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   PIERCE v. COMMISSIONER OF CORRECTION—CONCURRENCE

   FLYNN, J., concurring. I concur in the reasoning and
result reached in part II B of the majority opinion deal-
ing with the second count. In light of the lengthy proce-
dural history set out by the majority, I fully concur that
the petitioner has received fair treatment. The peti-
tioner makes the same exact claims for relief in both
his first and second counts. The habeas court held that
that relief was barred as to the second count because
the petition was successive and barred by that prong
of the res judicata doctrine that prevents raising again
matters that have already actually been decided in an
earlier proceeding. I agree with the habeas court and
the majority.
   As to part II A, the petitioner has sought substantially
the same relief in both the third and fourth petitions;
he cannot now get a new bite at the apple by attaching
a new violation of due process label to an old ineffec-
tiveness claim. Practice Book § 23-29 provides in rele-
vant part: ‘‘The judicial authority may, at any time, upon
its own motion or upon motion of the respondent, dis-
miss 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.’’ I would
sustain the habeas court’s remaining judgment on
that ground.
  In the first count, the petitioner claims that he was
deprived of due process of law because the sentencing
court relied on privileged information contained in his
psychiatric records when it sentenced him. In the sec-
ond count, the petitioner claims that his trial counsel
rendered ineffective assistance by failing to object to
the sentencing court’s use of the privileged information
in the petitioner’s psychiatric records. Although the
petitioner in his prior habeas petition did not claim a
resulting due process violation arising out of the sen-
tencing court’s use of his psychiatric information, he
does so in the first count of this fourth petition.
   The habeas court dismissed the fourth petition as
to the first count because it had been procedurally
defaulted by virtue of the petitioner’s failure to raise it
in any of his prior petitions. I write separately because,
in light of the inconsistency of our jurisprudence permit-
ting a ‘‘procedural default’’ defense in ‘‘failure to raise’’
cases when the petitioner cannot show cause and preju-
dice, but barring a res judicata defense on the same
‘‘failure to raise’’ grounds in habeas cases,1 I would
affirm the judgment of the habeas court on the alternate
ground of Practice Book § 23-29 (3)—namely, that the
petitioner has merely attached a new label to an old
ineffectiveness claim without any new factual basis not
already litigated and has failed to state any new facts
to warrant relief not reasonably available to him at the
time of the hearing on his prior petition. See Alvarado
v. Commissioner of Correction, 153 Conn. App. 645,
646, 103 A.3d 169 (‘‘[u]nder Connecticut law, a succes-
sive 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’’), cert. denied, 315 Conn.
910, 105 A.3d 901 (2014); Iasiello v. Manson, 12 Conn.
App. 268, 272, 530 A.2d 1075 (holding that petitioner
must ‘‘show that his [petition] does, indeed, involve a
different legal ground, not merely a verbal reformula-
tion of the same ground’’ as in a prior petition), cert.
denied, 205 Conn. 811, 532 A.2d 586 (1987).
   The habeas court’s findings are consistent with dis-
missal pursuant to Practice Book § 23-29 (3). The
habeas court found that, with respect to the petitioner’s
second count, ‘‘[t]he factual bases asserted have been
readily available to the petitioner at the time of all
three of his prior habeas corpus petitions. Nothing the
petitioner asserts is remotely describable as newly dis-
covered evidence and the petitioner quite clearly could
have previously raised and litigated the claimed ineffec-
tive assistance premised on the allegations in the first
claim.’’ It is undisputed that the petitioner had waived
any confidentiality claim as to his psychiatric records
in the presentence investigation report compiled for a
prior sentencing. He never alerted the court to any such
claim of confidentiality as to the presentence investiga-
tion report used in his later sentencing that resulted in
these successive habeas petitions. The court also found
that ‘‘the dismissal of the first claim is inextricably
linked to the viability of the amended petition’s second
claim, and a dismissal of the second claim by necessity
incorporates a dismissal of the first claim.’’ I agree with
the court’s determination of that inextricable link.
   If endless successive petitions are to be permitted
by petitioners essentially raising the same sixth amend-
ment deprivation of the right to effective counsel but
attaching a reference to some new resulting breach of
some constitutional right, the remedy of the ‘‘great writ’’
for some will become lost in a sea of such successive
petitions brought by others.
   1
     See Practice Book § 23-30, which provides in relevant part: ‘‘(a) The
respondent shall file a return to the petition . . . (b) The return shall
respond to the allegations of the petition and shall allege any facts in support
of any claim of procedural default, abuse of the writ, or any other claim
that the petitioner is not entitled to relief’’; Johnson v. Commissioner of
Correction, 285 Conn. 556, 567, 941 A.2d 248 (2008) (‘‘[w]hen a respondent
seeks to raise an affirmative defense of procedural default, the rules of
practice require that he or she must file a return to the habeas petition
‘alleg[ing] any facts in support of any claim of procedural default . . . or
any other claim that the petitioner is not entitled to relief’ ’’); see also Diaz
v. Commissioner of Correction, 125 Conn. App. 57, 64, 6 A.3d 213 (2010)
(noting that ‘‘in the habeas context . . . the application of the doctrine of
res judicata . . . [is limited] to claims that actually have been raised and
litigated in an earlier proceeding’’ [internal quotation marks omitted]), cert.
denied, 299 Conn. 926, 11 A.3d 150 (2011).
