Opinion
AC 43327
05-07-2024
MICHAEL G. v. COMMISSIONER OF CORRECTION
Jennifer B. Smith, assigned counsel, for the appellant (petitioner). Jonathan M. Sousa, deputy assistant state’s attorney, with whom, on the brief, were Dawn Gallo, former state’s attorney, and Leah Hawley, former senior assistant state’s attorney, for the appellee (respondent).
Jennifer B. Smith, assigned counsel, for the appellant (petitioner).
Jonathan M. Sousa, deputy assistant state’s attorney, with whom, on the brief, were Dawn Gallo, former state’s attorney, and Leah Hawley, former senior assistant state’s attorney, for the appellee (respondent).
Suarez, Westbrook and Prescott, Js.
PER CURIAM.
342The petitioner, Michael G., appeals following the denial of his petition for certification to appeal 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). The 343respondent, the Commissioner of Correction, filed a request for an order to show cause why the petitioner’s habeas petition should not be dismissed as untimely pursuant to § 52-470 (d) and (e). On appeal, the petitioner claims, inter alia, that the court erred in concluding that he failed to establish good cause for his late-filed petition. In particular, the petitioner argues that his prior habeas counsel’s failure to advise him of the statutory deadline for filing a new petition prior to the withdrawal of his previously pending petition constituted ineffective assistance of counsel, which constituted good cause for the delay in filing. In accordance with our Supreme Court’s recent decision in Rose v. Commissioner of Correction, 348 Conn. 333, 304 A.3d 431 (2023), and our recent decision in Hankerson v. Commissioner of Correction, 223 Conn. App. 562, 308 A.3d 1113 (2024), we conclude that the judgment of the habeas court must be reversed, and we remand the case for a new heating and good cause determination under § 52-470 (d) and (e).
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 …. 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…. "(e) In a case in which the rebuttable presumption of delay under subsection … (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 … (d) of this section."
In 2021, prior to the issuance of the decisions in Rose and Hankerson, the appeal from the habeas court’s dismissal of the petitioner’s writ of habeas corpus was argued before this court. See Michael G. v. Commissioner of Correction, 214 Conn. App. 358, 360, 280 A.3d 501 (2022), vacated, 348 Conn, 946, 308 A.3d 35 (2024). The appeal was dismissed. Id., at 378, 280 A.3d 501. The petitioner filed a petition for certification to appeal with our Supreme Court, which, following the issuance of its decision in Rose, granted the petition, vacated the judgment of this court, and remanded the case to this court "for further consideration in light of Rose Michael G. v. Commissioner of Correction, 348 Conn. 946, 308 A.3d 35 (2024).
The judgment of the habeas court is reversed and the case is remanded for further proceedings in accordance with this opinion.