Rodriguez-Luna v. Commissioner Of Correction

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The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  Rodriguez-Luna v. Commissioner of Correction DAVID RODRIGUEZ-LUNA v. COMMISSIONER OF CORRECTION (AC 48184) Clark, C. J., and Westbrook and Palmer, Js. Syllabus The petitioner, who previously had been convicted of sexual assault in the second degree and violation of a protective order, appealed following the denial of his petition for certification to appeal from the habeas court’s judgment dismissing his petition for a writ of habeas corpus. He claimed that the court improperly rejected his claim that he established good cause pursuant to statute (§ 52-470 (e)) to overcome the presumption of unreason- able delay stemming from the untimely filing of his habeas petition. Held: The habeas court did not abuse its discretion in concluding that the petitioner did not establish good cause for the delay in filing his habeas petition, as the court properly considered all four factors set forth in Kelsey v. Commissioner of Correction (343 Conn. 424) when making its good cause determination and assumed that trial counsel’s lack of disclosure of the availability of habeas proceedings to the petitioner constituted an external factor and considered that factor as part of its good cause analysis. The habeas court did not abuse its discretion in denying the petitioner’s petition for certification to appeal, as the petitioner failed to establish that the court’s conclusion that he had not demonstrated good cause for the delay was debatable among jurists of reason, that a court could resolve the issues in a different manner, or that the questions were adequate to deserve encouragement to proceed further. Argued September 14—officially released November 3, 2026 Procedural History Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Schibley, J., rendered judgment dismissing the petition; thereafter, the court, Schibley, J., denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed. J. Patten Brown III, assigned counsel, for the appel- lant (petitioner). Asheley G. Pankratz, assistant state’s attorney, with whom, on the brief, was Paul Narducci, state’s attorney, for the appellee (respondent).  Rodriguez-Luna v. Commissioner of Correction Opinion PER CURIAM. The petitioner, David Rodriguez-Luna, appeals following the denial of his petition for certifica- tion 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 (e). On appeal, the petitioner claims that the court improperly rejected his claim that he established “good cause” pur- suant to § 52-470 (e) to overcome the presumption of unreasonable delay stemming from the untimely filing of his habeas petition. We disagree and, accordingly, dismiss the appeal. The following facts and procedural history, as set forth by the habeas court, are relevant to the petitioner’s claims on appeal. “[The petitioner] pleaded guilty to sexual assault in the second degree and violation of a protective order on October 23, 2013, and received a total effec- tive sentence of ten years of incarceration, execution suspended after two years, with ten years of probation. See State v. Rodriguez-Luna, Superior Court, judicial district of New London, Docket No. CR-XX-XXXXXXX-S (October 23, 2013); State v. Rodriguez-Luna, Supe- rior Court, judicial district of New London, Docket No. CR-XX-XXXXXXX-S (October 23, 2013). He was represented during those proceedings by Attorney Thomas Teixeira. The petitioner did not appeal from the resulting convic- tions. “On October 2, 2023, the petitioner filed the petition for habeas corpus underlying the present proceeding. . . . On July 19, 2024, the respondent, the Commissioner of Correction, filed a motion seeking an order to show cause pursuant to . . . § 52-470 (c).1 . . . That motion argued 1 General Statutes § 52-470 (c) provides in relevant part: “Except as provided in subsection (d) of this section, 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 . . . .”  Rodriguez-Luna v. Commissioner of Correction . . . that the instant petition was filed more than five years after his criminal convictions became final. . . . The respondent requested that the court dismiss the petition absent good cause shown. The petitioner subsequently filed responses [on August 20 and September 19, 2024] contending that good cause existed under the facts and circumstances presented.” (Citations omitted; footnote added.) The petitioner did not dispute that his habeas petition was presumptively untimely under § 52-470 (c).2 On September 25, 2024, the habeas court, Schibley, J., held a show cause hearing. The petitioner was the only witness who testified at the hearing. On the basis of the petitioner’s testimony, the petitioner’s counsel argued, inter alia, that the petitioner had established good cause because his trial counsel had failed to advise him of the availability of a habeas corpus proceeding, and he did not know what a habeas proceeding was until 2023, at which time he promptly filed the present habeas action. The petitioner testified and the petitioner’s counsel argued that, if the petitioner had known about habeas proceed- ings earlier, he would have filed his petition sooner. In its September 27, 2024 memorandum of decision, the habeas court made the following factual findings: “First, the court finds that the petitioner was credible in stating that [trial counsel] never discussed the writ of habeas corpus with him. Second, the court finds that the petitioner was not prevented from accessing legal resources during the period of his confinement. Third, the court finds that the petitioner was at liberty for a period of approximately five years and eight months between the date of sentencing and the date he filed his petition. Finally, during that time, the court finds no credible evidence of any meaningful impediment to the 2 The petitioner was convicted under both dockets on October 23, 2013, and did not appeal the convictions. Thus, the petitioner’s judgments of conviction became final on November 12, 2013. See Practice Book § 63-1 (a) (direct appeal must be filed within twenty days of judgment). The petitioner filed the current habeas action on October 2, 2023, almost ten years after the judgments of conviction became final.  Rodriguez-Luna v. Commissioner of Correction petitioner’s ability to conduct his own legal research or seek independent legal advice.” In analyzing whether the petitioner established good cause for his untimely petition, the habeas court began by noting that, under our Supreme Court’s decision in Kelsey v. Commissioner of Correction, 343 Conn. 424, 441–42, 274 A.3d 85 (2022), “[t]o rebut successfully the presumption of unreasonable 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. . . . Factors relevant to this inquiry include: (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 the evidence in the record; and (4) how long after the expiration of the filing deadline did the petitioner file the petition. . . . No single factor in this analysis is dispositive.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Applying the Kelsey factors to the facts of the petition at issue in this case, the habeas court concluded that the petitioner had failed to establish good cause for his untimely petition. In reaching that conclusion, the court assumed for purposes of its analysis that trial counsel’s “failure to affirmatively discuss the possibility of seeking habeas relief . . . constitute[d] an external factor properly considered in the context of an order to show cause.” Nevertheless, the court found that “the absence of an affirmative advisement by [trial counsel] at the time of sentencing is itself insufficient to overcome the weight of other Kelsey factors. The petitioner’s prolonged failure to pursue his claim of ineffective assistance for almost a decade leads this court to conclude that he is personally responsible, in a direct and significant manner, for the untimely filing of his petition.” (Emphasis omitted.) On  Rodriguez-Luna v. Commissioner of Correction October 3, 2024, the court denied the petitioner’s peti- tion for certification to appeal and this appeal followed. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discre- tion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . . To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a dif- ferent manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . “In determining whether the habeas court abused its discretion in denying the petitioner’s request for certi- fication, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. . . . “The conclusions reached by the [habeas] court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclu- sions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . . To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . .” (Internal quotation marks omitted.) Holley v. Commissioner of Correction, 225 Conn. App. 477, 481–82, 315 A.3d 1107 (2024).  Rodriguez-Luna v. Commissioner of Correction On appeal, the petitioner claims that the habeas court improperly dismissed his habeas petition and denied his petition for certification to appeal. More specifically, he argues that the court failed to consider his ineffective assistance of counsel claim when determining good cause; see Rose v. Commissioner of Correction, 348 Conn. 333, 346–48, 304 A.3d 431 (2023); and abused its discretion in finding that the petitioner was personally responsible for the delay in filing the habeas petition. We disagree. Section 52-470 (c) provides in relevant part: “[T]here 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 . . . [f]ive years after the date on which the judgment of conviction is deemed to be a final judgment due to the con- clusion of appellate review or the expiration of the time for seeking such review . . . .” Section 52-470 (e) provides in relevant part: “[T]he 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 . . . 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. . . .” This court reviews a habeas court’s determination of good cause pursuant to § 52-470 (e) for an abuse of discre- tion. See Kelsey v. Commissioner of Correction, supra, 343 Conn. 440. As the habeas court explained, factors relevant to the good cause determination “include, but are not limited to: (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 responsibility for any excuse proffered for the untimely filing; (3) whether the reasons prof- fered 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 petitioner file the petition.” (Internal  Rodriguez-Luna v. Commissioner of Correction quotation marks omitted.) Id., 438. No single factor is dispositive, and the court considers them in light of the totality of the circumstances when determining whether good cause exists. Id., 438–440. “[T]o rebut successfully the presumption of unreasonable 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.” (Internal quotation marks omitted.) Id., 441–42. “[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 interference by officials that made compliance impracticable, and ineffective assistance of counsel that violates the sixth amendment. . . . “Ineffective assistance of counsel is an objective fac- tor 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 coun- sel, so that the error must be seen as an external factor, i.e., imputed to the [s]tate. . . . 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.” (Citations omitted; internal quotation marks omitted.) Rose v. Commissioner of Correction, supra, 348 Conn. 347–48. Furthermore, although ineffective assistance of coun- sel is a factor external to the defense, that does not neces- sarily mean that it is sufficient to establish good cause in every case. As this court has explained, although “the habeas court may conclude that ineffective assistance of counsel constitutes good cause . . . it is not required to do so. Such a determination is still left to the discretion  Rodriguez-Luna v. Commissioner of Correction of the habeas court taking into consideration the Kelsey factors. . . . For example, in the context of a purported failure to advise the petitioner of the applicable filing deadline, the habeas court could conclude that counsel’s failure was constitutionally deficient and still conclude that good cause does not exist because the petitioner was otherwise aware of the deadline or unreasonably delayed in filing a new petition when he had opportunities to inde- pendently discover the applicable deadline. In the end, the court’s conclusion as to whether the petitioner has established good cause is still reviewed under the abuse of discretion standard.” (Citations omitted; emphasis added.) Hankerson v. Commissioner of Correction, 223 Conn. App. 562, 570–71, 308 A.3d 1113 (2024); see also Hobby v. Commissioner of Correction, 238 Conn. App. 644, 647, 357 A.3d 295 (habeas court did not credit petitioner’s testimony that habeas counsel’s failure to inform petitioner of § 52-470 filing deadlines established good cause for filing delay), cert. denied, 354 Conn. 943, 356 A.3d 345 (2026). Further, in determining whether good cause exists to overcome the presumption of unreasonable delay in the filing of a habeas petition pursuant to § 52-470 (e), “every- one is presumed to know the law, and . . . ignorance of the law excuses no one . . . .” (Internal quotation marks omit- ted.) Felder v. Commissioner of Correction, 202 Conn. App. 503, 511, 246 A.3d 63 (2021), aff’d, 348 Conn. 396, 306 A.3d 1061 (2024); see id., 519 (“The only evidence the petitioner presented to support his contention that he was unaware of the filing deadline in § 52-470 was his own testimony that he lacked personal knowledge of the deadline and that he was never informed of it by his previous habeas counsel. Although it is unclear whether the habeas court credited the petitioner’s assertion, the habeas court properly concluded that a mere assertion of ignorance of the law, without more, is insufficient to establish good cause.”). Thus, this court has affirmed a habeas court’s determination that a petitioner failed to establish good cause for delay when the record indicated that the petitioner had sufficient time and access to  Rodriguez-Luna v. Commissioner of Correction resources to discover the deadline to file a habeas peti- tion. See, e.g., Solek v. Commissioner of Correction, 203 Conn. App. 289, 294–95, 248 A.3d 69 (petitioner did not demonstrate good cause for delay “because, even if [court] found credible the petitioner’s testimony that counsel gave incorrect advice, it was not credible that, within the six years between the giving of the advice sometime in 2008, and the deadline for filing his second petition on October 1, 2014, the petitioner would not have discovered that the advice was incorrect” (footnote omit- ted)), cert. denied, 336 Conn. 935, 248 A.3d 709 (2021); Kelsey v. Commissioner of Correction, 202 Conn. App. 21, 41–42, 244 A.3d 171 (2020) (habeas court held that petitioner did not establish good cause for late filing of habeas petition, despite petitioner’s assertion that he had no access to legal resources, because “petitioner’s own testimony was that, for some portion of the time prior to the expiration of the two year limitation period, he was housed in the general prison population and had access to legal resources” and “ignorance of the limitation period or lack of legal experience generally is insufficient cause to excuse an untimely filed petition”), aff’d, 343 Conn. 424, 274 A.3d 85 (2022). In the present case, the habeas court did not abuse its discretion when it concluded that the petitioner did not establish good cause for the delay in filing his petition for a writ of habeas corpus and, on that basis, dismissed the habeas petition and denied the petition for certification to appeal. The court considered all four Kelsey factors when making its good cause determination. Further, the court assumed that trial counsel’s lack of disclosure of the availability of habeas proceedings to the petitioner constituted an external factor; see Rose v. Commissioner of Correction, supra, 348 Conn. 346–48; and consid- ered that factor as part of its good cause analysis. The court nevertheless concluded that the petitioner failed to make a showing of good cause sufficient to overcome the presumption of unreasonable delay because of the petitioner’s inexcusable failure to access and research legal resources independently prior to the expiration of  Rodriguez-Luna v. Commissioner of Correction the habeas filing deadline. The court found that, “for several years, the petitioner took no meaningful steps to request legal assistance or to conduct any independent legal research with respect to [his] claims” and that, “[e]ven if the petitioner did, in fact, remain subjectively unaware of his right to seek the writ . . . that ignorance was primarily the result of his own inaction.” The record supports the court’s factual findings, and the petitioner does not argue that the court’s factual findings were clearly erroneous. The court properly considered the Kelsey factors, and its conclusion that the petitioner failed to establish good cause for delay was reasonable on the basis of the record before it. The petitioner has failed to establish that the habeas court’s conclusion that he has not demonstrated good cause for the delay is “debatable among jurists of rea- son; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis omitted; internal quotation marks omitted.) Simms v. Warden, supra, 230 Conn. 616. Accordingly, we conclude that the court did not abuse its discretion in denying the petitioner’s petition for certification to appeal. The appeal is dismissed.