Harris v. Commissioner of Correction ( 2021 )

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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. Follow-
ing 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 improp-
erly 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 assis-
tance 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. Mullar-
key, 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 peti-
tioner 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 fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court dismiss-
ing 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) appel-
late 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 hun-
dred inmates who had gathered to share a meal in honor
of the Islamic religious feast, Ramadan. Thirty-five cor-
rection officers responded in an attempt to restore
order. During the incident, the [petitioner] injured [C]or-
rection [O]fficer Craig Jacobsen with a sharp instru-
ment.’’ State v. Harris, 227 Conn. 751, 754, 631 A.2d
309 (1993).
‘‘The [petitioner] was charged in a substitute informa-
tion 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 Gen-
eral 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 twenty-
five years on the possession of a weapon count to run
concurrently, for a total effective sentence of thirty-
five years [of] imprisonment [(Tolland conviction)].
Thereafter, he appealed from the judgment of convic-
tion to [our Supreme Court] pursuant to General Stat-
utes § 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 fol-
lowing 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 informa-
tion 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 constitu-
tion and article first, § 8, of the Connecticut constitu-
tion’’; 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 testi-
mony 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) Attor-
ney 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) Fabri-
cant, 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 pres-
ent habeas action. In a three count amended petition
filed September 5, 2017, the petitioner claimed ineffec-
tive 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 testi-
mony 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 Fabri-
cant 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 evi-
dence.’’ Accordingly, the court dismissed the petition-
er’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 proce-
dural 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 certifica-
tion to appeal. We disagree.
General Statutes § 52-470 (g) provides: ‘‘No appeal
from the judgment rendered in a habeas corpus pro-
ceeding brought by or on behalf of a person who has
been convicted of a crime in order to obtain such per-
son’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 dis-
courage 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 two-
pronged 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 differ-
ent 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 peti-
tioner’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.’’ (Foot-
note 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 assis-
tance 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 peti-
tioner does not pursue on appeal the third issue regard-
ing 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 con-
clude 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 peti-
tioner 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 ineffec-
tive assistance of appellate counsel was not barred by
the doctrine of successive petitions with respect to his
first habeas proceeding . . . .’’ In support of this argu-
ment, the petitioner contends that (1) ‘‘[he] sought dif-
ferent 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] pro-
ceeding was different than the legal standard that
applied in this proceeding.’’7 We agree that the petition-
er’s claim of ineffective assistance of his appellate coun-
sel, Fabricant, is not barred by the doctrine of succes-
sive 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 peti-
tioner alleged that Fabricant’s performance was defi-
cient because ‘‘he did not raise on the direct appeal a
double jeopardy claim with respect to the prior convic-
tions 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 persis-
tent felony offender. The habeas court, Fuger, J., found
that the petitioner had abandoned this claim of ineffec-
tive assistance by Fabricant. Harris v. Warden, Supe-
rior Court, judicial district of Tolland, Docket No. CV-
XX-XXXXXXX (June 24, 2003).
In count one of his present habeas petition, the peti-
tioner alleges that Fabricant’s performance was defi-
cient 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 chal-
lenge 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 chal-
lenge [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 chal-
lenge 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 Correc-
tion, 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 peti-
tioner 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 peti-
tion—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.’’ Accord-
ingly, the habeas court dismissed the petitioner’s claim
of ineffective assistance of Fabricant pursuant to Prac-
tice Book § 23-29 (3).
Our standard of review is well established. ‘‘The con-
clusions reached by the [habeas] court in its decision
to dismiss the habeas petition are matters of law, sub-
ject to plenary review. . . . Thus, [w]here the legal
conclusions of the court are challenged, we must deter-
mine 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 reason-
ably available at the time of the prior petition is memori-
alized in Practice Book § 23-29 (3).’’8 (Internal quotation
marks omitted.) Gudino v. Commissioner of Correc-
tion, 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 avail-
able at the time of the earlier petition.’’ (Internal quota-
tion mark omitted.) Johnson v. Commissioner of Cor-
rection, 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 assis-
tance of Fabricant in his first habeas petition, the peti-
tioner 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 ineffec-
tive 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 assis-
tance 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 peti-
tioner 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 assis-
tance 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 cor-
pus 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 peti-
tioner alleged that Fabricant rendered ineffective assis-
tance 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 composi-
tion 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 repre-
sentation 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 peti-
tioner’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 Rob-
inson’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 petition-
er’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; how-
ever, the trial court denied his motion.11
Fabricant testified about his representation of the
petitioner during his 1993 appeal from the Tolland con-
viction. 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 discre-
tion, 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 appel-
late 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 repre-
sentation 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 Rob-
inson’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 argu-
ments 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 Further-
more, 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 argu-
ments.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). Nei-
ther 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 stan-
dard of review of a habeas court’s judgment on ineffec-
tive 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 peti-
tioner’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 constitu-
tion 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. Wash-
ington, 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 rea-
sonable probability that, but for counsel’s unprofes-
sional 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 recon-
struct the circumstances of counsel’s challenged con-
duct, and to evaluate the conduct from counsel’s per-
spective 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 assis-
tance 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 [coun-
sel] 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 ques-
tion 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 estab-
lished if counsel acted differently. . . . Instead, Strick-
land asks whether it is reasonably likely the result
would have been different. . . . The likelihood of a
different result must be substantial, not just conceiv-
able. . . . In a habeas proceeding, the petitioner’s bur-
den of proving that a fundamental unfairness had been
done is not met by speculation . . . but by demonstra-
ble 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 obliga-
tion 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. Commis-
sioner 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 inef-
fective assistance under the prejudice prong, the peti-
tioner must show that had counsel challenged on direct
appeal the trial court’s denial of his motion for sever-
ance, 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 defen-
dants 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 antago-
nistic, 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 injus-
tice has in fact resulted, an important factor to consider
is whether the defenses of the codefendant are incom-
patible 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 Rob-
inson and the petitioner were not incompatible. See id.,
669. Robinson and the petitioner were tried for charges
pertaining to the assaults of different correctional offi-
cers. 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 impli-
cate 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 defen-
dant 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 defi-
ciency in Fabricant’s performance, we conclude that the
petitioner’s claim of ineffective assistance of appellate
counsel fails. See Kondjoua v. Commissioner of Cor-
rection, 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.)). Accord-
ingly, the petitioner has failed to demonstrate that the
resolution of this claim involves an issue that is debat-
able 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 cor-
pus 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 peti-
tioner’s claim of ineffective assistance of habeas coun-
sel is dependent on whether his appellate counsel, Fab-
ricant, rendered ineffective assistance on direct appeal
from his conviction. ‘‘[When] applied to a claim of inef-
fective assistance of prior habeas counsel, the Strick-
land standard requires the petitioner to demonstrate
that his prior habeas counsel’s performance was inef-
fective and that this ineffectiveness prejudiced the peti-
tioner’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 estab-
lishes 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 ineffec-
tive assistance of his first habeas counsel, Rozwaski,
also fails. Accordingly, the petitioner has failed to dem-
onstrate 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 discre-
tion 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-XX-XXXXXXX (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-XX-XXXXXXX (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 Correc-
tion, 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 unrelia-
ble determination of his guilt.’’ Id., 454. The petitioner further notes that
Bunkley was overruled by our Supreme Court’s decision in Small v. Commis-
sioner 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 perfor-
mance, 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 [Fabri-
cant’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 conclu-
sion 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 Kond-
joua 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 perfor-
mance 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 testi-
fied 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 con-
cluded 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, like-
wise, 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 incorpo-
rated 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 petition-
er’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 argu-
ment, does not adequately place those claims before the court for its consid-
eration.’’ 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, Rob-
inson, 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 § 53a-
174a, and being a persistent serious felony offender pursuant to § 53a-40
(b). Id., 700.