STEVEN W. ROSE v. COMMISSIONER OF CORRECTION
(SC 20558)
Supreme Court of Connecticut
December 12, 2023
Robinson, C. J., and McDonald, D‘Auria, Ecker and Bright, Js.
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Syllabus
Pursuant to statute (
The petitioner, who had been convicted of felony murder, among other crimes, filed a petition for a writ of habeas corpus in February, 2018, more than five years after the date on which his judgment of conviction was deemed to be final. The petitioner had originally filed a timely habeas petition in 2012, but, on the date that his habeas trial was scheduled to commence, he notified the habeas court that he did not want to proceed because of his ongoing dissatisfaction with the representation provided by his assigned counsel, W. The habeas court initially indicated that it was unwilling to dismiss the petition without prejudice to refiling because the Office of the Chief Public Defender would appoint the same attorney to represent the petitioner. W, however, informed the habeas court that the petitioner would be appointed a different attorney in a future proceeding and that he previously had sent a letter to the petitioner advising him that “he could withdraw [his 2012 petition] but do it now, and they‘ll assign you another lawyer.” The petitioner then signed a withdrawal form, and the habeas court dismissed the 2012 petition without prejudice to refiling. When the petitioner filed the present habeas petition in 2018, the respondent, the Commissioner of Correction, moved for an order to show cause why the petition should not be dismissed as untimely pursuant to
Held that the Appellate Court improperly affirmed the habeas court‘s judgment, as the habeas court‘s determination that no good cause existed was predicated on a clearly erroneous factual finding, and, accordingly, this court reversed the judgment of the Appellate Court:
In its decision in Kelsey v. Commissioner of Correction (343 Conn. 424), this court explained that a good cause determination under
In the present case, the habeas court‘s determination that no good cause existed for the delay in filing was based on that court‘s clearly erroneous finding that W had advised the petitioner to refile his habeas petition “now,” or immediately, when the uncontradicted evidence adduced at the good cause hearing established that W never advised the petitioner of the need to refile his habeas petition prior to the date after which the petition would no longer be deemed to be timely.
Specifically, neither party presented any evidence at the good cause hearing to support a reasonable inference that W had advised the petitioner to refile his habeas petition “now,” as W and the petitioner both testified that W never informed the petitioner of any time limit or specific date by which he had to refile the petition in order for it not to be deemed untimely.
Moreover, although the transcript from the proceeding during which the petitioner withdrew his 2012 petition, and on which the habeas court relied in making its good cause determination, demonstrated that W had advised the petitioner to withdraw the 2012 petition “now,” there was no indication that W also advised the petitioner to refile a new habeas petition “now,” or immediately, and, given that the parties and the court at the prior proceeding were concerned with the timing of the withdrawal of the 2012 petition, and not the refiling of a subsequent habeas petition, there was no evidence that anyone at that proceeding advised the petitioner of the time constraints imposed by
Furthermore, there was no merit to the respondent‘s claim that the Appellate Court‘s judgment could be affirmed on the alternative ground that the petitioner had failed to establish good cause as a matter of law insofar as ignorance of the time constraints imposed by
Insofar as the habeas court made no factual findings regarding W‘s alleged ineffective assistance, this court declined to address that issue for the first time on appeal, and, accordingly, the case was remanded so that the habeas court could conduct a new hearing and make a good cause determination under
Argued September 7—officially released December 12, 2023
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, from which the petitioner, on the granting of certification, appealed to the Appellate Court, Cradle, Alexander and Harper, Js., which affirmed the habeas court‘s judgment, and the petitioner, on the granting of certification, appealed to this court. Reversed; further proceedings.
Vishal K. Garg, assigned counsel, for the appellant (petitioner).
Melissa L. Streeto, senior assistant state‘s attorney, with whom, on the brief, were Maureen Platt, state‘s attorney, and Eva Lenczewski, supervisory assistant state‘s attorney, for the appellee (respondent).
Opinion
ECKER, J. Our recent decision in Kelsey v. Commissioner of Correction, 343 Conn. 424, 431–40, 274 A.3d 85 (2022), articulated the legal framework governing a habeas court‘s determination of whether there is good cause to excuse the untimely filing of a petition for a writ of habeas corpus under
On appeal to this court, the petitioner claims that the habeas court‘s dismissal was improper because (1) Attorney Wallace rendered ineffective assistance of counsel, and (2) the habeas court‘s good cause determination was premised on its clearly erroneous factual finding that Attorney Wallace had advised the petitioner to refile his habeas petition ” ‘now,’ ” even
The following facts and procedural history are relevant to this appeal. In connection with a 2007 murder and robbery, the petitioner was convicted of felony murder and robbery in the first degree and sentenced to forty years of incarceration.1 See State v. Rose, 132 Conn. App. 563, 565–67, 33 A.3d 765 (2011), cert. denied, 303 Conn. 934, 36 A.3d 692 (2012). The Appellate Court affirmed the petitioner‘s conviction; id., 566, 582; and this court denied the petitioner‘s petition for certification to appeal on February 3, 2012. See State v. Rose, 303 Conn. 934, 36 A.3d 692 (2012). The petitioner‘s conviction became final ninety days later, after the expiration of the time for filing a petition for a writ of certiorari to the United States Supreme Court. See
The petitioner timely filed his first petition for a writ of habeas corpus in 2012, shortly after his conviction became final. Attorney Wallace was appointed to represent him in that proceeding. Dissatisfied with Attorney Wallace‘s legal representation, the petitioner filed a motion seeking Attorney Wallace‘s removal and the appointment of new counsel. The habeas court denied that motion. The petitioner continued to express dissatisfaction with Attorney Wallace‘s performance, although he filed no similar motions thereafter. One month prior to the scheduled habeas trial, in November, 2016, Attorney Wallace filed a motion to continue the trial to investigate new information, but the court denied that motion, as well.
On December 5, 2016, the date on which the trial on his first habeas petition was scheduled to commence, the petitioner informed the habeas court that he did not want to proceed to trial with Attorney Wallace as his appointed counsel. The petitioner stated that Attorney Wallace had “only spent, like, maybe a[n] hour and a half [with him] over four years” and was “not advocating for [him].” The habeas court told the petitioner that the proper procedure was to file “motion[s] to dismiss and [to] replace counsel” or to proceed as a self-represented petitioner. The habeas court further stated that it would not dismiss the case without prejudice to refiling on the eve of trial because “the Office of the Chief Public Defender [would] assign the same attorney” again. Attorney Wallace then advised the habeas court that the Office of the Chief Public Defender would not reappoint him to represent the petitioner in a future proceeding but, instead, would appoint a different attorney. Attorney Wallace also informed the court that he previously had sent the petitioner a
Approximately fourteen months later, on February 13, 2018, the petitioner filed the present petition for a writ of habeas corpus, challenging his criminal conviction. The petition raises at least one of the same claims that the petitioner raised in the 2012 petition, which he had withdrawn without prejudice to refiling on December 5, 2016, on the advice of counsel.2 The respondent, the Commissioner of Correction, filed a request for an order to show cause why the petitioner‘s habeas petition should not be dismissed as untimely under
The petitioner‘s counsel argued that good cause existed because the petitioner was under the misapprehension that his prior habeas action was still pending and that new counsel would be appointed. Counsel also argued that Attorney Wallace failed to inform the petitioner of the October 1, 2017 deadline to refile his habeas petition under
Importantly for present purposes, the habeas court admitted into evidence as a full exhibit the transcript of the December 5, 2016 proceedings, at which the petitioner withdrew his previous petition without prejudice to refiling. It was from this transcript that the habeas court learned that, in November, 2016, Wallace had sent the petitioner a “letter saying when he could withdraw [his prior habeas petition] but do it now and they‘ll assign you another lawyer.”3 The petitioner testified, consistent with Attorney Wallace‘s testimony, that he was not informed of the date by which his habeas petition had to be refiled. Additionally, the petitioner informed the habeas court that he did not realize that he had to file a new habeas petition; he believed that his prior habeas petition was still pending and that a new attorney would be appointed to represent him.
The habeas court issued a written memorandum of decision, dismissing the
On appeal to the Appellate Court, the petitioner claimed that the habeas court incorrectly had determined that there was no good cause to rebut the statutory presumption of unreasonable delay. See Rose v. Commissioner of Correction, supra, 202 Conn. App. 439–40. The Appellate Court held that the habeas court‘s factual findings regarding Attorney Wallace‘s advice were not clearly erroneous and that the habeas court had not abused its discretion in determining that no good cause existed to excuse the late filing. See id., 443–45. We granted the petitioner‘s petition for certification to appeal to determine whether “the Appellate Court correctly determine[d] that the habeas court had correctly found that the petitioner did not establish good cause necessary to excuse the delay in filing under
The petitioner claims that the habeas court incorrectly concluded that good cause did not exist to excuse the late filing
Section
A habeas court‘s determination of good cause under
As the Appellate Court correctly observed, the subordinate factual findings on which a habeas court relies to arrive at its good cause determination are reviewed
As a factual predicate to its conclusion that the petitioner had failed to establish good cause for his late filing, the habeas court found that Attorney Wallace had informed the petitioner to refile his habeas petition “now“—that is, immediately following the withdrawal of his prior petition.7 (Emphasis in original.) This finding was clearly erroneous. At the good cause hearing, nei- ther party presented any evidence to support a reasonable inference that Attorney Wallace had advised the petitioner to refile his habeas petition “now.” Attorney Wallace testified that he told the petitioner that he would have to refile another habeas petition, but he “didn‘t give [the petitioner] any time parameters . . . . I didn‘t say you have to do it by, you know, one year, two years, nine years, whatever. I said just refile it, and they‘ll give you another lawyer, and they can take another look at it.” Attorney Wallace also testified that he never informed the petitioner of the time limit for refiling his habeas petition under
The habeas court, however, relied on the December 5, 2016 transcript to find that Attorney Wallace had advised the petitioner that he was required to refile his habeas petition “now.” The transcript fails to support the habeas court‘s factual finding. The evidence relied on by the habeas court on this point is the reference made by Attorney Wallace on December 5, 2016, informing the prior habeas court that Wallace had written a letter to the petitioner “saying when he could withdraw but do it now and they‘ll assign you another lawyer.” Although Attorney Wallace advised the petitioner to withdraw his prior habeas petition “now,” there is no indication that Attorney Wallace also advised the petitioner to refile a new habeas petition “now.” Indeed, the record reflects that, at the December 5, 2016 hearing, Attorney Wallace, the respondent‘s counsel, and the habeas court were concerned with the timing of the withdrawal of the first habeas action, not the refiling of a subsequent habeas action. As the prior habeas court observed, it was important for the petitioner to withdraw his prior habeas action “now,” meaning before the start of what would have been the first day of evidence in his first habeas trial, to preserve the petitioner‘s right to withdraw his habeas action without prejudice to refiling. By withdrawing his prior habeas petition before the formal presentation of proof, the petitioner had a right to refile a subsequent habeas petition in which he could either represent himself or be represented by a different attorney. The focus at that point was on the timing of the withdrawal of the prior
Although the evidentiary record does not support the habeas court‘s good cause determination, the respondent nonetheless contends that the judgment of the Appellate Court may be affirmed on the alternative ground that the petitioner failed to establish good cause as a matter of law. The respondent argues that, under our recent decision in Kelsey v. Commissioner of Correction, supra, 343 Conn. 438–39, the petitioner must prove that external forces outside the control of both the petitioner and his habeas counsel caused or contributed to the delayed filing of his habeas petition. According to the respondent, knowledge of the time constraints imposed by
In Kelsey, although the petitioner briefly argued that his prior habeas counsel had failed to advise him of the statutory deadline to file a subsequent habeas petition; see id., 441; the focus of his claim was that his status as a self-represented party and the conditions of his confinement caused him to be unaware of the filing deadline in
To resolve that issue, we turn to the fundamental distinction between internal and external factors that cause or contribute to a petitioner‘s failure to comply with a procedural rule. As we previously have observed in the context of the procedural default doctrine,8 “[a] factor is external to the defense if it cannot fairly be attributed to the [petitioner]. . . . Objective factors external to the defense include, but are not limited to, a showing that the factual or legal basis for a claim was not reasonably available to counsel, outside interference
Ineffective assistance of counsel is an objective factor external to the defense because ” ‘the [s]ixth [a]mendment itself requires that responsibility for the default be imputed to the [s]tate. . . . In other words, it is not the gravity of the attorney‘s error that matters, but that it constitutes a violation of [the] petitioner‘s right to counsel, so that the error must be seen as an external factor, i.e., imputed to the [s]tate.’ ” Id., 22, quoting Coleman v. Thompson, 501 U.S. 722, 754, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). Although a petitioner is bound by his counsel‘s inadvertence, ignorance, or tactical missteps, regardless of “whether counsel is flouting procedural rules or hedging against strategic risks,” a petitioner is not bound by the ineffective assistance of his counsel. Saunders v. Commissioner of Correction, supra, 21–22; see Johnson v. Commissioner of Correction, 285 Conn. 556, 570, 941 A.2d 248 (2008) (under procedural default doctrine, “although ignorance or inadvertence is not cause, ineffective assistance of counsel is a legitimate ground for cause” (internal quotation marks omitted)); Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001) (“attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure” (internal quotation marks omitted)); see also Coleman v. Thompson, supra, 754 (under “[well settled] principles of agency law,” client is bound by “alleged attorney error,” unless it rises to the level of ineffective assistance); Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986) (“[i]neffective assistance of counsel . . . is cause for a procedural default” because “the [s]ixth [a]mendment itself requires that responsibility for the default be imputed to the [s]tate“). Consistent with this authority, we conclude that ineffective assistance of counsel is an objective factor external to the petitioner that may constitute good cause to excuse the late filing of a habeas petition under the totality of the circumstances pursuant to
We recognize that the Appellate Court has held that a habeas attorney‘s ignorance of the law and poor advice that results in the untimely filing of a habeas petition is not an external, objective factor sufficient to establish good cause under
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the habeas court‘s judgment and to remand the case to that court for further proceedings in accordance with this opinion.
In this opinion the other justices concurred.