Kowalyshyn v. Commissioner of Correction

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
MICHAEL KOWALYSHYN v. COMMISSIONER
OF CORRECTION
(AC 35778)
DiPentima, C. J., and Sheldon and Sullivan, Js.
Argued December 1, 2014—officially released February 10, 2015
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
John C. Drapp III, assigned counsel, for the appel-
lant (petitioner).
Marjorie Allen Dauster, senior assistant state’s attor-
ney, with whom, on the brief, were Patricia M. Froeh-
lich, state’s attorney, and Yamini Menon, special
deputy assistant state’s attorney, for the appellee
(respondent).
Opinion
SULLIVAN, J. The petitioner, Michael Kowalyshyn,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his petition for a writ of habeas corpus.1 On
appeal, the petitioner claims that the habeas court
abused its discretion in denying certification to appeal
and improperly (1) granted the motion to withdraw
filed by his second appointed attorney, and (2) declined
to appoint successor counsel for his habeas trial based
upon the finding that the petitioner had waived his right
to counsel as a result of his misconduct. We dismiss
the petitioner’s appeal.
The record discloses the following facts and proce-
dural history. In 2007, following a jury trial, the peti-
tioner was convicted of attempt to commit assault in the
second degree in violation of General Statutes §§ 53a-49
(a) (2) and § 53a-60, threatening in the second degree
in violation of General Statutes § 53a-62, reckless
endangerment in the second degree in violation of Gen-
eral Statutes § 53a-64, intimidation based on bigotry or
bias in the second degree in violation of General Stat-
utes § 53a-181k, and disorderly conduct in violation of
General Statutes § 53a-182. The court sentenced the
petitioner to a total effective term of eight years incar-
ceration followed by two years of special parole. On
direct appeal, this court affirmed the judgment of con-
viction. State v. Kowalyshyn, 118 Conn. App. 711, 713,
985 A.2d 370, cert. denied, 295 Conn. 903, 989 A.2d
602 (2010).
Following his conviction and his direct appeal, the
petitioner, on March 12, 2010, filed the petition for a
writ of habeas corpus that is at issue in this appeal.
The petitioner appended a letter to his habeas petition,
which stated ‘‘some of [his] claims,’’ and he requested
that an attorney be appointed to represent him ‘‘because
the prison will not allow [him] to use a law library.’’
Subsequently, the habeas court appointed Attorney
Donald O’Brien as counsel for the petitioner. ‘‘[R]eading
the complaint most broadly in [the petitioner’s] favor,’’
the habeas court summarized the three claims raised
by the petitioner in his habeas petition: (1) the trial
court violated his due process rights by allegedly alter-
ing records and tapes from the pretrial suppression
hearing; (2) his trial counsel, Attorney Richard Mar-
quette, provided constitutionally deficient representa-
tion; and (3) his appellate counsel, Attorney Glenn W.
Falk, provided constitutionally deficient representa-
tion. On October 13, 2011, the court, Solomon, J.,
granted O’Brien permission to withdraw from the peti-
tioner’s case.2
On January 6, 2012, the habeas court appointed a
second attorney, Grayson Holmes, to represent the peti-
tioner. Holmes subsequently filed a motion to withdraw
from the petitioner’s case because he felt ‘‘threatened
and uncomfortable,’’ and he believed that there was
no longer a ‘‘functioning [attorney-client] relationship’’
between himself and the petitioner.3 On December 19,
2012, the court, Solomon, J., held a hearing on Holmes’
motion to withdraw. The court granted Holmes’ motion
to withdraw and declined to appoint new counsel to
represent the petitioner. The court found that, although
the petitioner did not physically attack Holmes, he had
threatened both O’Brien and Holmes, and therefore had
‘‘waived his right to counsel’’ through his misconduct.
On March 5, 2013, after a trial to the habeas court,
Newson, J., the court issued an oral memorandum of
decision denying the petitioner’s petition for a writ of
habeas corpus. Thereafter, the petitioner filed a petition
for certification to appeal pursuant to General Statutes
§ 52-470 (g).4 In his petition for certification to appeal,
the petitioner indicated that the grounds for his petition
for certification were written in his application for
waiver of fees, costs and expenses and appointment of
counsel on appeal, which he filed with the court on
March 14, 2013. In that application, the petitioner set
forth the following as the basis for his appeal: ‘‘I am
not well informed enough to state grounds for this
appeal and need [an] attorney to help me articulate my
grounds, because the [Department of Correction] has
a policy not allowing a prisoner to learn about the law,
or a [person’s] rights, because they won’t let us read
law books. I am in [segregation], so they will not allow
me to use [a] law library!’’ On March 15, 2013, the habeas
court denied the petition for certification to appeal.
This appeal followed.
‘‘We begin by setting 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 petition follow-
ing denial of certification to appeal. In Simms v. War-
den, 229 Conn. 178, 187, 640 A.2d 601 (1994), we
concluded that . . . § 52-470 (b) prevents a reviewing
court from hearing the merits of a habeas appeal follow-
ing the denial of certification to appeal unless the peti-
tioner 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 certifi-
cation 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 ade-
quate to deserve encouragement to proceed further.
. . . A petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Citations omitted; emphasis in original; 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).
Having set forth the appropriate standard of review,
we next consider the relevant principles of substantive
law that guide our analysis. This court has declined to
review issues in a petitioner’s habeas appeal in situa-
tions where the habeas court denied certification to
appeal, and the issues on appeal had not been raised
in the petition for certification. See, e.g., Blake v. Com-
missioner of Correction, 150 Conn. App. 692, 696–97,
91 A.3d 535, cert. denied, 312 Conn. 923, 94 A.3d 1202(2014). A habeas petitioner cannot establish that the
habeas court abused its discretion in denying certifica-
tion on issues that were not raised in the petition for
certification to appeal.
In Stenner v. Commissioner of Correction, 144 Conn.
App. 371, 373, 71 A.3d 693, cert. denied, 310 Conn. 918,
76 A.3d 633 (2013), this court declined to review the
petitioner’s claim that the habeas court abused its dis-
cretion in denying his petition for certification to
appeal. The petitioner in Stenner argued on appeal that
the habeas court abused its discretion in denying his
petition for certification because his trial counsel ren-
dered ineffective assistance. Id., 374. The petitioner’s
application for waiver of fees, costs and expenses and
appointment of counsel on appeal, however, cited
‘‘ ‘[c]onfrontation [clause] violated pursuant to 6th
amendment’ ’’ as his ground for appeal. Id. The court
in Stenner concluded that the petitioner could not dem-
onstrate that the habeas court had abused its discretion
in denying the certification petition on the basis of
issues that were not actually raised in the petition for
certification to appeal. Id., 374–75.
The petitioner in Campbell v. Commissioner of Cor-
rection, 132 Conn. App. 263, 31 A.3d 1182 (2011), simi-
larly failed to raise the claims that he alleged on appeal
in his petition for certification, and so the court declined
to afford them appellate review and dismissed his
appeal. In that case, ‘‘[t]he petitioner’s petition for certi-
fication to appeal cited ‘[s]entencing procedures’ as the
basis for which he sought review. The petition did not
include [the] claims [raised on appeal] relating to the
court’s dismissal of habeas counsel’s motion to with-
draw, or any claims regarding ineffective assistance
of counsel or conflict of interest.’’ Id., 267. This court
determined that ‘‘[u]nder such circumstances, the peti-
tion for certification to appeal could not have apprised
the habeas court that the petitioner was seeking certifi-
cation to appeal based on such issues. . . . A review
of such claims would amount to an ambuscade of the
[habeas] judge.’’ (Citation omitted; internal quotation
marks omitted.) Id.
The petitioner in the present case has failed to estab-
lish that the habeas court abused its discretion and
cannot, therefore, properly obtain appellate review of
the habeas court’s decision. See Reddick v. Commis-
sioner of Correction, 51 Conn. App. 474, 477, 722 A.2d
286 (1999). As set forth previously in this opinion, in
his petition for certification to appeal, the petitioner
requested review based upon the grounds articulated
in his application for waiver of fees, costs and expenses
and appointment of counsel on appeal. In that applica-
tion, the petitioner stated that he required an attorney
to help him articulate his legal basis for his appeal.
The petitioner, accordingly, did not specify the grounds
upon which he sought to appeal the decision of the
habeas court denying his petition for certification to
appeal from the denial of his petition for a writ of
habeas corpus.
It is elemental that this court is bound by the claims
set forth by the appellant in his appeal. See, e.g., Keating
v. Glass Container Corp., 197 Conn. 428, 431, 497 A.2d
763 (1985) (‘‘[w]e have repeatedly held that [our appel-
late courts] will not consider claimed errors on the part
of the trial court unless it appears on the record that
the question was distinctly raised at trial and was ruled
upon and decided by the court adversely to the appel-
lant’s claim’’). As noted, the petitioner claims on appeal
that it was an abuse of the habeas court’s discretion
to deny his petition for certification to appeal by (1)
granting the motion to withdraw of his second
appointed attorney, and (2) declining to appoint succes-
sor counsel for his habeas trial based upon the finding
that the petitioner waived his right to counsel as a result
of his misconduct. The claims raised by the petitioner
before this court were not raised before the habeas
court as a basis upon which certification should be
granted and, therefore, the habeas court could not have
abused its discretion in denying the petition for certifi-
cation to appeal on the basis of these claims. It would
constitute an ambuscade of the trial court for this court
to review issues that were never considered by the
habeas court in denying the petition for certification.
See Campbell v. Commissioner of Correction, supra,132 Conn. App. 267. Because the petitioner failed to
raise the claims he now alleges in his petition for certifi-
cation or in his application for waiver of fees, costs
and expenses and appointment of counsel, this court
declines to afford them review. See Stenner v. Commis-
sioner of Correction, supra, 144 Conn. App. 375; Tutson
v. Commissioner of Correction, supra, 144 Conn.
App. 217.
The appeal is dismissed.
In this opinion the other judges concurred.
1
In June, 2006, the petitioner filed a prior petition for a writ of habeas
corpus in the Superior Court for the judicial district of Tolland. Pursuant
to Practice Book § 23-24, the court declined to issue the writ. Practice Book
§ 23-24 provides in relevant part that ‘‘[t]he judicial authority shall issue the
writ unless it appears that: (1) the court lacks jurisdiction; (2) the petition
is wholly frivolous on its face; or (3) the relief sought is not available. . . .’’
In his present petition for a writ of habeas corpus, however, the petitioner
checked the box to indicate that he had not filed previously any other habeas
corpus petitions. Notwithstanding this response, the petitioner answered a
subsidiary question in which he stated that he has raised his claims in the
present petition ‘‘only in a civil claim with the Claims Commissioner.’’ For
clarity, we refer in this opinion to the petition for a writ of habeas corpus
that was filed by the petitioner on March 12, 2010.
2
When O’Brien moved to withdraw, he did not state the reasons for doing
so in open court, but later testified regarding the circumstances surrounding
his own withdrawal at the hearing on the motion to withdraw of the petition-
er’s second counsel. O’Brien testified that, during his representation of the
petitioner, he became concerned for his own safety due to what he perceived
as a threat by the petitioner that he would be a ‘‘target’’ in the future.
3
Holmes testified that, before trial, he had visited the petitioner at the
Northern Correctional Institution, ‘‘and then when [he and the petitioner]
did a [judicial] pretrial with Judge Levine, [he] met [the petitioner] at [the
Superior Court] in lockup.’’ The habeas court summarized the interaction
between Holmes and the petitioner during the judicial pretrial as follows:
‘‘[The petitioner] . . . indicated that when he gets out of prison he or some-
one he knows would come find [Holmes] and that it would not be a legal
attack, but a sneak [attack], and [Holmes] responded and asked if that was
a threat, and [the petitioner] said it’s a threat, but if [Holmes did what the
petitioner asked him to do], then the threat is off.’’ The habeas court then
asked Holmes whether ‘‘that [description] accurately [characterizes] what
transpired that day.’’ Holmes responded: ‘‘From what I remember, yes, sir.’’
Holmes also testified, that after the pretrial conference, he ‘‘sent [the peti-
tioner] a letter informing [the petitioner] that [he] was filing a motion to
withdraw,’’ and explained to the petitioner his reasons for seeking with-
drawal. Holmes further testified that, to his recollection, the letter also
informed the petitioner that Holmes was filing an affidavit under seal to
protect the confidentiality of their communications.
4
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.’’