Collazo v. Commissioner of Correction ( 2015 )

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ULISES COLLAZO v. COMMISSIONER
OF CORRECTION
(AC 35789)
Sheldon, Keller and Prescott, Js.
Argued October 28, 2014—officially released January 6, 2015
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Michael D. Day, for the appellant (petitioner).
Rita M. Shair, senior assistant state’s attorney, with
whom were Stephen J. Sedensky III, state’s attorney,
and, on the brief, Marcia A. Pillsbury, deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, Ulises Collazo, appeals
following the habeas court’s denial of his petition for
certification to appeal from the judgment denying his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court (1)
abused its discretion by denying his petition for certifi-
cation to appeal, and (2) erred in concluding that his
trial counsel did not render ineffective assistance of
counsel. We dismiss the appeal on the basis of our
conclusion that the petitioner has failed to challenge
the ground underlying the court’s denial of his petition
for certification to appeal.
The following facts, as set forth by this court in an
earlier appeal and by the habeas court, and procedural
history are relevant here. ‘‘On July 30, 2004, Rudy Ortiz,
the president of the Danbury Latin Kings, was involved
in a fight with several young men from Stamford. Ortiz
was angry about the fight and wanted revenge. Ortiz
crafted a plan to seek his revenge and arranged for
Sabrina Colon, who knew one of the men from Stam-
ford, Keven Louis, to invite the Stamford men to Dan-
bury. On August 2, 2004, five men from Stamford, Louis,
Cliff Certillian, Kenny Poteau, Herbie Servil and Stanley
Bruno, arrived at a basketball court at Eden Drive in
Danbury. Waiting in the bushes to ambush the five Stam-
ford men were Ortiz, Juan Macias, Luis Guzman, Alex
Garcia, the defendant and a few others. As the five
Stamford men walked onto the basketball court, Macias
and the defendant followed them. After a prearranged
signal, the defendant threw the first punch, and the
remaining Danbury men ran out from the bushes to
continue the assault. Gunshots were heard. Garcia had
a nine millimeter assault rifle and shot Louis once in
the leg and at least once more in the abdomen. Servil
suffered twelve to thirteen separate stab wounds to his
back, abdomen and right arm, one of which damaged
his liver. Bruno ran off but was either shot or stabbed
in the back, resulting in a collapsed lung.’’ State v. Col-
lazo, 115 Conn. App. 752, 754–55, 974 A.2d 729 (2009),
cert. denied, 294 Conn. 929, 986 A.2d 1057 (2010).
The petitioner was charged with eight counts of
assault in the first degree as an accessory and two
counts of conspiracy to commit assault in the first
degree. A jury found the petitioner guilty on all charges,
except for one count of assault in the first degree as
an accessory. The trial court, Thim, J., sentenced him
to a total effective term of thirty-five years incarcera-
tion. This court affirmed the trial court’s judgment.
Id., 754.
On January 20, 2012, the petitioner filed an amended
petition for a writ of habeas corpus.1 The petition con-
tains three counts. Count one alleges that Michael Mos-
cowitz, the petitioner’s trial counsel, rendered
ineffective assistance.2 Count two alleges that James
B. Streeto, the petitioner’s appellate counsel, rendered
ineffective assistance.3 Count three alleges that David
R. Shannon, the prosecutor at the criminal trial, engaged
in prosecutorial misconduct.4
Following a trial to the court, the habeas court, New-
son, J., denied the petition for a writ of habeas corpus.5
Subsequently, the petitioner filed a petition for certifica-
tion to appeal, which the court denied on the basis of
his failure to file the petition by the statutory deadline
mandated under General Statutes § 52-470 (g).6 The peti-
tioner then filed a motion to reconsider, wherein he
addressed the court’s conclusion that his petition was
untimely and requested that the court reconsider its
ruling on that basis. The petitioner simultaneously filed,
along with his motion to reconsider, a motion for per-
mission to file a late petition for certification to appeal
and another petition for certification to appeal. The
court denied both motions as well as the petition. This
appeal followed.
We begin our analysis by setting forth the relevant
standard of review. ‘‘Faced with the habeas court’s
denial of certification to appeal, a petitioner’s first bur-
den is to demonstrate that the habeas court’s ruling
constituted an abuse of discretion. . . . If the peti-
tioner succeeds in surmounting that hurdle, the peti-
tioner must then demonstrate that the judgment 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 differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . If this
burden is not satisfied, then the claim that the judgment
of the habeas court should be reversed does not qualify
for consideration by this court.’’ (Internal quotation
marks omitted.) Miller v. Commissioner of Correction,
153 Conn. App. 747, 751, A.3d (2014).
On appeal, the petitioner claims that the habeas court
abused its discretion by denying his petition for certifi-
cation to appeal. He bases his claim solely on the asser-
tion that his claim of ineffective assistance of trial
counsel, which he proclaims the habeas court improp-
erly rejected, is not frivolous.7 Following a careful
review of the record before us, 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. See, e.g., Ingels
v. Saldana, 103 Conn. App. 724, 728–29, 930 A.2d 774
(2007) (‘‘[w]e decline to address the issue briefed
because it is irrelevant to the judgment from which the
defendant appeals’’); Housing Authority v. Olesen, 31
Conn. App. 359, 361, 624 A.2d 920 (1993) (‘‘we decline
to address this issue because it is irrelevant to the
disposition of the appeal’’).8
The appeal is dismissed.
1
The petitioner first filed a petition for a writ of habeas corpus on April
8, 2010.
2
The habeas court noted that, prior to the habeas trial, the petitioner
withdrew all allegations underlying his claim of ineffective assistance of
counsel against Moscowitz, except for one alleging that Moscowitz rendered
ineffective assistance of counsel on the basis of his failure to object to an
allegedly improper jury instruction.
3
The habeas court noted that, prior to the habeas trial, the petitioner
withdrew all allegations underlying his claim of ineffective assistance of
counsel against Streeto, except for one alleging that Streeto rendered ineffec-
tive assistance of counsel on the basis of his failure to challenge, on direct
appeal, the trial court’s alleged refusals to permit Moscowitz to make a
record at certain critical stages of the trial.
4
The habeas court noted that, prior to the habeas trial, the petitioner
withdrew his claim of prosecutorial impropriety against Shannon in its
entirety.
5
The habeas court determined that the petitioner failed to prove that he
was prejudiced by the allegedly deficient performance rendered by Moscow-
itz. The court did not reach the question of whether Moscowitz’ performance
was, in fact, deficient. The court also determined that the petitioner failed to
prove that Streeto’s performance was deficient or that Streeto’s performance
prejudiced him.
6
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 question is involved in the decision which
ought to be reviewed by the court having jurisdiction and the judge so cer-
tifies.’’
Prior to the habeas court’s denial of his petition for certification to appeal,
the petitioner filed a motion for extension of time to file his petition for
certification to appeal, which the court denied.
7
Both the petitioner and the respondent, the Commissioner of Correction,
briefed this claim in their respective appellate briefs and argued it before
this court. Neither party addressed the habeas court’s conclusion that the
petition for certification to appeal was untimely.
8
Although we do not address the question of whether the habeas court
abused its discretion in denying the petition for certification to appeal on
the basis of untimeliness, we acknowledge that this court has dismissed
appeals from habeas court judgments in which those courts denied, on the
basis of untimeliness, petitions for certification to appeal. See Parker v.
Commissioner of Correction, 117 Conn. App. 727, 731–32, 980 A.2d 930,
cert. denied, 294 Conn. 917, 983 A.2d 851 (2009); Alvarado v. Commissioner
of Correction, 75 Conn. App. 894, 895–96, 818 A.2d 797, cert. denied, 264
Conn. 903, 823 A.2d 1220 (2003).