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*********************************************** 
QUINCY RAPP v. COMMISSIONER OF CORRECTION

(AC 46079)

Alvord, Cradle and Clark, Js.

Syllabus

The petitioner, who had been convicted, on a plea of guilty, of murder,

sought a writ of habeas corpus, claiming that both his trial counsel and

prior habeas counsel were ineffective and that his guilty plea was not

knowing, intelligent and voluntary in violation of his due process rights.

In 2010, approximately two years after his conviction, the petitioner

filed a petition for habeas corpus, in which he was represented by D.

In 2013, the petitioner withdrew his petition just prior to trial. In 2018,

the petitioner filed the underlying habeas petition, which he amended

in 2022. The respondent, the Commissioner of Correction, filed a motion

pursuant to the statute (§ 52-470) governing summary disposal of habeas

corpus matters for an order to show cause as to why the petition should

not be dismissed as untimely because it was filed more than five years

after the petitioner’s judgment of conviction became final in 2008. In

response, the petitioner claimed that good cause existed for the delay

in the filing of his petition because D failed to advise him of the time

constraints outlined in § 52-470 for a subsequent habeas petition and,

if he had been so advised, he would not have withdrawn his first habeas

petition. The habeas court found that the petitioner had failed to show

good cause for the delay in filing and dismissed the petition. Just prior

to oral argument in the present appeal, the Supreme Court issued its

decision in Rose v. Commissioner of Correction (348 Conn. 333), which

held that ineffective assistance of counsel is an objective factor external

to a 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). Held that the habeas court did not apply the

correct legal standard under § 52-470 (c) and (e) in deciding that the

petitioner had not demonstrated good cause for the late filing of his

habeas petition; although the habeas court did not expressly reject

the petitioner’s allegation that D’s alleged ineffective assistance in not

advising him of the deadline for filing a new petition caused the delay,

the habeas court did not consider the alleged ineffective assistance of

counsel as an external factor that caused the delay in filing the untimely

petition, and, in light of the Supreme Court’s decision in Rose, the

petitioner was entitled to a new hearing at which the court applies the

correct legal standard set forth by the Supreme Court.

Argued January 10—officially released March 19, 2024

Procedural History

Amended 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 this court.

Reversed; further proceedings.

Vishal K. Garg, assigned counsel, for the appellant

(petitioner).

Rocco A. Chiarenza, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Elizabeth Mosely, senior assistant state’s

attorney, for the appellee (respondent).
Opinion

CRADLE, J. The petitioner, Quincy Rapp, appeals

from the habeas court’s dismissal of his amended petition for a writ of habeas corpus as untimely under

General Statutes § 52-470 (c) and (e).1 On appeal, the

petitioner claims that the court erred in concluding

that he failed to establish good cause for his untimely

petition. Specifically, the petitioner argues that his prior

habeas counsel’s failure to advise him of the statutory

deadline for filing a new petition following the withdrawal of his then pending petition constituted ineffective assistance of counsel, which constituted good

cause for the delay in filing.2

In light of our Supreme

Court’s recent decision in Rose v. Commissioner of

Correction, 348 Conn. 333, 304 A.3d 431 (2023), we

conclude that the judgment of the habeas court must

be reversed, and we remand the case for a new good

cause hearing.3

The following procedural history is relevant to our

resolution of the petitioner’s claim on appeal. In 2008,

pursuant to a guilty plea, the petitioner was convicted

of murder in violation of General Statutes § 53a-54a,

for which he was sentenced to a term of fifty years of

incarceration. The petitioner did not appeal his conviction. In 2010, the petitioner filed a petition for a writ

of habeas corpus, in which he was represented by Attorney John Duguay.4 On June 6, 2013, just prior to trial,

the petitioner withdrew his petition.5

On October 31, 2018, the petitioner filed the underlying habeas petition, which he amended on March 21,

2022. In his amended petition, the petitioner raised three

claims. The petitioner alleged that both his trial counsel

and prior habeas counsel had rendered ineffective assistance and that his guilty plea was not knowing, intelligent and voluntary in violation of his due process rights.

On May 25, 2022, the respondent, the Commissioner of

Correction, filed a motion pursuant to § 52-470 (c) and

(e) for an order to show cause as to why the petition

should not be dismissed as untimely because it was filed

more than five years after his judgment of conviction

became final on November 27, 2008, when the period

for filing an appeal of that judgment expired. In

response, the petitioner claimed that ‘‘good cause’’

existed for the delay in the filing of his petition because

his prior habeas counsel, Duguay, failed to advise him

of the time constraints outlined in § 52-470 for a subsequent habeas petition and, if he had been so advised,

he would not have withdrawn his first habeas petition.6

On September 23, 2022, the court held a good cause

hearing, at which the petitioner testified, inter alia, that

he was unaware of the filing deadlines set forth in

§ 52-470 because Duguay never informed him of those

deadlines.7

On October 13, 2022, the court, by way of a memoran-
dum of decision, rejected the petitioner’s argument that

good cause existed for the delay in the filing of his

petition and dismissed it. The court reasoned: ‘‘[T]he

petitioner has failed to show good cause for the delay

in filing his petition. He admits that he was actively

researching rather complicated legal issues related to

his alleged mental health in order to challenge his conviction but claims that he was otherwise unaware of

the fact that there was a time limitation on filing a

challenge to his conviction. [T]he time worn maxim [is]

that everyone is presumed to know the law, and that

ignorance of the law excuses no one . . . . Provident

Bank v. Lewitt, 84 Conn. App. 204, 209, 852 A.2d 852,

cert. denied, 271 Conn. 924, 859 A.2d 580 (2004). Those

tenets are founded upon public policy and in necessity,

and the idea [behind] them is that one’s acts must be

considered as having been done with knowledge of the

law, for otherwise its evasion would be facilitated and

the courts burdened with collateral inquiries into the

content of men’s minds. . . . Id., 209–10. Thus, the

[petitioner] is charged with knowledge of the law. State

v. Surette, 90 Conn. App. 177, 182, 876 A.2d 582 (2005).

Even given the benefit entitled to an incarcerated

inmate due to the lack of complete autonomy and

access to the legal library, there was no evidence here

that anything prohibited or interfered with the petitioner’s ability to find out about § 52-470, as opposed to the

fact that he chose to focus on researching other legal

issues. And, while the petitioner insinuates that the age

of the legal material he had access to prohibited him

from timely access to changes in the law, he filed the

current petition within eight months of the release of

Cruz [v. United States, Docket No. 11-CV-787 (JCH),

2018 WL 1541898 (D. Conn. March 29, 2018), vacated,

826 Fed. Appx. 49 (2d Cir. 2020)], which was an unreported decision. Surely, therefore, then the petitioner

had ample opportunity to educate himself or to otherwise become aware of the changes in § 52-470 that

became effective in October, 2012. Public Acts 2012,

No. 12-115, § 1. The delay here was not outside forces

beyond the petitioner’s control; it was simply that the

petitioner had not found what he believed the proper

legal issue to attach his claims to.’’ (Emphasis in original; internal quotation marks omitted.) Thereafter, the

habeas court granted the petitioner’s petition for certification to appeal, and this appeal followed.

After the parties filed their briefs in this appeal, but

before oral argument, our Supreme Court issued its

decision in Rose v. Commissioner of Correction, supra,

348 Conn. 333. At oral argument, the parties were prepared to address, and did address, the impact of Rose

on their respective positions. The issue in this case,

whether the habeas court properly rejected the petitioner’s claim that ineffective assistance of his prior habeas

counsel constituted good cause for the delay in the

filing of his petition, specifically in light of Rose, is the
same issue that was before this court in Hankerson

v. Commissioner of Correction, 223 Conn. App. 562,

567–71, A.3d (2024). In Hankerson, this court

explained: ‘‘In Rose, the court addressed whether prior

habeas counsel’s failure to advise a petitioner of the

deadline for filing a new petition following the withdrawal of a pending petition may constitute good cause

to justify a late-filed petition under § 52-470 (c) . . .

and (e). See [Rose v. Commissioner of Correction,

supra], 346–47. In that case, the respondent, relying on

our Supreme Court’s decision in Kelsey v. Commissioner of Correction, [343 Conn. 424, 441–42, 274 A.3d

85 (2022)], argued that an error by counsel, even if it

rose to the level of constitutionally deficient performance, was not an external factor that could constitute

good cause. Rose v. Commissioner of Correction,

supra, 347. In particular, the respondent in Rose relied

on the Supreme Court’s statement in Kelsey that, to

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. . . . Kelsey v. Commissioner of Correction, supra, 441–42.

‘‘In Rose, the court rejected the respondent’s reliance

on Kelsey and, instead, relying on federal precedents

in the area of procedural default . . . concluded that

[i]neffective assistance of counsel is an objective factor

external to the defense because the [s]ixth [a]mendment 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. . . . Although a petitioner is bound by his counsel’s inadvertence, ignorance, or tactical missteps, regardless of whether counsel is flouting procedural rules or hedging against

strategic risks, a petitioner is not bound by the ineffective assistance of his counsel. . . . Consistent with this

authority, we conclude that ineffective assistance of

counsel is an objective 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). . . . Rose v.

Commissioner of Correction, supra, 348 Conn. 347–48.’’

(Emphasis in original; footnotes omitted; internal quotation marks omitted.) Hankerson v. Commissioner of

Correction, supra, 223 Conn. App. 567–69.

In Hankerson, the habeas court ‘‘expressly relied on

Kelsey in concluding that, even if the petitioner’s testimony, which indicated that he was not properly advised

by [prior habeas counsel] of the deadline for filing a new

habeas petition, were accurate, [prior habeas counsel’s]

failure to advise the petitioner would not be an external

factor that constitutes good cause.’’ Id., 569. Although
this case is distinguishable from Hankerson in that the

habeas court in this case did not expressly reject the

petitioner’s allegation that Duguay’s alleged ineffective

assistance in not advising him of the deadline for filing

a new petition caused the delay, it is similar in that the

habeas court did not consider the alleged ineffective

assistance of counsel as an external factor that caused

the delay in filing the untimely petition. Thus, in the

present case, like in Hankerson, ‘‘the habeas court did

not have the benefit of our Supreme Court’s clarification

of Kelsey in Rose regarding ‘the fundamental distinction

between internal and external factors that cause or

contribute to a petitioner’s failure to comply with a

procedural rule.’ [Rose v. Commissioner of Correction,

supra, 348 Conn.] 347. The habeas court therefore did

not apply the correct legal standard when deciding

whether the petitioner had demonstrated good cause

for the late filing of his petition.’’ Hankerson v.Commissioner of Correction, supra, 223 Conn. App. 569.

Accordingly, also as in Hankerson, the petitioner in this

case is entitled to a new hearing at which the court

applies the correct legal standard set forth by our

Supreme Court.

The judgment is reversed and the case is remanded

for a new hearing and good cause determination under

§ 52-470 (c) and (e).

In this opinion the other judges concurred.

1 General Statutes § 52-470 provides in relevant part: ‘‘(c) 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; (2) October 1, 2017;

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. The time periods set forth in this subsection shall not be

tolled during the pendency of any other petition challenging the same conviction. . . .

‘‘(e) . . . If . . . the court finds that the petitioner has not demonstrated

good cause for the delay, the court shall dismiss the petition. . . .’’

2 The petitioner also argues that good cause existed for his delay in filing

because he did not believe that he had a valid basis for his petition until

the 2018 release of Cruz v. United States, Docket No. 11-CV-787 (JCH),

2018 WL 1541898 (D. Conn. March 29, 2018) (holding that decision in Miller

v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), applies

to persons who were eighteen years old at time of their crimes, making

sentencing schemes requiring mandatory life sentences without possibility of

parole violation of eighth amendment prohibition against cruel and unusual

punishment by failing to consider youth and accompanying considerations

in sentencing), vacated, 826 Fed. Appx. 49 (2d Cir. 2020). Although the

habeas court referred to this argument as support for its conclusion that

the petitioner had ample opportunity to learn of the filing deadlines set

forth in § 52-470, it did not address the petitioner’s argument that good

cause existed for his delay because he did not believe that he had a basis

for his petition until the release of Cruz in 2018. Because the court did not

address this argument, it is not properly before us now.

3

In light of this resolution, we need not address the petitioner’s additional

claim that the court abused its discretion in denying his motion for continuance of the good cause hearing to afford him the opportunity to subpoena

his prior habeas counsel, who then resided in Colorado, or to obtain an
affidavit from him regarding what advice he rendered to the petitioner, if

any, regarding the § 52-470 deadlines. We note, however, that the habeas

court’s denial of the petitioner’s motion for continuance, like its ultimate

decision on good cause, was not fully informed in that Rose had not yet

been decided when the court ruled on that motion and, in the absence of

that ruling, the alleged ineffective assistance of the petitioner’s prior habeas

counsel was not an external factor for the court’s consideration when

determining good cause. In other words, prior to Rose, a continuance to

secure the testimony of prior habeas counsel would have been unnecessary.

On remand, the petitioner should be afforded a reasonable opportunity,

within the court’s discretion, to subpoena or otherwise attempt to secure

admissible evidence pertaining to the assistance rendered by the petitioner’s

prior habeas counsel.

4 At that time, Duguay was an associate attorney at the Law Office of

Michael D. Day, LLC. After Michael Day met with the petitioner once upon

the appointment of his office to represent the petitioner, Duguay undertook

the representation of the petitioner.

5 At the good cause hearing in this action, the petitioner testified that, in

connection with his first habeas petition, he underwent a psychological

evaluation but that that evaluation ‘‘didn’t show whatever it was supposed

to show . . . .’’ The petitioner testified that, on that basis, Duguay ‘‘suggested that [the petitioner] withdraw [his] habeas because the case was

weak, and if [he] didn’t withdraw the habeas, that [Duguay] would file an

Anders brief . . . .’’

6 The petitioner also claimed that the delay in his filing was caused by

‘‘the Department of Correction’s denial of [his] constitutional right of access

to the courts by failing to provide adequate legal resources that would allow

him to educate himself about the time limitations for filing a habeas corpus

petition.’’ To the extent the habeas court implicitly rejected that claim, the

petitioner has not challenged that ruling on appeal.

7 At the good cause hearing, the petitioner, through his counsel, attempted

to introduce into evidence emails between Duguay and the petitioner’s

counsel pertaining to what Duguay told the petitioner as to the § 52-470

filing deadlines. The court declined to admit them into evidence because

there was no foundation for them, they constituted hearsay and they were

being offered to ‘‘prove a fact that right now before [the court] [based on

the petitioner’s testimony] is uncontroverted.’’