Coney v. Commissioner of Correction ( 2022 )

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PAUL CONEY v. COMMISSIONER OF CORRECTION
(AC 41747)
Alvord, Elgo and Albis, Js.
Syllabus
The petitioner, who had been convicted of the crimes of murder and criminal
possession of a pistol or revolver, filed a fourth petition for a writ of
habeas corpus. The habeas court, upon the request of the respondent
Commissioner of Correction, issued an order to show cause why the
petition should not be dismissed as untimely given that it had been filed
beyond the time limit for successive petitions set forth in the applicable
statute (§ 52-470 (d)). The court held an evidentiary hearing, during
which the petitioner testified that he had filed a timely third habeas
petition but withdrew it prior to trial because his prior habeas counsel
had advised him that withdrawing the petition and refiling it would be
in the petitioner’s best interest because counsel had lost contact with
a key witness. The petitioner further testified that counsel did not discuss
§ 52-470 (d) or its effect on the petitioner’s ability to file another petition
challenging his conviction nor did he take any other action to address
the witness’ unavailability and that, if the petitioner had known that
withdrawing the petition and refiling would result in an untimely petition,
he would not have done so. The habeas court dismissed the fourth
habeas petition as untimely, concluding that the petitioner failed to
demonstrate good cause for the delay in filing the petition. Thereafter,
the petitioner, on the granting of certification, appealed to this court.
Held that the habeas court did not abuse its discretion in determining
that the petitioner failed to demonstrate good cause for the delay in
filing his fourth habeas petition: contrary to the petitioner’s claim that
his prior habeas counsel’s deficient advice to withdraw his third habeas
petition constituted good cause, there were no external factors outside
of the petitioner’s control that caused or contributed to the withdrawal
of that petition and the delay in filing the fourth habeas petition, and
the petitioner and his counsel together exclusively bore responsibility for
the delay in filing the fourth petition; moreover, insofar as the petitioner
contended that the witness’ unavailability for trial on the third habeas
petition constituted an external factor that warranted the withdrawal
of that petition and the subsequent untimely filing of the fourth habeas
petition, it was clear that the petitioner and his counsel both bore
personal responsibility for this proffered excuse, as neither took steps
to address the witness issue by filing a motion for a continuance or
requesting a status conference, but, rather, the petitioner addressed the
issue by taking the drastic step of withdrawing the petition; furthermore,
this court rejected the petitioner’s assertion that the habeas court’s
decision was inconsistent with our Supreme Court’s holding in Kelsey
v. Commissioner of Correction (343 Conn. 424) that a petitioner’s lack
of knowledge of a change in the law is potentially sufficient to establish
good cause, as the court in Kelsey did not hold that ignorance of the
law is typically sufficient, and the habeas court in this case specifically
considered both the petitioner’s and his counsel’s lack of knowledge of
the time limit in § 52-470 (d) but, nevertheless, determined that there
was no good cause for the delay in filing the petition.
Argued February 3, 2021—officially released September 13, 2022
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Sferrazza, J., rendered judgment dismissing
the petition, from which the petitioner, on the granting
of certification, appealed to this court. Affirmed.
Judie Marshall, assigned counsel, with whom, on the
brief, was Stephanie L. Evans, assigned counsel, for
the appellant (petitioner).
Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
ELGO, J. The petitioner, Paul Coney,1 appeals from
the judgment of the habeas court dismissing his petition
for a writ of habeas corpus as untimely pursuant to
General Statutes § 52-470 (d) and (e).2 On appeal, the
petitioner claims that the habeas court erred in
determining that he failed to demonstrate good cause
to overcome the statutory presumption of unreasonable
delay. We disagree and, accordingly, affirm the judg-
ment of dismissal.
The following facts and procedural history are rele-
vant to this appeal. After a jury trial, the petitioner was
convicted of one count of murder in violation of General
Statutes § 53a-54a (a) and one count of criminal posses-
sion of a pistol or revolver in violation of General Stat-
utes § 53a-217c (a). State v. Coney, 266 Conn. 787, 790,
835 A.2d 977 (2003). The trial court sentenced the peti-
tioner to a total effective term of sixty years of imprison-
ment, and our Supreme Court affirmed the judgment
of conviction on direct appeal. Id., 790–91.
On February 20, 2004, the petitioner filed his first
petition for a writ of habeas corpus (first petition),
challenging the validity of his criminal conviction. The
habeas court denied this petition. This court affirmed
that judgment, and our Supreme Court thereafter
denied certification to appeal. Coney v. Commissioner
of Correction, 117 Conn. App. 860, 982 A.2d 220 (2009),
cert. denied, 294 Conn. 924, 985 A.2d 1061 (2010). On
March 18, 2010, the petitioner filed a second petition
for a writ of habeas corpus (second petition), which
also challenged his criminal conviction. He subse-
quently withdrew that petition prior to trial.
On June 1, 2012, the petitioner filed a third petition
for a writ of habeas corpus (third petition), again chal-
lenging his criminal conviction, and a trial was sched-
uled for January 12, 2015. Shortly before the start of
that trial, the petitioner’s counsel advised the petitioner
to withdraw the third petition because counsel had
lost contact with a witness whose testimony counsel
believed was essential to establish one of the claims
set forth in the petition. Relying on that advice, the
petitioner withdrew the third petition on January 6,
2015.3
On January 20, 2015, the petitioner filed a fourth
petition for a writ of habeas corpus (fourth petition),
which also challenged his criminal conviction and is
the subject of this appeal. At the request of the respon-
dent, the Commissioner of Correction, the court, Sfer-
razza, J., issued an order, pursuant to § 52-470 (e),
requiring the petitioner to show cause as to why the
petition should not be dismissed as untimely, given that
it was filed outside of the time periods prescribed in
§ 52-470 (d), and scheduled a hearing for May 1, 2018
(show cause hearing).
Prior to the show cause hearing, the petitioner sub-
mitted a ‘‘motion to find good cause and allow the case
to proceed to trial.’’ Therein, the petitioner asserted
that his counsel for the third habeas action had advised
him that ‘‘an important witness may not attend the trial,’’
that ‘‘without his testimony the petitioner was unlikely
to prevail,’’ and that ‘‘he could withdraw his habeas
petition and then refile, providing him with additional
time to locate the witness.’’ The petitioner further noted
that his counsel had not sought a continuance or any
other means of addressing the issue of the witness’
unavailability prior to suggesting withdrawal. Finally,
the petitioner asserted that his counsel never explained
§ 52-470 (d) or its impact on his ability to file future
habeas petitions.
The petitioner testified at the show cause hearing,
and no other evidence was presented. When asked, the
petitioner agreed that his prior habeas counsel advised
him to withdraw his third petition because a particular
witness, who the petitioner’s counsel described as ‘‘a
key witness to one of [the habeas] claims,’’ might not
have been able to attend the trial on the third petition.
The petitioner testified that his counsel informed him
that he had lost contact with the witness and felt that
withdrawing the petition and refiling would be in the
petitioner’s best interest.4 The petitioner further testi-
fied that this discussion occurred during a meeting that
lasted approximately five to ten minutes and that his
counsel never discussed § 52-470 (d) or its effect on
the petitioner’s ability to file another petition attacking
his conviction. The petitioner also testified that his
counsel took no other action to address the witness’
unavailability. Finally, he testified that, if he had known
that withdrawing the third petition and refiling would
result in an untimely petition, he would not have with-
drawn his third petition.
Thereafter, each side presented arguments on the
issue of good cause for the delay. The petitioner’s coun-
sel argued that the delay resulted from prior habeas
counsel’s ‘‘ineffectiveness’’5 and that such ineffective
assistance satisfied § 52-470 (e), specifically citing the
witness’ alleged unavailability as the basis for the sug-
gestion that the petitioner withdraw the third petition.
Counsel for the respondent argued that the claim
regarding the ‘‘missing’’ witness was meritless and that
attorney error could not be the basis of good cause.
The day after the show cause hearing, the court
issued a memorandum of decision dismissing the peti-
tioner’s fourth petition. The court first determined that
the fourth petition was presumptively untimely pursu-
ant to § 52-470 (d).6 The court then set forth the relevant
facts as follows: ‘‘The trial [on the third petition] was
scheduled to begin on January 12, 2015. Unfortunately,
a highly desirable witness, in the view of the petitioner
and his habeas counsel . . . went missing shortly
before trial.
‘‘[The petitioner’s counsel] discussed this develop-
ment with the petitioner and advised him that the best
course would be to withdraw the [third petition] before
trial and refile the claims in a new habeas [petition] to
gain more time to locate the witness for use at a future
trial. The petitioner accepted this advice and withdrew
the third [petition] on January 6, 2015, around one week
before the first day of trial. The sole purpose of that
withdrawal was to avoid trial in the hope that, if a new
habeas case was initiated, the witness could be found
and his testimony presented at some later date. . . .
‘‘Neither [the petitioner’s counsel] nor the petitioner
considered the effect the passage of § 52-470 (d) . . .
had on the filing of a new habeas [petition] . . . that
is, the petitioner could not file a new habeas [petition],
directed at his criminal conviction, without invoking
the presumption of undue delay, which, if unrebutted,
mandated dismissal.’’
The court then determined that the petitioner had
failed to establish good cause for the delay in filing,
‘‘reject[ing] poor legal advice as a basis for rebutting
the presumption of undue delay.’’7 In so doing, the court
specifically cited the principle that ‘‘[g]ood cause must
be external to the defense . . . .’’ See Jackson v. Com-
missioner of Correction, 227 Conn. 124, 137, 629 A.2d
413 (1993). Thereafter, the petitioner filed a petition for
certification to appeal, which the court granted, and
this appeal followed.8
Following oral argument, this court ordered, sua
sponte, that this appeal be stayed pending the release
of our Supreme Court’s decision in Kelsey v. Commis-
sioner of Correction, 343 Conn. 424, 274 A.3d 85 (2022).9
Following the release of our Supreme Court’s decision
in Kelsey, the parties were ordered to file supplemental
briefs addressing Kelsey’s impact on this appeal.
We begin our analysis by setting forth the applicable
standard of review. ‘‘[A] habeas court’s determination
regarding good cause under § 52-470 (e) is reviewed on
appeal only for abuse of discretion. 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.’’10 (Internal quotation marks omit-
ted.) 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 . . . October 1, 2014
. . . .’’ Section 52-470 (e) provides in relevant part that,
‘‘[i]f . . . the court finds that the petitioner has not
demonstrated good cause for the delay, the court shall
dismiss the petition. . . .’’
‘‘[T]o rebut successfully the presumption of unrea-
sonable delay in § 52-470, 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.’’11 (Internal quotation marks
omitted.) Kelsey v. Commissioner of Correction, supra,343 Conn. 441–42. The following nonexhaustive list of
factors aid in determining whether a petitioner has satis-
fied the definition of good cause: ‘‘(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 respon-
sibility 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 peti-
tioner file the petition.’’12 (Internal quotation marks
omitted.) Id., 442.
‘‘[A]lthough . . . the legislature certainly contem-
plated 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 petitioner’s lack of knowledge of the law, standing
alone, to establish that a petitioner has met his eviden-
tiary 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. Furthermore, this court
has recently considered whether an attorney’s advice to
withdraw a timely petition and to file another petition,
without considering the effect of the time limit in § 52-
470 (d), can establish good cause for delay and con-
cluded that, without more, an attorney’s erroneous
advice does not constitute good cause within the mean-
ing of § 52-470. See Michael G. v. Commissioner of
Correction, 214 Conn. App. 358, 364–72, A.3d
(2022).
In Kelsey, the petitioner filed a second petition for a
writ of habeas corpus approximately five years after
our Supreme Court denied his petition for certification
to appeal from this court’s judgment affirming the
habeas court’s denial of the petitioner’s first petition
for a writ of habeas corpus. Kelsey v. Commissioner
of Correction, supra, 343 Conn. 429. The habeas court
determined that the petitioner did not demonstrate
good cause for the delay in filing his second petition
and, therefore, dismissed the petition. Id., 431. On
appeal before our Supreme Court, the petitioner argued
that, ‘‘in addition 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
confinement had caused him to be unaware of the dead-
line set by the 2012 amendments to § 52-470.’’ Id., 441.
The court rejected this argument, noting that ‘‘the peti-
tioner had access to a resource center that included
the General Statutes’’ and that ‘‘the petitioner stated
[as an explanation for the delay] that he was housed
in and out of administrative segregation due to a disci-
plinary problem.’’ Id., 446.
Similarly, in Michael G. v. Commissioner of Correc-
tion, supra, 214 Conn. App. 358, the petitioner filed a
subsequent petition for a writ of habeas corpus chal-
lenging his conviction approximately ten months after
the passing of the statutory deadline and the withdrawal
of a previous habeas petition challenging the convic-
tion. Id., 362. The petitioner argued that his prior coun-
sel, who had advised him to withdraw his petition, pro-
vided deficient advice, which constituted good cause
for his delay in filing his subsequent petition. Id., 364.
This court disagreed and, on the basis of the factors
set forth in Kelsey, determined that ‘‘there [were] no
external factors at play and the petitioner and his
habeas counsel together exclusively [bore] responsibil-
ity for the delay in filing the petition.’’ Id., 370. In addi-
tion, this court concluded that ‘‘the habeas court . . .
reasonably concluded that the petitioner’s [withdrawal
of the previous petition was] an attempt to ‘manipulate
or delay proceeding to trial.’ ’’ Id., 371–72.
In the present case, the petitioner does not dispute
that his fourth petition was presumptively untimely.
Rather, he argues that the court erred when it deter-
mined that the petitioner had not established good
cause for the delay in filing his fourth petition. Specifi-
cally, the petitioner argues that his prior habeas coun-
sel’s advice to withdraw his third petition, despite the
fact that the statutory deadline had passed, constituted
good cause for the delay in filing. In addition, the peti-
tioner points to his ignorance of the law, his counsel’s
ignorance of the law, and the unavailability of the
important witness as being beyond his control and
excusing his untimely fourth petition. We disagree.
The first two Kelsey factors are particularly instruc-
tive: on the basis of the evidence presented at the show
cause hearing, there are no external factors at play and
the petitioner and his prior habeas counsel together
exclusively bear responsibility for the delay in filing.
See Kelsey v. Commissioner of Correction, supra, 343
Conn. 445. As the respondent notes, ‘‘the petitioner and
his counsel were solely responsible for the withdrawal
of the petitioner’s [third] petition. Therefore, the ‘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 . . . .’’ The habeas
court expressly credited the petitioner’s testimony that
the reason he failed to timely file the fourth petition
was because of his prior habeas counsel’s advice. As a
result, the court determined that the petitioner’s prior
counsel bore personal responsibility for the untimely
filing. In light of its determination that the poor advice
of counsel does not constitute good cause, the court
concluded that the petitioner had not overcome the
statutory presumption that his fourth petition was
untimely and must be dismissed. On the basis of the
evidence presented at the show cause hearing, there
are no external factors at play, and the petitioner and
his prior habeas counsel together exclusively bear
responsibility for the delay in filing the fourth petition.
See Kelsey v. Commissioner of Correction, supra, 442;
see also Schoolhouse Corp. v. Wood, 43 Conn. App. 586,
591–92, 284 A.2d 1191 (1996) (neglect by party or party’s
attorney does not meet traditional definition of good
cause), cert. denied, 240 Conn. 913, 691 A.2d 1079(1997).
Although it is arguable that the witness’ unavailability
for trial on the third petition constituted an external
factor outside the control of the petitioner and his coun-
sel that warranted the withdrawal of the third petition
and subsequent untimely filing of the fourth petition,
under the present facts, it is clear that the petitioner
and his counsel both bear personal responsibility for
this proffered excuse. See Kelsey v. Commissioner of
Correction, supra, 343 Conn. 442. As discussed pre-
viously in this opinion, the petitioner and his counsel
took no other steps to address the issue regarding the
witness, as no motion for a continuance was filed and
no request for a status conference was made. The peti-
tioner addressed the issue only by taking the rather
drastic step of withdrawing his entire third petition.
Counsel’s error in failing to consider the effect of § 52-
470 on future petitions is not tempered by the reason
for his advice to withdraw the petition.
Finally, although our Supreme Court specifically rec-
ognized ‘‘a petitioner’s lack of knowledge of a change
in the law as potentially sufficient to establish good
cause for an untimely filing’’; Kelsey v. Commissioner
of Correction, supra, 343 Conn. 444; the court did not
hold that ignorance of the law is typically sufficient.
We therefore reject the petitioner’s position that the
habeas court’s decision ‘‘is inconsistent with the holding
in Kelsey, since the Kelsey court acknowledged the
legislative intent to consider knowledge of the law as
part of the good cause analysis.’’ Furthermore, the
habeas court in this case specifically considered both
the petitioner’s and his counsel’s lack of knowledge of
the time limit in § 52-470 (d) but determined that there
was no good cause for delay—this conclusion does not
run afoul of Kelsey. Thus, we conclude 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 his fourth petition for a writ of habeas
corpus.13
The judgment is affirmed.
In this opinion the other judges concurred.
1
In the underlying criminal trial, the petitioner was convicted under the
name Stephen Coney. See State v. Coney, 266 Conn. 787, 835 A.2d 977 (2003).
In the present case, and in his previous habeas cases, however, the petitioner
has used the name Paul Coney. The petitioner’s full name is Stephen
Paul Coney.
2
General Statutes § 52-470 provides in relevant part: ‘‘(d) 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.
‘‘(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. 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 . . . (d) of this section. . . .’’
3
The petitioner asserts that the habeas court should have canvassed him
in person or via live video from the correctional facility before accepting
his withdrawal of his third petition. The petitioner does not, however, explain
how this alleged failure impacts the good cause analysis. Because the peti-
tioner withdrew his third petition prior to trial and the rendering of a final
judgment on its merits, that issue is not properly before us.
4
Although the witness’ testimony would be presented in support of only
one of the claims set forth in the third petition, the petitioner’s counsel
recommended withdrawal of the whole petition because he considered that
claim to be the strongest one.
5
Specifically, the petitioner’s counsel cited prior counsel’s failure to
inform the petitioner of the time limit in § 52-470 (d), to pursue less ‘‘dra-
matic’’ steps such as requesting a continuance to find the witness, and to
notify the petitioner of other options of addressing the issue regarding
the witness.
6
Specifically, the court determined: ‘‘[T]he unfavorable decision [in the
first habeas action] became final, at the latest, by January 25, 2010 . . . .
The petitioner filed the present habeas action on January 20, 2015, nearly
five years later. . . . Thus, the presumption of delay without good cause
in § 52-470 (d) is activated.’’ Although the petitioner does not challenge this
determination, we note for the sake of clarity that the proper date by which
to measure the timeliness of subsequent petitions challenging the petitioner’s
criminal conviction was October 1, 2014. 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; or (3) two years after the date on which the constitutional
or statutory right asserted in the petition was initially recognized and made
retroactive’’ (emphasis added)).
7
The petitioner asserts that the habeas court ‘‘relied on an analysis that
ignorance of the law is not a basis for good cause . . . .’’ The petitioner
misinterprets the court’s decision, however, as the court looked to ‘‘similar
areas of the law’’ to determine whether ‘‘poor legal advice’’ could be sufficient
to rebut the presumption of undue delay.
8
Following the submission of the petitioner’s appellate brief but prior to
the submission of the respondent’s brief, the respondent filed a motion to
stay the appellate proceedings pending the release of our Supreme Court’s
decision in Langston v. Commissioner of Correction, 335 Conn. 1, 225 A.3d
282 (2020). This court granted the motion and entered an order staying
the appeal. Follow the release of Langston, the respondent submitted its
appellate brief.
Thereafter, the petitioner, represented by new appellate counsel, filed a
motion for substitute briefing, requesting that the briefing process be
restarted and arguing that his prior appellate counsel was deficient and that
the petitioner ‘‘was not at fault for prior counsel’s failure’’ and ‘‘should not
suffer a deprivation based on prior counsel’s errors.’’ This court denied the
motion but ordered, sua sponte, that the petitioner could file a supplemental
brief to which the respondent would have the opportunity to respond. Both
parties filed supplemental briefs.
9
Initially, this court ordered the parties to provide their positions on
whether the appeal should be stayed pending Kelsey. The respondent
objected to a stay of proceedings, and the petitioner requested a stay.
Thereafter, this court determined that no stay was necessary. Upon further
consideration, however, this court determined that a stay was necessary
and, accordingly, entered an order of stay.
10
In his initial appellate brief, the petitioner asserted that, because his
claim concerns the legal meaning of ‘‘good cause,’’ it is subject to plenary
review. In light of our Supreme Court’s decision in Kelsey, the petitioner
concedes that his claim is reviewed pursuant to the abuse of discretion
standard. See Kelsey v. Commissioner of Correction, supra, 343 Conn. 440.
11
Initially, the petitioner asserted that this court must engage in statutory
interpretation and look to other areas of the law addressing ‘‘good cause’’
as well as sixth amendment jurisprudence in order to establish whether the
facts of the case establish good cause for delay pursuant to § 52-470 (e).
Following the release of Kelsey, however, the petitioner does not challenge
the definition of good cause or the relevant factors for consideration set
forth in that decision, which is binding on this court. See Stuart v. Stuart,
297 Conn. 26, 45–46, 996 A.2d 259 (2010) (‘‘it is manifest to our hierarchical
judicial system that [the Supreme Court] has the final say on matters of
Connecticut law and that the Appellate Court . . . [is] bound by [its] prece-
dent’’).
12
In addition to these factors, ‘‘the habeas court may also include in its
good cause analysis whether a petition is wholly frivolous on its face. . . .
[T]he good cause determination can be, in part, guided by the merits of the
petition.’’ Kelsey v. Commissioner of Correction, supra, 343 Conn. 444 n.9.
13
In his supplemental brief addressing Kelsey’s effect on this case, the
petitioner suggests that, because the habeas court did not have the guidance
of Kelsey when considering whether there was good cause for the delay,
‘‘this matter should be remanded for further proceedings.’’ We conclude
that this argument has no merit.