Langston v. Commissioner of Correction , 185 Conn. App. 528 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning 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 Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
RICHARD LANGSTON v. COMMISSIONER
OF CORRECTION
(AC 40312)
DiPentima, C. J., and Lavine and Eveleigh, Js.
Syllabus
The petitioner, who had been convicted of various crimes, sought a writ of
habeas corpus claiming, inter alia, ineffective assistance of trial counsel.
Thereafter, the respondent Commissioner of Correction requested that
the habeas court issue an order to show cause as to why the petition
should not be dismissed as untimely pursuant to statute (§ 52-470 [d]
and [e]). The habeas court, after a hearing on the request for an order
to show cause, rendered judgment dismissing the habeas petition as
untimely filed, from which the petitioner, on the granting of certification,
appealed to this court. On appeal, he claimed that the habeas court
improperly concluded that he failed to show good cause for the delay
in filing his habeas petition. Specifically, he claimed that his untimely
petition did not violate the spirit of § 52-470 because it concerned issues
that had been litigated for several years and that, in withdrawing a prior
petition, he was following the advice of his former attorney and did not
understand the consequences of his decision. Held that the habeas
court properly dismissed the habeas petition and determined that the
petitioner failed to establish good cause for the delay in filing his
untimely habeas petition; the fact that the petitioner litigated previous
habeas claims did not excuse his tactic of voluntarily withdrawing a
prior petition just days before a motion to dismiss was to be heard and
less than one month before trial, nor did it explain his failure to refile
his case before the statutory deadline, and the petitioner failed to adduce
sufficient evidence at the hearing on the request for an on order to show
cause in support of his claim that his prior counsel failed to advise the
petitioner of the time constraints governing the present habeas petition.
Argued September 17—officially released October 23, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Oliver, J., granted the respon-
dent’s motion to dismiss and rendered judgment
thereon, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
Robert L. O’Brien, with whom, on the brief, was
Christopher Y. Duby, for the appellant (petitioner).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and David M. Carlucci, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Richard Langston,
appeals from the dismissal of his petition for a writ of
habeas corpus as untimely under General Statutes § 52-
470 (e). The petitioner argues that he established good
cause for the delayed filing of his untimely petition, and
the habeas court’s judgment of dismissal was improper.1
We are not convinced and, thus, affirm the judgment
of the habeas court.
The following facts are relevant to this appeal. In
May, 1999, the petitioner was convicted of robbery in
the first degree in violation of General Statutes § 53a-
134 (a) (2), criminal possession of a firearm in violation
of General Statutes § 53a-217 and commission of a class
A, B, or C felony with a firearm in violation of General
Statutes § 53-202k. The trial court imposed a total effec-
tive sentence of twenty-five years of incarceration. On
appeal, the conviction was affirmed. State v. Langston,
67 Conn. App. 903, 786 A.2d 547, cert. denied, 259 Conn.
916, 792 A.2d 852 (2002).
In 2002, the petitioner filed his first petition for a
writ of habeas corpus alleging, inter alia, ineffective
assistance of trial counsel. Although the petition was
granted by the habeas court, on appeal that judgment
was reversed and certification to our Supreme Court
was denied. See Langston v. Commissioner of Correc-
tion, 104 Conn. App. 210, 224, 931 A.2d 967, cert. denied,
284 Conn. 941, 937 A.2d 697 (2007). Thereafter, in
March, 2008, the petitioner filed a federal petition for
a writ of habeas corpus, which was denied in March,
2012. Langston v. Murphy, United States District Court,
Docket No. 3:08CV410 (DJS) (D. Conn. March 7, 2012).
Then, in May, 2012, he filed a second petition for a
writ of habeas corpus in state court. The petition was
withdrawn on September 22, 2014, three days prior to
a hearing on a motion to dismiss and less than one
month before the scheduled trial date.
On December 3, 2014, the petitioner filed a new peti-
tion for a writ of habeas corpus in state court, which
is the subject of the present appeal and alleged, inter
alia, ineffective assistance of trial counsel. Following
the appearance of counsel and the filing of an amended
petition, the respondent Commissioner of Correction
filed a request for an order to show cause as to why
the present petition should not be dismissed as untimely
pursuant to § 52-470 (d) and (e).2 The petitioner filed
an objection, and a hearing was held on February 8,
2017. In its memorandum of decision, dated March 23,
2017, the habeas court found that the petition was
untimely because it was filed after the October 1, 2014
deadline3 and the petitioner had failed to show good
cause for the delay. Accordingly, the habeas court dis-
missed the petition. Thereafter, the court granted the
petition for certification to appeal, and this appeal
followed.
‘‘The conclusions reached by the [habeas court] in
its decision to dismiss the habeas petition are matters
of law, subject to plenary review . . . Thus, [where]
the legal conclusions of the court are challenged, we
must determine whether they are legally and logically
correct and whether they find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Foote v. Commissioner of Correction, 170 Conn.
App. 747, 753, 155 A.3d 823, cert. denied, 352 Conn. 902,
155 A.3d 1271 (2017). ‘‘To the extent that factual findings
are challenged, this court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous.’’ (Internal quotation marks omitted.) Carter
v. Commissioner of Correction, 133 Conn. App. 387,
392, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d
217 (2012).
The petitioner does not dispute the finding that his
petition is untimely. Rather, on appeal, he argues that
the habeas court erred in concluding that he failed to
show good cause for the delay. Specifically, the peti-
tioner contends that (1) this untimely petition does
not violate the spirit or purpose of § 52-470 because it
concerns issues that have been litigated consistently
since 1999, and (2) in withdrawing his prior petition,
he was following the advice of his former attorney and
did not understand the consequences of this decision.
We are not persuaded.
‘‘For the purposes of . . . [§ 52-470 (e)], good cause
includes, but is not limited to, the discovery of new
evidence which materially affects the merits of the case
and which could not have been discovered by the exer-
cise of due diligence in time to meet the requirements
of subsection (c) or (d) of this section.’’ General Stat-
utes § 52-470 (e). The parties also agree that good cause
has been defined as a ‘‘substantial reason amounting
in law to a legal excuse for failing to perform an act
required by law . . . [a] [l]egally sufficient ground or
reason.’’ (Internal quotation marks omitted.) School-
house Corp. v. Wood, 43 Conn. App. 586, 591, 684 A.2d
1191 (1996), cert. denied, 240 Conn. 913, 691 A.2d
1079 (1997).
The essence of the petitioner’s first argument is that
subsections (d) and (e) of § 52-470 were enacted to
curtail stale claims brought years after final judgment
had been rendered in a prior habeas action, rather than
to punish minor procedural missteps. The petitioner
contends that he has challenged his convictions contin-
uously for almost two decades and this petition,
although technically untimely, is not representative of
the vexatious or frivolous claims that the 2012 reforms
to § 52-470 were implemented to address. We disagree.
The petitioner voluntarily withdrew his prior petition
just days before a motion to dismiss was to be heard,
and on the relative eve of trial. The fact that the peti-
tioner has litigated previous habeas claims does not
excuse or justify this tactic, nor does it explain his
failure to refile this case before the October 1, 2014
deadline. We cannot conclude that this argument dem-
onstrates good cause for this untimely petition.
In his second argument, the petitioner implicitly con-
cedes that it was unwise of him to have withdrawn his
prior petition. He contends, nevertheless, that he should
not be held accountable for this decision because he
was acting at the direction of his erstwhile counsel. At
the show cause hearing in the present case, however,
the petitioner’s prior counsel did not testify and the
habeas court concluded that there was insufficient evi-
dence to ascertain whether counsel had failed to apprise
the petitioner of the time constraints governing his sub-
sequent petition. Accordingly, we cannot conclude the
habeas court erred in dismissing the petition for a writ
of habeas corpus given the petitioner’s failure to adduce
evidence in support of this claim.
The judgment is affirmed.
1
The petitioner also argued on appeal that the habeas court erred in
granting the request of the respondent Commissioner of Correction for an
order to show cause because the pleadings had not been closed when the
motion was filed. The petitioner abandoned this claim at oral argument,
however, acknowledging that the recent decision by our Supreme Court in
Kelsey v. Commissioner of Correction, 329 Conn. 711, 189 A.3d 578 (2018),
was dispositive and foreclosed further review. See id., 724–25 (holding that
§ 52-470 did not divest habeas court of discretion to act on motion filed by
respondent prior to close of pleadings).
2
General Statutes § 52-470 (d) provides: ‘‘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 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. For the purposes of this section, the withdrawal
of a prior petition challenging the same conviction shall not constitute a
judgment. The time periods set forth in this subsection shall not be tolled
during the pendency of any other petition challenging the same conviction.
Nothing in this subsection shall create or enlarge the right of the petitioner
to file a subsequent petition under applicable law.’’
General Statutes § 52-470 (e) provides: ‘‘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 investigate the basis for the delay and respond to the order. If, after such
opportunity, the court finds that the petitioner has not demonstrated good
cause for the delay, the court shall dismiss the petition. For the purposes
of this subsection, good cause includes, but is not limited to, the discovery
of new evidence which materially affects the merits of the case and which
could not have been discovered by the exercise of due diligence in time to
meet the requirements of subsection (c) or (d) of this section.’’
3
With respect to this case, October 1, 2014, was the latest of the three
deadlines provided in § 52-470 (d).