Rose v. Commissioner of Correction

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           STEVEN W. ROSE v. COMMISSIONER
                  OF CORRECTION
                      (SC 20558)
      Robinson, C. J., and McDonald, D’Auria, Ecker and Bright, Js.

                                    Syllabus

Pursuant to statute (§ 52-470 (c) and (e)), there is a rebuttable presumption
   that the filing of a habeas petition has been delayed without good cause
   if it was filed more than five years after the date on which the judgment
   of conviction is deemed to be a final judgment, or October 1, 2017,
   whichever is later, and, when this rebuttable presumption applies, the
   habeas court, upon the request of the Commissioner of Correction, shall
   issue an order to show cause why the untimely petition should be
   permitted to proceed.

The petitioner, who had been convicted of felony murder, among other
   crimes, filed a petition for a writ of habeas corpus in February, 2018,
   more than five years after the date on which his judgment of conviction
   was deemed to be final. The petitioner had originally filed a timely habeas
   petition in 2012, but, on the date that his habeas trial was scheduled to
   commence, he notified the habeas court that he did not want to proceed
   because of his ongoing dissatisfaction with the representation provided
   by his assigned counsel, W. The habeas court initially indicated that it
   was unwilling to dismiss the petition without prejudice to refiling
   because the Office of the Chief Public Defender would appoint the same
   attorney to represent the petitioner. W, however, informed the habeas
   court that the petitioner would be appointed a different attorney in a
   future proceeding and that he previously had sent a letter to the peti-
   tioner advising him that ‘‘he could withdraw [his 2012 petition] but do
   it now, and they’ll assign you another lawyer.’’ The petitioner then signed
   a withdrawal form, and the habeas court dismissed the 2012 petition
   without prejudice to refiling. When the petitioner filed the present habeas
   petition in 2018, the respondent, the Commissioner of Correction, moved
   for an order to show cause why the petition should not be dismissed
   as untimely pursuant to § 52-470 (c) and (e). At a hearing on the respon-
   dent’s motion, the petitioner’s counsel argued that good cause existed
   to excuse the untimely filing because, inter alia, W had failed to inform
   the petitioner of the deadline to refile his petition under § 52-470 (c).
   The habeas court admitted into evidence the transcript of the proceeding
   at which the petitioner withdrew his 2012 petition, and both W and the
   petitioner testified that W had never advised the petitioner that a new
   petition needed to be refiled by a certain date. The habeas court ulti-
   mately dismissed the 2018 petition as untimely, concluding that W’s
   failure to advise the petitioner of the filing deadline in § 52-470 (c) did
   not constitute good cause because the transcript demonstrated that W
   had sent a letter advising the petitioner to refile his petition ‘‘now . . . .’’
   On the granting of certification, the petitioner appealed to the Appellate
   Court, which affirmed the habeas court’s judgment, and the petitioner,
   on the granting of certification, appealed to this court.

Held that the Appellate Court improperly affirmed the habeas court’s judg-
   ment, as the habeas court’s determination that no good cause existed
   was predicated on a clearly erroneous factual finding, and, accordingly,
   this court reversed the judgment of the Appellate Court:

   In its decision in Kelsey v. Commissioner of Correction (

),
   this court explained that a good cause determination under § 52-470
   requires the habeas court to balance numerous nondispositive factors,
   including whether external forces outside of the petitioner’s control had
   any bearing on the delay in filing the habeas petition and whether and
   to what extent the petitioner or counsel bore personal responsibility for
   any excuse proffered for the untimely filing, in light of the totality of
   the facts and circumstances presented.

   In the present case, the habeas court’s determination that no good caused
   existed for the delay in filing was based on that court’s clearly erroneous
  finding that W had advised the petitioner to refile his habeas petition
  ‘‘now,’’ or immediately, when the uncontradicted evidence adduced at
  the good cause hearing established that W never advised the petitioner
  of the need to refile his habeas petition prior to the date after which
  the petition would no longer be deemed to be timely.

  Specifically, neither party presented any evidence at the good cause
  hearing to support a reasonable inference that W had advised the peti-
  tioner to refile his habeas petition ‘‘now,’’ as W and the petitioner both
  testified that W never informed the petitioner of any time limit or specific
  date by which he had to refile the petition in order for it not to be deem-
  ed untimely.

  Moreover, although the transcript from the proceeding during which the
  petitioner withdrew his 2012 petition, and on which the habeas court
  relied in making its good cause determination, demonstrated that W had
  advised the petitioner to withdraw the 2012 petition ‘‘now,’’ there was
  no indication that W also advised the petitioner to refile a new habeas
  petition ‘‘now,’’ or immediately, and, given that the parties and the court
  at the prior proceeding were concerned with the timing of the withdrawal
  of the 2012 petition, and not the refiling of a subsequent habeas petition,
  there was no evidence that anyone at that proceeding advised the peti-
  tioner of the time constraints imposed by § 52-470 (c) or the need to
  refile a habeas petition within a specified period of time.

  Furthermore, there was no merit to the respondent’s claim that the
  Appellate Court’s judgment could be affirmed on the alternative ground
  that the petitioner had failed to establish good cause as a matter of law
  insofar as ignorance of the time constraints imposed by § 52-470 (c) and
  (e), whether attributable to the petitioner or the deficient performance
  of habeas counsel, is insufficient to establish good cause, as this court
  determined that ineffective assistance of counsel in violation of the sixth
  amendment to the United States constitution cannot be imputed to the
  petitioner and, therefore, can constitute an external, objective factor
  under Kelsey that is sufficient to establish good cause to excuse a
  late filing.

  Insofar as the habeas court made no factual findings regarding W’s
  alleged ineffective assistance, this court declined to address that issue
  for the first time on appeal, and, accordingly, the case was remanded
  so that the habeas court could conduct a new hearing and make a good
  cause determination under § 52-470 (c) and (e) in light of its factual
  findings with respect to the performance of prior habeas counsel.
      Argued September 7—officially released December 12, 2023

                           Procedural History

   Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., rendered judgment dismissing
the petition, from which the petitioner, on the granting
of certification, appealed to the Appellate Court, Cradle,
Alexander and Harper, Js., which affirmed the habeas
court’s judgment, and the petitioner, on the granting of
certification, appealed to this court. Reversed; further
proceedings.
  Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
   Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Eva Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
                           Opinion

   ECKER, J. Our recent decision in Kelsey v. Commis-
sioner of Correction, 

, 431–40, 

 (2022), articulated the legal framework governing a
habeas court’s determination of whether there is good
cause to excuse the untimely filing of a petition for a
writ of habeas corpus under General Statutes § 52-470.
This certified appeal requires us to examine the proper
application of that framework to the claim of the peti-
tioner, Steven W. Rose, that good cause excused the
delayed filing of his habeas petition because his former
attorney, Anthony A. Wallace, had advised him to with-
draw a prior timely filed habeas petition but had failed
to advise him of the need to refile a new petition within
the time constraints imposed by § 52-470 (c). The habeas
court rejected the petitioner’s claim and dismissed his
petition as untimely on the ground that Attorney Wal-
lace had advised the petitioner to ‘‘ ‘withdraw but [to]
do it now,’ ’’ and the petitioner had failed to offer a
‘‘reason, impediment, or excuse’’ for the delayed filing
of a subsequent petition. (Emphasis in original.) The
Appellate Court affirmed the judgment of the habeas
court. Rose v. Commissioner of Correction, 

, 

 (2021).
   On appeal to this court, the petitioner claims that
the habeas court’s dismissal was improper because (1)
Attorney Wallace rendered ineffective assistance of
counsel, and (2) the habeas court’s good cause determi-
nation was premised on its clearly erroneous factual
finding that Attorney Wallace had advised the petitioner
to refile his habeas petition ‘‘ ‘now,’ ’’ even though the
uncontradicted evidence presented at the good cause
hearing established that Attorney Wallace never advised
the petitioner of the need to refile his petition with any
immediacy. (Emphasis in original.) We agree with the
petitioner’s second claim and, therefore, reverse the
judgment of the Appellate Court and direct that court
to remand the case to the habeas court for further
proceedings.
   The following facts and procedural history are rele-
vant to this appeal. In connection with a 2007 murder
and robbery, the petitioner was convicted of felony
murder and robbery in the first degree and sentenced
to forty years of incarceration.1 See State v. Rose, 

, 565–67, 

 (2011), cert. denied,

, 

 (2012). The Appellate Court
affirmed the petitioner’s conviction; id., 566, 582; and
this court denied the petitioner’s petition for certifica-
tion to appeal on February 3, 2012. See State v. Rose,

, 

 (2012). The petitioner’s con-
viction became final ninety days later, after the expira-
tion of the time for filing a petition for a writ of certiorari
to the United States Supreme Court. See General Stat-
utes § 52-470 (c) (judgment is final after ‘‘the conclusion
of appellate review or the expiration of the time for
seeking such review’’); see also Casiano v. Commis-
sioner of Correction, 

, 56 n.2, 

 (2015) (criminal convictions become final ‘‘when
the availability of direct appeal to the state courts has
been exhausted and the time for filing a petition for a
writ of certiorari has elapsed or a timely filed petition
has been finally denied’’ (internal quotation marks omit-
ted)), cert. denied sub nom. Semple v. Casiano, 

, 

, 

 (2016).
   The petitioner timely filed his first petition for a writ
of habeas corpus in 2012, shortly after his conviction
became final. Attorney Wallace was appointed to repre-
sent him in that proceeding. Dissatisfied with Attorney
Wallace’s legal representation, the petitioner filed a
motion seeking Attorney Wallace’s removal and the
appointment of new counsel. The habeas court denied
that motion. The petitioner continued to express dissat-
isfaction with Attorney Wallace’s performance, although
he filed no similar motions thereafter. One month prior
to the scheduled habeas trial, in November, 2016, Attor-
ney Wallace filed a motion to continue the trial to inves-
tigate new information, but the court denied that motion,
as well.
   On December 5, 2016, the date on which the trial on
his first habeas petition was scheduled to commence,
the petitioner informed the habeas court that he did
not want to proceed to trial with Attorney Wallace as his
appointed counsel. The petitioner stated that Attorney
Wallace had ‘‘only spent, like, maybe a[n] hour and a
half [with him] over four years’’ and was ‘‘not advocating
for [him].’’ The habeas court told the petitioner that the
proper procedure was to file ‘‘motion[s] to dismiss and
[to] replace counsel’’ or to proceed as a self-represented
petitioner. The habeas court further stated that it would
not dismiss the case without prejudice to refiling on
the eve of trial because ‘‘the Office of the Chief Public
Defender [would] assign the same attorney’’ again. Attorney
Wallace then advised the habeas court that the Office
of the Chief Public Defender would not reappoint him
to represent the petitioner in a future proceeding but,
instead, would appoint a different attorney. Attorney
Wallace also informed the court that he previously had
sent the petitioner a letter advising him that ‘‘he could
withdraw but do it now, and they’ll assign you another
lawyer.’’ At this point in the proceedings, the petitioner
was handed a withdrawal form, which he promptly
signed and completed in open court with the assistance
of Attorney Wallace. The habeas court concluded the
proceedings by dismissing the petitioner’s habeas peti-
tion without prejudice to refiling.
   Approximately fourteen months later, on February
13, 2018, the petitioner filed the present petition for a
writ of habeas corpus, challenging his criminal convic-
tion. The petition raises at least one of the same claims
that the petitioner raised in the 2012 petition, which he
had withdrawn without prejudice to refiling on Decem-
ber 5, 2016, on the advice of counsel.2 The respondent,
the Commissioner of Correction, filed a request for an
order to show cause why the petitioner’s habeas peti-
tion should not be dismissed as untimely under § 52-
470 (c) and (e) because it was filed after October 1,
2017, and more than five years after the petitioner’s
conviction became final. The habeas court conducted
an evidentiary hearing on the respondent’s motion for
an order to show cause. See General Statutes § 52-470
(e). At the hearing, it was undisputed that the petition-
er’s habeas petition was not timely filed and that the
withdrawal of the petitioner’s prior habeas action did
not toll the limitation period. See General Statutes § 52-
470 (d). The sole disputed issue was whether there was
good cause to excuse the untimely filing under § 52-
470 (c) and (e).
   The petitioner’s counsel argued that good cause
existed because the petitioner was under the misappre-
hension that his prior habeas action was still pending
and that new counsel would be appointed. Counsel
also argued that Attorney Wallace failed to inform the
petitioner of the October 1, 2017 deadline to refile his
habeas petition under § 52-470 (c). To support these
arguments, the petitioner’s counsel adduced the testi-
mony of Attorney Wallace, who explained the advice
he gave to the petitioner regarding the withdrawal and
refiling of his habeas petition. Attorney Wallace testified
that, ‘‘before the [habeas] trial—whenever that was
. . . I had either brought the withdrawal form with me
or I sent it up to [the petitioner] ahead of time and said
that you can just refile. I didn’t give him any time
parameters . . . . I didn’t say you have to do it by,
you know, one year, two years, nine years, whatever.
I said just refile it, and they’ll give you another lawyer,
and they can take another look at it.’’ (Emphasis added.)
   Importantly for present purposes, the habeas court
admitted into evidence as a full exhibit the transcript
of the December 5, 2016 proceedings, at which the
petitioner withdrew his previous petition without preju-
dice to refiling. It was from this transcript that the
habeas court learned that, in November, 2016, Wallace
had sent the petitioner a ‘‘letter saying when he could
withdraw [his prior habeas petition] but do it now and
they’ll assign you another lawyer.’’3 The petitioner testi-
fied, consistent with Attorney Wallace’s testimony, that
he was not informed of the date by which his habeas
petition had to be refiled. Additionally, the petitioner
informed the habeas court that he did not realize that
he had to file a new habeas petition; he believed that
his prior habeas petition was still pending and that a
new attorney would be appointed to represent him.
  The habeas court issued a written memorandum of
decision, dismissing the petitioner’s habeas petition as
untimely.4 The court concluded that Attorney Wallace’s
failure to advise the petitioner of the filing deadline in
§ 52-470 (c) prior to the withdrawal of his first habeas
petition did not constitute good cause to excuse the late
filing of the present action because ‘‘Attorney Wallace
indicated [that] the letter or advice he had given to the
petitioner was, ‘he could withdraw but do it now and
they’ll assign you another lawyer.’ . . . The petitioner,
however, did not refile until February 13, 2018, and has
offered no reason, impediment, or excuse—no ‘good
cause’—as to why, rather [than] contemporaneously
refiling his petition, he waited for [more than] one year
after the withdrawal.’’ (Citation omitted; emphasis in
original.) The habeas court granted the petitioner’s petition
for certification to appeal. See General Statutes § 52-
470 (g).
   On appeal to the Appellate Court, the petitioner
claimed that the habeas court incorrectly had deter-
mined that there was no good cause to rebut the statu-
tory presumption of unreasonable delay. See Rose v.
Commissioner of 

 202 Conn. App.
439–40. The Appellate Court held that the habeas court’s
factual findings regarding Attorney Wallace’s advice
were not clearly erroneous and that the habeas court
had not abused its discretion in determining that no
good cause existed to excuse the late filing. See 

443–45. We granted the petitioner’s petition for certifi-
cation to appeal to determine whether ‘‘the Appellate
Court correctly determine[d] that the habeas court had
correctly found that the petitioner did not establish
good cause necessary to excuse the delay in filing under
. . . § 52-470 (e) . . . .’’ Rose v. Commissioner of Cor-
rection, 

, 920–21, 

 (2021).5
   The petitioner claims that the habeas court incor-
rectly concluded that good cause did not exist to excuse
the late filing of his habeas petition for two reasons.
First, the petitioner argues that Attorney Wallace ren-
dered ineffective assistance by advising him to withdraw
a timely filed habeas petition, without also informing
him of the October 1, 2017 deadline to file a subsequent
petition.6 Second, the petitioner argues that the habeas
court’s good cause determination was predicated on its
clearly erroneous factual finding that Attorney Wallace
had advised the petitioner to refile his habeas petition
immediately, even though the uncontradicted evidence
adduced at the good cause hearing established that
Attorney Wallace never advised the petitioner that he
needed to refile his habeas petition within a certain
period of time. We agree with the petitioner’s second
argument and, therefore, do not reach the merits of his
first argument.
   Section 52-470 (c) provides in relevant part that
‘‘there shall be a rebuttable presumption that the filing
of a petition challenging a judgment of conviction has
been delayed without good cause if such petition is
filed after the later of the following: (1) Five years after
the date on which the judgment of conviction is deemed
to be a final judgment due to the conclusion of appellate
review or the expiration of the time for seeking such
review; [or] (2) October 1, 2017 . . . .’’ Pursuant to
subsection (e) of § 52-470, ‘‘the court, upon the request
of the respondent, shall issue an order to show cause
why the petition should be permitted to proceed,’’ and
the petitioner or his counsel then ‘‘shall have a meaning-
ful 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.’’
   A habeas court’s determination of good cause under
§ 52-470 (e) is reviewed for abuse of discretion. See
Kelsey v. Commissioner of 

. We have identified several factors that are relevant
to the good cause determination under § 52-470 (e).
These factors ‘‘include, but are not limited to: (1)
whether external forces outside the control of the peti-
tioner had any bearing on the delay; (2) whether and
to what extent the petitioner or his counsel bears any
personal responsibility 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 dead-
line did the petitioner file the petition.’’ (Internal quota-
tion marks omitted.) Id., 438. ‘‘No single factor’’ is dis-
positive, and, in ascertaining whether good cause exists,
the habeas court must consider ‘‘all relevant factors
in light of the totality of the facts and circumstances
presented.’’ (Internal quotation marks omitted.) Id.
   As the Appellate Court correctly observed, the subor-
dinate factual findings on which a habeas court relies
to arrive at its good cause determination are reviewed
for clear error. See Rose v. Commissioner of Correc-

; see also Velez v. Com-
missioner of Correction, 

, 152 n.12,

, cert. denied, 

, 

(2021). ‘‘A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Bar-
low v. Commissioner of Correction, 

,

 (2022).
   As a factual predicate to its conclusion that the peti-
tioner had failed to establish good cause for his late
filing, the habeas court found that Attorney Wallace
had informed the petitioner to refile his habeas petition
‘‘now’’—that is, immediately following the withdrawal
of his prior petition.7 (Emphasis in original.) This finding
was clearly erroneous. At the good cause hearing, nei-
ther party presented any evidence to support a reason-
able inference that Attorney Wallace had advised the
petitioner to refile his habeas petition ‘‘now.’’ Attorney
Wallace testified that he told the petitioner that he
would have to refile another habeas petition, but he
‘‘didn’t give [the petitioner] any time parameters . . . .
I didn’t say you have to do it by, you know, one year,
two years, nine years, whatever. I said just refile it,
and they’ll give you another lawyer, and they can take
another look at it.’’ Attorney Wallace also testified that
he never informed the petitioner of the time limit for
refiling his habeas petition under § 52-470 (c). The peti-
tioner likewise testified that neither Attorney Wallace
nor anyone else ever advised him of a certain date by
which he needed to refile his habeas petition.
   The habeas court, however, relied on the December
5, 2016 transcript to find that Attorney Wallace had
advised the petitioner that he was required to refile his
habeas petition ‘‘now.’’ The transcript fails to support
the habeas court’s factual finding. The evidence relied
on by the habeas court on this point is the reference
made by Attorney Wallace on December 5, 2016,
informing the prior habeas court that Wallace had writ-
ten a letter to the petitioner ‘‘saying when he could
withdraw but do it now and they’ll assign you another
lawyer.’’ Although Attorney Wallace advised the peti-
tioner to withdraw his prior habeas petition ‘‘now,’’
there is no indication that Attorney Wallace also advised
the petitioner to refile a new habeas petition ‘‘now.’’
Indeed, the record reflects that, at the December 5,
2016 hearing, Attorney Wallace, the respondent’s coun-
sel, and the habeas court were concerned with the tim-
ing of the withdrawal of the first habeas action, not the
refiling of a subsequent habeas action. As the prior
habeas court observed, it was important for the peti-
tioner to withdraw his prior habeas action ‘‘now,’’ mean-
ing before the start of what would have been the first
day of evidence in his first habeas trial, to preserve the
petitioner’s right to withdraw his habeas action without
prejudice to refiling. By withdrawing his prior habeas
petition before the formal presentation of proof, the
petitioner had a right to refile a subsequent habeas
petition in which he could either represent himself or
be represented by a different attorney. The focus at
that point was on the timing of the withdrawal of the
prior habeas action, and there was no evidence that
anyone at the December 5, 2016 hearing advised the
petitioner of the time constraints imposed by § 52-470
(c) or the need to refile his habeas petition within a
specified period of time. Accordingly, there is no sup-
port for the habeas court’s factual finding that the peti-
tioner was informed that he must refile a subsequent
habeas petition ‘‘now’’ or with any urgency or immedi-
acy whatsoever. We therefore conclude that the habeas
court’s factual finding, on which its good cause determi-
nation was based, was clearly erroneous.
  Although the evidentiary record does not support the
habeas court’s good cause determination, the respon-
dent nonetheless contends that the judgment of the
Appellate Court may be affirmed on the alternative
ground that the petitioner failed to establish good cause
as a matter of law. The respondent argues that, under
our recent decision in Kelsey v. Commissioner of Cor-
rection, supra, 343 Conn. 438–39, the petitioner must
prove that external forces outside the control of both
the petitioner and his habeas counsel caused or contrib-
uted to the delayed filing of his habeas petition.
According to the respondent, knowledge of the time
constraints imposed by § 52-470 (c) and (e) is within
the control of the petitioner and his habeas counsel,
and, therefore, ignorance of those time constraints is
insufficient to establish good cause under the statutory
scheme, regardless of whether that ignorance is attrib-
utable to the lack of diligence of a self-represented
petitioner in pursuing his habeas claim or the deficient
performance of habeas counsel. The petitioner disagrees,
arguing that the ‘‘actions of counsel that are ineffective
[under the sixth amendment to the United States consti-
tution] cannot be imputed to the petitioner’’ and, there-
fore, that ineffective assistance of counsel constitutes
an external, objective factor sufficient to establish good
cause. We agree with the petitioner.
  In Kelsey, although the petitioner briefly argued that
his prior habeas counsel had failed to advise him of the
statutory deadline to file a subsequent habeas petition;
see id., 441; the focus of his claim was that his status
as a self-represented party and the conditions of his
confinement caused him to be unaware of the filing
deadline in § 52-470 (d) and, therefore, that good cause
existed to excuse his delayed filing. See id., 444–46.
Consequently, we did not have an opportunity to add-
ress the extent to which the deficient performance of
counsel may constitute good cause under § 52-470 (e).
   To resolve that issue, we turn to the fundamental
distinction between internal and external factors that
cause or contribute to a petitioner’s failure to comply
with a procedural rule. As we previously have observed
in the context of the procedural default doctrine,8 ‘‘[a]
factor is external to the defense if it cannot fairly be
attributed to the [petitioner]. . . . Objective factors
external to the defense include, but are not limited to,
a showing that the factual or legal basis for a claim was
not reasonably available to counsel, outside interfer-
ence by officials that made compliance impracticable,
and ineffective assistance of counsel that violates the
sixth amendment.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) Saunders v. Commiss-
ioner of Correction, 

, 

 (2022).
  Ineffective assistance of counsel is an objective factor
external to the defense because ‘‘ ‘the [s]ixth [a]mend-
ment itself requires that responsibility for the default
be imputed to the [s]tate. . . . In other words, it is not
the gravity of the attorney’s error that matters, but that
it constitutes a violation of [the] petitioner’s right to
counsel, so that the error must be seen as an external
factor, i.e., imputed to the [s]tate.’ ’’ Id., 22, quoting
Coleman v. Thompson, 

, 

, 

 (1991). Although a petitioner
is bound by his counsel’s inadvertence, ignorance, or
tactical missteps, regardless of ‘‘whether counsel is flout-
ing procedural rules or hedging against strategic risks,’’
a petitioner is not bound by the ineffective assistance of
his counsel. Saunders v. Commissioner of Correction,
supra, 21–22; see Johnson v. Commissioner of Correc-
tion, 

, 

 (2008) (under
procedural default doctrine, ‘‘although ignorance or
inadvertence is not cause, ineffective assistance of coun-
sel is a legitimate ground for cause’’ (internal quotation
marks omitted)); Cobham v. Commissioner of Correc-
tion, 

, 

 (2001) (‘‘attorney
error short of ineffective assistance of counsel does not
adequately excuse compliance with our rules of [trial
and] appellate procedure’’ (internal quotation marks omit-
ted)); see also Coleman v. 

 (under
‘‘[well settled] principles of agency law,’’ client is bound
by ‘‘alleged attorney error,’’ unless it rises to the level
of ineffective assistance); Murray v. Carrier, 

, 

, 

 (1986) (‘‘[i]nef-
fective assistance of counsel . . . is cause for a proce-
dural default’’ because ‘‘the [s]ixth [a]mendment itself
requires that responsibility for the default be imputed
to the [s]tate’’). Consistent with this authority, we con-
clude that ineffective assistance of counsel is an objec-
tive factor external to the petitioner that may constitute
good cause to excuse the late filing of a habeas petition
under the totality of the circumstances pursuant to § 52-
470 (c) and (e).
   We recognize that the Appellate Court has held that
a habeas attorney’s ignorance of the law and poor
advice that results in the untimely filing of a habeas
petition is not an external, objective factor sufficient
to establish good cause under § 52-470. See Coney v.
Commissioner of Correction, 

, 110–
12, 

 (2022) (counsel’s ignorance of time
constraints in § 52-470 (d) and (e) and advice to peti-
tioner to withdraw timely filed habeas petition and to
refile petition after expiration of time limitation were
not external, objective factors sufficient to rebut statu-
tory presumption of untimeliness); Michael G. v. Com-
missioner of Correction, 

, 369–72,

 (2022) (same). We read Coney and Michael
G. as standing for the unremarkable proposition that a
habeas court may conclude, on the basis of the particu-
lar factual circumstances presented, that a petitioner
should be bound by his counsel’s inadvertence, igno-
rance, or other mistakes that do not rise to the level
of ineffective assistance of counsel. The Appellate
Court did not address whether the ignorance and poor
advice of counsel constituted deficient performance
of counsel in violation of the sixth amendment and,
therefore, did not hold that ineffective assistance of
counsel can never constitute good cause under § 52-
470 as a matter of law.
   Having determined that ineffective assistance of
counsel is an external, objective factor that may consti-
tute good cause to excuse the delayed filing of a habeas
petition under § 52-470 (c) and (e), the petitioner asks
us to conclude that good cause exists in the present
case because Attorney Wallace rendered ineffective
assistance by advising him to withdraw a timely filed
habeas petition, without also having advised him that
he must refile his petition within the time constraints
imposed by § 52-470 (c). The habeas court, however,
made no factual findings regarding Attorney Wallace’s
alleged ineffective assistance, and, in the absence of
such findings, we will not address the issue for the first
time on appeal. See, e.g., Small v. Commissioner of
Correction, 

, 

 (‘‘[w]hen
the record on appeal is devoid of factual findings by
the habeas court as to the performance of counsel, it
is improper for an appellate court to make its own
factual findings’’), cert. denied sub nom. Small v. Lantz,

, 

, 

 (2008). We
therefore decline to address the petitioner’s ineffective
assistance of counsel claim and, instead, order a remand
of the present case to the habeas court for a new hearing
and good cause determination under § 52-470 (c) and
(e).
  The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the habeas court’s judgment and to remand the
case to that court for further proceedings in accordance
with this opinion.
      In this opinion the other justices concurred.
  1
     The petitioner also was convicted of attempt to commit robbery in the
first degree, but that conviction was vacated after he filed a motion to
correct an illegal sentence.
   2
     Both petitions raised a claim of ineffective assistance of counsel in the
criminal case.
   3
     The petitioner did not offer the letter into evidence.
   4
     The habeas court concluded that the deadline by which the petitioner’s
habeas petition was required to be refiled was February 3, 2017—five years
after the denial of his petition for certification to appeal from the Appellate
Court’s judgment affirming his criminal conviction. On appeal, both parties
agree that the habeas court miscalculated the deadline and that the correct
deadline was October 1, 2017. See General Statutes § 52-470 (c) (1) and (2)
(habeas petition must filed by ‘‘the later of the following’’ dates: five years
following final judgment, or October 1, 2017). This error has no impact on
the present appeal because the petitioner filed his subsequent habeas peti-
tion after the expiration of both the February 3 and October 1, 2017 deadlines,
and, thus, the petition was untimely under both § 52-470 (c) (1) and (2).
   5
     We also certified the issue of whether ‘‘the Appellate Court correctly
determine[d] that abuse of discretion is the appropriate standard of review
for dismissals of habeas petitions pursuant to § 52-470 (e) . . . .’’ Rose v.
Commissioner of Correction, supra, 

. Following our grant of
certification, however, we issued our decision in Kelsey v. Commissioner
of Correction, supra, 

, in which we clarified the standard of
review governing a habeas court’s dismissal of an untimely filed habeas
petition for failure to establish good cause under § 52-470 (e). We held in
Kelsey that ‘‘a habeas court’s determination regarding good cause under
§ 52-470 (e) is reviewed on appeal only for abuse of discretion.’’ Id., 440. In
the present case, the petitioner argues that Kelsey is distinguishable because
it did not involve a claim of ineffective assistance of counsel, which is a
mixed question of law and fact subject to plenary review. Alternatively, the
petitioner asks us to reconsider our holding in Kelsey, arguing that the
existence of good cause should not be subject to the discretion of the habeas
court. Because we do not address the merits of the petitioner’s ineffective
assistance of counsel claim, we need not decide whether a different standard
of review governs a good cause determination premised on such a claim.
To the extent that the petitioner asks us to overrule our recent decision in
Kelsey, we decline to do so.
   6
     The respondent contends that the petitioner’s ineffective assistance of
counsel claim is not reviewable because it was not raised in the habeas
court or decided by the Appellate Court. The petitioner responds that,
although he did not explicitly cite Strickland v. Washington, 

, 

, 

 (1984), in the habeas court, he effectively
raised an ineffective assistance of counsel claim by arguing that his habeas
counsel had misadvised him ‘‘to withdraw [his prior habeas petition] without
providing advice about the consequences of withdrawing.’’ Because we do
not address the merits of the petitioner’s ineffective assistance of counsel
claim, we need not decide whether it was adequately preserved for appellate
review. We note, however, that the petitioner may raise such a claim on
remand. We express no opinion on the merits of such a claim.
   7
     The respondent does not dispute that the habeas court’s good cause
determination was based on its factual finding that Attorney Wallace had
‘‘advise[d] the petitioner of the need to refile his petition ‘now,’ i.e., with
some immediacy after withdrawing his prior petition.’’
   8
     As we recognized in Kelsey, the procedural default doctrine, pursuant
to which a petitioner is barred from raising a claim for the first time in a
habeas proceeding unless there is cause and prejudice to excuse the proce-
dural default, is ‘‘a narrow subset of what can constitute good cause under
§ 52-470 (e).’’ Kelsey v. Commissioner of Correction, supra, 

.
Although good cause ‘‘is a broader and more fact dependent concept than
is the ‘cause’ considered in the context of procedural default’’; id.; the case
law concerning procedural default is instructive because of its exclusive
focus ‘‘on whether the petitioner has demonstrated that an objective factor
external to the defense impeded compliance with [a] procedural rule.’’
Id., 439.