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RODNEY S. HANKERSON v. COMMISSIONER
OF CORRECTION
(AC 45736)
Bright, C. J., and Moll and Prescott, Js.
Syllabus
The petitioner, who had been convicted of felony murder and robbery in
the first degree, appealed to this court from the judgment of the habeas
court, which dismissed his third petition for a writ of habeas corpus
after he failed to establish good cause for its late filing. The petitioner
filed his third petition in 2017 after having withdrawn a second habeas
petition that he had filed in 2012 and nearly three years after judgment
on his first habeas petition became final in October, 2014. Because the
third petition was filed outside of the two year time limit for successive
petitions set forth by statute (§ 52-470 (d)), the habeas court conducted
an evidentiary hearing pursuant to § 52-470 (d) and (e) on a motion filed
by the respondent, the Commissioner of Correction, for an order to
show cause as to why the third petition should not be dismissed as
untimely. At a hearing on the respondent’s motion, the petitioner testified
that good cause existed because, inter alia, his counsel at the time
the second habeas petition was withdrawn had rendered ineffective
assistance by misadvising or failing to advise him of the time limit to
file a new habeas petition if he withdrew the pending second petition.
Relying on Kelsey v. Commissioner of Correction (343 Conn. 424),
which identified factors relevant to a habeas court’s determination of
whether good cause exists to excuse the untimely filing of a habeas
petition, the habeas court concluded that a failure by counsel to advise
a petitioner of the time limit in § 52-470 (d) was not an external factor
that constituted good cause to excuse the untimely filing. Held that the
habeas court did not apply the correct legal standard under § 52-470
(d) and (e) in deciding that the petitioner had not established good
cause to excuse the late filing of his third habeas petition: the state of
the law as to whether ineffective assistance of counsel is a factor that
may constitute good cause to excuse a delay in filing was clarified by
our Supreme Court in Rose v. Commissioner of Correction (348 Conn.
333), which was decided during the pendency of this appeal and which
concluded that ineffective assistance of counsel cannot be imputed to
the petitioner and is an external, objective factor under Kelsey that may
constitute good cause to excuse a late filing under § 52-470 (d) and (e);
moreover, although the court in Rose did not state that counsel’s failure
to advise a petitioner of the deadline necessarily constitutes ineffective
assistance, it decided that such a determination is a fact specific inquiry
that is left to the habeas court’s discretion, taking into consideration
all relevant Kelsey factors in light of the totality of the circumstances
presented; accordingly, this court reversed the judgment and remanded
the case to the habeas court for a new hearing and good cause determina-
tion under § 52-470 (d) and (e).
Argued January 2—officially released January 30, 2024
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland, where the court, Oliver, J., overruled the
petitioner’s objection to the respondent’s motion to
show cause and rendered judgment dismissing the peti-
tion, from which the petitioner, on the granting of certi-
fication, appealed to this court. Reversed; further pro-
ceedings.
David B. Bachman, assigned counsel, for the appel-
lant (petitioner).
Ronald G. Weller, senior assistant state’s attorney,
with whom were Rebecca R. Zeuschner and Nicholas
L. Scarlett, certified legal interns, and, on the brief,
Donna Marie Fusco, assistant state’s attorney, for the
appellee (respondent).
Opinion
PER CURIAM. The petitioner, Rodney S. Hankerson,
appeals from the habeas court’s dismissal of his petition
for a writ of habeas corpus as untimely under General
Statutes § 52-470 (d) and (e). On appeal, the petitioner
claims that the court erred in concluding that he failed
to establish good cause for his late-filed petition. In
particular, the petitioner argues that his prior habeas
counsel’s failure to advise him of the statutory deadline
for filing a new petition following the withdrawal of his
then pending petition constituted ineffective assistance
of counsel, which constituted good cause for the delay
in filing. In light of our Supreme Court’s recent decision
in Rose v. Commissioner of Correction, 348 Conn. 333,
304 A.3d 431 (2023), we conclude that the judgment of
the habeas court must be reversed, and we remand the
case for a new good cause hearing.
The following procedural history is relevant to our
analysis. In 2007, a jury found the petitioner guilty of
felony murder and two counts of robbery in the first
degree. Thereafter, the trial court imposed a total effec-
tive sentence of sixty years of incarceration. This court
affirmed the petitioner’s conviction, and our Supreme
Court denied the petitioner’s petition for certification
to appeal from this court’s decision. See State v. Han-
kerson, 118 Conn. App. 380, 381, 983 A.2d 898 (2009),
cert. denied, 298 Conn. 932, 10 A.3d 518 (2010).
In 2007, the petitioner filed his first habeas petition,
alleging that his trial counsel, Attorney Jeffrey Kesten-
band and Attorney William Paetzold, provided ineffec-
tive assistance during his criminal trial. The habeas
court denied the petition, and the petitioner appealed
to this court, which dismissed the appeal, concluding
that the habeas court did not abuse its discretion in
denying the petitioner’s petition for certification to
appeal. See Hankerson v. Commissioner of Correction,
150 Conn. App. 362, 363, 90 A.3d 368, cert. denied, 314
Conn. 919, 100 A.3d 852 (2014). In 2012, the petitioner
filed his second habeas petition, alleging ineffective
assistance of both his appellate counsel, Attorney Jenni-
fer Vickery, and his first habeas counsel, Attorney
Arthur Ledford. On September 12, 2016, the petitioner
withdrew that petition.
Thereafter, on June 2, 2017, the petitioner filed the
underlying third habeas petition, which he amended on
May 19, 2021. In his amended petition, the petitioner
alleged that (1) the state presented false testimony at
his criminal trial and failed to disclose exculpatory evi-
dence, (2) the jury returned an inconsistent verdict, and
(3) his trial counsel and prior habeas counsel were
ineffective. On April 8, 2021, the respondent, the Com-
missioner of Correction, filed a motion pursuant to § 52-
470 (d) and (e)1 for an order to show cause as to why the
petition should not be dismissed as untimely because
it was filed more than two years after the date the
judgment on the petitioner’s first habeas petition
became final, October 8, 2014.2 In response, the peti-
tioner claimed that ‘‘good cause’’ existed for the delay
because, inter alia, (1) his second habeas counsel, Attor-
ney Thomas J. Piscatelli, ‘‘misadvised and/or failed to
advise the petitioner that his withdrawal’’ of his second
habeas petition ‘‘would necessarily render future
habeas claims outside the allowable time limits set forth
by . . . § 52-470 without good cause,’’ and (2) ‘‘the lack
of access to sufficient legal resources . . . while incar-
cerated left the petitioner unable to remain abreast of
the latest legal developments and, specifically, the law
with respect to . . . § 52-470.’’
On April 29, 2022, the court held an evidentiary hear-
ing, at which the petitioner presented four witnesses:
himself; Piscatelli, his counsel when the second habeas
petition was withdrawn; and Warden Daniel Dougherty
and Deputy Warden Damian Doran, both from the Mac-
Dougall-Walker Correctional Institution, where the peti-
tioner was in custody at all relevant times. The peti-
tioner presented his testimony and that of Piscatelli to
support his claim that Piscatelli provided ineffective
assistance of counsel by failing to advise him of the
deadline to file a new habeas petition if he withdrew
his then pending second petition. The petitioner pre-
sented the testimony of Dougherty and Doran to sup-
port his claim that he did not have adequate access to
legal materials at the MacDougall-Walker Correctional
Institution to discover on his own the applicable filing
deadline.
On June 22, 2022, the court issued an order overruling
the petitioner’s objection to the respondent’s motion
to show cause and dismissed the habeas petition. The
entirety of the court’s order read: ‘‘After hearing and
oral argument, and having considered the written filings
of the parties in support of their respective positions,
the court finds the petitioner has failed to establish
good cause to excuse his delay in filing the instant
petition.
‘‘Among other evidence adduced at the hearing, the
petitioner had some access to legal resources in correc-
tional institutions during his period of incarceration, as
testified to by both the petitioner and the other two
witnesses at the hearing, but never sought to avail him-
self of them.
‘‘Assuming, arguendo, that the petitioner’s testimony
was accurate, this court finds that it is insufficient to
overcome the rebuttable presumption of unreasonable
delay in [the] filing of the instant petition, pursuant to
Kelsey v. Commissioner of Correction, [343 Conn. 424,
441–42, 274 A.3d 85 (2022)], in that there was no compe-
tent evidence of external factors affecting timely filing.
Accordingly, the matter is dismissed.’’
Thereafter, the habeas court granted the petitioner’s
petition for certification to appeal, and this appeal fol-
lowed.
After the parties filed their briefs in this appeal, but
before oral argument, our Supreme Court issued its
decision in Rose v. Commissioner of Correction, supra,
348 Conn. 333.3 In Rose, the court addressed whether
prior habeas counsel’s failure to advise a petitioner
of the deadline for filing a new petition following the
withdrawal of a pending petition may constitute good
cause to justify a late-filed petition under § 52-470 (c)4
and (e). See id., 346–47. In that case, the respondent,
relying on our Supreme Court’s decision in Kelsey v.
Commissioner of Correction, supra, 343 Conn. 441–42,
argued that an error by counsel, even if it rose to the
level of constitutionally deficient performance, was not
an ‘‘ ‘external factor’ ’’ that could constitute good cause.
Rose v. Commissioner of Correction, supra, 347. In
particular, the respondent in Rose relied on the Supreme
Court’s statement in Kelsey that, ‘‘to rebut successfully
the presumption of unreasonable delay in § 52-470, a
petitioner generally will be required to demonstrate that
something outside of the control of the petitioner or
habeas counsel caused or contributed to the delay.’’
(Emphasis added; internal quotation marks omitted.)
Kelsey v. Commissioner of Correction, supra, 441–42.
In Rose, the court rejected the respondent’s reliance
on Kelsey and, instead, relying on federal precedents
in the area of procedural default,5 concluded that
‘‘[i]neffective assistance of counsel is an objective fac-
tor external to the defense because the [s]ixth [a]mend-
ment itself requires that responsibility for the default
be imputed to the [s]tate. . . . In other words, it is not
the gravity of the attorney’s error that matters, but that
it constitutes a violation of [the] petitioner’s right to
counsel, so that the error must be seen as an external
factor, i.e., imputed to the [s]tate. . . . Although a peti-
tioner is bound by his counsel’s inadvertence, igno-
rance, or tactical missteps, regardless of whether coun-
sel is flouting procedural rules or hedging against
strategic risks, a petitioner is not bound by the ineffec-
tive assistance of his counsel. . . . Consistent with this
authority, we conclude that ineffective assistance of
counsel is an objective factor external to the petitioner
that may constitute good cause to excuse the late filing
of a habeas petition under the totality of the circum-
stances pursuant to § 52-470 (c) and (e).’’ (Citations
omitted; internal quotation marks omitted.) Rose v.
Commissioner of Correction, supra, 348 Conn. 347–48.
As noted previously in this opinion, the habeas court
in the present case expressly relied on Kelsey in con-
cluding that, even if the petitioner’s testimony, which
indicated that he was not properly advised by Piscatelli
of the deadline for filing a new habeas petition, were
accurate, Piscatelli’s failure to advise the petitioner
would not be an external factor that constitutes good
cause. In reaching this conclusion, the habeas court did
not have the benefit of our Supreme Court’s clarification
of Kelsey in Rose regarding ‘‘the fundamental distinction
between internal and external factors that cause or
contribute to a petitioner’s failure to comply with a
procedural rule.’’ Id., 347. The habeas court therefore
did not apply the correct legal standard when deciding
whether the petitioner had demonstrated good cause
for the late filing of his petition. Thus, the petitioner is
entitled to a new hearing at which the court applies the
correct legal standard.
To be clear, although the court in Rose held that
constitutionally deficient performance by habeas coun-
sel may constitute good cause for a late-filed petition,
it did not hold that counsel’s failure to advise a peti-
tioner of the deadline for filing a new petition necessar-
ily constitutes ineffective assistance of counsel. See id.,
349–50. Such a determination is a fact specific inquiry
that depends on a number of factors, including the
relationship between the petitioner and his counsel dur-
ing the pertinent time. For example, a petitioner who
terminates his relationship with counsel before with-
drawing his pending petition and filing a new petition
stands in a very different position than does a petitioner
who withdraws his petition on the advice of his counsel
and is told the wrong deadline for filing a new petition
by that counsel.6
Furthermore, although the habeas court may con-
clude that ineffective assistance of counsel constitutes
good cause in this case, it is not required to do so.
Such a determination is still left to the discretion of
the habeas court taking into consideration the Kelsey
factors. See id., 343. ‘‘No single factor is dispositive,
and, in ascertaining whether good cause exists, the
habeas court must consider all relevant factors in light
of the totality of the facts and circumstances pre-
sented.’’ (Internal quotation marks omitted.) Id. For
example, in the context of a purported failure to advise
the petitioner of the applicable filing deadline, the
habeas court could conclude that counsel’s failure was
constitutionally deficient and still conclude that good
cause does not exist because the petitioner was other-
wise aware of the deadline or unreasonably delayed
in filing a new petition when he had opportunities to
independently discover the applicable deadline. In the
end, the court’s conclusion as to whether the petitioner
has established good cause is still reviewed under the
abuse of discretion standard. See id.
The judgment is reversed and the case is remanded
to the habeas court for a new hearing and good cause
determination under § 52-470 (d) and (e).
1
General Statutes § 52-470 provides in relevant part: ‘‘(d) In the case of
a petition filed subsequent to a judgment on a prior petition challenging the
same conviction, there shall be a rebuttable presumption that the filing of
the subsequent petition has been delayed without good cause if such petition
is filed after the later of the following: (1) Two years after the date on which
the judgment in the prior petition is deemed to be a final judgment due to
the conclusion of appellate review or the expiration of the time for seeking
such review; [or] (2) October 1, 2014 . . . . For the purposes of this section,
the withdrawal of a prior petition challenging the same conviction shall not
constitute a judgment. . . .
‘‘(e) . . . If . . . the court finds that the petitioner has not demonstrated
good cause for the delay, the court shall dismiss the petition. . . .’’
2
Given the well documented legislative history demonstrating ‘‘that § 52-
470 was intended to grant habeas courts ‘a lot of discretion’ in weeding out
nonmeritorious habeas claims’’; Kelsey v. Commissioner of Correction, 343
Conn. 424, 434, 274 A.3d 85 (2022); we question whether filing a motion to
show cause almost four years after the original habeas petition was filed
serves that purpose. See id. (‘‘[I]n 2012, the legislature amended § 52-470
with the goal of enacting comprehensive habeas reform. . . . The amend-
ments were intended to supplement that statute’s efficacy in averting frivo-
lous habeas petitions and appeals. . . . [Moreover] the reforms were the
product of collaboration and compromise by representatives from the vari-
ous stakeholders in the habeas process, including the Division of Criminal
Justice, the Office of the Chief Public Defender, the criminal defense bar, and
the Judicial Branch.’’ (Citation omitted; internal quotation marks omitted.)).
Although the petitioner does not argue that a court can or should consider
the respondent’s delay in filing such a motion when conducting its good
cause analysis, we simply note that such delay does little to assist the court
in weeding out frivolous claims so that it can turn its attention to potentially
meritorious petitions.
3
Prior to oral argument, we issued an order asking the parties to be
prepared to address at oral argument Rose’s impact on this case. At oral
argument, counsel for the petitioner argued that, in light of Rose, we should
reverse the judgment of the habeas court and remand the case for a new
good cause hearing. Although counsel for the respondent argued that a
remand was not necessary, he conceded that this court cannot say how the
habeas court would have exercised its discretion in light of our Supreme
Court’s holding in Rose.
4
General Statutes § 52-470 (c) provides: ‘‘Except as provided in subsection
(d) of this section, there shall be a rebuttable presumption that the filing
of a petition challenging a judgment of conviction has been delayed without
good cause if such petition is filed after the later of the following: (1) Five
years after the date on which the judgment of conviction is deemed to be
a final judgment due to the conclusion of appellate review or the expiration
of the time for seeking such review; (2) October 1, 2017; or (3) two years
after the date on which the constitutional or statutory right asserted in the
petition was initially recognized and made retroactive pursuant to a decision
of the Supreme Court or Appellate Court of this state or the Supreme Court
of the United States or by the enactment of any public or special act. The
time periods set forth in this subsection shall not be tolled during the
pendency of any other petition challenging the same conviction.’’
The difference between subsections (c) and (d) of § 52-470 is that the
former applies to a first habeas petition and the latter applies to subsequent
habeas petitions. The fact that Rose involved subsection (c) and this case
involves subsection (d) is irrelevant to our analysis; the presumption of
delay and good cause provisions in § 52-470 (e) apply to both subsections.
5
‘‘In essence, the procedural default doctrine holds that a claimant may
not raise, in a collateral proceeding, claims that he could have made at trial
or on direct appeal in the original proceeding and that if the state, in response,
alleges that a claimant should be procedurally defaulted from now making
the claim, the claimant bears the burden of demonstrating good cause for
having failed to raise the claim directly, and he must show that he suffered
actual prejudice as a result of this excusable failure.’’ Hinds v. Commis-
sioner of Correction, 151 Conn. App. 837, 852, 97 A.3d 986 (2014), aff’d, 321
Conn. 56, 136 A.3d 596 (2016).
6
During oral argument before this court, counsel for the respondent stated
that the respondent is considering ways to ensure that all inmates are aware
of the filing deadlines in § 52-470 (c) and (d). In particular, counsel noted
the possibility of posting such information in the state’s correctional facilities
or suggesting to the habeas court that it canvass a petitioner on his awareness
of any filing deadlines before accepting a withdrawal of a pending petition.
In response to counsel’s suggestion, we also noted the possibility that the
public defender’s office could encourage counsel under its supervision to
provide such information to petitioners before pending petitions are with-
drawn. Whatever the mechanism, we encourage the habeas bench and bar
to pursue one or more remedies that would effectively eliminate this issue.