TIMOTHY SOLEK v. COMMISSIONER OF CORRECTION
Connecticut Appellate Court
Argued January 4—officially released March 16, 2021
**********************************************************
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
**********************************************************
Syllabus
The petitioner, who had been convicted of the crimes of murder and sexual assault in the second degree, sought a second writ of habeas corpus, claiming that his trial counsel had rendered ineffective assistance, and the habeas court rendered judgment dismissing the petition. Thereafter, the habeas court denied the petition for certification to appeal, and the petitioner appealed to this court. Held:
- This court declined to review the petitioner‘s claim that the habeas court improperly determined that he had not established good cause for the untimely filing of his second petition sufficient to rebut the statutory (
§ 52-470 ) presumption of unwarranted delay: the petitioner raised for the first time in his reply brief the threshold issue of whether the habeas court abused its discretion in denying his petition for certification to appeal, rendering that claim unreviewable; moreover, even if the petitioner properly had raised that threshold issue, the petitioner failed to establish that the court abused its discretion in denying certification to appeal, the petitioner having failed to demonstrate that the court‘s conclusion that he had not demonstrated good cause for delay was debatable among jurists of reason, a court could resolve the issue differently or the questions raised deserved encouragement to proceed further; furthermore, the petitioner‘s argument that his severe mental health issues provided good cause for the delay was unreviewable because the record was inadequate to review such a claim, as the habeas court did not address the issue in its memorandum of decision and the petitioner did not filed a motion for articulation. - The petitioner‘s claims that the habeas court failed to provide him with a meaningful opportunity to investigate and to present evidence as to good cause for the delay in filing his petition was not reviewable on appeal: the petitioner‘s claim that the court failed to provide him with a meaningful opportunity to present evidence as to a plea offer was unreviewable because the petitioner failed to raise that evidentiary issue in his petition for certification to appeal; moreover, the petitioner‘s claim that the court failed to provide him with a meaningful opportunity to conduct an investigation regarding newly discovered evidence regarding the plea offer to support good cause for delay was outside the scope of appellate review, as the petitioner did not raise the issue at any time before the court, request additional time from the court in which to conduct an investigation, or include this ground in his petition for certification to appeal, which also precluded review under State v. Golding, 213 Conn. 233 (1989).
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., rendered judgment dismissing the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.
Robert L. O‘Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, for the appellant (petitioner).
Jonathan M. Sousa, deputy assistant state‘s attorney, with whom, on the brief, were John C. Smriga, state‘s attorney, and Emily Trudeau, assistant state‘s attorney, for the appellee (respondent).
Opinion
DIPENTIMA, J. The petitioner, Timothy Solek, appeals from the judgment of the habeas court dismissing as untimely, pursuant to
The following facts and procedural history are relevant. In 1999, the petitioner was convicted, following a jury trial, of murder and sexual assault in the second degree. The petitioner was sentenced to a total effective term of fifty-five years of incarceration. His conviction was affirmed on direct appeal. See State v. Solek, 66 Conn. App. 72, 91, 783 A.2d 1123, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001). Thereafter, the petitioner filed his first habeas petition, alleging, inter alia, ineffective assistance of trial and appellate counsel. The habeas court, Hon. William L. Hadden, Jr., judge trial referee, dismissed the petition, and this court affirmed that judgment on appeal. See Solek v. Commissioner of Correction, 107 Conn. App. 473, 488, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).
On June 21, 2018, the self-represented petitioner filed a second petition for a writ of habeas corpus, which is the subject of this appeal. In this petition, he alleged new claims of ineffective assistance of trial counsel. The respondent, the Commissioner of Correction, filed a motion for an order to show cause regarding whether the second petition should be dismissed as untimely pursuant to
At the hearing held on the respondent‘s motion to show cause, the petitioner, then represented by counsel, was the sole witness. He testified to his reasons for the delay, which included reliance on inaccurate advice of his habeas appellate counsel and the effect his mental health had on his ability to promptly file a second petition. In a memorandum of decision, the court found that the second habeas action was commenced after October 1, 2014, thereby triggering the statutory presumption of delay without good cause. It then concluded that the petitioner failed to demonstrate good cause to rebut the presumption of delay and dismissed the action. The petitioner filed a petition for certification to appeal, and the court denied the petition. This appeal followed.
I
The petitioner claims that the court erred in dismissing his petition for a writ of habeas corpus. Specifically, he argues that the court improperly concluded that no good cause existed to rebut the presumption of delay in the filing of his petition for a writ of habeas corpus. We decline to review this claim because the petitioner has not properly raised a threshold claim.
The respondent argues that the petitioner‘s claim is unreviewable because the petitioner failed to address in his main appellate brief the issue of whether the habeas court abused its discretion in denying certification to appeal. We agree.
In Goguen v. Commissioner of Correction, 195 Conn. App. 502, 504-505, 225 A.3d 977, cert. granted, 335 Conn. 925, 234 A.3d 980 (2020), this court declined to review the petitioner‘s claims seeking to reverse the judgment of the habeas court on the merits because the petitioner failed to satisfy the first prong of Simms v. Warden, supra, 229 Conn. 187, as a result of having “failed to brief the threshold question of whether the habeas court abused its discretion in denying his petition for certification to appeal.” In the present case, the petitioner did not raise the issue of the denial of the certification to appeal until his reply brief. A claim that the habeas court abused its discretion in denying certification to appeal when raised for the first time in a reply brief is unreviewable. “The appellate courts of this state have often held that an appellant may not raise an issue for the first time in a reply brief. . . . An appellant‘s claim must be framed in the original brief so that it can be responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. . . . We decline to consider the argument concerning this matter in the petitioner‘s reply brief.” (Citations omitted; internal quotation marks omitted.) Niblack v. Commissioner of Correction, 80 Conn. App. 292, 298, 834 A.2d 779 (2003), cert. denied, 267 Conn. 916, 841 A.2d 219 (2004); id. (declining to consider claim that habeas court abused its discretion in denying certification to appeal when raised for first time in reply brief); see also Thorpe v. Commissioner of Correction, 165 Conn. App. 731, 733, 140 A.3d 319 (petitioner cannot obtain appellate review of claim raised for first time in reply brief that habeas court abused its discretion in denying certification to appeal), cert. denied, 323 Conn. 903, 150 A.3d 681 (2016).
Furthermore, even if the petitioner properly had raised the threshold issue, we nonetheless would conclude that the petitioner failed to establish that the court abused its discretion in denying certification to appeal. The petitioner‘s underlying claim concerns the good cause standard
The court determined that the petitioner had not demonstrated good cause for the delay because, even if it found credible the petitioner‘s testimony that counsel gave incorrect advice,1 it was not credible that, within the six years between the giving of the advice sometime in 2008, and the deadline for filing his second petition on October 1, 2014, the petitioner would not have discovered that the advice was incorrect. The court further noted that the petitioner‘s filing of a federal civil rights action demonstrates that he had the ability to find information regarding legal remedies available to him. We defer to and are bound by the court‘s assessment of the petitioner‘s credibility. See Orcutt v. Commissioner of Correction, 284 Conn. 724, 741, 937 A.2d 656 (2007); see also Coleman v. Commissioner of Correction, 202Conn. App. 563, 575, 246 A.3d 60 (2021). The petitioner has not demonstrated that the court‘s conclusion that he has not demonstrated good cause for delay is debatable among jurists of reason, that a court could resolve the issue differently or that the questions raised deserve encouragement to proceed further. See Owens v. Commissioner of Correction, supra, 63 Conn. App. 831.
Moreover, the petitioner‘s additional argument that his “severe mental health issues” provided good cause for the delay in filing his second habeas petition is unreviewable because the record is inadequate to review such a claim.2 The court did not address this issue in its memorandum of decision, and the petitioner did not file a motion for articulation. Practice Book § 61-10 (b) provides in relevant part: “The failure of any party on appeal to seek articulation pursuant to Section 66-5 shall
II
The petitioner also claims that the court improperly dismissed his petition for a writ of habeas corpus following the show cause hearing without providing him with a meaningful opportunity to (a) present evidence as to a plea offer and (b) conduct an investigation regarding that newly discovered evidence to support good cause for delay. We decline to review these claims.
A
At the show cause hearing, the petitioner testified that his first habeas counsel had informed him that his codefendant in the underlying criminal trial, who had prevailed on direct appeal, was offered by the state a term of forty-five years of incarceration in exchange for a guilty plea on remand. The petitioner further testified that he had asked his first habeas counsel to inquire whether the state would offer him the same plea deal if he were to withdraw his then pending habeas petition. When the petitioner‘s counsel then asked at the show cause hearing whether his first habeas counsel ever reported that the state had made an offer, counsel for the respondent objected on the ground of relevancy. The petitioner‘s counsel argued that after he had been appointed to the case, he discovered new evidence of an e-mail from the petitioner‘s first habeas counsel indicating that there had been such an offer made. The court sustained the objection and did not permit the petitioner to testify regarding any plea offers made to him by the state prior to his first habeas trial. The court ruled that the hearing was limited to whether good cause existed for the delay in bringing the second habeas action,
We decline to review this claim because the petitioner failed to raise the evidentiary issue in his petition for certification to appeal.3 In his petition, the petitioner set forth the following grounds for requesting certification to appeal to this court: “The trial court erred in its dismissal of the petitioner‘s petition for writ of habeas corpus; any and all other grounds as determined after a review of the file and transcripts.”
“We review only the merits of claims specifically set forth in the petition for certification to appeal. . . . This court has declined to review issues in a petitioner‘s habeas appeal in situations where the habeas court denied certification to appeal and the issues on appeal had not been raised in the petition for certification. . . . A habeas petitioner cannot establish that the habeas court abused its discretion in denying certification on issues that were not raised in the petition for certification to appeal. . . . [S]ee also Pereira v. Commissioner of Correction, 176 Conn. App. 762, 775, 171A.3d 105 (because it is impossible to review exercise of discretion that did not occur, Appellate Court confined to reviewing only those issues which had been brought to attention of habeas court in petition for certification to appeal), cert. denied, 327 Conn. 984, 175 A.3d 43 (2017); Ouellette v. Commissioner of Correction, 159 Conn. App. 854, 858 n.2, 123 A.3d 1256 (2015) (use of broad language in petition for certification to appeal does not serve as basis for this court to consider claims not raised specifically in petition), cert. denied, 320 Conn. 907, 128 A.3d 952 (2015); Campbell v. Commissioner of Correction, 132 Conn. App. 263, 267, 31 A.3d 1182 (2011) (consideration of issues not distinctly raised in petition for certification would amount to ambuscade of habeas judge).” (Citations omitted; internal quotation marks omitted.) Coleman v. Commissioner of Correction, supra, 202 Conn. App. 569-70. It is axiomatic that we cannot determine whether the court abused its discretion in denying certification on an issue that was never raised in the petition for certification. Therefore, we decline to review the petitioner‘s evidentiary claim because it was not specifically raised in his petition for certification.
B
The petitioner also argues that the court deprived him of a meaningful opportunity to investigate newly discovered evidence regarding the alleged plea offer made by the state. This claim is outside the scope of appellate review.
The petitioner did not raise this issue at any time before the habeas court. He did not request additional time from the court in which to conduct an investigation, either by way of motion prior to the show cause hearing or verbally during the show cause hearing. Moreover, the petitioner did not include this ground in his petition for certification to appeal. The petitioner seeks review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). ”
The appeal is dismissed.
In this opinion the other judges concurred.