Humble v. Commissioner of Correction ( 2018 )

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DEREK HUMBLE v. COMMISSIONER OF
CORRECTION
(AC 39441)
Alvord, Bright and Sullivan, Js.
Syllabus
The petitioner, who had been convicted on guilty pleas pursuant to the
Alford doctrine of the crimes of carrying a pistol without a permit,
escape in the first degree and murder in connection with the shooting
death of the victim, sought a writ of habeas corpus, claiming that his trial
counsel had provided ineffective assistance. The habeas court rendered
judgment denying the habeas petition and, thereafter, denied the petition
for certification to appeal, and the petitioner appealed to this court. Held:
1. The petitioner could not prevail on his claim that the habeas court abused
its discretion in denying the petition for certification to appeal with
respect to his claim that his trial counsel provided ineffective assistance
by failing to adequately investigate certain evidence that allegedly would
have supported a claim of self-defense; the petitioner failed to satisfy
his burden of demonstrating that he was prejudiced by his counsel’s
allegedly deficient performance by showing that there was a reasonable
probability that had counsel interviewed two witnesses who had evi-
dence that tended to support the petitioner’s claim of self-defense, the
petitioner would have rejected the state’s plea offer and insisted on
going to trial, as the record suggested that the petitioner was aware
that another witness already had corroborated the petitioner’s claim
that the victim had a gun during the incident but he nonetheless elected
to accept the state’s offer and to plead guilty, the police did not recover
a gun from the body of the victim, there was no evidence that a second
gun was discharged at the scene, it was probable that a jury would
interpret evidence of an ongoing feud between the petitioner and the
victim as motive for the shooting and not as evidence of self-defense,
especially since the petitioner had voluntarily confessed to the killing
and to having previously robbed the victim, and the plea deal resolved
certain charges against the petitioner in another pending criminal case
that exposed him to significant jail time and for which he had no defense.
2. The habeas court did not abuse its discretion in denying the petition for
certification to appeal with respect to the petitioner’s claim that his trial
counsel rendered ineffective assistance by advising him to plead guilty
to murder without conducting an adequate investigation and by failing
to provide objectively reasonable advice with respect to his plea of
guilty to murder; the petitioner failed to demonstrate that but for his
trial counsel’s advice, he would have rejected the plea offer of thirty
years incarceration as a settlement of all the charges that he was facing
and, instead, would have insisted on proceeding to trial, and, therefore,
he failed to demonstrate that the issues raised were debatable among
jurists of reason, that a court could have resolved the issues in a different
manner or that the questions raised deserved encouragement to pro-
ceed further.
Argued November 28, 2017—officially released April 3, 2018
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, Fuger, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Peter Tsimbidaros, for the appellant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Tamara A. Grosso, assistant state’s attorney,
for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Derek Humble, appeals
from the denial of his petition for certification to appeal
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal and improperly rejected his claim that
his trial counsel rendered ineffective assistance. Specif-
ically, the petitioner claims that his trial counsel ren-
dered ineffective assistance by (1) failing to adequately
investigate exculpatory evidence, and (2) misadvising
him to plead guilty to murder. We conclude that the
habeas court did not abuse its discretion in denying
the petition for certification to appeal. Accordingly, we
dismiss the appeal.
The record reveals the following facts and procedural
history. On March 24, 2004, the petitioner shot and
killed the victim, Victor Blue, inside Melissa’s Market
in Hartford. The state charged the petitioner, in two
criminal cases, with murder in violation of General Stat-
utes § 53a-54a, criminal use of a firearm in violation of
General Statutes § 53a-216, criminal possession of a
firearm in violation of General Statutes § 53a-217, and
escape in the first degree in violation of General Statutes
§ 53a-169.1 The court appointed Attorney Robert J. Mer-
edith of the Public Defender’s Office to represent the
petitioner. On May 26, 2005, the petitioner pleaded
guilty, pursuant to the Alford doctrine,2 to murder and
criminal use of a firearm.3 The petitioner also pleaded
guilty to carrying a pistol without a permit and escape
in the first degree.
At the time of the plea, the court, Miano, J., canvassed
the petitioner, asking in relevant part whether the peti-
tioner had an opportunity to speak with counsel,
whether the petitioner was satisfied with counsel,
whether the petitioner understood the state’s allega-
tions, and whether the petitioner understood that, by
pleading guilty, he was giving up his rights to have a
trial by jury or judge, to confront and cross-examine
the state’s witnesses, to remain silent, to have the state
prove every element of the offenses beyond a reason-
able doubt, and to present a defense.4 The court also
explained the factual bases for the pleas, the elements
of the crimes charged, and the maximum sentences the
petitioner could receive. The court explained: ‘‘[Y]our
exposure here for these crimes, if my arithmetic is cor-
rect, is not less than twenty-five years, nor more than
seventy-five years, plus fines.’’ After concluding the can-
vass, the court found that the petitioner’s pleas were
knowing, voluntary, and intelligently made with the
effective assistance of counsel, and accepted the peti-
tioner’s guilty pleas. The court sentenced the petitioner
to thirty years imprisonment pursuant to an agreed
upon recommendation between the petitioner and the
state. The petitioner did not file a direct appeal from
his conviction.
On September 28, 2015, the petitioner filed an
amended petition for a writ of habeas corpus, in which
he alleged one count of ineffective assistance of his trial
counsel. Specifically, he claimed that Attorney Meredith
failed to conduct an adequate investigation of the case,
and to interview all eyewitnesses to the shooting. The
petitioner also claimed that Attorney Meredith advised
him to plead guilty without thoroughly investigating a
potential defense of self-defense.5 A trial commenced
before the habeas court, Fuger, J., on June 14, 2016.
The habeas court was presented with evidence of the
following facts. The killing was the result of ‘‘bad blood’’
that existed between the petitioner and his friends and
the victim and his friends. On March 23, 2004, in
response to learning that the victim ‘‘had family mem-
bers or so that . . . wanted to do bodily harm’’ to him,
the petitioner traveled to Clark Street in Hartford,
where he knew the victim hung out, to ‘‘shake him up
a little bit.’’ The petitioner robbed the victim at gunpoint.
Later that evening, as the petitioner was walking with
his friend, Jason Barclay, a man ‘‘came out the—one
of the driveways, made a comment, pulled out a gun
and started shooting at us.’’ The petitioner returned
fire, heard police sirens, and ran.
The next day, on March 24, the petitioner left his cell
phone at Melissa’s Market to charge. Later that day,
Patrick Ward, a friend of the petitioner, informed him
that the victim had been bragging about shooting at
him the night before. When the petitioner returned to
the store to retrieve his cell phone, Raymond Rodriguez
informed the petitioner that the victim and another man
were at the store looking for him earlier that day. The
petitioner observed the victim and Naquan Hartage,
whom the petitioner knew, exit the store. The victim
and the petitioner ‘‘made eye contact.’’ The petitioner
entered the store to retrieve his cell phone. As the
petitioner was reaching for his cell phone, it rang. Ward
was calling to warn the petitioner that the victim was
returning to the store. The petitioner observed the vic-
tim walking toward the store. The petitioner was stand-
ing in a ‘‘little cubbyhole off to the side’’ near the
entrance of the store. According to the petitioner, the
victim entered the store, looked at the petitioner, took
a few steps, turned around, and reached for a gun. At
that point, the petitioner pulled out a gun and shot the
victim multiple times. The petitioner fled the store. As
the petitioner was running out of the store, he noticed
Hartage running into the store.
Following the shooting, Hartage gave a voluntary
statement to the police in which he identified the peti-
tioner as the shooter.6 The police arrested the petitioner
on March 31, 2004, in Mississippi. After police arrested
the petitioner, he signed a voluntary statement in which
he confessed to killing the victim, but claimed to have
done so in self-defense. On May 18, 2004, Ward also
gave a voluntary statement to the police, in which he
corroborated the petitioner’s claim that, on March 24,
the victim was seeking the petitioner out in retaliation
for the March 23 robbery.7 Ward also told police that
immediately following the shooting, he ran into Melis-
sa’s Market and observed Hartage removing a gun from
the victim’s hand. The police did not recover a gun on
the victim’s body.
In an oral decision, the habeas court denied the
amended petition for a writ of habeas corpus, finding
that the petitioner had failed to satisfy the requirements
of Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner then
filed a petition for certification to appeal, which the
habeas court denied. This appeal followed.
We first set forth our standard of review. ‘‘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 satis-
fying 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 constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on its mer-
its.’’ (Internal quotation marks omitted.) Morris v.
Commissioner of Correction, 131 Conn. App. 839, 842,
29 A.3d 914, cert. denied, 303 Conn. 915, 33 A.3d 739
(2011). ‘‘A petitioner may establish an abuse of discre-
tion by demonstrating that the issues are debatable
among jurists of reason . . . [the] court could resolve
the issues [in a different manner] . . . or . . . the
questions are adequate to deserve encouragement to
proceed further.’’ (Internal quotation marks omitted.)
Clinton S. v. Commissioner of Correction, 174 Conn.
App. 821, 826, 167 A.3d 389, cert. denied, 327 Conn. 927,
171 A.3d 59 (2017).
‘‘We examine the petitioner’s underlying claim[s] of
ineffective assistance of counsel in order to determine
whether the habeas court abused its discretion in deny-
ing the petition for certification to appeal. Our standard
of review of a habeas court’s judgment on ineffective
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 erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Internal quotation marks omitted.)
Morris v. Commissioner of Correction, supra, 131
Conn. App. 842.
‘‘[I]n order to determine whether the petitioner has
demonstrated ineffective assistance of counsel [when
the conviction resulted from a guilty plea], we apply the
two part test annunciated by the United States Supreme
Court in Strickland and Hill [v. Lockhart, 474 U.S. 52,
59, 106 S. Ct. 366, 88 L. Ed. 2d (1985)]. . . . In Strick-
land, which applies to claims of ineffective assistance
during criminal proceedings generally, the United
States Supreme Court determined that the claim must
be supported by evidence establishing that (1) counsel’s
representation fell below an objective standard of rea-
sonableness, and (2) counsel’s deficient performance
prejudiced the defense because there was reasonable
probability that the outcome of the proceedings would
have been different had it not been for the deficient
performance. . . .
‘‘To satisfy the performance prong under Strickland-
Hill, the petitioner must show that counsel’s represen-
tation fell below an objective standard of reasonable-
ness. . . . A petitioner who accepts counsel’s advice
to plead guilty has the burden of demonstrating on
habeas appeal that the advice was not within the range
of competence demanded of attorneys in criminal
cases. . . . The range of competence demanded is rea-
sonably competent, or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . . Reasonably competent attor-
neys may advise their clients to plead guilty even if
defenses may exist. . . . A reviewing court must view
counsel’s conduct with a strong presumption that it
falls within the wide range of reasonable professional
assistance. . . .
‘‘To satisfy the prejudice prong [under Strickland-
Hill], the petitioner must show a reasonable probability
that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’’ (Cita-
tions omitted; internal quotation marks omitted.) Clin-
ton S. v. Commissioner of Correction, supra, 174 Conn.
App. 827–28.
With this legal framework in mind, we now turn to
the merits of the petitioner’s claims.8
I
The petitioner first claims that the court abused its
discretion in denying his petition for certification to
appeal because his trial counsel rendered ineffective
assistance by failing to ‘‘investigate available exculpa-
tory evidence’’ that would have supported the petition-
er’s claim of self-defense. Specifically, he argues that
Attorney Meredith ‘‘failed to conduct a thorough and
adequate investigation by interviewing eyewitnesses
who were at Melissa’s Market the day of the shooting
and witnesses who corroborated that Blue went to the
store with a gun in order to kill Mr. Humble.’’ He con-
tends that ‘‘had trial counsel unearthed this evidence,
a viable self-defense claim would have been established
which would have led him not to plead guilty to mur-
der.’’ We are not persuaded.
The habeas court was presented with evidence of the
following additional facts, which are relevant to the
petitioner’s claim. The petitioner testified that he ‘‘ada-
mantly’’ discussed a defense of self-defense with Attor-
ney Meredith. He testified that he informed Attorney
Meredith of potential witnesses that might be helpful,
including Barclay and Rodriguez, who Attorney Mere-
dith did not interview prior to the petitioner’s guilty
plea. The petitioner further testified that he communi-
cated to Attorney Meredith that he wanted to go to trial,
but Attorney Meredith insisted, ‘‘you have no defense.
If you go to trial you will lose.’’
Barclay testified that in the late afternoon on March
24, 2004, he went inside Melissa’s Market to make a
drug sale in the back of the store. He heard gunfire,
waited for it to stop, and then ran. As he ran out of the
store, Barclay saw the victim lying on the ground. He
saw Hartage, whom he knew in passing, leaning over
the body and doing what appeared to be removing a
gun from the victim’s right hand. He did not witness
the shooting. Barclay never spoke to the police about
what he saw, and he never spoke to Attorney Meredith
or his investigator.
The petitioner also presented the testimony of Rodri-
guez, who is known by the nickname ‘‘Primo.’’ When
questioned as to whether he recalled the events of
March 24, 2004, he responded: ‘‘Not really. It’s been so
long. I don’t remember shit. I smoke weed. I smoke
dust. I got so much shit going on my brain, car accident,
motorcycle accident. I don’t remember nothing right
now.’’ In response to questioning as to whether he told
the petitioner’s investigator that after the shooting, he
went into the store and saw a gun being removed from
the victim, Rodriguez testified: ‘‘No. He’s a Goddamn
liar for that one. He’s lying.’’9
Attorney Meredith testified about his representation
of the petitioner twelve years prior to the habeas trial.
He testified that from the beginning of his representa-
tion of the petitioner, he was aware that the petitioner
was claiming that he killed the victim in self-defense. He
testified that Ward corroborated the petitioner’s claim,
both in a voluntary statement to the police and during an
interview with the defense’s investigator, that Hartage
removed a gun from the victim’s body immediately fol-
lowing the shooting. He claimed that he advised the
petitioner that Ward corroborated his story. His investi-
gator interviewed Hartage twice, however, and ‘‘he
didn’t ever say that he took a gun off the body.’’ He
testified that his investigator attempted to contact
Rodriguez three times, but was unsuccessful, and that
he had no records of any contact with Barclay.
Attorney Meredith further testified that he discussed
self-defense with the petitioner ‘‘[t]hroughout the case.’’
He recognized three issues, however, with the claim of
self-defense: (1) the police did not recover a gun on
the body of the victim and there was no evidence that
a second gun was discharged within the store, (2) the
robbery that happened the day before the shooting, if
charged, could increase the petitioner’s sentence expo-
sure by up to twenty-eight years and call into question
a self-defense claim, and (3) ‘‘the jury could interpret
an ongoing problem of a feud between the two parties
which started the day before with Mr. Humble robbing
the victim with the victim then shooting at Mr. Humble
and with both parties being—going at one another if
you will.’’ He acknowledged that having another witness
to corroborate the petitioner’s claim that a gun was
removed from the victim’s body following the shooting
would have been helpful, but he was ‘‘still left with the
robbery that happened the day before that did not put
Mr. Humble in a good light. . . . I think a big piece of
analysis besides the gun on the body, the second piece
was, you know, that factual scenario where our claim
was self-defense and Mr. Humble was always self-
defense from the very beginning, could also be interpre-
ted as Mr. Humble waiting for that guy to come in so
he could kill him.’’
The court concluded that the petitioner’s claim failed
on Strickland’s performance prong, finding that Attor-
ney Meredith conducted an adequate investigation. The
court reasoned that ‘‘none of the evidence that this
court heard in the trial of this habeas petition was new
evidence in the sense that it brought new facts to light
that Mr. Meredith was not aware of.’’ The court
explained: ‘‘Now in this case there was a potentially
viable self-defense argument that could have been
raised by Mr. Humble. The facts contained within the
exhibits, the testimony, clearly show that the issue of
a self-defense defense was present. But self-defense is
an extremely risky defense to raise primarily because
if it fails, then conviction on the underlying offense is
almost a virtual certainty.
‘‘When self-defense is raised the fact that a death
occurred, that fact that the petitioner . . . caused the
death is not really at issue. What’s at issue is whether
that was a justified homicide. In other words, by acting
in self-defense the homicide was not criminal instead
was excused because it was self-defense.
‘‘Now having said that there was a potential self-
defense that could have been raised in this case does
not say that that was a winner of defense. There are
numerous factors that came out in the exhibits and
the testimony that demonstrate that the use of a self-
defense defense in this particular case was extraordi-
narily risky.’’
The court further made findings indicating that the
petitioner had also failed to satisfy Strickland’s preju-
dice prong. In its oral decision, the court concluded
that ‘‘[t]here was a strong incentive for Mr. Humble to
take the thirty year offer.’’ The court noted that the
petitioner’s exposure was ‘‘in the vicinity of seventy-
five years,’’ and that even if the jury believed the self-
defense theory, it would not reduce the petitioner’s
liability for the gun or escape charges. The court ulti-
mately concluded that, based on its assessment of the
evidence, a jury would be unlikely to believe the peti-
tioner’s claim of self-defense, and the petitioner was
likely to receive a ‘‘significantly higher’’ sentence than
the thirty years he received. Thus, the court concluded:
‘‘He decided—from the evidence presented it is clear
that Mr. Humble decided to take the safe route, albeit
still harsh, and accept the thirty years.’’
The following legal principles are relevant to our
resolution of the petitioner’s claim on appeal. ‘‘[C]onsti-
tutionally adequate assistance of counsel includes com-
petent pretrial investigation.’’ (Internal quotation marks
omitted.) Clinton S. v. Commissioner of Correction,
supra, 174 Conn. App. 836. ‘‘We are mindful of the princi-
ple that, although it is incumbent on a trial counsel to
conduct a prompt investigation of the case and explore
all avenues leading to facts relevant to the merits of
the case and the penalty in the event of conviction . . .
counsel need not track down each and every lead or
personally investigate every evidentiary possibility.
. . . In a habeas corpus proceeding, the petitioner’s
burden of proving that a fundamental unfairness had
been done is not met by speculation . . . but by
demonstrable realities. . . . One cannot successfully
attack, with the advantage of hindsight, a trial counsel’s
trial choices and strategies that otherwise constitution-
ally comport with the standards of competence.’’ (Inter-
nal quotation marks omitted.) Johnson v.
Commissioner of Correction, 285 Conn. 556, 583–84,
941 A.2d 248 (2008). ‘‘The burden to demonstrate what
benefit additional investigation would have revealed is
on the petitioner.’’ (Internal quotation marks omitted.)
Clinton S. v. Commissioner of Correction, supra, 836.
We conclude that the habeas court did not abuse its
discretion in denying certification to appeal. We need
only address the petitioner’s failure to satisfy the preju-
dice prong. See Petty v. Commissioner of Correction,
125 Conn. App. 185, 188, 7 A.3d 411 (2010) (‘‘[a]
reviewing court can find against a petitioner on either
ground, whichever is easier’’ [internal quotation marks
omitted]), cert. denied, 300 Conn. 903, 12 A.3d 573
(2011). The petitioner has failed to satisfy his burden
of showing a reasonable probability that had Attorney
Meredith interviewed Barclay and Rodriguez, he would
have rejected the state’s plea offer and insisted on going
to trial. Notably, the petitioner did not testify to this
effect. Furthermore, nothing in the record suggests that
the petitioner would have rejected the state’s plea offer
and insisted on going to trial. In fact, the record suggests
that, to the contrary, the petitioner was aware that at
least one witness, Ward, corroborated his claim that
the victim had a gun when the petitioner shot and killed
him. Despite this knowledge, the petitioner still chose
to accept the state’s offer and plead guilty.
We note that ‘‘[i]n many guilty plea cases, the preju-
dice inquiry will closely resemble the inquiry engaged
in by courts reviewing ineffective assistance challenges
to convictions obtained through a trial. For example,
where the alleged error of counsel is a failure to investi-
gate . . . the determination whether the error preju-
diced the defendant by causing him to plead guilty
rather than go to trial will depend on the likelihood
that discovery of the evidence would have led counsel
to change his recommendation as to the plea. This
assessment, in turn, will depend in large part on a pre-
diction whether the evidence likely would have changed
the outcome of a trial.’’ (Internal quotation marks omit-
ted.) Norton v. Commissioner of Correction, 132 Conn.
App. 850, 855, 33 A.3d 819, cert. denied, 303 Conn. 936,
36 A.3d 695 (2012).
The petitioner has failed to show that the discovery
of additional evidence likely would have led counsel to
change his recommendation as to the plea, or changed
the outcome of a trial. To the contrary, Attorney Mere-
dith testified that while it would have been helpful if
another witness corroborated the petitioner’s claim that
a gun was removed from the victim’s body following
the shooting, he still had other concerns, including: (1)
the fact that the police did not recover a second gun;
(2) there was no evidence that a second gun was dis-
charged in the store; (3) the robbery the night before
the shooting would cast the petitioner in a negative
light to a jury; (4) the robbery the night before could
increase any sentence by up to twenty-eight years; and
(5) the jury could interpret the incident in Melissa’s
Market to be part of an ongoing feud between the peti-
tioner and the victim, which the petitioner started when
he robbed the victim the night before. The habeas court
echoed some of these concerns in its oral decision.
Specifically, the court noted that (1) the March 23 rob-
bery ‘‘would be enough to defeat a self-defense argu-
ment in and of itself,’’ and (2) ‘‘the scenario that took
place inside Melissa’s Market could be construed to be
self-defense on the part of Mr. Humble but it also lent
itself quite easily and readily to an argument by the
prosecution that rather than being self-defense, this in
fact was an ambush designed to strike at Mr. Blue before
he had another opportunity to strike at Mr. Humble.’’
Not only had a witness identified the petitioner as the
person who shot and killed the victim, but the petitioner
voluntarily confessed to the killing. The petitioner also
voluntarily confessed to his ongoing feud with the vic-
tim, one that began when he robbed the victim at gun-
point to ‘‘shake him up a little bit.’’ We agree with the
habeas court that although the petitioner could have
presented a self-defense claim if he went to trial, there
were ‘‘numerous factors that came out in the exhibits
and the testimony that demonstrate that the use of a
self-defense defense in this particular case was extraor-
dinarily risky’’ and ‘‘significant reasons to believe that
a jury would not buy the argument of self-defense.’’
Furthermore, at the time of the petitioner’s guilty
plea, the petitioner had two pending criminal cases that
exposed him to significant jail time. The habeas court
correctly observed that even if a jury believed the peti-
tioner’s claim of self-defense, that defense would not
‘‘in any way go to reduce liability for the gun or the
escape from custody charge.’’ The petitioner had no
defense for those charges. The petitioner’s guilty plea
ultimately consolidated and disposed of his numerous
pending charges into a sentence of thirty years impris-
onment. As the habeas court observed, the petitioner’s
exposure was ‘‘in the vicinity of seventy-five years,’’
and ‘‘[t]here was a strong incentive for Mr. Humble to
take the thirty year offer.’’ We also agree with the court’s
observation that: ‘‘[T]he petitioner could have taken his
case to trial. He could have rolled the dice. He could
have raised the defense of self-defense which if the jury
had accepted it might have resulted in a sentence lower
than the thirty years that he agreed to. On the other
hand, if the jury did not accept the issue of self-defense,
and this court believes there are significant reasons to
believe that a jury would not buy the argument of self-
defense, Mr. Humble would have received a sentence
that was significantly higher than the thirty years that
he agreed to. . . . He decided—from the evidence pre-
sented it is clear that Mr. Humble decided to take the
safe route, albeit still harsh, and accept the thirty years.’’
Simply put, even if we were to assume that Attorney
Meredith failed to discover potential evidence that cor-
roborated the victim’s self-defense claim, in light of our
review of the record, we conclude that the petitioner’s
claim that he would have pursued a jury trial is specula-
tive at best.10
II
The petitioner next claims that the court abused its
discretion in denying his petition for certification to
appeal because his trial counsel rendered ineffective
assistance by advising him to plead guilty to murder
without conducting an adequate investigation, and fail-
ing to provide candid, objectively reasonable advice.11
We are not persuaded.
The habeas court was presented with evidence of the
following additional facts, which are relevant to the
petitioner’s claim. At the habeas trial, Attorney Meredith
testified that during the underlying criminal proceed-
ings, the petitioner informed him that he would be will-
ing to plead guilty to manslaughter. The state, however,
did not offer a plea deal that would allow the petitioner
to plead guilty to manslaughter, and instead offered the
petitioner a recommended sentence of thirty years if
he pleaded guilty to murder. The petitioner testified
that when Attorney Meredith presented this offer, he
informed Attorney Meredith that he felt as though he
had a strong claim of self-defense and did not want to
accept the offer. The petitioner testified that Attorney
Meredith contacted his mother and told her that the
petitioner had no defense and would serve sixty years
in jail if he rejected the deal. The petitioner testified
that he decided to accept the thirty year offer rather
than go to trial because his mother was pressuring him,
Attorney Meredith said he had no defense, and Attorney
Meredith advised him that he would ‘‘be able to get
back into court under the Alford doctrine . . . .’’12
Attorney Meredith testified as to his practice for
advising clients in connection with plea offers: ‘‘I do
not—what I try to do with each and every client from
the time I’ve been a criminal defense attorney is to
present—to go through discovery, do an independent
investigation, and try—try to present what might play
it out in a trial from an [objective] point of view. I have
not motive to try to get a client to plead or not. As long
as I know a client understands the risk of going to trial,
as long as I know the client understands the offer and
if I’m sure of those two things, then I can sleep at night.
I’m dealing with a grown man and they make their
decisions from there on or woman as the case may
be. So I don’t pressure clients. I try to inform them
objectively in term—and then they make the decision
on their own.’’
The habeas court concluded that nothing in the
record supported ‘‘any conclusion that Mr. Humble’s
plea of guilty was anything other than voluntary, intelli-
gent, and willing, as willing as any person who pleads
guilty to a serious offense’s plea is willing.’’ The court
further noted that ‘‘in this case Mr. Humble was pre-
sented with a potential for spending the entirety of
his natural life locked up in a jail. He was offered the
opportunity to plead guilty for a global settlement in
exchange a sentence of thirty years.
‘‘Now I realize to a twenty-two year old a thirty year
sentence is not insignificant and I don’t mean to seem
at all callous because a thirty year sentence is significant
irrespective of the age of the person who is receiving
it. But given the acceptance of that plea, the possibility
that Mr. Humble will gain freedom, albeit later in his
life, exists. I see nothing in this evidence that was pre-
sented to this court that would allow me to conclude
that Mr. Humble’s will was overborne in any way.’’
Based on our review of the record, we conclude that
the habeas court did not abuse its discretion in denying
the petition for certification to appeal. We have already
concluded in part I of this opinion that the petitioner
has failed to satisfy Strickland-Hill’s prejudice prong,
and we conclude the same in regard to this claim. The
petitioner has not demonstrated that but for Attorney
Meredith’s advice, he would have rejected the plea offer
and insisted on proceeding to trial. As discussed in
more detail in part I of this opinion, the petitioner simi-
larly has not persuaded this court that any additional
evidence likely would have changed counsel’s advice.
Furthermore, the habeas court’s conclusion that the
petitioner’s plea was voluntary and intelligent is sup-
ported by the plea transcript, which contains a lengthy
canvass by the trial court. See Bigelow v. Commis-
sioner of Correction, 175 Conn. App. 206, 215–16, 167
A.3d 1054 (‘‘[a] court may properly rely on . . . the
responses of the [petitioner] at the time [he] responded
to the trial court’s plea canvass’’ [internal quotation
marks omitted]), cert. denied, 327 Conn. 929, 171 A.3d
455 (2017).
We conclude that the petitioner has failed to demon-
strate that the issues raised are debatable among jurists
of reason, that a court could resolve the issues in a
different manner, or that the questions deserve encour-
agement to proceed further. Accordingly, the habeas
court did not abuse its discretion in denying the petition
for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The escape charge arose from an unrelated incident.
2
‘‘Under North Carolina v. Alford, [400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970)], a criminal defendant is not required to admit his guilt, but
consents to being punished as if he were guilty to avoid the risk of proceeding
to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron
in that the defendant does not admit guilt but acknowledges that the state’s
evidence against him is so strong that he is prepared to accept the entry
of a guilty plea nevertheless. . . . In North Carolina v. Alford, supra, the
United States Supreme Court treated such guilty pleas as the functional
equivalent of a plea of nolo contendere.’’ (Citations omitted; internal quota-
tion marks omitted.) White v. Commissioner of Correction, 145 Conn. App.
834, 847 n.3, 77 A.3d 832, cert. denied, 310 Conn. 947, 80 A.3d 906 (2013).
3
The court vacated the plea with respect to the criminal use of a firearm
charge. See General Statutes § 53a-216 (a) (‘‘[n]o person shall be convicted
of criminal use of a firearm . . . and the underlying felony upon the same
transaction but such person may be charged and prosecuted for both such
offenses upon the same information’’).
4
The court explained in relevant part: ‘‘[B]y pleading guilty to these crimes,
either a straight plea or under the Alford doctrine, these are the rights you
are giving up forever concerning all these cases, concerning each and every
one. . . .
‘‘[Y]ou are . . . giving up your right by pleading guilty to put forward
any kind of defense you might have to these crimes.
‘‘For example, let’s say you had a defense that you were in Florida at the
time of this killing, that’s what’s called an alibi. And by pleading guilty you
can’t put forward that defense or any defense you might have.’’
When the court asked the petitioner whether he understood the rights
that he was giving up by pleading guilty, the petitioner responded, ‘‘yup.’’
5
In the amended petition, the petitioner also claimed that Attorney Mere-
dith failed to advise him about a possible defense of extreme emotional
disturbance. The petitioner has abandoned that claim.
6
Specifically, Hartage claimed that, while walking outside of the store,
he heard gunshots and saw the petitioner, whom he knew by his nickname
‘‘Roscoe,’’ run out of the store with a gun.
7
Specifically, Ward claimed that before the shooting on March 24, the
victim showed him a gun and said, ‘‘[t]ell your boy Rosco I’m gonna kill him!’’
8
The respondent asserts that the petitioner argues only the merits of his
appeal, as if this were an appeal from a decision of a habeas court granting
certification to appeal. Specifically, the respondent argues: ‘‘This case exem-
plifies how Justice Borden’s fears have come to fruition. The manner in
which the petitioner has structured his argument shows that the Simms
procedure has simply served as an ‘implied invitation to appeal, directed
to all disappointed habeas petitioners denied certification to appeal,’ and
that the certification requirement has since ‘become an empty gesture.’
Simms v. Warden, [supra, 229 Conn. 191–92] (Borden, J., concurring).’’ The
respondent urges this court to ‘‘reevaluate the Simms procedure and adopt
a procedure akin to Practice Book § 84-1 et seq. and that used in federal
habeas litigation, whereby a petitioner denied certification to appeal from
the habeas court must file a petition for certification with the Appellate
Court to obtain a certificate of appealability.’’
Although we are very familiar with the respondent’s concern that the
certification to appeal requirement of General Statutes § 52-470 (g) has
turned into a ‘‘hollow command’’ in light of the standard of review that our
Supreme Court enunciated in Simms v. Warden, supra, 229 Conn. 178, and
adopted in Simms v. Warden, supra, 230 Conn. 612, we decline the invitation
to reevaluate the Simms procedure. ‘‘[T]his court will not reexamine or
reevaluate Supreme Court precedent. Whether a Supreme Court holding
should be reevaluated and possibly discarded is not for this court to decide.’’
(Internal quotation marks omitted.) State v. Billie, 123 Conn. App. 690, 706,
2 A.3d 1034 (2010).
9
The petitioner called his counsel’s investigator, Eric Eichler, to contradict
this testimony. The court, however, admitted Eichler’s testimony about
Rodriguez’ statements regarding the shooting only to impeach Rodriguez’
testimony that he had no memory of the shooting. The court explained:
‘‘Well I’m going to give it absolutely zero weight as to the—whatever he
says Mr. Rodriguez might have said. . . . [S]ince he said he knew nothing,
even if you impeach him that he knew something, I still don’t know what
he knew. . . . [A]ll Mr. Eichler’s going to be able to establish is that Mr.
Rodriguez was not being forthcoming.’’
10
In Carraway v. Commissioner of Correction, 144 Conn. App. 461, 476,
72 A.3d 426 (2013), appeal dismissed, 317 Conn. 594, 119 A.3d 1153 (2015),
this court held that in order to satisfy the prejudice requirement in an
ineffective assistance claim arising from counsel’s advice during the plea
process, a defendant only must show that there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial, not that he would have insisted on trial and
achieved a more favorable outcome. The United States Supreme Court,
however, recently observed: ‘‘The dissent contends that a defendant must
also show that he would have been better off going to trial. That is true
when the defendant’s decision about going to trial turns on his prospects
of success and those are affected by the attorney’s error—for instance,
where a defendant alleged that his lawyer should have but did not seek to
suppress an improperly obtained confession. . . . [C]f., e.g., Hill [v. Lock-
hart, supra, 474 U.S. 59] (discussing failure to investigate potentially exculpa-
tory evidence).’’ (Citation omitted; emphasis added.) Lee v. United States,
U.S. , 137 S. Ct. 1958, 1965, 198 L. Ed. 2d 476 (2017). While we note
this apparent conflict, we need not determine today which standard applies
because the petitioner has failed to show prejudice under the more lenient
Carraway standard.
11
For the first time on appeal, the petitioner raises a claim pursuant to
Barlow v. Commissioner of Correction, 150 Conn. App. 781, 93 A.3d 165
(2014), in which this court held that an attorney’s decision to offer no
advice regarding a state’s plea offer constituted constitutionally deficient
performance. Id., 801–802. Specifically, the petitioner claims that ‘‘[h]ere,
as in Barlow, trial counsel failed to render candid advice whether it was in the
[petitioner’s] best interest to accept the state’s offer or consider alternatives
before [he] plead.’’ The respondent argues that this claim is not properly
before this court, as it was never pleaded in the operative habeas petition
nor decided by the habeas court.
Barlow dealt only with the performance prong of Strickland. See id.,
803–804 (concluding that record was lacking regarding prejudice and
remanding for further proceedings on the issue of whether defendant was
prejudiced by counsel’s deficient performance). Because we conclude that
the petitioner has failed to show prejudice, and do not address whether
Attorney Meredith’s performance was deficient, we need not address the
petitioner’s Barlow claim.
12
Although the petitioner, at the habeas trial, testified that Attorney Mere-
dith incorrectly advised him that the Alford doctrine would permit him to
‘‘get back into court and win my freedom back,’’ he does not claim on appeal
that this advice constituted ineffective assistance. Furthermore, the court
was free to reject the petitioner’s testimony as not credible; see Noze v.
Commissioner of Correction, 177 Conn. App. 874, 887, 173 A.3d 525 (2017);
which, given its conclusion that counsel ‘‘gave proper legal advice to Mr.
Humble and Mr. Humble made the decision to accept the plea offer,’’ it
clearly did.