Rose v. Commissioner of Correction

Citations

• 202 Conn. App. 436

Syllabus

The petitioner, who had been convicted of felony murder, attempt to commit robbery in the first degree and robbery in the first degree, appealed to this court from the judgment of the habeas court, which dismissed his petition for a writ of habeas corpus pursuant to statute (§ 52-470). The petitioner, who was represented by counsel, filed a habeas petition in 2012, but withdrew it on the date trial was to commence in December, 2016, so that he could obtain different counsel. The petitioner did not refile the petition until February, 2018. The habeas court, at the request of the respondent, the Commissioner of Correction, thereafter issued an order to the petitioner to show cause, pursuant to § 52-470, why the petition should be permitted to proceed in light of the fact that he refiled it beyond the presumptive deadlines for doing so set forth in § 52-470 (c). After an evidentiary hearing, the court found that the petitioner's counsel had advised the petitioner in 2016 that he could withdraw the 2012 habeas petition but that he should ''do it now'' and that he would be assigned different counsel. The court further determined that the petitioner's counsel had advised the petitioner in 2016 to refile the habeas petition and that, after the 2016 withdrawal, he could have done so within the time frame permitted by § 52-470 but that he waited more than one year after the withdrawal to do so. The court thus concluded that the petitioner failed to show good cause for the delay in refiling the petition and dismissed it pursuant to § 52-470 (e). On the granting of certification, the petitioner appealed to this court, claiming that he had established good cause for the untimely refiling of his habeas petition because his counsel's failure to inform him of the need to refile it following the 2016 withdrawal, coupled with the court's statements at the 2016 proceeding, resulted in his mistaken belief that the 2012 habeas action remained active. Held that the habeas court did not