Damato v. Commissioner of Correction ( 2015 )

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GARY DAMATO v. COMMISSIONER
OF CORRECTION
(AC 35727)
(AC 36201)
(AC 36378)
Keller, Mullins and Pellegrino, Js.
Argued January 14—officially released March 24, 2015
(Appeals from Superior Court, judicial district of
Tolland, Swords, Newson, Js.)
Craig A. Sullivan, assigned counsel, for the appel-
lant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Kelly A. Masi, senior assistant state’s attorney,
for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Gary Damato, appeals
following the denial of his petitions for certification to
appeal from the judgments of the habeas court denying
and dismissing his petitions for a writ of habeas corpus.
Because the petitioner has failed to demonstrate that
the court improperly denied the petitions for certifica-
tion to appeal, we dismiss the appeals.
Initially, we set forth the applicable standard of
review and procedural hurdles that the petitioner must
surmount to obtain appellate review of the merits of a
habeas court’s denial of the habeas petitions following
the court’s denial of the petitions for certification to
appeal. ‘‘In Simms v. Warden, 229 Conn. 178, 187, 640
A.2d 601 (1994), we concluded that . . . [General Stat-
utes] § 52-470 (b) prevents a reviewing court from hear-
ing the merits of a habeas appeal following the denial of
certification to appeal unless the petitioner establishes
that the denial of certification constituted an abuse of
discretion by the habeas court. In Simms v. Warden,
230 Conn. 608, 615–16, 646 A.2d 126 (1994), we incorpo-
rated the factors adopted by the United States Supreme
Court in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S.
Ct. 860, 112 L. Ed. 2d 956 (1991), as the appropriate
standard for determining whether the habeas court
abused its discretion in denying certification to appeal.
This standard requires the petitioner to demonstrate
that the issues are debatable among jurists of reason;
that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve
encouragement to proceed further. . . . A petitioner
who establishes an abuse of discretion through one of
the factors listed above must then demonstrate that the
judgment of the habeas court should be reversed on its
merits. . . . In determining whether the habeas court
abused its discretion in denying the petitioner’s request
for certification, we necessarily must consider the mer-
its of the petitioner’s underlying claims to determine
whether the habeas court reasonably determined that
the petitioner’s appeal was frivolous.’’ (Emphasis omit-
ted; internal quotation marks omitted.) Tutson v. Com-
missioner of Correction, 144 Conn. App. 203, 214–15,
72 A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d
145 (2013).
We now consider the merits of the claims raised by
the petitioner in each of his appeals.
I
AC 35727
In AC 35727, the petitioner claims that the habeas
court improperly denied his petition for certification
to appeal from the judgment of the court denying his
petition for a writ of habeas corpus in Damato v. War-
den, Superior Court, judicial district of Tolland, Docket
was merit to his underlying claim that the habeas court
improperly granted counsel’s motion to withdraw and
improperly declined to appoint new counsel. We are
unable to conclude that the court abused its discretion
in denying the petition for certification to appeal
because this issue was not raised in the petition for
certification. See Tutson v. Commissioner of Correc-
tion, supra, 144 Conn. App. 216–17 (when petitioner
does not raise claim in petition for certification to
appeal, ‘‘we cannot conclude that the court abused its
discretion on that ground’’); Mercado v. Commissioner
of Correction, 85 Conn. App. 869, 872, 860 A.2d 270(2004) (habeas court could not abuse discretion in deny-
ing petition for certification to appeal merits of claim
when claim at issue was not raised in petition for certifi-
cation to appeal), cert. denied, 273 Conn. 908, 870 A.2d
1079 (2005).
‘‘As our standard of review set forth previously makes
clear, an appeal following the denial of a petition for
certification to appeal from the judgment denying a
petition for a writ of habeas corpus is not the appellate
equivalent of a direct appeal from a criminal conviction.
Our limited task as a reviewing court is to determine
whether the habeas court abused its discretion in con-
cluding that the petitioner’s appeal is frivolous. Thus,
we review whether the issues for which certification
to appeal was sought are debatable among jurists of
reason, a court could resolve the issues differently or
the issues are adequate to deserve encouragement to
proceed further. . . . Because it is impossible to
review an exercise of discretion that did not occur, we
are confined to reviewing only those issues which were
brought to the habeas court’s attention in the petition
for certification to appeal.’’ (Internal quotation marks
omitted.) Blake v. Commissioner of Correction, 150
Conn. App. 692, 696–97, 91 A.3d 535, cert. denied, 312
Conn. 923, 94 A.3d 1202 (2014); see also Kowalyshyn
v. Commissioner of Correction, 155 Conn. App. 384,
389, A.3d (2015). Accordingly, the petitioner is
unable to establish that the habeas court abused its
discretion in denying certification to appeal.
II
AC 36201
In AC 36201, the petitioner claims that the habeas
court improperly denied his petition for certification to
appeal after dismissing his petition for a writ of habeas
corpus on the ground of res judicata in Damato v. War-
den, Superior Court, judicial district of Tolland, Docket
No. CV-13-4005546 (August 30, 2013). He argues that
his claims were not res judicata. The respondent, the
Commissioner of Correction, argues that the court
properly determined that this was a successive petition,
and, therefore, that it properly denied the petition for
certification to appeal. A review of the record in this
case leads us to conclude that the court denied the
petition for certification to appeal, not on its merits,
but, because it was untimely. The petitioner has not
challenged the habeas court’s actual basis for denying
his petition for certification to appeal, which was that
the petition was untimely.
Accordingly, as we recently held in Collazo v. Com-
missioner of Correction, 154 Conn. App. 625, 630,
A.3d (2015), ‘‘we find no indication that the peti-
tioner is challenging, on appeal, the habeas court’s
denial of his petition on the basis of his failure to file
the petition by the statutory deadline mandated under
§ 52-470 (g), which constituted the actual basis for the
court’s denial of the petition. As a result of his failure
to address the court’s conclusion that his petition for
certification to appeal was untimely, the petitioner has
not met his burden to prove that the court abused its
discretion in denying the petition.’’
III
AC 36378
In AC 36378, the petitioner claims that the habeas
court improperly denied his petition for certification to
appeal after dismissing his petition for a writ of habeas
corpus on the ground of res judicata in Damato v. War-
den, Superior Court, judicial district of Tolland, Docket
No. CV-13-4005634 (October 22, 2013). He argues that
his petition alleged claims of ‘‘prosecutorial [impropri-
ety], ineffective assistance of counsel, fourth amend-
ment violations as a result of illegal wiretaps, and [a
claim] that the petitioner was incompetent.’’ He con-
tends that the court improperly concluded that the peti-
tion was successive because it alleged only claims of
ineffective assistance involving criminal trial counsel,
Attorney Donald O’Brien, which previously had been
considered by the court. He further contends that, even
though his claim of ineffective assistance had been con-
sidered previously, it never was properly litigated
because successor counsel was not appointed in an
earlier habeas proceeding, forcing the petitioner to pro-
ceed as a self-represented party when asserting his
claim of ineffective assistance of criminal trial counsel.
We conclude that the court did not abuse its discre-
tion in denying the petition for certification to appeal
because the petitioner told the habeas court that his
petition for a writ of habeas corpus, which, with attach-
ments, was approximately fifty pages long, concerned
a claim of ineffective assistance of criminal trial coun-
sel. In other words, the petitioner himself narrowed his
petition to focus solely on another claim of ineffective
assistance. The habeas court, therefore, properly dis-
missed the petition, concluding that it was successive.1
In response to this petition for a writ of habeas cor-
pus, and another petition that alleged the same claims
but is not the subject of this appeal, the habeas court
held a show cause hearing. During the hearing, the
court clarified that the petitioner was not seeking ‘‘to
challenge the representation [that he] received in his
most recent habeas, [but that he was seeking] to chal-
lenge his conviction from 2005. [The petitioner], since
his conviction in 2005 . . . has filed, including the mat-
ters that the court is discussing today, sixteen habeas
petitions . . . fifteen of those being since 2007, and
[another] fourteen civil actions against individuals that
were involved in one way or another in his—let me
just make sure my numbers are correct. I’m sorry, that
would be fifteen civil actions. So, that’s a total of twenty-
nine actions [that the petitioner] has filed . . . . So, if
my math serves me correct, that’s approximately
twenty-eight actions in under six years that [the peti-
tioner] has filed to challenge the same conviction.’’
The court asked the petitioner why his current peti-
tions should not be dismissed because he was
attempting to litigate the same issues. The petitioner
responded in relevant part by stating that ‘‘not one
of those petitions has ever been heard properly.’’ The
petitioner then began to discuss his criminal trial coun-
sel’s testimony at an earlier habeas proceeding and
counsel’s ineffectiveness during the petitioner’s crimi-
nal trial. The following relevant colloquy then occurred:
‘‘The Court: So, we’re back to you attempting to make
a claim of ineffectiveness against Attorney O’Brien? Is
that . . . what the most recent petitions are about?
‘‘The Petitioner: That was for his ineffectiveness for
certain issues.
‘‘The Court: Okay, the two most recent petitions?
‘‘The Petitioner: No, this one now is for his failure
. . . to put on any witnesses in my defense. . . .
‘‘The Court: . . . [You] are attempting to make
claims for ineffectiveness—
‘‘The Petitioner: Yes.
‘‘The Court: Against your trial attorney?
‘‘The Petitioner: Exactly.
‘‘The Court: Okay.
‘‘The Petitioner: For his ineffectiveness for failure to
have any defense on—any defense for me and failure
to put on witnesses in my favor . . . [who] were sub-
poenaed . . . .
‘‘The Court: At your criminal trial we’re talking
about? Correct?
‘‘The Petitioner: At my criminal trial, yes, Your Honor.
‘‘The Court: Okay, and you brought, in 2007 or 2008,
you had a trial where you brought maybe different
claims, but you brought a claim of ineffective assistance
against Attorney O’Brien, right?
‘‘The Petitioner: Exactly, for other issues.’’
The court, then, dismissed the petition as successive,
the petitioner having agreed specifically that he, again,
was raising an issue of ineffective assistance by Attor-
ney O’Brien and that he previously had brought such
a claim, although for other alleged deficiencies. The
petitioner did not inform the habeas court that his peti-
tion involved more than an ineffective assistance of
counsel claim.
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 . . . .’’
‘‘Our courts have repeatedly applied the doctrine of
res judicata to claims duplicated in successive habeas
petitions filed by the same petitioner. . . . Specifically,
in the habeas context, in the interest of ensuring that
no one is deprived of liberty in violation of his or her
constitutional rights . . . the application of the doc-
trine of res judicata . . . [is limited] to claims that actu-
ally have been raised and litigated in an earlier
proceeding.’’ (Citation omitted; internal quotation
marks omitted.) Moody v. Commissioner of Correction,
127 Conn. App. 293, 297–98, 14 A.3d 408, cert. denied,
300 Conn. 943, 17 A.3d 478 (2011).
‘‘[A] petitioner may bring successive petitions on the
same legal grounds if the petitions seek different relief.
. . . But where successive petitions are premised on
the same legal grounds and seek the same relief, the
second petition will not survive a motion to dismiss
unless the petition is supported by allegations and facts
not reasonably available to the petitioner at the time
of the original petition.’’ (Internal quotation marks omit-
ted.) Wright v. Commissioner of Correction, 147 Conn.
App. 510, 515, 83 A.3d 1166, cert. denied, 311 Conn. 922,
86 A.3d 467 (2014).
In the present matter, the habeas court found that
the petitioner was raising a claim of ineffective assis-
tance of counsel, which was a claim previously litigated.
During the show cause hearing, the petitioner specifi-
cally agreed that he previously had raised a claim of
ineffective assistance regarding Attorney O’Brien and
that he was asserting the same claim in the current
petition, but that the allegations in support of this
claim were different. Although we recognize that the
petitioner sets forth different allegations in support of
his claim of ineffective assistance, the claim still is one
of ineffective assistance of counsel involving Attorney
O’Brien. As we explained in Alvarado v. Commissioner
of Correction, 153 Conn. App. 645, 651, 103 A.3d 169,
cert. denied, 315 Conn. 910, 105 A.3d 901 (2014): ‘‘A
ground is a sufficient legal basis for granting the relief
sought. . . . Identical grounds may be proven by differ-
ent factual allegations, supported by different legal
arguments or articulated in different language. . . .
However they are proved, the grounds that the peti-
tioner asserted are identical in that each alleges ineffec-
tive assistance of counsel, and, therefore, the habeas
petition was properly dismissed.’’ (Citations omitted;
internal quotation marks omitted.)
The petitioner makes no claim that he is seeking
different relief in this habeas proceeding from the relief
he sought in prior petitions alleging ineffective assis-
tance of counsel or that there are newly available facts
or evidence not reasonably available at the time of
his original petition. Accordingly, we conclude that the
court properly declined to reach the merits of the peti-
tioner’s successive petition. Furthermore, we conclude
that the court did not abuse its discretion in denying
the petition for certification to appeal.
The appeals are dismissed.
1
We note that in docket number CV-05-4000842, the habeas court, in a
forty page decision, fully considered the petitioner’s extensive claims of
ineffective assistance of criminal trial counsel.