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*********************************************** 
RODNEY S. HANKERSON v. COMMISSIONER

OF CORRECTION

(AC 45736)

Bright, C. J., and Moll and Prescott, Js.

Syllabus

The petitioner, who had been convicted of felony murder and robbery in

the first degree, appealed to this court from the judgment of the habeas

court, which dismissed his third petition for a writ of habeas corpus

after he failed to establish good cause for its late filing. The petitioner

filed his third petition in 2017 after having withdrawn a second habeas

petition that he had filed in 2012 and nearly three years after judgment

on his first habeas petition became final in October, 2014. Because the

third petition was filed outside of the two year time limit for successive

petitions set forth by statute (§ 52-470 (d)), the habeas court conducted

an evidentiary hearing pursuant to § 52-470 (d) and (e) on a motion filed

by the respondent, the Commissioner of Correction, for an order to

show cause as to why the third petition should not be dismissed as

untimely. At a hearing on the respondent’s motion, the petitioner testified

that good cause existed because, inter alia, his counsel at the time

the second habeas petition was withdrawn had rendered ineffective

assistance by misadvising or failing to advise him of the time limit to

file a new habeas petition if he withdrew the pending second petition.

Relying on Kelsey v. Commissioner of Correction (343 Conn. 424),

which identified factors relevant to a habeas court’s determination of

whether good cause exists to excuse the untimely filing of a habeas

petition, the habeas court concluded that a failure by counsel to advise

a petitioner of the time limit in § 52-470 (d) was not an external factor

that constituted good cause to excuse the untimely filing. Held that the

habeas court did not apply the correct legal standard under § 52-470

(d) and (e) in deciding that the petitioner had not established good

cause to excuse the late filing of his third habeas petition: the state of

the law as to whether ineffective assistance of counsel is a factor that

may constitute good cause to excuse a delay in filing was clarified by

our Supreme Court in Rose v. Commissioner of Correction (348 Conn.

333), which was decided during the pendency of this appeal and which

concluded that ineffective assistance of counsel cannot be imputed to

the petitioner and is an external, objective factor under Kelsey that may

constitute good cause to excuse a late filing under § 52-470 (d) and (e);

moreover, although the court in Rose did not state that counsel’s failure

to advise a petitioner of the deadline necessarily constitutes ineffective

assistance, it decided that such a determination is a fact specific inquiry

that is left to the habeas court’s discretion, taking into consideration

all relevant Kelsey factors in light of the totality of the circumstances

presented; accordingly, this court reversed the judgment and remanded

the case to the habeas court for a new hearing and good cause determination under § 52-470 (d) and (e).

Argued January 2—officially released January 30, 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, Oliver, J., overruled the

petitioner’s objection to the respondent’s motion to

show cause and rendered judgment dismissing the petition, from which the petitioner, on the granting of certification, appealed to this court. Reversed; further proceedings.

David B. Bachman, assigned counsel, for the appellant (petitioner).
Ronald G. Weller, senior assistant state’s attorney,

with whom were Rebecca R. Zeuschner and Nicholas

L. Scarlett, certified legal interns, and, on the brief,

Donna Marie Fusco, assistant state’s attorney, for the

appellee (respondent).
Opinion

PER CURIAM. The petitioner, Rodney S. Hankerson,

appeals from the habeas court’s dismissal of his petition

for a writ of habeas corpus as untimely under General

Statutes § 52-470 (d) and (e). On appeal, the petitioner

claims that the court erred in concluding that he failed

to establish good cause for his late-filed petition. In

particular, 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. 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.

The following procedural history is relevant to our

analysis. In 2007, a jury found the petitioner guilty of

felony murder and two counts of robbery in the first

degree. Thereafter, the trial court imposed a total effective sentence of sixty years of incarceration. This court

affirmed the petitioner’s conviction, and our Supreme

Court denied the petitioner’s petition for certification

to appeal from this court’s decision. See State v. Hankerson, 118 Conn. App. 380, 381, 983 A.2d 898 (2009),

cert. denied, 298 Conn. 932, 10 A.3d 518 (2010).

In 2007, the petitioner filed his first habeas petition,

alleging that his trial counsel, Attorney Jeffrey Kestenband and Attorney William Paetzold, provided ineffective assistance during his criminal trial. The habeas

court denied the petition, and the petitioner appealed

to this court, which dismissed the appeal, concluding

that the habeas court did not abuse its discretion in

denying the petitioner’s petition for certification to

appeal. See Hankerson v. Commissioner of Correction,

150 Conn. App. 362, 363, 90 A.3d 368, cert. denied, 314

Conn. 919, 100 A.3d 852 (2014). In 2012, the petitioner

filed his second habeas petition, alleging ineffective

assistance of both his appellate counsel, Attorney Jennifer Vickery, and his first habeas counsel, Attorney

Arthur Ledford. On September 12, 2016, the petitioner

withdrew that petition.

Thereafter, on June 2, 2017, the petitioner filed the

underlying third habeas petition, which he amended on

May 19, 2021. In his amended petition, the petitioner

alleged that (1) the state presented false testimony at

his criminal trial and failed to disclose exculpatory evidence, (2) the jury returned an inconsistent verdict, and

(3) his trial counsel and prior habeas counsel were

ineffective. On April 8, 2021, the respondent, the Commissioner of Correction, filed a motion pursuant to § 52-

470 (d) and (e)1

for an order to show cause as to why the

petition should not be dismissed as untimely because
it was filed more than two years after the date the

judgment on the petitioner’s first habeas petition

became final, October 8, 2014.2

In response, the petitioner claimed that ‘‘good cause’’ existed for the delay

because, inter alia, (1) his second habeas counsel, Attorney Thomas J. Piscatelli, ‘‘misadvised and/or failed to

advise the petitioner that his withdrawal’’ of his second

habeas petition ‘‘would necessarily render future

habeas claims outside the allowable time limits set forth

by . . . § 52-470 without good cause,’’ and (2) ‘‘the lack

of access to sufficient legal resources . . . while incarcerated left the petitioner unable to remain abreast of

the latest legal developments and, specifically, the law

with respect to . . . § 52-470.’’

On April 29, 2022, the court held an evidentiary hearing, at which the petitioner presented four witnesses:

himself; Piscatelli, his counsel when the second habeas

petition was withdrawn; and Warden Daniel Dougherty

and Deputy Warden Damian Doran, both from the MacDougall-Walker Correctional Institution, where the petitioner was in custody at all relevant times. The petitioner presented his testimony and that of Piscatelli to

support his claim that Piscatelli provided ineffective

assistance of counsel by failing to advise him of the

deadline to file a new habeas petition if he withdrew

his then pending second petition. The petitioner presented the testimony of Dougherty and Doran to support his claim that he did not have adequate access to

legal materials at the MacDougall-Walker Correctional

Institution to discover on his own the applicable filing

deadline.

On June 22, 2022, the court issued an order overruling

the petitioner’s objection to the respondent’s motion

to show cause and dismissed the habeas petition. The

entirety of the court’s order read: ‘‘After hearing and

oral argument, and having considered the written filings

of the parties in support of their respective positions,

the court finds the petitioner has failed to establish

good cause to excuse his delay in filing the instant

petition.

‘‘Among other evidence adduced at the hearing, the

petitioner had some access to legal resources in correctional institutions during his period of incarceration, as

testified to by both the petitioner and the other two

witnesses at the hearing, but never sought to avail himself of them.

‘‘Assuming, arguendo, that the petitioner’s testimony

was accurate, this court finds that it is insufficient to

overcome the rebuttable presumption of unreasonable

delay in [the] filing of the instant petition, pursuant to

Kelsey v. Commissioner of Correction, [343 Conn. 424,

441–42, 274 A.3d 85 (2022)], in that there was no competent evidence of external factors affecting timely filing.

Accordingly, the matter is dismissed.’’
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. 333.3

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)4

and (e). See id., 346–47. In that case, the respondent,

relying on our Supreme Court’s decision in Kelsey v.

Commissioner of Correction, supra, 343 Conn. 441–42,

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 inRose 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.’’

(Emphasis added; internal quotation marks omitted.)

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,5 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).’’ (Citations

omitted; internal quotation marks omitted.) Rose v.

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

As noted previously in this opinion, the habeas court

in the present case expressly relied on Kelsey in concluding that, even if the petitioner’s testimony, which

indicated that he was not properly advised by Piscatelli

of the deadline for filing a new habeas petition, were

accurate, Piscatelli’s failure to advise the petitioner
would not be an external factor that constitutes good

cause. In reaching this conclusion, the habeas court did

not have the benefit of our Supreme Court’s clarification

of Kelsey inRose regarding ‘‘the fundamental distinction

between internal and external factors that cause or

contribute to a petitioner’s failure to comply with a

procedural rule.’’ Id., 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. Thus, the petitioner is

entitled to a new hearing at which the court applies the

correct legal standard.

To be clear, although the court in Rose held that

constitutionally deficient performance by habeas counsel may constitute good cause for a late-filed petition,

it did not hold that counsel’s failure to advise a petitioner of the deadline for filing a new petition necessarily constitutes ineffective assistance of counsel. See id.,

349–50. Such a determination is a fact specific inquiry

that depends on a number of factors, including the

relationship between the petitioner and his counsel during the pertinent time. For example, a petitioner who

terminates his relationship with counsel before withdrawing his pending petition and filing a new petition

stands in a very different position than does a petitioner

who withdraws his petition on the advice of his counsel

and is told the wrong deadline for filing a new petition

by that counsel.6

Furthermore, although the habeas court may conclude that ineffective assistance of counsel constitutes

good cause in this case, it is not required to do so.

Such a determination is still left to the discretion of

the habeas court taking into consideration the Kelsey

factors. See id., 343. ‘‘No single factor is dispositive,

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. 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

independently 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. See id.

The judgment is reversed and the case is remanded

to the habeas court for a new hearing and good cause

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

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; [or] (2) October 1, 2014 . . . . For the purposes of this section,

the withdrawal of a prior petition challenging the same conviction shall not

constitute a judgment. . . .

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

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

2 Given the well documented legislative history demonstrating ‘‘that § 52-

470 was intended to grant habeas courts ‘a lot of discretion’ in weeding out

nonmeritorious habeas claims’’; Kelsey v. Commissioner of Correction, 343

Conn. 424, 434, 274 A.3d 85 (2022); we question whether filing a motion to

show cause almost four years after the original habeas petition was filed

serves that purpose. See id. (‘‘[I]n 2012, the legislature amended § 52-470

with the goal of enacting comprehensive habeas reform. . . . The amendments were intended to supplement that statute’s efficacy in averting frivolous habeas petitions and appeals. . . . [Moreover] the reforms were the

product of collaboration and compromise by representatives from the various stakeholders in the habeas process, including the Division of Criminal

Justice, the Office of the Chief Public Defender, the criminal defense bar, and

the Judicial Branch.’’ (Citation omitted; internal quotation marks omitted.)).

Although the petitioner does not argue that a court can or should consider

the respondent’s delay in filing such a motion when conducting its good

cause analysis, we simply note that such delay does little to assist the court

in weeding out frivolous claims so that it can turn its attention to potentially

meritorious petitions.

3 Prior to oral argument, we issued an order asking the parties to be

prepared to address at oral argument Rose’s impact on this case. At oral

argument, counsel for the petitioner argued that, in light of Rose, we should

reverse the judgment of the habeas court and remand the case for a new

good cause hearing. Although counsel for the respondent argued that a

remand was not necessary, he conceded that this court cannot say how the

habeas court would have exercised its discretion in light of our Supreme

Court’s holding in Rose.

4 General Statutes § 52-470 (c) provides: ‘‘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.’’

The difference between subsections (c) and (d) of § 52-470 is that the

former applies to a first habeas petition and the latter applies to subsequent

habeas petitions. The fact that Rose involved subsection (c) and this case

involves subsection (d) is irrelevant to our analysis; the presumption of

delay and good cause provisions in § 52-470 (e) apply to both subsections.

5

‘‘In essence, the procedural default doctrine holds that a claimant may

not raise, in a collateral proceeding, claims that he could have made at trial

or on direct appeal in the original proceeding and that if the state, in response,

alleges that a claimant should be procedurally defaulted from now making

the claim, the claimant bears the burden of demonstrating good cause for

having failed to raise the claim directly, and he must show that he suffered

actual prejudice as a result of this excusable failure.’’ Hinds v. Commissioner of Correction, 151 Conn. App. 837, 852, 97 A.3d 986 (2014), aff’d, 321

Conn. 56, 136 A.3d 596 (2016).

6 During oral argument before this court, counsel for the respondent stated

that the respondent is considering ways to ensure that all inmates are aware

of the filing deadlines in § 52-470 (c) and (d). In particular, counsel noted

the possibility of posting such information in the state’s correctional facilities

or suggesting to the habeas court that it canvass a petitioner on his awareness

of any filing deadlines before accepting a withdrawal of a pending petition.

In response to counsel’s suggestion, we also noted the possibility that the

public defender’s office could encourage counsel under its supervision to

provide such information to petitioners before pending petitions are with-
drawn. Whatever the mechanism, we encourage the habeas bench and bar

to pursue one or more remedies that would effectively eliminate this issue.