Stenner v. Commissioner of Correction ( 2022 )

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JEFFREY STENNER v. COMMISSIONER
OF CORRECTION
(AC 42852)
ROFIO GREENFIELD v. COMMISSIONER
OF CORRECTION
(AC 43779)
Prescott, Cradle and Clark, Js.
Syllabus
The petitioners, S and G, both of whom had been convicted of murder, each
filed a successive habeas petition. Following a hearing to show cause
in each case, the habeas courts dismissed the petitions on the ground
that the petitioners filed them outside of the two year time limit for
successive petitions set forth by statute (§ 52-470 (d) and (e)) without
establishing good cause for their respective untimely filings. In S’s case,
the habeas court rejected S’s reliance on the fact that, several days
before his filing deadline, he sent an inquiry to the Division of Public
Defender Services seeking review of his case. In G’s case, the habeas
court rejected G’s argument that he was unaware of the two year limita-
tion set forth in § 52-470 (d). Specifically, G argued that the legislature
had enacted the amendment to § 52-470 (P.A. 12-115) establishing the
rebuttable presumption of unreasonable delay for habeas petitions filed
outside the two year limitation after the appeal of his prior habeas
petition had concluded, and his appellate counsel in that case, D, failed
to advise him of P.A. 12-115. On the granting of certification, the petition-
ers filed separate appeals to this court. Held:
1. The habeas court did not abuse its discretion in determining that S failed
to demonstrate good cause for the delay in filing his successive habeas
petition: although S attributed the delay in filing his petition to the time
needed by the public defender to investigate his case, S waited until
three days before the deadline for filing his successive petition to send
his inquiry, nothing in the record demonstrated that S could not have
contacted the public defender sooner or filed his own petition before
the deadline, and, even if the delay could be attributed to the public
defender, a petitioner must demonstrate that something outside of his
or his counsel’s control contributed to the delay; moreover, contrary to
S’s argument, his general inquiry with the public defender prior to the
filing deadline was insufficient to establish good cause under § 52-470
(d), which expressly requires the filing of the successive petition before
the deadline; furthermore, to the extent S argued that good cause existed
under § 52-470 (e) because his claims were based on newly discovered
evidence not reasonably available to him regarding the undue consider-
ation given to his codefendants in exchange for testifying against S, it
was undisputed that the allegedly new evidence, which consisted of
court records and transcripts from his codefendants’ dispositions, was
available prior to the conclusion of his first habeas proceeding, and the
record supported the habeas court’s finding that S was aware of the
relevant facts and circumstances that implicated the records at issue
when he filed an earlier habeas petition; accordingly, S did not demon-
strate that this evidence could not have been discovered and obtained
before the filing deadline by the exercise of due diligence or that this
evidence would have materially affected the merits of his case.
2. The habeas court did not abuse its discretion in determining that G failed
to demonstrate good cause for the delay in filing his successive habeas
petition: notwithstanding G’s argument that he established good cause
for his untimely filing because he was unaware of the two year filing
deadline, G presented no evidence to demonstrate how his delay in
filing his successive petition involved something outside of his or his
counsel’s control, as the habeas court found that neither D’s nor G’s
affidavit conclusively established, without corroborating evidence, that
D failed to advise G of the two year limitation, and those determinations
were not clearly erroneous; moreover, although a petitioner’s lack of
knowledge of a change in the law is relevant to establishing good cause
for an untimely filing, on the facts of the present case, G’s lack of
knowledge of P.A. 12-115, and D’s alleged failure to notify him of P.A.
12-115, were insufficient to demonstrate that the habeas court abused
its discretion in finding that good cause did not exist for the untimely
filing, especially when G did not argue that his ignorance of the law
was attributable to his conditions of confinement or other extenuating
circumstances pertaining to his incarceration.
Argued September 8—officially released November 22, 2022
Procedural History
Amended petition, in each case, for a writ of habeas
corpus, brought to the Superior Court in the judicial
district of Tolland, where, in the first case, the court,
Newson, J., rendered judgment dismissing the petition,
from which the petitioner, on the granting of certifica-
tion, appealed to this court; thereafter, in the second
case, the court, Chaplin, J., rendered judgment dismiss-
ing the petition, from which the petitioner, on the grant-
ing of certification, appealed to this court. Affirmed.
Vishal K. Garg, assigned counsel, for the appellant
in Docket No. AC 42852 (petitioner).
Robert O’Brien, assigned counsel, with whom, on the
brief, were Owen Firestone and Christopher Y. Duby,
assigned counsel, for the appellant in Docket No. AC
43779 (petitioner).
Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, were Brian W. Preleski, former
state’s attorney, Leah Hawley, former senior assistant
state’s attorney, and Tamara A. Grosso, former assis-
tant state’s attorney, for the appellee in Docket No. AC
42852 (respondent).
Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, were Patrick Griffin, chief state’s
attorney, and Adrienne Russo, assistant state’s attor-
ney, for the appellee in Docket No. AC 43779 (respon-
dent).
Opinion
CLARK, J. The petitioners, Jeffrey Stenner and Rofio
Greenfield, appeal following the granting of their peti-
tions for certification to appeal from the habeas courts’
dismissals of their respective petitions for a writ of
habeas corpus.1 On appeal, the petitioners claim that the
habeas courts erred in concluding that the petitioners
failed to establish ‘‘good cause’’ pursuant to General
Statutes § 52-470 (d) and (e) to overcome the rebuttable
presumption of unreasonable delay stemming from the
untimely filing of their respective habeas petitions. We
disagree and, accordingly, affirm the judgments of the
habeas courts.2
We begin our discussion by setting forth the applica-
ble standard of review and legal principles that govern
these appeals. ‘‘[A] habeas court’s determination of
whether a petitioner has satisfied the good cause stan-
dard under § 52-470 (d) and (e) is reviewed on appeal
for abuse of discretion.’’ Kelsey v. Commissioner of
Correction, 343 Conn. 424, 432, 274 A.3d 85 (2022).3
‘‘Thus, [w]e will make every reasonable presumption
in favor of upholding the trial court’s ruling[s] . . . .
In determining whether there has been an abuse of
discretion, the ultimate issue is whether the court . . .
reasonably [could have] conclude[d] as it did.’’ (Internal
quotation marks omitted.) Id., 440.
Section 52-470 (d) provides in relevant part: ‘‘In the
case of a petition filed subsequent to a judgment on a
prior petition challenging the same conviction, there
shall be a rebuttable presumption that the filing of the
subsequent petition has been delayed without good
cause if such petition is filed after the later of the follow-
ing: (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 expira-
tion 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. . . .’’
Section 52-470 (e) provides in relevant part that, ‘‘[i]f
. . . the court finds that the petitioner has not demon-
strated good cause for the delay, the court shall dismiss
the petition. . . .’’
In order for a petitioner to establish ‘‘good cause’’
sufficient to rebut the presumption of unreasonable
delay under § 52-470 (d), ‘‘a petitioner generally will be
required to demonstrate that something outside of the
control of the petitioner or habeas counsel caused or
contributed to the delay.’’ (Internal quotation marks
omitted.) Kelsey v. Commissioner of Correction, supra,
343 Conn. 442. In determining whether a petitioner has
satisfied the ‘‘good cause’’ requirement, our courts may
look to several nonexhaustive factors. They include
‘‘(1) whether external forces outside the control of the
petitioner had any bearing on the delay; (2) whether
and to what extent the petitioner or his counsel bears
any personal responsibility 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.’’ (Internal
quotation marks omitted.) Coney v. Commissioner of
Correction, 215 Conn. App. 99, 108, 281 A.3d 461 (2022),
quoting Kelsey v. Commissioner of Correction, supra,
442. A habeas court ‘‘may also include in its good cause
analysis whether a petition is wholly frivolous on its
face,’’ as ‘‘[i]t is consistent with the legislative intent of
§ 52-470 that the good cause determination can be, in
part, guided by the merits of the petition.’’ Kelsey v.
Commissioner of Correction, supra, 444 n.9. ‘‘No single
factor necessarily will be dispositive, and the court
should evaluate all relevant factors in light of the totality
of the facts and circumstances presented.’’ (Internal
quotation marks omitted.) Id., 438. With these legal
principles in mind, we turn to our application of them
to the facts of the petitioners’ individual appeals.
I
JEFFREY STENNER
In 2003, Jeffrey Stenner was convicted of murder and
later sentenced to sixty years of incarceration. See State
v. Stenner, 281 Conn. 742, 745 and n.4, 917 A.2d 28,
cert. denied, 552 U.S. 883, 128 S. Ct. 290, 169 L. Ed. 2d
139 (2007). He appealed to our Supreme Court, which
affirmed his conviction. Id., 767.
On July 27, 2006, Stenner filed his first petition for
a writ of habeas corpus, which was denied by the habeas
court following a trial. Stenner v. Warden, Docket No.
CV-XX-XXXXXXX, 2011 WL 6270076, *8 (Conn. Super.
November 22, 2011). Stenner appealed to this court,
which dismissed the appeal. Stenner v. Commissioner
of Correction, 144 Conn. App. 371, 372–73, 71 A.3d 693,
cert. denied, 310 Conn. 918, 76 A.3d 633 (2013). Stenner
then filed a petition for certification for appeal with
our Supreme Court, which was denied on October 2,
2013. Stenner v. Commissioner of Correction, 310
Conn. 918, 76 A.3d 633 (2013).
On March 16, 2017, approximately three and one-half
years after the conclusion of appellate review of his
prior habeas action, Stenner filed the instant petition
for a writ of habeas corpus, which asserted six claims.
On March 22, 2017, the respondent, the Commissioner
of Correction, filed a request for an order to show cause,
arguing that Stenner’s petition should be dismissed pur-
suant to § 52-470 (d) because it was not filed within
two years of our Supreme Court’s decision denying
certification for review of the denial of his first habeas
petition. Stenner filed an objection to that request. On
June 1, 2017, the habeas court denied the respondent’s
request for an order to show cause, concluding that it
was premature because the pleadings had yet to close.4
On July 11, 2018, Stenner filed an amended petition,
which added a constitutional confrontation claim and
removed the actual innocence claim that he initially
brought. On November 6, 2018, the respondent
reclaimed his original motion for an order to show
cause, and a hearing was held on December 10, 2018.
By memorandum of decision dated January 29, 2019,
the habeas court dismissed Stenner’s petition, conclud-
ing that, pursuant to § 52-470, Stenner’s filing delay ‘‘was
without good cause.’’ In reaching that conclusion, the
habeas court explained that ‘‘the final judgment on
[Stenner’s] case would have been when his petition for
certification to [our] Supreme Court was denied on
October 2, 2013.’’ Therefore, in accordance with § 52-
470 (d) (1), ‘‘any subsequent petition should have . . .
been filed [no] later than October 2, 2015.’’ In determin-
ing whether good cause existed, the habeas court found
that, ‘‘[o]n approximately October 2, 2015, the Division
of Public Defender Services Post Conviction Unit/Inno-
cence Project (hereinafter, ‘Innocence Project’)
received a standard inquiry from [Stenner] by way of
a form they maintain on their website.5 Upon reviewing
the information submitted by [Stenner], Ian Dodds,
Innocence Project case analyst, sent [Stenner] back a
more detailed questionnaire asking for additional infor-
mation, which he testified was returned in a timely
manner, although no date was given. Immediately upon
reviewing the information returned by [Stenner] . . .
Dodds indicated it was apparent that the Innocence
Project had a conflict of interest, because an attorney
who formerly represented one of [Stenner’s] codefen-
dants was now employed as an Innocence Project staff
attorney. On January 8, 2016, he elevated the case to
Attorney Darcy McGraw, Director of the Innocence
Project, notifying her of the conflict of interest. . . .
McGraw testified that she sought approval from the
Office of the Chief Public Defender for permission to
assign the file to outside counsel for investigation. While
no testimony was provided as to what occurred in the
interim . . . McGraw received approval to assign the
matter to outside counsel on May 19, 2016, at which
time notification of assignment was forwarded to the
Kirschbaum Law Firm. Following an investigation of
the facts and circumstances of [Stenner’s] case, the
Kirschbaum Law Firm filed the petition commencing
the present [case].’’ (Footnote in original.)
In addressing whether there was good cause for Sten-
ner’s untimely filing, the habeas court observed that
Stenner ‘‘argues generally that the fact that he sought
review of his matter by filing an inquiry with the Inno-
cence Project should constitute ‘good cause’ for the
delay in filing. [Stenner] claims that the assistance of
counsel was necessary to uncover new evidence that
could not have otherwise been discovered by [him] in
the exercise of due diligence when he was self-repre-
sented. Specifically, [Stenner] asserts that the informa-
tion necessary to support his claim that the state
improperly withheld or misrepresented the benefits
given to codefendants . . . could not have been dis-
covered without counsel.’’ The habeas court rejected
Stenner’s arguments, concluding that ‘‘the delay was
without ‘good cause,’ because the record reveals that,
not only was the information regarding the codefen-
dants’ actual plea deals with the state discoverable by
the exercise of due diligence through court records
available as far back as 2004, [Stenner] actually pos-
sessed the information not later than August 12, 2011.
Since [Stenner] was fully aware, at a minimum, of how
to commence a habeas action and get counsel appointed
to represent his interests [as evidenced by the filing of
his first petition], his delay in waiting until just days
before the two year period ran to reach out to counsel
was also without good cause.6 That delay, resulted in
prohibiting any counsel from beginning an investigation
into the circumstances of [Stenner’s] case until on or
after the two year window expired on October 2, 2015.
. . . This delay, which was . . . without good cause
and solely within [Stenner’s] control, made it impossible
for counsel to file a petition within the statutory period.’’
(Citation omitted; footnote added.) Accordingly, the
habeas court dismissed Stenner’s petition. This appeal
followed.
On appeal, Stenner argues that he established good
cause for his late filing because he demonstrated that
he contacted the Innocence Project prior to the expira-
tion of the two year period. In his view, both the Inno-
cence Project and outside counsel were the cause of
the delay because they needed time to investigate his
claims prior to filing a habeas petition on his behalf.
We disagree. Although Stenner attributes the delay in
filing to the Innocence Project and to outside counsel,
it was Stenner who waited until three days prior to the
deadline to send a general inquiry to the Innocence
Project. There is nothing in the record demonstrating
that Stenner could not have contacted the Innocence
Project sooner or filed his own petition prior to the
deadline. Moreover, even if any delay can be attributed
to the Innocence Project or to outside counsel, in order
to establish good cause to rebut the presumption of
unreasonable delay, ‘‘a petitioner generally will be
required to demonstrate that something outside of the
control of the petitioner or habeas counsel caused or
contributed to the delay.’’ (Emphasis added; internal
quotation marks omitted.) Kelsey v. Commissioner of
Correction, supra, 343 Conn. 442.
In a similar vein, Stenner argues that good cause
existed simply because he submitted a general inquiry
to the Innocence Project before the expiration of the
deadline. Section 52-470 (d), however, does not speak
in terms of sending a general inquiry to prospective
counsel prior to the relevant deadline; it requires that
a petition be filed by the pertinent deadline. See General
Statutes § 52-470 (d) (‘‘there shall be a rebuttable pre-
sumption that the filing of the 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’’ (emphasis added)). To adopt
Stenner’s argument essentially would render the time
limitation in the statute a nullity by allowing petitioners
to unilaterally extend their filing deadline simply by
exploring potential representation on the eve of the
deadline. This would undermine the law’s purpose of
screening out meritless and untimely petitions in an
expeditious manner. See Kelsey v. Commissioner of
Correction, 329 Conn. 711, 724, 189 A.3d 578 (2018)
(‘‘[o]ur conclusion . . . is consistent with the purpose
underlying [Public Acts 2012, No. 12-115, § 1 (P.A. 12-
115)]—to screen out meritless and untimely petitions
in an expeditious manner’’).
Finally, § 52-470 (e) provides in relevant part: ‘‘[g]ood
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 require-
ments of subsection (c) or (d) of this section.’’ Stenner
contends that he established good cause for his late
filing because the claims in his petition were based on
newly discovered evidence not reasonably available to
him. We disagree.
Stenner’s operative petition centers on allegations
that the state improperly withheld or misrepresented
the substance of the consideration that was going to
be given to his codefendants in exchange for testifying
against him at his trial. He suggests that these claims
are supported by records and transcripts from 2003 and
2004 from his codefendants’ dispositions, which were
obtained by Attorney Michael Brown, an attorney at
the Kirschbaum Law Group assigned to Stenner’s case,
while he was investigating Stenner’s case prior to filing
the instant habeas action. In Stenner’s view, this evi-
dence is ‘‘new evidence’’ sufficient to constitute good
cause under the statute because he speculates that he
could not have obtained those court records and tran-
scripts himself between the conclusion of appellate
review of his prior habeas corpus proceeding and the
deadline to file his next petition because he was not
involved in pending litigation in order to avail himself
of a fee waiver to obtain those records. We are not
persuaded.
First, it is undisputed that the records and transcripts
that Stenner now claims are ‘‘new evidence’’ were avail-
able in or around 2004, many years prior to the conclu-
sion of his first habeas proceeding. Second, the record
fully supports the habeas court’s finding that Stenner
was aware of the relevant facts and circumstances that
implicate these records at least as far back as 2011, as
evidenced by a prior claim he brought in an earlier
habeas petition. Indeed, in a prior petition, Stenner
alleged that the state failed to disclose impeachment
evidence by failing to disclose that the codefendants’
cases were being resolved favorably in exchange for
testimony against him. See Stenner v. Warden, supra,
2011 WL 6270076, *3 and n.2. Although Stenner argues
that these court records were not reasonably dis-
coverable to him because he was not involved in pend-
ing litigation after the conclusion of appellate review
of his prior habeas corpus action, which he claims is
the only way he could avail himself of a fee waiver to
obtain the records, this contention is not supported by
anything in the record. Stenner did not offer any evi-
dence that he, in fact, tried to obtain these court records
but was unsuccessful. This claim also ignores the fact
that Stenner could have filed his own petition—as he
had done previously—prior to the filing deadline, which
would have resulted in meeting the statutory deadline
and the appointment of counsel. Importantly, as pre-
viously discussed in this opinion, he also could have
contacted the Innocence Project or other counsel ear-
lier than he did. Simply put, the record reflects that
Stenner in fact had this information as early as 2011.
Stenner did not sufficiently demonstrate that this evi-
dence could not have been discovered and obtained
before the filing deadline by the exercise of due dili-
gence. Last, even if he had demonstrated that this evi-
dence could not have been discovered by the exercise
of due diligence in time to meet the deadline, Stenner
produced no evidence that this ‘‘new evidence’’ would
have materially affected the merits of his case, as § 52-
470 (e) requires.
On the basis of our review of the record in this case
and guided by the relevant factors set forth in Kelsey
v. Commissioner of Correction, supra, 343 Conn. 439,
we conclude that the habeas court did not abuse its
discretion in determining that Stenner failed to demon-
strate good cause for the delay in filing his second
petition for a writ of habeas corpus.
II
ROFIO GREENFIELD
In 1990, a jury found Rofio Greenfield guilty of murder
in violation of General Statutes § 53a-54a (a). State v.
Greenfield, 228 Conn. 62, 63–64, 634 A.2d 879 (1993).
He was sentenced to a term of imprisonment of forty-
five years. Id., 64. Greenfield’s conviction was affirmed
by our Supreme Court in 1993. Id.
Following his conviction, Greenfield filed a host of
habeas actions. Relevant to this appeal, Greenfield filed
his fourth habeas action in 2005. The petitioner
amended this petition in 2009, claiming ineffective assis-
tance of counsel and actual innocence. See Greenfield
v. Warden, Docket No. CV-XX-XXXXXXX, 2010 WL 936894,
*1 (Conn. Super. February 9, 2010). On February 9,
2010, the habeas court dismissed Greenfield’s amended
petition as to his claims of ineffective assistance of
counsel on the basis that they were successive. Id., *3.
On June 3, 2010, the habeas court dismissed Green-
field’s claim of actual innocence on the basis that he
failed to establish a prima face claim. Greenfield v.
Warden, Docket No. CV-XX-XXXXXXX, 2010 WL 2817259,
*1 (Conn. Super. June 3, 2010). Greenfield appealed to
this court, which dismissed his appeal; Greenfield v.
Commissioner of Correction, 133 Conn. App. 904, 34
A.3d 481 (2012); and our Supreme Court denied certifi-
cation for appeal on March 7, 2012. Greenfield v. Com-
missioner of Correction, 304 Conn. 906, 38 A.3d 1201(2012).
In June, 2012, approximately three months after the
completion of Greenfield’s appeal in his fourth habeas
action, the legislature amended § 52-470. See P.A. 12-
115. The amendments to § 52-470, which took effect on
October 1, 2012, set filing deadlines for petitions for a
writ of habeas corpus and require courts to dismiss
petitions in cases in which a petitioner has not demon-
strated good cause for a delay in filing his or her petition.
See General Statutes § 52-470 (e) (‘‘[i]f . . . the court
finds that the petitioner has not demonstrated good
cause for the delay, the court shall dismiss the peti-
tion’’).
On May 9, 2016, Greenfield initiated the instant
habeas action. On July 30, 2019, and then again on
August 1, 2019, Greenfield filed an amended petition
alleging a violation of Brady v. Maryland, 373 U.S. 83,
87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), a due process
violation based on the state’s knowing presentation of
false testimony, and ineffective assistance of his three
prior habeas counsel and trial counsel.
On July 30, 2019, pursuant to § 52-470 (e), the respon-
dent filed a request for an order to show cause for
Greenfield’s delay in filing his habeas petition. In his
request, citing § 52-470 (d), the respondent claimed that
Greenfield’s petition was untimely and that, in order to
proceed, he was required to show good cause for his
delay in filing.
On September 20, 2019, the habeas court, Chaplin,
J., held a show cause hearing. Greenfield submitted an
affidavit sworn to by himself with numerous documents
appended to it and an affidavit sworn to by Attorney
Mark Diamond, the attorney who represented Green-
field on appeal from his fourth habeas action. On the
basis of this evidence, Greenfield argued, inter alia, that
he established good cause because his habeas counsel
and habeas appellate counsel failed to keep him
apprised of the status of his case and to inform him of
the new filing deadlines set forth in § 52-470. Greenfield
argued and attested that, if he had known about the
new law, he would have filed his petition sooner.
By memorandum of decision dated October 17, 2019,
the habeas court found that ‘‘the current petition was
filed more than four years after the dismissal of [Green-
field’s] prior habeas corpus petition was deemed to be
a final judgment due to the conclusion of appellate
review.’’ The habeas court found ‘‘Diamond’s affidavit
. . . inconclusive for the purpose of determining
whether . . . Diamond failed to advise [Greenfield] of
the statute of limitations that had not yet become the
law when [our] Supreme Court denied [Greenfield’s]
petition for certification to appeal his prior habeas peti-
tion. Furthermore, this court does not find [Green-
field’s] affidavit . . . persuasive as to prior appellate
habeas counsel’s failure to advise him of § 52-470 (d).
Even if the court did find his affidavit persuasive on
that point, [Greenfield’s] affidavit is insufficient without
corroborative evidence, of prior appellate habeas coun-
sel’s failure to advise [Greenfield] of § 52-470 (d), to
demonstrate good cause for filing the current petition
beyond the applicable statute of limitations. . . .
Therefore, the court finds that [Greenfield] has failed
to make a showing of good cause for filing the current
petition more than two years after March 7, 2012; or
after October 1, 2014.’’ (Citation omitted.) The habeas
court accordingly dismissed Greenfield’s petition. This
appeal followed.
As an initial matter, Greenfield does not dispute that
his fifth petition was presumptively untimely. Under
§ 52-470 (d), Greenfield had until October 1, 2014, to
file the instant habeas petition.7 He did not file his peti-
tion until May 9, 2016.
With respect to whether Greenfield established good
cause for this untimely filing, the habeas court found
that Diamond’s affidavit was inconclusive for purposes
of determining whether Diamond failed to advise Green-
field of the statute of limitations that had not yet become
the law when our Supreme Court denied Greenfield’s
petition for certification to appeal his prior habeas peti-
tion. Furthermore, the court found Greenfield’s affidavit
unpersuasive as to prior appellate habeas counsel’s fail-
ure to advise him of § 52-470 (d), especially without
any corroborative evidence. Although Greenfield takes
exception to the court’s findings as to the evidence he
introduced, we disagree with him that those determina-
tions were clearly erroneous. See State v. Garcia, 299
Conn. 39, 54, 7 A.3d 355 (2010) ([b]ecause it is the
trial court’s function to weigh the evidence and [to]
determine credibility, we give great deference to its
findings’’ (internal quotation marks omitted)).
Moreover, the habeas court ultimately concluded
that, even if it had found that Greenfield’s affidavit
was persuasive, there still was no good cause for his
untimely filing. We conclude that the habeas court did
not abuse its discretion in making this determination.
Greenfield argues that he established good cause by
proving that he was unaware of the deadline and that
the delay in filing was not caused by him but by his
prior counsel’s failure to inform him that P.A. 12-115 had
been enacted and would become effective on October
1, 2012. In support of this argument, he argues that his
appellate counsel for his fourth petition, Diamond, sent
him a letter on March 13, 2012, informing him that the
Supreme Court denied his petition for certification and
that Diamond would no longer be representing him. In
his view, because Diamond did not include information
in that letter informing him that there was pending
legislation at that time that could, if eventually passed,
affect his appeal timeline, there was good cause for his
late filing. Greenfield also contends that he received
a letter from Diamond on September 25, 2012, that
contained transcripts from his case. He argues that this
letter demonstrates that a relationship with his counsel
was still ongoing, and that counsel had an obligation
in that correspondence to alert Greenfield about the
passage of P.A. 12-115. Greenfield contends that,
because counsel did not provide him with this informa-
tion at any time, any delay cannot be attributed to him.
We are not persuaded.
Recently, in Kelsey, a petitioner argued that, ‘‘in addi-
tion to his prior habeas counsel’s failure to inform him
of any statutory filing deadlines, his status as a self-
represented party when he filed this petition caused
the delay in filing insofar as his conditions of confine-
ment had caused him to be unaware of the deadline
set by the 2012 amendments to § 52-470.’’ Kelsey v.
Commissioner of Correction, supra, 343 Conn. 441. In
reaching its conclusion that the petitioner failed to dem-
onstrate good cause, our Supreme Court explained that,
‘‘although . . . 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 peti-
tioner’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.’’
(Footnote omitted.) Id., 444–45. The court explained
that, ‘‘although the petitioner’s lack of knowledge of
the statutory amendments apparently attributable to
his conditions of confinement could have certainly been
considered in the habeas court’s good cause determina-
tion,’’ the record was clear that ‘‘the petitioner had
access to a resource center that included the General
Statutes’’ when he was out of administrative segregation
in the ten months leading up to the filing deadline. Id.,445–46. The court consequently affirmed this court’s
judgment dismissing the petitioner’s habeas petition.
Id., 447.
Following our Supreme Court’s decision in Kelsey,
this court has addressed similar claims to the ones made
in Kelsey and in this appeal. For example, in Michael
G. v. Commissioner of Correction, 214 Conn. App. 358,
369, 280 A.3d 501 (2022), a petitioner argued that he
established good cause for his untimely filing because
his second habeas counsel failed to explain to him the
statutory time limits in § 52-470 and incorrectly advised
him to withdraw his prior petition and to refile it outside
of the two year statutory deadline. Guided by the Kelsey
factors, this court explained that, ‘‘[e]ven if we were to
assume . . . that neither the petitioner nor his habeas
counsel was aware of the time limits, the petitioner still
cannot demonstrate that the habeas court abused its
discretion in determining that the erroneous advice the
petitioner received did not establish good cause for the
delay in filing the third petition’’ because there were
‘‘no external factors at play and the petitioner and his
habeas counsel together exclusively bear responsibility
for the delay in filing the petition.’’ (Footnote omitted.)
Id., 370.
Similarly, in Coney v. Commissioner of Correction,
supra, 215 Conn. App. 110, the petitioner argued that
his prior habeas counsel’s advice to withdraw his third
petition, despite the fact that the statutory deadline had
passed, constituted good cause for the delay in filing. He
also argued that his ignorance of the law, his counsel’s
ignorance of the law, and the unavailability of an
important witness, excused his untimely fourth petition.
Id., 110. In rejecting the petitioner’s arguments, this
court explained that ‘‘there are no external factors at
play and the petitioner and his prior habeas counsel
together exclusively bear responsibility for the delay in
filing.’’ Id., 111. ‘‘[T]he ‘cause’ of the delay was not
‘something outside of the control of the petitioner or
habeas counsel’ as required under [Kelsey’s] definition
of good cause . . . .’ ’’ Id.
The same is true in this case. Greenfield’s lack of
knowledge of the change in the law and his counsel’s
alleged failure to notify him of the changes, on the facts
of this case, are insufficient to demonstrate that the
habeas court abused its discretion in finding that good
cause did not exist for the untimely filing. See Kelsey
v. Commissioner of Correction, supra, 343 Conn. 444(‘‘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 estab-
lishing good cause’’). During oral argument before this
court, Greenfield’s counsel confirmed that Greenfield
was not arguing that his ignorance of the law was attrib-
utable to his conditions of confinement or other extenu-
ating circumstances pertaining to his incarceration.
Indeed, Greenfield presented no evidence to the habeas
court to demonstrate how his one year and seven
months delay in filing his habeas petition involved
‘‘something outside of the control of the petitioner or
habeas counsel . . . .’’ Id., 442. We conclude, therefore,
that the habeas court did not abuse its discretion in
determining that Greenfield had failed to demonstrate
good cause for the delay in filing his fifth habeas peti-
tion.8
The judgments are affirmed.
In this opinion the other judges concurred.
1
Although these appeals have not been consolidated, we resolve both
appeals in one opinion for purposes of judicial economy, as the claims
involved in each are similar.
2
We note that, following the submission of the parties’ appellate briefs
but prior to oral arguments, our Supreme Court granted certification in
Kelsey v. Commissioner of Correction, 202 Conn. App. 21, 244 A.3d 171(2020), aff’d, 343 Conn. 424, 274 A.3d 85 (2022), which involved substantially
similar claims to the ones at issue in these appeals. Specifically, our Supreme
Court granted certification to decide the appropriate standard of review for
dismissal of habeas petitions pursuant to § 52-470 and whether this court
correctly determined that the petitioner in that case failed to establish good
cause necessary to overcome the rebuttable presumption of unreasonable
delay as set forth in § 52-470. See Kelsey v. Commissioner of Correction,
336 Conn. 912, 244 A.3d 562 (2021). In light of our Supreme Court’s grant
of certification, this court ordered, sua sponte, that the parties notify this
court as to whether consideration of their appeals should be stayed pending
our Supreme Court’s final disposition in Kelsey v. Commissioner of Correc-
tion, petition for cert. filed (Conn. February 3, 2021)(No. 20553). After
receiving the parties’ responses, this court stayed the appeals pending final
disposition in that case. On June 14, 2022, this court lifted the stay and
ordered the parties to submit simultaneous supplemental briefs addressing
the impact of Kelsey v. Commissioner of Correction, 343 Conn. 424, 274
A.3d 85 (2022), on the pending cases. The parties in both cases filed supple-
mental briefs and presented oral arguments to this court on September
8, 2022.
3
In their initial appellate briefs, both petitioners argued that our review
of their claims was plenary. As noted, however, our Supreme Court subse-
quently held in Kelsey v. Commissioner of Correction, supra, 343 Conn.
439–40, that the proper standard of review of these claims is for abuse of
discretion.
4
Following the habeas court’s ruling, our Supreme Court clarified that it
is in the discretion of a habeas court to act on the respondent’s motion for
an order to show cause prior to the close of the pleadings. See Kelsey v.
Commissioner of Correction, 329 Conn. 711, 724, 189 A.3d 578 (2018) (‘‘[i]n
the absence of any language in [§ 52-470 (e)] cabining the discretion of the
habeas court with respect to the timing of the issuance of an order to show
cause for delay, we conclude that the legislature intended that the court
exercise its discretion to do so when the court deems it appropriate given
the circumstances of the case’’).
5
‘‘In addition to basic personal information, the form asks only three
questions. The first asks for the crimes the person was convicted of, the
second asks for their parole eligibility date, and the third asks the following
question: ‘Summarize new evidence that has become available or that can
be developed that could prove your factual innocence. This should include
any new scientific evidence that can be considered.’ ’’
6
The record reflects that the Innocence Project received Stenner’s general
inquiry on September 29, 2015; however, Dodds, who was assigned to Sten-
ner’s case, did not receive the inquiry until October 2, 2015.
7
In its request for an order to show cause filed with the habeas court,
the respondent claimed initially that Greenfield was required to file the
instant petition by March 7, 2014, in order for it to be timely filed. Although
March 7, 2014, would have been two years from the conclusion of his prior
habeas action, under § 52-470 (d), Greenfield had until October 1, 2014, to
file the instant habeas action. See General Statutes § 52-470 (d) (‘‘there shall
be a rebuttable presumption that the filing of the 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’’ (emphasis added)). Neither party disputes at this juncture
that the operative deadline to file the instant habeas petition was October
1, 2014.
8
In their supplemental briefing, both petitioners argue that, because the
habeas courts did not have the guidance of Kelsey when considering whether
there was good cause for the delay in the filings, these cases should be
remanded for further proceedings. This court, in addressing the same exact
argument in a similar case to the present cases, recently held that ‘‘this
argument has no merit.’’ Coney v. Commissioner of Correction, supra, 215
Conn. App. 112 n.13. Moreover, we note that our Supreme Court in Kelsey
did not remand that case to the habeas court for further proceedings. It
instead affirmed this court’s judgment, concluding ‘‘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 the second habeas petition
. . . .’’ Kelsey v. Commissioner of Correction, supra, 343 Conn. 447.
Although we do not foreclose the possibility that there could be an instance,
albeit rare, in which a remand instructing a habeas court to apply Kelsey
would be appropriate, we are not persuaded that one is required in either
of these cases because neither petitioner has pointed to anything in Kelsey
that would have required the habeas court in his case to have undertaken
a different analysis with respect to the claims he raised before the habeas
court. We therefore decline the petitioners’ invitations to remand these cases
for further proceedings.