MICHAEL G. v. COMMISSIONER OF CORRECTION
AC 43327
Appellate Court of Connecticut
August 9, 2022
Alvord, Cradle and Eveleigh, Js.
Argued March 10, 2021
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Syllabus
Pursuant to statute (
The petitioner, who had been conviсted of the crimes of sexual assault in the first degree and risk of injury to a child, filed a third petition for a writ of habeas corpus. Because the third petition was filed beyond the two year time limit for subsequent petitions set forth in
- The habeas court did not abuse its discretion in denying the petition fоr certification to appeal, the petitioner having failed to demonstrate that his claims involved issues that were debatable among jurists of reason, that a court could resolve the issues in a different manner, or that the questions raised were adequate to deserve encouragement to proceed further.
- The habeas court did not abuse its discretion in determining that the petitioner failed to demonstrate good cause for the delay in filing his third habeas petition: contrary to the petitioner‘s claim that he established good cause because the delay was due to his second habeas counsel‘s incorrect advice, the petitioner failed to establish that something outside of his or his counsel‘s control caused or contributed to the delay in filing the third petition, and, even assuming that it was reasonable for him to withdraw the second petition prior to his pending trial and to wait at least sixty days before filing another petition, the petitioner did not file his third petition until nearly ten months after the statutory deadline had elapsed, and he provided no explanation as to why he waited an additional eight months beyond his counsel‘s suggested sixty day period before filing it; moreover, in making its determination, the habeas court reasonably considered the fact that the petitioner made no claim that the delay was due to missing witnesses or newly discovered evidence and reasonably concluded that the petitioner‘s actions were an attempt to manipulate or delay proceeding to trial.
- The habeas court did not abuse its discretion in denying the petitioner‘s motion for disqualification of the habeas judge: contrary to the petitioner‘s contention that certain comments made by the judge during the petitioner‘s first habeas trial created the appearance of impropriety, the judge indicated that he had no recollection of the prior proceeding, which had occurred seven years earlier, and the subject comments were made in the purview of his judicial role and reflected credibility determinations made with respect to the specific testimony given and the demeanor exhibited at the first habeas trial, and, therefore, it was clear that the judge‘s previous credibility determinations would not cause a reasonable person to question his impartiality in presiding over the present case nor were his comments so extreme as to display a clear inability to render fair judgment.
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., rеndered judgment dismissing the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.
Jonathan M. Sousa, deputy assistant state‘s attorney, with whom, on the brief, were Dawn Gallo, state‘s attorney, Leah Hawley, senior assistant state‘s attorney, and Amy L. Bepko-Mazzocchi, supervisory assistant state‘s attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Michael G., appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus pursuant to
Thereafter, on January 21, 2010, the petitioner filed his first petition for a writ of habeas cоrpus, which he amended on March 16, 2012 (first petition), alleging that his trial counsel had rendered deficient performance. Following a trial on the merits, the habeas court denied that first petition. Michael G. v. Commissioner of Correction, 153 Conn. App. 556, 558, 102 A.3d 132 (2014), cert. denied, 315 Conn. 916, 107 A.3d 412 (2015). The habeas court denied his petition for certification to appeal, and this court dismissed his appeal on October 21, 2014. Id., 563. Our Supreme Court denied the petitioner certification to appeal on January 21, 2015.
The petitioner filed a second petition for a writ of habeas corpus on September 23, 2014 (second petition). A habeas trial with respect to that second petition was scheduled to begin on May 9, 2017. The petitioner, however, withdrew that petition on February 7, 2017.
The petitioner filed a third petition for writ of habeas corpus, the subject of this appeal, on December 1, 2017 (third petition). The respondent, the Commissioner of Correctiоn, thereafter filed a request with the habeas court, pursuant to
On February 20, 2019, prior to the show cause hearing, the petitioner moved that the habeas judge disqualify himself, arguing that, because Judge Newson had presided over the habeas trial on the petitioner‘s first petition, he should disqualify himself from presiding over this case. On March 15, 2019, at the start of the show cause hearing, the court addressed the motion for disqualification and concluded that disqualification was not necessary. The court then proceeded to conduct the show cause hearing on March 15, 2019. The only evidence presented at the hearing was the testimony of the petitioner. The court also heаrd legal arguments from both sides.
Thereafter, on June 21, 2019, the court issued a memorandum of decision dismissing the petitioner‘s third petition. In its decision, the court concluded that the petitioner‘s third petition was untimely by approximately ten months2 and,
Following oral argument before this court held on March 10, 2021, at the petitioner‘s request, this appeal was stayed pending our Supreme Court‘s consideration of Kelsey v. Commissioner of Correction, 343 Conn. 424, 274 A.3d 85 (2022).
Following our Supreme Court‘s decision in Kelsey, the parties were ordered to file supplemental briefs addressing Kelsey‘s impact on this appeal. Additional procedural history will be set forth as necessary.
We begin by setting forth the legal principles that govern our review of a habeas court‘s denial of a petition for certification to appeal. “Faced with a habeas court‘s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [denial] of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . . To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues thаt] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . 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.) Olorunfunmi v. Commissioner of Correction, 211 Conn. App. 291, 303, 272 A.3d 716, cert. denied, 343 Conn. 929, ___ A.3d ___ (2022).
I
The petitioner‘s first claim is that he established good cause for his delay in filing his third petition because the delay was due to incorrect advice from his counsel in his second habeas case.3 We disagree.
The petitioner was the only witness who testified at the show cause hearing, and no other evidence was offered by the parties. With respect to his second petition, the petitioner testified that it was filed before our Supreme Court denied his petition for certification to appeal this court‘s decision in his first habeas case. He testified that he was represented by counsel in the second habeas case, his counsel advised him to withdraw the second petition,
Following the petitioner‘s testimony, each side presented argument. The respondent‘s counsel maintained that “[t]he [petitioner‘s] attorney was not here to testify as to what he did and didn‘t tell [the petitioner]. The only thing we have is the self-serving testimony that, you know, he, he was given this advice. I mean, clearly, the petition is late. It was filed after the statutory time period and there has been . . . no testimony as to newly discovered evidence, and nothing that shows good cause for the time delay. So, the petitioner‘s failed to meet his burden of proof.” The petitioner‘s counsel discussed the issue of what exact date established when a petition was timely or not, asserting that the petitioner had until February 10, 2017, three days after he withdrew his second petition, to file another subsequent petition. In closing, the petitioner‘s counsel nоted: “I think that the issue is . . . that he was given the incorrect advice during the time frame in which he could have filed another one timely.”
Thereafter, on June 21, 2019, the habeas court dismissed the petitioner‘s third petition, determining that he lacked good cause for the delay in the filing of the
petition. In its memorandum of decision, the habeas court first determined that “the petitioner had two years from when the Supreme Court issued notification [that] it had denied certification to file a subsequent habeas action attacking the same conviction, which would have given him until January 21, 2017, but the present action was not filed until December 1, 2017.” The habeas court then concluded that the petitioner did not meet his evidentiary burden of demonstrating good cause for the delay because “[t]here is no claim that the petitioner was ‘forced’ or ‘misled’ into withdrawing this prior petition. There is also no claim that the petitioner was lacking necessary information or witnesses when he filed the withdrawal, or that he has discovered otherwise unknown evidence between then and now. Instead, the court is left with the only reasonable conclusion that the withdrawal of the prior action was strategically filed simply to manipulate or delay proceeding to trial.”
We begin by setting forth the applicable standard of review. “[A] habeas court‘s determination regarding good cause under
“[T]o rebut successfully the presumption of unreasonable delay in
sibility 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.”5 Id., 442.
“[A]lthough . . . the legislature certainly contemplated a petitioner‘s lack of knowledge of a change in the law as potentially sufficient to establish good cause for an untimely filing, the legislature did not intend for a petitioner‘s lack of knowledge of the law, standing alone, to establish that a petitioner has met his evidentiary burden of establishing good cause. As with any excuse for a delay in filing, the ultimate determination is subject to the same factors previously discussed, relevant to the petitioner‘s lack of knowledge: whether external forces outside the control of the petitioner had any bearing on his lack of knowledge, and whether and to what extent the petitioner or his counsel bears any personal responsibility for that lack of knowledge.”6 (Footnote omitted.) Id., 444-45.
In Kelsey, the petitioner filed a second petition for a writ of habeas corpus approximately five years after our Supreme Court denied his petition for certification to appeal from this court‘s judgment affirming
In the present case, the petitioner argues that he established good cause because “his second habeas counsel failed to explain the statutory time limits in
tion].” The petitioner further states that his habeas counsel was “required to understand the time constraints governing habeas corpus . . . .” The respondent replies that the petitioner‘s arguments “cannot be reconciled with the Kelsey court‘s statement that good cause must be something outside the control of both the petitioner and habeas counsel” because “both the petitioner and [his habeas counsel] bear personal responsibility for the consequences of the withdrawal of the prior petition.” (Emphasis in original.) We agree with the respondent.
As the respondent notes, the record does not establish that the petitioner or his counsel was unaware of
In addition, the length of the delay further supports the habeas court‘s determination that the petitioner failed to demonstrate good cause for the delay. Even assuming, without determining, that it was reasonable for the petitioner to withdraw the second petition prior to his pending trial and to wait “at least [sixty] days” before filing another petition, he did not file his third petitiоn until almost ten months had elapsed, and, further, he provides no explanation as to why he waited an additional eight months after his habeas counsel‘s suggested sixty day waiting period.11
Finally, the habeas court reasonably considered the fact that the petitioner made no claim that the delay was due to missing witnesses or newly discovered evidence and reasonably concluded that the petitioner‘s actions were an attempt to “manipulate or delay proceeding to trial.”12 Thus, we conclude that the habeas
court did not abuse its discretion in determining that the petitioner had failed to demonstrate good cause for the delay in filing his third petition for a writ of habeas corpus.
II
The petitioner‘s second claim is that the court “improperly failed to recuse
The following additional procedurаl history is relevant to our resolution of this claim. Subsequent to the trial on the petitioner‘s first petition for a writ of habeas corpus, during which the petitioner testified as a witness, Judge Newson issued an oral decision denying the petition. In that ruling, Judge Newson made the following comments: “[F]rankly, to put it bluntly, the petitioner‘s testimony lacked even the slightest semblance of credibility as to anything that came out of his mouth. . . . [H]e lacked even the slightest semblance of credibility. I watched his demeanor and his action, and I‘m not just talking about his words. I don‘t think [the petitioner] even believed himself . . . and that‘s the court‘s assessment of him and his demeanor while he was testifying here.
“So that it‘s clear for the record, I am not judging the words; I am judging the person I saw on the stand and whether or not I found him the least bit credible as to those allegations . . . .” In addition, Judge Newson commented that the petitioner‘s parents, who аlso testified at the habeas trial, similarly lacked credibility.
In the present case, prior to the show cause hearing, the petitioner filed a motion pursuant to Practice Book
At the start of the show cause hearing, Judge Newson addressed the motion for disqualification. The peti-
tioner argued that Judge Newson‘s previous credibility determinations created the “appearance of impropriety,” warranting disqualification. The respondent‘s attorney stated, “[w]e take no position.”
“I don‘t know that I think I found, generally, that as a person [the petitioner] was not credible, but—and I think there‘s even mention of comments about, I think his parents testified—that watching their demeanor and other things that were in front of me at that time, I found that they lacked credibility. I also would note that, notwithstanding the strong language under those circumstances, that‘s a court‘s job in matters like this, which is to find whether or not persons are or not credible. And, I would imagine that if the fact that a court used strong language related to a matter as opposed to generally, were grounds for disqualification, there would be many.
“So I will, again, deny the request. Again, this is a substantially different matter, some seven years in the future. And, again, I can tell you—and I know, I know counsel‘s doing her job. At, at this point, I don‘t honestly have a direct memory of what even the facts and circumstances of that matter were. Although, I can tell you, it‘s not the—well, I‘ll just leave it at that.”
On appeal, the petitioner asserts that “[a] reasonable person would have believed that the habeas court had a preconceived view that the petitioner was not credible at the time he presided over the petitioner‘s show cause hearing, based on his repeated findings in the petitioner‘s prior habeas action that the petitioner ‘lacked even the slightest semblance of credibility as to anything that came out of his mouth.’ ”15 In reply, the respondent asserts that “the habeas court properly exercised its discretion in denying the motion for recusal because its comments on the petitioner‘s credibility were limited to the evidence presented during the first habeas trial, of which the habeas court had no direct recollection and which occurred seven years before the [show] cause hearing. Moreover, the comments would not have impacted the outcome of the instant proceeding, which did not depend on the court‘s assessment of the petitioner‘s credibility.” We agree with the respondent.
“Appellate review of the trial court‘s denial of a defendant‘s motion for judicial disqualification is subject to
the abuse of discretion standard. . . . That standard requires us to indulge every reasonable presumption in favоr of the correctness of the court‘s determination.” (Internal quotation marks omitted.) State v. Lane, 206 Conn. App. 1, 8, 258 A.3d 1283, cert. denied, 338 Conn. 913, 259 A.3d 654 (2021); see also Joyner v. Commissioner of Correction, 55 Conn. App. 602, 609, 740 A.2d 424 (1999).
We begin our analysis with Practice Book
“In applying this rule, [t]he reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge‘s impartiality on the basis of all the circumstances. . . . Moreover, it is well established that [e]ven in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority. . . . Nevertheless, because the law presumes that duly elected or appointed judges, consistent with their oaths of office, will perform their duties impartially . . . the burden rests with the party urging disqualification to show that it is warranted.” State v. Milner, 325 Conn. 1, 12, 155 A.3d 730 (2017).
“[O]pinions that judges may form as a result of what they learn in earlier proceedings in the same case rarely constitute the type of bias, or appearance of bias, that requires recusal. . . . To do so, an opinion must be so extreme as to display clear inability to render fair judgment. . . . In the absence of unusual circumstances, therefore, equating knowledge or opinions acquired during the course of an adjudication with an appearance of impropriety or bias requiring recusal finds no support in law, ethics or sound policy.” (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Rizzo, 303 Conn. 71, 121, 31 A.3d 1094 (2011), cert. denied, 568 U.S. 836, 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012); see Ajadi v. Commissioner of Correction, 280 Conn. 514, 529, 911 A.2d 712 (2006) (plain error for judge, who had represented petitioner during criminal proceedings, to not recuse himself given that habeas petition over which he presided had initially alleged that “his own prior representation of the petitioner was so deficient that it deprived the petitioner
of counsel in violation of the sixth amendment to the federal constitution” as reasonable person would question judge‘s impartiality).
As noted, the petitioner argues that Judge Newson‘s previous comments regarding the petitioner‘s testimony during his first habeas trial created the appearance of impropriety. After considering the record, we cannot conclude that Judge Newson abused his discretion in denying the petitioner‘s motion for disquаlification. As Judge Newson noted in his oral ruling, the allegedly offending comments properly were made in the purview of his judicial role as it is squarely within a habeas judge‘s authority to make credibility determinations concerning witness testimony. See, e.g., Chase v. Commissioner of Correction, 210 Conn. App. 492, 500, 270 A.3d 199 (“[t]he habeas judge, as the trier of
Accordingly, we conclude that the petitioner has failed to demonstrate that his claims involve issues that are debatable among jurists of reason, a court could resolve the issues in a different manner, or the questions are adequate to deserve encouragement to proceed further. Thus, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline use the petitioner‘s full name or to identify the victim or others through whom the victim‘s identity may be ascertained. See
written objection thereto.”
On March 18, 2019, following the show cause hearing, the petitioner filed a “supplemental brief in support of good cause” in which he argued that the habeas court could “infer that the petitioner waited to file a new petition for a writ of habeas corpus . . . beсause of his pending sentence review application.” The petitioner attached the sentence review decision, which was issued on January 23, 2018, to the brief. The respondent objected to the brief and the arguments therein and requested that the brief be stricken. The court did not rule on the objection and did not address the sentence review argument in its memorandum of decision. Given that the petitioner did not raise the argument during the show cause hearing and the court did not address it in its memorandum of decision, we agree with the respondent that the issue is not reviewable.
Notes
“(e) In a case in which the rebuttable presumption of delay under subsection . . . (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 subsection . . . (d) of this section.”