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EDUARDO ORTIZ, JR. v. COMMISSIONER
OF CORRECTION
(AC 44047)
Elgo, Suarez and Vertefeuille, Js.
Syllabus
The petitioner, who had been convicted, on a plea of guilty, of the crime
of murder, appealed to this court from the judgment of the habeas court
dismissing his petition for a writ of habeas corpus. The habeas petition
had been filed more than six years after the petitioner’s guilty plea was
determined to be a final judgment due to the expiration of the time
period allowed for appeal and after October 1, 2017. The respondent
Commissioner of Correction filed a request, pursuant to statute (§ 52-
470), for an order to show cause for the petitioner’s delay in filing the
habeas petition. Following a hearing, the habeas court found that the
petitioner, who claimed that mental health and cognitive disabilities had
prevented him from timely filing his habeas petition, had failed to show
good cause as required by § 52-470 for the late filing. Thereafter, the
court denied the petition for certification to appeal, and the petitioner
appealed to this court. Held that the habeas court did not abuse its
discretion in denying the petition for certification to appeal, the peti-
tioner having failed to demonstrate that the issues involved in his appeal
were debatable among jurists of reason, that a court could resolve the
issues in a different manner, or that the questions raised were adequate
to deserve encouragement to proceed further: the only evidence that
the petitioner relied on to support his claim that his mental health
conditions constituted good cause for filing an untimely habeas petition
were health and educational records dated between eight and fourteen
years prior to the hearing before the court, and the petitioner did not
provide the court with any insight into how or whether the mental health
deficiencies described in the records affected the filing of the petition,
thus, the court properly concluded that the petitioner did not demon-
strate whether a present condition affected his ability to file a habeas
petition in a timely manner; moreover, as the petitioner filed his petition
for a writ of habeas corpus as a self-represented litigant, there was no
authority upon which the court was bound to infer that any deficiency
documented in the health and education records caused or contributed
to the untimely filing.
Argued October 5, 2021—officially released March 22, 2022
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Chaplin, J., granted the respondent’s motion
to dismiss and rendered judgment thereon; thereafter,
the court denied the petition for certification to appeal,
and the petitioner appealed to this court. Appeal dis-
missed.
Naomi T. Fetterman, assigned counsel, with whom,
on the brief, was David J. Reich, for the appellant
(petitioner).
Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Eva Lenczewski, supervisory assistant state’s
attorney, for the appellee (respondent).
Opinion
SUAREZ, J. Following the denial of his petition for
certification to appeal, the petitioner, Eduardo Ortiz,
Jr., appeals from the judgment of the habeas court dis-
missing his petition for a writ of habeas corpus. The
petitioner claims that the court abused its discretion
in denying his petition for certification to appeal and
erred in its determination that he failed to demonstrate
good cause for the untimely filing of his petition for a
writ of habeas corpus under General Statutes § 52-470
(e). Our examination of the record and briefs and con-
sideration of the oral arguments of the parties per-
suades us that the habeas court acted properly and,
therefore, the appeal should be dismissed.
The following procedural history is relevant to our
analysis. On May 31, 2012, before the trial court, Dami-
ani, J., the petitioner pleaded guilty to murder in viola-
tion of General Statutes § 53a-54a. On July 27, 2012, the
trial court, Prescott, J., sentenced the petitioner to serve
thirty-eight years of incarceration. The petitioner did
not bring a direct appeal. On September 4, 2018, the
petitioner, for the first time, filed a petition for a writ
of habeas corpus related to the conviction in which he
alleged that the public defender who represented him
during the criminal proceedings, Tashaun Lewis, had
not rendered effective assistance in that she failed to
adequately investigate matters concerning the case. The
petitioner filed the petition in a self-represented capac-
ity.
On October 9, 2019, the respondent, the Commis-
sioner of Correction, filed a request for order to show
cause for the petitioner’s delay in filing the habeas peti-
tion. Specifically, the respondent argued that, pursuant
to § 52-470 (c),1 a rebuttable presumption arose that
the habeas petition challenging the conviction had been
delayed without good cause because it was filed more
than six years after the judgment of conviction became
final and after October 1, 2017. The respondent, there-
fore, sought an order, pursuant to § 52-470 (e),2 to show
cause why the untimely petition should be permitted
to proceed.
On November 8, 2019, the habeas court, Chaplin,
J., held a hearing on the respondent’s request. At the
hearing, the petitioner, then represented by counsel,
attempted to demonstrate good cause for the untimely
filing. Specifically, the petitioner sought to prove that
he filed the habeas petition late because of his ‘‘mental
health issues and his cognitive disabilities . . . .’’ The
petitioner relied exclusively on health and educational
records that were dated between 2005 and 2011, and
which were admitted as a sealed exhibit.3 Relying on
these records, the petitioner’s attorney argued that it
would be unfair to hold the petitioner to the statutory
filing deadlines in this action.
Counsel for the respondent replied that the petition-
er’s health and educational records, which she had
reviewed, were generated many years prior to the hear-
ing and, more importantly, they did not specifically
address the issue of whether any mental health issue
affected the petitioner’s ability ‘‘to comply with the rules
[related to filing a habeas petition in a timely manner].’’
Counsel for the respondent argued that, in the absence
of additional evidence, the petitioner had not demon-
strated that a mental health issue led to an inability to
file his petition in a timely manner.
The petitioner’s counsel, acknowledging that he had
not provided the court with recent assessments of the
petitioner’s mental condition, nonetheless argued that
the records revealed deficiencies that began early in
the petitioner’s life, stated that he had provided the
court with ‘‘the full mental health history’’ of the peti-
tioner, and reasoned that ‘‘it’s not like he’s gotten better,
if anything he’s deteriorated.’’
On January 28, 2020, the court dismissed the habeas
petition. In its memorandum of decision, the court dis-
cussed the relevant procedural history and legal princi-
ples that applied to the issue before it. The court then
stated: ‘‘Based on the information before the court, the
court finds that the petition was filed more than six
years after the petitioner’s guilty plea was deemed to
be a final judgment due to the expiration of the time
period allowed for appeal. Upon review of the medical
and educational records . . . the court finds that the
mental health and education records address the peti-
tioner’s mental health condition at various points
between 2005 and 2011. The court finds the petitioner’s
mental health and educational records unpersuasive as
to the petitioner’s contention that his mental health
deficiencies constitute good cause for filing an untimely
[habeas] petition. The records . . . do not support the
proposition that the petitioner labored under such sig-
nificant mental health deficiencies that prevented him
from filing the petition within the five years allowed by
statute, or prior to October 1, 2017. . . . Therefore, the
court finds that the petitioner has failed to show good
cause for filing the current petition more than six years
after the guilty plea became a final judgment, or after
October 1, 2017.’’ (Citation omitted; footnote omitted.)
On appeal, the petitioner essentially argues that the
court abused its discretion in denying the petition for
certification to appeal because he successfully demon-
strated at the hearing that good cause existed for the
late filing of the habeas petition. The petitioner argues
that the evidence he presented to the court demon-
strated that he suffers from lifelong mental health issues
that impaired his ability to file a habeas petition in a
timely manner. The petitioner argues that he ‘‘has an
extremely low IQ and would be unable to organize
himself in order to prepare and present a habeas peti-
tion to the court. [The petitioner] has never advanced
past the second grade regarding his reading and writing
[skills]. Due to the fact that he cannot read or write
well, he would have difficulty getting along without
help from people who can help him prepare and present
a habeas petition in a timely manner.’’ The petitioner
extrapolates from the evidence that ‘‘[t]his is not a case
where [he] is not keeping his eye on the time to file
the petition. [The petitioner] was not able to file the
habeas petition on time.’’ The petitioner appears to
argue that the court did not appropriately gauge the
severity of his mental health issues and their detrimen-
tal effect on his ability to file a habeas petition in a
timely manner.
The respondent argues that ‘‘[t]he petitioner cannot
demonstrate an abuse of discretion [in denying the peti-
tion for certification to appeal] because the [habeas]
court’s finding that [the petitioner] failed to demon-
strate ‘good cause’ under the statute was based entirely
on a rejection of the petitioner’s evidence, which served
as the sole factual basis for his claim of good cause.
Thus, the petitioner lacks any credible facts to support
a claim of ‘good cause’ and, necessarily, he did not
carry his burden of satisfying that standard.’’ On the
basis of its findings, the court dismissed the petition
and subsequently denied the petition for certification
to appeal.
Although they are in agreement with respect to the
standard of review that applies to the court’s denial of
the petition for certification to appeal, the parties have
presented this court with diverging legal arguments con-
cerning the standard of review that applies to the subor-
dinate issue of whether the court properly determined
that good cause was not shown for the late petition.
The respondent urges us to apply the abuse of discretion
standard, and the petitioner urges us to apply the ple-
nary standard of review.
‘‘Our Supreme Court has made clear that an appellate
court need not reach the merits of a habeas appeal
following a denial of certification unless the petitioner
can demonstrate that the habeas court abused its discre-
tion in doing so. Simms v. Warden, 229 Conn. 178, 187,
640 A.2d 601 (1994). In determining whether a habeas
court abused its discretion in denying certification to
appeal, the petitioner must demonstrate that the issues
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 ascertaining whether the habeas court abused its
discretion in a denial of certification case, we necessar-
ily must consider the merits of the petitioner’s underly-
ing claims to determine whether the habeas court rea-
sonably 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 . . . for determining the propriety of the
habeas court’s denial of the petition for certification.
Absent such a showing by the petitioner, the judgment
of the habeas court must be affirmed.’’ (Citation omit-
ted; internal quotation marks omitted.) Ricardo R. v.
Commissioner of Correction, 185 Conn. App. 787, 794,
198 A.3d 630 (2018), cert. denied, 330 Conn. 959, 199
A.3d 560 (2019).
‘‘[T]o rebut successfully the presumption of unrea-
sonable 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.) Kelsey v.
Commissioner of Correction, 202 Conn. App. 21, 34,
244 A.3d 171 (2020), cert. granted, 336 Conn. 941, 250
A.3d 41 (2021). This court has ruled that the abuse of
discretion standard of review applies to a habeas court’s
dismissal of a habeas petition following its determina-
tion that the petitioner failed to demonstrate good cause
for its untimely filing pursuant to § 52-470. Id., 38. In
Kelsey, this court explained: ‘‘[I]n evaluating whether
a petitioner has established good cause to overcome
the rebuttable presumption of unreasonable delay in
filing a late petition under § 52-470, the habeas court
does not make a strictly legal determination. Nor is the
court simply finding facts. Rather, it is deciding, after
weighing a variety of subordinate facts and legal argu-
ments, whether a party has met a statutorily prescribed
evidentiary threshold necessary to allow an untimely
filed petition to proceed. This process is a classic exer-
cise of discretionary authority, and, as such, we will
overturn a habeas court’s determination regarding good
cause under § 52-470 only if it has abused the consider-
able discretion afforded to it under the statute.
‘‘In reviewing a claim of abuse of discretion, we have
stated that [d]iscretion means a legal discretion, to be
exercised in conformity with the spirit of the law and
in a manner to serve and not to impede or defeat the
ends of substantial justice. . . . In general, abuse of
discretion exists when a court could have chosen differ-
ent alternatives but has decided the matter so arbitrarily
as to vitiate logic, or has decided it based on improper
or irrelevant factors. . . . [Reversal is required only]
[i]n those cases in which an abuse of discretion is mani-
fest or where injustice appears to have been done
. . . .’’ (Internal quotation marks omitted.) Id. The court
in Kelsey also stated that ‘‘a habeas court’s determina-
tion of whether a petitioner has satisfied the good cause
standard in a particular case requires a weighing of the
various facts and circumstances offered to justify the
delay, including an evaluation of the credibility of any
witness testimony.’’ Id., 35–36.4
In the present case, the court’s decision was the result
of its evaluation of the evidence and its finding that the
petitioner had not presented persuasive evidence with
respect to why his habeas petition was untimely.
Because this factual determination is not clearly errone-
ous, the parties’ disagreement with respect to the stan-
dard of review that applies to the habeas court’s ulti-
mate determination concerning good cause does not
affect our analysis. Stated otherwise, regardless of
whether we review the court’s ultimate determination
concerning good cause under an abuse of discretion
standard of review, as our case law dictates and the
respondent argues, or under the plenary standard of
review, as the petitioner argues, the outcome would be
the same. It is well settled that this court does not
disturb the factual findings of the habeas court unless
they are clearly erroneous. See, e.g., Coward v. Com-
missioner of Correction, 143 Conn. App. 789, 803, 70
A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013).
Even when a determination made by the habeas court
is subject to plenary review, ‘‘[t]o the extent that factual
findings are challenged, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous . . . . [A] finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Citation omitted;
internal quotation marks omitted.) Harris v. Commis-
sioner of Correction, 107 Conn. App. 833, 838, 947 A.2d
7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
Thus, if the court correctly found that there was no
evidence sufficiently linking the claimed mental defi-
ciency to the late filing, the petitioner cannot prevail
under either standard.
In the present case, the habeas court’s decision
reflects its finding that the petitioner failed to present
evidence to support a finding that he labored under
such a significant mental health deficiency that it pre-
vented him from filing the petition within the time
afforded by statute. The habeas court noted that the
petitioner’s reliance on the mental health and educa-
tional records, without more, was unavailing because
the records addressed his condition at various points
between 2005 and 2011, many years before the present
hearing in November, 2019, and they did not shed any
light on whether a present condition affected his ability
to file a habeas petition in a timely manner.
Having carefully reviewed the records presented to
the court, which constituted the only evidence pre-
sented in support of the issue of good cause, we con-
clude that the court’s finding, that the petitioner failed
to demonstrate that the deficiencies discussed therein
were of such a nature that they contributed to the delay
in the filing of his petition, was supported by the evi-
dence. As the court aptly observed, the records
described mental deficiencies that were documented at
various points between 2005 and 2011. The respondent
argues that the court could have inferred that the
records were essentially stale and thereby conclude that
the deficiencies did not continue to affect the petitioner
through the relevant time period in which he could have
filed the habeas petition in a timely manner. Because
the court did not expressly rely on this rationale, how-
ever, we will assume for purposes of our analysis that
the mental deficiencies at issue continued to affect the
petitioner during the time in which he could have timely
filed a habeas petition.
The court stated that the records did not support
the proposition that the petitioner labored under such
significant mental health deficiencies that they prevent
him from timely filing a habeas petition. It is unreason-
able to infer that all mental deficiencies are so signifi-
cant as to interfere with the ability to file a timely habeas
petition. See, e.g., Dull v. Commissioner of Correction,
175 Conn. App. 250, 254, 167 A.3d 466 (upholding habeas
court’s conclusion that petitioner’s claim of mental
impairment did not constitute good cause for untimely
filing of habeas petition), cert. denied, 327 Conn. 930,
171 A.3d 453 (2017). In the present case, the petitioner
did not provide the habeas court with any insight into
how or whether the mental health deficiencies
described in the records affected the filing of the peti-
tion. Contrary to the petitioner’s arguments, and also
in light of the fact that the petitioner filed the petition
for a writ of habeas corpus that is the subject of this
appeal as a self-represented litigant, there is no author-
ity upon which the court was bound to infer that any
deficiency documented in the health and educational
records submitted to the court caused or contributed
to the untimely filing. See, e.g., Velez v. Commissioner
of Correction, 203 Conn. App. 141, 153, 247 A.3d 579
(holding that habeas court did not err in concluding
that petitioner’s documented significant mental impair-
ments did not necessarily contribute to delay in filing
habeas petition), cert. denied, 336 Conn. 942, 250 A.3d
40 (2021). The court, therefore, did not err in its determi-
nation that the petitioner failed to satisfy his evidentiary
burden of demonstrating that something outside of his
control, in this case, a mental deficiency, caused or
contributed to the delay in the filing of his petition.
Because the court’s finding was proper, we conclude
that the court did not err in determining that the peti-
tioner did not rebut the statutory presumption of unrea-
sonable delay.
In light of the foregoing, we conclude that the peti-
tioner has failed to demonstrate that the issues involved
in this appeal 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 encourage-
ment to proceed further. See Ricardo R. v. Commis-
sioner of Correction, supra, 185 Conn. App. 794. Thus,
the petitioner has not shown that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
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.’’
2
General Statutes § 52-470 (e) provides: ‘‘In a case in which the rebuttable
presumption of delay under subsection (c) or (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 (c) or (d) of this section.’’
3
Because the court has sealed the exhibit, we have reviewed it in camera
and necessarily describe the documents within it only generally. See, e.g.,
State v. Kosuda-Bigazzi, 335 Conn. 327, 358 n.13, 250 A.3d 617 (2020).
4
As we stated previously in this opinion, the petitioner asserts that the
plenary standard of review applies to the habeas court’s dismissal of the
habeas petition following its determination that he failed to demonstrate
good cause for his untimely filing. Notably, the petitioner argues that the
respondent’s reliance on Kelsey is unavailing because our Supreme Court
has granted certification in Kelsey with respect to the issue of whether this
court correctly determined that the abuse of discretion standard of review
applied. Kelsey v. Commissioner of Correction, 336 Conn. 941, 250 A.3d 41
(2021). Insofar as the petitioner suggests that the fact that our Supreme
Court has granted certification to appeal in Kelsey detracts from its preceden-
tial value, he is incorrect as a matter of law. As this court has observed,
‘‘there is no reason to conclude that a granting of certification by our
Supreme Court necessarily signifies disapproval of the decision from which
certification to appeal was granted. There is no authority to support the
proposition that a grant of certification by our Supreme Court immediately
invalidates or overrules this court’s decision; a grant of certification stays
further proceedings and subjects this court’s decision to further review. In
such circumstances, prior to a final determination of the cause by our
Supreme Court, a decision of this court is binding precedent on this court.’’
(Emphasis added.) State v. Andino, 173 Conn. App. 851, 874–75 n.12, 162
A.3d 736, cert. denied, 327 Conn. 906, 170 A.3d 3 (2017).