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LASCELLES A. CLUE v. COMMISSIONER
OF CORRECTION
(AC 45984)
Bright, C. J., and Alvord and Pellegrino, Js.
Syllabus
The petitioner appealed to this court from the judgment of the habeas court
denying his untimely motion to open and set aside the court’s dismissal
of his petition for habeas corpus. The petitioner was represented by
assigned counsel, W, in his underlying habeas petition, filed in February,
2018. The petitioner was deported to Jamaica in June, 2020. Following
the petitioner’s deportation, the trial court granted W’s caseflow request
for a video status conference, in which W represented that his attempts
to contact the petitioner had been unsuccessful. At the status conference,
the court asked W to file a notice with the court detailing his efforts to
communicate with the petitioner and his family. W filed the notice, in
which he alleged that there had been a breakdown in his communications
with the petitioner, that his efforts to contact the petitioner or members
of the petitioner’s family had been unsuccessful and that the case could
not proceed without the petitioner. The court thereafter issued an order
that the matter would be scheduled for a hearing on the court’s own
motion to dismiss the petition due to the petitioner’s failure to contact
and cooperate with W in prosecuting the petition with due diligence
and provided notice that the matter could be dismissed for failure to
appear if the petitioner did not appear for the scheduled hearing. The
court dismissed the underlying habeas petition at a hearing held in
February, 2021, at which the petitioner did not appear. The petitioner
filed a motion to open the judgment of dismissal in May, 2022, alleging,
inter alia, that W had failed to communicate effectively with him and
had made material representations about his exercise of due diligence
in locating the petitioner. The court denied the petitioner’s motion to
open on the basis that the petitioner had failed to establish a recognized
basis to open the judgment beyond the four month period established
by statute (§ 52-212a), and it declined to resolve factual disputes or
make credibility determinations because there was no threshold showing
of fraud, duress or mutual mistake. Held:
1. The habeas court improperly limited the scope of its authority to grant
the petitioner’s motion to open to a showing that the judgment was
obtained by fraud, duress or mistake; the court’s authority to grant a
late motion to open a judgment was not exclusively limited to those
three recognized exceptions, as both this court and our Supreme Court
have recognized other equitable exceptions to the four month time
limitation in § 52-212a in situations in which the protection of the finality
of judgments must give way to principles of fairness and equity.
2. As an issue of first impression, this court held that, given both the signifi-
cant liberty interests at stake in habeas proceedings and the importance
of the right to counsel in such proceedings, the ineffective assistance
of habeas counsel under Strickland v. Washington (466 U.S. 668) is
sufficient to invoke the habeas court’s common-law authority to open
a habeas judgment more than four months after it was rendered: barring
a petitioner relief from a judgment that was rendered or not timely
opened due to the ineffective assistance of habeas counsel on the sole
basis that the statutory period had expired would undermine the funda-
mental fairness origins underlying the common-law writ of habeas cor-
pus and the very nature of the right to habeas counsel provided by
statute (§ 51-296 (a)), and an equitable exception to the four month
limitation period is warranted to avoid perpetuating the injustice of a
judgment that was rendered or not timely opened due to the constitution-
ally deficient performance of habeas counsel; moreover, as our Supreme
Court recently held in Rose v. Commissioner of Correction (348 Conn.
333), ineffective assistance of counsel may constitute good cause to
excuse the late filing of a habeas petition pursuant to statute (§ 52-470),
and this court held that the same reasoning applied to a late motion to
open based on a claim of ineffective assistance of habeas counsel;
furthermore, this court declined to speculate as to how the habeas court,
which explicitly stated in its memorandum of decision that it was not
resolving factual disputes or making credibility determinations, would
have resolved key factual issues and how it would have exercised its
discretion had it not been operating under an unnecessarily limited view
of its authority; accordingly, the case was remanded for a new hearing
on the petitioner’s motion to open.
Argued October 10, 2023—officially released February 20, 2024
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Oliver, J., rendered judgment dismissing the
petition; thereafter, the court, Oliver, J., denied the
petitioner’s motion to open the judgment, and the peti-
tioner, on the granting of certification to appeal,
appealed to this court. Reversed; further proceedings.
James E. Mortimer, assigned counsel, for the appel-
lant (petitioner).
Laurie N. Feldman, assistant state’s attorney, with
whom, on the brief, were David Applegate, state’s attor-
ney, and Jo Anne Sulik, senior assistant state’s attorney,
for the appellee (respondent).
Opinion
BRIGHT, C. J. In this certified appeal, the petitioner,
Lascelles A. Clue, appeals from the judgment of the
habeas court denying his untimely motion to open and
set aside the 2021 dismissal of his habeas petition. On
appeal, the petitioner claims that the court improperly
concluded that its equitable authority to open the judg-
ment outside of the four month period set forth in
General Statutes § 52-212a was limited to cases in which
the judgment was obtained by fraud, duress, or mutual
mistake. We agree and conclude that, in the context of
a habeas corpus case, the court has the authority to
consider an otherwise untimely motion to open that is
based on the ineffective assistance of habeas counsel.1
Accordingly, we reverse the judgment of the habeas
court and remand the case for a new hearing on the
petitioner’s motion to open.
The following facts, as set forth by the court in its
memorandum of decision or as undisputed in the
record, and procedural history are relevant to our reso-
lution of this appeal. The petitioner filed the underlying
habeas petition on February 20, 2018, challenging, on
the basis of the alleged ineffective assistance of his trial
attorneys, a conviction that resulted from a 2011 guilty
plea. The petitioner requested that counsel be
appointed to represent him in the habeas action, and
the Law Office of Christopher Duby, LLC (Duby law
firm), was appointed as his counsel. Subsequently,
Attorney Patick White, an associate in the firm, filed an
appearance with the court as the petitioner’s counsel.
White represented the petitioner at all relevant times.
The court entered a scheduling order on April 5, 2019,
which established trial dates for March 30 and 31, 2022.
In June, 2020, the petitioner was deported to Jamaica.
Prior to being deported, the petitioner successfully
obtained relief in another habeas case2 challenging a
different conviction.3 The petitioner was represented
by Attorney Daniel Lage in that habeas case.
On January 14, 2021, White filed a caseflow request
for a video status conference. In that request, White
represented that the petitioner had been deported and
that White’s attempts to contact the petitioner, his
mother, and his wife had been unsuccessful. The court,
Oliver, J., granted White’s request and held a status
conference on January 25, 2021, during which the court
requested that White file a notice with the court detail-
ing his efforts to communicate with the petitioner and
his family. Accordingly, ‘‘[o]n January 27, 2021, White
filed a notice that there had been a breakdown in com-
munications between him and [the petitioner]. The
notice detailed the history of White’s interactions with
[the petitioner] until his deportation and the efforts
thereafter to contact [the petitioner] and his family.
White represented that all his efforts to contact [the
petitioner], as well as his mother and wife, had been
unsuccessful. The notice concluded with the assertion
that the case could not proceed without [the peti-
tioner].4
‘‘The court issued an order on January 27, 2021, that
the matter would be scheduled for a hearing on the
court’s own motion to dismiss based on [the petition-
er’s] failure to contact and cooperate with White in
prosecuting the instant petition with due diligence. The
court also provided notice that the matter may also
be dismissed for failure to appear if [the petitioner]
absented himself from the upcoming hearing.5 After a
hearing on February 11, 2021, and upon consideration of
the previously filed notice as supplemented by White’s
representations at the hearing, the court dismissed the
petition based on [the petitioner’s] failure to appear and
prosecute the petition with due diligence.’’ (Footnotes
added.)
On May 19, 2022, the petitioner filed a motion to open
the judgment of dismissal and a supporting memoran-
dum of law. The petitioner claimed: ‘‘[H]e did not
receive the notices of White’s caseflow request and the
ensuing hearing; he did not waive his right to be present
at the dismissal hearing; White failed to make reason-
able efforts to apprise him of the status of the matter;
and White failed to communicate effectively with him,
his family contacts, or attorneys who represent him in
other cases. . . . [The petitioner ascribed] various fail-
ures to White and [asserted] that [White] made material
misrepresentations about his exercise of due diligence
in locating the petitioner. Those material misrepresen-
tations, which the [petitioner described] as conduct
designed to result in the dismissal of the petition absent
[the petitioner’s] knowledge or consent, resulted in the
court dismissing the case.
‘‘The respondent, [the Commissioner of Correction,
objected] to the motion to open because it [was]
untimely, [the petitioner] failed to keep White apprised
of his whereabouts and contact information, and [the
petitioner] did not act with diligence in seeking to open
the judgment. The respondent . . . also submitted an
affidavit from White which detail[ed] his efforts to com-
municate with [the petitioner] and his family members
after his deportation.
‘‘The parties appeared at a hearing on June 17 and
July 8, 2022, where [the court] heard testimony from
[the petitioner], White, Lage, Fay Ellis (the petitioner’s
mother), and Kelly Clue (the petitioner’s wife). Addi-
tionally, [the petitioner] entered several exhibits into
evidence,’’ including three letters from the Duby law
firm to the petitioner dated June 26, 2018, February 3,
2020, and February 26, 2020; a contact information sheet
that the Duby law firm gave to the petitioner, on which
the petitioner provided the firm with his wife’s and
mother’s phone numbers; and the transcript of the dis-
missal hearing.
On the basis of the testimony at the hearing, the
habeas court set forth the following additional facts in
its September 12, 2022 memorandum of decision. ‘‘[The
petitioner] was at a federal detention center for approxi-
mately three months prior to his deportation. [The peti-
tioner] and White corresponded with each other and
spoke once while [the petitioner] was at the federal
detention center. White knew that [the petitioner]
would be deported.’’ Accordingly, ‘‘White told [the peti-
tioner] that if he were deported, then he would need
to provide contact information and instructed [the peti-
tioner] to contact him.’’
Following the petitioner’s deportation, ‘‘[b]ecause
[White] did not have any contact information for [the
petitioner] in Jamaica, [he] tried calling Kelly Clue and
Ellis, who were listed on the contact sheet provided by
[the petitioner], but he did not write to them. White
did not have any specific independent recollection of
leaving messages for Kelly Clue and Ellis, but it is his
practice to leave such messages. White did not receive
any calls back.’’ Ellis testified, however, ‘‘that she has
never been contacted by White, whether pre or postde-
portation.’’ Similarly, Kelly Clue testified that she has
never had any contact with White or his law firm.
The petitioner testified that ‘‘he had White’s phone
number in an address book [and] tried calling White
two or three times after he was deported, once in August
of 2020 and twice in October of 2020 [and that he]
left voicemail messages, which included his cell phone
number, on White’s extension but did not receive any
calls back. [The petitioner] did not try to contact White
again after October of 2020, because he has paranoia,
[post-traumatic stress disorder], and gave up because
he thought White gave up. . . . In early 2021, [the peti-
tioner’s] cell phone was disconnected, and he obtained
the number that he presently has. [The petitioner] did
not provide his new number to the Duby law firm.’’ By
contrast, Ellis testified that she has ‘‘had daily contact
[with the petitioner] via phone calls’’ since his deporta-
tion, and ‘‘she has had contact with him via . . . video
calls, emails, and text messages.’’ Kelly Clue also ‘‘had
contact with [the petitioner] via phone calls and emails
beginning a few days after his deportation.’’ Moreover,
the petitioner spoke with Lage, the attorney represent-
ing him in his other habeas proceeding, ‘‘numerous
times between the summer of 2020 and spring of 2022.’’
The court stated that the petitioner ‘‘had no notice
of the January 27, 2021 scheduling order that there
would be a hearing on the court’s own motion to dismiss
based on [the petitioner’s] failure to prosecute this case
with due diligence, as well as that the matter might be
dismissed if [he] failed to appear. In either January or
February of 2022, [the petitioner] found out about the
dismissal from Kelly Clue, who was checking on the
case status before the originally scheduled trial date.
. . . Although [the petitioner] was unable to access the
Judicial Branch’s website from Jamaica, he was able
to look up information for the Office of the Chief Public
Defender (OCPD) and seek assistance in opening this
case. [The petitioner] contacted OCPD about one month
after he found out that this case had been dismissed.
[The petitioner] searched for White [on the Internet],
never asked Lage to contact White, did not write a letter
to White, and did not complain to OCPD about White
even though he had given up on White.’’
At the hearing, the petitioner argued that the facts
of this case warranted ‘‘a quasi-fraud equitable excep-
tion to the 120 day rule . . . predicated . . . on inef-
fective assistance of counsel or attorney negligence.’’
In particular, the petitioner claimed that White ‘‘failed
to communicate with the petitioner’’ about the status
of his case; failed to ‘‘exercise reasonable diligence in
contacting the petitioner’’; ‘‘failed to notify him of the
filing of [the] notice [to the court] . . . the status con-
ference . . . and the hearing that this court had . . .
on the notice’’; and, following the court’s dismissal of
the case, ‘‘made no further . . . efforts to contact [the
petitioner] within [the] 120 day window.’’ Accordingly,
the petitioner argued that the notice that White had
filed with the court, ‘‘when fairly read, was misleading
in terms of the diligence . . . exerted by counsel in
trying to reach the petitioner following his deportation.’’
‘‘But for [counsel’s] failures,’’ the petitioner asserted,
‘‘this matter would not have been dismissed . . . .’’ In
response, the respondent argued that the petitioner had
not established good cause to open the judgment fifteen
months after his case was dismissed because he had
failed to pursue his case diligently and contact his attor-
ney.
Following the hearing, the court denied the petition-
er’s motion ‘‘because the petitioner [had] failed to estab-
lish a recognized basis to open the judgment beyond
the four month period established by . . . § 52-212a.’’
The court reasoned that, ‘‘although guided by equitable
principles, [it had] constrained authority based on a
showing that the judgment was obtained by fraud,
duress, or a mutual mistake. There has been no showing
of fraud, duress, or . . . a mutual mistake,’’ given that,
‘‘[a]t the hearing, [the petitioner] abandoned any claim
that is premised on a legal theory of fraud or quasi-
fraud.’’ The court refused to resolve factual disputes
and make credibility determinations regarding the date
of the petitioner’s deportation and who was responsible
for the lack of communication among the petitioner,
his family, and White, stating that ‘‘[r]esolving these
diverging factual differences is unnecessary to resolve
the present motion, and the court need not delve into
credibility determinations, because there has been no
threshold showing of any fraud, duress, or mutual mis-
take.’’ This certified appeal followed.
On appeal, the petitioner claims that (1) the court
improperly limited the scope of its authority to open a
judgment of dismissal after the passage of the four
month limitation period in § 52-212a, and (2) ineffective
assistance of habeas counsel is sufficient to invoke the
court’s authority to grant a late motion to open a judg-
ment. We will address each claim in turn.
We first note our standard of review as to both of
the petitioner’s claims. ‘‘The issue before us in the pres-
ent case . . . is not whether the trial court properly
exercised its discretion . . . but, rather, whether the
trial court had authority to do so under the circum-
stances of this case. . . . This presents a question of
law over which we exercise plenary review.’’6 (Citation
omitted.) Citibank, N.A. v. Lindland, 310 Conn. 147,
166, 75 A.3d 651 (2013); see also AvalonBay Communi-
ties, Inc. v. Plan & Zoning Commission, 260 Conn.
232, 239–40, 796 A.2d 1164 (2002) (‘‘[w]hether the trial
court had the power to issue the order, as distinct from
the question of whether the trial court properly exer-
cised that power, is a question involving the scope of
the trial court’s inherent powers and, as such, is a ques-
tion of law’’).
I
The petitioner first claims that the court improperly
limited the scope of its authority to open a judgment of
dismissal after the passage of the four month limitation
period in § 52-212a by requiring that he make a ‘‘thresh-
old’’ showing of fraud, duress, or mutual mistake. He
argues that ‘‘[t]his court has recognized an equitable
exception to the time limitation set forth in . . . § 52-
212a to address injustices in the absence of a showing
of fraud, duress, or mutual mistake.’’ In response, the
respondent argues that the court applied the proper
legal standard7 and correctly determined that it lacked
the authority to open the judgment. Although we dis-
agree with the petitioner that we have recognized an
overarching general equitable exception to the four
month limitation period, we nonetheless agree that, in
the context of the present habeas corpus case, the
court’s common-law authority to open the judgment
was not as limited as it stated in its memorandum of
decision.
The following legal principles guide our review.
‘‘Habeas corpus is a civil proceeding. . . . The princi-
ples that govern motions to open or set aside a civil
judgment are well established. . . . A motion to open
and set aside judgment is governed by . . . § 52-212a
and Practice Book § 17-4.’’ (Citation omitted; internal
quotation marks omitted.) Turner v. Commissioner of
Correction, 163 Conn. App. 556, 563, 134 A.3d 1253,
cert. denied, 323 Conn. 909, 149 A.3d 980 (2016). Section
52-212a provides in relevant part: ‘‘Unless otherwise
provided by law and except in such cases in which the
court has continuing jurisdiction, a civil judgment or
decree rendered in the Superior Court may not be
opened or set aside unless a motion to open or set aside
is filed within four months following the date on which
the notice of judgment or decree was sent. . . . The
parties may waive the provisions of this section or oth-
erwise submit to the jurisdiction of the court . . . .’’
See also Practice Book § 17-4 (a) (same).
The purpose of § 52-212a is ‘‘to protect the finality
of judgments.’’ Kim v. Magnotta, 249 Conn. 94, 102, 733
A.2d 809 (1999); see also Steve Viglione Sheet Metal
Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037
(1983) (‘‘[t]he theory underlying . . . rules governing
the vacating of judgments is the equitable principle that
once a judgment is rendered it is to be considered final
. . . and should be left undisturbed by post-trial
motions except for a good and compelling reason’’ (cita-
tions omitted)). Consistent with this legislative purpose,
our Supreme Court has characterized the four month
period ‘‘as a constraint, not on the trial court’s jurisdic-
tional authority, but on its substantive authority to adju-
dicate the merits of the case before it.’’ Kim v. Mag-
notta, supra, 104.
‘‘Under [§ 52-212a], the trial court is authorized to
open a judgment more than four months after it was
rendered when any one of the following four exceptions
is satisfied: the parties waived the four month limitation;
the parties otherwise submitted to the court’s jurisdic-
tion; the court’s authority to open the judgment is other-
wise authorized by law; or the court has continuing
jurisdiction over the judgment.’’ Reinke v. Sing, 328
Conn. 376, 390–91, 179 A.3d 769 (2018). In the present
case, the court sent notice of the dismissal of the under-
lying habeas petition on February 11, 2021. The peti-
tioner filed his motion to open the judgment on May
19, 2022, which is well beyond four months from the
date on which the court sent notice of the judgment.
Thus, the court would have had authority to open the
judgment only if an exception to § 52-212a applied.
‘‘Courts have interpreted the phrase, [u]nless other-
wise provided by law, as preserving the common-law
authority of a court to open a judgment after the four
month period.’’ (Internal quotation marks omitted.)
Simmons v. Weiss, 176 Conn. App. 94, 99, 168 A.3d 617
(2017). Although ‘‘[t]he law favors finality of judg-
ments’’; (internal quotation marks omitted) Ruiz v. Vic-
tory Properties, LLC, 180 Conn. App. 818, 828, 184 A.3d
1254 (2018); our courts also have recognized ‘‘that, in
some situations, the principle of protection of the final-
ity of judgments must give way to the principle of fair-
ness and equity.’’ Kim v. Magnotta, supra, 249 Conn.
109. It is well established, for example, that ‘‘[c]ourts
have intrinsic powers, independent of statutory provi-
sions authorizing the opening of judgments, to vacate
any judgment obtained by fraud, duress or mutual mis-
take.’’ In re Baby Girl B., 224 Conn. 263, 283, 618 A.2d
1 (1992).
The court’s authority to grant a late motion to open
a judgment, however, is not exclusively limited to those
three recognized exceptions, as both this court and
our Supreme Court previously have recognized other
equitable exceptions to the four month time limitation
in § 52-212a.8
For example, in Kim v. Magnotta, supra, 249 Conn.
109, our Supreme Court held that, even after the expira-
tion of the four month limitation period, a trial court
has the authority to set aside a stipulated judgment
that resulted from a violation of the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq., and not from fraud, duress, accident or
mistake. See id., 97 n.3. After concluding that ‘‘the dis-
cretionary equitable authority’’; id., 107; conferred on
a trial court by General Statutes § 42-110g (a), a provi-
sion of CUTPA, ‘‘falls within the ‘otherwise provided by
law’ provision of § 52-212a’’; id., 109; the court observed
that its conclusion was consistent with our case law
on § 52-212a, which ‘‘recognizes that, in some situations,
the principle of protection of the finality of judgments
must give way to the principle of fairness and equity.
Accordingly, § 52-212a does not permit a person who
has committed fraud to rely on a stipulated judgment
to shelter gains that were acquired improperly. . . . It
is hard to fathom why a person who has committed an
unfair trade practice should be treated differently. In
both situations, the injured party was unfairly induced
to assent to the stipulated judgment.’’ (Citation omit-
ted.) Id.
Similarly, in Connecticut Savings Bank v. Obenauf,
59 Conn. App. 351, 758 A.2d 363 (2000), the trial court
rendered judgment for the plaintiff and awarded more
than $41,000 in money damages against the defendant
transferee of an allegedly fraudulent conveyance, con-
trary to the law at the time that ‘‘a successful claim of
fraudulent conveyance could not result in a judgment
of liability against the transferee . . . on the underly-
ing debt obligations owed by the transferor.’’ Id., 354–55.
More than four months after the judgment, the defen-
dant moved to open the judgment on the basis of ‘‘equi-
table considerations.’’ Id., 352. The trial court denied
the motion to open because ‘‘the defendant had not
alleged . . . fraud, accident, mistake or clerical error
. . . .’’ Id., 353. On appeal, this court held that, despite
the fact that a motion to open was filed outside of
the four month period, it was necessary to correct the
judgment ‘‘on the basis of equitable considerations’’;
id., 355; because it was both ‘‘contrary to law at the
time of its rendition’’; id., 357; and ‘‘facially inconsistent
with the complaint.’’9 Id., 355. Specifically, the court
concluded that the defendant ‘‘should not in law or in
equity be forced to pay a debt for which she was not
liable. . . . To allow the plaintiff to benefit from a judg-
ment against the defendant in excess of $41,000 that
was contrary to law at the time of its rendition shocks
the judicial conscience . . . and violates the principles
of equity that govern our application of the law. The
court’s denial of the defendant’s motion to open and set
aside the money judgment perpetuated this injustice.’’
(Citations omitted; internal quotation marks omitted.)
Id., 357. Accordingly, this court reversed the judgment
and remanded the case with direction to grant the defen-
dant’s motion. Id., 358.
Finally, in Nelson v. Charlesworth, 82 Conn. App. 710,
846 A.2d 923 (2004), this court held that an attorney’s
fraudulent conduct was sufficient to allow the court to
exercise its equitable authority to open the judgment
after the passage of the four month period even though
the judgment itself was not obtained by fraud, deviating
from the traditional formulation of that exception.10
After the court granted the plaintiff’s motion for default
against the defendant and rendered a judgment award-
ing damages to the plaintiff, the plaintiff’s attorney and
the defendant’s insurer engaged in settlement discus-
sions but failed to reach an agreement. Id., 711–12.
At no time during the settlement discussions did the
plaintiff’s attorney inform the defendant’s insurer of the
outstanding judgment; instead, the plaintiff’s attorney
waited until four months and ten days after the court
rendered judgment against the defendant to inform the
defendant’s insurer of that judgment. Id., 712. This court
concluded that, ‘‘[a]lthough the judgment proper was
not brought about by fraud, the finality of the judgment,
that is, the running of the four month period, was viti-
ated by fraud.’’ Id., 714. Given the apparent willingness
of the plaintiff’s attorney ‘‘to negotiate until just after
the four month deadline,’’ this court reasoned that ‘‘it
[was] difficult to imagine that he was attempting to do
anything other than to deceive [the insurer].’’ Id., 715.
We further explained that implicit in the plaintiff’s attor-
ney’s statement to the defendant’s insurer that she was
interested in settling the case, and implicit in ‘‘the settle-
ment negotiations thereafter, was that there was still a
case to be settled, i.e., that the plaintiff had not already
obtained a judgment against the defendant. The implicit
representations by the plaintiff’s attorney that the case
was still pending and that he had not obtained a judg-
ment could be considered fraud . . . which would
allow the court to exercise its equitable powers.’’ Id.,
714.
In each of those cases, the reviewing court recognized
the trial court’s authority to grant a late motion to open
a judgment on equitable grounds other than that the
judgment itself was procured by fraud, duress, or
mutual mistake. Consequently, we conclude that the
court in the present case improperly held that its author-
ity to grant the petitioner’s motion was limited ‘‘based
on a showing that the judgment was obtained by fraud,
duress, or a mutual mistake.’’
II
The petitioner next claims that the alleged ineffective
assistance11 of his habeas counsel was sufficient to
invoke the court’s equitable authority to grant the late
motion to open. He argues that, ‘‘[u]nder the circum-
stances of this case, White’s inaction, coupled with the
misleading representations concerning his efforts to
communicate with the petitioner, create an equitable
basis for reopening the judgment.’’ According to the
petitioner, ‘‘it would confound reason to preclude a
habeas petitioner from reopening a judgment of dis-
missal after four months when such [dismissal] resulted
from appointed counsel’s failures.’’
In response, the respondent argues that, not only does
the record not support a finding that White rendered
ineffective assistance, ‘‘it [also] was unnecessary for
the habeas court to make this determination’’ because,
‘‘[a]bsent extraordinary circumstances, attorney negli-
gence, unlike attorney fraud, is not a ground for opening
a judgment.’’ During oral argument before this court,
however, the respondent conceded that ‘‘there might
be a case of ineffective assistance of counsel that would
fit into [the] ‘otherwise provided by law’ category if the
petitioner showed due diligence on his own part.’’12
For the reasons that follow, we conclude, as a matter
of first impression, that the ineffective assistance of
habeas counsel under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)13 is
sufficient to invoke the court’s common-law authority
to grant a late motion to open a judgment.
To provide a context for our discussion, we first
examine the purpose of the writ of habeas corpus and
the nature of the right to the effective assistance of
counsel in a habeas corpus proceeding. Although
habeas corpus ‘‘is a legal and not an equitable remedy’’;
(internal quotation marks omitted) Kendall v. Commis-
sioner of Correction, 162 Conn. App. 23, 45, 130 A.3d 268
(2015); ‘‘[i]n the exercise of its power under [General
Statutes] § 52-47014 to grant such relief ‘as law and jus-
tice require,’ the [habeas] court, much like a court of
equity, has considerable discretion to frame a remedy,
so long as that remedy is commensurate with the scope
of the constitutional violations which have been estab-
lished. . . . In the [habeas] court’s choice among . . .
possible remedies, the decisive factor must be the vindi-
cation of the [petitioner’s] constitutional rights.’’ (Cita-
tions omitted; footnote added; footnote omitted.)
Gaines v. Manson, 194 Conn. 510, 528–29, 481 A.2d
1084 (1984); see also State v. Phidd, 42 Conn. App. 17,
28, 681 A.2d 310 (‘‘[t]he statutory language ‘dispose of
the case as law and justice require’ gives the habeas
court the power to conform a remedy to the particular
facts’’), cert. denied, 238 Conn. 907, 679 A.2d 2 (1996),
cert. denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed.
2d 315 (1997).
‘‘The right to petition for a writ of habeas corpus is
enshrined in both the United States constitution and
the Connecticut constitution. See U.S. Const., art. I, § 9;
Conn. Const., art. I, § 12. Indeed, it has been observed
that the writ of habeas corpus holds an honored position
in our jurisprudence. . . . The principal purpose of the
writ of habeas corpus is to serve as a bulwark against
convictions that violate fundamental fairness. . . . The
writ has been described as a unique and extraordinary
legal remedy. . . . It must never be forgotten that the
writ of habeas corpus is the precious safeguard of per-
sonal liberty and there is no higher duty than to maintain
it unimpaired.’’15 (Citations omitted; internal quotation
marks omitted.) Fine v. Commissioner of Correction,
147 Conn. App. 136, 142–43, 81 A.3d 1209 (2013).
For those reasons, a habeas petitioner, unlike a typi-
cal civil litigant, has a ‘‘statutory right to habeas counsel
pursuant to General Statutes § 51-296,16 which provides
for the appointment of counsel for an indigent person
in any habeas corpus proceeding arising from a criminal
matter . . . .’ ’’ (Footnote in original.) Lozada v. War-
den, 223 Conn. 834, 838, 613 A.2d 818 (1992). ‘‘When
counsel is so appointed he must be effective and compe-
tent. Otherwise, the appointment is a useless formality.’’
(Internal quotation marks omitted.) Id., 838–39. Thus,
although it is not a constitutional right, ‘‘the weight of
sixth amendment protection [extends] to the . . . stat-
utory right to counsel in habeas proceedings . . . .’’
Morgan v. Commissioner of Correction, 87 Conn. App.
126, 132, 866 A.2d 649 (2005).
As this court has observed, ‘‘[t]he right to counsel
plays a crucial role in the adversarial system embodied
in the [s]ixth [a]mendment, since access to counsel’s
skill and knowledge is necessary to accord defendants
the ample opportunity to meet the case of the prosecu-
tion to which they are entitled. . . . That a person who
happens to be a lawyer is present at trial alongside the
accused, however, is not enough to satisfy the constitu-
tional command. The [s]ixth [a]mendment recognizes
the right to the assistance of counsel because it envi-
sions counsel’s playing a role that is critical to the ability
of the adversarial system to produce just results. . . .
Counsel’s role is to ensure that the adversarial testing
process works to produce a just result under the stan-
dards governing decision.’’ (Citation omitted; internal
quotation marks omitted.) Robinson v. Commissioner
of Correction, 167 Conn. App. 809, 821, 144 A.3d 493,
cert. denied, 323 Conn. 925, 149 A.3d 982 (2016). The
same reasoning applies in the habeas context, as ‘‘the
right to petition for a writ of habeas corpus, as a means
of challenging the legality of a conviction, [is] no less
constitutionally significant than the right of a defendant
to bring a direct appeal, as a means of challenging
a judgment of conviction.’’ Fine v. Commissioner of
Correction, supra, 147 Conn. App. 144.
Mindful of these principles, we conclude that the
ineffective assistance of habeas counsel is sufficient to
invoke the court’s equitable authority to open a habeas
judgment more than four months after it was rendered.
Our conclusion finds support in the fundamental fair-
ness origins of the writ of habeas corpus and the impor-
tance of the right to habeas counsel in furthering that
purpose.17
In Kaddah v. Commissioner of Correction, 324 Conn.
548, 563, 153 A.3d 1233 (2017), our Supreme Court high-
lighted the significance of the statutory right to habeas
counsel and the fundamental fairness concerns underly-
ing the writ of habeas corpus in support of its conclu-
sion that a petitioner may file a third habeas petition
to challenge the effectiveness of the petitioner’s counsel
in his second habeas proceeding. The court reasoned
that, ‘‘[g]iven the fundamental fairness origins underly-
ing the common-law writ of habeas corpus, it would
be anomalous to conclude that a right as significant as
the statutory right to counsel in a second habeas peti-
tion that ultimately challenges a criminal conviction,
and the concomitant right that the attorney be compe-
tent, is one that cannot be vindicated by the writ. . . .
Given the overriding concerns of fundamental fairness
that underlie the writ of habeas corpus, not allowing a
third habeas petition would undermine the very nature
of the statutory right provided by § 51-296 (a), which
. . . extends to a second habeas petition.’’ (Citation
omitted.) Id.
Similarly, in the present case, barring relief from a
judgment that was rendered or not timely opened due
to the ineffective assistance of habeas counsel on the
sole basis that the statutory period has expired would
undermine ‘‘the fundamental fairness origins underlying
the common-law writ of habeas corpus’’ and ‘‘the very
nature of the statutory right [to habeas counsel] pro-
vided by § 51-296 (a).’’ Id.; see also James L. v. Commis-
sioner of Correction, 245 Conn. 132, 147, 712 A.2d 947
(1998) (given ‘‘the nature of the right involved . . . [a]s
a matter of policy, it would be illogical to deny the right
to sentence review to a petitioner who has missed the
statutory thirty day filing deadline as a result of uncon-
stitutionally deficient representation’’); Fredericks v.
Reincke, 152 Conn. 501, 508, 208 A.2d 756 (1965)
(although trial courts ordinarily do not have authority
to allow late appeals, ‘‘where on habeas corpus it has
been properly determined that a right of appeal required
by the federal constitution has been denied’’ due to
denial of right to competent counsel, ‘‘any rule
restricting an appeal merely because of lapse of time
necessarily is ineffective to preclude an appeal in accor-
dance with federal constitutional requirements’’).
Accordingly, similar to our reasoning in Connecticut
Savings Bank v. Obenauf, supra, 59 Conn. App. 357,
an equitable exception to the four month limitation
period is warranted to avoid perpetuating the injustice
of a judgment that was rendered or not timely opened
due to habeas counsel’s constitutionally deficient per-
formance.
Indeed, in the context of cause and prejudice to
excuse procedural default18 and good cause for delay
under § 52-470,19 our Supreme Court has recognized the
distinction between ineffective assistance of counsel
and the type of attorney error that typically is insuffi-
cient to grant an untimely motion to open. As the court
most recently stated in Rose v. Commissioner of Cor-
rection, 348 Conn. 333, 347, 304 A.3d 431 (2023), when
counsel’s constitutionally deficient performance has
caused a habeas petitioner to procedurally default on
a habeas claim or file a habeas petition outside of the
time period set forth in § 52-470, ‘‘the [s]ixth [a]mend-
ment itself requires that responsibility for the [error]
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.’’ (Internal quotation
marks omitted.) Accordingly, the court explained that,
in the context of procedural default, ‘‘a petitioner is
bound by his counsel’s inadvertence, ignorance, or tacti-
cal missteps, regardless of whether counsel is flouting
procedural rules or hedging against strategic risks . . .
[but] not . . . by the ineffective assistance of his coun-
sel.’’ (Internal quotation marks omitted.) Id., 348; see
also Coleman v. Thompson, 501 U.S. 722, 754, 111 S.
Ct. 2546, 115 L. Ed. 2d 640 (1991) (under ‘‘well-settled
principles of agency law’’ client is bound by ‘‘alleged
attorney error’’ unless it rises to level of ineffective
assistance); Johnson v. Commissioner of Correction,
285 Conn. 556, 570, 941 A.2d 248 (2008) (under proce-
dural default doctrine, ‘‘although ignorance or inadver-
tence is not cause, ineffective assistance of counsel is
a legitimate ground for cause’’ (internal quotation marks
omitted)); Cobham v. Commissioner of Correction, 258
Conn. 30, 40, 779 A.2d 80 (2001) (‘‘attorney error short
of ineffective assistance of counsel does not adequately
excuse compliance with our rules of [trial and] appellate
procedure’’ (internal quotation marks omitted)). In
Rose, our Supreme Court relied on those cases in con-
cluding ‘‘that ineffective assistance of counsel . . .
[also] may constitute good cause to excuse the late
filing of a habeas petition under the totality of the cir-
cumstances pursuant to § 52-470 (c) and (e).’’ Rose v.
Commissioner of Correction, supra, 348.
We conclude that the same reasoning applies to a
late motion to open based on a claim of ineffective
assistance of habeas counsel. We recognize that this
court consistently has held that an attorney’s negligence
by itself does not provide a sufficient basis to open a
civil judgment under either § 52-212a or General Stat-
utes § 52-212.20 See Dziedzic v. Pine Island Marina,
LLC, 143 Conn. App. 644, 653, 72 A.3d 406 (2013) (‘‘[n]eg-
ligence of a party or [its] counsel is insufficient for
purposes of § 52-212 to set aside a default judgment’’
(internal quotation marks omitted)); In re Ilyssa G.,
105 Conn. App. 41, 48–49, 936 A.2d 674 (2007) (same),
cert. denied, 285 Conn. 918, 943 A.3d 475 (2008); Wren
v. MacPherson Interiors, Inc., 69 Conn. App. 349, 364,
794 A.2d 1043 (2002) (‘‘[t]hough the defendants’ prior
attorney may deserve some blame, his possible negli-
gence alone does not provide this court with a sufficient
reason for holding inapplicable the four month limita-
tion contained in § 52-212a’’); Segretario v. Stewart-
Warner Corp., 9 Conn. App. 355, 363, 519 A.2d 76 (1986)
(‘‘[n]egligence of a party or his counsel is insufficient
to reinstate the action’’). Relying on these cases, the
respondent contends that this principle ‘‘governs
equally in habeas [cases] . . . as in other civil con-
texts.’’21 We are not persuaded, however, that this princi-
ple applies when counsel’s negligence rises to the level
of constitutionally deficient performance.
As previously noted in this opinion, habeas corpus
proceedings, although civil in nature, ‘‘are unique in
that they involve the petitioner’s liberty and the amount
of time the petitioner will be incarcerated.’’ (Internal
quotation marks omitted.) Fine v. Commissioner of
Correction, supra, 147 Conn. App. 144. Consequently,
our Supreme Court has recognized that a violation of
the right to effective assistance of counsel differs sub-
stantially from attorney error in a case where there is
no such right. It has explained that, although this court
has held that ‘‘a habeas attorney’s ignorance of the law
and poor advice that results in the untimely filing of
a habeas petition is not an external objective factor
sufficient to establish good cause under § 52-470’’; Rose
v. Commissioner of Correction, supra, 348 Conn. 348;
we have not held ‘‘that ineffective assistance of counsel
can never constitute good cause under § 52-470 as a
matter of law.’’ (Emphasis in original.) Id., 349.
Although the procedural rule at issue in Rose is spe-
cific to habeas corpus proceedings and, therefore, dif-
fers from § 52-212a, which applies to all civil judgments,
our Supreme Court has recognized that some rules that
are generally applicable to civil cases should apply dif-
ferently in the habeas context. For example, the court
limits the application of the doctrine of res judicata, or
claim preclusion, in the habeas context ‘‘to claims that
actually have been raised and litigated in an earlier
proceeding.’’22 (Internal quotation marks omitted.) Ross
v. Commissioner of Correction, 337 Conn. 718, 729, 256
A.3d 118 (2021). As our Supreme Court has observed,
quoting the United States Supreme Court in Sanders v.
United States, 373 U.S. 1, 8, 83 S. Ct. 1068, 10 L. Ed.
2d 148 (1963), ‘‘[c]onventional notions of finality of liti-
gation have no place where life or liberty is at stake
and the infringement of constitutional rights is alleged.’’
(Internal quotation marks omitted.) James L. v. Com-
missioner of Correction, supra, 245 Conn. 142 n.11.
Our Supreme Court has further explained that,
‘‘[a]lthough the doctrine of res judicata in its fullest
sense bars claims that could have been raised in a prior
proceeding, such an application in the habeas corpus
context would be unduly harsh. . . . Unique policy
considerations must be taken into account in applying
the doctrine of res judicata to a constitutional claim
raised by a habeas petitioner. . . . Foremost among
those considerations is the interest in making certain
that no one is deprived of liberty in violation of his
or her constitutional rights.’’ (Internal quotation marks
omitted.) Ross v. Commissioner of Correction, supra,
728–29. The same policy considerations guide our appli-
cation of the doctrine of collateral estoppel, or issue
preclusion, to habeas corpus proceedings. Id., 729.
Similarly, here, a rigid rule that, in the absence of
proof of fraud, duress, or mutual mistake, the negli-
gence of habeas counsel that rises to the level of consti-
tutionally deficient performance is not a valid basis
to open a judgment also would be unduly harsh and,
therefore, contrary to general principles of equity. See
Holland v. Florida, 560 U.S. 631, 649–51, 130 S. Ct.
2549, 177 L. Ed. 2d 130 (2010) (reasoning that rule that
attorney misconduct, even if ‘‘grossly negligent,’’ cannot
justify equitable tolling of statute of limitations on fed-
eral habeas claims in absence of proof of bad faith,
dishonesty, divided loyalty, mental impairment, or like,
‘‘is difficult to reconcile with more general equitable
principles in that it fails to recognize that, at least some-
times, professional misconduct that fails to meet [that]
standard could nonetheless amount to egregious behav-
ior and create an extraordinary circumstance that war-
rants equitable tolling’’ (internal quotation marks omit-
ted)). For these reasons, we reject the respondent’s
contention that we should treat ineffective assistance
of counsel in a habeas corpus case the same as ordinary
attorney negligence in a typical civil case.
In sum, given both the significant liberty interests at
stake in habeas proceedings and the importance of the
right to counsel in such proceedings, we hold that,
unlike attorney negligence in the traditional civil con-
text, ineffective assistance of counsel is sufficient to
invoke the court’s equitable authority to open a habeas
judgment more than four months after it was rendered.
The respondent argues, however, that, even if ineffec-
tive assistance of counsel might be a sufficient basis
to invoke the court’s authority to grant relief from a
judgment in some habeas cases, this is not such a case
because the petitioner failed to exercise due diligence
to communicate with White or to monitor the status of
his case. Therefore, according to the respondent, the
court ‘‘properly exercised its discretion in determining
that the petitioner’s conduct obviated any claim for
relief on his late motion.’’
The problem with the respondent’s argument is that
the court never exercised its discretion in this case.
Instead, it concluded that it lacked the authority to do
so. To be sure, had the court exercised its discretion,
the petitioner’s diligence would have been an important
consideration.23 To a significant extent though, the peti-
tioner’s lack of diligence in pursuing his habeas petition
or filing a timely motion to open is relevant to the
second prong of a claim of ineffective assistance of
counsel—whether counsel’s deficient performance
prejudiced the petitioner. See Lapointe v. Commis-
sioner of Correction, 316 Conn. 225, 264, 112 A.3d 1
(2015) (‘‘[t]o satisfy the prejudice prong [under Strick-
land], [the petitioner] must demonstrate that there is
a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would
have been different’’ (emphasis added; internal quota-
tion marks omitted)).
In the present case, the court did not assess the peti-
tioner’s ineffective assistance of counsel claim under
either prong of Strickland and declined to resolve fac-
tual disputes relevant to both inquiries. Although the
court’s discussion of the petitioner’s conduct suggests
that the court may have viewed his conduct as insuffi-
ciently diligent, it is generally unclear whether, in stat-
ing certain facts in its memorandum of decision, the
court was making factual findings or was simply
describing the state of the evidence.24 Moreover, the
court explicitly stated that it was not resolving factual
disputes or making credibility determinations ‘‘because
there [had] been no threshold showing of any fraud,
duress, or mutual mistake.’’ Given the court’s statement
that it was not resolving factual disputes in light of its
lack of authority to open the judgment, we decline the
respondent’s invitation to decide the merits of the peti-
tioner’s motion to open on the basis of suggested or
implicit findings. See, e.g., Small v. Commissioner of
Correction, 286 Conn. 707, 716, 946 A.2d 1203 (‘‘[w]hen
the record on appeal is devoid of factual findings by
the habeas court as to the performance of counsel, it
is improper for an appellate court to make its own
factual findings’’), cert. denied sub nom. Small v. Lantz,
555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).
Put differently, accepting the respondent’s argument
would require that we speculate not only as to how the
court would have resolved key factual disputes but also
as to how it would have exercised its discretion had it
not been operating under an unnecessarily limited view
of its authority, which we will not do. See, e.g., State
v. Hoskie, 74 Conn. App. 663, 674, 813 A.2d 136 (‘‘we
cannot now speculate as to how the court would have
responded to a timely request for a continuance’’), cert.
denied, 263 Conn. 904, 819 A.2d 837 (2003).
Accordingly, we must remand this case for a new
hearing on the petitioner’s motion to open. See McDer-
mott v. State, 316 Conn. 601, 611, 113 A.3d 419 (2015)
(concluding that it was ‘‘necessary to remand the case
to the trial court for a new trial to allow the parties to
present their cases with the correct legal standard in
mind and to allow the trial court to evaluate the facts
in light of this correct legal standard’’).
On remand, if the court determines that it has author-
ity to open the judgment because the petitioner has
satisfied both prongs of the Strickland test, the exercise
of that authority is left to the court’s discretion. See
Newtown v. Ostrosky, 191 Conn. App. 450, 468, 215 A.3d
1212 (‘‘equitable authority is vested in the discretion of
the trial court . . . to grant or to deny a motion to
open a judgment’’ (internal quotation marks omitted)),
cert. denied, 333 Conn. 925, 218 A.3d 68 (2019). Thus, the
court must determine, as a threshold matter, whether
White’s representation of the petitioner in connection
with the court’s dismissal of the action and with the
failure to file a timely motion to open constitutes inef-
fective assistance under Strickland. If the court con-
cludes that both prongs of Strickland are satisfied, and
that it therefore has the authority to entertain the peti-
tioner’s motion, the court then may consider whether
the totality of the facts and circumstances warrant exer-
cising its authority to grant the motion.25
The judgment is reversed and the case is remanded
for a new hearing on the petitioner’s motion to open
the judgment of dismissal.
In this opinion the other judges concurred.
1
See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
2
Clue v. State Prison Warden, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX-S (October 3, 2019).
3
The court explained that, ‘‘[a]fter a trial on the merits, the court, Newson,
J., granted the [2015 habeas] petition on October 3, 2019, vacated the convic-
tions, and ordered the criminal charges restored to the docket. The respon-
dent [the Commissioner of Correction] appealed from the granted petition
for certification to appeal (AC 43537) but withdrew the appeal on March
13, 2020. [Attorney Daniel] Lage continues to represent [the petitioner] on
those criminal charges. [The petitioner’s] rearrest was ordered, but because
he was deported to Jamaica, his rearrest has not been effectuated.’’
4
White certified that the notice had been served on counsel for the respon-
dent, the Commissioner of Correction, but provided no certification that he
had served or attempted to serve the petitioner or any member of his family,
and the petitioner claims in his appellate brief that he ‘‘was not provided
notice of the status conference’’ that resulted in the written notice prepared
by White at the request of the habeas court.
5
The record is unclear as to what efforts, if any, were made to provide
the petitioner with notice of the February 11, 2021 hearing.
6
To the extent that our resolution of the petitioner’s claim requires us to
interpret the relevant statutes, our review is also plenary. See Trumbull v.
Palmer, 161 Conn. App. 594, 598–99, 129 A.3d 133 (2015) (‘‘Whether a court
has authority to grant a motion to open requires an interpretation of the
relevant statutes. Statutory construction, in turn, presents a question of law
over which our review is plenary.’’ (Internal quotation marks omitted.)),
cert. denied, 320 Conn. 923, 133 A.3d 458 (2016).
7
The respondent contends that, ‘‘[a]lthough the habeas court did not
state that cases exist presenting extraordinary exceptions equivalent to the
standard common-law categories of fraud, duress and mutual mistake,’’
pursuant to Kaczynski v. Kaczynski, 294 Conn. 121, 981 A.2d 1068 (2009),
the court is nonetheless ‘‘presumed to have known our jurisprudence and
found no comparable extraordinary circumstances here that would authorize
opening [the judgment] beyond [four months].’’ In Kaczynski v. Kaczynski,
supra, 130–31, our Supreme Court held that, ‘‘[w]hen a trial court in a civil
matter requiring proof by clear and convincing evidence fails to state what
standard of proof it has applied, a reviewing court will presume that the
correct standard was used.’’ The respondent quotes this case for the proposi-
tion that, ‘‘[a]bsent a record that demonstrates that the trial court’s reasoning
was in error, we presume that the trial court correctly analyzed the law and
the facts in rendering its judgment . . . .’’ (Internal quotation marks omit-
ted.) Id., 130.
As the respondent’s brief suggests, however, we apply the presumption
that the court applied the correct legal standard only ‘‘in the absence of
some clear indication to the contrary . . . .’’ In re Annessa J., 343 Conn.
642, 676, 284 A.3d 562 (2022). In the present case, the court unambiguously
stated in its memorandum of decision that, ‘‘although guided by equitable
principles, [it had] constrained authority based on a showing that the judg-
ment was obtained by fraud, duress, or a mutual mistake. There has been
no showing of fraud, duress, or that a mutual mistake occurred.’’ The court
reiterated this understanding of its authority at the end of its memorandum
of decision, stating that it was unnecessary to resolve factual disputes or
make credibility determinations ‘‘because there has been no threshold show-
ing of any fraud, duress, or mutual mistake.’’ Although the court acknowl-
edged that § 52-212a ‘‘gives a court common-law authority to open the judg-
ment after the four month period,’’ the court nonetheless limited itself to
those three generally recognized equitable exceptions to the time limitation.
The court’s memorandum of decision, therefore, clearly indicates that it
was operating under an unnecessarily constrained view of its authority.
Given this clear indication to the contrary, we will not presume that the
court applied the correct legal standard. See In re Annessa J., supra, 676.
8
This court also has recognized that ‘‘[a] court may correct a clerical
error at any time, even after the expiration of the four month period.’’
(Internal quotation marks omitted.) Cusano v. Burgundy Chevrolet, Inc.,
55 Conn. App. 655, 659, 740 A.2d 447 (1999), cert. denied, 252 Conn. 942,
747 A.2d 519 (2000); see also Ryan v. Cassella, 180 Conn. App. 461, 477,
184 A.3d 311 (2018) (holding that ‘‘§ 52-212a did not preclude the court from
granting [a] motion to correct a technical defect in a party’s name’’ more
than four months after entry of default judgment, because to conclude
otherwise ‘‘would provide [a party] with a windfall as a result of a misnomer’’
(internal quotation marks omitted)).
9
See Practice Book § 17-41 (‘‘[u]pon a default, the plaintiff can have no
greater relief than that demanded in the complaint’’); Altberg v. Paul Kovacs
Tire Shop, Inc., 31 Conn. App. 634, 642–43, 626 A.2d 804 (1993) (remanding
case with direction to correct judgment because plaintiff ‘‘obtained more
relief than that demanded in his complaint’’).
10
See, e.g., In re Baby Girl B., supra, 224 Conn. 283 (‘‘[c]ourts have intrinsic
powers, independent of statutory provisions authorizing the opening of
judgments, to vacate any judgment obtained by fraud, duress or mutual
mistake’’ (emphasis added)).
11
The petitioner characterizes his claim that White’s notice to the court
was misleading as a claim of ‘‘quasi-fraud,’’ which he argues, independent
of his ineffective assistance of counsel claim, would provide the court with
authority to open the judgment following the expiration of the statutory
period. During oral argument before this court, counsel for the petitioner
explained that a claim of quasi-fraud has the ‘‘same legal effects as fraud’’
but would not require the petitioner to prove that White had the intent to
deceive. The petitioner further explains in his brief that, although ‘‘the
evidence did not demonstrate a showing of actual fraud . . . the instant
case evidenced elements of fraud due to the misleading nature of the repre-
sentations that White had made in the notice filed with the habeas court
to accomplish the dismissal of this action.’’
We are unaware of any case in which our Supreme Court or this court
has used the phrase ‘‘quasi-fraud’’ in any circumstance and certainly not as
a ground to grant an untimely motion to open. Furthermore, we see little
utility in attaching such a title to an equitable ground for an untimely motion
to open other than fraud, duress, or mutual mistake. Instead, the focus of
the court considering the untimely motion is whether the ground raised is
of similar magnitude to fraud, duress, or mutual mistake, such that ‘‘the
principle of protection of the finality of judgments must give way to the
principle of fairness and equity.’’ Kim v. Magnotta, supra, 249 Conn. 109.
Thus, the pertinent question in the present appeal is whether the petitioner’s
claim of ineffective assistance of counsel, which involved allegations that
White performed deficiently through inaction, invokes the court’s equitable
authority to consider opening the judgment more than four months after it
was rendered.
12
Additionally, the respondent argues that the petitioner’s failure to file
the underlying habeas petition before the statutory deadline under § 52-
470 (c), presumptively without good cause, undermines the petitioner’s
arguments on appeal. The issue of whether the petitioner can overcome the
statutory presumption that his habeas petition was filed late without good
cause, however, is an inherently fact bound inquiry that has yet to be
addressed by the trial court. See Kelsey v. Commissioner of Correction,
343 Conn. 424, 435–36, 274 A.3d 85 (2022) (‘‘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 circumstances offered to
justify the delay, including an evaluation of the credibility of any witness
testimony’’ (internal quotation marks omitted)). Accordingly, we refuse to
address that issue on appeal. See Berka v. Middletown, 205 Conn. App. 213,
220–21, 257 A.3d 384 (‘‘[b]ecause our review is limited to matters in the
record, we . . . will not address issues not decided by the trial court’’
(internal quotation marks omitted)), cert. denied, 337 Conn. 910, 253 A.3d
44, cert. denied, U.S. , 142 S. Ct. 351, 211 L. Ed. 2d 186 (2021).
13
‘‘Under Strickland, [a] claim of ineffective assistance of counsel consists
of two components: a performance prong and a prejudice prong. To satisfy
the performance prong . . . the petitioner must demonstrate that his attor-
ney’s representation was not reasonably competent or within the range of
competence displayed by lawyers with ordinary training and skill in the
criminal law. . . . To satisfy the prejudice prong, [the petitioner] must dem-
onstrate that there is a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have been different.’’
(Internal quotation marks omitted.) Lapointe v. Commissioner of Correc-
tion, 316 Conn. 225, 264, 112 A.3d 1 (2015).
14
General Statutes § 52-470 provides in relevant part: ‘‘(a) The court or
judge hearing any habeas corpus shall proceed in a summary way to deter-
mine the facts and issues of the case, by hearing the testimony and arguments
in the case, and shall inquire fully into the cause of imprisonment and
thereupon dispose of the case as law and justice require. . . .’’
15
This important function of the writ of habeas corpus is not lost where,
as here, the petitioner is released from custody during the pendency of his
habeas petition and is residing in another country when there remains ‘‘a
reasonable possibility of prejudicial collateral consequences should [he]
seek to lawfully reenter the United States’’ following his deportation. State
v. Jerzy G., 326 Conn. 206, 223, 162 A.3d 692 (2017).
16
‘‘General Statutes § 51-296 (a) provides in relevant part: ‘In any criminal
action, in any habeas corpus proceeding arising from a criminal matter, in
any extradition proceeding, or in any delinquency matter, the court before
which the matter is pending shall, if it determines after investigation by the
public defender or his office that a defendant is indigent as defined under
this chapter, designate a public defender, assistant public defender or deputy
assistant public defender to represent such indigent defendant . . . .’ ’’
Lozada v. Warden, 223 Conn. 834, 838 n.7, 613 A.2d 818 (1992).
17
We emphasize that our holding is limited to the context of habeas corpus
proceedings that challenge the legality of a criminal conviction. Our holding,
therefore, should not be construed as recognizing an exception to the four
month limitation period on the basis of ineffective assistance of counsel in
any other context in which there is a right to counsel, such as proceedings
in juvenile matters. Indeed, this court previously has recognized that the
sixth amendment protections that extend to the statutory right to habeas
counsel do not similarly extend to a parent’s right to counsel in neglect or
termination of parental rights proceedings. See In re Ceana R., 177 Conn.
App. 758, 772, 172 A.3d 870, cert. denied, 327 Conn. 991, 175 A.3d 1244
(2017); In re Isaiah J., 140 Conn. App. 626, 640, 59 A.3d 892, cert. denied,
308 Conn. 926, 64 A.3d 333, cert. denied sub nom. Megan J. v. Katz, 571
U.S. 924, 134 S. Ct. 317, 187 L. Ed. 2d 224 (2013). Moreover, our Supreme
Court has explained that different legal standards govern claims of ineffec-
tive assistance of counsel in termination of parental rights cases and in
criminal habeas corpus cases because ‘‘the finality considerations in a collat-
eral challenge to a termination of parental rights are drastically different
from those presented by a writ of habeas corpus attacking a criminal convic-
tion with respect to the fundamental fairness concerns that drive the avail-
ability of the writ as a common-law remedy. . . . [T]he complete depriva-
tion of personal liberty represented by incarceration demands a thorough
search for the innocent. In the context of termination cases, extended litiga-
tion imposes that burden on the most vulnerable people whom the system
and such cases seek to protect: the children.’’ (Citations omitted; internal
quotation marks omitted.) Kaddah v. Commissioner of Correction, 324
Conn. 548, 569 n.18, 153 A.3d 1233 (2017).
18
Pursuant to the procedural default doctrine, ‘‘a petitioner is barred from
raising a claim for the first time in a habeas proceeding unless there is cause
and prejudice to excuse the procedural default . . . .’’ Rose v. Commis-
sioner of Correction, 348 Conn. 333, 347 n.8, 304 A.3d 431 (2023).
19
General Statutes § 52-470 provides in relevant part: ‘‘(c) Except as pro-
vided in subsection (d) of this section, there shall be a rebuttable presump-
tion 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. . . .
‘‘(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. . . .’’
20
General Statutes § 52-212 applies specifically to judgments upon default
or nonsuit and provides in relevant part: ‘‘(a) Any judgment rendered or
decree passed upon a default or nonsuit in the Superior Court may be set
aside, within four months following the date on which the notice of judgment
or decree was sent, and the case reinstated on the docket, on such terms
in respect to costs as the court deems reasonable, upon the complaint or
written motion of any party or person prejudiced thereby, showing reason-
able cause, or that a good cause of action or defense in whole or in part
existed at the time of the rendition of the judgment or the passage of the
decree, and that the plaintiff or defendant was prevented by mistake, acci-
dent or other reasonable cause from prosecuting the action or making the
defense. . . .’’
21
The respondent cites three habeas cases in support of this argument.
None of these cases, however, addressed a trial court’s denial of an untimely
motion to open a judgment that was allegedly rendered due to the ineffective
assistance of habeas counsel and, therefore, these cases do not affect our
analysis. See Diaz v. Commissioner of Correction, 214 Conn. App. 199, 228,
280 A.3d 526 (court did not abuse its discretion in denying motion to open
because petitioner failed to meet essential requirement for granting motion
to open on basis of newly discovered evidence, namely, ‘‘that the evidence
which the party seeks to offer could not have been known and with reason-
able diligence produced at trial’’ (internal quotation marks omitted)), cert.
denied, 345 Conn. 967, 285 A.3d 736 (2022); Antonio A. v. Commissioner
of Correction, 205 Conn. App. 46, 76–77, 256 A.3d 684 (same), cert. denied,
339 Conn. 909, 261 A.3d 744 (2021); Carmon v. Commissioner of Correction,
148 Conn. App. 780, 788, 87 A.3d 595 (2014) (‘‘the court acted well within
its authority in rendering a default judgment, and . . . it did not abuse its
discretion in concluding that such a judgment was warranted’’ because
petitioner failed to provide any appropriate explanation for his failure to
comply with pleading requirements under General Statutes § 52-110).
22
‘‘[T]he doctrine of res judicata in the habeas context must be read in
conjunction with Practice Book § 23-29 (3), which [further] narrows its
application.’’ Kearney v. Commissioner of Correction, 113 Conn. App. 223,
235, 965 A.2d 608 (2009). Practice Book § 23-29 provides in relevant part:
‘‘The judicial authority may, at any time, upon its own motion or upon
motion of the respondent, dismiss the petition, or any count thereof, if it
determines that . . . (3) the petition presents the same ground as a prior
petition previously denied and fails to state new facts or to proffer new
evidence not reasonably available at the time of the prior petition . . . .’’
‘‘Following this analytical pathway, a second petition alleging the same
ground as a previously denied petition will elude dismissal if it alleges
grounds not actually litigated in the earlier petition and if it alleges new
facts or proffers new evidence not reasonably available at the time of the
earlier petition.’’ Kearney v. Commissioner of Correction, supra, 235.
23
See footnote 25 of this opinion.
24
The court included the following discussion in its memorandum of
decision regarding the parties’ conduct in relation to the underlying action:
‘‘White’s notice accompanying the caseflow request and the affidavit submit-
ted by the respondent detail the unsuccessful efforts to contact [the peti-
tioner] and his family members. Additionally, the notice and affidavit indicate
that White was not contacted by [the petitioner] and his family members
and provided with [the petitioner’s] contact information. Juxtaposed with
the present matter is the 2015 habeas and the communications between
Lage and [the petitioner] and his family members. There is little apparent
logic in maintaining communications with Lage in the restored criminal
charges resulting from the successful 2015 habeas, where [the petitioner]
has been ordered rearrested but remains in Jamaica, but not having commu-
nications with White in the pending habeas awaiting trial. The success in
one habeas would seem to engender pursuing habeas relief in a second
pending case, especially because successful challenges to all state convic-
tions have the potential to either eliminate all grounds for removal from
the country or prevent reentry. Yet [the petitioner] testified that he called
Lage from Jamaica in either June or July of 2020, shortly after his deportation,
but did not try to call White until August of 2020, and tried again in October
of 2020. [The petitioner] then gave up contacting White. [The petitioner’s]
habeas testimony provides no explanation why he would contact Lage and
maintain regular communications after arriving in Jamaica, but [he] delayed
establishing contact with White and made little effort communicating with
White. Although this court dismissed the petition on February 11, 2021,
neither [the petitioner], who had Internet access in Jamaica, nor Kelly Clue,
who divided her time between Connecticut and Jamaica and had Internet
access in both places, found out about the dismissal until approximately
early 2022. Yet [the petitioner] and Kelly Clue maintained contact with Lage
by telephone.
‘‘Although correspondence from White to [the petitioner] was entered
into evidence, no telephone records were provided to the court to substanti-
ate any of the cell phone calls. Nor is there any official document that assists
this court in establishing when [the petitioner] was deported. According to
[the petitioner] and Ellis, he was deported on June 5, 2020. White’s notice
and affidavit, however, indicate that he called [the petitioner] at the Wyatt
Detention Center on June 13, 2020. The time [the petitioner] spent in a
Jamaican hospital when he was deported would overlap in large part with
the June 5 [through] 13 time frame. Resolving these diverging factual differ-
ences is unnecessary to resolve the present motion, and the court need not
delve into credibility determinations, because there has been no threshold
showing of any fraud, duress, or mutual mistake.’’ (Emphasis added.)
25
The court may consider factors such as whether the petitioner, despite
counsel’s ineffective assistance, nevertheless unreasonably delayed in mov-
ing to open the judgment; see Newtown v. Ostrosky, supra, 191 Conn. App.
470–72 (noting that court’s authority to entertain defendant’s late motion
to open based on lack of notice ‘‘was not limited by the four month rule
established by § 52-212a’’ but concluding that court did not abuse its discre-
tion in denying motion because defendant waited more than two years
before moving to open judgments); whether the petitioner’s underlying claim
is nonfrivolous; see In re Baby Girl B., supra, 224 Conn. 294 (affirming trial
court’s decision to grant petition to open judgment terminating mother’s
parental rights where trial court concluded that ‘‘genuine issues exist, which,
if established after a full hearing on the merits could constitute a meritorious
defense to the allegations of the petition to terminate [the] mother’s parental
rights’’ (internal quotation marks omitted)); whether granting the untimely
motion to open will unduly prejudice the respondent; see Jackson v. Com-
missioner of Correction, 227 Conn. 124, 134, 629 A.2d 413 (1993) (‘‘[a]
[s]tate’s procedural rules . . . [afford] . . . the opportunity to resolve the
issue shortly after trial, while evidence is still available both to assess the
defendant’s claim and to retry the defendant effectively if he prevails in his
appeal’’ (internal quotation marks omitted)); whether the petitioner has
other options to challenge his conviction, for example, the filing of a new
habeas petition; or whether, because he is no longer in custody, opening
the habeas judgment is the petitioner’s sole opportunity to challenge his
judgment of conviction. See Coppola v. Coppola, 243 Conn. 657, 665, 707
A.2d 281 (1998) (Our Supreme Court prefers ‘‘to bring about a trial on the
merits of a dispute whenever possible and to secure for the litigant his day
in court. . . . Our practice does not favor the termination of proceedings
without a determination of the merits of the controversy where that can be
brought about with due regard to necessary rules of procedure.’’ (Citations
omitted; internal quotation marks omitted.)).