Kelsey v. Commissioner of Correction, 122220 CTCA, AC 42932

Docket Nº:AC 42932
Opinion Judge:PRESCOTT, J.
Party Name:ERIC T. KELSEY v. COMMISSIONER OF CORRECTION
Attorney:Naomi T. Fetterman, for the appellant (petitioner). Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Brian W. Pre-leski, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).
Judge Panel:Prescott, Suarez and DiPentima, Js.
Case Date:December 22, 2020
Court:Appellate Court of Connecticut

ERIC T. KELSEY

v.

COMMISSIONER OF CORRECTION

No. AC 42932

Court of Appeals of Connecticut

December 22, 2020

Argued September 22, 2020

Procedural History

Petition 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 granted the petition for certification to appeal, and the petitioner appealed to this court. Affirmed.

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

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Brian W. Pre-leski, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

Prescott, Suarez and DiPentima, Js.

OPINION

PRESCOTT, J.

The present appeal provides us with an opportunity to delineate the ‘‘good cause'' standard that a petitioner must satisfy to overcome the rebuttable presumption that a successive petition for a writ of habeas corpus filed outside of statutorily prescribed time limits is the result of unreasonable delay that warrants dismissal of the petition; see General Statutes § 52-470;1 and to clarify the appellate standard of review applicable to a habeas court's determination of whether a petitioner has satisfied the good cause standard.

The petitioner, Eric T. Kelsey, appeals from the judgment of the habeas court dismissing his successive petition for a writ of habeas corpus pursuant to § 52-470 (d) and (e). The petitioner claims on appeal that the habeas court improperly determined that his purported ignorance of the filing deadline set forth in § 52-470 (d) (1) and his lack of meaningful access to a law library during some portions of his term of incarceration were insufficient to demonstrate good cause to overcome the statutory presumption of unreasonable delay. We disagree and, accordingly, affirm the judgment of the habeas court.

The procedural background underlying this appeal is as follows. In December, 2003, a jury convicted the petitioner of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (3) and felony murder in violation of General Statutes § 53a-53c.2 See State v. Kelsey, 93 Conn.App. 408, 889 A.2d 855, cert. denied, 277 Conn. 928, 895 A.2d 800 (2006). The court sentenced the petitioner to a total effective term of forty years of incarceration. This court affirmed the judgment of conviction on direct appeal, rejecting the petitioner's claims that the trial court improperly had admitted into evidence certain out-of-court statements and had denied his motion for a mistrial based on the state's failure to preserve and produce exculpatory evidence. Id., 410, 416. The Supreme Court denied certification to appeal this court's decision.

After exhausting his direct appeal, in August, 2007, the petitioner filed his first petition for a writ of habeas corpus challenging his conviction.3 Following a trial on the merits, the habeas court denied the petition. This court dismissed the petitioner's appeal from the judgment of the habeas court by memorandum decision; Kelsey v.

Commissioner of Correction, 136 Conn.App. 904, 44 A.3d 224 (2012); and our Supreme Court thereafter denied him certification to appeal from the judgment of this court. Kelsey v. Commissioner of Correction, 305 Conn. 923, 47 A.3d 883 (2012).

Nearly five years later, on March 22, 2017, the petitioner filed the underlying second petition for a writ of habeas corpus that is the subject of the present appeal. The petitioner raised seven claims not raised in his earlier petition.4 On May 9, 2017, the respondent, the Commissioner of Correction, filed a request with the habeas court pursuant to § 52-470 (e) for an order directing the petitioner to appear and show cause why his second petition should be permitted to proceed in light of the fact that the petitioner had filed it well outside the two year time limit for successive petitions set forth in § 52-470 (d) (1). See footnote 1 of this opinion. The habeas court, Oliver, J., initially declined to rule on the respondent's request for an order to show cause, concluding that the request was premature and that the court lacked discretion to act on the respondent's request because the pleadings in the case were not yet closed.5 See Kelsey v. Commissioner of Correction, 329 Conn. 711, 714, 189 A.3d 578 (2018).

After the habeas court denied the respondent's motion for reconsideration, the Chief Justice granted the respondent's request to file an interlocutory appeal from the order of the habeas court pursuant to General Statutes § 52-265a. The Supreme Court rejected the habeas court's reliance on § 52-470 (b) (1)[6] as its basis for not acting on the respondent's request for an order to show cause and concluded that ‘‘the habeas court's decision to take no action on the respondent's motion was predicated on its mistaken belief that it lacked discretion to act'' and that ‘‘[i]t is well established that when a court has discretion, it is improper for the court to fail to exercise it.''7 Id., 726. The Supreme Court reversed the habeas court's decision and remanded the case to the habeas court for further proceedings consistent with its opinion. Id.

In accordance with the Supreme Court's remand order, the habeas court, Newson, J., issued an order to show cause and conducted an evidentiary hearing. The only evidence presented at the hearing was the testimony of the petitioner. The respondent chose not to cross-examine the petitioner or to present any other evidence at the show cause hearing. The court also heard legal arguments from both sides.

Thereafter, on March 20, 2019, the habeas court issued a decision dismissing the petitioner's second habeas petition. In its decision, the habeas court first set forth the relevant provisions of § 52-470 and quoted this court's statement in 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), that good cause is ‘‘defined as a substantial reason amounting in law to a legal excuse for failing to perform an act required by law.'' The habeas court determined that the petitioner's proffered excuse failed to establish good cause under the statute, stating: ‘‘[T]he petitioner had until July 12, 2014, to file his next habeas petition challenging this conviction, but he did not file it until nearly three years beyond that date. The petitioner's claim for delay was that he was sometimes in and out of prison and did not always have access to law books and the law libraries at times when he was held in higher security facilities. He also attempts to offer the excuse that he was not aware of § 52-470. Neither of these is sufficient ‘good cause' to excuse the petitioner's delay of nearly three years beyond the appropriate filing deadline for this matter.'' In support of its analysis, the habeas court, citing State v. Surette, 90 Conn.App. 177, 182, 876 A.2d 582 (2005), noted parenthetically that ‘‘ignorance of the law excuses no one.'' On the basis of its determination that the petitioner lacked good cause for the delay in filing the successive petition, the court dismissed the petition. The court subsequently granted certification to appeal, and this appeal followed.

The petitioner claims on appeal that the habeas court improperly determined that he failed to establish good cause for the delayed filing of his second petition for a writ of habeas corpus. For the reasons that follow, we disagree.

I

A brief discussion of the governing statute, § 52-470, will aid in our discussion of the petitioner's claim. In Kaddah v. Commissioner of Correction, 324 Conn. 548, 153 A.3d 1233 (2017), our Supreme Court had its first opportunity to note the 2012 legislative amendments to § 52-470 that were made as part of ‘‘comprehensive habeas reform'' and included, inter alia, the addition of subsections (d) and (e) that are at issue in the present appeal. Id., 566. Although the court did not discuss the specific subject of untimely petitions, the court recognized that the 2012 reforms to § 52-470 were ‘‘the product of collaboration and compromise by representatives from the various stakeholders in the habeas process'' and were ‘‘intended to supplement that statute's efficacy inaverting frivolous habeas petitions and appeals.'' Id., 567; see Public Acts 2012, No. 12-115, § 1.

Later, in Kelsey v. Commissioner of Correction, supra, 329 Conn. 715-24, our Supreme Court engaged in a more extensive discussion of § 52-470. The court first noted that subsection (a) was not altered substantively by the 2012 amendments and that ‘‘the legislature retained language that makes clear that the expeditious resolution of habeas petitions must be accomplished in a manner that does not curtail a petitioner's right to due process. In other words, the two principles of expediency and due process must be balanced in effectuating the legislative intent of the 2012 habeas reform.'' Id., 716-17. The court explained: ‘‘The 2012 amendments are significant . . . because they provide tools to effectuate the original purpose [of § 52-470] of ensuring expedient resolutionof habeas cases. The 2012 habeas reform added two procedural mechanisms to assist the habeas court in resolving the case in a summary way . . . . The amendments to § 52-470 set forth procedures by which the habeas court may dismiss meritless petitions and untimely ones. Specifically, § 52-470 (b) addresses the dismissal of meritless petitions, whereas § 52-470 (c), (d) and (e) provide mechanisms for dismissing untimely petitions.'' (Citations omitted; internal quotation marks omitted.) Id., 717. ‘‘[Section] 52-470...

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