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DOUGLAS JAYNES v. COMMISSIONER
OF CORRECTION
(AC 44620)
Elgo, Suarez and DiPentima, Js.
Syllabus
The petitioner, who had been convicted of the crime of murder, sought a
writ of habeas corpus. The petitioner had previously filed numerous
habeas petitions that were either withdrawn or dismissed. The respon-
dent Commissioner of Correction filed a motion pursuant to statute
(§ 52-470 (d)) for an order to show cause as to why the petitioner’s
habeas petition should not be dismissed as a result of undue delay. The
petitioner did not dispute that the petition was untimely filed but claimed
that he suffered from a mental illness that impaired his ability to file a
habeas petition in a timely manner. The habeas court dismissed the
petition for the petitioner’s failure to demonstrate good cause to over-
come the statutory presumption of unreasonable delay. On the petition-
er’s certified appeal to this court, held:
1. This court declined to reach the merits of the petitioner’s claim that the
habeas court erred in dismissing his petition because it included a claim
of actual innocence, which, pursuant to § 52-470 (f), cannot be dismissed
for failure to meet the statutory deadline of § 52-470 (d), that claim
having been asserted for the first time on appeal: the habeas petition
did not use the phrase ‘‘actual innocence’’ and, at the show cause hearing,
because the petitioner did not assert a claim of actual innocence, the
court did not address it, instead, addressing the reason for the delay
on which the petitioner expressly relied, namely, claims of mental illness;
accordingly, the petitioner’s claim plainly reflected a strategic shift by
him to raise a new argument on appeal, and it would amount to nothing
more than an ambuscade of the habeas court for this court to consider
a newly raised argument that was neither raised by the petitioner nor
considered by that court at the time that the petitioner attempted to
demonstrate that the petition should not be dismissed as untimely.
2. The habeas court did not abuse its discretion by dismissing the habeas
petition, the petitioner having failed to demonstrate good cause for
an untimely filing pursuant to § 52-470 (e): the court found that the
petitioner’s testimony explaining his mental illness as the reason for
the delay consisted of bare assertions that, without more, did not over-
come the statutory presumption of unreasonable delay, and the record
contained ample support for the court’s conclusions, specifically, that,
during the show cause hearing, the petitioner stated that his mental
illness did not prevent from filing prior habeas petitions because he
received assistance in filing the prior petitions; moreover, the court
found that the petitioner’s testimony, insofar as he testified that his
mental illness or stress level was the reason for the delay in filing the
petition, was not credible, and, as a reviewing court, this court must
defer to the credibility findings of the habeas court based on its firsthand
observation of a witness’ conduct, demeanor, and attitude; furthermore,
even if the habeas court had found that the petitioner credibly testified
that he suffered from mental illness, it did not relieve the petitioner of
his burden of demonstrating that his delay in filing the petition was
attributable to his mental illness, which the petitioner failed to do.
Argued May 9—officially released November 8, 2022
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland and
tried to the court, Oliver, J.; judgment dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
James E. Mortimer, assigned counsel, for the appel-
lant (petitioner).
Brett R. Aiello, deputy assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Craig Nowak, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
SUAREZ, J. The petitioner, Douglas Jaynes, appeals,
following the granting of his petition for certification,
from the judgment of the habeas court dismissing his
petition for a writ of habeas corpus. The petitioner
claims that the habeas court erred in dismissing the
petition pursuant to General Statutes § 52-470 (e)
because (1) it includes an allegation of actual innocence
which, pursuant to § 52-470 (f), cannot be dismissed
for failure to meet the statutory time limit codified in
§ 52-470 (d), and (2) he demonstrated good cause for
the untimely filing of his petition under § 52-470 (d).1
We affirm the judgment of the habeas court.
The following facts and procedural history, as found
by the habeas court or otherwise undisputed in the
record, are relevant to the present appeal. On July 6,
1992, the petitioner was convicted, after a jury trial, of
murder in violation of General Statutes § 53a-54a (a)2
and sentenced to fifty-five years of incarceration. This
court affirmed the petitioner’s conviction on his direct
appeal. State v. Jaynes, 36 Conn. App. 417, 432, 650
A.2d 1261 (1994), cert. denied, 233 Conn. 908, 658 A.2d
980 (1995).
Thereafter, the petitioner filed his first habeas peti-
tion, which was denied. Subsequently, the petitioner’s
uncertified appeal to this court was dismissed, and our
Supreme Court denied the petitioner’s petition for certi-
fication to appeal from this court’s dismissal. Jaynes
v. Commissioner of Correction, 61 Conn. App. 404, 406,
764 A.2d 215, cert. denied, 255 Conn. 945, 769 A.2d
58 (2001). The parties agree that the petitioner filed
numerous additional habeas petitions that were either
withdrawn or dismissed. On August 7, 2019, as a self-
represented party, the petitioner filed the habeas peti-
tion at issue in this appeal.
On September 28, 2020, the respondent, the Commis-
sioner of Correction, filed a motion pursuant to § 52-470
(d) for an order to show cause as to why the petitioner’s
habeas petition should not be dismissed as a result of
undue delay. Specifically, the respondent asserts that,
pursuant to § 52-470 (d), the petitioner had until Octo-
ber 1, 2014, to file a habeas petition subsequent to a
judgment rendered on a prior petition challenging the
same conviction, and, therefore, the habeas petition had
to be dismissed unless the petitioner could demonstrate
good cause for the delay. On October 22, 2020, the
habeas court, Oliver, J., granted the motion for a show
cause hearing. On February 4, 2021, the habeas court
held a hearing on the respondent’s motion. At the hear-
ing, the petitioner did not dispute that his habeas peti-
tion was untimely. Instead, he sought to show that there
was good cause for the delay in filing the petition
because he suffered from a mental illness that impaired
his ability to file a habeas petition in a timely manner.
At the hearing, the petitioner testified that he had been
diagnosed as ‘‘paranoid schizophrenic’’ and had been
prescribed antidepressants. He claimed that his mental
illness left him ‘‘very confused and mixed up about a
lot of things . . . .’’ On cross-examination, however,
the petitioner admitted that his mental illness did not
prevent him from filing habeas petitions. Rather, he
claimed that his mental illness was ‘‘[s]ometimes’’ the
reason for withdrawing his prior petitions, but other
times it was due to his frustration with the legal system.
Following the hearing, in a memorandum of decision,
the habeas court dismissed the habeas petition for the
petitioner’s failure to demonstrate good cause to over-
come the statutory presumption of unreasonable delay
as established in § 52-470 (d) and (e). The habeas court
specifically stated that it took judicial notice of the
previous habeas filings and their dispositions, consid-
ered the evidence adduced at trial, and applied the
factors set forth in Kelsey v. Commissioner of Correc-
tion, 202 Conn. App. 21, 34–35, 244 A.3d 171 (2020),
aff’d, 343 Conn. 424, 274 A.3d 85 (2022). The habeas
court found that the testimony of the petitioner was
not credible. Additionally, the habeas court found that
the petitioner’s testimony regarding his mental illness
‘‘consisted of bare assertions.’’ Ultimately, the habeas
court found that the petitioner’s ‘‘assertions, without
more, rendered the petitioner’s evidence too loose and
equivocal to overcome the aforementioned statutory
presumption.’’ Thereafter, the petitioner sought certifi-
cation to appeal, which the habeas court granted. This
appeal followed. Additional facts will be set forth as
necessary.
I
The petitioner asserts, for the first time on appeal,
that the habeas court erred in dismissing his habeas
petition because it includes a claim of actual innocence,
which, pursuant to § 52-470 (f), cannot be dismissed
for failure to meet the statutory deadline of § 52-470 (d).
In response, the respondent avers that ‘‘the petitioner
never asserted a claim of actual innocence in his peti-
tion nor did he do so at the ‘show cause’ hearing.’’
Therefore, according to the respondent, ‘‘the habeas
court could not have abused its discretion with respect
to a claim that the petitioner never raised below.’’ We
agree with the respondent.
Our review of the habeas petition reveals, and the
petitioner does not appear to dispute, that in the petition
filed by the petitioner as a self-represented party, he
did not use the phrase ‘‘actual innocence.’’ In the space
provided for question five on the state supplied form
for bringing the habeas petition, which was utilized by
the petitioner in this case, the petitioner was asked to
set forth the reason why his conviction was illegal. The
petitioner wrote that ‘‘the arrest was unsupervised by
[the police],’’ he had an impaired mental state at the
time of trial, and he ‘‘was never given the chance at
[his] probable cause hearing to do questioning.’’3
The petitioner argues that it was unnecessary for
him to have used the phrase ‘‘actual innocence’’ in his
habeas petition, and that the habeas court should have
recognized a claim of actual innocence based on state-
ments in the habeas petition such as ‘‘I did not murder
the male’’ and ‘‘life is priceless.’’ The petitioner further
alleged that he did not own the clothes a witness
claimed the assailant was wearing, and that he was ‘‘in
a[n] after-hours place drinking around the time of the
incident.’’ The petitioner asserts that it is well estab-
lished that courts should not interpret habeas petitions
in a hypertechnical manner but should, instead, con-
strue pleadings broadly, and that ‘‘Connecticut courts
[are] to be solicitous of [self-represented] litigants . . .
when it does not interfere with the rights of other par-
ties.’’ (Internal quotation marks omitted.)
The respondent argues that the present claim is unre-
viewable because it was raised for the first time on
appeal and, therefore, the habeas court could not have
abused its discretion. In the alternative, the respondent
argues that, even if the petitioner relied on the existence
of an actual innocence claim at the show cause hearing,
the habeas petition does not contain such a claim. The
petitioner does not address the respondent’s arguments
with any authority, nor are we aware of any, that abro-
gates his obligation to preserve this claim for appellate
review by distinctly raising it before the habeas court.
We carefully have reviewed the transcripts of the
show cause hearing. At the hearing, the petitioner, then
represented by counsel, did not argue that the habeas
petition should not be dismissed because it included a
claim of actual innocence. Because the petitioner did
not assert an actual innocence claim at the show cause
hearing, the court did not address it. Instead, in its
order, the court addressed the reason for the delay
on which the petitioner expressly relied, namely, his
mental illness.
‘‘Our law is well settled that a party may not try its
case on one theory and appeal on another. . . . Argu-
ments asserted in support of a claim for the first time
on appeal are not preserved. . . . Our Supreme Court
has stated that shift[s] in arguments [on appeal are]
troubling because, as [the court] previously ha[s] noted,
to review . . . claim[s] . . . articulated for the first
time on appeal and not [raised] before the trial court,
would [be nothing more than] a trial by ambuscade of
the trial judge.’’ (Citations omitted; internal quotation
marks omitted.) Bharrat v. Commissioner of Correc-
tion, 167 Conn. App. 158, 181–82, 143 A.3d 1106, cert.
denied, 323 Conn. 924, 149 A.3d 982 (2016); see also
Bligh v. Travelers Home & Marine Ins. Co., 154 Conn.
App. 564, 577, 109 A.3d 481 (2015) (‘‘[o]rdinarily appel-
late review is not available to a party who follows one
strategic path at trial and another on appeal, when the
original strategy does not produce the desired result’’
(internal quotation marks omitted)).
We are persuaded that the petitioner’s claim, which
relies on an allegation of actual innocence, plainly
reflects a strategic shift by the petitioner to raise a new
argument on appeal. It would amount to nothing more
than an ambuscade of the habeas court for us to con-
sider this newly raised argument that was neither raised
by the petitioner nor considered by the court at the
time that the petitioner attempted to demonstrate that
the petition should not be dismissed as untimely.
Accordingly, we decline to reach the merits of this
claim.
II
The petitioner next claims that the habeas court erred
in dismissing the habeas petition because he demon-
strated good cause for the untimely filing of his petition
under § 52-470 (e). We are not persuaded.
The petitioner argues that, at the show cause hearing,
he presented sufficient evidence with respect to his
mental illness to establish good cause for the delay
under the four factors set forth in Kelsey v. Commis-
sioner of Correction, supra, 202 Conn. App. 34–35.4
Consistent with Kelsey’s analytical approach, the peti-
tioner argues: (1) his ‘‘mental health is outside of his
control, which causes him confusion [and] stress and
that his illness is severe,’’ and he lacked ‘‘control over
his mental health medication regime’’; (2) the record is
bare as to whether he or his counsel was the reason
for the untimely filing; (3) there was evidence of which
the habeas court took judicial notice, such as a decades
old diagnosis of mental illness, that supports a finding
that his mental illness was the cause of the delay; and
(4) although the habeas petition was filed almost five
years after the deadline, he has filed and withdrawn
numerous habeas petitions during that time period. The
petitioner argues further that the habeas court’s dis-
missal of the habeas petition he filed as a self-repre-
sented party is contrary to what he characterizes as
Connecticut’s ‘‘historic efforts to preserve the Great
Writ.’’
Additionally, the petitioner contends that the habeas
court abused its discretion because, he claims, ‘‘[his]
. . . significant mental health issues cannot reasonably
be disputed.’’ In support of his claim that his mental
illness constitutes good cause for the delay in filing the
petition, the petitioner asserts that the entirety of his
first habeas proceeding was related to his trial attor-
ney’s alleged failure to investigate issues related to his
mental illness, and he points to his ‘‘sprawling and at
times rambling [self-represented] petition’’ in the pres-
ent case.
The respondent argues that the habeas court did not
abuse its discretion in finding a lack of good cause for
the delay in filing the habeas petition. The crux of the
respondent’s argument is that the habeas court found
the petitioner’s testimony at the show cause hearing,
that his mental illness was the cause of delay, not to
be credible. This finding of fact, the respondent asserts,
cannot be disturbed by this court. Therefore, the
respondent argues that, on the basis of this finding, it
was reasonable for the habeas court to conclude that
there was no good cause for the delay.
We begin by setting forth the applicable standard of
review and legal principles that guide our resolution of
this claim. ‘‘[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.’’ (Internal quotations marks omitted.)
Kelsey v. Commissioner of Correction, 343 Conn. 424,
440, 274 A.3d 85 (2022).
‘‘[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. . . . [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 . . . .
[A] habeas court’s determination of whether a petitioner
has satisfied the good cause standard in a particular
case requires a weighing of the various facts and circum-
stances offered to justify the delay, including an evalua-
tion of the credibility of any witness testimony. . . .
‘‘It is well settled that this court does not disturb the
factual findings of the habeas court unless they are
clearly erroneous. . . . [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.’’ (Citations omitted;
emphasis omitted; footnote omitted; internal quotation
marks omitted.) Ortiz v. Commissioner of Correction,
211 Conn. App. 378, 384–87, 272 A.3d 692, cert. denied,
343 Conn. 927, 281 A.3d 1186 (2022).
Bearing in mind our standard of review, we now
examine the decision of the habeas court. The habeas
court concluded that the petitioner ‘‘failed to demon-
strate good cause to overcome the statutory presump-
tion of unreasonable delay . . . .’’ Specifically, the
habeas court noted that it did not find the petitioner’s
testimony regarding his reasons for the delay to be
credible. Furthermore, the habeas court found that the
petitioner’s testimony explaining his mental illness as
the reason for the delay consisted of bare assertions
that, without more, did not overcome the statutory pre-
sumption.
The record contains ample support for the habeas
court’s conclusions. During his direct examination at
the show cause hearing, the petitioner testified that the
underlying petition was untimely because he was ‘‘going
through a whole lot of different issues . . . mentally
wise and physically.’’ The petitioner testified that he
was experiencing ‘‘stress’’ from being incarcerated. He
also testified that he was experiencing ‘‘pain and suffer-
ing . . . from what happened to [him] in 2017.’’5 He
testified that he was diagnosed with paranoid schizo-
phrenia and that he was taking medication. He testified
that he had been experiencing mental difficulties,
including ‘‘racing thoughts, delusions, hearing voices,’’
but that these issues had resolved when he received
treatment beginning one month prior to the show cause
hearing.
As the respondent points out, during the show cause
hearing the petitioner stated that his alleged mental
illness did not always explain his litigation history with
respect to filing habeas petitions. For example, during
his cross-examination by the respondent’s counsel, the
petitioner testified that his mental illness did not pre-
vent him from filing prior habeas petitions because he
received assistance in filing the prior petitions and did
not do it by himself. The petitioner testified, ‘‘I’m still
able to do it, but not without help.’’
During his redirect examination, the petitioner’s
counsel asked him whether his ‘‘mental health’’ was the
cause of his withdrawal of prior petitions. The peti-
tioner testified: ‘‘Sometimes. Sometimes. Not all of the
time. Sometimes I get so frustrated, the legal system,
and all I’ve been through that it’s best for me to fall
back rather than just, you know, just totally just give
up, you see. . . . [I]t’s just that sometime you got to
fall back. You have to fall back, you know. You have
to . . . fall back the stress . . . especially the stress
level. The stress level is not good. I just talked to the
doctor about that the other day.’’
The habeas court found that the petitioner’s testi-
mony, insofar as he testified that his mental illness, or
stress level, was the reason for the delay in filing the
petition, was not credible. As a reviewing court, we
must defer to the credibility findings of the habeas court
based on its firsthand observation of a witness’ conduct,
demeanor, and attitude. See David P. v. Commissioner
of Correction, 167 Conn. App. 455, 470, 143 A.3d 1158,
cert. denied, 323 Conn. 921, 150 A.3d 1150 (2016). The
court’s unassailable assessment of the petitioner’s
uncorroborated testimony concerning the reason for
his late filing supported its finding that the petitioner
had not proven good cause for the delay. The petitioner
has failed to demonstrate that the finding was not sup-
ported by the evidence or that, when considering the
evidence as a whole, that a mistake has been committed.
To the extent that the petitioner argues that his men-
tal illness cannot reasonably be disputed, we observe
that the court, in its decision, states that his ‘‘assertions,
without more, rendered [his] evidence too loose and
equivocal to overcome the . . . statutory presump-
tion’’ of unreasonable delay. Even if the habeas court
had found that the petitioner credibly testified that he
suffered from mental illness, it did not relieve the peti-
tioner of his burden of demonstrating that his delay in
filing was attributable to his mental illness. See Ortiz
v. Commissioner of Correction, supra, 211 Conn.
App. 388.
The petitioner did not provide the court with credible
evidence sufficiently linking the claimed mental illness
to the late filing. The petitioner’s reliance on his uncor-
roborated testimony, which was found not to be credi-
ble, is unavailing. Because the record contains ample
support for the habeas court’s conclusion, the habeas
court did not abuse its discretion in finding that the
petitioner did not establish good cause sufficient to
overcome the statutory presumption of unreasonable
delay.
We therefore conclude the habeas court did not err
by dismissing the petition for a writ of habeas corpus.
The judgment is affirmed.
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; (2) October 1, 2014; or (3) two years after the date on which
the constitutional or statutory right asserted in the petition was initially
recognized and made retroactive pursuant to a decision of the Supreme
Court or Appellate Court of this state or the Supreme Court of the United
States or by the enactment of any public or special act. For the purposes
of this section, the withdrawal of a prior petition challenging the same
conviction shall not constitute a judgment. The time periods set forth in
this subsection shall not be tolled during the pendency of any other petition
challenging the same conviction. Nothing in this subsection shall create
or enlarge the right of the petitioner to file a subsequent petition under
applicable law.
‘‘(e) In a case in which the rebuttable presumption of delay under subsec-
tion (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 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 (c) or (d) of this section.
‘‘(f) Subsections (b) to (e), inclusive, of this section shall not apply to (1)
a claim asserting actual innocence, (2) a petition filed to challenge the
conditions of confinement, or (3) a petition filed to challenge a conviction
for a capital felony for which a sentence of death is imposed under section
53a-46a. . . .’’
2
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person . . . .’’
3
The petitioner attached to the completed state supplied form twenty-
eight handwritten pages that we have also considered as part of the petition
for a writ of habeas corpus. Because we do not reach the merits of the
petitioner’s claim that the petition, in substance, set forth a claim of actual
innocence, it is unnecessary for us to describe these pages in detail.
4
In Kelsey, this court identified the following nonexhaustive list of factors
to aid in determining whether a petitioner has satisfied the issue of good
cause: ‘‘(1) whether external forces outside the control of the petitioner
had any bearing on the delay; (2) whether and to what extent the petitioner
or his counsel bears any personal responsibility for any excuse proffered
for the untimely filing; (3) whether the reasons proffered by the petitioner
in support of a finding of good cause are credible and are supported by
evidence in the record; and (4) how long after the expiration of the filing
deadline did the petitioner file the petition.’’ Kelsey v. Commissioner of
Correction, supra, 202 Conn. App. 34–35. In Kelsey v. Commissioner of
Correction, supra, 343 Conn. 441–42, our Supreme Court adopted these
factors and, after a consideration of relevant legislative history, added that,
‘‘although . . . the legislature certainly contemplated 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 evidentiary 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.’’
(Footnote omitted.) Id., 444–45.
5
The petitioner did not articulate further what occurred to him in 2017.