel had provided him with constitutionally ineffective assistance. The petitioner attached to the petition form a single page that contained more detailed allegations in support of his ineffective assistance of counsel claim.⁵ By way of relief, the petitioner sought to have the court allow him to withdraw his guilty plea. Accompanying the petition was a request for the appointment of counsel and an application for a waiver of fees.⁶

On August 9, 2018, the respondent filed a motion for an order to show cause why the petition should be permitted to proceed because it was filed outside of the applicable five year limitation period set forth in § 52-470 (c). On September 4, 2018, the habeas court ordered that the motion "be set down for a hearing," which was subsequently scheduled for October 26, 2018.⁷

On September 20, 2018, the petitioner filed a notice of intent to file an amended habeas petition. The petitioner's counsel indicated to the court that transcripts of prior proceedings, including "the underlying plea transcripts," were necessary to the drafting of an amended petition but had not yet been received. On October 25, 2018, the petitioner sought the court's permission to file a "delayed" response to the respondent's motion for order to show cause. The court granted permission and accepted the response as submitted. In that response, the petitioner argued that the petition was timely filed under § 52-470 (c) because the operative date for calculating the filing deadline was not the date his original judgment of conviction became final. Rather, he argued, "due to the fact that his sentence was reopened and modified in his violation of probation proceeding, which was decided on December 22, 2016, the date of that ruling serves as the time at which his conviction became final." In the alternative, he argued that, even if his petition was untimely, he had "substantial" good cause for any delay.⁸

At the October 26, 2018 hearing, the habeas court, Newson , J. , informed the parties that it intended "to raise a couple of issues" pursuant to its authority under Practice Book § 23-29. After hearing some initial arguments by counsel, the court indicated that it intended to issue a written order requesting additional briefing on several of the issues raised at the hearing. The court subsequently issued its written order giving the parties until January 4, 2019, to file briefs addressing several issues, of which the following are relevant to the present appeal: (1) "Whether the petition should be dismissed for failing to state a claim upon which habeas relief can be granted because the petitioner's guilty plea waived collateral attacks on his conviction that do not go to the voluntary, knowing and intelligent nature of the plea, and this petition fails to make such a claim and/or alternatively asserts claims that are considered to have been waived as a result of his guilty plea?" And (2) "Where a sentence imposed on a petitioner includes a period of probation and the petitioner has subsequently been found in violation of that probation: (a) Must a petition for a writ of habeas corpus attack the proceedings and representation relating to the most recent violation of probation disposition OR those related to the original sentencing OR can the petitioner choose to attack any of the proceedings from the original conviction to the most recent violation of probation disposition? (b) For purposes of calculating the time period(s) under ... § 52-470 (c), does the date of the original sentencing OR the date of the most recent violation of probation sentencing control?"

Each party filed a timely, responsive brief. The respondent took the position that none of the allegations in the petition expressly was directed to the voluntariness of the petitioner's 2008 plea, and, therefore, the petition should be dismissed for failure to state a claim on which relief could be granted. The respondent conceded that a petitioner who is reincarcerated following a violation of probation properly may attack his initial conviction and/or the violation of probation. According to the respondent, however, if a petitioner chooses to attack only the initial conviction, the calculation of the limitation period set forth in § 52-470 (c) begins from the date that the initial conviction is deemed final.

The petitioner argued in his brief, inter alia, that his petition, if properly construed, stated a claim for habeas relief because it challenged the validity of his guilty plea. The petitioner clarified that his petition challenged the underlying 2008 criminal conviction rather than the most recent violation of probation proceedings but, nevertheless, argued that a determination of the date on which that underlying conviction became final for purposes of § 52-470 (c) "must be made based on the date by which the sentence was reopened and imposed last." In other words, the petitioner claimed that his habeas petition was not "delayed" within the meaning of § 52-470 (c), if measured from the disposition date for his latest violation of probation.

On April 15, 2019, the habeas court issued a memorandum of decision resolving both the order to show cause issued pursuant to § 52-470 and the court's own motion to dismiss raised pursuant to Practice Book § 23-29. The court first analyzed whether it was legally required to give the petitioner's appointed habeas counsel time to review and revise the petition before addressing its legal sufficiency. The court determined that it was not and turned next to the issue of when the judgment of conviction is deemed to be final for purposes of § 52-470 (c). The court determined that, although the original sentence was imposed in 2008, the change in disposition following the revocation of probation meant that the petition was timely for purposes of § 52-470 (c) because "it was filed within five years of the most recent violation of probation disposition."⁹ Finally, turning to its own motion to dismiss the petition pursuant to Practice Book § 23-29 (2), the court concluded that the petitioner had waived all of the specific allegations of ineffective assistance of counsel set forth in the petition by virtue of his decision to enter a guilty plea and that none of those allegations "could be said to reasonably allege that counsel provided ineffective assistance with respect to the entry of the plea, or which attacks the voluntary, intelligent and knowing character of the plea." Because the petition also failed to raise any challenge to counsel's performance with respect to the most recent violation of probation disposition, the court concluded that "the petition fails to state a claim upon which relief can be granted." Accordingly, the court dismissed the petition. Following the court's subsequent granting of certification to appeal, this appeal followed.

I

We begin with the petitioner's claim that the habeas court improperly dismissed his habeas petition pursuant to Practice Book § 23-29 (2), because, if properly construed in the light most favorable to him, the allegations in the petition...