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ROBERTO ALVARADO v. COMMISSIONER
OF CORRECTION
(AC 36148)
DiPentima, C. J., and Gruendel and Prescott, Js.
Submitted on briefs September 25 —officially released November 11, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Mark Diamond filed a brief for the appellant (peti-
tioner).
Stephen J. Sedensky III, state’s attorney, Lisa A. Rig-
gione, senior assistant state’s attorney, and Devon T.
Stilson, senior assistant state’s attorney, filed a brief
for the appellee (respondent).
Opinion
PER CURIAM. Under Connecticut law, a successive
habeas petition is subject to summary dismissal without
a hearing only when the successive petition is premised
on the same legal ground, seeks the same relief, and is
not supported by allegations and facts that were not
reasonably available to the petitioner at the time of
the original petition. McClendon v. Commissioner of
Correction, 93 Conn. App. 228, 231, 888 A.2d 183, cert.
denied, 277 Conn. 917, 895 A.2d 789 (2006); see also
Practice Book § 23-29 (3). The petitioner, Roberto Alva-
rado,1 appeals from the habeas court’s denial of his
petition for certification to appeal from its summary
dismissal of his petition for a writ of habeas corpus.
On appeal, the petitioner argues that the habeas court
(1) abused its discretion in denying certification to
appeal, and (2) improperly dismissed his habeas peti-
tion pursuant to Practice Book § 23-29 (3). We disagree
and dismiss the appeal.
In 2001, a jury found the petitioner guilty of felony
murder in violation of General Statutes § 53a-54c,
attempt to commit robbery in the first degree in viola-
tion of General Statutes §§ 53a-134 (a) (2) and 53a-49,
carrying a pistol without a permit in violation of General
Statutes (Rev. to 1999) § 29-35 (a), and having a weapon
in a motor vehicle in violation of General Statutes (Rev.
to 1999) § 29-38. See State v. Lugo, 266 Conn. 674, 676–
77, 835 A.2d 451 (2003). The criminal court sentenced
the petitioner to fifty years incarceration and ten years
of special parole. Id., 678. Our Supreme Court affirmed
his conviction on direct appeal. Id.
The petitioner subsequently filed a petition for a writ
of habeas corpus. In a fourth amended petition, dated
May 31, 2006, he alleged that he had received ineffective
assistance of counsel during his criminal trial from
Attorney Paul Eschuk. Specifically, he alleged that
Eschuk had provided ineffective assistance by failing
to file a motion to sever his trial from that of a codefen-
dant on the basis of antagonistic defenses.2 The peti-
tioner requested, inter alia, in his prayer for relief that
he receive a new trial and that he be released from
custody. On July 5, 2007, the court, Fuger, J., issued a
memorandum of decision denying the habeas petition.
Judge Fuger concluded that the petitioner had failed
to establish both prongs of the test set forth in Strick-
land v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984).3 The petitioner’s appeal from
the denial of his habeas petition was dismissed on
August 12, 2008, for failure to file a brief.
In the petitioner’s second habeas action, in an
amended petition dated March 16, 2011, he alleged a
violation of his constitutional rights as a result of an
ex parte communication between the judge and the jury
during his criminal trial. He further claimed that Eschuk
had provided ineffective assistance by failing to raise
this claim. The petitioner requested that the court issue
a writ of habeas corpus directing the criminal court to
either vacate his conviction within a reasonable amount
of time or to release him from confinement. On June
21, 2011, the second habeas court, T. Santos, J., issued
a memorandum of decision denying the petition. Judge
Santos concluded that the petitioner had ‘‘not presented
any credible evidence in support of his claims.’’
The petitioner then commenced this third habeas
action, again alleging ineffective assistance of Eschuk.
Specifically, he claimed that Eschuk had failed to pro-
vide effective representation during voir dire of poten-
tial jurors by not asking questions regarding any biases
or prejudices that they may have had regarding gangs.
The petitioner further contended that Eschuk improp-
erly had failed to present additional testimony relating
to gangs to the detriment of his defense. As a remedy,
the petitioner sought a new trial and/or to be released
from custody. On August 20, 2013, the habeas court,
Newson, J., sua sponte, summarily dismissed the
habeas petition. It concluded that the petitioner had
‘‘raised claims of ineffective assistance against trial
counsel in [his two prior habeas petitions], both of
which were denied after trials on their merits. The
[p]etitioner raises the same claim here, seeks the same
relief, and fails to present any new facts or evidence
within the meaning of the law. The petition is dismissed
pursuant to [Practice Book] § 23-29 (3).’’ The court sub-
sequently denied the petition for certification to appeal.
This appeal followed.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for 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 must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, he 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.’’ (Internal
quotation marks omitted.) Day v. Commissioner of
Correction, 151 Conn. App. 754, 757–58, 96 A.3d 600
(2014); Maldonado v. Commissioner of Correction, 141
Conn. App. 455, 460–61, 62 A.3d 528, cert. denied, 308
Conn. 941, 66 A.3d 883 (2013).
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 . . . .’’
‘‘Our Supreme Court has stated that [i]n our case
law, we have recognized only one situation in which a
court is not legally required to hear a habeas petition.
In Negron v. Warden, [180 Conn. 153, 158, 429 A.2d 841
(1980)], we observed that, pursuant to Practice Book
[§ 23–29], [i]f a previous application brought on the
same grounds was denied, the pending application may
be dismissed without hearing, unless it states new facts
or proffers new evidence not reasonably available at
the previous hearing. . . . In this context, a ground has
been defined as sufficient legal basis for granting the
relief sought. . . .
‘‘[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 omit-
ted.) Wright v. Commissioner of Correction, 147 Conn.
App. 510, 514–15, 83 A.3d 1166 (2014); see also Asif
v. Commissioner of Correction, 132 Conn. App. 526,
529–30, 32 A.3d 967 (2011), cert. denied, 304 Conn. 901,
37 A.3d 745 (2012).
In each of his three habeas actions, the petitioner
alleged that Eschuk had provided ineffective assistance
of counsel. Furthermore, in each petition he requested
that he be released from confinement and granted a
new trial. The habeas court dismissed the third petition
because it was based on the same ground and sought
the same relief as the prior petitions. See Smith v.
Commissioner of Correction, 122 Conn. App. 637, 641–
42, 999 A.2d 840 (2010), cert. denied, 300 Conn. 901, 12
A.3d 574 (2011). ‘‘A ground is a sufficient legal basis for
granting the relief sought.’’ (Internal quotation marks
omitted.) James L. v. Commissioner of Correction, 245
Conn. 132, 141, 712 A.2d 947 (1998). ‘‘Identical grounds
may be proven by different factual allegations, sup-
ported by different legal arguments or articulated in
different language.’’ (Internal quotation marks omitted.)
Smith v. Commissioner of Correction, supra, 641–42.
However they are proved, the grounds that the peti-
tioner asserted are identical in that each alleges ineffec-
tive assistance of counsel, and, therefore, the habeas
petition was properly dismissed. We also note that there
is no claim that the third habeas petition contains newly
discovered facts. See, e.g., id., 640. Because it is clear
that the habeas court properly dismissed the petition-
er’s third habeas action, we conclude that the court
did not abuse its discretion in denying the petition for
certification to appeal.
The appeal is dismissed.
1
The petitioner is also known as Ruperto Lugo. See State v. Lugo, 266
Conn. 674, 835 A.2d 451 (2003).
2
The petitioner also alleged that his constitutional rights were violated
as a result of various incidents of misconduct by the members of the jury.
The habeas court concluded that these claims failed under the affirmative
defense of procedural default.
3
‘‘A claim of ineffective assistance of counsel consists of two components:
a performance prong and a prejudice prong. To satisfy the performance
prong, a claimant must demonstrate that counsel made errors so serious
that counsel was not functioning as the counsel guaranteed . . . by the
[s]ixth [a]mendment. . . . To satisfy the prejudice prong, a claimant must
demonstrate that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been differ-
ent. . . . Because both prongs . . . must be established for a habeas peti-
tioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet
either prong.’’ (Internal quotation marks omitted.) O’Neil v. Commissioner
of Correction, 142 Conn. App. 184, 189–90, 63 A.3d 986, cert. denied, 309
Conn. 901, 68 A.3d 656 (2013).