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2 , 0 0 Conn. App. 1

Michael G. v. Commissioner of Correction

MICHAEL G. v. COMMISSIONER OF CORRECTION*

(AC 43327)

Suarez, Westbrook and Prescott, Js.

Syllabus

The petitioner, who previously had been convicted of various crimes,

appealed to this court 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 the applicable statute

(§ 52-470 (d) and (e)). On appeal, the petitioner claimed 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. Held that, in accordance with our Supreme

Court’s recent decision in Rose v. Commissioner of Correction (348

Conn. 333) and this court’s recent decision in Hankerson v. Commissioner of Correction (223 Conn. App. 562), this court reversed the judgment of the habeas court and remanded the case for a new hearing and

good cause determination under § 52-470 (d) and (e).

Argued April 15—officially released May 7, 2024

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; thereafter, the court denied the petition

for certification to appeal, and the petitioner appealed

to this court, Alvord, Cradle and Eveleigh, Js., which

dismissed the appeal; subsequently, on the granting of

certification, the petitioner appealed to the Supreme

Court, which vacated the judgment of this court and

remanded the case to this court. Reversed; further proceedings.

Jennifer B. Smith, assigned counsel, for the appellant

(petitioner).

* In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to use the petitioner’s full name or to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
0, 0 CONNECTICUT LAW JOURNAL Page 1

0 Conn. App. 1 , 0 3

Michael G. v. Commissioner of Correction

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).

Opinion

PER CURIAM. The 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).1 The

respondent, 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 latefiled petition. In particular, the petitioner argues that

1 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.’’
Page 2 CONNECTICUT LAW JOURNAL 0, 0

4 , 0 0 Conn. App. 1

Michael G. v. Commissioner of Correction

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),2 we conclude that the judgment of

the habeas court must be reversed, and we remand the

case for a new hearing and good cause determination

under § 52-470 (d) and (e).

The judgment of the habeas court is reversed and the

case is remanded for further proceedings in accordance

with this opinion.

2 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., 378. 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).