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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 appellant (petitioner).

Rocco A. Chiarenza, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, 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 certification 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 Statutes] § 52-470 (b) prevents a reviewing court from hearing 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 incorporated 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 merits of the petitioner’s underlying claims to determine

whether the habeas court reasonably determined that

the petitioner’s appeal was frivolous.’’ (Emphasis omitted; internal quotation marks omitted.) Tutson v. Commissioner 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. Warden, Superior Court, judicial district of Tolland, Docket

No. CV-05-4000842 (June 25, 2009). He argues that there
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 Correction, 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 denying petition for certification to appeal merits of claim

when claim at issue was notraised in petition for certification to appeal), cert. denied, 273 Conn. 908, 870 A.2d

1079 (2005).

‘‘As our standard ofreview 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 concluding 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. Warden, 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. Commissioner of Correction, 154 Conn. App. 625, 630,

A.3d (2015), ‘‘we find no indication that the petitioner 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. Warden, Superior Court, judicial district of Tolland, Docket

No. CV-13-4005634 (October 22, 2013). He argues that

his petition alleged claims of ‘‘prosecutorial [impropriety], ineffective assistance of counsel, fourth amendment violations as a result of illegal wiretaps, and [a

claim] that the petitioner was incompetent.’’ He contends that the court improperly concluded that the petition 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 considered previously, it never was properly litigated

because successor counsel was not appointed in an

earlier habeas proceeding, forcing the petitioner to proceed 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 discretion 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 attachments, was approximately fifty pages long, concerned

a claim of ineffective assistance of criminal trial counsel. In other words, the petitioner himself narrowed his

petition to focus solely on another claim of ineffective

assistance. The habeas court, therefore, properly dismissed the petition, concluding that it was successive.1

In response to this petition for a writ of habeas corpus, 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 challenge his conviction from 2005. [The petitioner], since

his conviction in 2005 . . . has filed, including the matters 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 twentynine 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 petitioner] has filed to challenge the same conviction.’’

The court asked the petitioner why his current petitions 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 counsel’s testimony at an earlier habeas proceeding and

counsel’s ineffectiveness during the petitioner’s criminal 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 subpoenaed . . . .

‘‘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 Attorney 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 petition 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 doctrine of res judicata . . . [is limited] to claims that actually 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 omitted.) 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 assistance of counsel, which was a claim previously litigated.

During the show cause hearing, the petitioner specifically 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 different factual allegations, supported by different legal

arguments or articulated in different language. . . .

However they are proved, the grounds that the petitioner asserted are identical in that each alleges ineffective 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 assistance 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 petitioner’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.