Opinion
TSRCV174009144
07-26-2019
Wendell HASAN, Inmate #89784 v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
Hon. John M. Newson, Judge
NOTICE OF DISMISSAL PURSUANT TO PRACTICE BOOK § 23-29(3)
Upon review of the specific allegations in the complaint in preparation to address the respondent’s Request for Order to Show Cause, the Court, for the first time, became aware that the sole complaint in the present petition is the alleged ineffective assistance provided to the petitioner by Attorney Louis Avitable, who represented the petitioner in TSR-CV86-0000326. The petitioner previously made a claim of ineffective assistance against Attorney Avitable in TSV-CV05-4000530 (Nazzaro, J., Sept. 15, 2008), which was denied after a trial on the merits. On their face, the present allegations fail to present new facts or allegations not reasonably discoverable at the time of the prior petition. Therefore, the present claim of ineffective assistance is barred by the doctrine of res judicata and the petitioner is dismissed. Johnson v. Commissioner of Correction, 168 Conn.App. 294, 305-06, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d 385 (2016).
ORDER TO SHOW CAUSE PURSUANT TO GENERAL STATUTES 52-470
Notwithstanding the dismissal, since it was not discovered until the Court was reviewing the merits of the Request for Order to Show Cause, and in the event that the dismissal is found inappropriate, the Court will address the motion on its merits below.
I. Procedural History
The petitioner was the defendant in a matter pending in the Judicial District of Stamford-Norwalk, where he was convicted of Felony Murder and Burglary First Degree. On July 18, 1986, after being found guilty by a jury, he was sentenced to a total effective sentence of eighty (80) years. He has filed several prior State and Federal post-convictions actions attacking his convictions, however, most relevant to this proceeding is TSV-CV05-4000530 (Nazzaro, J., Sept. 15, 2008), which was denied after a trial on the merits. The petitioner’s appeal was dismissed, Hasan v. Commissioner of Correction, 124 Conn.App. 906, 4 A.3d 1282, cert. denied, 299 Conn. 917, 10 A.3d 1051 (2010). The decision of the Supreme Court was released on December 8, 2010.
The present petition was filed on October 2, 2017, and, read in a light most favorable to the petitioner, claims that Attorney Louis Avitable, who was counsel on the habeas petition the petitioner litigated before CV05-4000530, rendered ineffective assistance of counsel. The respondent filed a Request for Order to Show Cause on December 21, 2018. An evidentiary hearing was held on the motion on May 10, 2019.
II. Law and Discussion
General Statutes § 52-470(d) and (c) apply to the present claims, which provide, in pertinent 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 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.(Emphasis added.) Therefore, providing the petitioner with most benefit under the statute, he had until October 1, 2014, to file his a petition subsequent to the release of the Supreme Court decision on December 8, 2010. G.G.S. § 52-470(d)(2).
The petitioner offered exhibits pertaining to litigation he has engaged in related to his conviction, including a 2014 "Post-Conviction Consent Motion Re: Evidence" where the State’s Attorney agreed to allow certain DNA evidence from his case to be released for additional testing. (See Exhibit 1.) However, the petitioner offered no testimony as to the reasons he did not file the present petition until nearly seven years after the final Supreme Court decision, and three years beyond the statutory deadline. The petitioner argues that there "may be" evidence to support a claim of actual innocence based on the DNA evidence, so counsel should have the opportunity to amend the self-represented petition. This argument misses the substantive issue raised by a motion filed pursuant to subsection (d) of § 52-470. See Kelsey v. Commissioner, 329 Conn. 711, 721, 189 A.3d 578 (2018). Requests for a showing of good cause brought under subsection (b) of § 52-470 address whether a petitioner can present viable claims that should be allowed to proceed to a full evidentiary hearing, and claims of actual innocence are specifically excluded from the statute. See, Id. at 718 ("In order to determine whether there is good cause for trial [under subsection (b) of § 52-470], the court must by necessity wade- albeit in a preliminary manner- into the merits of the petition"). A motion under subsection (d) addresses only whether there was "good cause" for commencing the habeas action beyond the statutory deadline. Id. at 719.
On the meaning of "good cause," our Appellate Court has held that "good cause is defined as a substantial reason amounting in law to a legal excuse for failing to perform an act required by law." Langston v. Commissioner of Correction, 185 Conn.App. 528, 532, 197 A.3d 1034 (2018). The petitioner has presented no reason why he failed to file this petition by the October 1, 2014 deadline. Even if the Court were to accept counsel’s argument that the Connecticut Innocence Project has discovered information through the re-examination of DNA in that would support an actual innocence claim, the petitioner has failed to provide any "good cause" for a delay of three years before filing the present petition, which, for the record, is notably absent of any mention of DNA or actual innocence.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DISMISSED.