Finney v. Commissioner of Correction ( 2021 )

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KIMBERLY N. FINNEY v. COMMISSIONER
OF CORRECTION
(AC 43105)
Bright, C. J., and Prescott and Alexander, Js.
Syllabus
The petitioner, who had been convicted in 2008, on a guilty plea, of the
crime of kidnapping in the second degree, sought a writ of habeas corpus,
claiming that his trial counsel had provided ineffective assistance. As
relief, the petitioner requested that the habeas court allow him to with-
draw his guilty plea. The respondent Commissioner of Correction filed
a request for an order to show cause why the petition should be permitted
to proceed. Following a hearing, the habeas court determined that the
petition, which was filed in 2018, was timely filed within the limitation
period set forth in the applicable statute (§ 52-470 (c)) because it was
filed within five years of the disposition in 2016 of the petitioner’s most
recent violation of the probationary portion of his sentence on the 2008
conviction. The habeas court then, on its own motion, dismissed the
petition pursuant to the relevant rule of practice (§ 23-29 (2)) on the
ground that the petition failed to state a claim on which habeas corpus
relief could be granted. Thereafter, on the granting of certification, the
petitioner appealed to this court. Held:
1. The habeas court improperly dismissed the habeas petition pursuant to
Practice Book § 23-29 (2), the petition having stated a claim on which
habeas relief could be granted; the petition raised allegations of ineffec-
tive assistance of counsel that, when viewed in the light most favorable
to the petitioner, implicitly challenged whether the petitioner knowingly
and voluntarily entered the guilty plea, which states a cognizable claim
for habeas relief.
2. The habeas court improperly determined that the habeas petition was
timely filed within the limitation period set forth in § 52-470 (c); this
court disagreed with the habeas court’s construction of § 52-470 (c), as
the timeliness of a petition under the statute is evaluated on the basis
of when the judgment of conviction, not the sentence imposed for
that conviction, is final, and any disposition following a violation of a
probationary portion of a sentence cannot, as a matter of law, toll or
restart the limitation period for filing a petition challenging the convic-
tion; moreover, although the habeas petition was not timely, it having
been filed six months beyond the limitation period, because the issue
of whether the petitioner can establish good cause for the delay in filing
his petition was not determined by the habeas court, the case was
remanded to that court for further proceedings on that issue in accor-
dance with § 52-470 (e).
Argued January 14—officially released August 31, 2021
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, from which the petitioner, on the granting
of certification, appealed to this court. Reversed; fur-
ther proceedings.
Naomi T. Fetterman, for the appellant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Joseph T. Corradino,
state’s attorney, and Emily Trudeau, assistant state’s
attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Kimberly N. Finney,
appeals, following the granting of his petition for certifi-
cation to appeal, from the judgment of the habeas court
dismissing his petition for a writ of habeas corpus. The
petitioner claims that the court improperly dismissed
his habeas petition pursuant to Practice Book § 23-29
(2) on the ground that the petition failed to state a
claim on which habeas relief could be granted.1 The
respondent, the Commissioner of Correction, both
refutes the petitioner’s claim and raises as an alternative
ground for affirmance that, even if the petition raises
a cognizable claim for habeas relief, the court should
have dismissed the petition as untimely filed in accor-
dance with General Statutes § 52-470.2 We agree with
the petitioner that the habeas court improperly dis-
missed the petition pursuant to Practice Book § 23-29
(2). We also agree that, in resolving the court’s order
to show cause why the petition should be permitted to
proceed in accordance with § 52-470, the habeas court
improperly determined that the petition was filed within
the prescribed statutory time limit. Accordingly, we
reverse the judgment of the habeas court and remand
the case with direction (1) to deny the court’s own
motion to dismiss and (2) to conduct a new hearing to
determine, in accordance with § 52-470 (e), whether the
petitioner can demonstrate good cause for the delay in
filing the petition and, if not, to dismiss the petition on
that basis.3
The record reveals the following undisputed facts
and procedural history. The petitioner pleaded guilty
on May 21, 2008, to one count of kidnapping in the
second degree in violation of General Statutes § 53a-
94. He was sentenced on September 5, 2008, to a term
of twenty years of incarceration, execution suspended
after five years, followed by five years of probation.
The petitioner violated the terms of his probation on
at least two occasions. On December 22, 2016, following
the petitioner’s admission to a third violation of proba-
tion, the petitioner was sentenced to a term of twelve
years of incarceration, execution suspended after six
years, followed by two years of probation.
On April 2, 2018, the petitioner, acting as a self-repre-
sented party, filed a petition for a writ of habeas corpus
directed at his 2008 conviction.4 In the petition, he
alleged that he improperly was convicted in 2008
because his trial counsel had provided him with consti-
tutionally ineffective assistance. The petitioner
attached to the petition form a single page that con-
tained more detailed allegations in support of his inef-
fective assistance of counsel claim.5 By way of relief,
the petitioner sought to have the court allow him to
withdraw his guilty plea. Accompanying the petition
was a request for the appointment of counsel and an
application for a waiver of fees.6
On August 9, 2018, the respondent filed a motion for
an order to show cause why the petition should be
permitted to proceed because it was filed outside of
the applicable five year limitation period set forth in
§ 52-470 (c). On September 4, 2018, the habeas court
ordered that the motion ‘‘be set down for a hearing,’’
which was subsequently scheduled for October 26,
2018.7
On September 20, 2018, the petitioner filed a notice
of intent to file an amended habeas petition. The peti-
tioner’s counsel indicated to the court that transcripts
of prior proceedings, including ‘‘the underlying plea
transcripts,’’ were necessary to the drafting of an
amended petition but had not yet been received. On
October 25, 2018, the petitioner sought the court’s per-
mission to file a ‘‘delayed’’ response to the respondent’s
motion for order to show cause. The court granted
permission and accepted the response as submitted. In
that response, the petitioner argued that the petition
was timely filed under § 52-470 (c) because the opera-
tive date for calculating the filing deadline was not the
date his original judgment of conviction became final.
Rather, he argued, ‘‘due to the fact that his sentence
was reopened and modified in his violation of probation
proceeding, which was decided on December 22, 2016,
the date of that ruling serves as the time at which his
conviction became final.’’ In the alternative, he argued
that, even if his petition was untimely, he had ‘‘substan-
tial’’ good cause for any delay.8
At the October 26, 2018 hearing, the habeas court,
Newson, J., informed the parties that it intended ‘‘to
raise a couple of issues’’ pursuant to its authority under
Practice Book § 23-29. After hearing some initial argu-
ments by counsel, the court indicated that it intended
to issue a written order requesting additional briefing
on several of the issues raised at the hearing. The court
subsequently issued its written order giving the parties
until January 4, 2019, to file briefs addressing several
issues, of which the following are relevant to the present
appeal: (1) ‘‘Whether the petition should be dismissed
for failing to state a claim upon which habeas relief can
be granted because the petitioner’s guilty plea waived
collateral attacks on his conviction that do not go to
the voluntary, knowing and intelligent nature of the
plea, and this petition fails to make such a claim and/
or alternatively asserts claims that are considered to
have been waived as a result of his guilty plea?’’ And
(2) ‘‘Where a sentence imposed on a petitioner includes
a period of probation and the petitioner has subse-
quently been found in violation of that probation: (a)
Must a petition for a writ of habeas corpus attack the
proceedings and representation relating to the most
recent violation of probation disposition OR those
related to the original sentencing OR can the petitioner
choose to attack any of the proceedings from the origi-
nal conviction to the most recent violation of probation
disposition? (b) For purposes of calculating the time
period(s) under . . . § 52-470 (c), does the date of the
original sentencing OR the date of the most recent viola-
tion of probation sentencing control?’’
Each party filed a timely, responsive brief. The
respondent took the position that none of the allega-
tions in the petition expressly was directed to the volun-
tariness of the petitioner’s 2008 plea, and, therefore,
the petition should be dismissed for failure to state a
claim on which relief could be granted. The respondent
conceded that a petitioner who is reincarcerated follow-
ing a violation of probation properly may attack his
initial conviction and/or the violation of probation.
According to the respondent, however, if a petitioner
chooses to attack only the initial conviction, the calcula-
tion of the limitation period set forth in § 52-470 (c)
begins from the date that the initial conviction is
deemed final.
The petitioner argued in his brief, inter alia, that his
petition, if properly construed, stated a claim for habeas
relief because it challenged the validity of his guilty
plea. The petitioner clarified that his petition challenged
the underlying 2008 criminal conviction rather than the
most recent violation of probation proceedings but, nev-
ertheless, argued that a determination of the date on
which that underlying conviction became final for pur-
poses of § 52-470 (c) ‘‘must be made based on the date
by which the sentence was reopened and imposed last.’’
In other words, the petitioner claimed that his habeas
petition was not ‘‘delayed’’ within the meaning of § 52-
470 (c), if measured from the disposition date for his
latest violation of probation.
On April 15, 2019, the habeas court issued a memoran-
dum of decision resolving both the order to show cause
issued pursuant to § 52-470 and the court’s own motion
to dismiss raised pursuant to Practice Book § 23-29.
The court first analyzed whether it was legally required
to give the petitioner’s appointed habeas counsel time
to review and revise the petition before addressing its
legal sufficiency. The court determined that it was not
and turned next to the issue of when the judgment of
conviction is deemed to be final for purposes of § 52-
470 (c). The court determined that, although the original
sentence was imposed in 2008, the change in disposition
following the revocation of probation meant that the
petition was timely for purposes of § 52-470 (c) because
‘‘it was filed within five years of the most recent viola-
tion of probation disposition.’’9 Finally, turning to its
own motion to dismiss the petition pursuant to Practice
Book § 23-29 (2), the court concluded that the petitioner
had waived all of the specific allegations of ineffective
assistance of counsel set forth in the petition by virtue
of his decision to enter a guilty plea and that none of
those allegations ‘‘could be said to reasonably allege
that counsel provided ineffective assistance with
respect to the entry of the plea, or which attacks the
voluntary, intelligent and knowing character of the
plea.’’ Because the petition also failed to raise any chal-
lenge to counsel’s performance with respect to the most
recent violation of probation disposition, the court con-
cluded that ‘‘the petition fails to state a claim upon
which relief can be granted.’’ Accordingly, the court
dismissed the petition. Following the court’s subse-
quent granting of certification to appeal, this appeal
followed.
I
We begin with the petitioner’s claim that the habeas
court improperly dismissed his habeas petition pursu-
ant to Practice Book § 23-29 (2), because, if properly
construed in the light most favorable to him, the allega-
tions in the petition state a claim on which habeas relief
could be granted. We agree.
‘‘Whether a habeas court properly dismissed a peti-
tion pursuant to Practice Book § 23-29 (2), on the
ground that it fails to state a claim upon which habeas
corpus relief can be granted, presents a question of law
over which our review is plenary.’’ (Internal quotation
marks omitted.) Kaddah v. Commissioner of Correc-
tion, 324 Conn. 548, 559, 153 A.3d 1233 (2017). It is well
settled that a 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
purpose of the [petition] is to put the [respondent] on
notice of the claims made, to limit the issues to be
decided, and to prevent surprise.’’ (Internal quotation
marks omitted.) Nelson v. Commissioner of Correction,
326 Conn. 772, 780, 167 A.3d 952 (2017). Thus, as it
would do in evaluating the allegations in a civil com-
plaint, in evaluating the legal sufficiency of allegations
in a habeas petition, a court must view the allegations
in the light most favorable to the petitioner, which
includes all facts necessarily implied from the allega-
tions. See Noble v. Marshall, 23 Conn. App. 227, 229,
579 A.2d 594 (1990).10
It is a well settled proposition that ‘‘a guilty plea
waives any nonjurisdictional defects that occurred prior
to the entry of the plea, including any alleged constitu-
tional deprivations.’’ Mincewicz v. Commissioner of
Correction, 162 Conn. App. 109, 112, 129 A.3d 791(2015). ‘‘The focus of a habeas inquiry where there has
been a guilty plea is the nature of the advice of counsel
and the voluntariness of the plea, not the existence of
a purported antecedent constitutional infirmity. . . .
[A] guilty plea represents a break in the chain of events
[that] has preceded it in the criminal process. [If] a
criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea. He may
only attack the voluntary and intelligent character of
the guilty plea by showing that the advice he received
from counsel was not within [constitutionally accept-
able] standards . . . . The plaintiff must, moreover,
demonstrate that there was such an interrelationship
between the ineffective assistance of counsel and the
guilty plea that it can be said that the plea was not
voluntary and intelligent because of the ineffective
assistance.’’ (Citations omitted; internal quotation
marks omitted.) Buckley v. Warden, 177 Conn. 538,
542–43, 418 A.2d 913 (1979); see also Dukes v. Warden,
161 Conn. 337, 344, 288 A.2d 58 (1971) (‘‘an allegation
of the ineffective assistance of counsel is a factor to
be taken into consideration in determining whether a
guilty plea was voluntary and intelligent’’), aff’d, 406
U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45 (1972).
Here, although we agree with the habeas court’s
assessment that the petition fails to connect expressly
the asserted allegations of ineffective assistance of
counsel directly to whether the petitioner’s decision
to enter a guilty plea was knowing and voluntary, we
nevertheless conclude, on the basis of our plenary
review, that it is reasonable to infer such an interrela-
tionship from the allegations. This is particularly true
given the early stage of the proceedings and the fact
that the petition was filed by a self-represented party.
See Gilchrist v. Commissioner of Correction, 334 Conn.
548, 560, 223 A.3d 368 (2020) (‘‘when a petitioner has
proceeded [as a self-represented party] . . . courts
should review habeas petitions with a lenient eye,
allowing borderline cases to proceed’’ (internal quota-
tion marks omitted)); Kaddah v. Commissioner of Cor-
rection, 299 Conn. 129, 140, 7 A.3d 911 (2010) (cau-
tioning that courts ‘‘should be solicitous to [self-
represented] petitioners and construe their pleadings
liberally in light of the limited legal knowledge they
possess’’). Significantly, the only relief that the peti-
tioner requests in his petition is an opportunity to with-
draw the guilty plea. That request for relief provides
additional support for construing the allegations of inef-
fective assistance of counsel in the petition as relating
to the petitioner’s decision to enter a guilty plea.
Although ultimately it may prove that the petitioner
is unable to produce evidence to support his allegations
of ineffective assistance or to demonstrate any causal
connection linking those allegations with his decision
to enter a guilty plea, such speculation cannot support
the granting of a motion to dismiss. In Mincewicz v.
Commissioner of Correction, supra, 162 Conn. App.
109, this court concluded that the habeas court, follow-
ing a trial, properly determined that the petitioner
waived his claim of ineffective assistance of counsel
because the record before the habeas court supported
its express factual finding ‘‘that counsel’s advice pre-
ceded and did not affect the petitioner’s decision to
plead guilty . . . .’’ Id., 114.
Similarly, in Henderson v. Commissioner of Correc-
tion, 181 Conn. App. 778, 795–96, 189 A.3d 135, cert.
denied, 329 Conn. 911, 186 A.3d 707 (2018), a case cited
and relied on by the respondent, this court concluded
that the habeas court did not abuse its discretion in
denying certification to appeal with respect to whether
the petitioner had waived several claims that the habeas
court had determined were unrelated to his guilty plea.
In addition, we rejected the petitioner’s request that we
‘‘interpret Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S.
Ct. 366, 88 L. Ed. 2d 203 (1985), such that it prohibits
the application of the waiver rule to claims of ineffective
assistance of counsel following an unconditional guilty
plea.’’ Henderson v. Commissioner of Correction,
supra, 798. We stated that ‘‘Hill defines a petitioner’s
burden of proof with respect to ineffective assistance
claims in the guilty plea context, thereby requiring a
petitioner to demonstrate that but for counsel’s errors,
he would not have entered the plea. . . . Hill is not
inconsistent with the application of the waiver rule,
nor do we interpret it to have undermined the rule’s
application in a case . . . in which the specific claims
of ineffectiveness are unrelated to the validity of the
unconditional guilty plea. . . . The touchstone of the
waiver inquiry is whether the claim implicates the
validity of the plea.’’ (Citation omitted; emphasis
added.) Id., 798–99. In Henderson, following a habeas
trial, the court made a factual finding that, despite alle-
gations of ineffective assistance of counsel, ‘‘the deci-
sion to accept the state’s plea offer and to plead guilty
was made solely by the petitioner.’’ Id., 799.
In the present case, unlike in Mincewicz and Hender-
son, the habeas court’s determination that the petitioner
waived his claim of ineffective assistance of counsel
because his allegations did not relate to the petitioner’s
decision to enter a guilty plea was premature. The court
reached this decision at the pleading stage, a time when
the allegations in the petition must be viewed in the
light most favorable to the petitioner, rather than after
a habeas trial or proceedings on a motion for summary
judgment at which the petitioner would have had some
opportunity to present evidence potentially linking his
allegations of ineffective assistance of counsel that pre-
date his decision to plead guilty with whether his deci-
sion to enter a guilty plea was knowingly and volunta-
rily made.
The allegations of ineffective assistance of counsel
in the present petition reasonably can be construed as
asserting—not expressly, but by implication—that the
petitioner’s decision to plead guilty was not knowingly
made because his trial counsel had failed to investigate
his case properly, to review the evidence against him
or to consider whether a viable trial strategy existed.11
In other words, the allegations, read in the light most
favorable to the petitioner as is required at the pleading
stage, suggest that counsel failed to prepare the case
adequately so that the petitioner could have sufficient
knowledge of the strength of the case and could make
an informed decision as to whether to plead guilty. If
proven, the petitioner could be permitted to withdraw
the guilty plea, which is the only relief requested in the
petition. In short, read in the context of the petition as
a whole, including the relief requested, we conclude
that the petitioner has raised allegations that implicitly
challenge whether he knowingly and voluntarily
entered a guilty plea, which states a cognizable claim for
habeas relief. Accordingly, the habeas court improperly
granted its own motion to dismiss.
Our conclusion that the habeas court improperly dis-
missed the petition pursuant to Practice Book § 23-29
(2) does not, however, end our inquiry. Rather we must
next consider, as argued by the respondent, whether
the court improperly determined, with respect to its
order to show cause, that the petition was timely filed
in accordance with § 52-470 (c) and, thus, whether the
petition should have been dismissed for unreason-
able delay.12
II
The respondent claims that, even if the habeas court
improperly dismissed the habeas petition pursuant to
Practice Book § 23-29 (2), the court’s judgment of dis-
missal may be affirmed, albeit on a different basis,
because the habeas court improperly determined that
the petition was filed within the limitation period set
forth in § 52-470 (c). The petitioner responds that the
habeas court properly interpreted the limitation period
in § 52-470 (c) as having restarted when the petitioner
was found in violation of probation and received a new
disposition regarding sentencing. Although, for the rea-
sons that follow, we agree with the respondent that the
court should have found that the petition was not timely
filed, whether the petitioner can establish good cause
for the delay in filing it remains to be determined.
Accordingly, we remand the case to the habeas court
for further proceedings on whether the petitioner can
establish good cause in accordance with § 52-470 (e).13
Whether a petitioner filed a petition for a writ of
habeas corpus within the applicable limitation period
set forth in § 52-470 is a factual determination that we
ordinarily would review on appeal under the clearly
erroneous standard of review. To the extent, however,
that the court’s finding in the present case is made on
the basis of its interpretation of the relevant statute,
our review is plenary. See State v. Bemer, Conn. ,
, A.3d (2021) (‘‘[b]ecause issues of statutory
construction raise questions of law, they are subject to
plenary review on appeal’’).
Section 52-470 (c), (d), and (e) collectively set forth
time limitations on a petitioner’s right to file a habeas
petition and address whether, if not timely filed, the
petitioner can establish good cause for any delay in
filing the petition. See Kelsey v. Commissioner of Cor-
rection, 329 Conn. 711, 719, 189 A.3d 578 (2018). Subsec-
tion (e) of § 52-470 provides in relevant part: ‘‘In a case
in which the rebuttable presumption of delay under
subsection (c) or (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 investi-
gate the basis for the delay and respond to the order.
If, after such opportunity, the court finds that the peti-
tioner has not demonstrated good cause for the delay,
the court shall dismiss the petition. . . .’’ As we pre-
viously have noted, subsection (d) of § 52-470 concerns
the timeliness of a ‘‘petition filed subsequent to a judg-
ment on a prior petition challenging the same convic-
tion’’ and, thus, is inapplicable to the present case. See
footnote 4 of this opinion.
The controlling provision with respect to the timeli-
ness of the present petition is found in subsection (c)
of § 52-470, which provides in relevant part: ‘‘[T]here
shall be a rebuttable presumption that the filing of a
petition challenging a judgment of conviction has been
delayed without good cause if such petition is filed after
the later of the following: (1) Five years after the date
on which the judgment of conviction is deemed to be
a final judgment due to the conclusion of appellate
review or the expiration of the time for seeking such
review; (2) October 1, 2017;14 or (3) two years after
the date on which the constitutional or statutory right
asserted in the petition was initially recognized and
made retroactive pursuant to a decision of the Supreme
Court or Appellate Court of this state or the Supreme
Court of the United States or by the enactment of any
public or special act. . . .’’ (Emphasis added.) Of the
enumerated subdivisions of subsection (c), only the
first two are potentially applicable with respect to the
present petition.
The present petition challenges only the judgment of
conviction rendered in 2008 following the petitioner’s
guilty plea to kidnapping in the second degree and asks
the habeas court to allow the petitioner to withdraw his
guilty plea. The petition raises no additional challenges
directed at the petitioner’s subsequent violation of pro-
bation proceedings or disposition. Ordinarily, a judg-
ment of conviction in a criminal matter becomes a final
judgment for purposes of appellate review once a sen-
tence is imposed. Practice Book § 61-6 (a) (1); State v.
Ayala, 222 Conn. 331, 339, 610 A.2d 1162 (1992). The
judgment of conviction in turn becomes final for pur-
poses of § 52-470 (c) (1) after the appeal period has
expired or, if an appeal is filed, upon a final disposition
of the appeal.
In the present case, the facts regarding the finality
of the 2008 judgment of conviction are not in dispute.
The petitioner was sentenced on the judgment of con-
viction on September 5, 2008. No appeal followed that
judgment. Therefore, in accordance with § 52-470 (c),
the time in which to file a timely habeas petition expired
on October 1, 2017, which was later than five years
after the judgment of conviction became final, which
would have been sometime in 2013. The present petition
was filed on April 2, 2018, or six months beyond the
limitation period. Nothing in the habeas court’s factual
recitation contradicts these calculations.
Nevertheless, the habeas court determined that the
present habeas petition was in fact timely filed. The
court reasoned that, although the only conviction chal-
lenged in the petition was imposed in 2008, the original
sentence imposed for that conviction ‘‘has been the
subject of two violation of probation proceedings, the
most recent of which was disposed of on December 22,
2016. The most recent disposition resulted in a period
of incarceration that remained in effect as of the date of
this hearing. The court finds that this petition survives
because it was filed within five years of the most recent
violation of probation disposition.’’ We disagree with
the habeas court’s construction of § 52-470 (c).
To properly interpret § 52-470 (c), we look to the text
of the statute, which is plain and unambiguous. See
General Statutes § 1-2z. The plain language of § 52-470
(c) creates a rebuttable presumption that a habeas peti-
tion has been unreasonably delayed and thus subject
to dismissal if it is filed more than five years after
‘‘the judgment of conviction is deemed to be a final
judgment’’ or after October 1, 2017, whichever date is
later. The statute, thus, provides a means by which to
determine easily a date from which to measure the
timeliness of a habeas petition challenging a conviction.
Section 52-470 contains no additional language pro-
viding for the tolling or restarting of the statute’s limita-
tion period if a petitioner is later found in violation
of probation and receives a disposition that includes
reinstating all or a portion of the unserved sentence.
If the legislature, in enacting comprehensive habeas
reform, had wanted to include such a provision, it
clearly was capable of doing so, as evidenced by subsec-
tion (f) of the statute, which expressly exempts from
the limitation period petitions asserting a claim of actual
innocence or challenging a condition of confinement.
General Statutes § 52-470 (f); see also Bloomfield v.
United Electrical Radio & Machine Workers of
America, Connecticut Independent Police Union,
Local 14, 285 Conn. 278, 289, 939 A.2d 561 (2008) (‘‘[I]t
is a principle of statutory construction that a court must
construe a statute as written. . . . Courts may not by
construction supply omissions . . . or add exceptions
merely because it appears that good reasons exist for
adding them. . . . The intent of the legislature . . . is
to be found not in what the legislature meant to say,
but in the meaning of what it did say. . . . It is axiom-
atic that the court itself cannot rewrite a statute to
accomplish a particular result. That is a function of the
legislature.’’ (Emphasis added; internal quotation marks
omitted.)). The habeas court cites to no existing statu-
tory language or case law interpreting § 52-470 that
would support its interpretation of § 52-470 (c).15
In violation of probation proceedings, the punish-
ment imposed on a criminal defendant, if any, ‘‘is attrib-
utable to the crime for which he [or she] was originally
convicted and sentenced. Thus, any sentence [the]
defendant had to serve as the result of the [probation]
violation . . . was punishment for the crime of which
he [or she] had originally been convicted. Revocation
is a continuing consequence of the original conviction
from which probation was granted.’’ (Emphasis added;
internal quotation marks omitted.) State v. Fagan, 280
Conn. 69, 107 n.24, 905 A.2d 1101 (2006), cert. denied,
549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).
In other words, any punishment imposed as a result
of a violation of probation flows directly from and is
attributable to the original judgment of conviction. It in
no way modifies the underlying judgment of conviction
itself and, thus, has no effect on the finality of the
judgment of conviction. Because the legislature, in
enacting habeas reform, has determined that the timeli-
ness of a petition is to be evaluated on the basis of
when the judgment of conviction, not the sentence
imposed for that conviction, is final, any violations of
the probationary portion of a sentence imposed follow-
ing a judgment of conviction cannot, as a matter of law,
restart the period of time for filing a habeas petition to
challenge that judgment. Because the petition in the
present case raises no cognizable challenge with
respect to the violation of probation proceeding itself,
we do not opine on whether such a challenge would
elicit a different result.
Although we have determined that the court improp-
erly found that the petition was timely filed in accor-
dance with § 52-470 (c), it nevertheless remains to be
determined whether, pursuant to § 52-470 (e), the peti-
tioner can demonstrate good cause for the delay in filing
the petition, an issue never considered or addressed by
the habeas court. Because ‘‘a habeas court’s determina-
tion of whether a petitioner has satisfied the good cause
standard in a particular case requires a weighing of the
various facts and circumstances offered to justify the
delay, including an evaluation of the credibility of any
witness testimony’’ or other evidence that may be
offered; Kelsey v. Commissioner of Correction, 202
Conn. App. 21, 35–36, 244 A.3d 171 (2020), cert. granted,
336 Conn. 941, 250 A.3d 41 (2021); it is appropriate to
remand the case to the habeas court for a new hearing
on whether the petitioner can demonstrate good cause
for the delay.
The judgment is reversed and the case is remanded
with direction to deny the habeas court’s motion to
dismiss and for further proceedings in accordance with
this opinion.
In this opinion the other judges concurred.
1
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion or upon motion of the respondent,
dismiss the petition, or any count thereof, if it determines that . . . (2) the
petition, or a count thereof, fails to state a claim upon which habeas corpus
relief can be granted . . . .’’
2
General Statutes § 52-470 provides in relevant part: ‘‘(c) . . . there shall
be a rebuttable presumption that the filing of a petition challenging a judg-
ment of conviction has been delayed without good cause if such petition
is filed after the later of the following: (1) Five years after the date on which
the judgment of conviction is deemed to be a final judgment due to the
conclusion of appellate review or the expiration of the time for seeking
such review; (2) October 1, 2017; or (3) two years after the date on which
the constitutional or statutory right asserted in the petition was initially
recognized and made retroactive pursuant to a decision of the Supreme
Court or Appellate Court of this state or the Supreme Court of the United
States or by the enactment of any public or special act. The time periods
set forth in this subsection shall not be tolled during the pendency of any
other petition challenging the same conviction. . . .
‘‘(e) In a case in which the rebuttable presumption of delay . . . 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. . . .’’
3
The petitioner also claims on appeal that the habeas court improperly
dismissed his habeas petition without allowing his court-appointed counsel
a reasonable opportunity to file an amended petition. Because we agree with
the petitioner that the petition, as filed, was legally sufficient to withstand
a motion to dismiss pursuant to Practice Book § 23-29 (2) and resolution
of the claim has no bearing on the habeas court’s consideration on remand
of whether good cause exists for the petitioner’s delay in filing the petition,
we do not reach this additional claim of error.
4
The petitioner previously had filed a petition for a writ of habeas corpus
in 2009 challenging his 2008 conviction but voluntarily withdrew that petition
in 2011. Subsection (d) of 52-470 provides that, ‘‘[f]or the purposes of this
section, the withdrawal of a prior petition challenging the same conviction
shall not constitute a judgment.’’ Accordingly, because the petitioner with-
drew this prior petition, it did not constitute ‘‘a judgment on a prior petition
challenging the same conviction,’’ and, therefore, the statutory time limits
set forth in subsection (c) of 52-470 apply in the present case rather than
the limitation period found in subsection (d), which only applies in a case
involving successive petitions. See General Statutes § 52-470 (d) (creating
‘‘rebuttable presumption that the filing of [a] subsequent petition has been
delayed without good cause if such petition is filed after the later of the
following: (1) Two years after the date on which the judgment in the prior
petition is deemed to be a final judgment due to the conclusion of appellate
review or the expiration of the time for seeking such review; (2) October
1, 2014; or (3) two years after the date on which the constitutional or
statutory right asserted in the petition was initially recognized and made
retroactive pursuant to a decision of the Supreme Court or Appellate Court
of this state or the Supreme Court of the United States or by the enactment
of any public or special act’’ (emphasis added)).
5
The attached document, captioned ‘‘Ineffective Counsel,’’ appears to be
incomplete. Nevertheless, the petitioner, in arguing to the habeas court that
the allegations in the petition were sufficient to survive a motion to dismiss,
relied on only the following paragraphs:
‘‘1. Counsel failed to do a thorough or adequate investigation of the case
and therefore was not adequately prepared for trial.
‘‘2. Counsel failed to adequately prepare the petitioner for trial in that he
only visited the petitioner one time the entire time he was his lawyer and
never discussed the defense strategy to be utilized at trial.
‘‘3. Counsel lied about speaking to multiple witness[es] in the [defense’s]
favor but had their names on the defense witness list as if he had spoken
with them about being witness[es].
‘‘4. Counsel failed to ask for continuance or to inform the judge that he
was not prepared for trial, but told the petitioner that he did and was told
he could not stop selection or the trial.
‘‘5. Counsel failed to suppress statement by the complainant . . . .
‘‘6. Counsel failed to obtain the single most important factor and informa-
tion that linked the petitioner to the crime. . . .
‘‘9. Counsel failed to provide information about DNA testing sent to [an]
independent tester to the petitioner which was requested by the petitioner.
‘‘10. Counsel failed to speak to alibi witness about alibi.’’
6
On April 6, 2018, a clerk of the court granted the fee waiver application.
An initial trial management and scheduling order was also issued by the
court. That order stated that a referral had been made to the Office of the
Chief Public Defender for an investigation of whether the petitioner was
indigent. The order also provided procedures and time limits for the filing
of an amended petition, if deemed necessary.
7
Initially, the habeas court, noting the outstanding referral to the Office
of the Chief Public Defender related to the appointment of counsel, ordered
that the respondent’s motion ‘‘cannot be scheduled for a hearing or acted
upon until counsel appears.’’ Counsel was thereafter appointed for the peti-
tioner on or about August 20, 2018. The court vacated its initial order and
rendered the modified September 4, 2018 order.
8
The petitioner argued that he had withdrawn a timely petition in 2011
after learning that his twelve year old son had been diagnosed with cancer.
According to the petitioner, the Department of Correction refused to allow
the incarcerated petitioner to have his bone marrow tested as a potential
donor for his son. His scheduled release date at that time was March 19,
2012, and his counsel advised him that, if he was successful regarding the
pending petition, which was scheduled for trial in December, 2011, his
release could be delayed because his plea would be vacated and he could
be held on bond until a new criminal trial could be conducted, and that he
could withdraw his petition and refile at a future date. The petitioner also
argued that his counsel had refused to provide him with copies of certain
legal documents in his file and that courts have concluded that lack of
access to legal records is sufficient to rebut a presumption of delay without
good cause. Finally, the petitioner argued that the death of his son in May,
2013, led to diminishing mental health and severe alcohol dependency that
prevented him from pursuing another petition.
9
The habeas court offered the following analysis to support its conclusion:
‘‘As the [respondent] concedes in its brief, a petitioner may at any time
attack an illegal sentence under [a] provision like Practice Book § 43-22.
That being the case, it would seem that a petitioner could attack either the
original conviction resulting in a probation sentence, or the most recent
disposition resulting in a revocation of that probation, because the disposi-
tion of a probation violation is considered a continuation of the original
sentencing proceeding. . . . Also, a petitioner gets the benefit of the latter
of the applicable limitation periods under § 52-470 (c) (1), (2) or (3) when
an order to show cause is requested. The most recent violation of probation
disposition on December 22, 2016, is well within the five year window
provided for in § 52-470 (c) (1). Therefore, the respondent’s order to show
cause is denied.’’ (Citation omitted; footnotes omitted; internal quotation
marks omitted.)
10
Whereas the legal sufficiency of pleadings in civil matters is tested by
way of a motion to strike, which permits an opportunity to replead; see
Practice Book § 10-44; legal sufficiency in a habeas action may be tested
by way of a motion to dismiss because a cognizable habeas claim is necessary
to invoke the jurisdiction of the habeas court. See Johnson v. Commissioner
of Correction, 258 Conn. 804, 815, 786 A.2d 1091 (2002) (‘‘[h]abeas corpus
provides a special and extraordinary legal remedy for illegal detention’’
(internal quotation marks omitted)); Dinham v. Commissioner of Correc-
tion, 191 Conn. App. 84, 89, 213 A.3d 507 (‘‘With respect to the habeas
court’s jurisdiction, [t]he scope of relief available through a petition for [a
writ of] habeas corpus is limited. In order to invoke the trial court’s subject
matter jurisdiction in a habeas action, a petitioner must allege that he is
illegally confined or has been deprived of his liberty. . . . In other words,
a petitioner must allege an interest sufficient to give rise to habeas relief.’’
(Internal quotation marks omitted.)), cert. denied, 333 Conn. 927, 217 A.3d
995 (2019). The petitioner’s lack of an opportunity to replead demonstrates
why it is important for habeas courts to construe the allegations in a habeas
petition in the light most favorable to upholding its legal sufficiency.
11
The habeas court summarized the allegations in the petition as follows:
‘‘[C]ounsel failed to conduct a thorough investigation, failed to suppress
statements, failed to obtain personnel information on detectives involved
in the case, failed to speak to an alibi witness, misrepresented information
on the record to the trial court, and placed a witness on the witness list
[who] counsel knew was not going to cooperate with the defense.’’
12
Although, pursuant to § 52-470 (g), any party who wants to obtain appel-
late review of a judgment rendered in a habeas action must petition the
habeas court for certification to appeal, the respondent was not aggrieved
by the court’s disposition of the order to show cause in light of the court’s
contemporaneous dismissal of the petition pursuant to its own Practice
Book § 23-29 motion to dismiss. Accordingly, the respondent arguably could
not have sought certification to file an appeal or cross appeal. Nevertheless,
we conclude that his claim is properly before us for review pursuant to
Practice Book § 63-4 (a) (1) (B), because the court’s decision with respect
to the order to show cause constituted an adverse ruling that only needed
to be considered in the event the petitioner prevailed with respect to his
appeal. We will consider the respondent’s claim despite his failure to raise
the issue properly by filing a preliminary statement of issues; see Practice
Book § 63-4 (a) (1); because the petitioner was able to respond to the claim
in his reply brief and thus was not prejudiced. See State v. Osuch, 124 Conn.
App. 572, 580–81, 5 A.3d 976, cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010).
13
The petitioner also argues that, even if the habeas court incorrectly
determined that the petition was timely filed, that error alone would be
insufficient to constitute an alternative basis for upholding the habeas court’s
dismissal of the petition because untimely petitions are not subject to dis-
missal as a matter of law but, rather, are subject to dismissal only if the
petitioner is unable to demonstrate good cause for the delay in filing the
petition, which is a factual finding that is absent from the record and cannot
be made by this court for the first time on appeal. As is apparent from our
disposition of the respondent’s claim, we agree with the petitioner that the
habeas court must make the good cause determination, and the petitioner
will be afforded an opportunity to demonstrate good cause on remand.
14
It can be inferred from the statutory scheme as a whole that the October
1, 2017 date was included by the legislature to ensure that any petitioner
whose judgment of conviction became final before the enactment of compre-
hensive habeas reform in 2012, which included the adoption of the limitation
periods now found in subsections (c) and (d) of § 52-470, would have at
least five years in which to initiate a habeas action.
15
We also agree with the respondent’s argument that the habeas court’s
interpretation of § 52-470 (c) would lead to absurd results. In his appellate
brief, the respondent provided the following example: ‘‘[A] petitioner who
was sentenced to serve a straight twenty year sentence would lose his right
to bring a habeas challenge to his conviction after five years, under the
statute. . . . [U]nder the habeas court’s interpretation, [however] a peti-
tioner who was sentenced to a twenty year sentence, suspended after ten
years, followed by ten years of probation, initially would lose his right to
challenge his conviction after the first five years of his sentence, but then
regain that right if he is found in violation of his probation at any point
during the second half of his sentence. In both instances, the prisoner is
still in prison, serving his twenty year sentence, when he files his habeas
petition, but the petitioner who was continuously imprisoned would have
lost [in the absence of good cause] his right to file a habeas challenge to
the original judgment of conviction while, in the habeas court’s view, the
petitioner who was released but engaged in further criminal conduct,
resulting in a probation revocation, would not have lost his right to file a
habeas challenge to the original judgment of conviction.’’ (Emphasis omit-
ted.) As the respondent correctly asserts, ‘‘[t]he legislature could not have
intended such disparate treatment, which essentially affords a windfall to
those who engage in misconduct [that] leads to a revocation of their proba-
tion.’’