ANTONIO A. v. COMMISSIONER OF CORRECTION*
AC 42466
AC 42618
Moll, Suarez and DiPentima, Js.
Argued November 12, 2020—officially released June 1, 2021
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The petitioner, who previously had been convicted of the crimes of sexual assault in the first degree and risk of injury to a child and was found to be in violation of his probation, sought, as a self-represented party, a second writ of habeas corpus using a state supplied form. Thereafter, the habeas court granted the petitioner‘s request the appointment of counsel, and counsel entered an appearance on the petitioner‘s behalf. The respondent Commissioner of Correction, pursuant to statute (
With respect to the petitioner‘s appeal in Docket No. AC 42466, held:
- The petitioner could not prevail on his claim that the habeas court erred in failing to afford his counsel a reasonable opportunity to investigate the cause of the delay in filing the second habeas petition: there was no authority to support the petitioner‘s argument that the court was obligated to delay its consideration of the respondent‘s request for an order to show cause because the petitioner‘s counsel represented to the court that it was possible that, in the future, the petitioner could pursue an actual innocence claim in an amended petition, as the proper inquiry into the issue of good cause focuses only on the claims in the operative petition; moreover, the court did not abuse its discretion in
refusing to afford the petitioner any additional time prior to acting on the respondent‘s request, as the petitioner failed to demonstrate that his counsel lacked sufficient time in which to ascertain, investigate and present to the court a reason for the delay, and this court was not persuaded that the petitioner‘s counsel was not on notice of the purpose of the hearing on the respondent‘s request. - The habeas court did not abuse its discretion in treating the petitioner‘s motion for reconsideration as a motion to open or in denying that motion: a review of the motion revealed that it was an attempt by the petitioner to establish good cause for the delay in filing his second petition by means of facts related to his alleged medical condition that were not presented at the hearing on the respondent‘s request for an order to show cause, and the petitioner did not attempt to demonstrate that those facts were newly discovered or that, in the exercise of due diligence, they could not have been submitted at the hearing; moreover, the petitioner‘s contention that the habeas court was statutorily compelled by
§ 52-470 (e) to consider any information presented to it establishing good cause in ruling on an order to show cause was without merit, as the court afforded the petitioner an opportunity to present evidence of good cause at the hearing and thereafter properly applied the rules of practice to prevent him from waiting until after a judgment was rendered to establish good cause for the delay in filing the petition.
With respect to the petitioner‘s appeal in Docket No. AC 42618, held:
- The habeas court abused its discretion in denying the petition for certification to appeal; the petitioner demonstrated that his claim of error relating to that court‘s dismissal of his third habeas petition pursuant to Practice Book
§ 23-29 on the ground that it failed to state a claim on which relief could be granted was debatable among jurists of reason and that the question raised was adequate to deserve encouragement to proceed further. - The appeal as to the petitioner‘s claim that the habeas court erred in denying his motion for permission to file a late amended petition for certification to appeal and for reconsideration of the denial of the petition for certification to appeal was dismissed; the petitioner failed to appeal from that court‘s ruling in accordance with
§ 52-470 (g) and our rules of practice by seeking certification to appeal from that ruling and then filing an appeal or amending his existing appeal, which deficiency was substantive in nature warranting dismissal of that portion of the appeal. - The habeas court‘s dismissal of the third habeas petition under Practice Book
§ 23-29 during its preliminary consideration of the petition and prior to issuing the writ of habeas corpus was procedurally improper: once that court concluded that any of the reasons set forth in the applicable rule of practice (§ 23-24 ) applied, it should have declined to issue the writ rather than dismissing the petition; moreover, this court was not persuaded that the proper remedy was to remand the case to the habeas court with direction to render judgment declining to issue the writ, as the habeas court‘s grounds for dismissing the third petition were based on its erroneous determination that the third petition was an exact copy of the second petition, and, because the allegations of innocence by the self-represented petitioner in the third petition were ambiguous and may constitute his attempt to set forth a claim of actual innocence, this court concluded, in accordance with Gilchrist v. Commissioner of Correction, 334 Conn. 548, that the proper remedy was for the habeas court to issue the writ and, following the appointment of counsel, the petitioner be given the opportunity to rectify any pleading deficiencies.
Procedural History
Petition, in the first case, 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 denied the petitioner‘s motion for reconsideration, and the petitioner, on the granting of certification, appealed to this court; and petition, in the second case, for a writ of habeas corpus brought to the Superior Court in the
Michael W. Brown, for the appellant in both cases (petitioner).
Rocco A. Chiarenza, assistant state‘s attorney, with whom, on the brief, were Gail P. Hardy, former state‘s attorney, and Jo Anne Sulik, supervisory assistant state‘s attorney, for the appellee in Docket No. AC 42466 (respondent).
Rocco A. Chiarenza, assistant state‘s attorney, with whom, on the brief, was Gail P. Hardy, former state‘s attorney, for the appellee in Docket No. AC 42618 (respondent).
SUAREZ, J. In the present appeals, the petitioner, Antonio A., challenges the judgments rendered by the habeas court dismissing his second and third petitions for a writ of habeas corpus. In the judgment under review in Docket No. AC 42466, the habeas court dismissed the petitioner‘s second petition for a writ of habeas corpus pursuant to
The following facts and procedural history are relevant to the present appeals. In 2003, following a jury trial, the petitioner was convicted of two counts of risk of injury to a child in violation of
On October 6, 2017, the petitioner, in a self-represented capacity, filed a second petition for a writ of habeas corpus (second petition). The petitioner utilized a state supplied form. In responding to question five on the form, in which the petitioner was invited to specify why his “conviction is illegal,” the petitioner wrote that his sentencing was illegal because the “court found [him] guilty on falsified information and improper/fictitious evidence” and that his criminal trial counsel did not render proper representation in that “prior counsel ignored mitigating evidence, did not investigate the state‘s case, did not protect [the petitioner] from the prejudice, malicious, intentional conduct.” As additional grounds for challenging the conviction, the petitioner alleged: “[W]as not given appropriate interpreter (Spanish); jury was forced to find me guilty; there is no physical evidence supporting unstable statements; contradictory statements.”
In response to question six on the form, in which the petitioner was permitted to specify why his “incarceration/sentence is illegal,” the petitioner wrote: “Because of misconduct of all counsel involved in my case: Intentional, malicious, prejudicial, discriminatory (but is not limited to).” In box seven on the form, the petitioner alleged that the claims raised in the second petition had not been previously raised at trial, in a direct appeal, or in a previous habeas petition. He explained: “New evidence: Prior counsel did not present everything he was shown and or told or support [the petitioner] when the judge himself forced the jury to get a conviction; ineffective assistance of defense counsel; conflict of interest across the board (state attorney, defense attorney, judicial authority).”
The habeas court granted the petitioner‘s request for the appointment of counsel. On December 21, 2017, the Law Office of Christopher Duby, LLC, entered an appearance on the petitioner‘s behalf.
On August 9, 2018, the respondent, the Commissioner of Correction, pursuant to
On August 13, 2018, the petitioner, through his counsel, filed an objection to the respondent‘s request. The petitioner acknowledged that he filed the second petition “more than three years after [the] prior petition became final” but argued that an order to show cause under
The respondent filed a reply in which he argued that, although
On the basis of the respondent‘s request and the petitioner‘s objection thereto, the court, Newson, J., scheduled an evidentiary hearing on the request for September 12, 2018. At the hearing, the petitioner‘s counsel altered the focus of the objection to the respondent‘s request. At that time, she did not attempt to demonstrate that good cause for the delay in filing the
At the hearing, the respondent disagreed that the request for an order to show cause should be denied because an amended petition had not yet been filed on the petitioner‘s behalf by his assigned counsel. The respondent‘s counsel, focusing on the fact that the petitioner‘s counsel had merely viewed a claim of actual innocence as a potential claim, argued: “If counsel is able to represent as an officer of the court that she has a good faith basis to pursue an actual innocence claim, the court may exercise its discretion and give her time to investigate that. But just to say, well, he said he‘s not guilty, and, therefore, [the court] can‘t dismiss [the petition under
In its memorandum of decision of November 7, 2018, the court rejected the petitioner‘s argument that the respondent‘s request was premature. The court relied on Kelsey v. Commissioner of Correction, 329 Conn. 711, 721, 189 A.3d 578 (2018), for the proposition that “a hearing under
The court also rejected the petitioner‘s argument that his counsel did not have a meaningful opportunity to respond to the respondent‘s request. The court, relying on relevant case law, stated that it had to “determine whether the petitioner has had an opportunity that would comport with due process to investigate whether there was a substantial reason for [the petitioner‘s] having failed to file this petition within two years from May 21, 2014.” The court carefully considered the length of time that the petitioner‘s counsel had been involved in the case. Particularly, the court observed that the petitioner‘s counsel had filed an appearance on December 21, 2017, nine months prior to the hearing on the respondent‘s request and that the court held a hearing on the respondent‘s request five weeks after it was filed. The court stated that, in light of the narrow issue to be addressed at the hearing, the petitioner‘s counsel “was unable to offer a single reason for the delay in filing the present habeas petition.” The court relied on the representations of the petitioner‘s counsel that she had received case files from only some of the petitioner‘s prior counsel. In particular, the court deemed it significant that, in February, 2018, the petitioner‘s counsel had received the case file related to the first petition. As the court stated, “[s]urely, having received cooperation from the lawyer who immediately preceded her in representing the petitioner some seven months prior to the request to show cause hearing provided [the] petitioner‘s counsel with a fair opportunity to complete, or at least an obvious location to start, an investigation into the reasons for the delay of more than two years in filing the present petition.”
The court concluded its analysis: “In summary, the court finds that the petitioner had a ‘meaningful opportunity’ to investigate whether any ‘good cause’ for filing the present petition more than two years after the judgment in his prior habeas case became final. . . . Despite that, the petitioner has offered no ‘good cause,’ no ‘substantial reason,’ in fact, no reason at all, for filing the present petition more than three years after the decision in his prior habeas [case] became final on May 21, 2014. . . . As such, the petitioner has failed to rebut the presumption that the delay of more than two years was without good cause.” (Citations omitted.) The court dismissed the second petition.
Thereafter, on December 4, 2018, the court granted the petitioner‘s petition for certification to appeal. See
Meanwhile, on December 18, 2018, the petitioner, in a self-represented capacity, filed a third petition for a writ of habeas corpus (third petition), the dismissal of which is the subject of AC 42618. With two exceptions, the third petition appears to be a photocopy of the second petition.4 In the space provided for question five on the state supplied form, in which the petitioner was invited to specify reasons why his “conviction is illegal,” the petitioner added “I am innocent” to the information previously set forth therein. In the space provided for question six on the form, in which the petitioner was asked to set forth reasons that his “incarceration/sentence is illegal,” the petitioner added “I am innocent” to the information previously set forth therein.
On December 24, 2018, the court, Newson, J., dismissed the third petition pursuant to Practice Book
On July 11, 2019, the petitioner, through counsel, filed a motion for permission to file a late amended petition for certification to appeal and for reconsideration of the denial of his petition for certification to appeal, in which he argued that the court should grant the amended petition in the interest of justice. The amended petition, which was attached to the motion, set forth five grounds.7 The motion also stated: “The claims that undersigned counsel has identified appear to be implicit in the petition for certification to appeal that was filed by the petitioner in his initial petition for certification to appeal, but the petitioner, acting as a [self-represented] litigant without the assistance of counsel, may have under articulated the nature of the claims to be raised on appeal.” On July 15, 2019, the court, Newson, J., denied the petitioner‘s motion. Thereafter, the petitioner did not attempt to appeal from the ruling. Additional facts will be set forth as necessary in the context of the claims raised on appeal.
I
AC 42466
A
The first claim raised by the petitioner in AC 42466 is that the court erred in failing to afford his counsel a reasonable opportunity to investigate the cause of the delay in filing the second petition.8 We disagree.
As we will explain in greater detail in this part of the opinion, the court‘s determination of when it should act on a request brought by the respondent for an order to show cause why an untimely petition should be permitted to proceed is reviewed under the abuse of discretion standard of review. See Kelsey v. Commissioner of Correction, supra, 329 Conn. 724. “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . The salient inquiry is whether the court could have reasonably concluded as it did. . . . It goes without saying that the term abuse of discretion does not imply
First, the petitioner argues that the court‘s ruling reflected an abuse of its discretion because the respondent, in his reply to the petitioner‘s objection to the request for an order to show cause, urged the court to “issue the order to show cause and grant the petitioner no more than three months to respond to that order.” As stated previously, the petitioner, in his objection to the respondent‘s request for an order to show cause, stated that he needed “additional time” to determine if he satisfied
Second, the petitioner argues that any potential claim of actual innocence “should have been sufficient to delay or overcome the good cause stage.” According to the petitioner, because of the representation of his counsel that it was possible that she would pursue an actual innocence claim in an amended petition in the future, the court was obligated to delay the timing of the hearing and to afford counsel “sufficient time to determine whether they have a good faith basis to present such a weapon to survive possible dismissal.”9
This argument presents an issue of statutory interpretation over which we exercise plenary review in accordance with the plain meaning rule codified in
As the emphasized language reflects, once the respondent relies on the rebuttable presumption in
Our Supreme Court‘s interpretation of the relevant statutory provisions provides additional guidance. In Kelsey v. Commissioner of Correction, supra, 329 Conn. 712, our Supreme Court considered whether “§ 52-470 divests the habeas court of discretion to determine when it should act on a motion by the respondent . . . for an order to show cause why an untimely petition should be permitted to proceed.” The court, rejecting the habeas court‘s determination that the statute deprived it of discretion to act on the respondent‘s motion until the close of all pleadings, explained: “In
“Notably, as compared to the procedures available under
“Nothing in subsection (e) expressly addresses whether the petitioner may present argument or evidence, or file exhibits, or whether and under what circumstances the court is required to hold a hearing, if the court should determine that doing so would assist it in making its determination. The only express procedural requirement is stated broadly. The court must provide the petitioner with a meaningful opportunity both to investigate the basis for the delay and to respond to the order to show cause.
“We envision that, in the majority of cases, the question of whether a petitioner has demonstrated good cause for delay will not require that the habeas court engage in an inquiry that is similar in scope to the one required for the screening of meritless petitions pursuant to
“In the absence of any language in [
“Our statutory construction is also consistent with the bedrock principle that [t]he trial court possesses inherent discretionary powers to control pleadings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial. . . . Finally, we observe that the rules of practice expressly recognize the habeas court‘s discretion over scheduling. . . .
“The habeas court‘s exercise of its discretion to manage the case remains the best tool to guarantee that the case is disposed of as law and justice require;
Thus, as we observed previously, in Kelsey, our Supreme Court concluded that the habeas court had discretion to determine when it should act on a request
Third, the petitioner argues that the court‘s determination, that his counsel had sufficient time in which to respond to the state‘s request, was flawed and that the court acted arbitrarily in denying his counsel‘s request for “a continuance” in this matter. The petitioner argues that it was overly simplistic for the court to suggest that counsel needed to determine only whether the second petition was untimely but that counsel also needed to determine whether there was good cause for the delay and whether “the petitioner was pursuing a claim that was exempt from the timeliness questions.” The petitioner also argues that the court failed to give proper weight to the fact that the files of previous counsel that had not yet been made available to the petitioner could have contained evidence to support a claim of actual innocence.
In the petitioner‘s objection to the respondent‘s request for an order to show cause, he primarily argued that the request was premature because the issue could not be resolved until an amended petition was filed. The petitioner thereby linked the inquiry into good cause for the delay with the filing of an amended petition. In addition, the petitioner‘s counsel argued that additional time was needed to investigate the issue of whether the petitioner, in bringing the second petition, had acted with good cause. Our careful review of the arguments advanced by the petitioner‘s counsel at the September 12, 2018 hearing reveals that counsel did not argue that a continuance was necessary to investigate whether good cause existed for the delay in bringing the second petition. Rather, counsel argued that additional time was needed in which to investigate whether a claim could be brought that fell outside of the two year time limit in
The operative second petition was untimely, and, therefore, the proper inquiry into the issue of good cause is based only on the reasons for the petitioner‘s delay in bringing the second petition. The court properly focused on the time that had passed between the time at which counsel was appointed to represent the petitioner and the hearing on the respondent‘s request. The court also focused on the time that had passed between the date the respondent had filed his request for an order to show cause and the date of the hearing on the request. At no time has the petitioner demonstrated that his counsel lacked sufficient time in which to ascertain, investigate, and present a reason for the delay to the court. Accordingly, we are not persuaded that the court abused its discretion in refusing to afford any additional time to the petitioner prior to acting on the respondent‘s request.
Fourth, the petitioner argues that the court erred by issuing a ruling on the substantive issue raised by the respondent, namely, whether good cause existed. The petitioner argues that his counsel objected to the timing of the hearing but that she did not present “a substantive response to the order to show cause before the habeas court issued its memorandum of decision because [his counsel] had not had a meaningful opportunity to complete [an] investigation into whether there was good cause for the petitioner‘s apparent delay in filing the [second] petition.” The petitioner argues that, at the hearing, the court did not indicate that it was affording the petitioner his “only opportunity to offer substantive evidence or information in support of an attempt to overcome the presumption of delay.”
This argument is belied by the notice of the hearing that was sent to the parties in response to the respondent‘s request for an order to show cause. In its order, the court stated that it was scheduling an “evidentiary hearing” on the respondent‘s request. Moreover, as we have stated previously, at the hearing, the petitioner‘s counsel did not argue that she needed additional time in which to investigate the reasons for the delay in bringing the second petition but argued that the court
B
Next, the petitioner claims that the court erred in denying his motion for reconsideration of its ruling. We disagree.
As we stated in our discussion of the procedural history, the court dismissed the second petition on November 7, 2018. On November 14, 2018, the petitioner, through counsel, filed a motion for reconsideration in which he stated that “[the] dismissal was in error, as the petitioner‘s counsel intended to, in the absence of the court‘s decision regarding the petitioner‘s objection to [the] respondent‘s motion for cause and request for additional time, present evidence of the petitioner‘s longtime medical condition as cause for his delayed petition.” The motion stated in relevant part that, “during the approximately three years between his prior habeas [action] and filing [the second] petition, [the] petitioner was focused solely on his survival. Once he became healthy enough to file his petition, he did so in October, 2017.” Attached as exhibits to the motion were a document titled “Petitioner‘s Offer of Proof”12 and a signed affidavit of the petitioner, submitted “as evidence that his delayed petition was as a result of his ongoing medical conditions and their related treatments.”
As we have explained, the court treated the motion for reconsideration as a motion to open brought under
The petitioner‘s claim rests on the legally unfounded assertion that, because he could have timely filed a motion for reconsideration at the time at which he filed the motion at issue and he titled the motion a “motion for reconsideration,” the court was obligated as a matter of law to treat the motion as a motion for reconsideration. Our decisional law provides that “[t]he nature of a motion, however, is not determined by its title alone. A court has broad discretion to treat a motion for clarification of a judgment or a motion to reargue a judgment as a motion to open and modify the judgment . . . .” (Internal quotation marks omitted.) Silver v. Silver, 200 Conn. App. 505, 520, 238 A.3d 823, cert. denied, 335 Conn. 973, 240 A.3d 1055 (2020); see also Drahan v. Board of Education, 42 Conn. App. 480, 489, 680 A.2d 316 (“[w]hen a case requires this court to determine the nature of a pleading filed by a party, we are not required to accept the label affixed to that pleading by the party“), cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996).
Motions for reargument and motions for reconsideration are nearly identical in purpose.15 “[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. . . . A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it. . . . While a modification hearing entails the presentation of evidence of a substantial change in circumstances, a reconsideration
In contrast, a motion to open affords a litigant a narrow window through which to present evidence that could not have been known and with reasonable diligence offered at the time of trial. Practice Book
We conclude that the court did not abuse its broad discretion in treating the petitioner‘s motion for reconsideration as a motion to open.16 A review of the motion
‘‘Habeas corpus is a civil proceeding. . . . The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment . . . is addressed to the [habeas] court’s discretion, and the action of the [habeas] court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.’’ (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 163 Conn. App. 556, 563, 134 A.3d 1253, cert. denied, 323 Conn. 909, 149 A.3d 980 (2016); see also Gillis v. Gillis, 214 Conn. 336, 340, 572 A.2d 323 (1990) (abuse of discretion standard of review applies to rulings on motions to open). For the reasons previously discussed, we readily conclude that the petitioner is unable to demonstrate that the court’s ruling on the motion to open reflects an abuse of discretion.
The petitioner argues that the court was ‘‘statutorily compelled’’ by
Accordingly, in AC 42466, we affirm the judgment of the court.
II
AC 42618
A
‘‘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); see also Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994) (adopting factors identified by United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as appropriate standard for determining whether habeas court abused its discretion in denying certification to appeal).
‘‘In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by [our Supreme Court] for determining the propriety of the habeas court’s denial of the petition for certification.’’ (Internal quotation marks omitted.) Villafane v. Commissioner of Correction, 190 Conn. App. 566, 573, 211 A.3d 72, cert. denied, 333 Conn. 902, 215 A.3d 160 (2019).
For the reasons set forth in part II C of this opinion, we conclude that the petitioner has demonstrated that the claim of error relating to the court’s dismissal of
B
We next address the petitioner’s claim that the court erred in denying his motion for permission to file a late amended petition for certification to appeal and for reconsideration of the court’s denial of his petition for certification to appeal. We dismiss this portion of the appeal.
As we stated in our discussion of the procedural history, six months after the court denied the petition for certification to appeal from the dismissal of the third petition, the petitioner filed a motion for permission to file a late amended petition for certification to appeal and for reconsideration of the denial of his petition for certification to appeal.17 Therein, he raised five grounds on which he sought to appeal. On July 15, 2019, the court denied the motion. The petitioner did not, however, file a petition for certification to appeal from the court’s July 15, 2019 denial of his motion or attempt to appeal from that ruling in accordance with
The petitioner set forth the present claim in the portion of his brief in which he analyzed the claim that we addressed in part II A of this opinion. As a preliminary matter, we observe that the petitioner has merely claimed error with respect to the court’s denial of his motion. He has analyzed the propriety of the court’s denial of his petition for certification to appeal but has not provided this court with a distinct analysis of the separate and distinct ruling at issue. Our Supreme Court repeatedly has stated that ‘‘[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [When] a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.’’ (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
More importantly, we recognize that the claim is not properly before this court as it is not part of the appeal taken from the denial of the petition for certification to appeal and the judgment dismissing the third petition. It is well settled that ‘‘an appeal following the denial of a petition for certification to appeal from the judgment denying a petition for a writ of habeas corpus is not the
Setting aside the issue of whether the habeas court had jurisdiction to grant the petitioner the relief that he sought in his motion in light of the fact that the present appeal was pending at the time that he filed the motion, we observe that the petitioner failed to appeal from the ruling at issue in accordance with
C
Finally, the petitioner claims that the court erred in dismissing his third petition. We agree.
As we stated previously in this opinion, the court dismissed the third petition on three grounds. The court stated: ‘‘The petition . . . is dismissed pursuant to
The petitioner argues that ‘‘[e]ach of the habeas court’s reasons for dismissing [his self-represented third] petition was in error. The habeas court erred by concluding [that] the [third] petition was identical to a prior [self-represented] petition, and the habeas court erred in concluding that the [self-represented third] petition failed to state a claim upon which relief could be granted. The habeas court wrongly concluded that the dismissal of the prior [self-represented] petition, and the pending appeal challenging that dismissal, barred the filing of a new, modified [self-represented third] petition . . . . The habeas court incorrectly applied the doctrine of res judicata to the new, materially different, [self-represented third] petition. Finally, the automatic stay provisions of
Most of the petitioner’s arguments rest on the proposition that, unlike the second petition, which had been dismissed and was the subject of a pending appeal, the third petition twice set forth a claim of actual innocence because the petitioner twice added the statement ‘‘I am innocent’’ to the allegations of the second petition. The petitioner states that the second and third petitions ‘‘are mostly the same, except that the [third] petition . . . includes two statements of innocence.’’ Although the petitioner acknowledges that this additional language in the third petition was ‘‘not a model of clarity,’’ he urges us to conclude that ‘‘it sufficiently states a claim of innocence.’’
The petitioner does not appear to claim that, in dismissing the third petition, the court erroneously dismissed the identical claims raised in the second petition. Indeed, the petitioner states that ‘‘[t]he main error that [he] complains of is that the habeas court sua sponte dismissed his newly raised claim of innocence.’’ We therefore must first resolve the issue of whether an actual innocence claim was raised in the third petition.
Basing his appellate arguments on the existence of a claim of actual innocence, the petitioner argues that the court erred in its determination that the third petition was identical to the second petition. The petitioner argues that the claim of actual innocence shielded the third petition from dismissal under
Moreover, arguing, in part, that the claim of actual innocence in the third petition distinguished it from the second petition, the petitioner argues that the court improperly relied on the doctrine of res judicata. Finally, the petitioner argues that, even if the third petition was identical to the second petition, the court erroneously relied on the appellate stay provision, codified in
‘‘Whether a habeas court properly dismissed a petition for a writ of habeas corpus presents a question of law over which our review is plenary.’’ Gilchrist v. Commissioner of Correction, 334 Conn. 548, 553, 223 A.3d 368 (2020). We will focus our analysis on the petitioner’s argument that the court’s dismissal of his third petition under
It is necessary to begin our analysis by focusing on the basis of the habeas court’s dismissal, which was the result of its interpretation of the third petition. The court stated that the second and third petitions were ‘‘identical’’ and that the third petition was an ‘‘exact copy’’ of the second petition. This interpretation of the third petition was incorrect. It appears that the court failed to note, as we discussed previously, that the statement ‘‘I am innocent’’ was added to the third petition. The court also stated that the third petition failed to state a claim on which relief could be granted because the petitioner’s appeal from the ‘‘identical’’ second petition was pending. Because the petitions were not identical, the court’s characterization of the third petition, and thus its reliance on
The petitioner argues that he adequately pleaded a claim of actual innocence and that the claim constituted a claim on which relief could be granted. The petitioner and the respondent disagree with respect to whether
‘‘It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . The principle that a plaintiff may rely only upon what he has alleged is basic. . . . It is fundamental in our law that the right a plaintiff to recover is limited to the allegations of his complaint. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.’’ (Internal quotation marks omitted.) Abdullah v. Commissioner of Correction, 123 Conn. App. 197, 202, 1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010).
This court has explained that, ‘‘[t]o obtain relief through a habeas petition, the petitioner must plead facts that, if proven, establish that the petitioner is entitled to relief. . . .
‘‘Our case law has recognized only one situation in which a court is not legally required to hear a habeas petition [before dismissing the petition]. . . . Specifically, [i]f a previous [petition] brought on the same grounds was denied, the pending [petition] may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing. . . . Although [b]oth statute and case law evince a strong presumption that a petitioner for a writ of habeas corpus is entitled to present evidence in support of his claims . . . practical considerations suggest that a habeas court is not legally required to hear a habeas petition that itself is legally infirm.’’ (Citations omitted; emphasis altered; internal quotation marks omitted.) Coleman v. Commissioner of Correc- tion, 137 Conn. App. 51, 57, 46 A.3d 1050 (2012).
Thus, a petitioner’s pleading burden is to plead material facts that entitle him to relief. See, e.g., Dinham v. Commissioner of Correction, 191 Conn. App. 84, 93–94, 213 A.3d 507 (habeas court properly dismissed claim pursuant to
‘‘As to the first prong, we emphasized in Miller that the clear and convincing standard . . . is a very demanding standard and should be understood as such, particularly when applied to a habeas claim of actual innocence, where the stakes are so important for both the petitioner and the state. . . . [That standard] should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory. . . . [The standard requires] extraordinarily high and truly persuasive demonstration[s] of actual innocence. . . .
‘‘Moreover, actual innocence [must be] demonstrated by affirmative proof that the petitioner did not commit the crime. . . . Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime . . . that a third party committed the crime, or that no crime actually occurred. . . . Clear and convincing proof of actual innocence does not, however, require the petitioner to establish that his or her guilt is a factual impossibility. . . . In part for these reasons, we emphasized in Miller that truly persuasive demonstrations of actual innocence after conviction in a fair trial have been, and are likely to remain, extremely rare.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Bowens v. Commissioner of Correction, 333 Conn. 502, 518–19, 217 A.3d 609 (2019).
Mindful of these principles, we look more closely at the third petition. The first point at which the petitioner inserted the statement ‘‘I am innocent’’ was in box five of the petition, in which he also alleged as reasons his conviction was illegal: ‘‘[W]as not given appropriate interpreter (Spanish); jury was forced to find me guilty; there is no physical evidence supporting unstable statements; contradictory statements.’’ The second point at which the petitioner inserted the statement ‘‘I am innocent’’ was in box six of the petition, in which he also alleged as a reason his ‘‘incarceration/sentence’’ was illegal: ‘‘Because of misconduct of all counsel involved in my case: Intentional, malicious, prejudicial, discriminatory (but is not limited to).’’ The statement ‘‘I am innocent,’’ when viewed in isolation, is ambiguous. It may be viewed as a bare conclusory statement of the petitioner’s belief in his innocence and not necessarily as an allegation of material fact that, if proven, would entitle the petitioner to relief on the ground of actual innocence. Without more, the statement does not suggest that affirmative proof exists that the petitioner did not commit the crime. Moreover, the allegations that precede the statement ‘‘I am innocent’’ similarly lack any reference to material facts in support of a claim of actual innocence. To the contrary, the other allegations reflect the petitioner’s belief that, for several reasons, he should not have been convicted, but none of these reasons rises to affirmative proof that he could not have committed the crime, that a third party committed the crime, or that no crime actually occurred.20 It bears repeating that ‘‘[a]ctual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt.’’ (Internal quotation marks omitted.) Carmon v. Commissioner of Correction, 178 Conn. App. 356, 371, 175 A.3d 60 (2017), cert. denied, 328 Conn. 913, 180 A.3d 961 (2018).
Our interpretation of the newly inserted language in the third petition is based on the lack of material facts contained therein in support of a claim of actual innocence; it is not the result of the petitioner’s failure to use the specific phrase ‘‘actual innocence.’’ It is well settled that courts do not interpret pleadings so to require the use of talismanic words and phrases. See,
Having interpreted the allegation in the third petition at issue in this claim, we turn to the procedural argument advanced by the petitioner, namely, that the court erred in relying on
With respect to the petitioner’s procedural argument, our Supreme Court’s recent decision in Gilchrist v. Commissioner of Correction, supra, 334 Conn. 548, is instructive. In Gilchrist, our Supreme Court clarified the proper role of the habeas court in screening habeas petitions as well as the proper application of
After discussing the proper application of
As we have explained, in the present case, the court dismissed the third petition under
This remedy is consistent with Gilchrist, in which our Supreme Court provided additional insight into the proper screening function that the habeas court should apply in determining whether to issue the writ: ‘‘To be clear, the screening function of
The judgment in Docket No. AC 42466 is affirmed; the appeal in Docket No. AC 42618 is dismissed in part with respect to the denial of the motion for permission to file a late amended petition for certification to appeal and for reconsideration, the judgment dismissing the petitioner’s petition for a writ of habeas corpus is reversed and the case is remanded with direction to issue the writ of habeas corpus.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to use the petitioner’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See