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*********************************************** 
SILAS HARRIS v. COMMISSIONER OF CORRECTION

(AC 42165)

Bright, C. J., and Alvord and Bellis, Js.

Syllabus

The petitioner, who had been convicted of various crimes in connection

with a riot at a correctional institution during which he assaulted a

correctional officer, sought a writ of habeas corpus, claiming ineffective

assistance of his appellate counsel and his prior habeas counsel. Following a hearing, the habeas court dismissed, pursuant to the applicable rule

of practice (§ 23-29 (3)) governing successive petitions, the petitioner’s

habeas petition with respect to his claim of ineffective assistance of

appellate counsel and denied the petition with respect to the claims of

ineffective assistance of prior habeas counsel. Thereafter, the habeas

court denied the petition for certification to appeal, and the petitioner

appealed to this court. Held:

1. The habeas court did not abuse its discretion in denying the petition for

certification to appeal, the petitioner having failed to demonstrate that

his claims involved issues that were debatable among jurists of reason,

that a court could resolve the issues in a different manner or that the

questions raised were adequate to deserve encouragement to proceed

further.

2. The petitioner could not prevail on his claim that the habeas court improperly denied his habeas petition with respect to his claim of ineffective

assistance of his appellate counsel; although, contrary to that court’s

determination, the petitioner’s claim was not barred by the doctrine of

successive petitions, the petitioner having sought different relief from

that which he had sought in his first habeas petition, this court concluded

that the petitioner’s claim of ineffective assistance of appellate counsel

failed, as the petitioner could not demonstrate that he suffered prejudice

as a result of appellate counsel’s alleged deficient performance in failing

to challenge on direct appeal the trial court’s denial of his motion to

sever his trial from that of his codefendant, the petitioner having failed

to demonstrate that there was a reasonable probability that he would

have prevailed on direct appeal had appellate counsel challenged the

trial court’s denial of that motion.

3. Because this court concluded that the petitioner’s claim of ineffective

assistance of his appellate counsel failed, his claim of ineffective assistance of his prior habeas counsel also failed, as it was dependent on

whether appellate counsel rendered ineffective assistance on direct

appeal.

Argued January 13—officially released July 20, 2021

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland and tried to the court, Hon. Edward J. Mullarkey, judge trial referee; judgment dismissing in part and

denying in part the petition; thereafter, the court denied

the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

Vishal K. Garg, for the appellant (petitioner).

Nancy L. Chupak, senior assistant state’s attorney,

with whom, on the brief, were Matthew C. Gedansky,

state’s attorney, and Jo Anne Sulik, senior assistant

state’s attorney, for the appellee (respondent).
Opinion

ALVORD, J. The petitioner, Silas Harris, appeals following the denial of his petition for certification to

appeal from the judgment of the habeas court dismissing in part and denying in part his amended petition

for a writ of habeas corpus. On appeal, the petitioner

claims that the court abused its discretion in denying

his petition for certification to appeal and improperly

denied his amended petition for a writ of habeas corpus,

in which he alleged ineffective assistance of (1) appellate counsel and (2) prior habeas counsel. We disagree

and, accordingly, dismiss the petitioner’s appeal.

Our Supreme Court on direct appeal summarized the

underlying facts as reasonably found by the jury: ‘‘On

April 19, 1990, at approximately 8:30 p.m., a fight broke

out in the east mess hall of the Connecticut Correctional

Institution at Somers, involving seventy-five to one hundred inmates who had gathered to share a meal in honor

of the Islamic religious feast, Ramadan. Thirty-five correction officers responded in an attempt to restore

order. During the incident, the [petitioner] injured [C]orrection [O]fficer Craig Jacobsen with a sharp instrument.’’ State v. Harris, 227 Conn. 751, 754, 631 A.2d

309 (1993).

‘‘The [petitioner] was charged in a substitute information with two counts of assault in the first degree in

violation of General Statutes (Rev. to 1989) § 53a-59 (a)

(1) and (3), and one count each of assault in the second

degree in violation of General Statutes § 53a-60 (a) (5),

rioting at a correctional institution in violation of General Statutes § 53a-179b, and possession of a weapon

or dangerous instrument in a correctional institution in

violation of General Statutes § 53a-174a. . . . He was

found guilty by a jury of assault in the second degree,

rioting at a correctional institution, and possession of

a weapon or dangerous instrument in a correctional

institution. He was also convicted of being a persistent

serious felony offender in violation of General Statutes

§ 53a-40 (b). He was sentenced as a persistent serious

felony offender to a term of imprisonment of ten years

on the assault count and twenty-five years on the rioting

count to run consecutively, and to a term of twentyfive years on the possession of a weapon count to run

concurrently, for a total effective sentence of thirtyfive years [of] imprisonment [(Tolland conviction)].

Thereafter, he appealed from the judgment of conviction to [our Supreme Court] pursuant to General Statutes § 51-199 (b) (3).’’ (Footnotes omitted.) Id., 752–54.

On direct appeal to our Supreme Court, the petitioner

was represented by Attorney Daniel S. Fabricant. The

petitioner challenged the Tolland conviction on the following grounds: (1) ‘‘there was insufficient evidence to

support his conviction because the record [did] not

contain proof beyond a reasonable doubt of his identity
as Jacobsen’s assailant’’; id., 757; (2) ‘‘the trial court

improperly denied him access to Jacobsen’s personnel

file . . . [and] [w]ithout access to the file . . . he was

denied his constitutional right to impeachment information under Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194, 10 L. Ed. 2d 215 (1963), and his constitutional

right to confront witnesses against him as guaranteed

by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution’’; State v. Harris, supra, 227 Conn. 759–60; and (3)

‘‘the trial court abused its discretion by failing to read

back to the jury certain portions of Jacobsen’s testimony that counsel and the court earlier had agreed

would be read.’’ Id., 769. Our Supreme Court rejected

the petitioner’s claims and affirmed the judgment of

conviction. Id., 772.

In 1997, the petitioner filed his first petition for a writ

of habeas corpus challenging, inter alia, his Tolland

conviction. After the appointment of Attorney David

Rozwaski as habeas counsel, the habeas petition was

amended to allege ineffective assistance by (1) Attorney

John Donovan, his trial defense counsel in a New Haven

criminal matter (New Haven conviction), for which the

petitioner was incarcerated when he committed the

offenses resulting in the Tolland conviction,1

(2) Attorney Joette Katz, his appellate counsel in the direct

appeal from the New Haven conviction,2

(3) Attorney

John Watson, his habeas counsel in a habeas action

challenging the New Haven conviction, and (4) Fabricant, his appellate counsel in the direct appeal from

the Tolland conviction.3 The habeas court, Fuger, J.,

either denied these claims or found them abandoned,

and the petitioner’s appeal therefrom was dismissed by

this court. Harris v. Commissioner of Correction, 92

Conn. App. 903, 884 A.2d 22, cert. denied, 276 Conn.

933, 890 A.2d 572 (2005).

In 2011, the petitioner filed a second petition for a writ

of habeas corpus challenging the Tolland conviction.

Attorney Joseph Barbarie was appointed as habeas

counsel. The petitioner’s second habeas petition alleged

that he had been illegally sentenced. On May 8, 2014,

the habeas court, Cobb, J., dismissed the habeas petition

on the ground of procedural default. The petitioner

appealed from the denial of his petition for certification

to appeal but subsequently withdrew that appeal.

On March 2, 2015, the petitioner commenced the present habeas action. In a three count amended petition

filed September 5, 2017, the petitioner claimed ineffective assistance by (1) Fabricant, his appellate counsel,

(2) Rozwaski, his first habeas counsel, and (3) Barbarie,

his second habeas counsel.

The matter was tried before the court, Hon. Edward

J. Mullarkey, judge trial referee, on February 13 and

20, 2018. The petitioner testified and presented the testimony of his trial counsel, Attorney David Kritzman,
his first habeas counsel, Rozwaski, and his appellate

counsel, Fabricant. The petitioner entered into evidence

transcripts, copies of court documents, pleadings,

briefs, and court decisions. No expert testified. At the

request of the court, both parties filed posttrial briefs.

In its July 19, 2018 memorandum of decision, the

court rejected the petitioner’s claims. With respect to

count one, the court concluded that ‘‘the petitioner is

barred . . . from again litigating directly that Fabricant rendered ineffective assistance on appeal.’’ The

court reasoned that ‘‘[t]his claim was previously raised

and litigated by the petitioner, notwithstanding the first

habeas court deeming the claim abandoned at trial

because the petitioner failed to present supporting evidence.’’ Accordingly, the court dismissed the petitioner’s claim in count one ‘‘pursuant to Practice Book

§ 23-29 (3) because it asserts the same ground (i.e.,

ineffective assistance of appellate counsel Fabricant)

previously denied and fails to state new facts or to

proffer new evidence not reasonably available at the

time of the prior petition.’’

With respect to counts two and three, the court first

determined that ‘‘[t]he petitioner’s claims . . . are

premised on the allegations of ineffective assistance by

. . . Fabricant, as alleged in count one. . . . Thus, to

prove prior habeas counsel were ineffective as alleged,

the petitioner must prove also that appellate counsel

was ineffective.’’ (Citation omitted.) Ultimately, the

court determined that ‘‘the petitioner failed to prove

that any counsel performed deficiently and clearly did

not show that the outcome of the direct appeal or a prior

habeas [action] would have been different.’’ Thereafter,

the court denied the petition for certification to appeal,

and this appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, the petitioner claims that the court abused

its discretion in denying his petition for certification to

appeal and improperly denied his amended petition for

a writ of habeas corpus based on claims of ineffective

assistance of (1) his appellate counsel, Fabricant, and

(2) his first habeas counsel, Rozwaski.

I

We first address the petitioner’s claim that the court

abused its discretion in denying his petition for certification to appeal. We disagree.

General Statutes § 52-470 (g) provides: ‘‘No appeal

from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has

been convicted of a crime in order to obtain such person’s release may be taken unless the appellant, within

ten days after the case is decided, petitions the judge

before whom the case was tried or, if such judge is

unavailable, a judge of the Superior Court designated

by the Chief Court Administrator, to certify that a ques-
tion is involved in the decision which ought to be

reviewed by the court having jurisdiction and the judge

so certifies.’’

‘‘As our Supreme Court has explained, one of the

goals our legislature intended by enacting this statute

was to limit the number of appeals filed in criminal

cases and [to] hasten the final conclusion of the criminal

justice process . . . . [T]he legislature intended to discourage frivolous habeas appeals. . . . [Section] 52-

470 (b)4 acts as a limitation on the scope of review, and

not the jurisdiction, of the appellate tribunal. . . .

‘‘Faced with a habeas court’s denial of a petition for

certification to appeal, a petitioner can obtain appellate

review of the [disposition] of his [or her] petition for

[a writ of] habeas corpus only by satisfying the twopronged test enunciated by our Supreme Court in

Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994),

and adopted in Simms v. Warden, 230 Conn. 608, 612,

646 A.2d 126 (1994). First, he [or she] must demonstrate

that the denial of his [or her] petition for certification

constituted an abuse of discretion. . . . Second, if the

petitioner can show an abuse of discretion, he [or she]

must then prove that the decision of the habeas court

should be reversed on its merits. . . .

‘‘To prove an abuse of discretion, the petitioner must

demonstrate that the [resolution of the underlying claim

involves issues that] 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. . . .

‘‘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. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by [our Supreme

Court] for determining the propriety of the habeas

court’s denial of the petition for certification.’’ (Footnote in original; internal quotation marks omitted.)

Whistnant v. Commissioner of Correction, 199 Conn.

App. 406, 414–15, 236 A.3d 276, cert. denied, 335 Conn.

969, 240 A.3d 286 (2020).

The petitioner requested certification to appeal the

following issues: (1) ‘‘Did the [h]abeas [c]ourt err in

holding that [the] petitioner’s right to effective assistance of appellate counsel was not violated by . . .

Fabricant’’; (2) ‘‘[d]id the [h]abeas [c]ourt err in holding

that the petitioner’s right to effective assistance of

habeas counsel was not violated by . . . Rozwaski’’;

and (3) ‘‘[d]id the [h]abeas [c]ourt err in holding that

the petitioner’s right to effective assistance of habeas
counsel was not violated by . . . Barbarie.’’ The petitioner does not pursue on appeal the third issue regarding the performance of his second habeas counsel,

Barbarie.5

For the reasons set forth in parts II and III of this

opinion, we conclude that the petitioner has failed to

demonstrate that (1) his claims involve issues that are

debatable among jurists of reason, (2) a court could

resolve the issues in a different manner, or (3) the

questions are adequate to deserve encouragement to

proceed further. See Whistnant v. Commissioner of

Correction, supra, 199 Conn. App. 415. Thus, we conclude that the habeas court did not abuse its discretion

in denying the petition for certification to appeal.

II

Turning to the petitioner’s first substantive claim on

appeal, the petitioner asserts that the court improperly

denied his amended petition for a writ of habeas corpus

with respect to his claim of ineffective assistance of

appellate counsel, Fabricant.6 Specifically, the petitioner argues that his claim of ineffective assistance of

appellate counsel (1) ‘‘was not barred by the doctrine

of successive petitions with respect to his first habeas

proceeding’’ and (2) ‘‘should have been granted on its

merits.’’ We conclude that the court did not abuse its

discretion in denying the petition for certification to

appeal with regard to this claim.

A

The petitioner first argues that his ‘‘claim of ineffective assistance of appellate counsel was not barred by

the doctrine of successive petitions with respect to his

first habeas proceeding . . . .’’ In support of this argument, the petitioner contends that (1) ‘‘[he] sought different relief [at the first habeas] proceeding,’’ (2) ‘‘the

claim was not actually litigated on its merits at the

first habeas proceeding,’’ and (3) ‘‘the legal standard

applicable to the claim raised at the first [habeas] proceeding was different than the legal standard that

applied in this proceeding.’’7 We agree that the petitioner’s claim of ineffective assistance of his appellate counsel, Fabricant, is not barred by the doctrine of successive petitions.

The following additional facts and procedural history

are relevant to our discussion of this argument. Both

the petitioner’s first and present petitions for a writ

of habeas corpus alleged ineffective assistance of his

appellate counsel, Fabricant.

In count four of his first habeas petition, the petitioner alleged that Fabricant’s performance was deficient because ‘‘he did not raise on the direct appeal a

double jeopardy claim with respect to the prior convictions which were used in the persistent felony offender

charge and conviction.’’ Specifically, the petitioner

argued that evidence of ‘‘the possession of a sawed-off
shotgun conviction from his New Haven case should

not have been used as a ground for his conviction as

a persistent felony offender in his [Tolland] case.’’ The

petitioner therefore argued that ‘‘his conviction [as a

persistent felony offender] . . . was unlawful . . .

and should have been challenged on appeal.’’ As relief,

the petitioner requested that the habeas court vacate

and set aside the Tolland conviction for being a persistent felony offender. The habeas court, Fuger, J., found

that the petitioner had abandoned this claim of ineffective assistance by Fabricant. Harris v. Warden, Superior Court, judicial district of Tolland, Docket No. CV97-0002609 (June 24, 2003).

In count one of his present habeas petition, the petitioner alleges that Fabricant’s performance was deficient because he (1) ‘‘failed to challenge the trial court’s

improper denial of the petitioner’s motion to sever his

trial from that of his codefendant,’’ (2) ‘‘failed to challenge the trial court’s improper denial of the petitioner’s

request to transfer prosecution due to pervasive and

prejudicial pretrial media coverage,’’ (3) ‘‘failed to challenge [the] trial court’s error in denying the petitioner’s

multiple objections that the racial composition of the

jury pool did not represent a fair cross section of the

community,’’ (4) ‘‘failed to challenge the trial [court’s]

decision to require the petitioner to testify before the

jury in handcuffs and leg irons,’’ and (5) ‘‘failed to challenge the trial court’s improper denial of the petitioner’s

request to poll the jury immediately following [when]

the verdict of guilty was announced.’’ As relief, the

petitioner requested that the habeas court vacate the

Tolland conviction in its entirety.

In its response to the petitioner’s amended habeas

petition, the respondent, the Commissioner of Correction, contended that the petitioner’s claim is successive

and must be dismissed pursuant to Practice Book § 23-

29 (3). Specifically, the respondent argued that the petitioner is barred from relitigating the claim of ineffective

assistance by Fabricant because he previously raised

the same legal claim in a prior habeas petition. In

response, the petitioner argued that no court previously

had addressed the merits of his claim, and, therefore,

it is not successive.

In its memorandum of decision, the habeas court

found: ‘‘[T]he petitioner’s claims against Fabricant [in

the present habeas petition] are both more numerous

and broader than in the [first] habeas corpus petition.

. . . The legal basis in the [first] and the present petition—ineffective assistance by Fabricant on appeal

from the Tolland conviction—are identical. The five

grounds of deficient performance by Fabricant alleged

in the present [habeas petition] could have been raised

in the [first] habeas [petition], for the five purported

failures are based on the trial court record.’’ Accordingly, the habeas court dismissed the petitioner’s claim
of ineffective assistance of Fabricant pursuant to Practice Book § 23-29 (3).

Our standard of review is well established. ‘‘The conclusions reached by the [habeas] court in its decision

to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal

conclusions of the court are challenged, we must determine whether they are legally and logically correct . . .

and whether they find support in the facts in the

record.’’ (Internal quotation marks omitted.) Kondjoua

v. Commissioner of Correction, 201 Conn. App. 627,

632, 243 A.3d 352 (2020), cert. denied, 336 Conn. 907,

243 A.3d 1181 (2021).

‘‘Our courts have repeatedly applied the doctrine of

res judicata to claims duplicated in successive habeas

petitions filed by the same petitioner. . . . In fact, the

ability to dismiss a petition [if] it 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 is memorialized in Practice Book § 23-29 (3).’’8

(Internal quotation

marks omitted.) Gudino v. Commissioner of Correction, 191 Conn. App. 263, 270, 214 A.3d 383, cert. denied,

333 Conn. 924, 218 A.3d 67 (2019). ‘‘Thus, a subsequent

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.’’ (Internal quotation mark omitted.) Johnson v. Commissioner of Correction, 168 Conn. App. 294, 306, 145 A.3d 416, cert.

denied, 323 Conn. 937, 151 A.3d 385 (2016).

Nevertheless, ‘‘[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.) Parker v. Commissioner of

Correction, 169 Conn. App. 300, 309, 149 A.3d 174, cert.

denied, 324 Conn. 903, 151 A.3d 1289 (2016).

In the present habeas petition, the petitioner seeks

different relief for the claim of ineffective assistance of

Fabricant than he previously sought in his first habeas

petition. With respect to the claim of ineffective assistance of Fabricant in his first habeas petition, the petitioner sought as relief to vacate only his conviction for

being a persistent serious felony offender and either

a retrial on that issue alone or a resentencing. The

petitioner, however, effectively abandoned that claim

and the grounds were not actually litigated in the first

habeas proceeding. With respect to the claim of ineffective assistance of Fabricant in the present habeas peti-
tion, the petitioner seeks as relief to vacate the entirety

of the Tolland conviction and to return the case to

the trial court for a new criminal trial. See Johnson v.

Commissioner of Correction, 131 Conn. App. 805, 808,

29 A.3d 166 (2011) (‘‘[f]or claims of ineffective assistance of appellate counsel, we must assess whether

there is a reasonable probability that, but for appellate

counsel’s failure to raise the issue on appeal, the petitioner would have prevailed [on] appeal, i.e., [obtaining]

reversal of his conviction or granting of a new trial’’

(internal quotation marks omitted)). Accordingly, we

conclude that the petitioner’s claim of ineffective assistance of Fabricant in count one of his present habeas

petition is not barred by the doctrine of successive

petitions.

B

The petitioner next argues that the habeas court

improperly denied his petition for a writ of habeas corpus with respect to his claim that Fabricant provided

ineffective assistance. See footnote 6 of this opinion.

In support of this argument, the petitioner contends

that Fabricant’s ‘‘performance was deficient because

he failed to raise a multitude of meritorious issues on

appeal,’’ and that ‘‘[t]he petitioner suffered prejudice’’

as a result. We disagree.

The following additional facts and procedural history,

as set forth by the habeas court, are relevant to this

claim. In count one of his amended petition, the petitioner alleged that Fabricant rendered ineffective assistance by failing to challenge on direct appeal the trial

court’s denial of the following five defense motions: (1)

his motion to sever his trial from that of his codefendant,

Shawn Robinson, (2) his motion to change venue due

to pretrial publicity, (3) his objections to the composition of the venire panel, (4) his motion to remove his

leg irons before testifying at trial, and (5) his motion to

poll the jury following the delivery of its guilty verdict.

At the habeas trial, Kritzman testified about his representation of the petitioner during his 1991 criminal trial

resulting in the Tolland conviction. Kritzman strove to

preserve as many issues as possible for the appeal. One

such issue was the joint trial of the petitioner and his

codefendant, Robinson.9 The prosecutor had filed a

motion to consolidate the two criminal matters, which

was granted. Kritzman filed a motion to sever the petitioner’s criminal case from Robinson’s case, but the

motion to sever was denied. According to Kritzman’s

assessment, the petitioner had a stronger defense than

Robinson, the evidence against the petitioner was

weaker than the evidence against Robinson, and the

petitioner’s courtroom behavior was calm while Robinson’s was disruptive. Kritzman indicated that only one

correction officer, Jacobson, identified the petitioner

and that there was no physical evidence that implicated

the petitioner. Kritzman also contested the jury pool
composition, which included no African-Americans,

and submitted census data to the trial court in support

of his challenge. With respect to the petitioner’s

restraints, Kritzman could not recall if the petitioner’s

leg irons were visible to the jury but testified that there

may have been boxes or a curtain that hid the petitioner’s legs under the table. Finally, Kritzman testified that

he asked that the jurors be individually polled after the

verdict because the jury had sent out several notes

during deliberations, including a note that the jury was

deadlocked five to one. The trial court gave a ‘‘Chip

Smith’’ instruction,10 and the jury thereafter deliberated

and returned its verdict. Kritzman requested that the

jurors be polled individually to confirm unanimity; however, the trial court denied his motion.11

Fabricant testified about his representation of the

petitioner during his 1993 appeal from the Tolland conviction. It was Fabricant’s practice as appellate counsel

to review the record, although he could not specifically

recall reviewing the record in this case, and to identify

legal issues to raise on appeal. Fabricant acknowledged

that reasonable legal minds can differ about which

claims to raise on appeal. A trial court’s use of discretion, according to Fabricant, is difficult to reverse on

appeal, and appellate claims seeking to do so are not

particularly fruitful.12 Fabricant sometimes did consult

with clients or trial counsel, but he did not recall if he

did so while he handled the petitioner’s direct appeal.

On cross-examination, Fabricant conceded that appellate claims are limited to the record, even claims not

specifically preserved by trial counsel’s objections, and

that appellate counsel cannot raise claims unsupported

by the record.

Finally, the petitioner testified as to Fabricant’s representation during his appeal from the Tolland conviction.

According to the petitioner, the five claims that form

the basis for all of the grounds of ineffective assistance

are claims that he would have raised had he been able to

discuss them with his appellate counsel.13 The petitioner

testified that there was a possibility that the jury saw

the restraints used on him during trial and that the

jury knew about him being handcuffed. Moreover, the

petitioner testified that he was prejudiced by Robinson’s courtroom antics and outbursts.

The habeas court determined that ‘‘[t]he petitioner’s

posttrial brief only analyzes one of the five grounds

for ineffective assistance [of appellate counsel]: that

appellate counsel failed to raise a claim challenging the

trial court’s denial of the motion to sever the petitioner’s

trial from that of his codefendant Robinson. While the

petitioner’s posttrial brief also incorporates his arguments in the pretrial brief, and the pretrial brief analyzes

all five grounds, that analysis is in the abstract based

on the cold record as it existed prior to the testimony

in the present matter. Thus, the court can deem the
other four grounds to have been abandoned.’’14 Furthermore, the court concluded that, ‘‘even if the four

grounds not briefed in the petitioner’s posttrial brief

are not deemed abandoned, the petitioner failed to

prove that [appellate] counsel performed deficiently

and clearly did not show that the outcome of the direct

appeal . . . would have been different.’’

Specifically, with respect to the petitioner’s motion

to sever his trial from that of Robinson, the habeas

court found that there was scant testimony presented

on that claim.15 Each codefendant previously had filed

motions to sever their respective criminal trials from the

other codefendants, but all prior motions for severance

were denied. Each codefendant renewed their motions

for severance and counsel made their respective arguments.16 The trial court, relying on its previous denial

of the motions for severance, denied the renewed

motions.17 The court indicated that it would give proper

instructions to the jury. Robinson and the petitioner

were convicted and had their respective appeals

decided by our Supreme Court.18 See State v. Robinson,

227 Conn. 711, 716, 631 A.2d 288 (1993) (raising nine

claims on direct appeal); State v. Harris, supra, 227

Conn. 752 (raising three claims on direct appeal). Neither of these two direct appeals involved a claim as to

the trial court’s denials of the motions for severance.

We first set forth our standard of review. ‘‘Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a

habeas appeal, this court cannot disturb the underlying

facts found by the habeas court unless they are clearly

erroneous, but our review of whether the facts as found

by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of

counsel is plenary.’’ (Internal quotation marks omitted.)

Humble v. Commissioner of Correction, 180 Conn. App.

697, 703–704, 184 A.3d 804, cert. denied, 330 Conn. 939,

195 A.3d 692 (2018).

‘‘The sixth amendment to the United States constitution guarantees a criminal defendant the assistance of

counsel for his defense. . . . It is axiomatic that the

right to counsel is the right to the effective assistance

of counsel. . . . To succeed on a claim of ineffective

assistance of counsel, a habeas petitioner must satisfy

the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984). Strickland requires that a petitioner satisfy

both a performance and a prejudice prong. To satisfy

the performance prong, a claimant must demonstrate

that counsel made errors so serious that counsel was

not functioning as the counsel guaranteed . . . by the

[s]ixth [a]mendment. . . . To satisfy the prejudice

prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. . . . Although a petitioner can succeed

only if he satisfies both prongs, a reviewing court can

find against the petitioner on either ground. . . .

‘‘We . . . are mindful that [a] fair assessment of

attorney performance requires that every effort be made

to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent

in making the evaluation, a court must indulge a strong

presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance; that

is, the [petitioner] must overcome the presumption that,

under the circumstances, the challenged action might

be considered sound trial strategy. . . . [C]ounsel is

strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment. . . . Similarly,

the United States Supreme Court has emphasized that

a reviewing court is required not simply to give [counsel] the benefit of the doubt . . . but to affirmatively

entertain the range of possible reasons . . . counsel

may have had for proceeding as [he or she] did. . . .

‘‘In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s

performance had no effect on the outcome or whether

it is possible a reasonable doubt might have been established if counsel acted differently. . . . Instead, Strickland asks whether it is reasonably likely the result

would have been different. . . . The likelihood of a

different result must be substantial, not just conceivable. . . . In a habeas proceeding, the petitioner’s burden of proving that a fundamental unfairness had been

done is not met by speculation . . . but by demonstrable realities. . . .

‘‘The two-pronged test set forth in Strickland equally

applies to claims of ineffective assistance of appellate

counsel. . . . Although appellate counsel must provide

effective assistance, he [or she] is not under an obligation to raise every conceivable issue. A brief that raises

every colorable issue runs the risk of burying good

arguments . . . in a verbal mound made up of strong

and weak contentions. . . . Indeed, [e]xperienced

advocates since time beyond memory have emphasized

the importance of winnowing out weaker arguments

on appeal and focusing on one central issue if possible,

or at most on a few key issues. . . . Most cases present

only one, two, or three significant questions. . . . The

effect of adding weak arguments will be to dilute the

force of stronger ones. . . . Finally, [i]f the issues not

raised by [the petitioner’s] appellate counsel lack merit,

[the petitioner] cannot sustain even the first part of this

dual burden since the failure to pursue unmeritorious

claims cannot be considered conduct falling below the

level of reasonably competent representation. . . . To
establish that the petitioner was prejudiced by appellate

counsel’s ineffective assistance, the petitioner must

show that, but for the ineffective assistance, there is a

reasonable probability that, if the issue were brought

before us on direct appeal, the petitioner would have

prevailed. . . . To ascertain whether the petitioner can

demonstrate such a probability, we must consider the

merits of the underlying claim.’’ (Citations omitted;

internal quotation marks omitted.) Davis v. Commissioner of Correction, 198 Conn. App. 345, 352–55, 233

A.3d 1106, cert. denied, 335 Conn. 948, 238 A.3d 18

(2020).

To succeed on his claim that Fabricant provided ineffective assistance under the prejudice prong, the petitioner must show that had counsel challenged on direct

appeal the trial court’s denial of his motion for severance, there is a reasonable probability that he would

have prevailed on that issue. See id., 355. At the time

of the petitioner’s direct appeal, the standard of review

that would have applied to that issue was as follows:

‘‘Whether to consolidate or sever the trials of defendants involved in the same criminal incident lies within

the sound discretion of the trial court. . . . Joint trials

of persons jointly indicted or informed against are the

rule, and separate trials the exception resting in the

discretion of the court. . . . A separate trial will be

ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which

will not be admissible against others, and it clearly

appears that a joint trial will probably be prejudicial to

the rights of one or more of the accused. The test for

the trial court is whether substantial injustice is likely

to result unless a separate trial be accorded. . . . In

the determination of whether substantial injustice is

likely to result from a joint trial or whether such injustice has in fact resulted, an important factor to consider

is whether the defenses of the codefendant are incompatible and completely antagonistic to each other.’’

(Citations omitted; internal quotation marks omitted.)

State v. Smith, 201 Conn. 659, 668–69, 519 A.2d 26

(1986).

At the underlying criminal trial, the defenses of Robinson and the petitioner were not incompatible. See id.,

669. Robinson and the petitioner were tried for charges

pertaining to the assaults of different correctional officers. See footnote 18 of this opinion. Because Robinson

was tried for charges pertaining to the assault of David

Serkosky while the petitioner was tried for charges

pertaining to the assault of Jacobsen, evidence used to

establish Robinson’s guilt did not tend to demonstrate

the petitioner’s guilt. Moreover, Robinson’s defense was

not completely antagonistic to the petitioner. See State

v. Smith, supra, 201 Conn. 669. Robinson did not implicate the petitioner by claiming that he was involved in

the assault of Serkosky, nor did he testify with respect

to the assault of Jacobsen. Finally, the trial court prop-
erly instructed the jury that each count for each defendant must be treated separately, as must the evidence

proffered for each count. Accordingly, we conclude that

the petitioner has failed to demonstrate that there is a

reasonable probability that he would have prevailed on

direct appeal had Fabricant challenged on direct appeal

the trial court’s denial of the petitioner’s motion for

severance.

Because the petitioner cannot demonstrate that he

has suffered prejudice as a result of any alleged deficiency in Fabricant’s performance, we conclude that the

petitioner’s claim of ineffective assistance of appellate

counsel fails. See Kondjoua v. Commissioner of Correction, supra, 194 Conn. App. 801 (‘‘An ineffective

assistance of counsel claim will succeed only if both

prongs [of Strickland] are satisfied. . . . It is axiomatic

that courts may decide against a petitioner on either

prong [of the Strickland test], whichever is easier

. . . . In its analysis, a reviewing court may look to

the performance prong or the prejudice prong, and the

petitioner’s failure to prove either is fatal to a habeas

petition.’’ (Internal quotation marks omitted.)). Accordingly, the petitioner has failed to demonstrate that the

resolution of this claim involves an issue that is debatable among jurists of reason, that a court could resolve

the issue in a different manner, or that the question is

adequate to deserve encouragement to proceed further.

See Whistnant v. Commissioner of Correction, supra,

199 Conn. App. 415. We, therefore, conclude that the

habeas court did not abuse its discretion in denying

the petition for certification to appeal with respect to

this claim.

III

Turning to the petitioner’s final substantive claim on

appeal, the petitioner asserts that the habeas court

improperly denied his petition for a writ of habeas corpus with respect to his claim of ineffective assistance

of his first habeas counsel, Rozwaski. The petitioner

argues that, although Rozwaski had ‘‘pleaded a claim

of ineffective assistance of appellate counsel . . . [he]

made no meaningful effort to pursue that claim at the

habeas trial’’ and ‘‘entirely fail[ed] to present evidence

in support of the claim.’’ Specifically, the petitioner

alleges that Rozwaski was ineffective because ‘‘[h]e did

not present testimony from the petitioner’s appellate

counsel; nor did he present any other evidence that

suggested that appellate counsel’s performance fell

below the standard of care for reasonably competent

attorneys.’’ We disagree.

The habeas court correctly determined that the petitioner’s claim of ineffective assistance of habeas counsel is dependent on whether his appellate counsel, Fabricant, rendered ineffective assistance on direct appeal

from his conviction. ‘‘[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strick-
land standard requires the petitioner to demonstrate

that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. . . . [T]he petitioner

will have to prove that one or both of the prior habeas

counsel, in presenting his claims, was ineffective and

that effective representation by habeas counsel establishes a reasonable probability that the habeas court

would have found that he was entitled to reversal of

the conviction and a new trial . . . . Therefore, as

explained by our Supreme Court in Lozada v. Warden,

223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming

ineffective assistance of habeas counsel on the basis

of ineffective assistance of trial counsel must essentially

satisfy Strickland twice: he must prove both (1) that

his appointed habeas counsel was ineffective, and (2)

that his trial counsel was ineffective.’’ (Citation omitted;

emphasis omitted; internal quotation marks omitted.)

Lapointe v. Commissioner of Correction, 113 Conn.

App. 378, 394, 966 A.2d 780 (2009). Because we have

concluded in part II of this opinion that the petitioner’s

claim of ineffective assistance of his appellate counsel

fails, we conclude that the petitioner’s claim of ineffective assistance of his first habeas counsel, Rozwaski,

also fails. Accordingly, the petitioner has failed to demonstrate that the resolution of this claim involves an

issue that is debatable among jurists of reason, that a

court could resolve the issue in a different manner, or

that the question is adequate to deserve encouragement

to proceed further. See Whistnant v. Commissioner of

Correction, supra, 199 Conn. App. 415. We, therefore,

conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal

with respect to this claim.

The appeal is dismissed.

In this opinion the other judges concurred.

1 See State v. Harris, 11 Conn. App. 397, 527 A.2d 724, cert. denied, 205

Conn. 801, 529 A.2d 719 (1987).

2 The habeas court, Fuger, J., found that the petitioner had abandoned

the claim of ineffective assistance by Katz and that, even if he had not, the

claim lacked merit. Harris v. Warden, Superior Court, judicial district of

Tolland, Docket No. CV-97-0002609 (June 24, 2003).

3 The habeas court, Fuger, J., found that the petitioner had abandoned

the claim of ineffective assistance by Fabricant. Harris v. Warden, Superior

Court, judicial district of Tolland, Docket No. CV-97-0002609 (June 24, 2003).

4

‘‘ ‘Pursuant to No. 12-115, § 1, of the 2012 Public Acts, subsection (b) of

§ 52-470 was redesignated as subsection (g).’ Villafane v. Commissioner of

Correction, 190 Conn. App. 566, 572 n.1, 211 A.3d 72, cert. denied, 333 Conn.

902, 215 A.3d 160 (2019).’’ Whistnant v. Commissioner of Correction, 199

Conn. App. 406, 414 n.8, 236 A.3d 276, cert. denied, 335 Conn. 969, 240 A.3d

286 (2020).

5

In his principal appellate brief, reply brief and statement of issues, the

petitioner claims that the habeas court improperly denied his claims of

ineffective assistance of his appellate counsel, Fabricant, and his first habeas

counsel, Roswaski. The petitioner, however, provides no mention or analysis

of his claim that the habeas court improperly denied his claim of ineffective

assistance of his second habeas counsel, Barbarie. ‘‘We repeatedly have

stated that [w]e are not required to review issues that have been improperly

presented to this court through an inadequate brief. . . . Analysis, rather

than mere abstract assertion, is required in order to avoid abandoning an

issue by failure to brief the issue properly. . . . [When] a claim is asserted
in the statement of issues but thereafter receives only cursory attention in the

brief without substantive discussion or citation of authorities, it is deemed

to be abandoned. . . . For a reviewing court to judiciously and efficiently

. . . consider claims of error raised on appeal . . . the parties must clearly

and fully set forth their arguments in their briefs.’’ (Citations omitted; internal

quotation marks omitted.) Burton v. Dept. of Environmental Protection,

Conn. , , A.3d (2021). Accordingly, the petitioner’s claim

that the habeas court improperly denied his claim of ineffective assistance

of his second habeas counsel, Barbarie, was abandoned.

6 We note that, although the petitioner asserts that the court denied the

habeas petition with respect to his claim as to Fabricant, the court, in fact,

dismissed it pursuant to Practice Book § 23-29 (3).

7 The petitioner notes in his principal appellate brief that ‘‘[t]he legal

standard at the time of [his] first habeas corpus petition required assessing

prejudice under Bunkley v. Commissioner of Correction, [222 Conn. 444,

610 A.2d 598 (1992), overruled in part by Small v. Commissioner of Correction, 286 Conn. 707, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz,

555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008)].’’ The Bunkley standard

of prejudice required a petitioner to show that, ‘‘as a result of [appellate

counsel’s deficient] performance, there remains a probability sufficient to

undermine confidence in the verdict that resulted in his appeal. Put another

way, he must establish that, because of the failure of his appellate counsel

. . . there is a reasonable probability that he remains burdened by an unreliable determination of his guilt.’’ Id., 454. The petitioner further notes that

Bunkley was overruled by our Supreme Court’s decision in Small v. Commissioner of Correction, 286 Conn. 707, 946 A.2d 1203, cert. denied sub nom.

Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008) (2008).

The Small standard of prejudice requires a petitioner to show that there is

a reasonable probability that, but for appellate counsel’s deficient performance, the petitioner would have prevailed in his or her direct appeal. Id.,

722. The petitioner argues that, ‘‘[b]ecause the legal standard for assessing

prejudice was different at the time of the first habeas proceeding, the issues

at that proceeding were not identical to the issue in the proceeding below,

and the petitioner’s claim of ineffective assistance of appellate counsel was

not precluded as successive.’’ Because we agree with the petitioner that his

claim is not barred by the doctrine of successive petitions on other grounds,

we need not address this alternative argument.

8 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 . . . .’’

9 Our Supreme Court affirmed Robinson’s conviction. State v. Robinson,

227 Conn. 711, 631 A.2d 288 (1993).

10 See, e.g., State v. O’Neil, 261 Conn. 49, 51 n.2, 801 A.2d 730 (2002) (‘‘[a]

Chip Smith instruction reminds the jurors that they must act unanimously,

while also encouraging a deadlocked jury to reach unanimity’’ (internal

quotation marks omitted)).

11 Kritzman did not testify with respect to the petitioner’s motion to

change venue.

12 In his principal appellate brief, the petitioner argues that Fabricant’s

performance was deficient because he ‘‘offered no reasonable strategic

basis’’ for his decisions not to challenge on direct appeal the court’s denial

of the five defense motions. The petitioner further argues that, ‘‘[t]he habeas

court made a clearly erroneous factual finding by concluding that [Fabricant’s] strategy when deciding which claims to pursue was to avoid claims

challenging the lower court’s discretion, and that his decision not to pursue

a joinder claim was based on that strategy.’’ The petitioner contends that,

‘‘[b]ecause that finding formed the entire basis for the habeas court’s conclusion that [Fabricant’s] performance was not deficient, this court must reverse

the habeas court’s decision on that point and remand the case for a new

trial on the issue of deficient performance.’’ Because we conclude that the

petitioner’s claim of ineffective assistance by Fabricant fails on the prejudice

prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), we need not address the petitioner’s

arguments with respect to the quality of Fabricant’s performance. See Kondjoua v. Commissioner of Correction, 194 Conn. App. 793, 801, 222 A.3d 974

(2019) (‘‘An ineffective assistance of counsel claim will succeed only if both

prongs [of Strickland] are satisfied. . . . It is axiomatic that courts may
decide against a petitioner on either prong [of the Strickland test], whichever

is easier . . . . In its analysis, a reviewing court may look to the performance prong or the prejudice prong, and the petitioner’s failure to prove

either is fatal to a habeas petition.’’ (Internal quotation marks omitted.)),

cert. denied, 334 Conn. 915, 221 A.3d 809 (2020).

13 The habeas court noted that ‘‘[n]o prior counsel for the petitioner testified that the claims the petitioner testified he wanted raised would have

been raised simply because he wanted them raised on direct appeal or in

a prior [petition for a writ of] habeas corpus.’’

14 On appeal, the petitioner claims that the habeas court improperly concluded that he had abandoned the following four grounds of ineffective

assistance by Fabricant, namely, that Fabricant failed to challenge on direct

appeal the trial court’s denial of the petitioner’s motions (1) to transfer the

trial due to pretrial publicity, (2) to dismiss the jury pool for failure to

represent a fair cross section of the community, (3) to remove his leg

irons during his testimony, and (4) to poll the jury following the verdict.

We disagree.

The following standard of review and legal principles are applicable here.

‘‘Because . . . the idea of abandonment involves both a factual finding by

the trial court and a legal determination that an issue is no longer before

the court, we will treat this claim as one of both law and fact. Accordingly,

we will accord it plenary review.’’ Solek v. Commissioner of Correction,

107 Conn. App. 473, 479, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d

873 (2008). Pursuant to Practice Book § 5-2, ‘‘[a]ny party intending to raise

any question of law which may be the subject of an appeal must either state

the question distinctly to the judicial authority in a written trial brief under

Section 5-1 or state the question distinctly to the judicial authority on the

record before such party’s closing argument and within sufficient time to

give the opposing counsel an opportunity to discuss the question. If the

party fails to do this, the judicial authority will be under no obligation to

decide the question.’’ Practice Book § 5-1 provides: ‘‘The parties shall, if the

judicial authority so orders, file, at such time as the judicial authority shall

determine, written trial briefs discussing the issues in the case and the

factual or legal basis upon which they ought to be resolved.’’

In his pretrial brief, the petitioner addressed in part each of these four

grounds of ineffective assistance by Fabricant. With respect to each ground,

the petitioner set forth the relevant legal standards and facts pertaining to

the trial court’s consideration of his motions. The petitioner’s pretrial brief,

however, failed to set forth any analysis as to whether Fabricant rendered

ineffective assistance for failing to challenge on direct appeal the trial court’s

denial of these motions. At the underlying habeas trial, the petitioner, likewise, adduced testimony and evidence with respect to these grounds insofar

as what happened at his criminal trial. Following the close of evidence, the

habeas court ordered posttrial briefing in lieu of closing argument. In his

posttrial brief, the petitioner made no mention of any of these four grounds

of ineffective assistance by Fabricant. Instead, the petitioner merely incorporated by reference the arguments that he made in his pretrial brief and

addressed and analyzed only his claim that ‘‘Fabricant rendered ineffective

assistance . . . by failing to challenge the trial court’s denial of the petitioner’s motion to sever his criminal trial from that of his codefendant . . .

Robinson.’’ Consequently, at no time, before or after the habeas trial, did

the petitioner submit to the court any argument as to why Fabricant’s failure

to raise any of these four issues on appeal constituted deficient performance

or how he was prejudiced by the failure to raise these issues. ‘‘The mere

recital of . . . claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration.’’ Solek v.Commissioner of Correction, supra, 107 Conn. App. 480–81.

Accordingly, we conclude that the habeas court correctly determined that

the petitioner abandoned these four grounds of ineffective assistance of

appellate counsel.

15 The petitioner summarized the habeas trial testimony as follows: ‘‘[T]he

[c]ourt heard testimony from both trial counsel . . . Kritzman, and the

petitioner . . . . Both witnesses testified to the prejudicial effect that the

unruly behavior and frequent outbursts from . . . Robinson had on the

[petitioner’s] case.’’

16 At the time of the renewed motion for severance, the petitioner, Robinson, and Perry Herring were codefendants, each represented by counsel.

Herring resolved his criminal charges prior to trial.

17 The habeas court noted that ‘‘[s]ome of the transcripts of the underlying

criminal proceedings are no longer available, so the trial court’s reasoning
for its denial of the initial motion for severance is unknown.’’ In denying

the petitioner’s renewed motion for severance, the trial court reasoned that

judicial economy supported joining the codefendants’ trials and that any

potential prejudice could be prevented with proper jury instruction.

18 Robinson was convicted of assault in the second degree in violation of

§ 53a-60 (a) (5) for ‘‘slash[ing] [C]orrection [O]fficer David Serkosky on the

right side of his neck with a sharp metal instrument’’; (internal quotation

marks omitted) Robinson v. Commissioner of Correction, 129 Conn. App.

699, 701, 21 A.3d 901, cert. denied, 302 Conn. 921, 28 A.3d 342 (2011); rioting

at a correctional institution in violation of § 53a-179b, possession of a weapon

or dangerous instrument in a correctional institution in violation of § 53a174a, and being a persistent serious felony offender pursuant to § 53a-40

(b). Id., 700.