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LaSalle v. Commissioner of Correction

MARCELINO LASALLE, JR. v. COMMISSIONER

OF CORRECTION

(AC 46325)

Bright, C. J., and Cradle and Seeley, Js.

Syllabus

The petitioner, who had been convicted of murder, sought a writ of habeas

corpus more than two years after the judgment had become final in the

petitioner’s previous state habeas action. The respondent, the Commissioner of Correction, sought an order to show cause pursuant to statute

(§ 52-470 (d) and (e)), asserting that the petition was untimely. At the

show cause hearing, the petitioner testified that he had been diagnosed

with dyslexia and attention deficit disorder and that he had reading and

writing difficulties. The habeas court dismissed the petition as untimely

and denied the petition for certification to appeal. On the petitioner’s

appeal to this court, held that the habeas court did not abuse its discretion in denying the petition for certification to appeal following its

determination that the petitioner had failed to establish good cause to

overcome the statutory presumption of unreasonable delay in the filing

of his untimely habeas petition: the habeas court did not find the petitioner’s testimony as to his alleged mental deficiencies credible for the

purpose of establishing good cause, and this court must defer to the

credibility findings of the habeas court based on its firsthand observation

of a witness’ conduct, demeanor, and attitude; moreover, despite the

petitioner’s attempt in his appellate brief to explain how his alleged

mental deficiencies contributed to the delay in filing his habeas petition,

he did not make such an attempt before the habeas court, asserting

only that his alleged mental deficiencies affected his ability to read and

write and to understand the legal process, and the record revealed that

he was able to file both a first state habeas petition and a federal habeas

petition as a self-represented party while struggling with the same alleged

deficiencies; furthermore, although he testified that he had previously

relied on certain fellow inmates acting as jailhouse lawyers to help with

filing petitions, the record was devoid of evidence or explanation as to

why his alleged mental deficiencies prevented him from utilizing these

jailhouse lawyers to file the present petition earlier than he did.

Argued May 16—officially released August 20, 2024

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of
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LaSalle v. Commissioner of Correction

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. Appeal dismissed.

Cheryl A. Juniewic, assigned counsel, for the appellant (petitioner).

Meryl R. Gersz, assistant state’s attorney, with whom,

on the brief, were Paul J. Narducci, state’s attorney,

and Elizabeth Moseley, senior assistant state’s attorney,

for the appellee (respondent).

Opinion

CRADLE, J. The petitioner, Marcelino LaSalle, Jr.,

appeals from 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 On appeal, the petitioner claims that the habeas

1 General Statutes § 52-470 provides in relevant part: ‘‘(a) The court or

judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments

in the case, and shall inquire fully into the cause of imprisonment and

thereupon dispose of the case as law and justice require. . . .

‘‘(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 . . . applies,

the court, upon the request of the respondent, shall issue an order to show
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LaSalle v. Commissioner of Correction

court abused its discretion in denying his petition for

certification to appeal following its determination that

the petitioner had failed to demonstrate good cause to

overcome the statutory presumption of unreasonable

delay for the filing of his untimely habeas petition. We

disagree and, accordingly, dismiss the appeal.

The following procedural history is relevant to the

petitioner’s claim on appeal. Following a jury trial, the

petitioner was convicted of one count of murder in

violation of General Statutes § 53a-54a (a). State v.

LaSalle, 95 Conn. App. 263, 265, 897 A.2d 101, cert.

denied, 279 Conn. 908, 901 A.2d 1227 (2006). On July

19, 2004, the trial court sentenced him to fifty-three

years of incarceration. This court affirmed his conviction; id., 279; and our Supreme Court denied his petition

for certification to appeal. State v. LaSalle, 279 Conn.

908, 901 A.2d 1227 (2006). The petitioner, then a selfrepresented party, commenced his first habeas action

on August 15, 2006, which was denied on April 29,

2011, after a trial during which he was represented by

counsel. This court dismissed the petitioner’s appeal

from that decision; LaSalle v. Commissioner of Correction, 139 Conn. App. 910, 56 A.3d 763 (2012), cert.

denied, 308 Conn. 916, 62 A.3d 527 (2013); and our

Supreme Court, on March 13, 2013, denied his petition

for certification to appeal from this court. LaSalle v.

Commissioner of Correction, 308 Conn. 916, 62 A.3d

527 (2013).

In November, 2013, the petitioner commenced a federal habeas action as a self-represented party, and the

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. . . .’’
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LaSalle v. Commissioner of Correction

United States District Court for the District of Connecticut denied his petition for a writ of habeas corpus in

a memorandum of decision dated July 8, 2014.2 LaSalle

v. Murphy, United States District Court, Docket No.

3:13CV01703 (JBA) (D. Conn. July 8, 2014).

The petitioner commenced the present habeas action

as a self-represented party on October 10, 2019, and

filed an amended petition on May 7, 2021. On March 23,

2022, the respondent, the Commissioner of Correction,

sought an order to show cause pursuant to § 52-470 (d)

and (e), asserting that the petitioner’s present habeas

petition was filed more than two years after the judgment became final in the petitioner’s previous habeas

action. The habeas court, Oliver, J., issued an order to

show cause for the delay in filing the petition and,

on December 16, 2022, the court, Newson, J., held a

hearing.

At the hearing, the petitioner, who was then represented by counsel, presented only his own testimony.

He testified that he had been diagnosed with dyslexia

and attention deficit disorder (ADD) and that, when he

was first incarcerated, he could read only at ‘‘a first

grade, second grade maybe, level’’ and he could not

write. He testified, as to his dyslexia, that ‘‘a lot of times,

I’ll read, I’ll try to read, and things will be backwards

for me like numbers. A 69, I might see it as 96. And as

far as sounds . . . something that might be an ‘a’ I

think is an ‘o’ and stuff like that.’’ As to his ADD, he

testified that, ‘‘unless it’s something that I really like—

2 The statutory time period, pursuant to § 52-470 (d), for filing a subsequent

habeas petition begins running on the date on which the judgment in the

prior state habeas petition is deemed to be a final judgment; see General

Statutes § 52-470 (d); which, in the petitioner’s case, was March 13, 2013.

The petitioner’s federal habeas petition did not toll the running of the statutory time period. See Felder v. Commissioner of Correction, 348 Conn. 396,

404–405, 306 A.3d 1061 (2024) (concluding that phrase ‘‘prior petition’’ as

used in § 52-470 (d) ‘‘unambiguously refers only to prior state habeas petitions’’ and does not include federal habeas petitions).
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LaSalle v. Commissioner of Correction

for instance, I like muscle cars. If I’m reading a magazine

about muscle cars, I can focus in pretty good because

I enjoy them so much. But if it’s something that I don’t

like or don’t understand, while I’m trying to understand,

I got three other things in my head, you know, fighting

for like attention.’’

He also testified that the law is ‘‘nothing I can comprehend. . . . I can’t make heads or tails of it.’’ He testified

that, in filing both his state habeas petitions and his

federal habeas petition, he ‘‘had somebody fill it out’’

for him. He referred to that person as a ‘‘legal beagle’’

and testified that ‘‘legal beagles’’ are other inmates who

charge for their services and do not have law degrees,

and he agreed that inmates are ‘‘at the mercy of their

timeline.’’

The habeas court dismissed the petitioner’s petition

in a memorandum of decision dated January 17, 2023.

The court reasoned that ‘‘the present action was commenced about three years and ten months beyond the

statutory period.3 . . . Notwithstanding [the petitioner’s testimony], [he], although admitting he had help,

was able to file his first habeas action as a self-represented person and also made glancing mention of pursuing some sort of federal action that was heard in New

York. He also admits that he received information and

assistance from jailhouse lawyers with preparing legal

paperwork for his prior legal actions, but offered no

reason why such assistance was unavailable to guide

him after his prior habeas became final in December,

2013.4 Finally, despite his claimed . . . lack of education and knowledge of the legal system, the petitioner

3 The record reveals that the petitioner commenced the present habeas

action approximately six years and seven months after the judgment in his

first state habeas case became final, which is approximately four years and

seven months after the statutory filing deadline under § 52-470 (d). 4 The record reveals that the judgment in his prior state habeas became

final on March 13, 2013, when our Supreme Court denied his petition for

certification to appeal from this court.
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LaSalle v. Commissioner of Correction

was able to manage his way self-represented through

a federal habeas corpus trial challenging his conviction. . . .

‘‘[T]he petitioner offers no truly credible evidence of

any external factors outside the control of the petitioner

resulting in the present petition being filed nearly four

years beyond the allowable two year period. The court

finds that there has been no good cause for the delay.

. . . [T]he petition for writ of habeas corpus is dismissed.’’ (Citations omitted; emphasis omitted; footnotes added; internal quotation marks omitted.) The

petitioner then filed a petition for certification to appeal

from the habeas court’s dismissal of his petition for

writ of habeas corpus, which the habeas court denied.

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 [denial] 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

discretion. . . . 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 different 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 certification, we necessarily must
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LaSalle v. Commissioner of Correction

consider the merits of the petitioner’s underlying claims

to determine whether the habeas court reasonably

determined that the petitioner’s appeal was frivolous.

In other words, we review the petitioner’s substantive

claims for the purpose of ascertaining whether those

claims satisfy one or more of the three criteria . . .

adopted by [our Supreme Court] for determining the

propriety of the habeas court’s denial of the petition

for certification. . . .

‘‘[A] habeas court’s determination regarding good

cause under § 52-470 (e) is reviewed on appeal only

for abuse of discretion. Thus, [w]e will make every

reasonable presumption in favor of upholding the trial

court’s ruling[s] . . . . In determining whether there

has been an abuse of discretion, the ultimate issue is

whether the court . . . reasonably [could have] conclude[d] as it did.’’ (Citation omitted; internal quotation

marks omitted.) Canales v. Commissioner of Correction, 216 Conn. App. 827, 832–33, 286 A.3d 936 (2022),

cert. denied, 348 Conn. 905, 302 A.3d 295 (2023).

Here, it is undisputed that the petitioner untimely

filed the present habeas petition. On appeal, the petitioner claims that the court abused its discretion by

denying his petition for certification to appeal in that

it had improperly determined that he did not establish

good cause for his delay in filing the present habeas

petition. Specifically, the petitioner argues that he demonstrated good cause by testifying that he had been

diagnosed with dyslexia and ADD and had resultantly

experienced reading and writing difficulties. His alleged

diagnoses, he contends, ‘‘caused the perfect storm,

resulting in his inability to advocate for himself, because

he lacked the reading skills, focus and organizational

skills necessary to comprehend the legal system and

advocate for himself . . . .’’ He further argues that

these ‘‘mental and intellectual limitations’’ led him ‘‘to

. . . rely on the advice of so-called ‘legal beagles’ or
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LaSalle v. Commissioner of Correction

‘jailhouse lawyers’ . . . who did not graduate from law

school . . . .’’ The petitioner asserts, in conclusion,

that ‘‘[t]he mere fact that [he] admittedly suffers from

dyslexia and [ADD] proves that both medical conditions

. . . establish good cause pursuant to the criteria as

defined in . . . § 52-470, in that external forces outside

of the control of the petitioner caused the delay in the

filing of his pro se petition . . . .’’5 We disagree.

‘‘[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

5 The petitioner asserts three additional arguments that we need not

address. First, in his reply brief and, through counsel, at oral argument

before this court, he argued that he was ignorant of the filing deadline and

that this, combined with his alleged mental deficiencies, established good

cause for the delay in filing his petition. Although the petitioner testified

during his habeas trial that he was unaware of § 52-470 and that he would

have filed his petition sooner if he had been aware of the statutory deadline,

he did not make an argument as to ignorance of the law in his principal

appellate brief. Similarly, he also argued, in his reply brief, and, through

counsel, at oral argument before this court, that he was not able to timely

file his petition in part because ‘‘none of his prior attorneys discussed the

timeline for the filing of successive habeas petitions . . . .’’ We decline to

address either of these arguments, which were raised before this court only

in the petitioner’s reply brief; see Lewis v. Commissioner of Correction,

211 Conn. App. 77, 101, 271 A.3d 1058 (‘‘arguments cannot be raised for the

first time in a reply brief’’ (internal quotation marks omitted)), cert. denied,

343 Conn. 924, 275 A.3d 1213 (2022), and cert. denied sub nom. Lewis v.

Quiros, U.S. , 143 S. Ct. 335, 214 L. Ed. 2d 150 (2022); and at oral

argument. See Traylor v. State, 332 Conn. 789, 809 n.17, 213 A.3d 467 (2019)

(‘‘[r]aising a claim at oral argument is not . . . a substitute for adequately

briefing that claim’’).

Last, the petitioner’s counsel argued at oral argument before this court

that the petitioner was ‘‘not a highly intelligent individual’’ and that he did

not have the ‘‘wherewithal’’ to file the petition on his own. The petitioner

did not, during his habeas trial, present evidence of his alleged lack of

intelligence or argue that a lack of intelligence contributed to his delayed

filing. We, therefore, decline to address this argument because it was not

properly preserved for review. Martinez v. Commissioner of Correction,

221 Conn. App. 852, 860, 303 A.3d 1196 (2023) (‘‘[a]ppellate review of newly

articulated claim[s] not raised before the habeas court would amount to an

ambuscade of the [habeas] judge’’ (internal quotation marks omitted)), cert.

denied, 348 Conn. 939, 307 A.3d 273 (2024).
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LaSalle v. Commissioner of Correction

control of the petitioner or habeas counsel caused or

contributed to the delay. . . . The following nonexhaustive list of factors aid in determining whether a

petitioner has satisfied the definition of good cause:

(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 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 deadline did the petitioner file the petition. . . .

‘‘It is well established that for a mental disease or

disorder to constitute good cause for an untimely petition for a writ of habeas corpus, a petitioner must demonstrate how [his] deficiencies contributed to the delay

in filing [his] . . . habeas petition.’’ (Citations omitted;

emphasis omitted; internal quotation marks omitted.)

Canales v. Commissioner of Correction, supra, 216

Conn. App. 835–36.

In the present case, the court found the petitioner’s

testimony as to his alleged mental deficiencies not credible for the purpose of establishing good cause, and

‘‘we must defer to the credibility findings of the habeas

court based on its firsthand observation of a witness’

conduct, demeanor, and attitude.’’ Jaynes v. Commissioner of Correction, 216 Conn. App. 412, 425, 285 A.3d

412 (2022), cert. denied, 345 Conn. 972, 286 A.3d 906

(2023).

Moreover, despite the petitioner’s attempt, in his

appellate brief, to explain how his alleged dyslexia and

ADD contributed to the delay in filing his habeas petition, he did not make such an attempt before the habeas

court. During his habeas trial, the petitioner asserted

only that his alleged mental deficiencies affected his
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LaSalle v. Commissioner of Correction

ability to read and write and to understand the legal

process. The record reveals, however, that he was able

to file both his first state habeas petition and his federal

habeas petition as a self-represented party while struggling with the same alleged deficiencies.6 It appears,

therefore, that his alleged mental deficiencies were not

so significant as to interfere with his ability to file a

petition. See Ortiz v. Commissioner of Correction, 211

Conn. App. 378, 388, 272 A.3d 692 (‘‘[i]t is unreasonable

to infer that all mental deficiencies are so significant

as to interfere with the ability to file a timely habeas

petition’’), cert. denied, 343 Conn. 927, 281 A.3d 1186

(2022). Although he testified that he had to rely on

jailhouse lawyers for help filing, the record is devoid

of evidence or explanation as to why his alleged mental

deficiencies prevented him from utilizing these jailhouse lawyers to file the present petition earlier than

he did. See Velez v. Commissioner of Correction, 203

Conn. App. 141, 147, 153, 247 A.3d 579 (‘‘respondent

argued that the petitioner’s filing of his [previous]

habeas actions as a self-represented party demonstrates

that he was aware of how to file a [habeas] petition’’

and ‘‘[t]he petitioner responded that he was able to file

the [previous] habeas petitions as a self-represented

party only because he received help in drafting them,’’

but court rejected petitioner’s argument because he

‘‘offered no evidence as to why he was unable to obtain

that same assistance in drafting and filing the [present]

habeas petition prior to the . . . statutory deadline’’),

cert. denied, 336 Conn. 942, 250 A.3d 40 (2021). His

6 The petitioner’s assertion, on appeal, that he is unable to comprehend

the legal system and advocate for himself is further belied by the record.

The petitioner made an assertion, for example, in his amended habeas

petition, that he is ‘‘usually articulate and well-spoken.’’ The petitioner also

demonstrated his ability to navigate the legal process and advocate for

himself. At a hearing on July 13, 2022, where his previous habeas counsel

was permitted to withdraw her appearance, the petitioner adeptly asked

the court, ‘‘So, after hearing [my attorney] say . . . what she’s going to do,

do I need to request a new attorney or that’s going to be taken care of?’’
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LaSalle v. Commissioner of Correction

testimony that he was at the mercy of the timelines of

jailhouse lawyers does not explain the significant length

of his delay in filing the present petition—more than six

and one-half years after a final judgment was reached

in his first state habeas case and more than four and

one-half years after the statutory deadline. On the basis

of the foregoing, we cannot conclude that the court

abused its discretion in determining that the petitioner

failed to demonstrate good cause for his delay in filing

the present habeas petition. Therefore, the court properly dismissed the petition in accordance with § 52-470

(d) and (e).

We note that this court has repeatedly rejected arguments, like the petitioner’s, that mental deficiencies

establish good cause for late filing of a habeas petition,

in the absence of evidence or argument connecting

those mental deficiencies with the delay in filing. See

Canales v. Commissioner of Correction, supra, 216

Conn. App. 836–38 (because petitioner had ‘‘failed to

provide the habeas court with any information connecting her . . . mental illness . . . with her failure to

timely file her habeas petition,’’ court did not abuse its

discretion in determining that petitioner had failed to

establish good cause to overcome statutory presumption of unreasonable delay); Ortiz v. Commissioner of

Correction, supra, 211 Conn. App. 388–89 (rejecting

petitioner’s argument that his mental health issues and

cognitive disabilities established good cause for late

filing of habeas petition because petitioner ‘‘did not

provide the habeas court with any insight into how or

whether the . . . deficiencies . . . affected the filing

of the petition’’ and because there was ‘‘no authority

upon which the court was bound to infer that any deficiency documented . . . caused or contributed to the

untimely filing’’); Velez v. Commissioner of Correction,

supra, 203 Conn. App. 146, 153 (rejecting petitioner’s

argument that his ‘‘working memory deficits, poor
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LaSalle v. Commissioner of Correction

deployment of attention, and executive dysfunction’’

established good cause for delay in filing his second

habeas petition, because he presented no evidence of

how his mental deficiencies contributed to delay in

filing (internal quotation marks omitted)).

The petitioner argues that his case is distinguishable

from Canales and Ortiz, because his ‘‘mental . . . deficiencies were so pronounced that he was unable to

draft and file a pro se petition without . . . assistance

. . . .’’ He also argues that Velez is distinguishable

because the petitioner in Velez ‘‘had a higher level of

functioning . . . .’’ Even assuming that these cases are

distinguishable in the ways the petitioner contends, he

was still required to demonstrate how his alleged deficiencies contributed to the significant delay in filing

his habeas petition. See Canales v. Commissioner of

Correction, supra, 216 Conn. App. 836. Given the petitioner’s failure to make the requisite connection

between his alleged mental deficiencies and his late

filing of the present petition, we cannot conclude that

the resolution of the petitioner’s claims involves issues

that are debatable among jurists of reason, that a court

could resolve in a different manner, or that are adequate

to deserve encouragement to proceed further. Accordingly, the habeas court did not abuse its discretion in

denying the petitioner’s petition for certification to

appeal.

The appeal is dismissed.

In this opinion the other judges concurred.