Kelsey v. Commissioner of Correction

• Decision Date: 20 March 2019
• Docket Number: CV174008700
• Court: Connecticut Superior Court
• Parties: Eric KELSEY #227462 v. COMMISSIONER OF CORRECTION

Eric KELSEY #227462 v. COMMISSIONER OF CORRECTION

No. CV174008700

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

March 20, 2019

UNPUBLISHED OPINION

Hon John M. Newson, Judge

Procedural History

According to the allegations, the petitioner was the defendant in a matter in New Britain where he was convicted of Felony Murder and Conspiracy to Commit Robbery and sentenced to forty years incarceration on March 3, 2001. After failing to succeed in his direct appeal, the petitioner filed a previous petition for habeas corpus that was denied after trial on the merits; Kelsey v. Commissioner, Superior Court judicial district of Tolland, Docket No CV17-4001984 (Schuman, J., Nov. 10, 2010), and that denial was upheld on appeal. Kelsey v. Commissioner, 136 Conn.App. 904, cert. denied, 305 Conn. 923 (2012). The decision of the Supreme Court denying certification was issued on July 12, 2012. The current petition was filed on March 22, 2017.

The respondent has filed this Request for Order to Show Cause asserting that this petition was filed beyond the two years provided for in General Statutes § 52-470(d)(1). An evidentiary hearing was held on the matter on December 21, 2018.

Law and Discussion

General Statutes § 52-470(d)(1) and (e) apply to the present claims which provide, in pertinent part:

(d) In the case of a petition filed subsequent to a judgment on a prior petition challenging the same conviction, there shall be a rebuttable presumption that the filing of the subsequent petition has been delayed without good cause if such petition is filed after the later of the following: (1) Two years after the date on which the judgment in the prior petition is deemed to be a final judgment due to the conclusion of appellate review or the expiration of the time for seeking such review ...

(e) In a case in which the rebuttable presumption of delay under subsection (c) or (d) 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 subse

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