Damato v. Comm'r of Corr.

GARY DAMATO v. COMMISSIONER OF CORRECTION

AC 35727

AC 36201

AC 36378

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 14, 2015

March 17, 2015

Keller, Mullins and Pellegrino, Js.

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.

IAC 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 therewas 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 not raised in petition for certification 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 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.

IIAC 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 thepetition 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."

IIIAC 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, thecourt 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...