NATHAN DULL v. COMMISSIONER OF CORRECTION
(AC 39090)
Sheldon, Prescott and Bishop, Js.
Syllabus
Pursuant to statute (§ 52-470 [d]), there is a rebuttable presumption that a
subsequent habeas petition has been delayed without good cause if,
inter alia, such petition is filed two years or more after the date on
which a final judgment has been rendered after the conclusion of appel-
late review on a prior habeas petition challenging the same conviction.
Pursuant further to statute (§ 52-470 [e]), in cases in which the rebuttable
presumption of delay without good cause under § 52-470 (d) applies,
the habeas court shall issue, upon request by the respondent, an order
to show cause why the petition should be permitted to proceed and not
be dismissed.
The petitioner, who had been convicted of murder, appealed to this court
from the judgment of the habeas court, which dismissed his petition
for a writ of habeas corpus. In dismissing the petition, which followed
the petitioner’s prior habeas petition challenging the same conviction,
the habeas court determined, pursuant to § 52-470 (d) and (e), that the
petition was untimely because it was filed more than two years after
final judgment was rendered on appellate review of the habeas court’s
denial of his prior petition and because the petitioner failed to demon-
strate, in response to the court’s order to show cause, that his alleged
mental health problems constituted good cause for the late filing. On
appeal to this court, the petitioner claimed that he established good
cause for the delay in the filing of his subsequent habeas petition. Held
that the habeas court did not err in dismissing as untimely the petitioner’s
subsequent habeas petition, there having been no fault in that court’s
conclusion that the petitioner failed to demonstrate good cause for the
late filing.
Argued April 27—officially released August 1, 2017
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., granted the respondent’s motion
to dismiss and rendered judgment thereon, from which
the petitioner, on the granting of certification, appealed
to this court; thereafter, the court, Oliver, J., issued an
articulation of its decision. Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was William A. Adsit, assigned counsel, for
the appellant (petitioner).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, was Jo Anne Sulik, supervisory
assistant state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Nathan Dull, appeals
from the habeas court’s dismissal of his petition for a
writ of habeas corpus as untimely pursuant to General
Statutes § 52-470 (d).1 Specifically, he argues that he
established good cause for the delay in the filing of his
third habeas corpus petition. We are not persuaded and,
accordingly, affirm the judgment of the habeas court.
This appeal requires us to review the underpinnings
of § 52-470, which concerns the summary disposal of
habeas corpus petitions. In 2012, the General Assembly
enacted No. 12-115 of the 2012 Public Acts (P.A. 12-115),
which amended § 52-470, by adding new subsections (c)
through (e), establishing procedures for the court to
respond to untimely habeas filings. Included in those
amendments is a provision that there shall be a rebutta-
ble presumption that a habeas petition challenging a
conviction has been delayed without good cause if the
petition was filed two years or more after the date on
which a final judgment has been entered on a prior
petition, or after October 1, 2014, whichever date is
later. The statutory amendments also provide that when
a petition is filed in which the rebuttable presumption
of untimeliness applies, the court, upon request of the
respondent, may issue an order to show cause why the
petition should be permitted to proceed and not be
dismissed. General Statutes § 52-470 (e).2
In the matter at hand, the record reflects that the
petitioner was convicted of murder in violation of Gen-
eral Statutes § 53a-54a in 1998 after a trial before a three
judge panel. In rendering judgment of conviction, the
panel rejected the petitioner’s insanity defense, and the
conviction was affirmed on appeal. State v. Dull, 59
Conn. App. 579, 757 A.2d 1194 (2000). Thereafter, on
December 19, 2002, the petitioner filed his first habeas
corpus petition attacking his conviction. That petition
was denied in 2005, and the habeas court’s judgment
was affirmed by this court on appeal. Dull v. Commis-
sioner of Correction, 96 Conn. App. 787, 901 A.2d 1239
(2006). Later, on March 30, 2010, the petitioner filed a
second habeas corpus petition, through which he again
challenged his conviction. The second petition was
withdrawn by the petitioner on October 13, 2011. This
third petition was then brought on June 11, 2015, after
the October 1, 2012 effective date of P.A. 12-115 and
several months after October 1, 2014.3
On the basis of the lapse of time between the judg-
ment on the first petition and the filing of the third
petition, and the fact that the third petition was filed
after October 1, 2014, the respondent, the Commis-
sioner of Correction, filed a motion, pursuant to § 52-
470 (e), seeking an order that the petitioner be required
to show cause why his petition should not be dismissed
as untimely. Thereafter, pursuant to the court’s show
cause order, a hearing was conducted at which the
petitioner testified to his belief that his mental health
condition prevented him from timely filing this petition,
and, thus, good cause existed for the delay in its filing.
After considering the evidence, the court issued its
order in which it determined that the petition was
untimely and that the petitioner had failed to demon-
strate good cause for its late filing. Accordingly, the
court dismissed the petition. This appeal followed.
While the appeal was pending and after oral argu-
ment, this court ordered the habeas court to file an
articulation setting forth whether proof of the defen-
dant’s claim of mental health impairment constituted
good cause for the untimely filing of this petition. In
response, the court stated: ‘‘The petitioner’s mental
health problems were not so significant as to interfere
with his ability to file a timely petition.’’ (Emphasis in
original.) The court explained that its reasoning was
based on its assessment of the habeas evidence as well
as a review of the record regarding the defendant’s
conviction and prior habeas petitions.
We note that the habeas court’s decision to dismiss
a habeas petition is a matter of law, subject to plenary
review. Anderson v. Commissioner of Correction, 148
Conn. App. 641, 644, 85 A.3d 1240, cert. denied, 311
Conn. 945, 90 A.3d 976, cert. denied sub nom. Anderson
v. Dzurenda, U.S. , 135 S. Ct. 201, 190 L. Ed. 2d
155 (2014). On the basis of our review of the court’s
thorough articulation and our review of the record, we
find no fault in the court’s conclusion that the petitioner
has not shown good cause for his untimely filing of this
habeas corpus petition. Accordingly, the court did not
err in dismissing the petitioner’s third petition for a writ
of habeas corpus.
The judgment is affirmed.
1
Subsection (d) of No. 12-115 of the 2012 Public Acts, codified at § 52-
470 (d), provides in relevant part: ‘‘In the case of a petition filed subsequent
to a judgment on a prior petition challenging the same conviction, there
shall be a rebuttable presumption that the filing of the subsequent petition
has been delayed without good cause if such petition is filed after the later
of the following: (1) Two years after the date on which the judgment in the
prior petition is deemed to be a final judgment due to the conclusion of
appellate review or the expiration of the time for seeking such review; (2)
October 1, 2014 . . . . For the purposes of this section, the withdrawal
of a prior petition challenging the same conviction shall not constitute a
judgment. . . .’’
2
Subsection (e) of P.A. 12-115, codified at § 52-470 (e), provides in relevant
part: ‘‘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’s counsel, shall have a meaningful
opportunity to investigate the basis for the delay and respond to the order.
If, after such opportunity, the court finds that the petitioner has not demon-
strated good cause for the delay, the court shall dismiss the petition. . . .’’
3
Because the petition was filed after October 1, 2014, the habeas court
found that it was untimely. In accordance with the language of § 52-470 (d);
see footnote 1 of this opinion; the filing and withdrawal of the second
petition was not legally relevant to the court’s determination.