Velez v. Commissioner of Correction

V
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           ANTHONY VELEZ v. COMMISSIONER
                  OF CORRECTION
                     (AC 42446)
                       Lavine, Alvord and Cradle, Js.*

                                   Syllabus

The petitioner, who had been convicted of the crimes of murder, burglary
   in the first degree and criminal mischief in the first degree, filed a second
   petition for a writ of habeas corpus, claiming that his prior habeas
   counsel had provided ineffective assistance. The habeas court, upon
   the request of the respondent Commissioner of Correction, issued an
   order to show cause why the petition, which was filed in August, 2015,
   should be permitted to proceed in light of the fact that the petitioner
   had filed it beyond the October 1, 2014 deadline for successive petitions
   set forth in the applicable statute (§ 52-470 (d) (2)). The court conducted
   an evidentiary hearing, during which the petitioner presented a 2005
   report of a neuropsychological evaluation of the petitioner, which
   described in depth his mental deficiencies. The petitioner asserted that
   those deficiencies established good cause for his delay in filing the
   second habeas petition because they prevented him from obtaining the
   legal assistance while he was incarcerated to file it in a timely manner.
   The habeas court dismissed the petition pursuant to § 52-470 (e) for
   lack of good cause for the delay in filing the successive petition, conclud-
   ing that, although the petitioner’s mental deficiencies were significant,
   he failed to prove that they contributed to his delay in filing the petition.
   Thereafter, the petitioner, on the granting of certification, appealed to
   this court. Held that the habeas court did not abuse its discretion in
   dismissing the second habeas petition and properly determined that
   the petitioner failed to establish good cause for the delay in filing the
   successive petition; contrary to the petitioner’s claim, that court properly
   determined that the petitioner failed to prove that his mental deficienc-
   ies, as described in the 2005 report, contributed to his delay in filing
   the second habeas petition and, thus, failed to rebut the presumption
   of unreasonable delay set forth in § 52-470 (d), as the record indicated
   that the petitioner presented no evidence of the nature of his deficiencies
   during the relevant time frame or how they contributed to the delay in
   filing the second habeas petition, and the court’s determination was
   supported by the petitioner’s having obtained a general equivalency
   diploma and having completed college classes and his success in filing
   two habeas petitions as a self-represented party, despite the alleged
   prevalence of his deficiencies.
       Argued September 8, 2020—officially released March 9, 2021

                             Procedural History

  Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Bhatt, J.; rendered judgment dismissing the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
   Michael W. Brown, for the appellant (petitioner).
   Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Jo Anne Sulik, supervisory assistant state’s
attorney, for the appellee (respondent).
                          Opinion

   ALVORD, J. The petitioner, Anthony Velez, appeals
from the judgment of the habeas court dismissing his
successive petition for a writ of habeas corpus pursuant
to General Statutes § 52-470 (d) and (e).1 On appeal,
the petitioner claims that the habeas court improperly
determined that evidence of his mental deficiencies set
forth in a 2005 neurological report was insufficient to
demonstrate good cause within the meaning of § 52-
470 (e) to overcome the statutory presumption of unrea-
sonable delay in filing his successive habeas petition.
We disagree with the petitioner and, accordingly, affirm
the judgment of the habeas court.
   The procedural background underlying this appeal is
as follows. On July 24, 2006, after a jury trial, the peti-
tioner was convicted of murder in violation of General
Statutes § 53a-54a, burglary in the first degree in viola-
tion of General Statutes § 53a-101 (a) (2), and criminal
mischief in the first degree in violation of General Stat-
utes § 53a-115 (a) (1). On September 15, 2006, the trial
court, D’Addabbo, J., sentenced the petitioner to a total
effective term of sixty years of incarceration. On March
24, 2009, this court affirmed the judgment of conviction
on direct appeal. State v. Velez, 

113 Conn. App. 347

,
349, 

966 A.2d 743

, cert. denied, 

291 Conn. 917

, 

970 A.2d 729

(2009). On May 6, 2009, our Supreme Court denied
the petitioner certification to appeal from this court’s
judgment. State v. Velez, 

291 Conn. 917

, 

970 A.2d 729

(2009).
  On June 5, 2007, the petitioner, as a self-represented
party, filed a petition for a writ of habeas corpus chal-
lenging his conviction (first habeas petition).2 On Janu-
ary 24, 2011, following a trial on the merits, the habeas
court, Fuger, J., issued a memorandum of decision
denying the petition. Velez v. Warden, Superior Court,
judicial district of Tolland, Docket No. CV-XX-XXXXXXX-
S (January 24, 2011).3 The petitioner appealed to this
court but withdrew the appeal on August 8, 2011.
   On August 31, 2015, the petitioner, as a self-repre-
sented party, filed the present petition for a writ of
habeas corpus (second habeas petition).4 The habeas
court subsequently granted the petitioner’s request that
counsel be appointed for him. On March 20, 2017, the
respondent, the Commissioner of Correction, filed a
request pursuant to § 52-470 (e), for an order directing
the petitioner to appear and to show cause why the
second habeas petition should be permitted to proceed
in light of the fact that he filed it beyond the deadline
for successive habeas petitions set forth in § 52-470 (d).
In his request, the respondent argued that the petition-
er’s second habeas petition was untimely because the
petitioner did not file it until August 31, 2015, beyond
the October 1, 2014 statutory deadline, and, therefore,
the rebuttable presumption that the filing of the petition
has been delayed without good cause applied.5
   The habeas court, Bhatt, J., issued an order to show
cause and, on September 26, 2018, conducted an eviden-
tiary hearing. At the show cause hearing, the petitioner
presented one exhibit—a 2005 report of a neuropsycho-
logical evaluation of the petitioner that was conducted
by Cristina L. Ciocca, a clinical neuropsychologist, at
the request of the petitioner’s criminal trial counsel
(2005 report). The respondent presented three exhib-
its—Judge Fuger’s memorandum of decision denying
the petitioner’s first habeas petition, the petitioner’s
form appealing from that decision, and the petitioner’s
form withdrawing that appeal. Neither the petitioner
nor the respondent presented testimony at the show
cause hearing. The court heard legal arguments from
both parties.6
   The 2005 report that was presented by the petitioner
describes in depth the petitioner’s deficiencies that
were observed by Ciocca at the time of the evaluation.
The 2005 report concluded, inter alia, that the peti-
tioner, suffers from ‘‘working memory deficits, poor
deployment of attention, and executive dysfunction. His
difficulties breaking down complex information into
more manageable units precipitated ease of becoming
overwhelmed, frustration, and a tendency to withdraw
in order to preserve internal integrity.’’ The 2005 report
additionally determined that ‘‘[t]hese difficulties further
impacted his capacity to learn novel information, bene-
fit from external feedback, and process directions. Con-
comitantly, these findings suggested evidence of neuro-
logical impairment possibly associated with Fetal
Alcohol Syndrome . . . .’’
   The petitioner’s counsel argued that the ‘‘mental
impairments and deficiencies’’ suffered by the peti-
tioner, as described in the 2005 report, established good
cause for the delay in filing the second habeas petition.
The petitioner’s counsel maintained that the petitioner
suffered ‘‘debilitating mental illnesses and learning disa-
bilities’’ that prevented him from seeking ‘‘the appro-
priate guidance and counsel while he was incarcerated
to properly file the [second] habeas [petition] in a timely
manner.’’ The petitioner’s counsel added that, although
his psychological evaluation was prepared in 2005,
‘‘these are the same things that [the petitioner] is cur-
rently suffering from.’’
  The respondent argued that the petitioner’s filing of
his first and second habeas actions as a self-represented
party demonstrates that he was aware of how to file a
petition for a writ of habeas corpus but failed to do so
here in a timely manner.7 The petitioner responded that
he was able to file the first and second habeas petitions
as a self-represented party only because he received
help in drafting them. The petitioner offered no evi-
dence as to why he was unable to obtain that same
assistance in drafting and filing the second habeas peti-
tion prior to the October 1, 2014 statutory deadline.
  Following the show cause hearing, on October 16,
2018, the court ordered the parties to file posthearing
memoranda addressing the following question: ‘‘Do the
petitioner’s deficits, as outlined in [the 2005 report],
rebut the presumption that there is no good cause for
the delay in the filing of the [second] habeas petition?’’
   On October 31, 2018, both parties submitted posthear-
ing memoranda addressing the court’s order. Consistent
with his argument at the show cause hearing, the peti-
tioner argued that his ‘‘serious psychological and learn-
ing disabilities’’ prevented him from obtaining ‘‘the nec-
essary legal assistance while incarcerated’’ to file the
second habeas petition in a timely manner. He argued
that the 2005 report evidenced these deficiencies and
that they ‘‘still afflict him today.’’ The respondent argued
that the petitioner failed to demonstrate any connection
between the ‘‘alleged deficits noted by [the] retained
psychologist’’ in the 2005 report and his ‘‘failure to pur-
sue habeas corpus relief during the four year period
between August, 2011 and August, 2015.’’ In addition,
the respondent challenged the weight of the 2005 report
because it was not current, it contained conflicting
information regarding the petitioner’s intelligence, and
it was never subject to challenge regarding its findings
and conclusions. The respondent further noted that the
petitioner’s history, which included speaking two lan-
guages, obtaining a general equivalency diploma, com-
pleting college classes, filing the first habeas petition
as a self-represented party, and filing the second habeas
petition as a self-represented party, supported the con-
clusion that the petitioner failed to demonstrate good
cause to justify his late filing.
   On November 6, 2018, the habeas court issued a mem-
orandum of decision, in which it concluded that,
although the petitioner’s deficiencies were ‘‘signifi-
cant,’’8 he failed to prove that those deficiencies contrib-
uted to his delay in filing the second habeas petition.
Specifically, the court determined: ‘‘[T]he court finds
. . . that the petitioner has failed to prove how his
deficits affected his ability to timely file this second
petition. The petitioner points to nothing in the 2005
report that shows his deficits are of such a nature that
he was unable to file a second petition between August,
2011 and August, 2015.9 Acknowledging that the peti-
tioner likely suffers from several deficits that affect
his mental capacity is not sufficient to overcome the
presumption that there is no good cause for the delay.
The petitioner must prove that these deficits are the
reason for the delay and it is these deficits that pre-
vented him from timely filing the petition.10 That he has
not done. A review of the [2005 report] does not lead this
court to conclude that any of the petitioner’s deficits
prohibited him from filling out the limited application
for a writ of habeas corpus. Indeed, the petitioner has
twice filed petitions for writ of habeas corpus.
  ‘‘Thus, the court is constrained to conclude that the
petitioner’s deficits, while significant, have not been
proven to be the reason the petition was untimely filed
and thus, do not rebut the statutory presumption [of
unreasonable delay]. The petition must be dismissed.’’
(Citations omitted; footnotes added; footnote omitted;
internal quotation marks omitted.).
   On November 15, 2018, the habeas court granted cer-
tification to appeal. This appeal followed.
   On appeal, the petitioner claims that the habeas court
improperly determined that he failed to present suffi-
cient evidence to demonstrate good cause within the
meaning of § 52-470 (e) to overcome the statutory pre-
sumption of unreasonable delay.11 Specifically, he
argues that the court’s finding of ‘‘significant mental
impairments . . . in areas that logically would impact
the petitioner’s ability to comprehend the need to act
and his ability to act in accordance with that need is
sufficient to find that the petitioner displayed actual
difficulties that created a significant burden on the peti-
tioner’s ability to file a timely petition.’’ The respondent
contends that, although the 2005 report ‘‘documented
the petitioner’s mental health history, albeit only
through 2005, it provides no insight into the issue of
how his deficits affected his ability to timely file his
[second habeas] petition’’ prior to the October 1, 2014
deadline. (Internal quotation marks omitted.) The
respondent further argues that the petitioner has failed
to meet his burden of demonstrating good cause to
overcome the statutory presumption of unreasonable
delay because ‘‘the petitioner adduced no other evi-
dence supporting his claim that his delay in filing was
because of his mental [deficiencies], rather than a lack
of due diligence.’’ We agree with the respondent.
   ‘‘[T]o rebut successfully the presumption of unrea-
sonable delay in § 52-470, a petitioner generally will be
required to demonstrate that something outside of the
control of the petitioner or habeas counsel caused or
contributed to the delay. Although it is impossible to
provide a comprehensive list of situations that would
satisfy this good cause standard, a habeas court prop-
erly may elect to consider a number of factors in
determining whether a petitioner has met his eviden-
tiary burden of establishing good cause for filing an
untimely petition. . . . [F]actors directly related to the
good cause determination include, but are not limited
to: (1) whether external forces outside the control of
the petitioner had any bearing on the delay; (2) whether
and to what extent the petitioner or his counsel bears
any personal responsibility for any excuse proffered for
the untimely filing; (3) whether the reasons proffered
by the petitioner in support of a finding of good cause
are credible and are supported by evidence in the
record; and (4) how long after the expiration of the
filing deadline did the petitioner file the petition. No
single factor necessarily will be dispositive, and the
court should evaluate all relevant factors in light of
the totality of the facts and circumstances presented.’’
(Emphasis added.) Kelsey v. Commissioner of Correc-
tion, 

202 Conn. App. 21

, 34–35,        A.3d       (2020),
cert. granted, 

336 Conn. 912

,      A.3d      (2021).
   ‘‘[A] habeas court’s determination of whether a peti-
tioner has satisfied the good cause standard in a particu-
lar 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.’’

Id., 35–36.

‘‘[W]e will overturn a habeas court’s determi-
nation regarding good cause under § 52-470 only if it
has abused the considerable discretion afforded to it
under the statute.12 In reviewing a claim of abuse of
discretion, we have stated that [d]iscretion means a
legal discretion, to be exercised in conformity with the
spirit of the law and in a manner to subserve and not
to impede or defeat the ends of substantial justice. . . .
In general, abuse of discretion exists when a court could
have chosen different alternatives but has decided the
matter so arbitrarily as to vitiate logic, or has decided
it based on improper or irrelevant factors. . . . [Rever-
sal is required only] [i]n those cases in which an abuse
of discretion is manifest or where injustice appears to
have been done . . . .’’ (Footnote added; internal quo-
tation marks omitted.)

Id., 38.

   The habeas court found that ‘‘the petitioner point[ed]
to nothing in the 2005 report that shows his deficits are
of such a nature that he was unable to file a second
petition between August, 2011 and August, 2015.’’ Our
review of the record indicates that, although the peti-
tioner’s counsel represented that the deficiencies set
forth in the 2005 report ‘‘still afflict him today,’’ the
petitioner presented no evidence of the nature of his
deficiencies during the relevant time frame or how his
deficiencies contributed to the delay in filing the second
habeas petition. Rather, the court’s determination that
the petitioner ‘‘failed to prove how his deficits affected
his ability to timely file this second petition’’ is sup-
ported by the petitioner’s having obtained a general
equivalency diploma and completed college classes and
his success in filing two habeas petitions as a self-
represented party, despite the alleged prevalence of his
deficiencies. The court therefore did not err in conclud-
ing that ‘‘the petitioner’s deficits, while significant, have
not been proven to be the reason [that] the petition
was untimely filed and thus, do not rebut the statutory
presumption [of unreasonable delay].’’
   We conclude that the habeas court properly deter-
mined that the petitioner failed to establish good cause
for the delay in filing his successive habeas petition.
Accordingly, the habeas court did not abuse its discre-
tion in dismissing the petitioner’s second habeas peti-
tion pursuant to § 52-470 (d) and (e).
   The judgment is affirmed.
   In this opinion the other judges concurred.
   * The listing of judges reflects their seniority status on this court as of
the date of oral argument.
   1
     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. . . .
   ‘‘(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 pre-
sumption that the filing of the subsequent petition has been delayed without
good cause if such petition is filed after the later of the following: (1) Two
years after the date on which the judgment in the prior petition is deemed
to be a final judgment due to the conclusion of appellate review or the
expiration of the time for seeking such review; (2) October 1, 2014; or (3)
two years after the date on which the constitutional or statutory right
asserted in the petition was initially recognized and made retroactive pursu-
ant to a decision of the Supreme Court or Appellate Court of this state or
the Supreme Court of the United States or by the enactment of any public
or special act. For the purposes of this section, the withdrawal of a prior
petition challenging the same conviction shall not constitute a judgment.
The time periods set forth in this subsection shall not be tolled during the
pendency of any other petition challenging the same conviction. Nothing in
this subsection shall create or enlarge the right of the petitioner to file a
subsequent petition under applicable law.
   ‘‘(e) In a case in which the rebuttable presumption of delay . . . 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 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 demonstrated good
cause for the delay, the court shall dismiss the petition. For the purposes
of this subsection, good cause includes, but is not limited to, the discovery
of new evidence which materially affects the merits of the case and which
could not have been discovered by the exercise of due diligence in time to
meet the requirements of subsection . . . (d) of this section. . . .’’
   2
     In the first habeas petition, the petitioner claimed that his criminal trial
counsel, Attorney Claud E. Chong, rendered ineffective assistance in that
he failed to object to Judge D’Addabbo’s response to a note sent out by the
jury regarding the element of intent required for a murder conviction, thereby
failing to preserve the issue for appeal.
   3
     Although Judge Fuger’s memorandum of decision is dated January 20,
2011, it was filed on January 24, 2011.
   4
     In his second habeas petition, the petitioner claimed that his prior habeas
counsel, Attorney Bruce B. McIntyre, rendered ineffective assistance in that
he failed (1) to present claims that the petitioner felt were the strongest,
(2) to properly present evidence of a report from a clinical neurologist to
establish that the petitioner suffered mental deficiencies, (3) to properly
question his criminal trial counsel, Attorney Claud E. Chong, to establish
that he was constitutionally ineffective, and (4) to present evidence to
establish that the petitioner was medicated before, during, and after his
criminal trial.
   5
     The judgment rendered on the petitioner’s first habeas petition was a
final judgment, pursuant to § 52-470 (d), on August 8, 2011. See General
Statutes § 52-470 (d) (‘‘[i]n 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’’ (emphasis added)).
   6
     The petitioner requests a remand for a new show cause hearing on the
basis that ‘‘the parties to the proceeding were at least somewhat unclear
about the proper procedure and parameters for the [show] cause hearing.’’
The petitioner contends that, ‘‘[although] the habeas court did not specifi-
tainty about the parameters [of the show cause hearing], and did not specifi-
cally offer the opportunity to present witnesses.’’
    At the show cause hearing, the court stated that, ‘‘pursuant to § 52-470
[(e)] . . . the petitioner shall have a meaningful opportunity to investigate
the basis for delay and respond to the order. And so we’re here [to do]
that.’’ The court then asked the petitioner’s counsel, ‘‘so counsel . . . what
do you wish to present?’’ (Emphasis added.) The petitioner did not request
to present testimony. Pursuant to the court’s invitation, the petitioner offered
the 2005 report as an exhibit. The respondent objected to the court consider-
ing the 2005 report as a full exhibit on the basis that the 2005 report was
hearsay and that the respondent was not afforded the opportunity to review
it. In determining the contested admissibility of the 2005 report as an exhibit,
the court noted that ‘‘the parameters of this hearing are . . . not really well
defined . . . .’’ After hearing argument from both parties, the court decided
that it ‘‘sounds like the matters contained in the [2005 report] go to the
petitioner’s claim that there is good cause, because it affected him in some
way from being able to pursue the timely filing of the subsequent habeas
petition. I’m going to admit [the 2005 report] as a full exhibit for purposes
of this hearing.’’ The court additionally allowed argument from both parties.
Finally, before concluding the hearing, the court observed that the petitioner
‘‘wishe[d] to address the [c]ourt’’ and advised the petitioner’s counsel, ‘‘[w]hy
don’t you talk to him first and see what it is he wants to say.’’ The court
then heard statements regarding what the petitioner wished to add.
    In Kelsey v. Commissioner of Correction, 

329 Conn. 711

, 721, 

189 A.3d 578

(2018), our Supreme Court recognized that ‘‘§ 52-470 (e) provides [little]
detail regarding the procedures by which a petitioner may rebut the presump-
tion that there was no good cause for a delay in filing the petition.’’ ‘‘Nothing
in subsection (e) expressly addresses whether the petitioner may present
argument or evidence, or file exhibits, or whether and under what circum-
stances the court is required to hold a hearing, if the court should determine
that doing so would assist it in making its determination. The only express
procedural requirement is stated broadly. The court must provide the peti-
tioner with a ‘meaningful opportunity’ both to investigate the basis for the
delay and to respond to the order to show cause.’’

Id., 722.

‘‘The lack
of specific statutory contours as to the required ‘meaningful opportunity’
suggests that the legislature intended for the court to exercise its discretion
in determining, considering the particular circumstances of the case, what
procedures should be provided to the petitioner in order to provide him
with a meaningful opportunity, consistent with the requirements of due
process, to rebut the statutory presumption.’’

Id., 723.

Because the habeas
court considered all of the evidence that the petitioner presented at the
show cause hearing, we conclude that it provided the petitioner with a
meaningful opportunity to rebut the statutory presumption in accordance
with § 52-470 (e). Therefore, we reject the petitioner’s request for a remand
for a new show cause hearing.
    7
      The respondent made no argument with respect to the 2005 report
because the petitioner’s counsel had provided it to the respondent only
that day.
    8
      In addressing the petitioner’s deficiencies set forth in the 2005 report,
the court found: ‘‘[T]he court finds that the evidence submitted plainly shows
that the petitioner has experienced mental deficits since a very young age.
[The 2005 report] chronicles his numerous psychiatric hospitalizations and
psychological evaluations beginning at age six. He has at times reported
auditory hallucinations and has been prescribed medication for it. He has,
at various times over his life, been subject to IQ testing that has placed him
in a variety of ranges, from borderline range of intelligence . . . to a full
scale IQ of 102, which is average. . . . Testing conducted by the neuropsy-
chologist in 2005 resulted in a full scale IQ of 88 or 94, depending on the
test. . . . The petitioner’s gestational development was negatively impacted
by his mother’s regular alcohol use during her pregnancy . . . and there
are indications from his pediatrician that he had brain damage from an early
age. There are undoubtedly general developmental delays . . . and evi-
dence of working memory deficits, poor deployment of attention, and execu-
tive dysfunction. . . . The court accepts that his weaknesses with cognitive
flexibility and problem solving make him less adept at processing informa-
tion.’’ (Citations omitted; internal quotation marks omitted.)
    The habeas court found that ‘‘[t]he [2005] neuropsychological report
makes reference to psychiatric illnesses and developmental disabilities. The
court consider[ed] the entirety of the petitioner’s deficiencies.’’
    9
      The petitioner claims on appeal that the court erred in finding that the
‘‘four year period’’ between the date of final judgment on the first habeas
petition (August, 2011) and the filing of the second habeas petition (August,
2015) was relevant to the determination of whether good cause exists to
excuse the late filing. In its memorandum of decision, the court stated that,
‘‘[although] the untimely nature of the petition is measured against the
October 1, 2014 date, the four year period since [the petitioner’s] appeal
was withdrawn is relevant to the determination of whether good cause
exists to excuse the late filing. The petitioner had, in essence, that entire
period to file a second petition for writ of habeas corpus to diligently pursue
his legal rights.’’
    We are not persuaded that the court abused its discretion in concluding
that the petitioner failed to establish good cause for the delay merely because
it referenced as relevant the ‘‘four year period’’ between the final judgment
on the first habeas petition and the filing of the second habeas petition.
First, the court prefaced this statement with the recognition that ‘‘the
untimely nature of the petition is measured against the October 1, 2014 date
. . . .’’ Second, the court’s determination that the petitioner failed to show
good cause centered on its finding that the petitioner had failed to show
how the mental deficiencies set forth in the 2005 report contributed to the
delay in filing the second habeas petition, a failing that is unrelated to the
time period between filings.
    10
       The petitioner claims that ‘‘[t]he habeas court erred by directly applying
the test for delay that is applied by the federal courts when addressing
violations of the federal statute of limitations.’’ The petitioner maintains
that, ‘‘[although] the habeas court reasonably looked to the federal habeas
tolling case law for guidance, it should have done so with the understanding
that the judicially created doctrine applicable to federal tolling claims would
logically be more severe than the appropriate analysis to be applied to the
rebuttable presumption [set forth in § 52-470 that] the habeas court faced.’’
The respondent argues that ‘‘the habeas court [merely] analogized § 52-470
(e) to the federal statute of limitations. . . . In doing so, the habeas court
noted that, in the context of mental illness, in order to satisfy the federal
equitable tolling standard a petitioner was required to demonstrate an
‘ ‘‘extraordinary circumstance’’ severely impairing the ability to comply with
the filing deadline, despite diligent efforts to do so.’ [See Bolarinwa v.
Williams, 

593 F.3d 226

, 231 (2d Cir. 2010).] Nevertheless, in its analysis of
the petitioner’s claim of good cause, the habeas court did not apply the
doctrine of equitable tolling or utilize the same standard. . . . Rather, it
simply concluded that the petitioner had shown no connection between his
deficits and his failure to timely file.’’ We agree with the respondent.
    By ‘‘applying the reasoning of Bolarinwa . . . to § 52-470 and the facts
of this case,’’ the court derived the principle that ‘‘[t]he petitioner must
prove that [his] deficits are the reason for the delay and it is these deficits
that prevented him from timely filing the petition.’’ (Emphasis added.) Ulti-
mately, the court concluded that ‘‘the petitioner has failed to prove how his
deficits affected his ability to timely file this second petition.’’ The court’s
reasoning was consistent with the standard to rebut successfully the pre-
sumption of unreasonable delay in § 52-470 that this court recently set forth
in Kelsey v. Commissioner of Correction, 

202 Conn. App. 21

, 34,              A.3d
       (2020), cert. granted, 

336 Conn. 912

,    A.3d      (2021) (‘‘[w]e conclude
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 contrib-
uted to the delay’’ (emphasis added)). We, therefore, decline to conclude
that the court erred in its analysis of the petitioner’s claim of good cause
for delay.
    11
       The petitioner does not dispute that the filing of the second habeas
petition was untimely under § 52-470 (d).
    12
       ‘‘It is, of course, axiomatic that in applying the abuse of discretion
standard, [t]o the extent that factual findings are challenged, this court
cannot disturb the underlying facts found by the habeas court unless they
are clearly erroneous . . . .’’ (Internal quotation marks omitted.) Kelsey v.
Commissioner of 

Correction, supra

, 

202 Conn. App. 36

n.12.

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