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MICHAEL G. v. COMMISSIONER OF CORRECTION*
(AC 43327)
Alvord, Cradle and Eveleigh, Js.
Syllabus
Pursuant to statute (§ 52-470 (d) (1)), when a habeas petitioner files a
subsequent petition for a writ of habeas corpus more than two years
after the date on which judgment on a prior habeas petition challenging
the same conviction is deemed final, there is a rebuttable presumption
that the filing of the subsequent petition has been delayed without
good cause.
The petitioner, who had been convicted of the crimes of sexual assault in
the first degree and risk of injury to a child, filed a third petition for a
writ of habeas corpus. Because the third petition was filed beyond the
two year time limit for subsequent petitions set forth in § 52-470 (d)
(1), the habeas court, upon the request of the respondent Commissioner
of Correction, issued an order to show cause why the petition should
be permitted to proceed and scheduled an evidentiary hearing on the
issue. Prior to the show cause hearing, the petitioner moved to disqualify
the habeas judge on the ground that he had presided over the petitioner’s
first habeas trial and that his comments related to the credibility of
the petitioner’s testimony in that case would create the appearance of
impropriety if he were to preside over the present case. The habeas
court denied the petitioner’s motion for disqualification. At the show
cause hearing, the petitioner testified that he had filed a timely second
habeas petition, but it was withdrawn prior to trial on the advice of his
counsel and that his counsel had advised him to wait at least sixty days
before filing another petition to avoid the suspicion of the court. The
habeas court dismissed the third habeas petition as untimely, concluding
that the petitioner failed to demonstrate good cause for the nearly ten
month delay in filing the petition and that the withdrawal of the second
petition was strategically filed to manipulate or delay proceeding to
trial. Thereafter, the habeas court denied the petitioner’s petition for
certification to appeal, and the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal, the petitioner having failed to demonstrate that
his claims involved issues that 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.
2. The habeas court did not abuse its discretion in determining that the
petitioner failed to demonstrate good cause for the delay in filing his
third habeas petition: contrary to the petitioner’s claim that he estab-
lished good cause because the delay was due to his second habeas
counsel’s incorrect advice, the petitioner failed to establish that some-
thing outside of his or his counsel’s control caused or contributed to
the delay in filing the third petition, and, even assuming that it was
reasonable for him to withdraw the second petition prior to his pending
trial and to wait at least sixty days before filing another petition, the
petitioner did not file his third petition until nearly ten months after the
statutory deadline had elapsed, and he provided no explanation as to
why he waited an additional eight months beyond his counsel’s suggested
sixty day period before filing it; moreover, in making its determination,
the habeas court reasonably considered the fact that the petitioner made
no claim that the delay was due to missing witnesses or newly discovered
evidence and reasonably concluded that the petitioner’s actions were
an attempt to manipulate or delay proceeding to trial.
3. The habeas court did not abuse its discretion in denying the petitioner’s
motion for disqualification of the habeas judge: contrary to the petition-
er’s contention that certain comments made by the judge during the
petitioner’s first habeas trial created the appearance of impropriety, the
judge indicated that he had no recollection of the prior proceeding,
which had occurred seven years earlier, and the subject comments
were made in the purview of his judicial role and reflected credibility
determinations made with respect to the specific testimony given and
the demeanor exhibited at the first habeas trial, and, therefore, it was
clear that the judge’s previous credibility determinations would not
cause a reasonable person to question his impartiality in presiding over
the present case nor were his comments so extreme as to display a
clear inability to render fair judgment.
Argued March 10, 2021—officially released August 9, 2022
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., rendered judgment dismissing
the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
Jennifer B. Smith, assistant public defender, for the
appellant (petitioner).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Dawn Gallo, state’s attor-
ney, Leah Hawley, senior assistant state’s attorney, and
Amy L. Bepko-Mazzocchi, supervisory assistant state’s
attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Michael G., appeals fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court dismiss-
ing his petition for a writ of habeas corpus pursuant to
General Statutes § 52-470 (d) and (e).1 On appeal, the
petitioner claims that the court abused its discretion
in denying his petition for certification to appeal
because (1) the habeas court erred in determining that
the petitioner failed to demonstrate good cause to over-
come the statutory presumption of unreasonable delay
and (2) the habeas judge improperly failed to disqualify
himself. We disagree and, therefore, dismiss the appeal.
The following facts and procedural history are rele-
vant to our resolution of this appeal. ‘‘On December
20, 2005, [a] jury returned a guilty verdict on four counts
of sexual assault in the first degree and four counts of
risk of injury to a child. On March 10, 2006, the [peti-
tioner] was sentenced to a total effective term of eighty
years imprisonment, execution suspended after forty
years, followed by six years of special parole and twenty
years probation.’’ State v. Michael G., 107 Conn. App.
562, 566, 945 A.2d 1062, cert. denied, 287 Conn. 924,
951 A.2d 574 (2008). This court affirmed the judgment
of conviction on direct appeal. Id., 563. Our Supreme
Court denied certification to appeal this court’s deci-
sion.
Thereafter, on January 21, 2010, the petitioner filed
his first petition for a writ of habeas corpus, which he
amended on March 16, 2012 (first petition), alleging that
his trial counsel had rendered deficient performance.
Following a trial on the merits, the habeas court denied
that first petition. Michael G. v. Commissioner of Cor-
rection, 153 Conn. App. 556, 558, 102 A.3d 132 (2014),
cert. denied, 315 Conn. 916, 107 A.3d 412 (2015). The
habeas court denied his petition for certification to
appeal, and this court dismissed his appeal on October
21, 2014. Id., 563. Our Supreme Court denied the peti-
tioner certification to appeal on January 21, 2015.
The petitioner filed a second petition for a writ of
habeas corpus on September 23, 2014 (second petition).
A habeas trial with respect to that second petition was
scheduled to begin on May 9, 2017. The petitioner, how-
ever, withdrew that petition on February 7, 2017.
The petitioner filed a third petition for writ of habeas
corpus, the subject of this appeal, on December 1, 2017
(third petition). The respondent, the Commissioner of
Correction, thereafter filed a request with the habeas
court, pursuant to § 52-470 (d) and (e), for an order
to show cause as to ‘‘why [the petitioner] should be
permitted to proceed despite his delay in filing the
instant habeas corpus petition.’’ Subsequently, the
habeas court, Newson, J., ordered an evidentiary hear-
ing (show cause hearing).
On February 20, 2019, prior to the show cause hear-
ing, the petitioner moved that the habeas judge disqual-
ify himself, arguing that, because Judge Newson had
presided over the habeas trial on the petitioner’s first
petition, he should disqualify himself from presiding
over this case. On March 15, 2019, at the start of the
show cause hearing, the court addressed the motion
for disqualification and concluded that disqualification
was not necessary. The court then proceeded to con-
duct the show cause hearing on March 15, 2019. The
only evidence presented at the hearing was the testi-
mony of the petitioner. The court also heard legal argu-
ments from both sides.
Thereafter, on June 21, 2019, the court issued a mem-
orandum of decision dismissing the petitioner’s third
petition. In its decision, the court concluded that the
petitioner’s third petition was untimely by approxi-
mately ten months2 and, further, that the petitioner did
not demonstrate good cause for the delay in filing the
petition. Thereafter, the petitioner filed a petition for
certification to appeal, which the court denied. This
appeal followed.
Following oral argument before this court held on
March 10, 2021, at the petitioner’s request, this appeal
was stayed pending our Supreme Court’s consideration
of Kelsey v. Commissioner of Correction, 343 Conn.
424, 274 A.3d 85 (2022).
Following our Supreme Court’s decision in Kelsey,
the parties were ordered to file supplemental briefs
addressing Kelsey’s impact on this appeal. Additional
procedural history will be set forth as necessary.
We begin by setting forth the legal principles that
govern our review of a habeas court’s denial of a petition
for certification to appeal. ‘‘Faced with a habeas court’s
denial of a petition for certification to appeal, a peti-
tioner 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 demon-
strate 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 encourage-
ment to proceed further. . . . In determining whether
the habeas court abused its discretion in denying the
petitioner’s request for certification, we necessarily
must consider the merits of the petitioner’s underlying
claims to determine whether the habeas court reason-
ably determined that the petitioner’s appeal was frivo-
lous. In other words, we review the petitioner’s substan-
tive 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.’’ (Internal quotation marks omitted.)
Olorunfunmi v. Commissioner of Correction, 211
Conn. App. 291, 303, 272 A.3d 716, cert. denied, 343
Conn. 929, A.3d (2022).
I
The petitioner’s first claim is that he established good
cause for his delay in filing his third petition because
the delay was due to incorrect advice from his counsel
in his second habeas case.3 We disagree.
The petitioner was the only witness who testified at
the show cause hearing, and no other evidence was
offered by the parties. With respect to his second peti-
tion, the petitioner testified that it was filed before our
Supreme Court denied his petition for certification to
appeal this court’s decision in his first habeas case.
He testified that he was represented by counsel in the
second habeas case, his counsel advised him to with-
draw the second petition, and, ‘‘as far as [he knew], it
was’’ withdrawn. In addition, when asked during direct
examination, he agreed that his counsel further had
advised him that he should wait ‘‘at least sixty days’’
after withdrawing the second petition before filing
another ‘‘in order to avoid suspicion of the court.’’
Following the petitioner’s testimony, each side pre-
sented argument. The respondent’s counsel maintained
that ‘‘[t]he [petitioner’s] attorney was not here to testify
as to what he did and didn’t tell [the petitioner]. The
only thing we have is the self-serving testimony that,
you know, he, he was given this advice. I mean, clearly,
the petition is late. It was filed after the statutory time
period and there has been . . . no testimony as to
newly discovered evidence, and nothing that shows
good cause for the time delay. So, the petitioner’s failed
to meet his burden of proof.’’ The petitioner’s counsel
discussed the issue of what exact date established when
a petition was timely or not, asserting that the petitioner
had until February 10, 2017, three days after he with-
drew his second petition, to file another subsequent
petition. In closing, the petitioner’s counsel noted: ‘‘I
think that the issue is . . . that he was given the incor-
rect advice during the time frame in which he could
have filed another one timely.’’
Thereafter, on June 21, 2019, the habeas court dis-
missed the petitioner’s third petition, determining that
he lacked good cause for the delay in the filing of the
petition. In its memorandum of decision, the habeas
court first determined that ‘‘the petitioner had two years
from when the Supreme Court issued notification [that]
it had denied certification to file a subsequent habeas
action attacking the same conviction, which would have
given him until January 21, 2017, but the present action
was not filed until December 1, 2017.’’ The habeas court
then concluded that the petitioner did not meet his
evidentiary burden of demonstrating good cause for the
delay because ‘‘[t]here is no claim that the petitioner
was ‘forced’ or ‘misled’ into withdrawing this prior peti-
tion. There is also no claim that the petitioner was
lacking necessary information or witnesses when he
filed the withdrawal, or that he has discovered other-
wise unknown evidence between then and now.
Instead, the court is left with the only reasonable con-
clusion that the withdrawal of the prior action was
strategically filed simply to manipulate or delay pro-
ceeding to trial.’’
We begin by setting forth the applicable standard
of review. ‘‘[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] con-
clude[d] as it did.’’4 (Internal quotation marks omitted.)
Kelsey v. Commissioner of Correction, supra, 343
Conn. 440.
Section 52-470 (d) provides in relevant part: ‘‘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 . . . [t]wo years
after the date on which the judgment in the prior peti-
tion is deemed to be a final judgment due to the conclu-
sion of appellate review or the expiration of the time
for seeking such review . . . .’’ Section 52-470 (e) pro-
vides in relevant part that, ‘‘[i]f . . . the court finds
that the petitioner has not demonstrated good cause
for the delay, the court shall dismiss the petition.’’
‘‘[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.’’ (Internal quotation marks
omitted.) Kelsey v. Commissioner of Correction, supra,
343 Conn. 441–42. The following nonexhaustive list of
factors aid in determining whether a petitioner has satis-
fied 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 respon-
sibility 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 peti-
tioner file the petition.’’5 (Internal quotation marks omit-
ted.) Id., 442.
‘‘[A]lthough . . . the legislature certainly contem-
plated a petitioner’s lack of knowledge of a change in
the law as potentially sufficient to establish good cause
for an untimely filing, the legislature did not intend for
a petitioner’s lack of knowledge of the law, standing
alone, to establish that a petitioner has met his eviden-
tiary burden of establishing good cause. As with any
excuse for a delay in filing, the ultimate determination
is subject to the same factors previously discussed,
relevant to the petitioner’s lack of knowledge: whether
external forces outside the control of the petitioner had
any bearing on his lack of knowledge, and whether and
to what extent the petitioner or his counsel bears any
personal responsibility for that lack of knowledge.’’6
(Footnote omitted.) Id., 444–45.
In Kelsey, the petitioner filed a second petition for a
writ of habeas corpus approximately five years after
our Supreme Court denied his petition for certification
to appeal from this court’s judgment affirming the
habeas court’s denial of his first petition for a writ of
habeas corpus. Id., 429. The habeas court determined
that the petitioner did not demonstrate good cause for
the delay in filing his second petition and, therefore,
dismissed the petition. Id., 431. Before our Supreme
Court, the petitioner argued that, ‘‘in addition to his
prior habeas counsel’s failure to inform him of any
statutory filing deadlines, his status as a self-repre-
sented party when he filed this petition caused the delay
in filing insofar as his conditions of confinement had
caused him to be unaware of the deadline set by the
2012 amendments to § 52-470.’’ Id., 441. The court
rejected this argument, noting that the ‘‘petitioner had
access to a resource center that included the General
Statutes’’ and that ‘‘the petitioner stated [as explanation
for the delay] that he was housed in and out of adminis-
trative segregation due to a disciplinary problem.’’
Id., 446.
In the present case, the petitioner argues that he
established good cause because ‘‘his second habeas
counsel failed to explain the statutory time limits in
. . . § 52-470 and incorrectly advised him to withdraw
his prior petition and refile it outside of the two year
statutory deadline.’’7 Specifically, he argues that his
‘‘second habeas counsel’s deficient advice caused the
delay in filing the instant petition. At the time the peti-
tioner withdrew his prior petition, counsel failed to
inform him of the statutory deadline that could preclude
him from pursuing [an additional] habeas corpus [peti-
tion].’’ The petitioner further states that his habeas
counsel was ‘‘required to understand the time con-
straints governing habeas corpus . . . .’’ The respon-
dent replies that the petitioner’s arguments ‘‘cannot be
reconciled with the Kelsey court’s statement that good
cause must be something outside the control of both
the petitioner and habeas counsel’’ because ‘‘both the
petitioner and [his habeas counsel] bear personal
responsibility for the consequences of the withdrawal
of the prior petition.’’ (Emphasis in original.) We agree
with the respondent.
As the respondent notes, the record does not estab-
lish that the petitioner or his counsel was unaware of
§ 52-470 and the time limits included therein.8 Even if
we were to assume without determining, however, that
neither the petitioner nor his habeas counsel was aware
of the time limits,9 the petitioner still cannot demon-
strate that the habeas court abused its discretion in
determining that the erroneous advice the petitioner
received did not establish good cause for the delay in
filing the third petition. The first two Kelsey factors are
particularly instructive: On the basis of the evidence
presented at the show cause hearing, there are no exter-
nal factors at play and the petitioner and his habeas
counsel together exclusively bear responsibility for the
delay in filing the petition.10 See Kelsey v. Commis-
sioner of Correction, supra, 343 Conn. 445 (‘‘whether
and to what extent the petitioner or his counsel bears
any responsibility for that lack of knowledge’’ is rele-
vant to good cause inquiry); see also Schoolhouse Corp.
v. Wood, 43 Conn. App. 586, 591–92, 684 A.2d 1191 (1996)
(neglect by party or party’s attorney does not meet
traditional definition of good cause), cert. denied, 240
Conn. 913, 691, A.2d 1079 (1997). It has not been estab-
lished that ‘‘something outside of the control of the
petitioner or habeas counsel caused or contributed to
the delay.’’ Kelsey v. Commissioner of Correction,
supra, 442.
In addition, the length of the delay further supports
the habeas court’s determination that the petitioner
failed to demonstrate good cause for the delay. Even
assuming, without determining, that it was reasonable
for the petitioner to withdraw the second petition prior
to his pending trial and to wait ‘‘at least [sixty] days’’
before filing another petition, he did not file his third
petition until almost ten months had elapsed, and, fur-
ther, he provides no explanation as to why he waited
an additional eight months after his habeas counsel’s
suggested sixty day waiting period.11
Finally, the habeas court reasonably considered the
fact that the petitioner made no claim that the delay
was due to missing witnesses or newly discovered evi-
dence and reasonably concluded that the petitioner’s
actions were an attempt to ‘‘manipulate or delay pro-
ceeding to trial.’’12 Thus, we conclude that the habeas
court did not abuse its discretion in determining that
the petitioner had failed to demonstrate good cause
for the delay in filing his third petition for a writ of
habeas corpus.
II
The petitioner’s second claim is that the court
‘‘improperly failed to recuse itself from deciding the
respondent’s good cause motion.’’ We disagree.
The following additional procedural history is rele-
vant to our resolution of this claim. Subsequent to the
trial on the petitioner’s first petition for a writ of habeas
corpus, during which the petitioner testified as a wit-
ness, Judge Newson issued an oral decision denying
the petition. In that ruling, Judge Newson made the
following comments: ‘‘[F]rankly, to put it bluntly, the
petitioner’s testimony lacked even the slightest sem-
blance of credibility as to anything that came out of his
mouth. . . . [H]e lacked even the slightest semblance
of credibility. I watched his demeanor and his action,
and I’m not just talking about his words. I don’t think
[the petitioner] even believed himself . . . and that’s
the court’s assessment of him and his demeanor while
he was testifying here.
‘‘So that it’s clear for the record, I am not judging
the words; I am judging the person I saw on the stand
and whether or not I found him the least bit credible as
to those allegations . . . .’’ In addition, Judge Newson
commented that the petitioner’s parents, who also testi-
fied at the habeas trial, similarly lacked credibility.
In the present case, prior to the show cause hearing,
the petitioner filed a motion pursuant to Practice Book
§§ 1-2213 and 1-2314 and rule 2.11 of the Code of Judicial
Conduct to disqualify Judge Newson ‘‘from hearing any
aspect of this case.’’ The petitioner argued that, because
Judge Newson had ‘‘remarked on multiple occasions’’
that the petitioner lacked credibility and because ‘‘[t]he
petitioner’s credibility, in the present case, will be criti-
cal to the outcome . . . [i]n order to maintain the fair-
ness of these proceedings and ensure that the petitioner
receives due process, the court must not place itself in
the precarious position of opining on the credibility of
the petitioner [whom] it once found ‘lacked any sem-
blance of credibility.’ ’’ In the motion, the petitioner
conceded that ‘‘there is no Practice Book rule or statute
that explicitly prohibits the court from presiding over
the petitioner’s case’’ and that there is ‘‘no evidence
that the court is actually biased against him.’’ (Emphasis
omitted.) Instead, his position was that ‘‘presiding over
the present case would, at the very least, present an
appearance of impropriety that this court could easily
avoid by assigning the matter to another judge for all
future proceedings . . . .’’
At the start of the show cause hearing, Judge Newson
addressed the motion for disqualification. The peti-
tioner argued that Judge Newson’s previous credibility
determinations created the ‘‘appearance of impropri-
ety,’’ warranting disqualification. The respondent’s
attorney stated, ‘‘[w]e take no position.’’
Judge Newson then made the following oral ruling:
‘‘All right. I can, I can say this, I, I did read the, I
did read the transcript. I can tell you in reading the
transcript, I don’t necessarily have any direct memory
of the case or the proceedings. I will honestly say,
notwithstanding the court’s rather strong language, I
think that language, as it was expressed in the opinion,
was related to whatever the stories or the stories or
testimony, for lack of a better word, that was related
to the court in that matter.
‘‘I don’t know that I think I found, generally, that as
a person [the petitioner] was not credible, but—and I
think there’s even mention of comments about, I think
his parents testified—that watching their demeanor and
other things that were in front of me at that time, I
found that they lacked credibility. I also would note
that, notwithstanding the strong language under those
circumstances, that’s a court’s job in matters like this,
which is to find whether or not persons are or not
credible. And, I would imagine that if the fact that a
court used strong language related to a matter as
opposed to generally, were grounds for disqualification,
there would be many.
‘‘So I will, again, deny the request. Again, this is a
substantially different matter, some seven years in the
future. And, again, I can tell you—and I know, I know
counsel’s doing her job. At, at this point, I don’t honestly
have a direct memory of what even the facts and circum-
stances of that matter were. Although, I can tell you,
it’s not the—well, I’ll just leave it at that.’’
On appeal, the petitioner asserts that ‘‘[a] reasonable
person would have believed that the habeas court had
a preconceived view that the petitioner was not credible
at the time he presided over the petitioner’s show cause
hearing, based on his repeated findings in the petition-
er’s prior habeas action that the petitioner ‘lacked even
the slightest semblance of credibility as to anything that
came out of his mouth.’ ’’15 In reply, the respondent
asserts that ‘‘the habeas court properly exercised its
discretion in denying the motion for recusal because
its comments on the petitioner’s credibility were limited
to the evidence presented during the first habeas trial,
of which the habeas court had no direct recollection and
which occurred seven years before the [show] cause
hearing. Moreover, the comments would not have
impacted the outcome of the instant proceeding, which
did not depend on the court’s assessment of the petition-
er’s credibility.’’ We agree with the respondent.
‘‘Appellate review of the trial court’s denial of a defen-
dant’s motion for judicial disqualification is subject to
the abuse of discretion standard. . . . That standard
requires us to indulge every reasonable presumption in
favor of the correctness of the court’s determination.’’
(Internal quotation marks omitted.) State v. Lane, 206
Conn. App. 1, 8, 258 A.3d 1283, cert. denied, 338 Conn.
913, 259 A.3d 654 (2021); see also Joyner v. Commis-
sioner of Correction, 55 Conn. App. 602, 609, 740 A.2d
424 (1999).
We begin our analysis with Practice Book § 1-22 (a),
which provides in relevant part that ‘‘[a] judicial author-
ity shall . . . be disqualified from acting in a matter if
such judicial authority is disqualified from acting
therein pursuant to Rule 2.11 of the Code of Judicial
Conduct . . . .’’ Rule 2.11 (a) of the Code of Judicial
Conduct provides in relevant part: ‘‘A judge shall dis-
qualify himself or herself in any proceeding in which
the judge’s impartiality might reasonably be ques-
tioned . . . .’’16
‘‘In applying this rule, [t]he reasonableness standard
is an objective one. Thus, the question is not only
whether the particular judge is, in fact, impartial but
whether a reasonable person would question the judge’s
impartiality on the basis of all the circumstances. . . .
Moreover, it is well established that [e]ven in the
absence of actual bias, a judge must disqualify himself
in any proceeding in which his impartiality might rea-
sonably be questioned, because the appearance and the
existence of impartiality are both essential elements of
a fair exercise of judicial authority. . . . Nevertheless,
because the law presumes that duly elected or
appointed judges, consistent with their oaths of office,
will perform their duties impartially . . . the burden
rests with the party urging disqualification to show that
it is warranted.’’ State v. Milner, 325 Conn. 1, 12, 155
A.3d 730 (2017).
‘‘[O]pinions that judges may form as a result of what
they learn in earlier proceedings in the same case rarely
constitute the type of bias, or appearance of bias, that
requires recusal. . . . To do so, an opinion must be
so extreme as to display clear inability to render fair
judgment. . . . In the absence of unusual circum-
stances, therefore, equating knowledge or opinions
acquired during the course of an adjudication with an
appearance of impropriety or bias requiring recusal
finds no support in law, ethics or sound policy.’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) State v. Rizzo, 303 Conn. 71, 121, 31
A.3d 1094 (2011), cert. denied, 568 U.S. 836, 133 S. Ct.
133, 184 L. Ed. 2d 64 (2012); see Ajadi v. Commissioner
of Correction, 280 Conn. 514, 529, 911 A.2d 712 (2006)
(plain error for judge, who had represented petitioner
during criminal proceedings, to not recuse himself given
that habeas petition over which he presided had initially
alleged that ‘‘his own prior representation of the peti-
tioner was so deficient that it deprived the petitioner
of counsel in violation of the sixth amendment to the
federal constitution’’ as reasonable person would ques-
tion judge’s impartiality).
As noted, the petitioner argues that Judge Newson’s
previous comments regarding the petitioner’s testimony
during his first habeas trial created the appearance of
impropriety. After considering the record, we cannot
conclude that Judge Newson abused his discretion in
denying the petitioner’s motion for disqualification. As
Judge Newson noted in his oral ruling, the allegedly
offending comments properly were made in the purview
of his judicial role as it is squarely within a habeas
judge’s authority to make credibility determinations
concerning witness testimony. See, e.g., Chase v. Com-
missioner of Correction, 210 Conn. App. 492, 500, 270
A.3d 199 (‘‘[t]he habeas judge, as the trier of facts, is
the sole arbiter of the credibility of witnesses and the
weight to be given to their testimony’’ (internal quota-
tion marks omitted)), cert. denied, 343 Conn. 903, 272
A.3d 199 (2022). Judge Newson’s comments reflect
credibility determinations made with respect to the spe-
cific testimony given and the demeanor exhibited at
the habeas trial, further demonstrating that the judge
acted in accordance with his role rather than making
an unbounded determination that the petitioner is inca-
pable of giving credible testimony. Furthermore, Judge
Newson stated that he had no recollection of the prior
proceeding, which occurred seven years earlier. See
State v. Webb, 238 Conn. 389, 461, 680 A.2d 147 (1996)
(‘‘[t]he greater the length of time that has passed since
the prior appearance, the less likely it is that the judge
possesses any bias against the party’’). Given these cir-
cumstances, it is clear that Judge Newson’s previous
credibility determinations would not cause a reasonable
person to question the impartiality of the arbiter of the
current proceeding nor were his comments ‘‘so extreme
as to display a clear inability to render fair judgment.’’
(Internal quotation marks omitted.) State v. Rizzo,
supra, 303 Conn. 121. As the respondent aptly sug-
gested: ‘‘An objective observer, upon reviewing the tran-
script from the habeas court’s decision in 2012, would
not reasonably doubt the court’s ability to assess the
petitioner’s credibility anew in an unrelated proceeding
held seven years later.’’
Accordingly, we conclude that the petitioner has
failed to demonstrate that his claims involve issues that
are debatable among jurists of reason, a court could
resolve the issues in a different manner, or the questions
are adequate to deserve encouragement to proceed fur-
ther. Thus, we conclude that the habeas court did not
abuse its discretion in denying the petition for certifica-
tion to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
use the petitioner’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
General Statutes § 52-470 provides in relevant part: ‘‘(d) In the case of
a petition filed subsequent to a judgment on a prior petition challenging the
same conviction, there shall be a rebuttable presumption that the filing of
the subsequent petition has been delayed without good cause if such petition
is filed after the later of the following: (1) Two years after the date on which
the judgment in the prior petition is deemed to be a final judgment due to
the conclusion of appellate review or the expiration of the time for seeking
such review . . . . For the purposes of this section, the withdrawal of a
prior petition challenging the same conviction shall not constitute a judg-
ment. The time periods set forth in this subsection shall not be tolled during
the pendency of any other petition challenging the same conviction. . . .
‘‘(e) In a case in which the rebuttable presumption of delay under subsec-
tion . . . (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 coun-
sel, 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 subsec-
tion . . . (d) of this section.’’
2
Specifically, the court determined that the statutory deadline applicable
to the filing of subsequent habeas petitions was January 21, 2017. On appeal,
the petitioner argues that this was a clearly erroneous factual finding because
he had two years and twenty days from the day our Supreme Court denied
the petitioner’s petition for certification to appeal to file another petition,
rendering the operative deadline February 10, 2017. As the respondent main-
tains, however, we need not consider this assertion because, regardless of
which date is used, the petitioner’s third petition was late by several months,
a fact the petitioner concedes. See footnote 3 of this opinion. Furthermore, in
his supplemental brief to this court, the petitioner notes that ‘‘[t]he statutory
deadline expired on January 21, 2017,’’ therefore seeming to abandon this
claim.
3
The petitioner does not dispute that his third petition was untimely.
4
Initially, the petitioner argued that the habeas court’s determination
regarding good cause was subject to plenary review because ‘‘the question
of whether the petitioner has established ‘good cause’ under . . . § 52-470
presents an issue of statutory interpretation . . . .’’ As discussed previously
in this opinion, this appeal was stayed pending our Supreme Court’s decision
in Kelsey v. Commissioner of Correction, supra, 343 Conn. 424. In Kelsey,
our Supreme Court rejected the argument that a decision to dismiss a habeas
petition for failure to establish good cause required statutory interpretation
and clarified that the proper standard of review is abuse of discretion. Id.,
432, 440. In his supplemental brief, the petitioner acknowledges that the
applicable standard of review is abuse of discretion.
5
In his initial appellate briefing, the petitioner argued for ‘‘an expansive
definition’’ of what constitutes good cause. In his supplemental briefing,
however, the petitioner does not challenge the definition of good cause or
the relevant factors for consideration set forth in Kelsey, which Supreme
Court decision is binding on this court. See Stuart v. Stuart, 297 Conn. 26,
45–46, 996 A.2d 259 (2010) (‘‘it is manifest to our hierarchical judicial system
that [the Supreme Court] has the final say on matters of Connecticut law
and that the Appellate Court . . . [is] bound by [its] precedent’’).
6
In addition to these factors, but not relevant to our review of the petition-
er’s claim, our Supreme Court established that ‘‘the habeas court may also
include in its good cause analysis whether a petition is wholly frivolous on
its face. . . . [T]he good cause determination can be, in part, guided by the
merits of the petition.’’ Kelsey v. Commissioner of Correction, supra, 343
Conn. 444 n.9.
7
In his principal brief to this court, the petitioner also argues that the
delay was due to his then pending sentence review application, as he was
waiting to see if his sentence would be modified before filing a third habeas
petition. The respondent argues that ‘‘this claim is unreviewable because
the habeas court did not issue a ruling on it, and the petitioner never sought
articulation of the record on either the claim itself or the respondent’s
written objection thereto.’’
On March 18, 2019, following the show cause hearing, the petitioner filed
a ‘‘supplemental brief in support of good cause’’ in which he argued that
the habeas court could ‘‘infer that the petitioner waited to file a new petition
for a writ of habeas corpus . . . because of his pending sentence review
application.’’ The petitioner attached the sentence review decision, which
was issued on January 23, 2018, to the brief. The respondent objected to
the brief and the arguments therein and requested that the brief be stricken.
The court did not rule on the objection and did not address the sentence
review argument in its memorandum of decision. Given that the petitioner
did not raise the argument during the show cause hearing and the court
did not address it in its memorandum of decision, we agree with the respon-
dent that the issue is not reviewable.
8
The respondent also asserts that we should apply the principle that
‘‘everyone is presumed to know the law’’; (internal quotation marks omitted)
State v. Legrand, 129 Conn. App. 239, 271, 20 A.3d 52, cert. denied, 302
Conn. 912, 27 A.3d 371 (2011). Because lack of knowledge alone does not
establish good cause, we need not consider whether the presumption applies
in this case. See Kelsey v. Commissioner of Correction, supra, 343 Conn. 444.
9
The evidence at the show cause hearing established only that the peti-
tioner was advised to withdraw his second petition and file a third petition
after the expiration of at least sixty days. There was no evidence as to the
petitioner’s knowledge, or lack thereof, of the time limitations contained in
§ 52-470 and, similarly, no evidence regarding his habeas counsel’s knowl-
edge of § 52-470.
10
The petitioner argues that his habeas counsel provided ineffective assis-
tance and that such defective assistance, being the result of the delay,
established good cause for the delay in filing. The petitioner has failed,
however, to provide any binding or persuasive law to support this position.
11
The petitioner initially argued that ‘‘[i]t is irrelevant when the petitioner
filed the instant habeas petition because, even as the habeas court acknowl-
edged, the petitioner ‘would have been beyond the two year window . . . .’’
In Kelsey, however, our Supreme Court affirmed that the length of time
between the filing deadline and the filing of the petition is relevant to
the good cause inquiry. Kelsey v. Commissioner of Correction, supra, 343
Conn. 438.
12
The petitioner does not claim that this conclusion was unfounded but,
rather, asserts that ‘‘why the petitioner sought to withdraw his prior petition
is irrelevant.’’
13
Practice Book § 1-22 (a) provides: ‘‘A judicial authority shall, upon
motion of either party or upon its own motion, be disqualified from acting
in a matter if such judicial authority is disqualified from acting therein
pursuant to Rule 2.11 of the Code of Judicial Conduct or because the judicial
authority previously tried the same matter and a new trial was granted
therein or because the judgment was reversed on appeal. A judicial authority
may not preside at the hearing of any motion attacking the validity or
sufficiency of any warrant the judicial authority issued nor may the judicial
authority sit in appellate review of a judgment or order originally rendered
by such authority.’’
14
Practice Book § 1-23 provides: ‘‘A motion to disqualify a judicial authority
shall be in writing and shall be accompanied by an affidavit setting forth
the facts relied upon to show the grounds for disqualification and a certificate
of the counsel of record that the motion is made in good faith. The motion
shall be filed no less than ten days before the time the case is called for trial
or hearing, unless good cause is shown for failure to file within such time.’’
15
We note that many of the arguments set forth in the petitioner’s appellate
brief assert the existence of actual bias. Because the petitioner specifically
disclaimed any argument that Judge Newson was actually biased during the
hearing before the habeas court, however, any argument that Judge Newson
was actually biased against the petitioner is waived. See State v. Andres C.,
208 Conn. App. 825, 853–54, 266 A.3d 888 (2021) (‘‘[W]aiver is [t]he voluntary
relinquishment or abandonment—express or implied—of a legal right or
notice. . . . In determining waiver, the conduct of the parties is of great
importance. . . . [W]aiver may be effected by action of counsel. . . . When
a party consents to or expresses satisfaction with an issue at trial, claims
arising from that issue are deemed waived and may not be reviewed on
appeal.’’ (Internal quotation marks omitted.)), cert. granted, 342 Conn. 901,
270 A.3d 97 (2022).
16
The rule provides a nonexhaustive list of examples of situations war-
ranting disqualification. See Code of Judicial Conduct, Rule 2.11 (a).