Stenner v. Comm'r of Corr.

• Decision Date: 22 November 2022
• Docket Number: AC 42852, (AC 43779)
• Citation: 216 Conn.App. 596,285 A.3d 811
• Parties: Jeffrey STENNER v. COMMISSIONER OF CORRECTION Rofio Greenfield v. Commissioner of Correction
• Court: Connecticut Court of Appeals

216 Conn.App. 596

285 A.3d 811

Jeffrey STENNER

v.COMMISSIONER OF CORRECTION

Rofio Greenfield

v.Commissioner of Correction

AC 42852, (AC 43779)

Appellate Court of Connecticut.

Argued September 8, 2022

Officially Released November 22, 2022

Vishal K. Garg, assigned counsel, for the appellant in Docket No. AC 42852 (petitioner).

Robert O'Brien, assigned counsel, with whom, on the brief, were Owen Firestone and Christopher Y. Duby, assigned counsel, for the appellant in Docket No. AC 43779 (petitioner).

Sarah Hanna, senior assistant state's attorney, with whom, on the brief, were Brian W. Preleski, former state's attorney, Leah Hawley, former senior assistant state's attorney, and Tamara A. Grosso, former assistant state's attorney, for the appellee in Docket No. AC 42852 (respondent).

Sarah Hanna, senior assistant state's attorney, with whom, on the brief, were Patrick Griffin, chief state's attorney, and Adrienne Russo, assistant state's attorney, for the appellee in Docket No. AC 43779 (respondent).

Prescott, Cradle and Clark, Js.

CLARK, J.

The petitioners, Jeffrey Stenner and Rofio Greenfield, appeal following the granting of their petitions for certification to appeal from the habeas courts’ dismissals of their respective petitions for a writ of habeas corpus.¹ On appeal, the petitioners claim that the habeas courts erred in concluding that the petitioners failed to establish "good cause" pursuant to General Statutes § 52-470 (d) and (e) to overcome the rebuttable presumption of unreasonable delay stemming from the untimely filing of their respective habeas petitions. We disagree and, accordingly, affirm the judgments of the habeas courts.²

We begin our discussion by setting forth the applicable standard of review and legal principles that govern these appeals. "[A] habeas court's determination of whether a petitioner has satisfied the good cause standard under § 52-470 (d) and (e) is reviewed on appeal for abuse of discretion." Kelsey v. Commissioner of Correction , 343 Conn. 424, 432, 274 A.3d 85 (2022).³ "Thus, [w]e will make every reasonable presumption in favor of upholding the trial court's ruling[s] .... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court ... reasonably [could have] conclude[d] as it did." (Internal quotation marks omitted.) Id., at 440, 274 A.3d 85.

Section 52-470 (d) provides in relevant part: "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; (2) October 1, 2014; or (3) two years after the date on which the constitutional or statutory right asserted in the petition was initially recognized and made retroactive pursuant to a decision of the Supreme Court or Appellate Court of this state or the Supreme Court of the United States or by the enactment of any public or special act. ..." Section 52-470 (e) provides in relevant part that, "[i]f ... the court finds that the petitioner has not demonstrated good cause for the delay, the court shall dismiss the petition. ..."

In order for a petitioner to establish "good cause" sufficient to rebut the presumption of unreasonable delay under § 52-470 (d), "a petitioner generally will be required to demonstrate that something outside of the control of the petitioner or habeas counsel caused or contributed to the delay." (Internal quotation marks omitted.) Kelsey v. Commissioner of Correction , supra, 343 Conn. at 442, 274 A.3d 85. In determining whether a petitioner has satisfied the "good cause" requirement, our courts may look to several nonexhaustive factors. They include "(1) whether external forces outside the control of the petitioner had any bearing on the delay; (2) whether and to what extent the petitioner or his counsel bears any personal responsibility for any excuse proffered for the untimely filing; (3) whether the reasons proffered by the petitioner in support of a finding of good cause are credible and are supported by evidence in the record; and (4) how long after the expiration of the filing deadline did the petitioner file the petition." (Internal quotation marks omitted.) Coney v. Commissioner of Correction , 215 Conn. App. 99, 108, 281 A.3d 461 (2022), quoting Kelsey v. Commissioner of Correction , supra, at 442, 274 A.3d 85. A habeas court "may also include in its good cause analysis whether a petition is wholly frivolous on its face," as "[i]t is consistent with the legislative intent of § 52-470 that the good cause determination can be, in part, guided by the merits of the petition." Kelsey v. Commissioner of Correction , supra, at 444 n.9, 274 A.3d 85. "No single factor necessarily will be dispositive, and the court should evaluate all relevant factors in light of the totality of the facts and circumstances presented." (Internal quotation marks omitted.) Id., at 438, 274 A.3d 85. With these legal principles in mind, we turn to our application of them to the facts of the petitioners’ individual appeals.

IJEFFREY STENNER

In 2003, Jeffrey Stenner was convicted of murder and later sentenced to sixty years of incarceration. See State v. Stenner , 281 Conn. 742, 745 and n.4, 917 A.2d 28, cert. denied, 552 U.S. 883, 128 S. Ct. 290, 169 L. Ed. 2d 139 (2007). He appealed to our Supreme Court, which affirmed his conviction. Id., at 767, 917 A.2d 28.

On July 27, 2006, Stenner filed his first petition for a writ of habeas corpus, which was denied by the habeas court following a trial. Stenner v. Warden , Docket No. CV-06-4001209, 2011 WL 6270076, *8 (Conn. Super. November 22, 2011). Stenner appealed to this court, which dismissed the appeal. Stenner v. Commissioner of Correction , 144 Conn. App. 371, 372–73, 71 A.3d 693, cert. denied, 310 Conn. 918, 76 A.3d 633 (2013). Stenner then filed a petition for certification for appeal with our Supreme Court, which was denied on October 2, 2013. Stenner v. Commissioner of Correction , 310 Conn. 918, 76 A.3d 633 (2013).

On March 16, 2017, approximately three and one-half years after the conclusion of appellate review of his prior habeas action, Stenner filed the instant petition for a writ of habeas corpus, which asserted six claims. On March 22, 2017, the respondent, the Commissioner of Correction, filed a request for an order to show cause, arguing that Stenner's petition should be dismissed pursuant to § 52-470 (d) because it was not filed within two years of our Supreme Court's decision denying certification for review of the denial of his first habeas petition. Stenner filed an objection to that request. On June 1, 2017, the habeas court denied the respondent's request for an order to show cause, concluding that it was premature because the pleadings had yet to close.⁴

On July 11, 2018, Stenner filed an amended petition, which added a constitutional confrontation claim and removed the actual innocence claim that he initially brought. On November 6, 2018, the respondent reclaimed his original motion for an order to show cause, and a hearing was held on December 10, 2018.

By memorandum of decision dated January 29, 2019, the habeas court dismissed Stenner's petition, concluding that, pursuant to § 52-470, Stenner's filing delay "was without good cause." In reaching that conclusion, the habeas court explained that "the final judgment on [Stenner's] case would have been when his petition for certification to [our] Supreme Court was denied on October 2, 2013." Therefore, in accordance with § 52-470 (d) (1), "any subsequent petition should have ... been filed [no] later than October 2, 2015." In determining whether good cause existed, the habeas court found that, "[o]n approximately October 2, 2015, the Division of Public Defender Services Post Conviction Unit/Innocence Project (hereinafter, ‘Innocence Project’) received a standard inquiry from [Stenner] by way of a form they maintain on their website.⁵ Upon reviewing the information submitted by [Stenner], Ian Dodds, Innocence Project case analyst, sent [Stenner] back a more detailed questionnaire asking for additional information, which he testified was returned in a timely manner, although no date was given. Immediately upon reviewing the information returned by [Stenner] ... Dodds indicated it was apparent that the Innocence Project had a conflict of interest, because an attorney who formerly represented one of [Stenner's] codefendants was now employed as an Innocence Project staff attorney. On January 8, 2016, he elevated the case to Attorney Darcy McGraw, Director of the Innocence Project, notifying her of the conflict of interest. ... McGraw testified that she sought approval from the Office of the Chief Public Defender for permission to assign the file to outside counsel for investigation. While no testimony was provided as to what occurred in the interim ... McGraw received approval to assign the matter to outside counsel on May 19, 2016, at which time notification of assignment was forwarded to the Kirschbaum Law Firm. Following an investigation of the facts and circumstances of [Stenner's] case, the Kirschbaum Law Firm filed the petition commencing the present [case]." (Footnote in original.)

In addressing whether there was good cause for Stenner's untimely filing, the habeas court observed that Stenner "argues generally that the fact that he sought review of his matter by filing an inquiry with the Innocence Project should constitute ‘good cause’ for the delay in filing. [Stenner] claims that the assistance of counsel was necessary to uncover new evidence that could not have otherwise been discovered by [him] in the exercise of due diligence when he was...